text:
    No. 2878
    Second Circuit
    RAPHIEL v. AMERICAN RAILWAY EXPRESS CO.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    W. Peyton Cunningham, of Natchitoches, and Pugh, Grimmett and Boatner, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit against the defendant, American Railway Express Company, to recover the value of a diamond ring which it is alleged was delivered to defendant to be shipped to George T. Brodnax, Incorporated, of Memphis, Tenn. In order that the issue involved may be understood, it is necessary to refer at length to the pleadings.

The plaintiff alleged that on June 19, 1925, she delivered to the agent of the said express company, at Campti, La., two diamond rings of the value of $430, paying the value and express charges as required, and that she received a receipt from the agent. She further alleged that at the time the two rings were delivered to the express company, the regular agent, Mr. Attaya, was absent from the station on account of illness, but that his place as agent was being filled by a man named Perry, who received the package from her son, H. L. Raphiel, and that the two together securely wrapped and tied it; but that the package, upon being delivered to the said Perry, was not sealed by him in the presence of her son. She further alleged that when the package was delivered by the express company to the consignee in Memphis, the large' diamond ring, valued at $400, was missing.

The defendant in answer admitted that plaintiff delivered to its agent at Campti a package pn June 19, 1925, for transportation to the consignee, and that a receipt for the package was duly issued; “hut respondent specifically denies that the package contained the two diamond rings as alleged in Article 3, respondent believing, and so believing, alleging, that the package did not contain the large diamond ring hereinafter referred to.”

In Article 4 of its answer, the defendant recited at great length and in detail the circumstances under which the package was delivered to its agent, Perry, the substance of which is to the effect that when Mrs. Raphiel’s son brought the package to its office, its agent, Mr. Perry, gave to him twine and wrapping paper with which to wrap and tie the package, and that the package was wrapped and tied by Raphiel himself; that the agent in the meantime wrote out a receipt for the package and that before the agent had a chance to seal it, he was called out of the main office to another ' part of the joint station, hut, before going out, he placed the package in the ticket box of the office and locked it, the same being done in the presence of Raphiel and Claude Cochran; that upon the return of the agent, which occurred within a few minutes, the said agent duly sealed the package and placed on each seal the impression of the agency seal; that the sealing, as aforesaid, was done in the presence of Mr. Cochran and that the package, as wrapped by Mr. Raphiel and sealed by the agent, was duly forwarded to the consignee without either strings or seals being broken'; that the package, was taken to the residence of the regular agent, Attaya, for safekeeping and that he retained it during the night, and that it was shipped on the following day, and that when the package arrived in Memphis, the wrappings and seals were undisturbed.

In answer to paragraph 5 of plaintiff’s petition, in which it is alleged that one of the rings «was not in the package when received by the consignee, defendant neither admits nor denies that the ring was missing; “but alleges that, if the said ring was missing when the package arrived in the hands of the consignee, that the same never was in the package at all, such being the belief of respondent and therefore being alleged as fact.”

The trial in the lower court resulted in a judgment in favor of plaintiff for the value of the ring; and defendant has appealed.

OPINION

The testimony is clear that the large diamond ring which plaintiff alleges was delivered to the express company for shipment to George T. Brodnax, Incorporated, at Memphis, was not in the package when it was received by said consignee. In its answer, defendant does not deny that the large ring was missing from the package when it was delivered. But it specifically denies that the said ring was in the package when it was delivered to its agent at Campti, La.; and, as we appreciate the pleadings, the question as to whether the said ring was in the package when it was received, is the only issue involved.

When the package was delivered to the agent, he issued the company’s receipt, which showed the value of the package to be $400, which valuation was made by Mrs. Raphiel’s son. He testified that he informed the agent that the package contained two diamond rings. However, the agent denies that. It cannot be disputed that defendant’s agent was informed that the value of the contents of the package was $400. It is not contended by defendant that Mrs. Raphiel, through her son, made any false or fraudulent representations to the agent, nor is it contended that Perry, who received the package for the defendant company, was not fully authorized to issue a receipt. '

Insofar as a receipt or bill of lading for goods delivered to a carrier for transportation involves a contract for carriage, its contents cannot be varied by parol testimony. But its contents, insofar as it involves the quantity or value of the goods received, may be contradicted by parol evidence showing a less quantity to have been delivered, and likewise that the goods were of less value than that declared by the shipper. This is the general rule to which there are some exceptions that do not apply, in this case. It was, therefore, permissible for the defendant in this case to show, if it could, that the package did not contain two diamond rings and that its contents were of less value than that placed by the shipper.

But, having accepted the package as presented without an investigation as to its contents, and having accepted the shipper’s valuation and issued its receipt as it did, the burden was upon defendant to show that as a matter of fact the package did not contain articles worth $400.

The issuance of the express receipt by defendant was an acknowledgment that it had received property worth $400. The production of the receipt by the shipper made out a prima facie case, the presumption being that articles of that value had been received. The rules relating to bills of lading, insofar as they may be considered receipts for goods, apply to express receipts.

“It is nowhere questioned that a bill-of-lading is prima facie evidence of the • receipt of goods by the carrier. And this is true, although a statute forbids the issuance of bills-of-lading, except for goods actually in the carrier’s possession. But such recitals are not conclusive and it may be shown by parol evidence that none of the goods, or only a part of the goods described in the bill-of-lading, were in fact received. * * * Nevertheless, the recitals of the bill-of-lading as to the receipt of the goods place the burden on the carrier to show the contrary and, in the absence of convincing testimony establishing mistake, they must control.”

10 C. J. Sec. 262, p. 199.

As between the parties, the bill-of-lading is prima facie evidence that the goods were received.

Kirkman et al. vs. Bowman, 8 Rob. 246; Flower vs. Downs, 12 Rob. 101.

Where a carrier issues a bill of lading for goods, reciting that they are in good condition, such recital makes a prima facie case against it as to their condition, and, in case the goods are delivered to a consignee in a damaged condition, the burden is upon the carrier to show that the damage was not due to its fault or negligence.

Calhoun vs. American Ry. Express Co., 3 La. App. 628; Kimball & Lilly vs. Brander et al., 6 La. 711; Wm. Bond vs. S. W. Frost et al., 6 La. Ann. 801; Webre vs. Carter & Co., 12 La. Ann. 446; Ship Rappahannock vs. Woodruff & Co., 11 La. Ann. 698; Lehman, Stern & Co. vs. Morgan’s La. & Tex. R. R. & S. S. Co., 115 La. 1, 38 So. 873, 70 L. R. A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818; National Rice Milling Co. vs. N. O. & N. E. R. Co. et al., 132 La. 615, 61 So. 708, Ann. Cas. 1914D, 1099.

Applying these rules to the case at bar, we find that defendant has failed to discharge the burden laid upon it to disprove the recitals of its receipt.

Counsel argue that from the fact that package left Campti sealed and arrived in Memphis with the seals unbroken, the conclusion is inevitable that the ring was not lost in transit. No fault can be found with that reasoning. But that is not sufficient to relieve defendant of liability. It acknowledged the receipt of a package with its contents valued at $400. It must account for the contents of that package and the value of same unless it can show that, as a matter of fact, the package contained no such contents when received. This it failed to do.

On the contrary, Mrs. Raphiel, the plaintiff, swore positively that she placed two rings in a small box and wrapped it; that she put the small box in a larger one and handed it to her son at her home and that the son saw her place both rings in the package. Her son corroborated her on that point. The son then took the package to the express office where, without removing any of the contents, he securely wrapped and tied it. Thus, wrapped and tied, he delivered it to the agent and took his receipt therefor.

Counsel suggest that the ring may have fallen out of the box before it was delivered to the agent. That does not seem probable because both rings, according to her testimony and that of her son, were put into the small box together and the small box placed in a larger one and secured by rubber bands. The small box, with one of the rings within, was in the larger box when it was received by the consignee. Both rings were wrapped together. We cannot imagine how the valuable ring could have fallen out of the box, leaving the other one.

The express agent, we think, was careless in handling the package. He was informed that it contained valuables. Without sealing the package, he placed it in an ordinary wooden ticket case, left the office and remained for some time. When he returned, he took the package from the ticket case and sealed it. It remained in the office all day and that night was carried by him to the residence of the regular agent where it remained until train time the following day. Whether the package was kept under lock and key all the while is not shown, except the agent says the ticket case in which he placed it before he left the office and before he sealed it, was locked.

We do not pretend to offer any explanation as to how the ring got out of the packagé nor does anyone else. But the fact remains that the ring was lost.

Under the circumstances, it was the duty of the defendant to account for its loss, and its failure to do so renders it liable for the value thereof. Counsel for defendant in brief say there is no proof of the value of the ring lost. Plaintiff specifically alleged that her two rings were worth $400, and this allegation was not denied by defendant in answer. The testimony shows that the ring containing the smaller diamonds which was received by the consignee was worth approximately $30. The ring lost was set with seven small diamonds weighing a fraction more than one and one-half carat. The correspondence in the record shows that the diamonds lost have a present value of approximately $400. The valuation stated in the correspondence is based upon hearsay, but it is in the record without objection. The testimony convinces us, as it did the District Judge, that the diamonds lost were worth as much as claimed by plaintiff.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2416
    No. 2417
    No. 2418
    Second Circuit
    SWIFT & CO. v. PARKER GROCERY & FEED STORE ET AL. CUDAHY PACKING CO. OF LA., LTD., v. PARKER GROCERY & FEED STORE ET AL. HAYNESVILLE PROVISION CO., INC., v. PARKER GROCERY & FEED STORE ET AL.
    (Consolidated)
    (April 5, 1929. Opinion and Decree.)
    M. M. Morelock, of Haynesville, and William C. Boone and T. T. Land, of Homer, attorneys for plaintiffs, appellees.
    H. C. Drew, of Minden, attorney for defendants, appellants.
   WEBB, J.

No. 2416—Swift & Co. vs. Parker Grocery & Peed Store et al.

This suit involves only issues of fact; that is, whether or not M. E. Parker was a member of the partnership doing business under the name of Parker Grocery & Peed Store, and whether the partnership was indebted to plaintiff for the balance alleged to be due on open account for merchandise sold to the partnership.

The cause was consolidated for purposes of trial with other suits, to-wit: Haynes-ville Provision Company, Inc., and Cudahy Packing Company of Louisiana, Limited, versus the same defendants, involving like issues of fact, and judgments being rendered in favor of plaintiffs in each of the suits, M. E. Parker alone appealed.

Appellant has not made any appearance in support of Ms appeal, and from our review of the record we find that the account sued upon and balance due thereon was clearly established, and while the evidence was conflicting as to whether or not M. E. Parker was a member of the partnership, we find there is ample evidence to support the finding of the court as against M. E. Parker.

“The burden rests on the appellant to show that the judgment appealed from is erroneous, and in cases involving only issues of fact the finding of the trial court will not be disturbed unless there is manifest error.” (See Pisciotte vs. Indemnity Co., 164 La. 260, 113 So. 840, and authorities cited.)

The judgment is affirmed.

No. 2417—Cudahy Packing Company of Louisiana, Limited, vs. Parker Grocery & Feed Store et al.

This suit involves like issues of fact as the cause of Swift & Co. vs. Parker Grocery & Feed Store et al., No. 2416 on the docket of this court (with which it was consolidated for the purpose of trial in the district court) this day decided, and the appellant here, M. E. Parker, as in the case referred to, has not made Jany appearance in this court in support of his appeal, and for the reasons assigned in the cause of Swift & Co. vs. Parker Grocery & Feed Store et al., the judgment appealed from is affirmed.

No. 2418—Haynesville Provision Company, Inc., vs. Parker Grocery & Feed Store et al.

This cause involves like issues of fact as the cause of Swift & Co. vs. Parker Grocery & Feed Store et al., No. 2416 on the docket of this court, with which it was consolidated for the purpose of trial in the district court, this day decided, and the appellant here, M. E. Parker, as in the case referred to, has not made any appearance in this court in support of his appeal, and for the reasons assigned in the cause of Swift & Company vs. Parker Grocery & Feed Store et al., the judgment appealed from is affirmed.


author: ODOM, J.

text:
    No. 2626
    Second Circuit
    CYRUS W. SCOTT MFG. CO. v. STOMA
    (April 5, 1929. Opinion and Decree.)

      Lee and Bell, of Mansfield, attorneys for plaintiff, appellant.
    Parsons and Colvin, of Mansfield, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff sued defendant to recover $187.50, the amount alleged to be due for a bill of merchandise consisting of 1250 yards of brown domestic, at 15 cents per yard, alleged to have been sold and delivered to defendant.

The defense is that the order for the goods was placed with a salesman representing the plaintiff company, which order was conditioned upon the acceptance thereof by plaintiff, and that before the order was finally accepted and before the goods were shipped, said order was countermanded by defendant by letter.

It is further contended by defendant that even if the order had been accepted by plaintiff and the goods shipped previous to the receipt of the létter countermanding the order, plaintiff cannot recover for the reason that it made no effort to minimize the damage on account of the alleged breach of the contract.

There was judgment in the lower court rejecting plaintiff’s demands, and it has appealed.

OPINION

The testimony shows that on November 9, 1920, a salesman representing plaintiff called on defendant, who is a merchant in South Mansfield, and induced him to order one bale or bundle of brown domestic, containing- 1250 yards, at 15 cents per yard. The order given the salesman for the goods shows on its face that the price of the goods was subject to the approval of plaintiff. Two days after the order was given, or on November 11th, defendant wrote plaintiff specifically countermanding the order, which letter was deposited in the United States mail. There is no testimony to show the exact date on which this letter was received by plaintiff; however, on November 15th, four days later, plaintiff wrote defendant that it had received his letter countermanding the order, but that same was received after the goods had been shipped, and that it could not, for that reason, cancel the order. Plaintiff’s letter of the 15th was promptly received by defendant, who again wrote plaintiff, on November 17th, that he would not accept the goods as he had previously countermanded the order. There is no testimony in the record which tends to show that the goods were shipped out by plaintiff on November 15th, the same day on which plaintiff wrote its first letter to defendant. As there is no positive testimony in the record to show the exact date on which defendant’s letter of the 11th was received' by plaintiff, we think there is sufficient testimony to warrant the holding that the letter was received prior to the date on which the goods were shipped. The order which defendant gave for the goods was not an absolute sale for the reason that it was given subject to tbe approval of plaintiff as to the price. Plaintiff did not at any time previous to the shipment of the goods notify defendant of its acceptance of the order; however, the order for the shipment of the goods became an agreement by acceptance when the goods were shipped, and we think it was not necessary for plaintiff to communicate its acceptance of the order to defendant under the circumstances of this case. But, as stated, the order was unquestionably subject to countermand or cancellation previous to the date of the shipment of the goods. As stated above, we think the testimony warrants the holding that the letter countermanding the order was received prior to the shipment, and therefore, the order never became binding upon the defendant.

If it be held, however, that defendant’s cancellation of the order was not received by plaintiff prior to its acceptance by shipment of the goods, plaintiff cannot recover for the reason that it made no effort whatsoever to minimize the damage by disposing of the goods which defendant refused to accept and give him credit for the market price thereof.

“When a buyer breaches the contract of sale, the measure of damages which the seller is entitled to is the difference between the price stipulated in the contract and the market price at which the goods can be readily sold at the time and place of delivery; and it is the duty of the seller to minimize his loss by reselling the goods as soon as practicable after the buyer has refused to accept.”
Mutual Rice Co. of La. vs. Star Bottling Works, Ltd., 163 La. 159 (164), 111 So. 661, 663. See also numerous authorities cited in said case.

Plaintiff had specific notice that defendant would not accept and pay for the goods; plaintiff should have taken the necessary steps to minimize its damage. Defendant refused to accept the goods and there is no testimony whatsoever to show just what final disposition was made of them. According to a notation on the freight bill, we conclude that the goods remained at the freight office in South Mansfield for quite a while. Whether they were shipped back to plaintiff does not appear.

It is also pertinent to state that the order given for the goods specified that they were to be delivered P.O.B. South Mansfield; whereas the goods were shipped at the expense of defendant. The acceptance of the order, therefore, was not in accordance with the proposal made by defendant.

We think the judgment appealed from is correct and it is accordingly affirmed, with costs in both courts.


text:
    No. 2614
    Second Circuit
    CHADICK-HAYES PROVISION CO. v. PINE GROVE GROCERY CO. ET AL. and W. J. HUNTER & CO., INC., v. PINE GROVE GROCERY CO. ET AL.
    (April 5, 1929. Opinion and Decree.)

      Dimick and Hamilton, of Shreveport, attorneys for plaintiffs, appellees.
    John B. Piles, of Shreveport, attorney for defendants, appellants.
   ODOM, J.

The plaintiffs sued the defendant, Pine Grove Grocery Company, on accounts for goods and merchandise sold and delivered to it, and alleged that said Pine Grove Grocery Company was a commercial partnership composed of M. E. Johns and C. E. Bezanson, and asked judgment against said Grocery Company and the members of the partnership in solido. The two suits were consolidated for the purpose of the trial, the testimony in the two cases with reference to the material point presented here being the same. There was judgment in the lower court in favor of each plaintiff, as prayed for, and the defendant, Johns, has appealed.

OPINION

There is no controversy in this court as to the correctness of the accounts sued on, as each of the plaintiffs proved his account, and the defendants, Johns and Bezanson, made no denial of the amounts claimed. But the defendant, Johns, contended in the lower court that he was not a member of the commercial partnership made defendant and that he was in no sense liable for the debts of that concern. Therefore, the only question presented is whether Johns should be held liable for the debts of the company.

The testimony satisfies us, as it did the Judge of the lower court, that Johns should be held liable. As a witness in his own behalf, he testified that he was not a member of the commercial partnership known as the Pine Grove Grocery Company, and similar testimony was given by Bezanson. It may be that at the time of the trial of the case in the lower court in 1925, the said Johns had withdrawn all connection from the grocery company, but the testimony satisfies us that at the time the goods were purchased, he was connected with that concern as a partner. Bezanson is a man without means and, in 1923, induced Johns to advance about $2200 with which to purchase a stock of groceries from a man by the name of' Pox. Johns says that he purchased the stock and put Bezanson in charge oT the business with the understanding that Bezanson should run the store and' pay him the amount advanced, with eight per cent interest. But the testimony convinces us that Johns was more than a mere creditor of Bezanson. Some of the witnesses testified that Johns told them that he was a partner in the business. When the grocery company began business, a representative of Bradstreet called at the store and asked for a report. Johns made a financial statement for the company and signed it. This report seems to have been sent to the Bradstreet office and was published, showing that Johns was a member of the commercial firm. Mr. L. L. Bryan, a representative of Bradstreet in the city of Shreveport, testified that in conversation with Johns with reference to the financial condition of the grocery company, Johns told him that he was a member of the partnership and, in fact, at one time stated to him that he owned the concern.

Mr. W. J. Hunter, president and general manager of one of the plaintiff companies, testified that at one time the grocery company owed his firm a considerable sum of money and that he sent for Johns and Bezanson in order to discuss the matter. Mr. Hunter says that he talked with Johns and Bezanson, together, and told them that he could not carry the indebtedness any longer on open account and insisted that the account be closed by note. The note was at that time drawn up and was signed by the Pine Grove Grocery Company, and endorsed by Johns and Bezanson, individually. Mr. Hunter stated that in the conversation referred to, he assumed that the two men were commercial partners and that Johns did not disavow his connection with the concern, but admitted his liability for the indebtedness. A representative of one of these plaintiffs testified that a note was made out and signed, “Pine Grove Grocery Company by M. E. Johns,” and was endorsed by both Johns and Bezanson. The testimony shows that on one occasion Johns went to the place of business and, finding that Bezanson was worried over financial affairs, suggested to him that he leave the store for two weeks for a rest. Johns personally took charge and he says that during the two weeks that he conducted the business he made some money.

The testimony reveals to our entire satisfaction that Johns held himself out to the community and to the commercial world as a partner in this concern, and furthermore, that the Pine Grove Grocery Company was extended credit solely on account of Johns’ connection with it. Representatives of these plaintiffs testified that before extending Credit to the Pine Grove Grocery Company, they looked up its rating, found that Johns was a commercial partner, and, knowing that he was financially responsible, they extended the credit desired. As already stated, Johns made this financial report and signed it.

Therefore, whether he is or was in fact a commercial partner makes no difference so far as his liability is concerned, because the law is that where persons hold themselves out as .partners and allow themselves to be held out to the public at large as such, and to particular individuals who deal with them in the belief that they are partners, they cannot escape liability.

Houston River Canal Co., Ltd., vs. Kopke, Robicheaux & Nichols, 106 La. 609. 31 So. 156; Johnson vs. Levy & Bro., 109 La. 1036, 34 So. 68; Dodd, Brown & Co. vs. Bishop et al., 30 La. Ann. 1178; Grieff vs. Boudousquie, 18 La. Ann. 631, 89 Am. Dec. 698; Baldey vs. Breckenridge, 39 La. Ann. 663, 2 So. 410.

The judgments appealed from are correct, and are therefore affirmed, with costs in both courts.

REYNOLDS, J., recused.


text:
    No. 3196
    Second Circuit
    RED RIVER CONSTRUCTION CO. v. NORDSTROM ET AL.
    (March 12, 1929. Opinion and Decree.)
    Cook and Cook, of Shreveport, attorneys for plaintiff, appellant.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

This suit involves a settlement of accounts between the Red River Construction Company, plaintiff, and C. Nordstrom and D. Laborde, arising out of a contract to construct portions of a highway in the Parish of Natchitoches.

The plaintiff alleges that it entered into a contract with the Louisiana Highway Commission to construct certain portions of the road designated as projects 429-D and 430-A, located in the Parish of Natchitoches; that it sub-contracted to C. Nordstrom certain portions of the work and that it has paid to the said Nordstrom the entire amount due him; and further alleges that said D. % Nordstrom, claiming an indebtedness against it, has filed liens amounting to ?1638.60; that the claim of Laborde against it is without foundation, and it asks that the liens filed by Laborde be cancelled and erased from the records of the Parish of Natchitoches.

It is further alleged that the claim of Laborde and the liens filed by him are the result of a conspiracy entered into between Nordstrom, its sub-contractor, and Laborde to collect an amount from plaintiff not due; that .plaintiff had paid to Nordstrom all that was due him and, admitting that Laborde did some work on the road, it is claimed that he was working for and under Nordstrom, as foreman. Plaintiff asks that both Nordstrom and Laborde be cited and that there be judgment cancelling the liens filed by Laborde.

Both Nordstrom and Laborde answered. Nordstrom denied that there was any conspiracy between him and his brother-in-law, Laborde, and that he had no knowledge as to the account claimed by Laborde; and further set up that plaintiff was indebted unto him in the sum of $2324.02 for which he reconvened and asked judgment.

Laborde, in his answer, alleged that the amount which he claimed and for which he filed a lien was due for work done by him under contract with the plaintiff company, and that it had no connection with Nordstrom’s contract. There was judgment in the District Court in favor of Nordstrom on his reconventional demand for $1060.15, rejecting Laborde’s demands against plaintiff, and ordering the lien cancelled. Prom this judgment, plaintiff, Red River Construction Company, appealed, and under its appeal the entire transcript was sent up to this Court. This-judgment was rendered on October 22, 1927.

On June 14, 192S, Laborde petitioned the Court for a devolutive appeal, which was granted by the Court under written order and the bond was fixed at $100.00, which was promptly given and filed.

In this Court, Nordstrom filed a motion to increase the amount allowed him, and plaintiff moved to dismiss Laborde’s appeal.

ON MOTION TO DISMISS LABORDE’S APPEAL.

Counsel for plaintiff company on the first day of the present session of this Court moved to dismiss Laborde’s appeal on the ground that he had failed to file any transcript whatever of his appeal in this Court within the return date.

The facts are that Laborde took no appeal at the time judgment was rendered in the District Court. But, within twelve months thereafter, he filed a written motion asking that he be granted a devolutive appeal, and that the bond therefor be fixed. The Court granted the appeal and fixed the bond at $100.00; and fixed the return date for July 9, 1928. The Clerk of Court at Natchitoches, Louisiana, forwarded the application and order for the appeal, together with the appeal bond, to the Clerk of this Court on July 9. When it was received by the Clerk of this Court, those documents were placed in the transcript already brought up and filed by plaintiff. But he failed to mark such documents “PILED”. As the documents appeared in the record, there was nothing to indicate the date on which they were received by the Clerk of this Court, and counsel for plaintiff conlend that the appeal should be dismissed, as the record does not affirmatively show that the documents were filed in this Court on time.

On having his attention called to the fact that there was nothing to show that said documents were filed in this Court on time, the Clerk, looking through his files, found a letter from the Clerk of Court at Natchitoches, dated July 9, 1928, in which he stated that he was enclosing said documents, naming them, and asking that they be placed in the record as part of the transcript. The Clerk of this Court now certifies that said documents were received. by him in due mail and that he promptly placed them in the record. AS1 the documents were mailed out of Natchitoches on July 9, the return date fixed by the Judge, and as appellant had three days of grace in which to file his appeal, we think there is no question but that they reached this Court in ample time, and that the failure to mark them "PILED” on arrival was not due to any negligence on the part of appellant, and that we should not penalize him for a mistake or error for which he is not responsible. The motion to dismiss is, therefore, overruled.

OPINION.

As already stated, C. Nordstrom filed a reconventional demand against the plaintiff, claiming an indebtedness of something over $2,000.00. If the Court had to depend upon the testimony of Nordstrom himself, it is perfectly clear that no judgment could be granted in his favor. However, the record is clear that the plaintiff owes him $1060.15. We arrived at that amount from the admissions made by defendant’s witnesses, and not from testimony given by the plaintiff. Nordstrom, did not take the stand as a witness in his own behalf. He was called on cross-examination by counsel for plaintiff and was asked specifically about the claim of Laborde. He was not asked about his own account. At the close of this cross-examination, he was excused and was never called back to the stand.

Mr. Marston, as a witness for the plaintiff company, admitted that his company was due Nordstrom the sum of $16,767.18, and that it had paid him only $15,707.03, leaving a balance of $1060.15.

The only testimony in the record which tends to support the claim of Nordstrom that plaintiff owes him any amount in excess of that above mentioned -is found on pages 31 and 32 of the transcript. While Mr. Marston, a member of the plaintiff company, was on the stand as a witness, and while on cross-examination, he was questioned by counsel for Nordstrom with reference to certain items which it seems appeared on an itemized statement of Nordstrom’s claim which counsel then had before him. Counsel refers to such an account as taken from Nordstroms’ books and we, therefore, infer that there was such an account, or at least, a memorandum of the account in Court, and we find on page 32 this statement, coupled with a question:

“Q. The whole of that figures up $17,-858.78j which has been reduced by the testimony by about $90.00. What are your figures on both projects?
“A. $16,767.18.”

If we assume that the total indebtedness claimed by Nordstrom on his statement was $17,858.78, taking Marston’s admission that plaintiff owed $16,767.18, it will be seen that there was a difference of $1091.60. Counsel for Nordstrom insists that we should adopt Nordstrom’s figures as the total amount due him on both projects. We are unable to do so for the reason that Nordstrom gave no testimony as to the correctness of his account—but, on the contrary, Marston swore that his company owed him only $16,767.18.

When Mr. Marston was first interrogated about the amount which his company was due Nordstrom, he testified that it was due him nothing. Later on, however, after talking with his partner, Ferguson, he corrected his former testimony and admitted that Nordstrom had not been credited with the sum of $1259.65 which was properly due him. Counsel for Nordstrom argues that this amount should be added to the $16,767.18, which Marston stated was the total amount due. We think counsel is in error on that point for we are satisfied that the $1259.65 was included in the total amount which Marston admitted his company was due for work on the two projects. We reached this' conclusion because Marston first testified (p. 25, Tr.) that the total amount due Nordstrom on both projects'was $15,634.76.

Our conclusion is that the finding of the District Judge as to the amount due Nordstrom is correct.

AS TO THE CLAIM OP LABORDE.

It is claimed hy Laborde, on the one hand, that he made an independent contract with plaintiff to do certain work in the building of the roads and that his claim had no connection whatever with Nordstrom’s sub-contract under plaintiff. On the other hand, it is claimed by plaintiff that all the work that Laborde did was in connection with Nordstrom’s contract. Without going into detail, our conclusion is that Laborde did certain work for the plaintiff company, not in any way connected with Nordstrom’s contract, and for which work he has not been paid. However, it is evident that some of the work done by Laborde should have been done by Nordstrom. We rely very largely upon the testimony of Mr. Richardson, the highway engineer, who was asked specifically about the different items on Laborde’s account which do not come under Nordstrom’s contract. Richardson says that he himself ordered Laborde to do a portion of the work charged to plaintiff. Richardson was in position to know and, we take it, did know what specific work was to be done by Nordstrom under his contract with the plaintiff company. It cannot be disputed that such work as Laborde did for the plaintiff company, which was not included in Nordstrom’s contract, should be paid for by the plaintiff. The items claimed by Laborde, which we allow on the testimony of Richardson, the engineer, are for grubbing stumps, removing trees, sloping certain ditches, for tractor for pulling stumps and labor, clearing ground, cutting hump on slope, digging a culvert and "shaping up” the road, fixing a curve between the tram road and main line, cutting a hill in cut between Flora Filling Station and Tram road. One item charged by Laborde on project 430-A is $700.00, for “shaping up” from Station 748 to Station 915; Mr. Richardson says that this is excessive and that Laborde should be paid about $265.00 on this ftem. On the statement with reference to project 429-D, Laborde charged $300.00, for “running grader tractor and teams putting road in shape to lay gravel on from upper end of project 429-B to station 606.” Mr. Richardson says that $60.00 is all plaintiff is due him under ithat item. Checking up the items on both accounts which Mr. Richardson says should be paid by plaintiff to Laborde and adding them, we get a total of $693.40.

It is evident from the judgment rendered in the lower court, that the Judge recognized that the plaintiff company was due something, either to Laborde or to Nordstrom, for the right of Nordstrom to sue in his own name for the work done by Laborde was especially reserved. Our' reading of the testimony, however, has convinced us that the claim which we have allowed in favor of Laborde was for work done by him for the plaintiff company, and in no way connected with Nordstrom’s contract.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed insofar as it allows Nordstrom $1060.15, a portion of which is ordered paid to the Ingraham Grocery Company; and reversed insofar as it rejected the claim of Laborde in reconvention; and it is further ordered and decreed that there be judgment in favor of Deny Laborde, and against the Red River Construction Company, in the full sum and amount of $882.40, and that his lien for said amount be recognized and enforced; and further ordered that when said amount is paid by the Red River Construction Company to Laborde, that the lien filed by him be cancelled and erased from the records of Natchitoches; costs in both courts to be paid by the Red River Construction Company.


author: REYNOLDS, J.

text:
    No. 3307
    Second Circuit
    SHEARING v. LA. RY. & NAV. CO.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    Rusca and Cunningham, of Natchitoches, and Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sued defendant for $851.29 with legal interest 'thereon from judicial demand.

He alleged that it was a common carrier and that on March 22,1919, he delivered to it at Campti, Louisiana, eight bales of cotton in good condition to be by the defendant transported to New Orleans, Louisiana, and there delivered to Norman Mayer & Company, and that when the cotton was delivered to the consignee it was

“found to be so water-logged and damaged as to require them (the eight bales) to be sent to the pickery, at a loss of twelve hundred fifty-six (1256) pounds worth from thirty-one (31) cents to thirty-two and a quarter (32%) cents per pound, and said 1256 pounds had to be sold, seven hundred ninety-nine pounds thereof at five (5c) cents a pound, and four hundred fifty-seven (457) pounds thereof at three cents (3c) a pound. After paying the picking charges the net loss to your petitoner is the sum of three hundred fifty-one and 29-;100 ($351.29) dollars, which the said railroad company owes with five per cent. (5%) interest thereon from judicial demand.”

Defendant filed an exception to the jurisdiction of the court ratione personae, and, on trial, the exception was overruled, and thereupon defendant, reserving the benefit of the exception, answered admitting receipt of the eight bales of cotton and the contract of carriage and denying the other allegations of the petition. Further answering it alleged

“that the cotton, when delivered to your petitioner, although, superficially, it might have appeared to be in good order, was not in good order, and that said cotton was wet while being held by the shipper in his own yards and that he has his own negligence to blame for the damage,”

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for the amount sued for and the defendant appealed.

OPINION.

ON THE EXCEPTION TO THE JURISDICTION.

The exception was not adverted to by defendant before this court and we therefore assume that it was abandoned.

ON THE MERITS.

The money value of the damage sustained by plaintiff is fairly established by the evidence and the only serious question for our consideration is whether the cotton was damaged while it was in defendant’s possession.

The plaintiff testified:

“Q. Where did you ship the cotton from?
“A. Campti.
“Q. What was its condition when you delivered it to the railroad and they gave you a clean bill of lading for it?
“A. Good.
“Q. What do you mean by that?
‘‘A. It was dry; free from wet and damage.
‘‘Q. How did you keep it?
“A. Under a shed.
“Q. Practically free from the weather?
“A. Yes, sir.
‘‘Q. Off the ground?
“A. Yes, sir.
“Q. What was the character of the weather when you hauled it to Campti?
“A. Good.
“Q. Do you know when you delivered it?
“A. The bill of lading was issued the day I delivered it.
“Q. Are you quite sure that you kept the cotton for several months in your shed and absolutely protected?
“A. Yes, sir.
“Q. Did the shed protect the cotton absolutely from the weather while you had it under there?
“A. Yes, sir.
“Q. Where were the eight bales stored?
“A. Under the shed where I was living.
“Q. Under one shed?
“A. I put some in the house across the road.
* * *
‘‘Q. This eight bales were free from any damage whatever?
“A. Yes, sir.”

This testimony is corroborated by that of W. A. Grappe, who testified:

‘‘Q. That cotton was stored in a shed on his place?
“A. The cotton was made in 1918 and shipped in 1919.
“Q. Where was the cotton stored?
“A. The cotton was at his place under a shed.
“Q. At Campti?
“A. No; at his place; I had some cotton in there myself.
“Q. How was it stored out there?
“A. He had a good shed on it.
“Q. A good shed?
“A. Yes; and he had some in a house on the place out there, I think 25 or 30 bales.”

The bill of lading issued by defendant to plaintiff acknowledges the cotton to be “in apparent good order” and is dated March 22, 1919.

M. E. Wurzburger testified that he was a clerk in the employ of Norman Mayer & Company, the consignee of the cotton, and that the cotton was delivered to the consignee by defendant on April 12, 1919, “in a wet and damaged condition, and therefore we had to send same to the pickery to be reconditioned to make same merchantable.”

He further testified that the net loss on the value of the cotton resulting from its being wet was $351.29 and he detailed how this result was arrived at.

“Carriers and watermen are liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.”

Civil Code, article 2754.

Lehman, Stern & Co. vs. M. L. & T. R. & S. S. Co., 115 La. 1, 38 So. 873, 70 L. R. A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818.

Powell-Myers Lumber Co. vs. T. & G. Ry. Co., 2 La. App. 164.

It being shown that the cotton was in good condition when delivered to defendant by plaintiff and damaged when delivered by defendant to the consignee and it not appearing that the damage resulted from accidental and uncontrollable events, we conclude that the defendant was liable.

But defendant insists that it was not shown that the cotton delivered by defendant to the consignee was the same as that received by it from the plaintiff. If the cotton delivered was not that for which it issued the bill of lading defendant should have alleged and proved it instead of admitting that it was the same, as we think it did by the following paragraph of its answer;

“Further answering, defendant avers that the cotton, when delivered to your petitioner (meaning, of course, defendant), although superficially it might have appeared to be in good order, was not in good order, and alleges that said cotton was wet while being held by the shipper in his own yards, and that he has his own negligence to blame for the damage.”

The evidence satisfies us that the judgment appealed, from is correct, and accordingly it is affirmed.


text:
    No. 3324
    Second Circuit
    LEE-BAKER DRY GOODS CO., INC., v. LA. TAX COMMISSION ET AL.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      Barnette and Roberts, of Shreveport, attorneys for plaintiff, appellant.
    Wm. M. Phillips and George T. McSween, of Shreveport, attorneys for defendants, appellees.
   STATEMENT OP THE CASE.

REYNOLDS, J.

Plaintiff, Lee-Baker Dry Goods Company, Incorporated, sued the Louisiana Tax Commission, the Police Jury of Caddo Parish, John W. A. Jeter as assessor, and T. R. Hughes as the sheriff and ex-officio collector of taxes of the parish of Caddo, to compel a reduction in the valuation placed upon its property for purposes of taxation for the year 1927 and to restrain the sale of its property pendente lite. On trial there was judgment granting it only part of the relief sought and rejecting its demand as to the rest, and it appealed. In this court the defendants have filed an answer to the appeal praying that the judgment be amended by restoring the valuation fixed by the taxing authorities where changed by the judgment and for attorney’s fees in the amount of ten per cent on the amount of taxes owing.

OPINION.

Plaintiff was engaged in the business of selling merchandise, principally dry goods, at wholesale in the city of Shreveport, Louisiana, and duly returned its property for taxation for the year 1927, valuing its stock of merchandise at $146,-710.72 and its furniture and fixtures at $5,000.00. This valuation was approved by the assessor of Caddo parish, but was ordered increased by the Tax Commission, the merchandise to $155,800.00 and the furniture and fixtures to $8,500. Plaintiff protested the increase, both to the Tax Commission and the Police Jury sitting as a board of reviewers. The latter recommended that plaintiff’s valuations be permitted to stand. The Tax Commission declined to recede from its order. Thereupon this suit followed.

It is provided in section 1 of article X of the Constitution that—

“No property shall be assessed for more than its actual cash value, and all taxpayers shall have the right of testing the correctness of their assessments before the courts at the domicile of the assessing authority.’’

As to the merchandise, plaintiff’s rendition is 80% of the value of the average amount of goods it had in stock throughout the year 1926, and was arrived at by averaging the value of merchandise on hand January 1, 1926, and December 1, 1926, according to inventories taken on those dates.

The stock on hand January 1, 1926, inventoried $181,762.50, and that on December 31, 1926, $185,014.21. The average of these amounts is $183,388.39, and 80% of this last is $146,710.72.

As to the furniture and fixtures, plaintiff’s rendition is 80% of the original value of that also.

The rule for determining the actual cash value of property for the purposes of taxation is fixed by statute. It is provided in Act No. 170 of 1898, section 91:

“That the following rules for the taxation of persons and property are hereby established:
* * is
“The words ‘actual cash value’ or ‘actual cash valuation,’ shall be held to mean a price that any piece of real estate or personal or movable property would sell for cash, in the ordinary course of business, free from all incumbrances, otherwise than by forced sale.”

The only evidence in the record as to the value of plaintiff’s property is that offered by the plaintiff itself, namely, the testimony of J. E. Baker, J. M. Lee and C. H. Thurmond.

J. M. Lee testified that he was president of the plaintiff company and that the character of business conducted by it was dealer in dry goods, notions and kindred lines at wholesale. He defined “kindred lines” as knit goods, sweaters, hosiery, and the like. He said that he had been in that line of business practically all his life, and—

“Q. When you took an inventory of this stock of goods, how was it taken?
“A. At cost price.
“Q. What do you mean by cost price?
“A. Just what is paid the manufacturers for them.”

He said the inventory of January 1, 1926, showing merchandise of a value of $181,-762.50 on hand on that date and that of December 31, 1926, showing goods then on hand of the value of $185,014.21, were correct, and that the average of these two. amounts represented the value of the average stock on hand throughout the year 1926, and that the merchandise was rendered for taxation for the year 1927 at 80% of this average value.

“Q. Now in arriving at the value of your stock of merchandise, do you think that it was actually worth more than the amount that you assessed it for, or do you think that the actual cash value was at least twenty per cent below the inventory value?
“A. I think the actual value was below the twenty per cent.
“Q. Do you think that your stock of merchandise could have been sold for any more than you returned it for the purpose of taxation?
“A. I think that we could not have sold it for any more than that.
“Q. How do you account for that?
“A. The dry goods business is largely today a business of styles. Our line is made up of a large variety of items and the styles enter largely into the sales, and the rapid change of styles antiqjuate so much of our merchandise in a short length of time that there are many items that have to be sold for even less than their cost value and we have to , reduce it in order to move it at all; that has been my experience; that not only applies to our dry goods but it goes into our notion department as well, the hosiery department; when hosiery was a certain color three months ago, they were using one shade, and this month another shade, and the shade that we had three months ago has become antiquated and we have to dribble it out or give it away. The same thing is true of our dry goods department. They were using large flowers like they were last season, then three months ago they turned, within thirty days and commenced using little figures and stripes; of course that antiquated the large flowers and of course we have to dispose of them at a loss.
« >:> *
“Q. Now, in the deducting of the twenty per cent, did you do that arbitrarily or is that based upon a reasonable basis or a careful study of the entire stock of merchandise and arriving at it in a scientific way, as a dry goods merchant?
“A. We carry thousand of items in our stock, and it would be practically impossible to go through the stock and depreciate each item on the inventory. We make a careful study of our stock of merchandise and arrive at what we think would be the cash value, and we decided it was twenty per cent discount from the inventory in order to arrive at the cash value of the stock at that time.”

He further stated that he did not think that plaintiff’s stock of goods or any other wholesale stock could be sold in bulk for cash and as a going concern for eighty per cent of its value.

Regarding the furniture and fixtures, he testified that a large part of the latter was made up of counters and bins and were constructed of used lumber taken out of a store building where plaintiff formerly carried on its business, and that they could not be sold for fifty per cent of their cost.

“Q. Then you think that five thousand dollars is every dollar that the fixtures are worth?
‘‘A. I think they are.”

The testimony of plaintiff’s two other witnesses, J. E. Baker, vice-president, and C. H. Thurmond, secretary-treasurer, of the plaintiff company corroborates that of its president, X M. Lee.

The defendants offered no evidence in support of their defense and rested their case on the testimony of plaintiff’s witnesses, the value of which was not weakened though they were vigorously cross-examined.

A similar question was recently before the United States Circuit Court of Appeals for the Fifth Circuit in the case of S. G. Sample Company, Limited, vs. Commissioner of Internal Revenue, No. 5211, 23 F. (2d) 671, on the docket of that court and decided January 24, 1928. That was an appeal by S. G. Sample Company, Limited, from the action of the Commissioner in increasing its taxable income for the year 1920 $12,078.52 by adding that amount to the total amount of the Sample Company’s inventory of goods on hand on December 31, 1920. That amount was twenty-five per cent of the total cost of goods shown on the Sample Company’s inventory of merchandise on hand on that date, which goods were inventoried at cost less twenty-five per cent. The disallowance by the Commissioner of the deduction from cost was based on the fact that the inventory as taken did not state separately the cost and value of each item, only the cost of each item being separately stated, the twenty-five per cent deduction being made from the aggregate amount of the cost of the items thus listed, and the court held that

"the effect of the ruling in question was to deprive the petitioner (S. G. Sample Company, Limited), of the opportunity to prove by competent evidence that the market value of its stock on December 31, 1920, was 25 per cent less than the cost of that stock shown by an inventory thereof taken in the customary way.” and that
"it cannot reasonably be said that it is incapable of being proved by evidence that at a given time there has been such a change in the market value of the- articles comprising a retail merchant’s stock, consisting of hardware, shoes, clothing, dry goods and groceries, that the market value of the stock at that time could be arrived at with reasonable accuracy by adding to or deducting from the total cost of the stock a stated percentage of such cost.”

We are of the opinion that the evidence introduced by plaintiff established its contention that the value at which it returned its property for taxation for the year 1927 was its actual cash value and that the judgment appealed from is erroneous insofar as it rejected plaintiff’s demand that this value be restored to its assessment.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, insofar as it rejected plaintiff’s demand, that the value of $155,800.00 put upon its stock of merchandise for purposes of taxation for the year 1927 by the Louisiana Tax Commission', the Police Jury of the parish of Caddo sitting as a Board of reviewers and John W. A. Jeter as assessor of the parish of Caddo, be reduced to $146,710.72 be reversed, and that the value of said stock of merchandise for the’ purposes of taxation for the year 1927 be and it hereby is fixed at $146,710.72.

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


text:
    No. 3327
    Second Circuit

    ALLISON-LANGSTON SUPPLY CO., INC v. PAULETTE ET AL.
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    A. D. Flowers, of Jena, attorney for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, Allison-Langston Supply Company, Inc., alleging that its assignor had sold to E. C. Paulette, for the use and benefit of Paulette and the Bank of Winnfield, goods, wares, rfrerchandise, oil well supplies and equipment on which there was a balance due and for which a lien had been filed against a certain mineral lease acquired by the Bank of Winnfield under an assignment from Paulette of date March 29, 1927, prayed for process against Paulette and the Bank of ■Winnfield and on final hearing for judgment against them in solido for the balance due with recognition of the lien.

Service was not made on Paulette, and the Bank of Winnfield answered denying that the goods, wares, merchandise, etc., had been sold to Paulette for the use of the Bank of Winnfield, and while admitting that it had taken an assignment of the mineral lease from Paulette, denied that plaintiff had, filed a lien against same, and further alleged that the assignment was taken merely as security for an indebtedness due by Paulette to the Bank of Winnfield, and that it had foreclosed under a special mortgage held by it against the lease, and had purchased same under such proceedings for an amount which was insufficient to pay the cost, and that if plaintiff had a privilege it was extinguished by the sale had under foreclosure proceedings, and prayed that plaintiff’s demands be rejected.

The cause being tried and submitted, judgment was rendered against the Bank of Winnfield for the amount claimed, without any recognition of the asserted privilege, from which the defendant Bank of Winnfield alone appeals.

Plaintiff not appealing from the judgment and failing to answer the appeal, it is unnecessary to consider the question as to whether the asserted lien against the lease was effective, and the evidence failing to show that the Bank of Winnfield had authorized Paulette to make the purchases, apparently the only ground urged in support of the personal judgment against the bank is the claim that the principal part of the goods, wares, etc., had been sold to Paulette for developing the lease while the record title to the lease stood in the name of the bank, and that the bank knew that Paulette was developing the lease, and was therefore personally bound for materials used in the development of the property.

There is not any authority cited in support of the position that the owner of property which is being improved, or of an oil lease which is being developed, with his knowledge, is personally liable for material purchased and used in developing the property and we have been unable to find any; but if there could be such liability it must be on the theory that the owner of the lease should be held to have impliedly authorized the purchase.

In the present instance it is established that a portion of the merchandise was purchased by Paulette prior to the assignment of the lease to the Bank of Winnfield, and it -certainly cannot be said that the bank, the subsequent assignee of the lease, had, impliedly authorized the purchase of the merchandise, even conceding that such merchandise was material, and used by Paulette in developing the lease, but conceding, without deciding, that the owner of property or a mineral lease with knowledge that it was being developed should be held to have impliedly authorized the purchase of material used in developing the property, such implied authorization would extend only to the purchases of material to be used in developing the lease, and even in that case, such authorization could not be implied where the evidence established that the apparent owner was not the real owner, and that the purchases were made by the real owner, who had merely assigned the lease to secure an indebtedness due by him; and in the present instance the evidence failing to show that the merchandise purchased by Paulette after the assignment of the lease to the Bank of Winnfield consisted of material for developing the lease, and it being further established that the Bank of Winnfield was not the owner of the lease, it cannot be said that the Bank of Winnfield had impliedly authorized the purchases of Paulette and rendered itself liable for such purchases.

The evidence does not indicate that in the transactions between the Bank of Winnfield and Paulette there was any conspiracy to assist Paulette in avoiding payment of his debts, and granting that thp plaintiff’s assignor could have filed a lien on the property, and have been entitled to a superior privilege on the proceeds of the sale made in the foreclosure proceedings, the present action was not for that purpose but to hold the Bank of Winnfield personally liable, and the evidence does not establish any such right.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s cfemands be rejected at its costs.


text:
    No. 3350
    Second Circuit
    GOODSON v. SCHUSTER’S WHOLESALE PRODUCE CO., INC.
    (March 12, 1929. Opinion and Decree.)
    (April 8, 1929. Rehearing Refused.)

      Cook and Cook, of Shreveport, attorneys for plaintiff, appellee.
    Barnette and Roberts, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings suit to collect damages for the destruction of his automobile and for personal injuries resulting from a collision between his automobile and a large motor truck, owned by defendant and operated by one of 'its servants, which collision took place in daytime on the Shreveport-Minden public highway. He charges negligence on the part of the driver of defendant’s truck. Defendant admits the collision and that plaintiff was injured to some extent, but denies liability on the ground that its driver was free from fault, and alleges that the collision and resulting damage were caused solely through the fault and negligence of plaintiff, who was driving his own car. The case was tried before a jury and resulted in a verdict for plaintiff for $2500.00, which verdict was approved by the Court. Defendant appealed, and plaintiff in this Court moved to amend the judgment by increasing the amount.

OPINION.

Plaintiff’s automobile, which he was driving, and defendant’s truck, driven by an employee, were running in opposite directions in open daylight on a public highway. The two vehicles met and collided at a place where the highway is approximately 30 feet wide and where there was nothing to obstruct the view of either driver. In support of his claim, plaintiff testified that he was driving his automobile at 30 to 35 miles an hour on his right hand side of the road when he saw approaching him from the opposite direction defendant’s truck, which was on the same side of the road—that is, on the truck driver’s wrong, or left side. He says he assumed, as he thought he had a right to do, that the truck driver would see him approaching and would turn to the right and get over on his side of the road in time to avoid a collision. Observing, he said, that the driver of the truck apparently did not see him, or at least was making no move to pull over to his side of the road, plaintiff checked his speed to about 10 or 12 miles per hour, still thinking the driver of the truck would turn; but that when it became evident that the approaching vehicle would not turn, his first thought was to turn to the right in order to avert a collision, but saw that there was not sufficient space on that side to pass, and, observing that the road was on a dump four to six feet high and that if he turned to the right he would run off into a ditch, and further seeing that if he stopped, the truck would necessarily run into his car head on, he concluded that his only chance to avoid a collision was to turn sharply to his left, accelerate his speed and pass the truck over on his left side of the road, and that he adopted that expediency. He thinks he would have been successful but for the fact that about the time he turned to the left, the driver of the truck turned to the right, which threw the two vehicles together over on the other side of the road.

Plaintiff’s testimony as to what happened and how it happened is corroborated in every detail by Mr. Edwards, who was with plaintiff in his car at the time and who was also injured.

Defendant’s version of the case, as given by the truck driver, Vaughn, is that the truck was being driven on its right side of the road and that plaintiff was driving on that side also, or on his wrong side; and that when the truck driver saw that there was not sufficient room over on that side for plaintiff to pass, he swerved his vehicle to the left, hut not in time to avert the collision. So that the testimony of plaintiff and his companion, Edwards, on the one side, and that of the truck driver on the other, as to which side of the road the two vehicles were on as they approached each other, is contradictory. As this is a vital point, it is necessary to go further and see what other witnesses say, as well as to note the physical facts with reference to the position of the vehicles on the road when they came to rest after the collision.

There were in all eleven persons who were either present or nearby when the collision took place, and who gave testimony directly touching this point, viz., Goodson, the plaintiff,. Edwards, his companion, Vaughn, the truck driver, Mrs. Vastocou, J. J. Harvill, T. C. Harvill, J. G. Willis, Charley Lott, W. H. Perry, Jack Allen and Kavanaugh.

We have already detailed the testimony of plaintiff and his companion, Edwards, and that of Vaughn, the truck driver. Of the other eight, Mrs. Vastocou, J. J. Harvill, T. C. Harvill, J. G. Willis and Charley Lott, all testified that they were eyewitnesses and were positive that the truck was running on its left, or wrong side of the road, and that plaintiff was on his right side. The other three, W. H. Perry, Jack Allen and Kavanaugh, testified to the contrary.

We therefore have seven witnesses who support plaintiff’s side, and four who support that of defendant. Assuming that these witnesses are of equal credibility and had equal opportunity to observe, we might rest this case here under the theory that the preponderance of the testimony is with the plaintiff. Aside, however, from the testimony of these witnesses as to what they saw of the vehicles before they collided, the physical facts wholly corroborate plaintiff’s side.

The highway runs east and west, and plaintiff was travelling east, so that his place was on the south side of the road. Defendant’s truck was going west, and its place was on the north side. It is undisputed that the collision took place over on the extreme north side of the road and that the right hand front spring and fender of the truck struck the rear right wheel of plaintiff’s car. It was not a head on collision. The front part of plaintiff’s car was not touched, but was struck on the right side at the rear end, the right rear wheel being completely demolished and the gasoline tank punctured. The vehicles, therefore, met at an angle. Plaintiff accounts for this by saying that in order to avoid a head on collision with the truck, he swerved his car over to the left and tried to pass on the north side of the road and that when struck, he was going at an angle across the road in a northeasterly direction. That would account for the angle at which the vehicles went together. If plaintiff had been on the north, or his left side of the road, going straight ahead, and if defendant’s truck had also been on that side, as defendant contends, there would have been a head on collision if the truck had gone straight. And, if the truck driver had swerved to the left towards the middle of the road; as he says he did, his right spring and fender could not have struck the rear right wheel of plaintiff’s car. Furthermore, Mr. Phillips, sheriff of Webster parish, went to the scene as soon as he heard of the accident, and found the truck and the automobile in the road as they stood when they came to rest. He testified that the_ truck stood diagonally across the road at an angle of about twenty-five degrees, fronting northwest with its front end three or four feet from the north edge of the road, and its rear end ten feet from that side. His testimony to that effect is corroborated by that of every other witness who took the stand; even the witnesses, Perry, Kavanaugh and Allen, who testified that plaintiff was running on the north, or his wrong side and that the truck was also on that side, testified, and, while on the stand, made diagrams showing that the truck when it stopped was headed towards the north side of the road. Their diagrams show a greater angle than that estimated, by Mr. Phillips.

Now plaintiff and Edwards say that about the time they turned to the left, the driver of the truck apparently waked up, saw them and turned to his right. This testimony, together with the physical facts above noted, show beyond question that at the moment- of the collision the truck was headed to the right, across the road towards the north side. This testimony further shows that the truck carried a trailer which, when it stopped, was so far over on the south side of the road that it had to be moved, in order to allow cars to pass on that side.

Counsel for defendant, in order to account for the position of the truck, say that' plaintiff in attempting to cross the road in front of it, ran into its front end and dragged it, thereby leaving the truck diagonally across the road. But there were no skid marks in the road to show that; and then the truck was much the heavier of the two vehicles and it is doubtful if the automobile could have turned it to that angle. Again, if the truck driver had not been on the wrong side of the road, there would have been no occasion for plaintiff to attempt to pass it over on that side.

Defendant attempted to .prove that plaintiff was running his car at an excessive rate of speed, lost control of it, and that his negligence in that respect caused the collision. Defendant, however, failed to prove to our satisfaction that plaintiff was operating his car at an excessive rate of speed at the time and just before the collision took place.

The testimony shows beyond question that the truck was running on the wrong side of the road. The driver had not slept at all during the previous night. He left Shreveport at 10 o’clock with a load of freight and carried it to Ruston, some 75 miles. After delivering the freight, he at once started on his return trip to Shreveport. Prom the way he operated the truck, he was, we think, either asleep at the wheel or was so groggy that he was paying little if any attention to the road. We doubt if he saw the approaching car at all until the horn was sounded immediately in front of him.

In this country, there have been established by long continued customs and usages, certain rules regarding the rights and duties of those operating vehicles on public highways. These rules and regulations are commonly referred to as “the law of the road.” Under the law of the road, those driving automobiles on public highways, on meeting another vehicle, must, if on the left side or in the center of the road, turn to the right. A failure to do so constitutes negligence unless there are conditions or circumstances which make such move dangerous or impracticable.

Bragdon vs. Kellogg, 18 Me. 42, 105 Atlantic 433, 6 A. L. R. 669; 13 R. C., 286-288.

In the case at bar, defendant’s truck was on the wrong side. On meeting plaintiff’s oar, the driver failed to turn in time to avert the collision, and no reason has been or can be suggested why he should not have done so. He was, therefore, negligent, and that negligence was the efficient, prime cause of the. collision and resulting injury.

Plaintiff in leaving his side of the road and attempting to cross over to the left in order to pass the truck on the other side, was not negligent under the circumstances. He acted • under an emergency created by defendant and used his best judgment. The sudden emergency and peril did not arise because of his own negligence. The testimony shows that there was not sufficient space for him to pass the truck on the right and that, had he turned to the right, he would have gone over an embankment into a ditch. It furthermore shows that the appearances were such as to convince a reasonably prudent man that, if plaintiff had stopped his car on his right side of the road, it would have been run over by the truck. His last clear chance, therefore, to avoid a collision was to turn to the left.

It may be argued that plaintiff, having seen the truck at some distance approaching on the wrong side of the road, could and should have turned before he did and thereby averted the collision, or that he should have stopped his automobile on his side of the road. But, as already stated, the appearances were such as to cause a reasonably prudent man to 'believe that if he stopped the truck would run over him. As to whether he should have turned to the left sooner than he did, it must be said that he had a right to assume that the driver would observe the law and turn to his side of the road. We quote the following from Blashfield’s “Cyclopedia of Automobile Law” (1927), Vol. 1, pages 415 and 416:

“A traveler on the public highway, proceeding on the right-hand side and meeting a person traveling on the wrong side, may assume that that person will do everything reasonably possible to avoid a collision, and is not himself responsible for the consequences of any ensuing collision, if he does all that a reasonably careful person would have done to prevent it. * * *
“A motorist has a right to assume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such assumption in determining his o.wn manner of using the road; and a driver, therefore, proceeding on the right side of the traveled way, may assume that the driver of a vehicle approaching on the same side, or on his left-hand side, will yield half the way, or will turn out in time to avoid a collision, and not force him, in violation of the statute or ordinance, or the law of the road, to turn from the part of the road on which he is lawfully driving, until he sees or ought to see, that such assumption is unwarranted.”

Defendant’s driver did finally turn to the right. But he did not do so before plaintiff had a right to believe that he would not turn. Plaintiff was not negligent in turning to the left.

“One compelled to turn to the left and wrong side of a road to avoid a collision because of another person’s violation of the law of the road, is not negligent.” Potter vs. Glassell, 146 La. 687, 83 So. 898.

See also the following decisions from other states:

Hammer vs. Connecticut Co., 94 Conn. 127, 108 A. 534;

Saylor vs. Taylor, 42 Cal: App. 474, 183 Pac. 843;

Clark vs. Woop, 159 App. Div. 437, 144 N. Y. S. 595;

McFern vs. Gardner, 121 Mo. App. 1, 97 S. W. 972;

Columbia Taxicab Co. vs. Roemmich, (Mo. App.) 208 S. W. 859.

ON THE QUANTUM OF DAMAGE.

Plaintiff asks that the judgment be amended so as to increase the allowance to $8000.00. This would be excessive. However, we think that the amount allowed is inadequate. Plaintiff testified that his car was rendered worthless and that is not disputed. He paid $1420.00 for it and had run it about eight or nine thousand miles. He said it was worth $1000.00 and his estimate is not contested. He paid medical and sanitarium bills amounting to $125.00. He was disabled and could not work for some three or four months. As he was not a salaried man, but an oil scout, we cannot tell how much he would have earned, but we have no doubt that he would have earned something for lie said he made $.3000.00 during the month preceding his injury.

A piece of glass punctured the front of his neck, leaving a visible scar; this was a deep, ugly wound. Dr. Benton stated that if it had been one-eighth of an inch deeper it would have caused his death. Plaintiff had a large, deep gash extending from the back of his head down on the neck, and this left a scar. These scars, Dr. Benton said, may diminish some, but will not disappear. His right ear was torn and lacerated and there were other minor cuts or punctures on the body. His left wrist was injured and of this injury Dr. Benton said:

“He had a pretty deep cut across the anterior part of his left wrist; this cut was deep also, and severed about four tendons, or four muscles in this wrist joint, just immediately back of the hand and they were sutured and put in splints.’’

As a result of that wound, Dr. Benton said:

“He has some impairment of the function there, but we are very' much pleased with the results.”

The doctor said he was pretty badly shocked, lost quite a bit of blood and that it took quick action to prevent him from bleeding to death. The above described wounds were sutured, or sewed up, a local anaesthetic being used.

After reaching the sanitarium, plaintiff was finally quieted by an injection of morphine. He remained in the Minden Sanitarium for ten days, during a portion of which time he showed signs of intense suffering, especially during the first eight or ten hours, and thereafter while the wounds were being dressed. Plaintiff was removed' to his own home where he remained for some time. Dr. Benton, his physician, stated that his wounds had left no permanent injuries or impairments, except that the scar on the front of his neck would give him some trouble, especially in shaving, and that there was a slight impairment of the left hand.

For his injuries, suffering and loss of time, we think plaintiff is entitled to $2000.00-; this amount added to the value of the car, and the amount of the medical and sanitarium bills paid, makes a total of $3125.00.

For the reasons assigned, it is ordered, adjudged, and. decreed that the judgment appealed from be amended so as to increase the amount from $2500.00 to $3125.00; and, as thus amended, the judgment is affirmed, with all costs.


text:
    No. 3398
    Second Circuit
    MELSON v. CALHOUN
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Hugh Tullís, of Yidalia, attorney for plaintiff, appellee.
    G. P. Bullis and Dale, Dale & Dale, of Vidalia, attorneys for defendant, appellant.
   ODOM, J.

This is an action to recover damages for malicious prosecution. Plaintiff alleges that defendant, maliciously and without probable cause, caused him to be arrested for a crime for which he was prosecuted and acquitted. The defendant admits that he caused the arrest and prosecution, but resists the action on the ground that he acted without malice and that there was probable cause for the criminal proceedings, and that he acted upon the advice of his attorney. The case was tried before a jury, which resulted in a verdict and judgment for plaintiff for $1,012.50; and defendant appealed.

OPINION.

In order to maintain an action of this kind, it is necessary that plaintiff show that defendant, in causing the arrest and prosecution, was actuated by malice and that he acted without probable cause. The burden is upon plaintiff' to prove both malice and absence of probable cause.

The authorities on this point are so numerous that we think it unnecessary to refer to them. We do, however, cite two leading cases by our own Supreme Court, viz:

Barton vs. Kavanaugh, 12 La. Ann. 332; ,and Estrada vs. Kreeger, Incorporated, 147 La. 291, 84 So. 786. (See also “Malicious Prosecution,” 38 C. J. 386, and 18 R. C. L., pp. 28 and 33.)

That Calhoun, the defendant in this suit, was prompted by malice and that he acted without probable cause in having plaintiff arrested is proved to our entire satisfaction. The pertinent facts are that in October, 1926, the plaintiff, Melson, borrowed from the defendant, Calhoun, the sum of $350.00, and gave his note, secured by chattel mortgage on a Buick automobile then in the Parish of Concordia, where both parties lived. The mortgage was duly inscribed in the Chattel Mortgage Records of that parish. Subsequently, probably in the month of November, plaintiff disposed of the mortgaged car without paying the note. More than a year later, on January 31, 1928, the defendant, Calhoun, appeared before a magistrate and made affidavit, reading, insofar as the same need be quoted, as follows:

“That on or about the 1st day of April, 1927, within said Parish of Concordia and State of Louisiana, one ,C. E. Melson did then and there, wilfully, feloniously, and of his malice aforethought sell one Buick Touring Car, Motor No..........., Serial No. 469309, having chattel' mortgage in favor of the affiant, contrary to the statutes of the State of Louisiana, in such cases made and provided and against the peace and dignity of same.
“WHEREFORE, affiant prays that the said C. E. Melson be arrested and dealt with as the law directs.”

Whereupon, the magistrate issued an order, directing the sheriff to arrest Mel-son, the plaintiff. He was arrested and released on bond. This affidavit reached the district attorney in due course and he filed a bill of information against Mel-son, charging that

“did unlawfully sell and dispose of one certain automobile, described as follows: One Buick touring car, Motor No_____________,. Serial No. 469309, the said Melson being at the time the owner of said automobile, with the fraudulent intent to defeat a certain chattel mortgage then and there being and resting thereon in favor of one J. L. Calhoun, in the sum of $350.00, said chattel mortgage being recorded in Chattel Mortgage Book No. 6, of the chattel mortgage records of Concordia Parish, State of Louisiana.”

Under this indictment, Melson was prosecuted and acquitted; and this suit followed.

ON THE QUESTION OF MALICE.

Plaintiff admits . that he disposed of the car which he had mortgaged to defendant, without first satisfying the mortgage. But he testified that, before doing so, he consulted defendant and obtained his unqualified assent and approval. He says he went to see Calhoun at his residence, near Ferriday, Louisiana, and told him that he had a chance to better his (Calhoun’s) security by trading the mortgaged car for a better one by paying $100.00 difference, and that Calhoun told him t.o go ahead and make the trade; that he (Melson) asked if he should transfer the mortgage to the other car and that Calhoun said:

“There would be- no need of that—but go ahead and make the trade.”

Melson testified that the car for which he traded was kept at the “M. & N. Service Station," operated by him and Horace Newton, and that Calhoun saw the car the next day and on numerous occasions thereafter. ' This was in the latter part of September, 1926. Melson further testified that on the day after he traded for the other car, Calhoun saw it and commended him for his shrewd trading and said:

“He would like for me to do some trading for him.”

Calhoun, as a witness, denied that he had consented to the trade and, during the course of his examination, said he know nothing of it until in September, 1927. If Calhoun had said no more and if there were no circumstances to corroborate the testimony of either, we would be in doubt as to whether Calhoun knew of the disposal of the Buick car by Melson and whether he had consented thereto. But Calhoun’s other testimony and the circumstances corroborate the testimony of/Melson so that we accept that of Melson as being true, as the jury and the lower judge evidently did.

Calhoun testified that Melson had made two payments, of $27.00 each, on the note in the latter part of 1926, but that nothing further was ever paid. The parties lived in the same community and Melson, after he traded for the Oldsmobile car, used it in connection with the service station which he was then conducting. Calhoun, on cross-examination, was asked if it were not a fact that he had seen Melson using the other car between the date on which he took the mortgage on the Buick and September, 1927, when he says he found out that the car had been disposed of, and he said:

“I had seen Melse with this other car;” and further, day he (I) taken the mortgage on it—to know it.”

“I hadn’t seen the Buick car since the

He took the mortgage in the latter part of 1926, and, from that date down to September, 1927, he had never again seen the Buick car, but had seen Melson driving another of a different make. This, we think, taken in connection with circumstances, is sufficient to turn the scale in favor of Melson’s testimony.

The testimony shows that Melson was operating a service station, and, in September, 1927, about nine months after he made the last payment to Calhoun on the car, Calhoun purchased from him an undivided one-half interest in Melson’s business for a cash consideration of $800.00, and the two entered into a partnership for one year to operate said station and to sell Chevrolet cars. Melson says that at the time the $800.00 was paid over to him by Calhoun, he suggested to Calhoun that he deduct from the amount the balance due on the note for the car, and that Calhoun declined to do so, stating that he, Melson, would be better able to pay the note later on. Calhoun denies this. But, certainly, Calhoun could have collected the amount due him if he had demanded it. Calhoun says that on the following day he discovered that Melson had disposed of the mortgaged car. Negotiations for the purchase by Calhoun of an interest in this, business and for the forming of the partnership were pending for' several days. Calhoun -does not explain how it happened that he found out on the day following the closing of the trade that Melson had disposed of the car. However, in view of his other testimony and in the light of the circumstances which followed, we think it easily understood why he claimed that he had not discovered that the Buick car had been disposed of until the day following the consummation of the partnership arrangements. The affidavit made by him is dated January 31, 1928—more than four months after he says he gained this information, and when he was asked why he did not institute the criminal prosecution before, his answer was that he did not care to prosecute a partner in business.

The partnership formed in September continued until January following, when the two disagreed. It was proposed that either Melson 'would purchase Calhoun’s interest, or Calhoun would purchase Mel-son’s. Pending the settlement, the doors were closed and locked, the keys carried to and left at the bank, with the understanding that they should not be re-possessed by either, unless both were present. Melson left the parish in quest of funds to buy Calhoun’s interest. Calhoun, subsequently, got possession of the keys and re-opened the business, his stated reason being that Melson had violated his partnership agreement. Finding Calhoun in possession of the business and operating it, Melson filed suit for a settlement of the partnership affairs and, incidentally, asked for the appointment of a receiver. This was on January 29th, and service was made on Calhoun on January 30th. On the next day, Calhoun went before the magistrate and filed the criminal charge. He admitted that he cherished no good feeling towards Melson, his reason being that Melson had violated or gone back on his agreement, and he was asked:

“Did you have any malice against Mr. Melson?”

He replied:

“No, sir, I can’t say that I did.’’

He was further asked:

“Did this feeling that you had that Mel-son had treated you badly have anything to do with your making this criminal charge?”

And he said:

“Well, I can’t say that it did.’’

He failed, however, to say that it did not.

The facts and circumstances convince us, first, that Calhoun knew all along that ■Melson had disposed of the car and that the disposal was made with his consent and approval; and, second, that in making the criminal charge, he was actuated by legal malice engendered by Melson’s suit for settlement of the partnership.

ON THE QUESTION OF PROBABLE CAUSE.

Even though defendant was actuated by malice, if he had “probable cause” for making the charge, plaintiff’s -suit for damages must fall.

The Chattel Mortgage Law, Act 198 of 1918, Sec. 8, under which the arrest and prosecution were made, provides that any owner or other person who shall sell or dispose of any property mortgaged under the act “with fraudulent intent to defeat the said mortgage,” shall be guilty of a misdemeanor. A sale or disposal of a chattel mortgage is not necessarily a violation of the act. To constitute the offense denounced thereby, the sale must be made “with fraudulent intent to defeat the mortgage.”

Melson was guilty of no criminal offense, because he had no fraudulent intent. However, “probable cause” in the sense here used, or the absence of it, is in no sense dependent upon the guilt or the innocence of the accused, but depends upon the prosecutor’s belief in his guilt based upon reasonable grounds.

38 C. J. 405:

“Probable cause is a state of mind in this, that the facts are regarded from the point of view of the prosecutor.” 38 C. J. 403.

Gates vs. Union Sawmill Company, 122 La. Rep. 437, 47 So. 761;

Sandoz vs. Veazie, 106 La. Rep. 202, 30 So. 767.

“In civil actions, ‘probable cause’ has been said to be such reason supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it, are legally just and proper.”

Or:

“The existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge-of the prosecutor, that the person charged was guilty of the offense for which he was prosecuted.”

18 R. C. L., Sec. 20, p. 35; see also 38 C. J. 403; “Words & Phrases,” 1st Series, Vol. 6, p. 5620.

In the case of Barton vs. Kavanaugh, 12 La. Ann. 332, the trial court was asked to charge the jury that the mere belief of the affiant in the truth of his charges would exonerate him. On appeal, the Supreme Court held that such charge would be improper and said:

“But it would be proper to instruct them that ‘probable cause does not depend upon the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party prosecuting’.”

As was stated by one text writer:

“A definition (of probable cause) sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, but * * * there seems to be sufficient substantial agreement * * * to warrant the statement that the standard of conduct for beginning or continuing any proceeding, whether civil or criminal, is that of a reasonable or ordinarily prudent man placed in the same situation as the defendant.”

Calhoun knew that Melson had disposed of property under chattel mortgage and, if he acted in good faith and used proper caution and made the charge against Mel-son in the honest and sincere belief that such disposal, under the circumstances as he knew them, constituted a criminal offense, he had “probable cause” for causing the .arrest and prosecution, and plaintiff’s suit for damages must fall for that reason. But ,the testimony does not warrant a holding in his favor on that point.

Before making the affidavit, he went to his attorney, Mr. Bullís, “and told him that he had a note against Melson for $350.00, secured by a mortgage on a car, and that Melson had disposed of the car. Mr. Bullís, as a witness, testified as follows:

“He told me that this was done without his knowledge or consent. I advised him that, under these facts, I could file a suit against Melson for the $350.00 note, but that I could not do anything about the action of Melson removing and selling his security. I told him that in my opinion these facts constituted a violation of the chattel mortgage law which makes such action a criminal offense. I told him that the District Attorney was the man to handle all criminal matters and that he should lay the matter before the District Attorney, if he desired, to tahe any action other than filing a suit on the note.”

The advice of counsel in matters of this kind will protect a prosecutor, provided all the facts are stated. Calhoun not only did not state all the facts to his attorney, but he misstated them in that he said the car was removed without his knowledge or consent. His attorney told him that in his opinion “these facts constituted a violation of the chattel mortgage law.” But the attorney went further and specifically told him that the district attorney was the “proper man to handle all criminal matters and that he should lay the matter before him if he desired to take action other than filing' a suit on the note.” The- attorney did not pretend to advise him, but cautiously and prudently referred him to the district attorney. But he did not follow his attorney’s advice and lay the matter before the district attorney, but proceeded to the 'magistrate and made the affidavit. The district attorney testified that the first he knew of the charge was when Calhoun brought the affidavit to him and asked him what to do.

Primarily, Calhoun’s visit to his attorney, Bullís, was not to seek information as to whether Melson had violated any law, but to get action on the note. Incidentally, Bullís told him to seek the advice of the district attorney, if he desired to make a criminal charge. A cautious, prudent man, if in good faith, would have acted upon his attorney’s advice and would have sought the district attorney. No prudent man, having due regard for the rights and liberties of another, would commence a criminal prosecution without consulting the state officer to whom he had been referred by his own counsel.

More than that, we think Calhoun knew, after he talked with his attorney, that Melson had violated no law. His attorney told him, in substance, that, if the car had been removed and disposed of without his knowledge and consent, Melson had violated the law. Calhoun knew that had not been done.

Where one acts upon facts within his own knowledge, which facts to his knowledge do not constitute a crime or an offense, he cannot be said to have acted upon “probable cause.” There is not one fact or circumstance connected' with this case indicating that defendant, in causing the arrest and setting in motion the machinery of the criminal law against plaintiff, was actuated by a sincere desire to enforce the law. On the contrary, the facts and circumstances force upon us the conclusion that he was actuated by a desire to punish plaintiff, because lie had filed suit for a settlement of the partnership affairs.

Counsel for defendant, in oral argument and in brief, contend that Melson had in fact violated the law because he had disposed of the car without the written consent of Calhoun. But the chattel mortgage law does not make it a criminal offense to dispose of mortgaged property without the written consent of the mortgagee, but provides that if he “shall remove the same from where so mortgaged to another parish without complying with the provisions of this act, or shall remove same out of said parish without the written consent of said mortgagee,” (Act No. 198 of 1918, Section 8), he shall be guilty of a misdemeanor1. But the charge against Melson was that he had sold the car, and' that is not a misdemeanor under the act, unless done with fraudulent intent.

Counsel also seriously contend that the lower court' erred in admitting testimony before the jury that Calhoun had been twice convicted for bootlegging, which testimony, he says, prejudiced the minds of the jury. It may be that such testimony did influence the jury in arriving at its verdict, but we are not relying upon the verdict of the jury, but upon the record as brought up, and the testimony to which counsel objected, while in the record, has not influenced us in the slightest.

Lastly, counsel contend that their client is protected because he acted upon the advice of his attorney. However, as we have already stated, lie did not act upon the advice of his attorney, and furthermore, the advice given by an attorney will not protect the prosecutor where the facts are incorrectly stated, or where anything is withheld, and our conclusion is that Calhoun did not divulge all the facts to his attorney.

ON THE QUANTUM OF DAMAGE.

Plaintiff is a young man, thirty years old, and has a wife and four children. He has been engaged in business in and around Ferriday, Louisiana, for about eight years and bears, according to the witnesses, a good reputation. He had never before been arrested or accused of the violation of any law. He and his wife bo:th testified that they were greatly humiliated and outraged by the arrest and prosecution and we have no doubt that they were. We think the plaintiff is entitled to recover, but, inasmuch as he was not placed in the jail, but when arrested, was immediately released on bond, we think the amount assessed by the jury is somewhat excessive. We think an allowance of $600.00 will do justice to all concerned.

For the reasons assigned, it is therefore ordered,- adjudged and decreed that the judgment appealed from be amended so as to reduce the amount from $1,012.50 to $600.00; and that, as thus amended, it be affirmed, with costs.