author: REYNOLDS, J.

text:
    No. 3096
    Second Circuit
    JASPER v. THE MUTUAL LIFE INS. CO. OF NEW YORK
    (March 12, 1929. Opinion and Decree.)

      Herndon and Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Blanchard, Goldstein and Walker, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

The plaintiff, Mary Jasper, as the nominated beneficiary in a policy of insurance for $3,000.00 issued by the defendant, The Mutual Life Insurance Company of New York, on the life of George F. Jasper, deceased, sought by this action to recover judgment against the defendant for the difference between the face value of the policy and the amount of a loan of $1,275.00 made by the defendant to the insured solely oil the security of a pledge of the policy, and for the sum of $'55.88 as the unearned part of $76.50, interest on the loan in advance for one year, alleged to have been paid by the insured.

The defense is that the interest on the loan was payable in advance and was not paid at its maturity and that for that reason the policy was forfeited and cancelled pursuant to the terms of the loan pledge, and that all that was owing to plaintiff under the policy was $342.46, being the difference between the amount of the loan, $1,275.00, and the surrender value of the policy, which it alleged was $1,617.46, and that defendant had duly tendered this sum to the plaintiff and she had refused to accept it.

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

OPINION.

The policy, which is of the kind known as 20-payment, is dated January 26, 1889, and was paid up at the time of the loan. It provides, among other things:

“This policy may be surrendered to the company at the end of the said twenty years from the date of issue, and the full reserve (computed by the American Table of Mortality and four per cent, interest), and the surplus, as defined above, will be paid therefor in cash. If surrendered at the end of any subsequent quintennial dividend period, the full reserve by the same standard and the surplus as defined will be paid in cash. No cash value will be paid for a surrender at any other times or dates.”

It was proved by defendant and not controverted by plaintiff that at the date of the forfeiture the surrender value of the policy was $1,617.46.

The contract of loan and pledge reads as follows:

“$1,275.00 New York, _____ ... 191 .
“On January 26th, 1916, without grace, we promise to pay to the order of THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK one thousand two hundred seventy five dollars, with interest at the rate of 6 per cent, per annum at the office of said Company in the City of N w York, for value received, having deposited with and assigned to said Company Policy No. 348766 as collateral security for the payment of this note, as herein provided. The application of the foregoing amount is hereby approved as follows:
Amount of loan___________________________________$1,275.00
Adjustment for interest on premiums ..................................................$______________
$-------------
To pay loan No. 266578 due 1/26/1915 on Policy No.
348766 ________________________1_________$___________ 1,275.00
Accrued interest on Loan
No_________________ 191_______________$............
To pay premiums on said
policy to Paid-up 191________$____________
Adjustment for interest on
premiums ............................$____________
Balance by Company’s check___________$1,275.00
“The borrower may pay this note, with accrued interest at any time prior to the date when due, and when so paid together with all other indebtedness in respect of said policy this loan note will be automatically cancelled, and the Company will return the policy.
“The time for the payment of this loan may, from time to time, upon request of any of the parties hereto and with or without notice to the other parties, be extended for a period of six months or one year, upon' payment of any premiums on the policy necessary to cover the period of any such extension and payment of interest which shall have accrued at the maturity of the loan.
“In the event of .failure to repay said note on the date when due as herein provided or in the event of the non-payment of the interest accrued thereon, the Company, without further notice and without further demand for payment, may cancel said policy as of the date of default, and apply to the payment of said note (with accrued interest), the sum of $1,435.00 (being the customary cash surrender consideration allowed by the Company as the surrender value of policy issued upon like terms and conditions) and pay the remainder of said sum (if any), on demand, to the parties entitled thereto.
“In case of any extension or renewal or extensions or renewals of this note, the foregoing provision for cancellation and surrender of the said policy shall be applicable, but in such case, in lieu of the above stipulated cash surrender consideration, the Company will pay, as a cash surrender value at the maturity of any such extension or renewal, subject to the deduction of the existing loan with accrued interest, the customary cash surrender consideration then allowed by the Company, on other policies issued and terminated upon like terms and conditions as this policy, which amount shall not be less than the above stipulated cash value.
“In the event of the death of the insured before the maturity or payment of the note, and while said policy is in force, the amount of said note, with accrued interest, will be deducted from the amount payable on the policy, the balance being payable to the person or persons entitled thereto. In witness whereof we have hereunto set our hand the 25th day of January, nineteen hundred and fifteen.
“GEORGE F. JASPER, “Insured.
“MARY JASPER, “1102 East College St., . “Shreveport, La.” “Witness J. P. Dupree,
“Oil City, La.
“Address.
“Witness G. A. Humason,
“132 Hamilton St.
“Shreveport, La.
“Address.”

The time for the payment of the loan was extended from time to time by payment of interest thereon until January 26, 1919, on which date there was owing and due on the note the principal, $1,275.00, and if it was the desire or intention of the insured to extend the maturity of the debt, then an additional sum of $76.50 as interest on the loan for one year from that date. Neither the principal of the note nor interest for another year to extend its maturity for that time was paid.

Under the business rules of the defendant, thirty days’ grace were allowed for such payment and, on February 24, 1919, the manager of defendant’s policy loan department at St. Louis, Mo., addressed a letter to the insured at Shreveport, La., saying:

“The thirty days’ grace for payment under policy No. 348,766 expires Wednesday. Kindly get in touch with the writer immediately.”

However, the interest was not paid within the thirty days, and defendant can-celled the policy as of the date of the maturity of the loan, January 26, 1919.

The' manager of defendant’s St. Louis, Mo., office wrote the injured under date of March 4, 1919, as follows:

“We refer to your letter of recent date regarding your policy No. 348,766. Our letter of the 24th ult. referred to the overdue interest of $76.50 which should have been paid on or before Feb. 26th. As this interest is unpaid, and the days of grace allowed to expire, we have written to our New Orleans ag’ency giving them the facts and no doubt you will hear from them within the next few days. The policy is now lapsed, and steps for its restoration should be taken. The steps necessary to take, in order to reinstate this policy, will be explained by our New Orleans office.”

Under date of March 5, 1919, Miss Mary A. Jasper, the daughter of the insured, addressed a letter to the manager of defendant’s New Orleans office, reading:

“Several days ago I had notice from your company of interest due for the amount of $76.50 and that time in which to pay same had lapsed. A reply to a letter of inquiry to Mr. Shaw, your St. Louis manager, advised me that the necessary action for the reinstatement of this policy would be explained to me in a letter from the New Orleans office. Upon receipt of same, I talked with Mr. Deas, the Shreveport representative who suggested that a check covering the amount of the interest wouldr straighten the matter out and restore the policy to its valid form. I herewith hand you check for the amount of the interest $76.50, and trust you will let me hear from you upon receipt of same. The reasons for the delay in sending you the above mentioned check is the illness of Mr. Jasepr, and your last notice served to bring it to our immediate attention.”

Under date of March 14, 1919, the insured wrote the manager of defendant’s New Orleans office - to this effect:

“On March 5th I wrote you a letter in regard to lapsed policy of George F. Jasper, No. 348,766, and enclosed a check for $76.50, the amount of the premium due under the same. Up to this date I have had no reply or acknowledgment of same. Please let me hear from ycu by return mail and oblige.”

Defendant’s New Orleans office wrote the insured that such matters were outside of its authority and had been referred to defendant’s home office at New York; and defendant’s St. Louis office wrote him under date of March 13, 1919, that:

“We received from our New Orleans agency your check for $76.50, which you tendered for interest on loan under policy No. 348,766. As this policy became lapsed for the non-payment of interest within the days of grace allowed, we are submitting all the facts in your case to our Home Office. No doubt you 'will hear from them in the next few days.”

On March 24, 1919, defendant’s St. Louis office wrote the insured:

“We are enclosing herewith personal health certificate which be kind enough to fill out, sign, have your signature witnessed and return to this office at once. This certificate is sent you with the hope that if it is satisfactory to the company, they will accept payment of interest on the loan made under your policy No. 348,768. This policy has been in default for the non-payment of interest within the grace period, but we are confident that if you will send the enclosed form to us, properly completed, the company will consider reinstating the insurance.”

On March 31, 1919, the insured’s daughter wrote defendant’s St. Louis office saying:

“In re: Policy No. 348,766 G. F. Jasper. I beg to acknowledge receipt of your letter of recent date, and will state that the reason of the delay in remitting you interest to cover the loan made on above numbered policy, was that I was in Washington, D. C., engaged in war work, and only received notice of the expiration of the grace period contained in your letter of Feb. 24, 1919, on my return home, and I at once remitted you check to cover. My father doubtless thought that this matter had been attended to, and would indeed be very much vexed if he learned the present condition, and, under the circumstances, as the check was remitted only a few days after the grace period, I sincerely hope that you will accept same at this time and reinstate the policy.”

Nothing was done by the insured toward obtaining and sending to the defendant the health certificate requested as a con-* dition precedent to reinstating the policy, for the reason, doubtless, that the insured was then seriously ill.

The insured died on May 2, 1919.

On May 6, 1919, the insured’s daughter wrote defendant’s St. Louis office requesting that proper blanks be sent her on which to make proof of claim for death-loss under the policy.

And, under date of May 27, 1919, she again wrote the St. Louis office as follows:

“No. 348,766—G. F. Jasper. Under date of May 6th, we wrote you regarding the proper blanks to be filled out in the case of the above numbered policy, and received your reply of the 8th saying that you were writing to the home office for some information regarding same. However, since that time, we have heard nothing from you, and will kindly ask that you favor us with an early reply and forward the necessary blanks.”

Under- date of May 31, 1919, defendant wrote Mrs. Mary A. Jasper, widow of the insured and beneficiary under the policy and plaintiff in this action, as follows:

“In regard to your letter of May 27th, we beg to advise that the above policy stands surrendered for non-payment of the loan due Jan. 26th, 1919; and company’s check for $265.96 is enclosed herewith in accordance with the statement attached hereto.”

To this letter she replied, under date of June 4, 1919, as follows:

“Policy No. 348,766—Gf F, Jasper. Y&ur letter of May 31st, with check and statement, received, and I herein return the check and statement, as I am undoubtedly entitled to the full amount of the policy, less the amount of the loan of $1275.00, for the following reasons. Mr. Jasper enclosed check for $76.50, amount of interest due, to your New Orleans office on March 13th, the receipt of which you acknowledged on March 13th, and stated that you were submitting all the facts to the Home Office. You next wrote to him March 24th stating: ‘that if personal health certificate was satisfactory to the company they will accept payment of interest on the loan.’ Mr. Jasper was ill at the time and did not fill in the certificate; but, regardless of that fact, you cashed his check for the interest on March 25th, and on receipt of cancelled check for interest I believed, and do believe at this time, that you, by accepting the interest, waived the health certificate, and I am entitled to recover the face value of the policy, less the loan.”

On June 10, 1919, defendant wrote plaintiff:

“When forwarding surrender check to you under the above policy, we neglected to include the amount held here of $76.50: Same is now enclosed by our check.”

On June 16, 1919, plaintiff wrote defendant, returning to it the check for $76.50 and saying that she would not accept it, saying that defendant did not owe it and that she was not entitled to it because .defendant had accepted it in payment of the interest due on the loan and renewing her demand on defendant for payment of the difference between the face of the policy and the amount of the loan.

Under date of June 26, 1919, defendant’s attorney in New York City wrote to plaintiff and returned to her the checks for $265.96 and $76.50, saying that the defendant had held the $76.50 awaiting receipt of the certificate of health and that the certificate had never been furnished it and that therefore the policy had never been reinstated, and that all that was owing by defendant to plaintiff was the $265.96, being the difference between the amount of the loan and the cash surrender value of the policy.

On July 9, 1919, plaintiff again returned to defendant the two checks and reiterated her position and demand.

On July 18, 1919, defendant acknowledged the return of the checks and informed plaintiff that it would hold them subject to her orders.

Plaintiff contends that the provision of the pledge contract authorizing cancellation of the policy was null and void and that the policy was still in force and effect notwithstanding the alleged cancellation.

That if there was authority to cancel the policy the right to cancel was waived by defendant’s retention of the interest received after default.

I.

Plaintiff’s first contention apparently is res novo in the jurisprudence of Louisiana. Counsel have not cited us to any case in point and we have not been able to find any ourselves.

The question was adverted to in Lesseps vs. Fidelity Mut. Life Ins. Co., 120 La. 610, 45 So. 522, which was a suit upon a life insurance policy. The defense was that the policy had been forfeited for non-payment of a note given for premium on the policy and containing the following clause:

“This note is given for premium on policy No. 112,016 for forty thousand dollars, issued by the Fidelity Mutual Life Insurance Company, and, if not paid- at maturity, it is expressly agreed that the above numbered policy shall be ipso facto null and void without notice to the maker hereof, and without any act on the part of the company and shall remain so until reinstated as provided by its terms.”

The note not having been paid at its maturity and the insurer having refused to pay on the ground that the policy was forfeited by the non-payment, the plaintiff urged that time was not of the essence in contracts to repay borrowed money, and considering this the court said:

“Passing from a consideration of the issues of fact to the law, learned counsel for plaintiff quotes from Manhattan Life Ins. Co. vs. Wright, 126 Fed. 82, 61 C. C. A. 138, in which it was said, in effect, that time is not of the essence of a contract to repay borrowed money and an agreement to forfeit is of no effect where the lost money thereby is much in excess of interest during delay. There is a great difference as relates to the facts in the cited case and the case here. In the former, the question involved a loan, and not premiums which the insured had paid. The insured, having failed to make payment of the note at maturity, was sued as a debtor of the loan secured 'by the policy as -a collateral security. Time, of course, was not of the essence. It is different in matter of a premium on a policy. In regard to premiums, the decisions hold that time is of the essence. The decision to which we are referring at present, cited by plaintiff’s counsel, expressly sustains that view.
•‘The rules of law applying t.o a loan do not apply to premiums as relates to time." (Italics ours.)

In the Manhattan Life Ins. Co. vs. Wright, case, supra, the court, quoting from Pomeroy’s Equity Jurisprudence, second edition, sections 449, 450, said:

“Time is not ordinarily of the essence of a contract to repay borrowed money, and an agreement to forfeit or to lose money or property much in excess of interest during the delay on account of failure to pay a loan on the stipulated day is a contract for a penalty for failure to pay money, and is void, because compensation is the basic rule for the measure of damages and interest during the delay is, under the law, full compensation therefor.”

We infer from the language of the court quoted from Lesseps vs. Fidelity Mutual Life Insurance Company, supra, that had the note there involved represented money borrowed instead of premium .on the policy sued on the contention of the plaintiff there would have been sustained.

New York Life Ins. Co. vs. Curry & Bros., 115 Ky. 100, 72 S. W. 736, 61 L. R. A. 268, 103 Am: Rep. 297, was a suit to compel reinstatement of a paid-up policy of life insurance that had been forfeited for nonpayment of the principal or interest of a continuing loan made by the insurer to the insured on the security of a pledge of the policy. The pledge contract stipulated that:

“It is agreed that in the event of the default of any payment of said interest or of said loan * * * for thirty days after they shall respectively become due said policy shall be deemed to be and shall be in effect at the option of said party of the first part (the insurer), surrendered to said party of the first part at the customary cash surrender value then allowed by said party of the first part for the surrender of policies of this class, said party of the first part in that case being liable to said party of the second part (the insured) for the return of the balance only of said cash surrender value after deducting said loan and interest and any expenses incurred thereon.”

At the time of the forfeiture the hypothecated policy had a cash surrender value of $12.47 in excess of the amount of principal and interest owing on the loan.

More than eight months after the forfeiture an assignee of the policy (the insured being still alive) offered to pay to the insurer the interest owing on the loan and demanded that the policy be reinstated but the insurer refused the tender and to reinstate the policy and thereupon the assignee brought suit against it to compel it to reinstate the policy.

The trial court ordered the policy reinstated, and the Court of Appeals, in affirming the judgment, inter alia, said:

“This appeal involves the validity of the clause of the above agreement providing for the surrender, or practically for the forfeiture, of the policy, if the interest on the loan was not promptly paid when due. By the terms of this writing, if the loan, or its interest, was not repaid when due under the loan agreement, the policy was to be ‘surrendered’ to the insurer 'at the customary cash surrender value then allowed by said party for the surrender of policies of this class.’ That is, pure and simple, a provision for the forfeiture of the policy upon such terms as the payee of the note may require, and at its option. The difference between this and the ordinary unqualified .forfeiture lies alone in the extent of the forfeiture. It operates as an enforced conversion without further notice to, or consent of, the borrower, of his collateral, if he fails to promptly pay the interest upon his debt.
“The contract of insurance between appellant (the insurer) and Anderson (the insured) had been fully executed so far as Anderson was concerned. He had paid all that lie was required to pay to be entitled to receive from appellant the full sum stipulated to be paid—$630—at his death. The $130 was borrowed, from appellant since that completion of the contract. The courts have uniformly held in favor of the insurer that agreements for the forfeiture of the policy when premiums were not paid when due are valid, and their enforcement upheld. This is said to be because ‘on the prompt- payment of the premiums depends the mutuality of the contract and the ability of the insurance company to meet its obligations.’ But both the reason and the rule are restricted to' the matter of premiums alone. Forfeitures are disfavored in law. When they are mere penalties for the non-payment of money borrowed, they are not allowed. They lead to, and themselves are, unconscionable oppressions of the unfortunate. * * * In the case at bar there is no perceivable reason why the insurance company lending the money is, or can be, in a different position from any other lender of the money had the policy been assigned to the latter as collateral, and a default in payment of the interest had occurred. * * * We are of the opinion that the provision in the loan agreement for a surrender or forfeiture of the policy upon the non-payment of the interest upon the loan is void.”

In the case at bar the evidence shows that the cash surrender value of the policy at the maturity of the loan was $1617.46 or $346.42 more than the loan debt, and that this surplus was being annually augmented by dividends. Even had no interest been paid for four years the excess would have protected the defendant that long from loss. Enough of the $346.42 might have been applied to payment of the interest and the transaction treated as an increase of the loan or decrease of the cash surrender value pro tanto. Instead, the policy was forfeited for $76.50 interest no part of which had as yet been earned.

II.

The days of grace expired February 26, 1919, and the insured sent defendant the interest on March 5, 1919—less than ten days thereafter—and defendant did not offer to return the money until May 31, 1919, nearly three months after it had received it, and until the insured was dead nearly a month.

We are of the opinion that there was acquiescence in and waiver of the defendant in prompt payment of the interest.

It is elementary that acceptance of performance after default waives the default.

Defendant argues that the retention of the money was not as owner but as depository, awaiting the furnishing of the certificate of health.

This contention is based upon a misconception of the provision of the loan contract regarding such certificate. The provision refers to forfeiture for non-payment of premium and not to cancellation for non-payment of interest. Obviously a policy forfeited for non-payment of premium should not be reinstated without a showing of good health. There is no need for such showing where, as here, the policy was paid up.

The contract of insurance being complete, defendant’s liability to pay and the beneficiary’s right to receive the amount agreed to be paid—$3,000—at the death of the insured, was absolute.

The loan contract was independent of the insurance contract and was entered into after the latter became complete; and only on the theory of deliberate purpose to take unconscionable advantage of borrowers is it conceivable that the state of the insured’s health was intended to be made a factor in the determination of the question whether forfeiture for non-payment of interest should, be waived.

III.

Defendant contends that the policy was cancelled at the expiration of the days of grace as of the date of the maturity of the loan.

It does not appear that the acts required by Act No. 68 of 1906 to be performed by the insurer as a condition precedent to valid forfeiture were performed.

That act provides:

“That no life insurance corporation * * * shall within one year after the default in payment of any * * * interest declare forfeited, or lapsed, any policy hereafter issued or renewed, * * * unless a written or printed notice stating the amount of such * * * interest * * * due on such policy, the place where it shall be paid, and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured, * * * at his or her last known postoffice address in this state, postage prepaid by the corporation, * * * at least fifteen and, not more than forty-five days prior to the day when the same is payable. The notice shall also state that unless such * * * interest * * * when due, shall be paid to the corporation, * * * by or before the day it falls due, the policy and all payments thereon will become forfeited and void except as to the right to a surrender value, extended insurance or paid up policy * *

It was held in Carter vs. Brooklyn Life Ins. Co., 110 N. Y. 15, 17 N. E. 396, that the payment of an annual premium constitutes a renewal.

And in Jones vs. New York Life Insurance Co., 32 Okla. 339, 122 Pac. 702, the Supreme Court of Oklahoma considered a statute of the State of New York identically similar to ours.

In that case the insured borrowed money from the insurer upon a pledge of his policy under a loan contract, so much of it as is material here, reading:

“That in the event of default in payment of said interest or of any premium on said policy, for one month after they shall respectively become due, said party of the first part, which is hereby irrevocably appointed attorney for that purpose, is hereby authorized at its option to cancel said policy and its accumulations, for the customary cash surrender value then allowed by said party of the first part for the surrender of policies of this class, said party of the first part in that case being liable to said party of the second part for the return of the balance only of said cash surrender value, after deducting said loan and accrued interest.”

The loan was renewed from time to time, and became due on the 1st of March, 1904. Neither the loan nor the interest was paid. After some negotiations between the company and the insured the company, on the 14th of October, 1914, computed the cash surrender value of the policy, and deducted therefrom the amount due upon the loan, including interest thereon for one month after it became due, and mailed to the insured a check for the difference in the amount due upon the loan and the cash surrender value of the policy.

The insured died on November 4, 1904, and ■ the beneficiary in the policy brought suit on it.

It was contended by the plaintiff that no notice of intention to forfeit the policy was given pursuant to the statute of the State of New York and that therefore the forfeiture was void.

It was claimed by the defendant that the notice required by the statute was waived by the loan agreement, and the court said:

“It is often said that the law abhors forfeitures. It is perfectly safe to say that neither law nor equity favors them, and a remedial statute, intended to save contracts of life insurance from forfeiture, should not be construed by the courts with all that narrow rigor that is sometimes applied to the construction of . penal statutes. It should receive at least a fair construction; and it is plain enough that we cannot do that and at the same time assent to the contention of the learned counsel for the defendant in this case * * * But whether the default was a failure to pay the premium as such, or a note given for the same, is, in our view, of very little consequence, since a default in either respect was a cause of forfeiture under the conditions of the policy. The statute which relieves from a forfeiture in cases where the notice prescribed therein has not been given, was, in legal effect, a part of the contract. All contracts are made subject to any law prescribing their effect, or the conditions to be observed in their performance; and hence the statute is as much a part of the contract in question as if it had been actually written into it, or made a part of the stipulations. The failure of the plaintiff to pay the note in question was a cause of forfeiture under the terms of the policy, and therefore was within the scope of the statute which was intended to prevent that result, unless certain conditions were observed. It has been decided by other cases in New York that the provisions of the statute prohibiting forfeiture without notice should be strictly construed in favor of the insured. * * *
“Defendant contends that the New York law is not applicable, because it is waived both in the policy and in the loan agreement * * * Certainly, if the contract is to be construed by the New York law, notice must have been given. The loan contract does not expressly modify the New York law, and, unless -it does, the necessity for notice is not obviated. Under the New York law, - in the state of New York, the notice would have been required to cancel the contract, even though expressly waived by the loan contract. And, unless expressly waived, a notice was required in this case. As already seen, there was no express waiver. There is no reason why a note given for a loan should obviate the necessity for notice any more than a note given for a premium.”

The correspondence between the insured or the beneficiary and defendant shown by the evidence was not a compliance with the statute.

Boring vs. Louisiana State Ins. Co., 154 La. 549, 97 So. 856.

Independently of the statute it would seem that legal forfeiture could only be effected by formal notice promptly sent, together with a formal tender of the difference between the amount of the loan and the cash surrender value of the policy.

There is no evidence of any such formal forfeiture, and not until defendant was informed of the death of the insured did it tender anything on its obligation under the policy, and it only tendered then $265.96 as the cash surrender value of the policy when, according to its own admission, that value was $342.46.

We find no error in the judgment appealed from and accordingly it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2768
    Second Circuit
    DENNIS v. J. FRANK DARLING CO., INC.
    (March 12, 1929. Opinion and Decree.)

      T. H. McGregor, of Rayville, attorney for plaintiff, appellant.
    Cook and Cook, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff, L. W. Dennis, sued defendant, J. Frank Darling Company, Inc., a non-resident corporation, and obtained writs of attachment against its property and garnisheed various of defendant’s customers who were indebted to it for the price of merchandise sold them. He alleged that defendant was indebted to him in the sum of $530.59 with legal interest thereon from judicial demand, and in the further sum of $25.00 a day from the date of the filing of his suit until defendant should comply with its contract. He alleges:

“That on account of this failure of the defendant to furnish petitioner advances for his expenses, your petitioner has lost valuable time in which he could have and would have earned ■ commissions under his contract at the rate of $25.00 per day.
“That from the time of the beginning of petitioner’s employment by the defendant, down to and including November 22, 1924, his commissions on accounts amounts to the sum of $1017.16. That during the month of October defendant placed other men in the territory in which petitioner was working and for four days he was not able to place any orders, for the reason of said interference contrary® to contract, and for these four days petitioner claims $25.00 per day or $100.00. That the days of November 24, 25, 2'6, your petitioner was unable to get out on the road to work, by reason of the fact that the defendant had not sent him any expense money in accordance with the terms of the contract, and for the loss of these three days’ time petitioner claims the sum of $25.00 per day or $75.00. That on account of these breaches of contract on the part of the defendant, petitioner has been put to the expense of using telephones and telegraphs to the amount of $14.33, which amount he charges against the defendant. All of which earnings and charges amount to the sum of $1206.49. That, during the term of employment up to date, defendant has advanced to petitioner the sum of $677.45, leaving a balance due to petitioner under the terms of the said contract of the sum of $530.59.”

And he further alleges that by reason of defendant’s failure to advance him any further sums of money for expenses he has been and will be unable to travel and solicit orders for its merchandise and consequently will lose commissions on sales of $25.00 a day.

And he prayed judgment against the defendant for $530.59 with legal interest thereon from judicial demand and for the further sum of $25.00 a day from the date of his suit until defendant should advance him expense money in accordance with the contract between them.

After several preliminary motions, not necessary to be considered here, and the filing of an amended petition wherein plaintiff increased the item of $530.59 to $536.28 and particularized the items going to make up this amount, the defendant answered pleading, in effect, a general denial, and praying that the writs of attachment and garnishment be dissolved and plaintiff’s demands be rejected.

, On these issues the case was tried and there was judgment rejecting plaintiff’s demand and he appealed.

Defendant has filed an answer to the appeal and asks judgment in reconvention against the plaintiff in the sum of JJ95.41 I with legal interest thereon from judicial demand.

OPINION

Plaintiff, in brief, presents two possible grounds as basis of a judgment in his favor by this court, as follows:

1. Total commissions, bonuses, loss of time and expenses for telegrams, etc., claimed__________________$1041.56 Amount for idle time after defendant prevented plaintiff from working any longer_______________________ 1050.00
Grand total of plaintiff’s claims..$2091.66 Less credits admitted by plaintiff 727.45
Balance due plaintiff by defend-
ant ........... $1364.11
2. Total earnings admitted by defendant to be due....................... $768.77
Maximum receipts admitted by plaintiff ________________________________________________ 727.45
Balance due to plaintiff by defendant ................................................ $41.32
If the Glassell order is deducted by the court ____________________________________ $31.74
Balance due plaintiff by defendant ........................................................ $9.58

And says:

“Our conclusion is, therefore, that the judgment of the lower court should be reversed, and there should be judgment for the plaintiff in some amount ranging from $9.58 to $1364.11.”

In his original petition plaintiff claimed $530.59 and in his amended petition he increased this amount to $536.28 and in his brief it is reduced to $364.11. This indicates to us that plaintiff did not keep an accurate record of his earnings and expenses.

Plaintiff claimed to have earned commissions amounting to $1041.56 and defendant admitted commissions amounting to $768.77, leaving a difference of $272.79 made up as follows:

Difference between commissions
claimed and commissions allowed $53.46 Three bonuses of $10.00 each
claimed and not allowed________________ 30.00
Loss of three days time at $25.00
a day ................................... 75.00
Loss of time for four days at $25.00
a day .................................................... 100.00
Cost of telephone conversations and
telegrams ___________ 14.33
$272.79

It will therefore be seen that what is presented for our determination is plaintiff’s right to recover $1050.00 for alleged loss of time and his right to recover for the items going to make up the $272.79.

The item of $1050.00 for time lost cannot be allowed, for the reason that plaintiff telegraphed to defendant his resignation of his employment and defendant at once accepted it. On November 20, 1924, plaintiff wired defendant as follows:

“Followed Holloway Greenville to Sulphur Springs. Found him selling my merchants. Accept my resignation or wire Sencer stop him my territory. Am claiming commission. Advise Sencer your decision. Wire me your decision Winnsboro, Texas. Home Sat.”

To which defendant replied by telegraph on November 24, 1924, as follows:

“Your wire of resignation last Thursday accepted at face value. Therefore did not send your drawing account check last week. Your account will be balanced and statement mailed you earliest possible date. Please forward your sample case and paraphernalia to Sencer, Park Hotel, Dallas, at once.”

By this exchange of telegrams plaintiff’s employment by defendant was terminated and therefore plaintiff cannot recover damages because defendant did that which he asked it to do.

Plaintiff says he did not intend his. telegram to be accepted as a resignation, but be that as it may. his telegram gave defendant the right to do what it did and it incurred no liability to him in consequence.

The item of $100.00 loss of four days’ time at $25.00 a day by reason of another salesman being put in plaintiff’s territory cannot be allowed, for the reason that plaintiff was allowed a commission on all sale's made in his territory whether made by himself or someone else, and his contention that he could have made $25.00 a day during the four days had another salesman not been put in -his territory is not supported by the evidence.

The' item of $75.00, loss of three days’ time at $25.00 a day, caused by defendant not providing plaintiff with expense money, cannot be allowed, for the reason that there is no evidence that defendant failed to advance plaintiff expense money until after plaintiff tendered his resignation; nor is there any evidence showing that plaintiff could have earned any definite amount during the three days had he 'worked.

“Expected profits from a contract, which are dependent upon contingencies, cannot be allowed for violation of the contract, especially when the proof is general and unsupported.”

Bohn vs. Cleaver, 25 La. Ann. 419.

The item of $53.46, difference in commissions claimed by plaintiff and allowed by defendant on certain sales, cannot be allowed, for the reason that the commission was based on the sale price as claimed by defendant and not on the list price as contended for by plaintiff.

The item of $14.33, cost of telephone conversations and telegrams, cannot be allowed, for the reason that it is not shown hy the evidence that plaintiff was authorized by defendant to incur such expenses and in the absence of such authorization defendant was not liable for them.

The claim of $30.00 for three bonuses of $10.00 each, cannot be allowed, for the reason that the evidence does not show the conditions on which the contests were based in which the commissions are claimed been earned.

Plaintiff testified regarding the contests :

"Q. Examine the document marked plaintiff’s exhibit 30, and say whether or not that is a statement received by you from the company with reference to any result from these s.p-called contests or tournaments.
“A. Yes, sir.
“Q. Have you any other of these bulletins or documents in connection with that tournament that you have been able to find in your papers?
“A. I have those there. Those telling about the tournament.
“Q. In connection with your present testimony, examine document marked plaintiff’s exhibit 30, 31, 32, 33, 34, 35, 36, 37, 38 and state whether or not they represent all of the pages and bulletins that you could find with reference to this so-called tournament.
“A. That is all that I have been able to find, yes, sir. There were some papers that were accidentally destroyed in a fire when I moved from Shreveport, that was pertaining to this tournament and bonuses, etc., that I have not been able to produce.
“Q. Are you able to find through these papers the specific bulletin previous to this one that—
“A. No, sir; you can’t find that on there. That was on the bulletin previous to this one that showed the amount.
“Q. Regardless of the commission to be paid, what was the rule, during the tournament, with regard to the bonuses to be paid to those winning games?
“A. They were to be paid weekly to the winners of the games. In other words, my opponent, if I beat him' in quantity of business, I was to receive a bonus of $10.00 at the end of each week.”

Under this evidence it . is clear that there, are no facts or figures by which the court could determine what if any sum was due plaintiff by defendant on account of bonuses.

Two other amounts of $50.00 each, with which defendant had debited plaintiff’s account, and which were in controversy are eliminated from the case, namely: one a check for $50.00 sent plaintiff and credit for which he had not given defendant, plaintiff in his evidence admits to have received and through oversight failed, to credit defendant with it. The other $50.00 defendant paid for plaintiff’s account at his request and plaintiff admits that he directed the payment and that he had not repaid the amount.

The claim by plaintiff for $25.00 a day dating from the filing of the suit is apparently abandoned. Inasmuch as his employment terminated with the sending of the telegram of November 20, 1924, of course he could not have any claim on defendant for time lost subsequent thereto.

The items of debit making up plaintiff’s claim therefore were not established by the evidence and his demands were correctly rejected.

Defendant, by reconventional demand filed in this court for the first time, seeks judgment against plaintiff for $95.00, money alleged to have been collected by plaintiff from debtors of defendant, and the evidence shows that plaintiff did coilect amounts aggregating this sum.

Defendant did not file its reconventional demand in the trial court and under the pleadings as originally made up all the evidence admitted was admissible. Therefore the pleadings were not enlarged by the evidence admitted to prove that the collections were made by plaintiff, and the pleadings not having been enlarged defendant is not entitled to recover in reconvention.

Rogers vs. Southern Fiber Co., 119 La. 714, 44 So. 442, 121 Am. St. Rep. 537.

Under all the evidence the judgment appealed 'from is correct and therefore it is affirmed.


text:
    No. 2755
    Second Circuit
    SHREVEPORT LONG LEAF LBR. CO., INC., v. WHITE AND DYER
    (March 12, 1929. Opinion and Decree.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Philip H. Mecom, of Shreveport, attorney for defendant, appellant, F. L. Dyer.
    Barnett and Roberts, of Shrevepert, attorney for defendant, appellant, James L. White.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, Shreveport Long Leaf Lumber Company, Inc., sued defendants James L. White and F. L. Dyer to recover judgment against them in solido for $1,393.55 with legal interest thereon from March 1, 1924, until paid.

It alleged that they had entered into a business arrangement whereby houses were to be constructed on land belonging to Dyer and the houses and land on which they stood sold and the net profits of the venture divided equally between the defendants ; that defendant White had charge of the construction of the houses and purchased from plaintiff for account of the partnership building material amounting in price to $1,693.55; that $300.00 was paid on the debt and that a balance of $1,393.55 was owing and due.

He further alleged that the material so sold was actually used in the construction of the buildings erected by the defendants in the venture.

Defendant Dyer answered denying that he was indebted to plaintiff in solido with White or otherwise in the sum sued for or any other sum and denied that he and White were partners of any kind or that the material was purchased for his use or benefit or that of any partnership of which he was a member, and alleged that the material was purchased by White solely for his own use and benefit and that plaintiff was aware of it at the time.

Defendant White answered denying that a partnership existed between him and Dyer, and denied that he, in solido with Dyer or otherwise, owed the debt or any part of it, and denied that the material was bought or used for account of himself or any partnership of which he was a member, and alleged that it was both bought and used solely for account of Dyer.

On these issues the case w;as tried and there was judgment in favor of the plaintiff and against the defendants jointly for the amount claimed and both defendants appeal.

Plaintiff has answered their aippeal and asks that the judgment be. amended so as to condemn them both individually and in solido.

OPINION

Neither defendant disputes that the material was sold and delivered, or that the balance claimed is owing therefor and due, nor does either of them deny that the material was used in the construction of houses by White on land owned by Dyer; but both of them deny liability for the debt and assert that the other alone owes the whole of it.

So that the question before the court for decision is whether either or both of them owe the debt, and if only one of them, which one, or if both, whether they owe it jointly or solidarily.

Defendant J. L. White testified:

“Q. Mr. White, this is a suit brought by the Shreveport Long Leaf Lumber Company against both Fred L. Dyer and yourself in solido for $1,393.55 for lumber and material alleged to have been sold and delivered amounting to that sum, by the Shreveport Long Leaf Lumber Company to the defendants. Have you any knowledge of that transaction?
“A. Yes, sir.
“Q. Just state whether or not you purchased materials and if the amount here is correct?
“A. Yes, sir; I purchased the material in the name of J. L. White, Trustee. I
was representing Mr. Dyer to put the material in the houses that he has since
sold and received money for.
“Q. You purchased these materials from the plaintiff?
“A. Yes, sir.
“Q. Is this account for $1,393.55 correct?
“A. Yes, sir.
“Q. As to balance due?
“A. Yes, sir.
Hs s¡í f¡* í|s
“Q. What did you do with the materials?
“A. It was put in houses that I was building for Mr. Dyer.
“Q. Where were these houses built?
“A. There was one on Caperton street, one on Kingshighway, one on Gilbert street and the balance in Victory Place.
“Q. All in Shreveport?
“A. All in Shreveport.
“Q. Upon whose lots?.
“A. Urpon Mr. Dyer’s lots—F. L. Dyer.
"Q. Did he hold legal title to these lots when the buildings were constructed?
“A. Yes, sir.
“Q. Did Mr. Dyer have knowledge of the purchase made by you?
“A. The accounts were all checked and sent to his office for payment; the invoices were kept in his office after being checked.
“Q. Do you know if he made any payments on the accounts as OK’d and sent there by you?
“A. Yes, sir, he did; when he and I had a final settlement I understood that the Shreveport Long Leaf Lumber ' Company and the Victoria Lumber Company were paid in full. As I say, these accounts were kept in Mr. Dyer’s office and Mr. Miles compiled a list of what was owing, about $25,000.00, and he left these two accounts out of the list.
* * * i* * *
“Q. What connection did Mr. Miles have with Mr. Dyer?
“A. He was Mr. Dyer’s private secretary, and the only man that I could get to see.
“Q. Do you know what became of these houses after they were constructed by you?
“A. I don’t know, because Mr. Dyer, of course, disposed of them and took the money, I suppose. The only one that I was interested in, Mr. Dyer was to get the first $1,000.00 profit that was made and if there was more than that I was to get the next $1,000.00 profit, and any above that was to be divided. He was to receive the first one thousand dollars— ******
“Q. What do you mean by Mr. Dyer being permitted to receive the fir^h $1,000.00 before you participated in the profits ?
“A. We were working under a contract in which he was to receive $750.00 and I was to put up one-fourth of the money, and in October I told him I could not do it, and he said: ‘All right, I will pay all the bills and all the pay-rolis, but I think I would be entitled to the first $1,000.00’ and I agreed to that. .
“Q. Do you mean the first $1,000.00 over and above all expenses—costs?
“A. Yes, sir; I was to get nothing whatever
“Q. That applied to the building of the particular houses in which this material was used?
“A. Yes, sir.”

He further testified that after Dyer got $1,000 out of the net profits he was to get $1,000 out of them and that any balance of net profits remaining was to be divided between .them.

George L. Lilley testified that he was vice president and treasurer of plaintiff and that before extending the credit he had spoken to Mr. White who informed him that there was a working arrangement between him and Mr. Dyer and that he communicated with Dyer who verified the statement. That after the account became due he went to see Mr. Dyer about it who made excuses for the non-payment and gave assurances of payment, and that later he denied liability.

The testimony of Dyer is in effect a general denial of White and Lilley’s testimony, except that he admits that the houses were constructed on land owned by him and contends that White was a contractor in the erection of the houses and should have paid for the material used in their construction and says that he owes him nothing. He admits that he and White had built some houses on a profit sharing basis, under the business name of “J. L. White, Trustee,” and that he had paid the bills incurred in that name for material, but says that they were not the houses into which the material plaintiff sold went. He says that Mr. White was not financially responsible and that was why the houses were built under the title of “J. L. White, Trustee.” While claiming that the houses into the construction of which plaintiff’s material went were constructed by White under contract he does not prove one or any of the facts that usually accompany it, such as registry, making of bond, etc. It seems improbable that if White was insolvent, as Dyer says lie was, the latter would have contracted with him for the erection of the houses without the usual and customary safeguards.

The District’ Judge, who heard the testimony and saw the witnesses testify, in effect held that neither of the defendants had established his theory of the business relations that had existed between them and that each of them owed one-half of the debt; and under all of the evidence we are unable to say that he erred.

Plaintiff in its answer to defendants’ appeal contends that their business relations constituted them commercial partners and that as such they are liable to it in solido.

Article 2825 of the Civil Code provides:

“Commercial partnerships are such as are formed:
“1. For the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture.
“2. For the buying or selling any personal property whatever, as factors or brokers.
“3. For carrying personal property for hire, in ships or other vessels.”

We do not think that the enterprise defendants were engaged in was such as to constitute them commercial partners, and they were, therefore liable each for his virile share of the debt owing to (plaintiff.

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


text:
    No. 2964
    Second Circuit
    WATKINS v. BEESON ET AL.
    (March 12, 1929. Opinion and Decree.)

      R. A. Fraser, of Many, attorney for Roy Duggan, Van Vines and W. M. Cooper, defendants, appellees.
    Boone and Boone, of Many, attorneys for John J. Beeson, defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This was a concursus proceeding under Act No. 244 of 1918, but, for reasons hereinafter stated, it is now an ordinary action of debt.

Plaintiff, John L. Watkins, commenced this action in the District Court of Sabine Parish against the defendants John J. Beeson, H. I. Gindratt, Many Motors Company, Inc., Roy Duggan, W. M. Cooper, and Van Vines, and also against the Louisiana Highway Commission and others not parties to this appeal.

He alleged that Beeson had contracted with the Highway Commission to build certain public roads and had performed his contract and had owing to him by the Commission $25,000.00, more or less; that he had performed labor for Beeson in the construction of the roads for which $88.78 and interest was owing to him for which he had and had registered a claim of privilege within the time and in the manner provided by law; and that the other defendant also had registered in the time and manner provided by law claims of privilege for labor performed or material furnished by them in the building of the roads.

And he prayed that the Highway Commission be required to deposit in the registry of the court whatever amount might be owing by it to Beeson and that the various defendants be required to assert their claims against him and the fund in this action and that he have judgment against Beeson for the amount claimed and that his privilege be recognized.

The Louisiana Highway Commission answered that it owed Beeson on account of the work only $2400.00 and it deposited this sum in the registry of the court and was dismissed.

The several defendants answered and set up their claims, but it is only necessary to mention the claims of those who are parties to this appeal, and they were as follows:

H. I. Gindratt, $18.05 and interest.

Many Motors Company, Inc., $63.60 and interest.

Roy Duggan, $46.60 and interest.

W. M. Cooper, $22.30 and interest.

Van Vines, $147.08 and interest.

There was a trial and personal judgment against defendant' Beeson in favor of the defendants named for the amounts claimed by them and interest thereon.

In respect of the privilege claimed, the court said that none of the debts sued on was such as to carry a privilege, and the asserted privilege was denied.

The defendant Beeson appealed. None of the other defendants appealed nor did any of them answer Beeson’s appeal.

OPINION

Quo ad the judgments in favor of the defendants Gindratt, Many Motors Company, Inc., Roy Duggan, and W. M. Cooper, this court is without jurisdiction of defendant Beeson’s appeal, since each of them is for a sum not over $100.00, exclusive of interest.

Section 29, Article VII, Constitution.

Smith vs. Lowe, 2 La. App. 81.

And our want of jurisdiction cannot be waived by the parties.

Edwards vs. Edwards, 21 La. Ann. 610.

And we must take notice, ex proprio motu, of our want of jurisdiction ratione materiae.

Rogers vs. Goldthwaite, 32 La. Ann. 49.

As only the defendant Beeson has appealed and none of the others has answered his appeal, that part of the judgment that denied a privilege is not before this court.

Louisiana Digest, volume 1, page 579, section 588, verbo “Appeal.”

And the elimination of the question of privilege from the case also eliminates from it its concursus feature and the action is now an ordinary one of debt.

This leaves for determination only the question whether the personal judgment against Beeson in favor of Vines is supported by the evidence.

Vines’ account represents a balance due for the price of gasoline, lubricating oil, tires and other automobile accessories delivered by him to Grant & Brody for account of Beeson. They were subcontractors under Beeson and the materials were used in the operation of automobiles by them in the execution of their subcontract. Vines testified that the account was authorized by Jack Harris and that he made payments on it for Beeson. He also testified that the goods had been furnished at the price charged and that the balance claimed was unpaid. The evidence shows that Beeson did not appear upon the scene of work until the greater part of the building had been done and that Harris was agent on the ground and acted for him. He made up pay-rolls and issued checks in payment for work done or material furnished. Harris authorized accounts in the name of Beeson with other merchants and these other accounts were paid by Beeson.

The District Judge who saw and heard the witnesses testify was of opinion that Vines’ account was an indebtedness of Beeson’s and rendered judgment accordingly. We find no error in the court’s conclusion.

It is therefore ordered, adjudged and decreed that the judgment in favor of Van Vines and against John J. Beeson be and the same is hereby affirmed.

It is further ordered, adjudged and decreed that the appeal of John J. Beeson from the judgments against him in favor of H. I. Gindratt, Many Motors Company, Inc., Roy Dugan, and W. M. Cooper, be and the same is hereby .dismissed for want of jurisdiction ratione materiae.


author: PER CURIAM.

text:
    No. 3235
    Second Circuit
    WEBB v. V. S. & P. RY. CO.
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)

      Thatcher, Browne, Porteous & Myers, and Barnette and Roberts, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   ON APPLICATION FOR REHEARING.

PER CURIAM.

BY THE COURT. An application for rehearing has been applied for by both the appellee and appellant. Appellee asks that a rehearing be granted in order that this Court, may correct its decree by allowing interest from judicial demand, instead of from the date of the judgment. The judgment of the lower court allowed interest only from the date of the judgment. The ease was appealed by defendant, and in this Court the appellee filed a motion to amend the judgment so as to allow interest from judicial demand. Inasmuch as this point was not stressed by counsel for appellee in their brief, we overlooked it. Act 206 of 1916, page 459, specifically provides :

“That legal interest shall hereafter attach from date of judicial demand on all judgments sounding in damages, ex delicto which may be rendered by any of the courts in this State.”

See Caldwell vs. City of Shreveport, 150 La. 469, 90 So. 763.

Under the above cited Act and decision, there can be no controversy over the question as to whether the appellee is entitled to interest from judicial demand and, for that reason, it is not necessary that we grant a rehearing in order to amend our decree in that respect. Our attention having been called to the patent error, we correct it, without granting a rehearing.

Gomila & Company vs. Hibernia Insurance Co., 40 La. Ann. 553, 4 So. 490; Herman Graf vs. Samuel Friedlander, 33 La. Ann. 188.

As to the application for a rehearing filed on behalf of appellant, a further consideration of the case has not convinced us that we erred in the judgment. It is, therefore, ordered, adjudged and decreed that the judgment of the District Court appealed from in this case be amended so as to allow legal interest from judicial demand until the date of its payment; and that in all other respects the judgment be affirmed.

Both applications for a rehearing are refused.

(See original opinion, 9 La. App. 647.)


author: WEBB, J.

text:
    No. 3453
    Second Circuit
    SHERWOOD v. TICHELI
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellant.
    McHenry, Montgomery, Lamkin and Lester, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

An automobile in which plaintiff, Mrs. S. B. Sherwood, her husband, and their three children were riding, was struck by an automobile owned by defendant, Mrs. Catherine Ticheli, which was at the time being driven by defendant’s minor son, and the impact caused Mrs. Sherwood and one of the children, who were sitting on the back seat, to be thrown forward against the back of the front seat, and plaintiff filed this action to recover damages resulting from alleged injuries sustained by her and mental anguish suffered as the result of alleged injuries sustained by the child.

She alleged that defendant’s car was being driven under her direction, and that the collision was due to the negligence of the driver of the car, and that as a result of the collision the plaintiff had sustained a simple complete fracture of the fourth transverse process of the lumbar spine, and a loosening, bruising and displacement of her right kidney, which had caused severe pain and shock, and that her health had been permanently impaired, disabling her to do her household work and to care for her children, and that her child, Mary L. Sherwood, who was sitting on the back seat with her, had sustained serious and permanent injuries, which caused plaintiff mental anguish and suffering, for which the plaintiff claimed damages as well as for the injuries sustained by her.

Defendant pleaded a general denial, and the cause being tried and submitted, judgment was rendered in favor of plaintiff for two hundred; fifty dollars, from which she appeals.

It is conceded here that the evidence established negligence on the part of the defendant’s car, and liability of defendant for the damages sustained, and the only question is, as to the extent of the injuries and amount of damages.

The evidence established that following the accident there were bruises on plaintiff’s limbs and body, causing her to suffer some pain, and that four or five days after the accident she was confined to her bed for several days, ,and disassociating the alleged injury to the spine and kidney and the damages which may result therefrom, from the suffering and disability, and damages resulting from the bruises, the allowance of two hundred and fifty dollars would be sufficient, but it is, of course, conceded that if the spinal column was fractured and the kidney displaced, causing an impairment of plaintiff’s health, such allowance would be inadequate.

Before considering the evidence relative to the extent of plaintiff’s injury, we dispose of the claim for damages for mental anguish suffered by plaintiff as the result of injuries alleged to have been sustained by her child, as the law is well settled that plaintiff cannot recover damages on that ground (Black vs. Carrollton R. R. Co. 10 La. Ann. 33, 63 Am. Dec. 586; Brinkham vs. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458; Bourg vs. Brownell-Drews Lumber Co., 120 La. 1010, 45 So. 972, 124 Am. St. Rep. 448), and while the evidence is conflicting as to whether or not the plaintiff’s spine was fractured, -as well as to whether or not the kidney was displaced, we find that the preponderance of the evidence fails to establish that her spine was fractured, and eliminating the claim for damages for mental anguish suffered by plaintiff as the result of the alleged injuries to her child and for the alleged fracture of the spine, leaves for consideration the evidence relative to the alleged injury to the kidney.

The theory on which plaintiff bases her case, and in support of which evidence was introduced, is that at the time of the accident she received a trauma or blow on her back in the lumbar region of sufficient violence to have displaced the kidney, which was found to be displaced about ten days after the accident, and that plaintiff was normal and in good health prior to the accident, and that thereafter she had been in ill health, and it is argued that the only reasonable conclusion must be that plaintiff’s ill health must be attributed to the accident, and the displaced kidney being sufficient to account for the impairment of her health, it follows that the displacement resulted from the accident.

There was, however, a conflict in the opinions of the experts called by the parties, as to whether or not the kidney was displaced, and the evidence was also conflicting as to the health of plaintiff before the accident, and it being shown that a displaced or movable kidney may and usually does result from other causes than trauma or an external blow, being often found in women who have borne children or persons who have undergone abdominal operations, and that where the displacement results from violence or trauma the subject is usually immediately temporarily disabled, and there will be some indication in the urine of a bruise of the kidney, and that the condition of hydronephosis, which often results from a movable kidney, usually rapidly develops to an acute stage, when the kidney is displaced by trauma, and the evidence further establishing that a displacement or sagging of the kidney would -follow from the condition of hydronephosis, or an abnormal accumulation of urine in the pelvis of the kidney, which would follow from a stricture in the ureter near the opening into the bladder, which stricture would not be caused by a blow on the back, evidence was offered showing that plaintiff had borne children and had undergone abdominal operations, and establishing that plaintiff had not been immediately temporarily disabled, and that there was not any indication in the urine of a bruise of the kidney, following the accident, and that the condition of hydronephosis had not rapidly developed to an acute stage, and also evidence was offered tending to establish that there was a stricture in the ureter near the opening into the bladder, which had caused the condition of hydronephosis, which would account for any displacement or sagging of the kidney.

Conceding that the evidence introduced on behalf of the plaintiff made a prima facie showing, from which it should be logically inferred that the displacement of the kidney resulted from the accident, we do not think the mere fact that the displacement may have resulted from plaintiff having borne children or from abdominal operations, could affect the conclusion, especially in view of the fact that at the time of the operation, from which plaintiff had an uneventful recovery, which was about six months after the birth of her last child, ■ there was not any indication of an abnormality of the kidney, and while it is apparently conceded that a stricture in the ureter at a point near the opening into the bladder, could have caused the condition of hydronephosis, and the displacement of the kidney, which, considered with the circumstance that there was not present any of the usual conditions attending or following a displacement of the kidney by trauma or violence, would overcome the prima facie showing; however, the evidence establishes there was not such a stricture at the time of the trial, in March, 1928, and although there was evidence tending to show that there may have been a stricture in the ureter following the accident, and at the time plaintiff was examined, in October, 1927, the evidence showing that such a stricture would be permanent, the fact that it did not exist at the. time of the trial shows that it did not exist at the time of the accident.

As stated, there is conflict in the opinions of the experts as to whether or not the kidney was displaced, and as to the plaintiff’s condition prior to the accident; we find, however, that the preponderance of the evidence established that the kidney was displaced, and there was an abnormal accumulation of urine in the pelvis of the kidney at the time the examination was made about ten days after the accident, which occurred in October, 1927, and that the condition found at the time had not progressed to any material extent at the date of the trial, in March, 1928, and while there was evidence conflicting with the testimony of the plaintiff that she had not suffered with pain in her back prior to the accident, plaintiff’s testimony was supported by that of the surgeon who had operated upon her about eighteen months prior to the accident and had attended her subsequent to that time, and there is not any evidence whatever in conflict with her testimony that she had been in good health prior to the accident, and that she had been in ill health subsequent thereto, which shows that she had been disabled to some extent in doing her household work, and although it is impossible to determine the violence of the trauma or blow sustained by plaintiff, the evidence shows that the car in which she was riding, which was being driven at a speed of twelve or fifteen miles per hour, was struck on the side by the front of defendant’s car, which was being driven at a speed of twenty-five miles per hour, and. that the force of the impact was sufficient to knock the car in which plaintiff was riding a distance of eight or ten feet, where it landed partially over the curb, and plaintiff being thrown forward from the back seat, where she fell in a kneeling position, it is not unreasonable to assume that her back, at the point indicated by the bruised and swollen place found thereon the morning after the accident, came in contact with some part of the car with great violence, and it being conceded that a trauma or blow on the back in the region indicated by the bruised and swollen place on plaintiff’s back could cause a displacement of the kidney, which, as stated, was found soon after the accident, raises a strong presumption that the displaced kidney was the result of the accident, and the fact that there was not present the usual conditions attending or following such displacement does not necessarily affect the presumption.

The physicians called by plaintiff were of the opinion that the displacement of the kidney resulted from the accident, and while those called by defendant expressed a contrary opinion, an analysis of their opinion will show, we think, that it was based upon their opinion that there was a stricture in the ureter and not upon any conclusion that plaintiff had not sustained a trauma of sufficient force to have displaced the kidney or the absence of the usual conditions attending or following such an injury; but if not, and there is an irreconcilable conflict in the opinions of the physicians called by the parties, the opinion of those called by the plaintiff is entitled to greater weight as it is supported by evidence showing a definite cause for the injury (Woofers vs. Thompson, 10 Mar. (O. S.) 674; Joiner vs. Texas & Pacific Ry. Co., 128 La. 1050, 55 So. 670) ; and we conclude that the plaintiff has established by a preponderance of the evidence that the condition of her kidney found soon after the accident resulted therefrom, and that she is entitled to recover damages for such injury.

Plaintiff, in her petition, fixed the amount of her damages at a large sum, but the evidence does not show that she has suffered constant severe pain or that she has been disabled from attending to her household duties to any great. extent, and while it shows that the injury to the kidney will be permanent, and that she may have to undergo an operation, there is. not any indication of the suffering or disability having increased at the time of the trial, or that the physicians at that time deemed it necessary for her to undergo an operation, and we are of the opinion that an allowance of five thousand dollars will be sufficient to cover the damages for the impairment of her health and partial disability resulting therefrom.

It is therefore ordered that the judgment appealed from be amended and the amount awarded plaintiff be increased to five thousand dollars, and that as amended the judgment be affirmed.


author: ODOM, J.

text:
    No. 3329
    Second Circuit
    TOWN OF PINEVILLE v. BALL
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)

      Lamare Polk, of Alexandria, attorney for plaintiff, appellant.
    Overton and Hunter, of Alexandria, attorneys for defendant, .appellee.
   ODOM, J.

This is a suit by the Town of Pineville against Mrs. Catherine Ball to collect $422.63, the cost of laying a sidewalk in front of her property along the edge of what is designated by the town as Ball Street. The sidewalk was laid 'under Act 147 of 1902, as finally amended by Act 16 of 1922.

Mrs. Ball resists the action on the ground that the so-called “Ball Street” is not in fact a public street, but a private lane owned by her, and that the town authorities in having the sidewalk laid trespassed upon her private property over her protest. The lower court rejected plaintiff’s demands and it has appealed.

OPINION.

The only question presented for our consideration and decision is whether the so-called Ball Street in the town of Pineville is in fact a public street owned by the town, and over which it has jurisdiction to the extent that it may lay sidewalks along its edges and compel the abutting property owners to pay the costs, under Act 147 of 1902 as amended.

If it is a public street, Mrs. Ball must pay the assessment charged against her; if it is not, it is conceded that the town cannot recover the amount claimed.

The only three ways by which a municipal corporation may acquire private property for public streets are by expropriation, purchase or dedication. Admittedly, the town did not acquire this street by either expropriation or purchase. But, it is contended that it was acquired by dedication. Whether it was or not depends upon the facts and circumstances surrounding the case as shown by the testimony adduced on the trial.

That a municipal corporation may acquire property for use as a public street by dedication and that no formal act of dedication is necessary to complete title, is settled beyond question.

Where a property owner, without protest or objection, permits a passageway over his property to be used by the public as a street, and, without protest or objection, permits a municipal corporation in the exercise of its corporate capacity to possess and assume dominion and ownership thereof for and on behalf of the public, and with public funds lay out, grade and maintain it as a public street to the knowledge of the landowner, he will be presumed to have intended to dedicate the property to the municipality for use of the public and will not be heard to say that it is not a public street. The intent to dedicate to public use is one of fact and may be inferred from circumstances.

Donaldson’s Heirs vs. City of New Orleans, 166 La. Rep. 1059, 118 So. 134;

Sheen vs. Stothart et al., 29 La. Ann. So. 656;

De Grilleau et al. vs. Prawley et al., 48 La. Ann. 194, 19 So. 151;

Shreveport vs. Drouin, 41 La. Ann. 872, 6 So. 671;

Bomar vs. City of Baton Rouge, 162 La. Rep. 342, 110 So. 497;

City of New Orleans vs. Carrollton Land Co., 131 La. Rep. 1092, 60 So. 695;

13 Cyc. 437;

13 R. C. L., p. 34.

But, “a plain and positive intention to dedicate is an essential element of dedication.” De Grilleau vs. Prawley and Bomar vs. City of Baton Rouge, supra.

We have searched this record in vain for testimony showing, either that the town of Pineville ever intended to acquire, or that Mrs. Ball or her author in title intended to dedicate this passageway for public purposes. On the contrary, the testimony points conclusively the other way.

Mrs. Ball acquired the property over which this passageway runs from her father, John Milhas, in 1895. Milhas had then owned and occupied it for many years. He was a butcher and conducted a slaughter pen nearby. To afford access to the slaughter* pen from the Main Street, and for his exclusive use, he opened a 16-foot alley along the edge of the property, and for many years closed the ends of the alley by wooden bars. Some thirty, or more, years ago, the bars and the posts decayed and fell down, after which the alley was used, by sufferance of the owner, by the public as a passageway. Por many years, it was called “Milhas Lane,” and later, up to about 1926, it was called “Ball Lane.” Mrs. Ball built six houses on her property, and the occupants and others living farther down the lane, used it for a passageway to Main Street. During all these years, it was at times practically impassable and when work was done to keep it up, such work was done by Mrs. Ball’s husband. However, at one time, several years ago, there was raised by private subscription $100.00, which was used to work it. In the year 1925, A. M. Herndon, who owns property farther down on this lane and who was interested in widening it and having it improved, induced the town of Pine-ville to purchase a strip of land ten feet wide on the opposite side of the lane from Mrs. Ball’s property, so as to widen the lane or street, as it was later called. Herndon then went to Mrs. Ball, and other property owners, soliciting donations to purchase gravel to be used in improving it. Mrs. Ball, thinking that the graveling of the lane or street would enhance the value of her property, contributed $400.00 for that purpose. Mrs. Ball then went to Rembert, the Mayor of Pineville, and proposed to him that, if the town would relieve her of the subscription she had made, she would donate the 16-foot strip of land to the town for a street. The mayor did not then contend that it was a public street, but declined Mrs. Ball’s offer on the stated ground that the town had no funds. He testified:

“I rejected the offer on the ground that we had no money to buy it.”

When Mrs. Ball contributed toward the graveling of the street, her dealings were with Herndon, as an individual, and not With him as agent of the town. Herndon was in no way connected with the town officially. Mr. Rembert, the mayor, was asked:

“You nor the town had no dealings with Mrs. Ball on the subject of graveling this street?”

He said:

“No;”

and,

“You let no contract between Herndon and the town, no advertised contract, the town paid nothing for the gravel?” and he said,
“No.”

There is no evidence that the town ever took over and worked the street. Mr. Downs, former mayor, testified that, during his administration, the town did some work out there in the way of plowing out ditches and put in one bridge over a ditch, but that was not opposite Mrs. Ball’s property, but was farther out. The testimony of Mrs. Ball, Mr. Ball, Louis Hoffman, Wyatt Hoffman, Willie Chapman and Phillip Prank, all of whom have lived on or near the so-called street for many years, is to the effect that the town had never worked the street, but -had, on occasions, used the alley as a dumping ground for rocks taken from other streets. Mr. Dannenberg said that at one time Downs had it worked with slips, but if Downs recalled that, he did not say so. Mrs. Ball, the defendant, testified positively that she had never at any time intended to dedicate her property for use as a public street, but that she had permitted people to use this passageway, as a matter of convenience to her neighbors.

In 1903, a civil engineer made a plat of the town, showing this passageway and he called it “Ball Street,” but it is not shown that Mrs. Ball knew anything about the map and, if she had known about it, that would not be sufficient evidence of an intention to dedicate. If any property was ever sold with reference to this plat, or with reference to this street, the record fails to show it and, in fact, all the testimony shows that for about thirty-five or forty years the opening was known and referred to as “Milhas” or “Ball Lane.”

Mrs. Ball testified, and her testimony is not disputed, that in 1927, when she was notified that the town contemplated the laying of the sidewalks, she consulted an attorney and asked him to enjoin the proceedings, and that her attorney made protest to the town officials and notified them to desist.

We find no testimony ih the record which indicates that Mrs. Ball ever intended to dedicate her property for a public street, and, aside from the testimony of Downs, the ex-mayor, that at one time he had the ditches along the sides of the lane plowed out, there is nothing to show that the town ever intended to acquire the property until- about the time it bought the strip of land ten feet wide on the opposite side of the land and began to lay the sidewalks.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.


text:
    No. 2700
    Second Circuit
    CAMPTI MOTOR CO., INC., v. JOLLEY ET AL.
    (March 12, 1929. Opinion and Decree.)
    Breazeale and Breazeale, of Natchitoches, attorneys for plaintiff, appellant.
    Rusca and Cunningham, of Natchitoches, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff, Campti Motor Company, Incorporated, sued B. E. Childers and Joe Jolley in solido for $.656.82, the sale price of a Fordson tractor. Joe Jolley filed an exception of no cause of action which was sustained by the court.

Childers made no appearance and judgment was rendered against him by default for the full amount, and he did not appeal. Plaintiff appealed from the judgment sustaining Jolley’s exception of no cause of action.

The facts, as disclosed by the petition, are that on May 21, 1925j plaintiff sold to B. E. Childers a Fordson tractor for $656.82, and took his note for said amount, secured by chattel mortgage on the tractor. The note and act of mortgage are regular in form and are attached to and made part of the petition. Childers did not pay the note and there was judgment against him, and, as he did not appeal, that part of the judgment is final.

As a cause of action against Joe Jolley, plaintiff alleged that at the time the tractor was sold to Childers, he was leasing a plantation from the Exchange Bank and needed the tractor in his planting operations, and that it was understood that if Childers did hot continue to lease the property, he would have no use for the tractor “and to pi'otect your petitioner in the sale of the same and as part and parcel of the agreement Joe Jolley and Childers entered into for the benefit of the plaintiff the following agreement:

Powhatan, La.,
May 22', 1925.
State of Louisiana,
Parish of Natchitoches.
This agreement made by and entered into between B. E. Childers, of Powhatan, La., as party of the first part, and Joe Jolley, of Powhatan, as party of the second part: Agreed that Joe Jolley, party of the second part, will take over Ford-son Tractor Motor No. 367757 this day purchased from the Campti Motor Company, Inc., Campti, La., on December 1, 1925, and assume all encumbrances thereon; provided that it becomes necessary that B. E. Childers, party of the first ¡part, vacate the present farm he now occupies.
Signed B. E. Childers,
Party of the First Part.
Joe Jolley,
Party of the Second Part.
Witnesses:
J. J. Maricelli E. C. Tanner.

In Article 5 of plaintiff’s petition, it is alleged that Childers has vacated said plantation and has no use for the tractor.

The defendant Joe Jolley did not sign the note sued on, either as principal, surety or endorser, nor did he in any way, according to the note and chattel mortgage attached, make himself a party to the sale by plaintiff to Childers. But plaintiff alleges that it was understood that Jolley was to take over the tractor and relieve Childers of the debt in- case Childers did not continue to lease the plantation and that, otherwise, it, the plaintiff, would not have sold him the tractor, and that such agreement, was contemporaneous with and a part of the contract of sale; and it attaches to and makes a part of its petition the contract between Childers and Jolley quote;! above.

It is elementary that in determining whether a petition sets out a cause of action, the petition must be construed as a whole, and that the document attached to and made a part of it must be construed with it; and further, that the pleader’s conclusions of the law are not to be considered as allegations of fact.

Defendant’s exception of no cause of action is grounded upon the proposition that construing the petition as a whole and in connection with the documents attached and made a part thereof, it is clear that there was no privity of contract between plaintiff and the defendant Jolley, and that Jolley did not at the time of the sale to Childers, nor has he since, made any stipulation in favor of plaintiff, a third person.

The documents themselves show that Jolley was not a ¡party to the contract between plaintiff and Childers. On the face of the papers, that contract was a straight out sale of the tractor to Childers. Plaintiff alleges that there was a ^ contemporaneous agreement entered into, and to show that, it attaches to and makes a part of its petition the contract between Childers and Jolley. But there is nothing about that contract which indicates that it was executed contemporaneously with the act of sale and mortgage; to the contrary, the note and the chattel mortgage are dated May 21, 1925, and the contract between Childers and Jolley is dated May 22—the following day. We must assume that these contracts were perfected on the dates which the documents bear.

Plaintiff now seeks to hold Jolley by virtue of and through this contract between Childers and Jolley, dated May 22nd. That contract speaks for itself and shows clearly that Yt was not made for the advantage of plaintiff. It provides that “Joe Jolley, party of the second part, will take over Eordson Tractor Motor No. 367757, this day purchased from the Camp-ti Motor Company, Inc., Campti, La., on December 1, 1925, and assume all encumbrances thereon; provided it becomes necessary that B. E. Childers, party of the first part, vacate the present farm he now occupies.”

This is a contract between Childers and Jolley; the plaintiff is in no sense a party thereto. What Jolley agreed to do and all he agreed to do was to take over the tractor under certain conditions, and to “assume all encumbrances thereon.” That is not a stipulation pour autrui, but one made .solely for the benefit of Childers, one of ■ the contracting parties. The' case does not fall under Article 1890 of the Civil Code, which provides that “a person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract or onerous donation.”

There is no stipulation in the contract for the advantage of the plaintiff or anyone else. The obligation which Jolley assumed in the contract ran to and in favor of Childers alone.

In the case of Baker vs. Bowie Lumber Company, 151 La. 598, 92 So. 129, the Court held that a stipulation in a conveyance of land whereby the vendee assumed the liabilities of the vendor as part of the purchase price was for the benefit of the vendor, and that one having a claim against the vendor, could not avail himself of the assumption.

In the case of People’s Homestead Ass’n vs. H. L. Garland, Jr., 107 La. 476, 31 So. 892, the Court held that the assumption in an act of sale of a city tax is not a stipulation pour autrui for the benefit of the city, but is a matter purely personal to the contracting parties and forming part of the consideration of their contract.

In a very early case, that of Tiernan et al. vs. Martin et al., 2 Rob. 523, it was held that “a stipulation that a certain sum shall be paid to a third person towards the extinguishment of a debt due to him from one of the ¡parties to the contract is not properly a stipulation pour autrui. It is for the exclusive benefit of the stipulating party.”

See Brandon vs. Hughes, 22 La. Ann. 360; Allen & Currey Mfg. Co., Ltd., vs. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980, 68 L. R. A. 650, 104 Am. St. Rep. 525, 2 Ann. Cas. 471; Salem Brick & Lbr. Co. vs. L. LeSassier et al., 106 La. 389, 31 So. 7.

The contract which Childers and Jolley entered into on its face is one purely personal to themselves, and in their own interests, and in ño sense intended for the benefit of the plaintiff. Jolley promised to pay Childers’ debt, under certain circumstances; biit that was a promise to Childers, not to plaintiff, and therefore is not within the provisions of our Civil Code, Article 1890.

Cragin vs. Lovell, 109 U. S. 194, S S. Ct. 132, 27 L. Ed. 903.

The assumption of Childers’ debt by Jolley did not relieve Childers of his liability to (plaintiff. It merely gave to him a right to proceed against Jolley.

For the reasons assigned, the judgment sustaining the exception of no cause of action is affirmed, at appellants’ cost, in both courts.