author: REYNOLDS, J. ODOM, J.

text:
    No. 3277
    Second Circuit
    MOORE v. DOUGHTIE ET AL.
    (December 19, 1929. Opinion and Decree.)
    (January 31, 1930. Opinion and Decree on Rehearing.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    McHenry, Montgomery, Lamkin & Lester, and George Gunby, of Monroe, attorneys for defendants, appellees.
   REYNOLDS, J.

By this action Ross Moore seeks to recover judgment against J. E. Doughtie, T. S. Sholars, and Rusher Culver, in solido, for $1,148, or, in the alternative, judgment against each of them for $382.66%, with legal interest thereon . from judicial demand.

He alleges that they formed a partnership for the purpose of drilling for oil and gas, and to that end leased from him, at the price of $500 a month, under a contract terminable at their will, a drilling rig.

He further alleges that the lease was terminated on December 21, 1925, and that the price of the lease for the months ending November 21, 1925, and December 21, 1925, is unpaid.

He further alleges that he was compelled to have the rig torn down (presumably to enable him to remove it from where defendants had erected it) at an expense to himself of $72 for labor and of $24 for the premium on a policy of indemnity insurance against liability under the Workmen’s Compensation Law for injuries that might be accidentally sustained by workmen engaged in tearing down the rig, and that he was compelled to pay to Ouachita Iron Works, Inc., $17 for repairs made hy it at the instance of defendants on a part of the rig, and was also compelled to pay $35 for repairs to another part of the rig, to-wit, a pump, which repairs were rendered necessary by careless use of the pump by defendants.

The contract of lease is attached to and made part of the petition.

Various exceptions and pleas were filed by the defendants, and they also filed answers wherein, after reserving the benefit of their pleas and exceptions, should they be overruled, they denied that they were either ordinary or commercial partners.

The defendant Doughtie alleged that he only agreed to furnish a certain amount of money for the use of the enterprise, and that he had provided the amount agreed, and was not liable for any of the obligations sued on.

Defendants Sholars and Culver alleged that the lease was terminated on October 21, 1925, and the rig returned to plaintiff on that date, and was not used by them thereafter, and that they were not indebted to plaintiff on account of the lease price, and they denied that they were liable for the items of $72 and $24 and $17 and $35, or any of them.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against defendant T. S. Sholars for $382.66, with legal interest thereon from December 21, 1925, until paid, and in favor of the plaintiff and against defendant Rush Culver for $382.66, with legal interest thereon from December 21, 1925, until paid, and in favor of defendant J. E. Doughtie and against the plaintiff, rejecting plaintiff’s demand and dismissing his suit as against Doughtie. From‘this judgment the plaintiff appealed.

Defendants Sholars and Culver have answered the appeal, and allege that the judgment is, as to them, erroneous, and ask that it be reversed and plaintiff’s suit dismissed.

OPINION

The view that we take of the merits of the case renders it unnecessary, we think, for us to consider any of the pleas or exceptions filed by the defendants.

The first question to be determined by us is whether or not the defendants were commercial partners.

Whether a partnership is a commercial partnership, under article 2825 of the Civil Code, or an ordinary partnership, under article 2826 of the Civil Code, depends on the intention of the parties and the nature of the business carried on under the agreement.

The partnership was created for the purpose of leasing land for the purpose of seeking the discovery of oil and gas thereon by boring wells and selling such oil and gas if discovered, and this was the nature of the business actually conducted by it; and the drilling rig the partnership leased from the plaintiff was an instrumentality for use to that end.

The engaging in this business did not constitute the defendants commercial partners. American National Bank v. Reclamation Oil Producing Association, 156 La. 652, 101 So. 10; Phillips v. Ray, 1 La. App. 584.

We do not deem it necessary to determine whether or not defendant J. E. Doughtie was only a partner in commendum, as asserted by him, for the reason that the evi-. denee shows that he withdrew from the partnership on October 21, 1925, and that plaintiff was informed of that fact.

J. E. Doughtie testified:

“Q. Mr. Doughtie, what took place in the office of Mr. Tom Sholars on or about the 21st of October, with respect to your connection ■ with the drilling of this well down there at Cane Hill, or Coco Bend?
“A. They sent for me to come to Mr. Sholars’ office to meet them, and when I got there they said that they wanted to pay Mr. Moore five hundred dollars for a month’s rent on the rig, and I first said that I wouldn’t do it. That was for the reason that I had paid all of the five hundred dollars the month previous. Then . they wanted me to go on a note for five hundred dollars, and I said: ‘No, I won’t do it, but I will give you my third, or fourth, or whatever I am responsible for, in cash,’ which I did, and when 1 gave it, I took Mr. Moore’s receipt for it, and I . then told Mr. Moore that, as far as I was concerned, ‘I am through with that whole business down there, and you needn’t look to me for any more rig money, and as far as I am concerned you can take your rig.’ That is whac I said to him in the office, and I repeated it to him on the street.’’

Mr. Moore himself, testified:

“Q. All right now, who paid you the October rent?
“A. Mr. Doughtie paid a third in cash and Mr. Sholars and Mr. Culver gave me a note for the balance.
“Q. When was that settlement made?
“A. That was on October 21st.
“Q. Where was that done?
“A. In Mr. Sholars’ office, in the presence of Mr. Hal Goodwin.
“Q. And who all were present?
“A. Mr. Doughtie, Mr. Moore, Mr.. Culver, Mr. Sholars, and Mr. Goodwin. * * *
“Q. Isn’t it a fact that Mr. Doughtie told you at that time, sir, that, as far as he was concerned, he was out of the whole thing?
“A. Mr. Doughtie told me that he had been paying out all of the bills and was getting tired of it, and I told him that I didn’t know anything about it. That was while we were going down the stairs, and he never told me he was out of it. * * *
“Q. You deny that he said lie was out of the transaction?
“A. Well, I won’t deny it. I think Mr. Doughtie made this remark to me. He said: T have put up money until I am tired of it, and I won’t put up any more.’ Now I believe Mr. Doughtie made that statement to me."

We are of the opinion that Mr. Doughtie withdrew from the partnership on October 21st, and that the plaintiff was informed of it at the time.

Mr. Culver testified:

‘‘Q. What, if anything, was said up there between Mr. Doughtie' and Mr. Moore that day about Doughtie being through with that contract? Just tell us fully and in detail how much you know?
“A. Mr. Doughtie was very much put out, apparently, about the money he had put in for the drilling of this well down there, and he insisted that he would go no further and pay no further money after paying this, and that we could go ahead and do as we wanted to do with the thing but that he didn’t want anything further to do with it, and that he wouldn’t put up any more money. I do not say that I can give you the exact words that Mr. Doughtie used, but that is the substance of what he said, and it was so understood by Mr. Moore and all of the gentlemen present there.
“Q. What was Mr. Moore’s attitude about that matter?
“A. My understanding of it was, that Mr. Moore was in accord; certainly he put up no objections toward Mz. Doughtie’s actions in getting out and quitting. * * *
“Q. Now what subsequent negotiations were carried on, and by whom, concerning this lease?
“A. Mr. Sholars and I, knowing that Mr. Doughtie was going out, took the matter up with Mr. Moore and said to Mr. Moore that we had several prospects in view, and that we hoped to be able to sell enough of these leases down there to take care of the expense, inasmuch as Mr. Doughtie was going out and Mr. Longino didn’t seem to take much of an interest further, to sell enough to pay him up for the rig and finish the well. It was with that understanding that the rig was left there. My own understanding of it was that it was a modification of the old contract, Doughtie getting out and Mr. Sholars and I going ahead under that arrangement with Mr. Moore. We had several negotiations, and I think the time was extended on two or three occasions that way, and I know that we spent time and money in trying to effect the sale of these leases so as to pay Mr. Moore.
“Q. About how many times did you talk with Mr. Moore subsequent to October 21st?
‘‘A. Two or three times.
“Q. Was Mr. Doughtie present on these occasions?
“A. No.
“Q. Did Mr. Moore, or did he not, acquiesce in the suggestions made by you and Mr. Tom Sholars?
“A. Yes, he acted with us; we told him that if he got a job, why, he could take his rig; that if the rig would be of any use to him, to go ahead and take it but that if he didn’t get another job, then the rig might as well be down there as anywhere else. My memory is that the rig was not used at all after October 21st. * * *
“Q. Did you hear, at any time, Mr. Ross Moore, in that meeting up there in Mr. Sholars’ office, told by Mr. Doughtie that the contract concerning this drilling rig was at an end and that he could go there and get his drilling rig?
“A. I don’t remember the exact words, that were used, but I did hear him make Mr. Moore acquainted with the idea that he, as far as that contract was concerned, was through with it, and that Mr. Moore would have to look to other people from then on.”

Mr. Sholars testified:

“Q. Do you recall what, if anything, was said at that settlement by Mr. Doughtie to or in the presence of Mr. Moore concerning the termination of his relations with that affair?
“A. -I distinctly remember that we arranged it with considerable trouble. I saw Mr. Doughtie and he finally agreed to assist us on that five hundred dollars, but, instead of signing a note to permit us to arrange for the five hundred dollars, he said that he would prefer to go ahead and pay his in cash, and my recollection is that it was generally discussed and that it was stated by him that that was just as far as he was going; that that was the end of his contribution or his subscription to that venture.
“Q. Mr. Moore was present at that time?
“A. Yes, sir.
“Q. Do you recall whether or not he stated that to Mr. Moore?
“A. We were all there; it was not a question of each of us being in different portions of the room; we were all right there together, and any remark addressed to one of us was addressed to all of us.
“Q. Isn’t it a fact that you persuaded Ross Moore to leave this rig on there under the terms of this contract until you could see whether you could put that deal over?
“A. Not only that deal, but in Shreveport and everywhere; we urged him to leave it there. * * *
“Q. And who asked Ross Moore to leave that rig down there, you and Rush Culver?
“A. Mr. Culver and myself, yes. * * *
“Q. All right, I will ask this question. Under what contract were the negotiations between you and Rush Culver and your friends, on the one hand, and Ross Moore on the other hand, being carried out?
“A. Subsequent to the payment of the 21st of October?
“Q. Yes?
“A. It would be very hard for me to say what contract it was, because this contract that we had there itself cancelled itself out. I was afraid he would go and get the rig, and both of us undertook to induce him to leave it there; I don’t know that we had any contract about it staying there. * * * ”
The defendants Sholars and Culver having induced the plaintiff, Ross Moore, to leave his rig in their possession after October 21, 1925, they owe him for the lease price of it thereafter.
However, not being commercial partners, they are not bound in solido for the price, but only each for his virile share.
We consider the items of $35 and $17 for repairs to the rig properly chargeable to Sholars and Culver. The repairs were rendered necessary by injury done to the rig while it was in their possession. But we do not consider them liable for the items of $72 and $24. It is not shown that Culver and Sholars had agreed to return the rig in a dismantled condition, and, in the absence of such an agreement, they are not liable for the cost of taking it down. Neither are they liable for the cost of the premium on the policy of indemnity against liability under the Workmen’s Compensation Act for injuries to or death of workmen while engaged in dismantling the rig. This expense was for the indemnity of Moore personally.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to increase the amount of the award to the plaintiff against defendant T. S. Sholars from $382.66, with legal interest thereon from December 21, 1925, until paid, to $552, with legal interest thereon from December 21, 1925, until
paid, and so as to increase the amount of the award to plaintiff against defendant Rush Culver from $382.66, with legal interest thereon from December 21, 1925, to $552, with legal interest thereon from December 21, 1925; and that, in all other respects, the judgment appealed from be affirmed.

ON REHEARING

ODOM, J.

The defendants Doughtie, Culver, and Sholars leased a drilling rig from the plaintiff, Moore, agreeing to pay ■ therefore a monthly rental of $500; the contract being in writing. Alleging that defendants had failed to pay the rental for two months, plaintiff brought this suit on the contract, praying for judgment against them in solido on the theory that defendants were commercial partners, and, in the alternative, if the court should hold that there was no commercial partnership but an ordinary one, then that he be awarded judgment against each of the defendants for his virile share of the amount due.

We found that Doughtie, one of the lessees, had withdrawn from the contract and had been released on October 21, 1925, up to which time all rentals on the rig were paid, and that he was not liable for rentals accruing subsequent to that date, and rejected plaintiff’s demands as to him.

We further found that, after Doughtie withdrew, Culver and Sholars held the rig under a new contract or deal, and rendered judgment against each of them for one-half o.f the amount due. Culver and Sholars applied for a rehearing, and alleged as errors:

“1. That, due to inadvertence and a mathematical error in calculation, the amount adjudged to be due by each of your appearers is stated to be $552.00, which said amount, in accordance with the reasons given in said opinion, should correctly be $526.00;
“2. That the Court herein is in error in that it has rendered judgment based on a cause of action different from that sued upon by plaintiff and set forth in the petition;
“3. That the Court is in error in that it has rendered judgment against your appearers in amounts in excess of that alleged in the petition to be due by them and demanded in the prayer thereof.”

The first error complained of is patent. The writer of the opinion erred in his calculation. We could and would have corrected this error without granting a rehearing; our attention having been called to it. The rehearing was granted, however, in order that we might further consider the second and third alleged errors, to-wit, whether the court was warranted in granting judgment against Culver and Sholars under the new contract or deal, when none such had been alleged or mentioned in plaintiff’s petition.

Plaintiff grounded his demand upon a written contract, to which Doughtie, Culver, and Sholars were all parties as lessees, and it is contended by counsel for Culver and Sholars that, in as much as plaintiff based his cause of action upon that contract, he can recover on no other.

No citation of authority is necessary to support the general propositions that a plaintiff cannot recover on a cause of action not alleged; that he cannot be permitted to establish by proof a cause of action not alleged in the petition without the consent, express or implied, of defendant; that what a party does not allege he cannot prove; and that, if a plaintiff declare on a written contract, he. cannot give in evidence one by parol. These general propositions are supported, not only by the Code of Practice, but by an unbroken line of decisions from our earliest jurisprudence down to date.

But to the above general rules there is this exception, that under a prayer for general relief, as in this case, the character of the action may be changed by the introduction of. testimony without objection. We know of no rule more firmly established in our system of pleading and practice than this, that the effect of admitting testimony not admissible under the pleadings, without objection, is to enlarge the pleadings, and that, although the testimony thus received without objection be contrary to or beyond the allegations contained in the pleadings, the adverse party is bound by its effect; that, unless the testimony when offered is objected to and a bill reserved, it will be .considered as responsive to an allegation in an amended petition filed with the consent of the opposite party. Powell v. Aiken & Gwinn et al., 18 La. 321; England v. Gripon, 15 La. Ann. 304; Draper v. Richards, 20 La. Ann. 306; Fontenot v. Manuel, 46 La. Ann. 1373, 16 So. 182; State v. Lundie & Riggs, 47 La. Ann. 1596, 18 So. 636; Bell v. Globe Lumber Company, Ltd., 107 La. 725, 31 So. 994; Wells et al. v. Blackman, 121 La. 394, 46 So. 437; Parish School Board v. Alexander, 125 La. 808, 51 So. 906; Houston River Canal Co. et al. v. Reid, 127 La. 630, 53 So. 887; Blodgett Const. Co. v. Board of Com’rs, 153 La. 623, 96 So. 281.

Testimony with reference to a new or subsequent contract between plaintiff, on the one hand, and Culver and Sholars on the other, was clearly inadmissible under the pleadings. But Culver and Sholars were called as witnesses, and, without objection by their counsel, testified that, after Doughtie withdrew from the original contract, they induced plaintiff to let them keep the drilling rig, as they still had hopes of raising funds with which to complete the well which they had started. At page 56 of the record, Mr. Culver stated that Doughtie withdrew from the contract, and, on being asked, “What was Mr. Moore’s attitude about that matter?” he replied:

“My understanding of it was that Mr. Moore was in accord; certainly he put up no objections toward Mr. Doughtie’s actions in getting out and quitting.”

The testimony abundantly shows that Doughtie withdrew with the consent of all parties. The plaintiff, Moore, on direct examination, seemed to be unwilling to admit that Doughtie had withdrawn and been released, but on cross-examination was asked specifically whether he denied that he was, and said that he would not deny it. We held in our original opinion that the contract entered into in July was brought to an end on October 31st, and, further, that a new contract was made between the plaintiff, on the one side, and Culver and Sholars on the other. That finding is amply supported by the record. On page 57 of the record, Mr. Culver was asked:

“Now what subsequent negotiations were carried on and by whom concerning this lease?
“A. Mr. Sholars and I, knowing that Mr. Doughtie was going out, took the matter up with Mr. Moore and said to Mr. Moore that we had several prospects in view, and that we hoped to be able to sell enough of these leases down there to take care of the expense, inasmuch as Mr. Doughtie was going out and Mr. Longino didn’t seem to take much of an interest further, to sell enough to pay him up for the rig and finish the well. It was with that understanding that the rig was left there. My own understanding of it was that it was a modification of the old contract, Doughtie getting out and Mr. Sholars and I going ahead under that arrangement with Mr. Moore. We had several negotiations and I think the time was extended on two or three occasions that way and I know that we spent time and money in trying to effect the sale of these leases so as to pay Mr. Moore.”

Mr. Sholars gave similar testimony with reference to the new arrangement. Counsel for Culver and Sholars was present and offered no objection when this testimony was given.

Counsel for Culver and Sholars says in brief that he was not permitted to cross-examine plaintiff with reference to the new arrangement. Our examination of the record shows that counsel made no effort to cross-examine plaintiff on this particular point. Plaintiff was the first witness on the stand, and, as shown by page 3 of the record, was asked by his attorney:

“Now just state what your contract was with Mr. Rush Culver, Mr. T. S. Sholars, Mr. J. E. Doughtie and Mr. A. H. Longino?”

Counsel for defendants Culver and Sholars urged the objection that the testimony was objectionable as not being the best evidence, which objection was sustained.

As the trial progressed, it developed that Culver and Sholars had signed a written cancellation of the lease and delivered the rig back to plaintiff on December 21st. Counsel sought to prove by plaintiff that his clients had repeatedly told him prior to that time that he might take the rig back; the purpose of this testimony being to show that the contract of lease was terminated on October 21st, when Dough-tie withdrew. Counsel for plaintiff had the evidence excluded on the ground that the written release, signed by Sholars and Culver on December 21st, was the best evidence. The testimony last mentioned had no reference to the original lease contract, but to the written release of the rig signed by Culver and Sholars.

Counsel for Culver and Sholars had ample opportunity to cross-examine Moore with reference to the new arrangement because, while plaintiff was on the stand, he was asked why he allowed the rig to remain on the lease after Doughtie withdrew, and he said that he did so because Culver and Sholars requested him to do so. On page 24 of the record, plaintiff said:

“They (referring to Culver and Sholars) requested me to leave it there and give them some more time. They were trying to promote the proposition and wanted me to leave the rig there until they saw what they could do on it.”'

He further stated that the rent from October 21st to November 21st was not paid when due, and that he saw Culver and Sholars about it because they had requested him to let them retain the rig. The testimony, therefore, with reference to the new arrangement between the parties, came from the plaintiff, and counsel for Culver and Sholars could have, if he had seen fit, cross-examined plaintiff on that point, but made no effort to do so, nor did he object to the testimony when offered. Mr. Culver and Mr. Sholars were later called to> the stand as witnesses .-'in their own behalf, and gave testimony with reference to the new contract, as above stated. This testimony was voluntarily given, and no objection whatsoever was made by any one. All such testimony could have been excluded on objection, but, the same having been admitted without objection, the parties are bound by it. The pleadings have been so enlarged that the court is fully warranted in rendering such judgment as the testimony justifies. The testimony thus admitted without objection has so enlarged the pleadings as to set out a new cause of action. In a supplemental brief filed by counsel, he quotes the following from the case of Mazureau v. Morgan, 25 La. Ann. 281:

“When the' contract is proved, it is the law between the parties, and the parties must succeed or fail according to the terms of that contract. The court is not at liberty to substitute another, based upon the presumed assent of the parties.”

A reading of that opinion will disclose that plaintiffs brought suit for their fee on a contract which the court held to be contrary to an express prohibitory law. Their contract being illegal, they could not recover, of course, whether they had based their cause of action upon a written contract. or a verbal one. The court in that case said, however, that, if plaintiffs had sued on a contract and had failed to prove it, but had proved without objection the value of their services rendered, they could have obtained judgment upon a qiuantum meruit.

For the reasons assigned, it is therefore ordered, and decreed that our former judgment be reinstated and made the final judgment of this court, except as to the amount stated to be due by each of the parties, which amount is reduced from $552 to $526.

DREW, J., takes no part.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3802
    Second Circuit
    JONES v. OUACHITA BAKING CO.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    (October 7, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellee.
    George Wesley Smith, of Rayville, and Gordon Boswell, of New Orleans, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued for damages caused by the collision of a bread wagon belonging to defendant with a motorcycle that plaintiff was riding. He alleges:

(1) That he was riding a motorcycle on Gordon avenue going south and keeping well to thp right-hand side of the street.

(2) That he was traveling at a moderate rate of speed and had practically crossed Pargoud street when the truck, going north on Gordon avenue at a rapid and reckless rate of speed, swerved suddenly to the left, without any warning, and struck your petitioner on his left leg and struck the motorcycle just in the rear of the front wheel, throwing your petitioner onto the curb and inflicting injuries upon him.

(3) That Kirby, the driver of the truck, turned to the left without giving the signal required by ordinance of the city of Monroe.

(4) That he was driving in a reckless manner and exceeding the speed limit of the said ordinance.

(5) That the said Kirby was not keeping a lookout and did not see plaintiff until the moment of the collision.

(6) That the said' Kirby negligently “cut the corner” in making a left turn and that, had he made the left turn in a careful, prudent, and lawful manner, he would have missed plaintiff entirely and the accident would have been averted.

I-Ie prays for judgment in excess of $9,-000 for injuries received, medical bills, etc.

Defendant alleges that its driver was driving at a safe sp'eed, keeping the proper lookout and watch; was exercising due care and caution and had given the proper signal. He alleges that the collision, as set out by plaintiff, was due entirely to the carelessness of plaintiff; tnat plaintiff was driving his motorcycle at a terrific rate of speed and in disregard of all commonsense rules of traffic, as well as the traffic laws of the city of Monroe; that plaintiff was not keeping a proper lookout and watch ahead and that he approached the intersection of Pargoud and Gordon at a rate of speed in excess of 30 miles per hour and negligently and carelessly collided with the truck of defendant; further alleges that defendant’s truck approached the intersection at a rate of speed of less than 15 miles per hour and that the driver of the truck gave the proper signal for a left turn, reduced his speed to less than 10 miles per hour, when the motorcycle crashed into the truck; alleges that if plaintiff was injured, he sustained such injuries as the result of his own negligence.

The Central Service & Storage 'Company, Inc., intervened in the suit, setting up that they were the employers of plaintiff and had paid him compensation under the Workmen’s Compensation Act and praying for judgment out of the amount recovered by plaintiff equal to the amount they had paid him as compensation, together with doctors’ bills, etc.

The case went to trial on these issues and there was judgment in the lower court in favor of plaintiff for the sum of $2,500, and ordering $680.95 out of that amount to be paid to the Central Service & Storage Company, Inc., by preference and priority over all other persons. From this judgment the defendant has appealed and plaintiff has answered the appeal praying that the judgment of the lower court be amended by increasing the amount to that amount sued for.

The truck driver was employed by the defendant, was driving its truck and acting within the scope' of his employment at the time of the accident. Therefore, if he was negligent and caused injury to plaintiff, defendant is liable.

Plaintiff was traveling south on Gordon avenue on a motorcycle with a carriage attached. He was on the extreme right-hand side of the street and traveling at a rate of speed between '25 and 30 miles an hour. Defendant was traveling north on the same street at a rate of speed of about 25 miles per hour, until he reached the intersection of Gordon and Pargoud streets, when he reduced the speed of his truck to about 15 miles per hour in order to make the left-hand turn. The rate of speed of either vehicle has no bearing on the case as the speed had nothing whatsoever to do with the accident.

Plaintiff saw defendant’s truck about a block before it reached the intersection and was watching it all the time, and, when he reached the intersection, he entered it before the truck had yet reached it. Plaintiff was nearly across the intersection when he was 'struck — the testimony and the signed statement of the defendant driver being that he was struck when about 6 feet from the southwest corner of the intersection of the two streets, clearly past the center of the intersection.

The defendant driver claims to have signaled for a left turn when 50 feet from the intersection. Plaintiff claims to have been watching the truck at that time, but did not see any such signal. However, that is not material to the case, for plaintiff reached the intersection first and had the right to cross and had crossed into what should have been considered a place of safety so far as this truck was concerned--had the truck driver obeyed the law of the road and the ordinance of the city of Monroe. The truck driver testified that he did not see the plaintiff until he was in the act of colliding with him. He does not give any reason for not seeing him and we know of none. They were traveling in opposite directions on the same street and the evidence shows that there were no other cars traveling on that part of the street at that time. There was nothing to prevent the truck driver from seeing plaintiff, and, if he had been keeping a proper lookout, he would have seen him. It was his duty to keep such a lookout, and he failed in that duty which the law has fixed.

On reaching the intersection, the truck driver, instead of keeping to the right in making a left turn, “cut the corner,” driving his truck south of the center of the intersection and within 6 or 8 feet of the southwest corner of the intersection. He gave as his reason for cutting the corner that the other part of the street was rough and he was following a beaten path. The law of the road and the ordinance of the city of Monroe require one in making a left turn to travel to the right of the center of the intersection and not to the left of the center of the intersection. Had the truck driver obeyed the law of the road and the ordinance of the city of Monroe, there would not have been an accident for the plaintiff was at the time of the accident within 6 or 8 feet of the south side of the intersection and almost across. Plaintiff had a right to expect that the defendant driver would obey the laws of the city and of the road, and the failure of the truck driver to obey the laws, together with his failure to keep a proper lookout on entering an intersection, was the proximate cause of the accident, and there was no negligence on the part of plaintiff.

The lower court held the defendant liable for the damage to plaintiff, and in that respect the judgment is correct.

The plaintiff is a negro, 23 years of age, and was making $17 per week engaged, in manual labor, washing cars and working around a 'filling station. He suffered a complete dislocation of the knee — that is, the foot was turned around with the toes facing the rear, using the knee as a hinge. He suffered intensely. He remained in the sanitarium under the care of physicians from January 29th until the 16th of March, and was last treated on the 7th of May. All the doctors testify that he will suffer a 40 per cent loss of the use of his leg, which is permanent, and that it is necessary for him to have two other operations, one, to cure an injury to his wrist, which was fractured, and another to remove a growth caused by the accident on his leg, which growth has developed into a tumor. They testify that the operations will cost around $200; that his kneecap is displaced upward about two inches and has several large scars on his leg, due to incisions in treating the knee. The knee is 25 per cent larger than the uninjured one.

If plaintiff is not entirely incapacitated from doing manual labor, he is nearly so, and no doubt it will be difficult for him to secure employment of any kind that he can perform.

The testimony of plaintiff was very refreshing. He made no attempt to exaggerate his injury or his suifering, and in fact did not Testify about his suffering being as great as other disinterested witnesses who observed' him during the time he was in great pain.

A young negro only 23 years of age, earning his living by manual labor with earning power of $17 per week, who has been injured as severely as plaintiff, is not adequately compensated by a judgment for $2,500. He will always have a 40 per cent loss of the use of his leg, which almost if not entirely incapacitates him from doing any manual labor. A judgment for $4,000 in this case will not be excessive.

The judgment of the lower court in favor of interveners, Central Service & Storage Company, Inc., was not appealed from and cannot be disturbed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in favor of plaintiff and against the Ouachita Baking Company, Inc., in the sum of' $2,500 be amended by increasing the amount in favor of plaintiff to $4,000, and, as so amended, the judgment of the lower court be affirmed; costs to be paid by appellant.


author: REYNOLDS, J.

text:
    No. 3635
    Second Circuit
    FEDERAL SECURITIES CO., INC., v. SWAYZE (KEEN ET AL., Warrantors)
    (December 31, 1929. Opinion and Decree.)

      John B. Files, of Shieveport, attorney for appellants.
    McHenry, Montgomery, Lamkin & Lester, of Monroe, attorneys for appellee.
   REYNOLDS, J.

The Federal Securities Company, Inc., sued R. D. Swayze for $238.57, with legal interest thereon from November 18, 1928, on a certain draft for that amount, dated at Shreveport, La., July 18, 1928, drawn by Brown-Mason Oil Company, Inc., on him, payable to drawer’s order 120 days after its date, and accepted by him on the day- of its date. Across the face of the instrument is printed, “The obligation of the acceptor of this bill arises out of the purchase of goods from the drawer.”

The draft is indorsed in blank by the drawer; and the plaintiff alleges that it acquired it before maturity, for value, in due course of business.

Plaintiff further alleges that the draft was given by defendant to Brown-Mason Oil Company, Inc., in part payment of the purchase price of certain barrels of oil sold to him by Brown-Mason Oil Company, Inc., that it has a vendor’s privilege on the goods to secure the payment of the draft, and that it fears the defendant will dispose of the property during the pendency of the action, and that a writ of sequestration is necessary to protect its rights in the premises.

A writ of sequestration was issued, and the property impounded.

Defendant filed an answer alleging, in substance, that the oil sequestered was part of a larger quantity purchased by him from the Brown-Mason Oil Company, Inc., on June 2, 1928, for the price of $954.25 in payment of which he had given four acceptances, the one sued on and three others for $238.57 each, payable, respectively, in 30, 60, and 90 days after their date, all four being otherwise of like tenor and date; that on or about August 19, 1928, he and Brown-Mason Oil Company, Inc., entered into an agreement whereby -he delivered to it the oil sequestered, and it agreed to return to him his four acceptances and to pay him $2 each for all empty oil barrels he should deliver to it; and that he had delivered to it 40 empty barrels pursuant to the agreement, for which amount the Brown-Mason Oil Company, Inc., was indebted to him; and that the acceptances have not been returned to him.

He further alleged that C. D. Keen and L. C. Grosjean were appointed receivers of the Brown-Mason Oil Company by the First Judicial District Court of Louisiana in and for the parish of Caddo on November 24, 1928, in a suit therein pending, numbered 49714, and entitled C. D. Keen v. Brown-Mason Oil Company, Inc. *

He further alleged that the three last maturing of the drafts were in the possession of the receivers, and that he was entitled to have them returned to him and to be held harmless by them from liability under the one sued on, and that he had a right of pledge on the oil to secure the performance of such obligation.

He prayed that the receivers be called in warranty and cited, and that he have judgment against them for the value of the empty barrels, and that they be ordered to return to him the three acceptances in their possession, and that he also have judgment against them for whatever amount plaintiff should recover judgment against him, and that his right of pledge on the oil be recognized and made executory.

Answering the call in warranty, the receivers admitted receiving from defendant barrels of the value of $80, and alleged that he had been credited therefor; it admitted the delivery of the oil to it by defendant, but denied that it agreed to return to him his acceptances, and alleged that the acceptances had been indorsed by the Brown-Mason Oil Company, Inc., and negotiated by it, and had been probated by the owners and holders of them against the estate of Brown-Mason Oil Company, Inc., in the receivership proceeding.

On these issues the case was tried and judgment was rendered in favor of the Federal Securities Company, Inc., and against R. D. Swayze for $238.57, with legal interest thereon from November 18, 1928, until paid, and costs of suit, and maintaining the writ of sequestration and recognizing the asserted vendor’s privilege on the property sequestered.

And judgment was rendered in favor of R. D. Swayze and against the receivers for $238.57, with legal interest thereon from November 18, 19.28, until paid, and costs of suit, and ordering them to return to him the three other acceptances for $238.56 each, and taxing them with the costs of suit.

From this judgment the receivers appealed.

Swayze did not appeal or answer the receivers’ appeal.

Swayze filed in this court a petition, verified by the affidavit of his attorney on information and belief, setting forth that, on July 6, 1929, he was adjudicated a bankrupt by the United States District Court in and for the Western District of Louisiana, and that the present suit was listed on his schedule of assets and liabilities in that proceeding, that on September 24, 1929, he had petitioned the court for a judgment discharging him from all his debts, and that the petition was still pending; and he prayed that this appeal be stayed until after action on his petition, and that, if the petition be granted, the appeal be dismissed insofar as it affects him.

OPINION

Swayze not having appealed, the judgment, as between him and the Federal Securities' Company, Inc., cannot be altered.

The receivers made no appearance in this court, but in a brief filed by them they say:

“We submit, therefore, that the judgment of the District Court of Ouachita parish is erroneous, first, because it illegally recognizes a lien and privilege where none exists; and, second, that it had no jurisdiction to seize property in the custody of the District Court of Caddo parish.”

These questions, however, are not before us, for the reason that Swayze did not appeal, and therefore it is beyond our power to alter the judgment in favor of the Federal Securities Company, Inc., against him; and for us to hold that the Federal Securities Company, Inc., had no privilege, or that the district court of Ouachita parish was without jurisdiction of the sequestered oil, would be to alter the judgment.

The judgment in favor oi Swayze against the receivers does not purport to deal with the asserted privilege. Were it otherwise, however, it is clear that the privilege existed. Undoubtedly the Brown-Mason Oil Company, Inc., had a privilege, and, when they sold the acceptance, the privilege passed to the transferee as a matter of law.

“The sale or transfer of ^ credit includes everything which is an accessory to the same; as suretyship, privileges and mortgages.” Civ. Code, art. 2645.

Besides this, as vendor of the acceptance, they impliedly warranted the existence of the privilege as well as the debt, and are therefore estopped to attack their own act. Citizens’ Bank & Trust Co. v. Cook, 9 La. App. 540, 121 So. 306.

In respect of the question of jurisdiction, no such issue was raised in the district court; and this court will only consider questions presented to and adjudicated by the trial court. Staehle v. Leopold, 107 La. 399, 31 So. 882.

Aside from this, the jurisdiction of the district court could hot be attacked collaterally, by answer to a call in warranty.

In respect of the petition of Swayze that the hearing on the appeal be stayed, it is sufficient to say, in the language of the Supreme Court (Merchants & Farmers’ Bank & Trust Co. v. Hammond Motors Co., Inc., 161 La. 288, 108 So. 485, 486):

“In the exercise of its appellate . jurisdiction, this court only reviews judgments and proceedings of inferior courts as the cases are made up in said courts as shown by the transcripts of the records and proceedings brought up by the appeals. * * * We cannot notice evidence dehors the record. * * * a plea of adjudication or discharge in bankruptcy cannot be set up originally in this court. Such plea must be .made expressly in the court below, else we must refuse to take, cognizance of it.”

We do not understand the receivers to question the validity of the judgment against them, but only that the district court was without jurisdiction, and that the Federal Securities Company, Inc., had no privilege. These contentions have been considered and disposed of.

Finding no error in the judgment, it is affirmed.


author: WEBB, J.

text:
    No. 3808
    Second Circuit
    EASTERLING v. INTERNATIONAL PAPER CO.
    (July 5, 1930. Opinion and Decree.)
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Bastrop, attorneys for defendant, appellant.
   WEBB, J.

This action was filed May 9, 1929, to recover compensation for permanent total disability to do work of any reasonable character (see subd. (c) subsection 1, sec. 8, Act No. 20 of 1914, as amended by section 1, Act No. 242 of 1918), which was alleged to have resulted from injuries sustained by plaintiff on May 15, 1928, while he was engaged in the service of defendant. Trial was' had on' January 7, 1930, and defendant appeals from a judgment in favor of plaintiff for compensation as demanded.

The evidence established that- plaintiff fell from a scaffold on May 15, 1928, while he was engaged in the service of defendant, and that at the time of the trial, on January 7, 1930, he was unable to do work of any reasonable character, but there were not any bruises or wounds of the body discernible after the accident, and it is conceded that at the time of the trial plaintiff suffered with disease which may have resulted from other causes than injury, and' the evidence was directed toward establishing that plaintiff had sus: tained an injury at the time of the accident which caused or contributed to the disease and disability resulting therefrom.

Plaintiff said, in substance, that he fell from a scaffold which was about five feet in height, down a flight of stairs, landing on a concrete floor, rendering him momentarily unconscious; that when he recovered consciousness he suffered pain in the lumbar region of his back, and in his neck; and that he was attended by a physician who placed adhesive tape across the lumbar region, of his back. Plaintiff also stated that he had been in good health and able to work prior to the accident and that he had not been able to d'o any work since the accident.

There were eight physicians called by the parties, among whom there was some conflict of opinion relative to the character of the disease with which plaintiff suffered at the time of the trial. Two of them were of the opinion that plaintiff had partial paralysis of the hands, arms and shoulders, while the others were of the opinion that plaintiff had arthritis; and passing any discussion of the evidence on which the respective opinions were apparently based, we think that the weight of the evidence established that plaintiff had arthritis, a disease which affects the joints of the bones, and which, at the time of the trial, had affected the bones of the hands, arms, shoulders, lower vertebrae, and feet. All of the physicians agreed that arthritis is caused by focal infection, or diseased organs of the body, as the teeth, lungs, kidneys, etc., from which poisons are thrown into the system; and they also agreed that an injury to some organ of the body may create a source of infection, and the disease, or that where there is a source of infection an injury of the bones ' may cause the disease to develop in such tissues.

Of the six physicians who found that plaintiff had arthritis, two, who were called by plaintiff, were of the opinion that the source of infection was one of plaintiff’s kidneys which, they concluded, had been injured at the time" of the accident, while the others were of the opinion that the source of infection was the lungs, which, they concluded, had been left in a diseased condition from an attack of influenza which plaintiff contracted soon after the accident.

As stated, there were not any bruises or wounds on plaintiff’s body after the accident, and at the time plaintiff was examined .by the physicians appearing in his behalf (which- was thirteen months after -the accident) there was not any external indications of any injury of the kidneys, and their opinion that there had been such an injury was apparently based upon their finding pus in plaintiff’s urine and plaintiff’s statement that he suffered with pain in the lumbar region of his back. They concede, however, that the pus may have come from some other source than the kidneys, and the evidence establishes that at the time they examined plaintiff, the disease, arthritis, had progressed to such a stage as to account. for thé pain which plaintiff experienced.

Of the physicians who were of the opinion that the source of infection causing arthritis was plaintiff’s lungs, one had attended plaintiff immediately after the accident, and he stated that about a week after the accident plaintiff did not complain of his back, although plaintiff at the time had influenza, which, the physicians stated, had left plaintiff’s lungs in a diseased condition; and about thirty days after the accident plaintiff, who carried a health insurance policy, was examined by a physician representing the insurance company, and by the physician who attended him after the accident, and both physicians signed a report, which was also signed by plaintiff, that plaintiff had pulmonary tuberculosis and was totally disabled to do any work.

The record shows that the disease, arthritis, developed six or eight months after the accident, and while the evidence shows ' plaintiff was totally disabled to work from that time to • the time of the trial, the disease accounts for the disability, and we do not find that the evidence established any connection between the disease and the accident.

While the evidence does not show with certainty whether plaintiff was confined to his bed after the accident or that he was totally disabled during the period after the accident and prior to the time arthritis developed, we assume that he was unable to do manual labor. -But we think that the evidence shows that with the exception of a few days his disability was caused by influenza and the after effects of that disease. It is certain that the physician who examined plaintiff immediately after the accident, and who was the only one of the physicians who had treated plaintiff, did not find that plaintiff had sustained any serious injury, and that he and the physician representing the insurance company attributed the continuity of disability to influenza and the after effects of that disease.

The judgment appealed from is therefore avoided and reversed and plaintiff’s demands rejected at his cost.


text:
    Nos. 3817—3818
    Second Circuit
    HOOD ET AL. v. HOOD ET AL. TABOR v. HOOD ET AL.
    (June 2, 1930. Opinion and Decree.)
    XJuly 5, 1930. Rehearing Refused.)

      Dhu Thompson, of Monroe, attorney for plaintiffs, appellants.
    Munholland & Munholland, of Monroe, attorneys for defendants, appellees.
   DREW, J.

These two suits are based upon the same state of facts and involve the same questions of law. Both seek to set aside and annul a notarial act of sale of land made by the plaintiffs to the defendant F. Malcolm Hood upon the ground of non-payment of the purchase price.

The plaintiff Mrs. Mary L. Hood, in suit No. 38X7, is surviving widow of J. E. Hood, deceased, and the other plaintiffs are two of the daughters of J. E. Hood, deceased, who were minors when the act of sale of which they complain was executed, but have since become majors or emancipated by marriage. Mrs. Mary L. Hood’s only interest in the suit is that she was tutrix of the other two plaintiffs at the time of the sale and will be liable to said heirs if they should fail in this suit. The plaintiff in suit No. 38X8 is another child of J. E. Hood, deceased, and the defendant F. Malcolm Hood is the fourth and only other child. •

J. E. Hood died intestate in the year 1920, leaving no debts and four hundred acres of land unincumbered. The family continued to reside on the place, which was community property, being inherited, one undivided half by the four children, and the other half by the widow in community. Defendant F. Malcolm Hood went into the mercantile business and also operated the farm, and within a few years had become very greatly involved and was unable to pay his debts. One of the creditors of F. M. Hood, Beal-Burrow Dry Goods Company of Little Rock, Ark, filed suit against him and took judgment for the sum of $1,722.79, less some small credits. This judgment was rendered on June 10, 1924. No steps were taken to execute the judgment until September 20, 1929, when a fi. fa. issued and the four hundred acres above spoken of as having been left by J. E. Hood, deceased, were seized; thereupon, the aforesaid suits were filed.

On the 24th of April, 1926, Mrs. Mary L. Hood, tutrix for the minors, Thelma Hood and Myra Hood, both of whom are now of age or emancipated, acting upon the authority of a family meeting held in the interest of said minors, the recommendations of which were approved by the court, sold and transferred to F. Malcolm Hood the undivided interest of said minors in the four hundred acres of land inherited by them from their father, J. E. Hood, being one-fourth of the said four hundred acres, for the stipulated price of $1,500, which the deed recites was cash in hand paid, the receipt of which was acknowledged. This deed was passed regularly before a notary public in and for the parish of Lincoln and was duly recorded in the conveyance records of Lincoln parish on May 3, 1926.

On April 29, 1926, before a notary public in and for Caddo parish, La., the other plaintiff, Mrs. Eva Hood Tabor, executed a deed to her brother, F. M. Hood, to her undivided one-eighth interest in the four hundred acres of land, the consideration stated being $750, and the deed recites that it was paid cash in hand and receipt of same acknowledged. This deed was recorded in the conveyance records of Lincoln parish, La., on May 18, 1926.

On March 11, 1926, Mrs. Mary L. Hood sold to her son F. M. Hood her one-half undivided interest in and to the four hundred acres of land, and same was duly recorded in the conveyance records of Lincoln parish. This deed has nothing to do with this suit other than to show that the defendant F. M. Hood acquired by deeds of record all outstanding interest in the four hundred acres of land, he having inherited one-eighth interest.

The sheriff of Lincoln parish, acting under order of a fi. fa. issued in the case of Beal-Burrow Dry Goods Company v. F. M. Hood, seized the four hundred acres of land and advertised same for sale, when these two suits were filed, wherein plaintiffs ask that the sales from Thelma and Myra Hood to F. M. Hood and from Mrs. Eva Hood Tabor to F. M. Hood be annulled and set aside for the reason that the consideration set out in said deeds had never been paid and praying for an injunction against Beal-Burrow Dry Goods Company and the sheriff of Lincoln parish, enjoining them from selling the three-eighths of the four hundred acres, as shown by said deeds from plaintiff to F. M. Hood. Due to inability to have a hearing on rule nisi, they prayed for a temporary restraining order, which was granted by the court, and the rule to show cause why preliminary injunction should not issue was fixed for trial. In conjunction with their suits, plaintiffs propounded interrogatories on facts and articles to the defendant F. M. Hood, which he answered in open court, admitting that he had never paid plaintiffs any part of the consideration set out in the same deeds.

Before the interrogatories on facts and articles had been answered by the defendant F. M. Hood, the defendants heréin filed motions to dissolve the restraining order upon the grounds that the petition did not disclose a right or cause of action and that plaintiffs are estopped from attacking tho verity of the recitals of the authentic acts of transfer and sale wherein they conveyed the property to the judgment debtor F. M. Hood for a cash consideration. They also prayed for damages in the sum of $150, as attorney’s fees for dissolving the restraining order.

Defendant also filed motion for a recall of the court’s order and rule to show causé why a temporary injunction should not issue, which motion is based upon the same grounds as the motion to dissolve the restraining order. The lower court referred these motions and exceptions! to the merits of the case. Defendant then answered, and the whole matter in contest was put at issue.

Defendant contends that the testimony of F. M. Hood in answer to interrogatories on facts and articles is not admissible, as being in contravention of the provisions of the Civil Code of Louisiana and the jurisprudence of this state. These objections were made at the inception of the trial and before the answers to the interrogatories were offered.

To decide this point is to decide the case, and the jurisprudence of this state is well settled that the vendor may by interrogatories on facts and articles propounded to the vendee show that the consideration, stated in an act of sale to have been paid, has in reality not been paid.

In Newman v. Shelly, 36 La. Ann. 100, the court said:

“The right of parties to authentic acts, and their privies to contradict their recitals as to payment of price and to establish their simulation, etc., by means of the answers of the other party to interrogatories on facts and articles, is fully recognized by the authorities. Such answers have all the effect of a counter-letter. Hewlett v. Henderson, 9 Rob. 379; Semere v. Semere, 10 La. Ann. 704; Forest v. Shores, 11 La. 418; Succession of Thomas, 12 Rob. 215.”

Crozier v. Ragan, 38 La. Ann. 154, and Godwin v. Neustadtl, 42 La. Ann. 735, 7 So. 744, also reaffirm the ruling in Newman v. Shelly.

It is hornbook law in our jurisprudence that the verity and reality of authentic sales can be assailed by the parties thereto only in two ways, viz.: First, by means of a counter letter; second, by the answer by the other party to interrogatories on facts and articles. Or where fraud and error are alleged or proved. Robinson v. Britton, .137 La. 863, 69 So. 282; Franklin v. Sewall, 110 La. 292, 34 So. 448; Harris v. Crichton, 158 La. 358, 104 So. 114; Maskrey v. Johnson, 122 La. 791, 48 So. 266; Wells v. Wells, 116 La. 1065, 41 So. 316; Le Bleu v. Savoie, 109 La. 680, 33 So. 729; Godwin v. Neustadtl, 42 La. Ann. 735, 7 So. 744.

Plaintiffs do not allege or claim there was any fraud practiced or any error in executing the deeds. There was no counter letter taken;' therefore the plaintiffs proceeded in the only manner allowed them by law in propounding interrogatories on facts and articles to their vendee, and the exception of no cause and no right of action and motion to recall the restraining order and rule to show cause were properly overruled by the court.

Defendants hav.e not been injured in any way by the acts of the plaintiffs and were not induced to change thqir position or act differently from the way they would have acted otherwise; therefore, the plea of estoppel. was properly overruled. Wilkinson v. Macheca, ■ 158 La. 183, 103 So. 733.

Plaintiffs’ contention that they were never paid for the land they sold to defendant F. M. Hood is, we think, borne out by the record. It seems that the understanding was that F. M. Hood was to use the land for the purpose of borrowing money from an insurance company, and was to pay the plaintiffs out of the money he borrowed. He failed in making the loan and, therefore, never paid for the land.

The only testimony in the record hearing on the annulment of the sales is' the answers to interrogatories on facts and articles by defendant F. M. Hood, and he testified in answer thereto that he had never paid for the land. No other evidence was offered, and properly so, for parol evidence other than answers to interrogatories would not have been admissible as between the vendor and vendee.

As between the plaintiffs and the defendant F. M. Hood, there can be no question about the right of plaintiffs to recover and to have the sales annulled, and the only question now before the court is: What rights, if any, has the defendant Beal-Burrow Dry Goods Company, and is their right such as to prevent the cancellation of the deeds without first paying the amount of its judgment to the plaintiffs?

Beal-Burrow Dry Goods Company acquired judgment against the defendant F. M. Hood in the year 1924, -and the deeds involved therein were not executed until 1926, and certainly Beal-Burrow Company did not advance any credit to defendant Hood on account of this land being in his name on record. If Beal-Burrow Company had advanced credit to defendant after the placing of these deeds of record, relying in good faith on his owning this land, they would have a just cause to complain. For one who permits property actually his to stand on the records as that of another person must respect the rights of parties who have dealt in good faith with the apparent owner on the faith of the public records, and by reason of a condition of things superinduced or permitted by himself, and whatever right he has must be subordinated to those of innocent third parties, and there is no doubt that if this situation exists, it cannot be undone by means of a counter letter subsequently placed of record or by interrogatories on facts and articles. However, if the parties can be placed all in the same position as they were before the acts were placed of record and no one has acted or advanced credit on the faith of the records, then the acts of sale can be canceled and annulled by propounding interrogatories on facts and articles or by counter letter. Succession of Robt. Manson, 51 La. Ann. 137, 25 So. 639; Stewart v. Newton, 12 La. Ann. 622; Succession of Tabary, 31 La. Ann. 415.

Only creditors who have become' such subsequent to the filing and recording of an authentic cash deed to their debtor, or who have been misled or acted on the faith of such document, can have an interest to oppose' the annulment of the purported cash deed on the ground of the non-payment of the purchase price. Ragsdale v. Ragsdale, 105 La. 405, 29 So. 906; Viguerie v. Hall, 107 La. 775, 31 So. 1019.

In the case of Chandler v. Burkhalter, 10 La. App. 576, 121 So. 353, this court held that a cash deed could be annulled and rescinded on the ground of non-payment of the purchase price, where a draft given by the purchaser had not been paid upon presentation, even though the property had been attached by a creditor of the purchaser.

Defendant Beal-Burrow Dry Goods Company will be placed in the same position they were before the deeds were recorded if same are- canceled, and they have not been injured in any way by the filing and recording of these deeds.

The judgment of the lower court, we think, is incorrect and should be reversed. Defendants acted on the faith of the record in issuing the fi. fa. and were in good faith, and it is just and right that they should not be forced to pay the costs of these proceedings, but that the costs should be borne by the parties seeking relief from their own laches.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that there be judgment in suit No. 3817 in favor of Mrs. Mary L. Hood, Thelma Hood, and Myra Hood and against the defendants Beal-Burrow Dry Goods Company and A. j. Thigpen, sheriff, perpetuating the injunction and enjoining and restraining them from ever selling the one-fourth undivided interest in the NW%, W% of NE%, SE!¿ of NE!4 and NE% of SE!4 of section 35, and Wy> of SE% of section 27, all in township 19 north, range 4 west, Lincoln parish, La., to satisfy the claim of Beal-Burrow Dry Goods Company against F. M. Hood, and that they have and recover judgment against F. Malcolm Hood cancelling and annulling that certain deed dated April 24, 1926, of Mrs. Mary L. Hood, tutrix of the minors, Thelma Hood and Myra Hood, to F. Malcolm Hood, covering one undivided one-fourth interest in and to the above-described land, ordering said deed canceled from the conveyance records of Lincoln parish, La., and declaring Thelma Hood and Mrs. Myra Hood McMahon to be the true and lawful owners of an undivided one-fourth interest in and to the above-described four hundred acres of land.

It is further ordered, adjudged, and decreed that in case No. 3818 there be judgment in favor of Mrs. Eva Hood Tabor and against the defendant Beal-Burrow Dry Goods Company and A. J. Thigpen, sheriff of Lincoln parish, La., enjoining and restraining them from ever selling one-eighth undivided interest in and to the above-described four hundred acres of land to satisfy the claim of Beal-Burrow Dry Goods Company (against P. Malcolm Hood. It is further ordered, adjudged, and decreed that Mrs. Eva Hood Tabor do have and recover judgment against the defendant P. Malcolm Hood, decreeing her to be the owner of an undivided one-eighth interest in and to the four hundred acres above described and ordering the canceling and annulling of that certain deed from Mrs. Eva Hood Tabor to P. M. Hood, dated April 29, 1926, passed before Isadore Holland, notary public in and for Caddo parish, La., to P. M. Hood, to one undivided one-eighth interest in and to the four hundred acres above described and ordering same canceled from the conveyance records of Lincoln parish, La.

It is further ordered, adjudged, and decreed that the costs of both courts be paid by the plaintiffs and appellants.


author: LECHE, J. MOUTON, J. ELLIOTT, J.

text:
    No. 524
    First Circuit
    PRESTENBACH v. MANSUR
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Granted.)
    (June 30, 1930. Opinion and Decree on Rehearing.)

      B. R. Miller, of Baton Rouge, attorney for [plaintiff, appellee.
    Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

This suit is by one indorser against another indorser, and, from a judgment in favor of plaintiff, defendant has appealed.

The fact is patent from the evidence in the record that in point of time Prestenbach is the prior indorser, though his name appears beneath or below that of Mansur. The order of indorsements may be shown by parol evidence. Redden v. Lambert, 112 La. 740, 36 So. 668; section 68 of Act No. 64 of 1904, p. 158, also section 61 of the same act.

An indorser may only'be .held liable to a subsequent indorser. A subsequent indorser is not liable to a previous one. Prestenbach was the previous indorser, and therefore Mansur, the subsequent indorser, is not liable to him.

For these reasons, the judgment herein is avoided and reversed, and plaintiff’s demand is refused, at his cost.

MOUTON, J.

(dissenting). A. G. Ponson, now deceased, executed a promissory note, December 5, 1925, made payable to his own order. The note was not indorsed by Ponson, maker and payee, but was indorsed by Peter Mansur, Louis Prestenbach, and 'W. P. Sevario, in the order named.

The note was given for a debt which Ponson, the maker, had incurred in favor of Sevario for the purchase of some furniture, and was an accommodation paper.

The Commercial Securities Company, transferee of the note, obtained judgment against plaintiff, Louis Prestenbach; the other indorsers having refused to pay. Plaintiff paid the judgment so obtained by the Commercial Securities Company, and was by that company conventionally subrogated to its rights thereunder.

Plaintiff, whose name is the 'second on the note, sues Peter Mansur, whose name appears thereon as the first indorser. The suit is between these two indorsers; Sevario not being a litigant in the case.

Judgment was rendered against Peter Mansur, from which he prosecutes this appeal.

The first contention of the defendant is that the note, not having been indorsed by Ponson, the maker, was not a complete negotiable instrument, and that defendant incurred no liability thereunder.

It was held in Maddox v. Robbert, 165 La. 694, 699, 115 So. 905, that a note payable to order may be transferred without indorsement, and that the transfer may be proved by parol; also by this court in Crowley Lumber Co. v. Plaffer, 4 La. App. 606.

It was also so held in Pineland Realty Co. v. Clements, 149 La. 274, 88 So. 818, 819, where it appeared that the note had been made payable to the order. of the maker and had not been indorsed. In that case it appeared from the allegations of the petition, which had to be taken as true on an exception of no cause of action, that value had been given in return for the note, and in which the court said:

“The fact that the maker, as payee, had failed to indorse it would be no defense against a suit thereon, for the law will sometimes presume that to have been done which should have been done.”

Under the facts hereinabove stated the note is legally enforceable, Corpus Juris vol. 8, p. 1007; Unterharnscheidt v. Missouri State Life Ins. Co., 160 Iowa 223, 138 N. W. 459, 45 L. R. A. (N. S.) 743, and defendant is liable thereon, unless he can escape liability under his second defense, which is, that he was not a prior indorser on the note.

The proof shows that plaintiff’s name was the first placed o.n the note by Ponson, his son-in-law, who was acting as his agent. It further shows that defendant, Peter Mansur, was a subsequent indorser, and who claims that he inadvertently signed as first indorser as appears in the order of the signatures on the back of the note. Claiming he was the second indorser in point of time, he contends that he is not liable to plaintiff, who was, in point of time, the first indorser.

Pertinent to the. issue herein presented, section 68 of Act No. 64 of 1904, .p. 147, reads as follows:-

“As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise.”

The legal liability of the indorsers on the note was, under the law merchant, fixed by the order of their signatures which constituted their written contract.

In the case of Connely v. Bowig, reported in 16 La. Ann. 108, 79 Am. Dec. 568, the court said that it requires strong evidence to vary the legal liability of indorsers as fixed by the lex mercatoria, because such a modification of their obligations is in derogation of the law of their written contract. In that case the court said that there was no express agreement to show that the indorsers were to bear jointly any part of the loss resulting from their indorsement of the note for the accommodation of the maker.

In a still earlier case, Knox v. Widow and Heirs of Dixon, 4 La. 466, 23 Am. Dec. 488, practically the same doctrine was applied in a case involving similar issues.

These decisions were rendered long before our present Negotiable Instrument Law was enacted in 1904. In that act, section 68, above referred to, says that the prima facie liability of the indorsers springs from their written contract of indorsement in the order in which they indorse. This obligation is created according to the order in which they indorse. The obligation may, however, be varied or modified, says that section of the statute, if it be shown that as between or among themselves the indorsers have agreed otherwise. Such an agreement, in our opinion, must be shown to establish a modification of the contract resulting from the order in which they have indorsed. This doctrine is recognized in most of the other states where the law merchant prevails as it does in this state. See Corpus Juris, vol. 8, par. 455, pp. 290-380. Randolph on Commercial Papers (2d Ed.) vol. 2, sec. 740, says:

“The liability of endorsers of commercial paper is in the order in which their names appear on the paper. Even among themselves successive accommodation endorsers are liable to one another in the order in which their names appear in the absence of special agreement to the contrary. Only an express agreement can render them liable to one another as co-sureties with the consequent right and duty of contribution as such.”

The proof in this case shows that (plaintiff did not know either Mansur, the defendant, or Sevario, the other indorser. The name of the plaintiff was written on the note by Ponson, and the record shows that plaintiff was not present when the two other indorsers signed. There is no proof, and it is not contended by defendant, that the indorsers entered into any agreement that they would be bound otherwise than in the order “m which they endorsed” the note. In the absence of such an agreement, there resulted no variation or modification in the obligations of the indorsers to respond in accordance with the order in which their names appeared on the obligation.

I therefore respectfully dissent.

O'N REHEARING

ELLIOTT, J.

The statement of facts contained in the dissenting opinion handed down at the time the original was rendered, herein is correct and is therefore adopted for the purpose of our present opinion and decree.

A. G. Ponson signed an instrument in the following form: “For value received I promise to pay to the order of myself at the Bank of Baton Rouge * *, three hundred seventy-nine & 50/100 Dollars” — but did not indorse it. Further statements contained in the instrument are not important in this controversy.

On the first appeal it was held by a majority opinion that Prestenbach, having been the first indorser in point of time, and Mansur the second in point of time, could not, for that reason, recover from Mansur. Our first opinion, also the dissenting opinion, assumed that Prestenbach and Mansur were indorsers on a note and were, as such, subject to the rights and liabilities of indorsers.

We adhere to our first conclusion to the extent, that if the rights and liabilities of accommodation indorsers on a note drawn payable to the order of a maker and signed, but never indorsed by him, are, as between themselves, the same as if the maker had completed the note by his indorsement, then Prestenbach had no iight to recover from Mansur for the reasons given in our first opinion.

Our former opinion, however, did not take into account the fact that the note in question was incomplete, and that Mansur had urged that fact in his answer, specifically denying that he was an indorser on a promissory note, as alleged in plaintiff’s petition, and alleging that said purported note was no note at all.

We feel that the case cannot be properly decided without acting on said defense urged by Mansur, obvious on the face of the record.

A rehearing was granted and all aspects of the case have been reconsidered.

It is perhaps well to additionally state that Mansur excepted to plaintiff’s petition on the ground that it did not set forth any cause or right of action. This exception was overruled and Mansur, without waiving his said exception but reserving the right to urge same on appeal, then filed an answer.

The exception of no cause of action, being in this case tantamount to an answer, we act on the exception and the answer together, taking defendant’s above-mentioned defense as the ground for our present opinion and action. It will be seen by reference to the pleadings, that the ownership and possession of the instrument which Ponson signed is not involved in this controversy. Neither Prestenbach nor Mansur have ever owned or possessed it. The question is as to their rights and liabilities thereon as accommodation indorsers to each other.

Act 64 of 1904, sec. 184, provides:

“Where a note is drawn to the maker’s own order, it is not complete, until indorsed by him.”

A note drawn to the maker’s own order, signed by him but not indorsed, may be transferred, sold, donated, when accompanied by delivery; it may be the object of a contract; there is no doubt about that, proper forms being used for the purpose. But such an instrument is not a note. In Succession of Dr. Eugene Rabasse, 49 La. Ann. 1405, 22 So. 767, 773, the Supreme Court had before it an instrument which had been signed by Dr. Rabasse, which read: “One year after date I promise to pay to my own order, the sum of twenty five thousand dollars — ” etc., which he delivered to a Mr. Maury without having indorsed it, and died, as did Ponson, without completing it by his indorsement. Mr. Maury delivered the note to his daughter. Miss Maury, his daughter, brought suit against the estate of Dr. Rabasse to have it recognized and enforced as a note. The court said, Sue. of Rabasse, p. 1424 of 49 La. Ann., 22 So. 767, 775:

“We agree with the District Court that the instrument declared on can be sustained, neither as a note nor as a donation. The instrument by its very terms shows that it was contemplated that an additional act would have to be performed in order to make it, as such, a perfected instrument. Civil Code, Arts. 1905 and 1906. An instrument by which the maker engages to pay a certain sum of money, on the order of the maker, which has never received the indorsement, upon the fact of which indorsement alone, a promise of payment has been made, is incomplete and in that condition could not, as a note, be enforced against the maker.
“Delivery by the maker to a particular person, even though accompanied by words indicative of a gift or donation of the same, does not stand in lieu of, is not a substitute for, nor is it the equivalent of an indorsement. The situation does not .correspond at all with that of the delivery of a note, by the person to whose order it was payable to a third person, accompanied by words of assignment, but without indorsement. In the one case there would be a verbal assignment of a perfected thing; in the other, of a thing which would pass into the hands of the party who had received it, with something requiring still to be done, to give it existence. While the instrument can not be made available as a note, still less can it be claimed to be enforceable as a donation or gift. At best it can be considered as evidencing a mere promise to give at a future time, upon the condition of a subsequent indorsement by the promissor.”

The point which we have in mind to show, by the above decision, is that an instrument, drawn payable to the order of the maker and signed, but not indorsed by him, is not in fact, nor in law, a note, such as Act 64 of 1904, secs. 60 to 69, relative to the liabilities of parties, provides for and makes accommodation indorsers thereon liable as such to each other. The liability of indorsers to each other was not involved in the case cited, but the reasoning is helpful to the end in view.

The provisions of the law, secs. 60 to 69; 30, 49 and 64, contemplates notes that are complete in the matter of execution.

A complete note may not be negotiable, but still its payment may be protected by indorsers, and in such a case if a second indorser should be compelled to pay it, he would have the right to have the first indorser reimburse him. But if the instrument be not completed by the maker, then the law which makes indorsers liable to each other is not applicable to the situation.

The provision in Section 64 which provides that: “Where a person, not otherwise a party to an instrument, places thereon his signature in blank, before delivery, he is liable as indorser in accordance with the following rules: * * 2nd: If the instrument is payable to the orde-r of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer,” has reference to notes that are complete by the indorsement of the maker.

And Section 68, which provides: “As respects one another, indorsers are liable prima facie in the order in which they indorse,” has reference to notes that are complete.

A note drawn to the maker’s own order and signed by him but not indorsed, lacks a further act to do on the part of the maker, without which the other parties who wrote their names across the back of it, intending to thereby indorse it as accommodation indorsers, are not liable as indorsers, because the instrument is not a note. And they are not liable under the law of conventional obligations, because they have not received a consideration for their liability.

"An obliation without a cause 3= * cart have no effect.” Civil Code, Arts. 1893 et seq.

In Maddox v. Robert, 165 La. 694, 115 So. 905, the note was completed by the maker and in form to be endorsed. The question at issue between Prestenbach and Mansur was not before the court. In Pineland Realty Co. v. Clement, 149 La. 274, 88 So. 818, 819, the question was one of ownership. Such a question is not involved in the present case, and Clement had besides signed an agreement written on the back of the note which obligated him, in a way which does not exist in present case.

The statement made in that case, that, “The law will some times presume that to have been done, which should have been done,” is an equitable doctrine; not applicable to Mansur because he has done nothing that requires any further act on his part to prevent him accomplishing an act of injustice as a result of his omission.

In Achee v. Williams, 6 La. App. 316-317, the note was incomplete, for the same reason that the note signed by Ponson is incomplete. But the question in that case was one of ownership; there was no issue of liability between accommodation indorsers, as in the present case.

In Bank of St. Martinville v. Duchamp, ■6 La. App. 562, the promise of Louis Duchamp was like that of Ponson, and he had died, as did Ponson, without having indorsed the note. His heirs were sought to be held as indorsers, but this court held that his heirs were not liable as such, because their father had never indorsed the note.

Our opinion and decree in the Duchamp case is an authority for our holding in the present case.

If the rights and liabilities of accommodation indorsers on a note, drawn payable to the order of a maker and signed, but not indorsed by him, be regarded as between themselves, the same as if the maker had completed the note by his indorsement, our former opinion and decree is correct. But we now hold that the rights and liabilities of accommodation indorsers do not exist as between Prestenbach and Mansur, under the Negotiable Instrument Law, because the instrument under which the liability is claimed in this case, is incomplete, to the extent that it is not a note. And no liability as indorser on the part of Mansur to Prestenbach exists under our law on the subject of contracts, because Mansur has received no consideration for such a liability.

For these reasons our former opinion herein, modified so as to harmonize with our present conclusions and our former decree, is now reinstated and made the final opinion and decree of this court.


author: WESTERFIELD, J.

text:
    No. 11,609
    Orleans
    BRAXTON v. THE UNITY INDUSTRIAL LIFE INS. CO.
    (January 13, 1930. Opinion and Decree.)

      A. A. Calongne, of New Orleans, attorney for plaintiff, appellee.
    Henry W. Robinson, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, the beneficiary under an industrial life insurance policy issued by the defendant insurance company upon the life of his deceased daughter, Mary Braxton, brings this suit for the face of the policy, $420, and in addition claims double indemnity under Act 310 of 1910, or $420, plus attorney’s fees in the sum of $250, a total of $1,090.

Defendant answered that the policy had lapsed in December, 1927, for failure to pay four weekly premiums and had not been properly reinstated.

There was judgment below in favor of plaintiff for $420, and defendant has appealed.

There is considerable testimony in the record bearing upon the question of whether the policy had lapsed, which seems to preponderate in favor of the affirmative. However, the policy was revived, prior to the death of the insured, under a provision of the policy, reading as follows:

“Revival: If this policy lapse for nonpayment of premiums, it may be revived within one year from the date to which premiums have been duly paid, upon payment of all arrears, provided evidence of the insurability of the insured satisfactory to the Company be furnished, but such revival shall not take effect unless, at the date thereof, the insured is living and in sound health.”

Defendant admits that the policy was revived in accordance with its terms, but contends that the revival was secured by fraud, in that a substitute for Mary Braxton, presented herself to the defendant company for examination as to her insurability and good health. The identity of the alleged impostor is not disclosed by defendant, nor established by the evidence, but, it is claimed, she was a person in good health whereas Mary Braxton was not.

The alleged fraud and imposition is largely based upon the fact that on December 6, 1927, a short time before the revival of the policy, which occurred on January 8, 1928, the insured, Mary Braxton, had been struck over the head with a pop bottle as a result of an altercation in which she was engaged, and that as a result of the injury inflicted by the pop bottle, she entered the Charity Hospital of the city of New Orleans on January 10, 1928, for treatment and died in that institution on January 26, 1928. The argument is that the insured could not have been in a proper physical condition on January 8, 1928, two days before her admission to the Charity Hospital, to have given satisfactory evidence to defendant’s representative of her insurability. In addition it is pointed out that the records of the Charity Hospital, offered in -evidence, show that Mary Braxton died of chronic myocarditis with decompensation, contributed to by chronic nephritis and cerebral hemorrhage. Being afflicted with these maladies in so advanced a stage as to cause her death sixteen days after she is supposed to have applied for a revival of the policy, is said to be most persuasive of the alleged substitution of another and healthier female for examination as a preliminary to the reinstatement of the policy.

It must- be conceded that if Mary Braxton appeared in propria persona and was in good health on January 8th, she suffered an unusually rapid physical decline and dissolution. But we are not prepared to say whether her collapse would be unprecedented in medical experience. However, it must be noted that the individual who applied for the reinstatement of the policy was not subjected to medical examination but looked over by a nurse and it may well be that the nurse was unable or unwilling to apply such physical tests as would reveal the presence of the diseases which proved fatal to Mary Braxton. It is not customary for the defendant to require medical examinations, it would appear.

On the other hand, if there was a substitution, defendant has failed to establish the fact to our satisfaction, for, after reviewing the transcript and voluminous testimony in the record, we are unable to assert with any confidence that our brother of the district court was in error in his conclusion that the fraud and misrepresentation alleged in the answer, had not been proven. We conclude, therefore, on this point that there is liability under the policy.

As to the double indemnity and attorney’s fees authorized by Act 310 of 1910, it is said that they cannot be recovered here because they are only recoverable by the insured or his legal representative and not by the beneficiary. Giddens v. Western Casualty Company, 6 La. App. 215; Michel v. London & Lancashire Ind. Co. of America, 162 La. 160, 110 So. 186. In any event they are not recoverable in this case if, for no other reason, because, as stated by the learned trial judge, the defense, although it did not prevail, was a serious one. Cryer v. Great American Casualty Co., 7 La. App. 469.

For the reasons assigned the judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 11,447
    Orleans
    WOOD v. BRUNING
    (January 13, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    Irwin F. Williams, of New Orleans, attorney for plaintiff, appellant.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for damages alleged to be the result of defendant’s illegal seizure and selling of plaintiff's furniture and effects which were contained in the rooming house No. 850 St. Charles street, in the city of New Orleans, on February 5, 1925. The petition alleges that plaintiff was a sub-tenant under a verbal lease of one R. J. Lepper, who leased the property from the defendant under a written lease; that she had paid all of the accrued rent to Lepper at the time of the seizure; that upon the sheriff taking charge of her furniture and effects in the premises she made affidavit claiming them; that the defendant refused to. release her property and instructed the sheriff to sell it under the provisional seizure, which the defendant, owner, had taken out against Lepper and gave the sheriff a bond to protect him against any loss as a result of the sale; that plaintiff and her son intervened in the original provisional seizure suit, but their intervention was dismissed on the ground of misjoinder; and that plaintiff’s furniture and effects were sold, causing her a total loss of $1,408.50, for which this suit is brought.

The defendant denied liability and that plaintiff was a sub-tenant m Lepper, but alleges that she was operating the boarding house for Lepper and herself under some partnership agreement.

There was judgment in favor of defendant, dismissing plaintiff’s suit, and plaintiff has appealed.

This case involves only an issue of fact, i. e., whether or not plaintiff was a subtenant of Lepper. The burden of proving ' the allegations of the petition were upon plaintiff. It appears that the fixtures and effects seized under the provisional seizure were sold by the sheriff at public sale and did not bring enough to pay the cost of the proceeding, so that the owner, defendant herein, did not realize anything in that suit.

The record convinces us that plaintiff was not a sub-tenant of Lepper, but that she was engaged in the management of the boarding house for their joint accent. Since plaintiff was not a sub-tenant and the rent was unpaid by Lepper, the provisional seizure and sale were legal.

For the reasons assigned the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 11,637
    Orleans
    KIRKWOOD v. LONDON & LANCASHIRE IND. CO. OF AMERICA
    (January 13, 1930. Opinion and Decree.)
    (February 27, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Harold A. Moise, of New Orleans, attorney for plaintiff, appellee.
    John D. Miller, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit on an accident policy for $2,000 for loss of life. Plaintiff, widow of the assured, is the beneficiary named in the policy, which stipulated that the protection afforded was “against loss caused by bodily injuries effected directly and independently of all other causes through accidental means.”

The petition, read as a whole, charges that the death of the assured was the direct result of a fall he sustained while running to catch a street car.

Defendant company, in its answer, denied that the death was “caused by bodily injuries.” It contends that the direct cause of the death was an aneurism of the thoracic aorta. In the court below judgment was rendered for $2,000, as (prayed for.

The facts are that on the morning of May 24 or 2'5, 1923, deceased, while running to catch a street car, fell to the pavement of the street; that he arose without assistance and leaned for a few moments against a post and then proceeded to his work in the metropolitan branch of the Whitney Trust & Savings Bank; that he continued to work, though- probably at times suffering pain, until June 8, 1923, on which day it became impossible for him to carry on his labors and from that day he was more or less confined to his bed, until June 22, 1923, on which day he died; that the immediate cause of death was an aneurism of the thoracic aorta.

The questions for determination are: Was the aneurism caused by the fall, or did it exist prior thereto, and, if it did exist prior thereto, but was stirred into fatal activity by the fall, is such a death within the coverage of the policy?

Defendant contends that there is no proof of an accidental fall and that, in all probability, since an aneurism causes shortness of breath and dizziness, the fall was caused by the aneurism and not by accident, it is entirely possible that defendant is correct in this contention, but since we believe that, even if the fall resulted from accident, still that accident was not the independent cause of the death, we (prefer, rather than to base our decision on the probability that there was no accident, to rest upon what we believe the more certain ground, that the death, even if contributed to by accident, was not caused directly thereby, nor did that cause act independently of all others.

The physician who examined and treated the assured and the expert radiologists and the surgeons, who testified, all agree that the immediate cause of death was the aneurism of the thoracic aorta, which, as described by one of the experts, is:

“* * * the largest blood vessel we have in the body, coming off directly from the heart, from which all the arterial blood is distributed through the body.”

An aneurism, as described by Dr. Henderson, an expert radiologist, is:

“A dilatation or saculation of a blood vessel or tube, occasioned by a weakening of the wall, in which the pressure of the blood stream dissects, separates the various layers, with the formation of blood clots at times, which ultimately ends in rupture and death, unless some inter-current thing happens — an auto might hit the man and kill him — but under ordinary circumstances, they die.”

The various doctors differ as to whether an aneurism of the thoracic aorta can be caused by trauma. Drs. Denegre Martin, Henderson and Heninger testified without hesitation that such an aneurism is never caused by trauma, but is always the result of disease. Dr. Henriques, an eminent radiologist, placed upon the witness stand by plaintiff, stated:

“I question in this case this aneurism could have been caused by a fall or blow, .although it could have been aggravated.”

Dr. Letten, a friend of the deceased, but who did not attend him in his professional capacity, stated that aneurism might be caused by trauma, as did Dr. Walsh, the attending physician, but Dr. Walsh indicated very clearly that he had suspicions that the aneurism might have resulted from disease or infection when he testified that hq had questioned the deceased at some length, as to whether or not he had previously suffered from any systemic infection. It appears from this that Dr. Walsh realized that the universally recognized cause of aneurism of the thoracic aorta is disease of some kind, as was testified to by all of the other doctors to whom we have referred.

It would serve no good purpose to review the medical testimony at length. It convinces us that the death resulted from the aneurism and that the aneurism had existed prior to the fall.

But, says counsel for plaintiff, if the fall aggravated the condition and caused death sooner than it would have occurred otherwise, recovery under the policy should be allowed. We do not see how the policy can be so construed. By its very terms it is limited to losses caused by accident directly and independently of all other causes. In Frerichs v. London & Lancashire Indemnity Co., decided by the Supreme Court of Louisiana on November 4, 1929, that court dealt with a situation practically identical with that presented here. There the injury sustained by the accident, if in fact there was an accident, was of slight consequence, and the court found that, but for the arteriosclerosis of which the deceased had been suffering, the accident would not have had fatal results.

There is no doubt that the same situation exists here. But for the aneurism, the fall of the deceased would have had no fatal results and probably no results even serious. It is true that, in the Frerichs case, the court found, as we have stated, that in all probability there was no accident at all, but in spite of that finding the court went thoroughly into the law applicable and said:

“The contention of the attorneys for the appellant is that the traumatic injury, which caused the contusion on the side of the head, superinduced the cerebral hemorrhage because of the arteriosclerosis, and that the insurance company is therefore liable, according to the terms of the policy, notwithstanding the traumatic injury would not have been sufficient to '■ause death or disability but for the arteriosclerosis.
“The insurance, as we have said, was ‘against loss (meaning death or disability) caused by bodily injuries effected directly and independently of all other causes through accidental means.’ The company, therefore, is not liable in this case unless the bodily injury which caused death was effected directly by accidental means, and independently of the arteriosclerosis which the insured was afflicted with. The bodily injury which caused the death was not the contusion on the side of the head of the insured, but the rupture of the artery, and consequent cerebral hemorrhage; and it can hardly be argued that that injury was effected directly and independently of all other causes by accidental means.”

Counsel for plaintiff argues at length that, in order to hold as we do here, and as the Supreme Court did in the Freriehs case, it would be necessary that the policy stipulation should contain, in addition, a stipulation to the effect that there should be no coverage for death “where death has resulted wholly or in part, directly or indirectly, from disease or bodily infirmity.” We have carefully studied counsel’s brief and must confess our inability to see the distinction between the clause which is in the policy in question here and the clause which counsel suggests should have been in it in order to afford the protection defendant believes it is entitled to.

Being of the opinion that the accident, such as it was, was not the direct and independent cause of the death, the judgment appealed from must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit.