author: McGREGOR, J.

text:
    No. 3310
    Second Circuit
    FACKLER v. T. C. CLANTON LBR. CO.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    John B. Files, of Shreveport, attorney for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   McGREGOR, J.

Mrs. W. B. Fackler, plaintiff, alleging herself to be a resident of Lee county, Ala., brings this suit against the defendant, T. C. Clanton Lumber Company, Incorporated, a Louisiana corporation domiciled at Shreveport, La., for the price of two cars of lumber alleged to have been sold to the defendant and shipped and delivered in accordance with its instructions. The suit is brought by a simple, ordinary petition. To the petition are attached two bills of lading and two invoices, all covering lumber in the same cars as are described in the petition, but the invoices show the lumber to have been sold by “Fackler Lumber Company” and not by the plaintiff, “Mrá. W. B. Fackler,” and the bills- of lading show both shipments to have been made by “Fackler Lumber Company” and not by the plaintiff, “Mrs. W. B. Fackler.”

The defendant denied each and every allegation of the petition, and particularly denied ever having had any business transactions whatever with the plaintiff, Mrs. W. B. Fackler. The case went to trial on the petition and answer.

On trial of the case, the plaintiff called T. C. Clanton, president of the defendant corporation, and proceeded to cross-examine him as to whether he had ordered and received the lumber described in the two invoices and the two bills of lading. This testimony was objected to by counsel for the defendant on the ground that the invoices and bills of lading show on their faces transactions with “Fackler Lumber Company,” while the suit is for lumber alleged to have been sold and shipped by "Mrs. W. B. Fackler,” and that the testi,mony was irrelevant and inadmissible under the pleadings, and further that to admit it would be to enlarge the pleadings. An effort was then made to introduce in evidence the invoices and bills of lading themselves, together with orders from the defendant to “Fackler Lumber Company.” The same objection was made as was made to the introduction of the testimony sought to be elicited from T. C. Clanton. All of these objections were sustained by the trial judge, and the testimony and offerings Were rejected; counsel in each instance reserving bills of exception.

The testimony of the plaintiff, Mrs. W. B. Fackler, and of Jessee B. Hart was taken by formal deposition. When counsel for plaintiff sought to introduce this evidence on the trial of the case, the defendant objected on practically the . same grounds as were urged against the testimony and documents theretofore offered. These objections were sustained, and the depositions were accordingly rejected. In each case counsel for plaintiff reserved bills of exceptions With the right to file formal written bills of exception with the right to attach thereto the documents, and testimony rejected. No formal bill Of exception has been brought up, and therefore, since the documents attached to the petition and the depositions of Mrs. FackJer and of Mr. Hart were rejected, it cannot he said that .they are properly in the record, even though they are physically attached. This being true, it would not be possible to consider them on this appeal and render any decision based on them, even though we should find that they nad been wrongfully rejected. The case was. .submitted with all the plaintiff’s testimony objected to and rejected, and the defendant offered no testimony whatever. The judgment of the lower court rejected the demands of the plaintiff as of non-suit.

The only issue legally before this court is whether the testimony offered by the plaintiff and rejected by the court on the objection of the defendant should have been admitted. If it should, then the judgment should be annulled and the case remanded for trial, and the testimony so rejected should be admitted. On the other hand, if the judge of the lower court ruled correctly, the judgment is proper, and should be affirmed.

Counsel for plaintiff and appellant in his brief argues very ably and earnestly three propositions, and cites authorities ' in support of each, as follows:

(1) “If there existed any variance between the petition and the invoices and bills of lading, attached to the petition, the attached documents control the allegations of the petition and the provisions of the documents are written into the petition. Abadie v. Berges, 41 La. Ann. 281, 6 So. 529; Johnson v. Gennison, 18 La. Ann. 273; McClellan Dry-Dock Co. v. Farmers’ Alliance, 43 La. Ann. 258, 9 So. 630; Brumfield v. Mortee, 15 La. 116; Smith v. Nash, 5 La. Ann. 575; Vincent v. Frelich, 50 La. Ann. 378, 23 So. 373, 69 Am. St. Rep. 436; Lewy v. Wilkinson, 135 La. 105, 64 So. 1003; Hall v. Ewing, 140 La. 907, 74 So. 190.
(2) “But if .there be a variance between the - petition and the annexed documents, the annexed documents are considered by the court as controlling. Nott v. Brander, 14 La. 368; Powell v. Aiken, 18 La. 321; Matthews v. Williams, 25 La. Ann. 585; Teutonia Nat. Bank v. Wagner, 33 La. Ann. 732; Sladovich v. Glaser, 150 La. 918, 91 So. 297; Ducre v. Milner, 165 La. 433, 115 So. 646.
(3) “However, if there be any variance between .the name of the plaintiff in this suit, as shown by the petition, and as, shown by the documents attached thereto, it should have been raised by exception in limine litis. In re Great Southern Lumber Co., 132 La. 1000, 62 So. 117; Sanders v. Schilling, 123 La. 1009, 49 So. 689; Hincks v. Converse, 37 La. Ann. 484.”

We do' not find .that any of the authorities cited by appellant sustain her position. In the ease of Abadie v. Berges, the plaintiffs sought to take advantage of the right to renew a lease. The lease was attached to .the petition, and contained a clause giving the lessee the right to renew under the same terms by giving a three-month notice of his desire to so r.enew. The petition contained no allegation that the' lessee or plaintiff had given the required notice, but it was contended that the attaching of the lease to the petition cured the defect. In ruling otherwise, the court said:

“It was not enough that the contract secured the renewal on the giving of the notice. It was essential, in order that the renewal should take place, that, the notice be actually given at the proper time.
“The mere fact of annexing the lease to the petition does not inject into that document an averment which is not in the lease,, which, if true, ought to have been specifically set forth in the petition, which was not .done.
. “This was a fatal omission, as the court is powerless to authorize an amendment ■which would insert a cause of action when none was previously averred.”

The principle that attached documents, control the allegations of the petition is so well accepted in the jurisprudence of this state that it needs no argument or •authority to support it. But plaintiff is endeavoring to extend the principle too far. She is endeavoring to have the attached documents supply necessary allegations of fact. In the case of Johnson v. Gennison, neither the syllabus nor the opinion of the court states anything supporting the contention of the plaintiff in the present case. The case of McClellan Dry-Dock Co. v. Farmers’ Alliance is cited in support of. plaintiff’s contention that a party to a suit can be fixed by reference to an annexed document. In that case it was a party defendant involved and not a plaintiff. Also the party in question answered without -exception, and all the necessary proof was made without objection. The case is not a parallel one. In the case of Brumfield v. Mortee, the plaintiff in his prayer asked for judgment for the wrong amount through error. The court held that the attached notice governed, and that judgment should be rendered for the correct amount. This case cannot justify judgment in favor of the plaintiff when the attached document on which he relies for proof shows on its face that .the debt is due to some one other than the plaintiff, and it is not authority for the assumption that the parties are identical under both names. In the case of Smith v. Nash, the question of the effect of an, attached document was not involved. In the case of Lewy v. Wilkinson, it was decided squarely that, if suit is brought on a note, and the petition alleges the liability as that of a surety, when it appears from the attached note itself that the liability is that of an indorser and the necessary allegations to enforce the liability of an indorser are not in- the petition, an exception of no cause of action should he sustained. Nothing in this case is applicable to the case at har. The case of Hall v. Ewing has the following syllabus, by the court:

“Under the practice of this state, where the whole case is developed by the petition and the documents attached thereto, the facts as recited or alleged are looked at to judge whether the conclusions of fact, drawn by the pleader are within the scope of the facts recited The court is to say whether the facts charged are a legal foundation for the conclusions of fact drawn therefrom. Following this rule the inferences or interpretations placed upon the exhibits must be drawn from these exhibits or there is no case; this is peculiarly so here (in a case of libel), where the pleader points to the exhibit itself as showing its meaning to he what he says- it means. It is perfectly clear that up to this point in the history of the case the exhibits are the case, and if they do not support the charge and do not show a cause of action, then an exception of no cause of action is good.”

The only application of this case to the one at bar is this: If the attached document shows- on its face that the debt sued on is due to some person other than the plaintiff by name, and there is no allegation to show that the party named in the attached document is identical with the plaintiff under his right name, an exception of no cause of action would be sustained. The case of Nott v. Brander decided nothing applicable to the case at bar. The question was raised, but the court found it unnecessary to decide it. The case of Powell v. Aiken raises no issue that is similar to the one under consideration. In the case of Matthews v. Williams, the plaintiff, Jesse T. Matthews, sued on a note made payable to J. A. Matthews, or bearer. The mistake -was corrected by a supplemental petition, but, even though the error had not been corrected, the note was payable to bearer, and plaintiff would- have had a right to sue on it as such. All the other cases cited by plaintiff are solely to the effect that, as between an allegation of fact in the body of the petition and an attached document, the document prevails. This principle must be confined to variance in allegations of fact, and cannot be extended so far as to change the parties to the suit. None of the cited cases, go so far as -to permit a plaintiff to sue in his own name on a contract entered into by him under a trade-name without making the necessary allegation in the petition. In the Great Southern Lumber Co. case cited by counsel for plaintiff, the court held that, even though a party is personally in court by his right name, under an allegation that he had been using a trade-name, an appeal granted to him under his trade-name would have to be dismissed. The case practically holds, that suit must be brought in the name of the plaintiff by alleging that he had done business under the trade-name, and that all proceeding's in the case must be under his real name. It does not hold that evidence of contracts under the -trade-name can be introduced without proper allegation.

Counsel for plaintiff in his brief states:

“Considering the petition and annexed documents it shows that the plaintiff, Mrs. W. B. Fackler, is -the- real party in interest and that the trade namei of Fackler Lumber Company is a fictitious being, having no legal existence.” ' -

There is no allegation in the petition or documents attached that would admit of ■the introduction of evidence to prove this proposition, of counsel. Granting all that plaintiff claims, it is true that the suit was rightly, brought in the name of “Mrs. W. B. Fackler,” but since, according to counsel’s statement dehors the record, she contracted with the defendant under another or trade-name, she must allege that fact before she can be permitted to introduce evidence to that effect.

When a document is attached to the petition, it-is always some of the evidence that is expected to be used in the proof of the allegations of the petition. If there is a slight variance between this evidence that is thus exhibited in advance and the allegations of the petition, the attached document governs, but it cannot be successfully contended that inadmissible evidence can be made admissible by attaching it to the petition in advance. In this case, if the documents in question had not been attached to the petition, certainly they could not have been admissible without an allegation in the petition that the plaintiff had done business with the public and with the defendant in particular under the trade-name of “Fackler Lumber Company.” If these documents and all testimony sought to be introduced concerning them would have been thus inadmissible, attaching them to the petition could not create the admissibility of the evidence.

The trial judge was right in sustaining the objections of the defendant to all the testimony, and it is therefore rightfully excluded. The judgment of non-suit is correct, and is therefore affirmed, the plaintiff and appellant to pay the costs of both courts.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 3486,
    Second Circuit (Second Division)
    PUGH v. EYLERS
    (June 11, 1931. Opinion and Decree.)

      Pugh, Grimmet & Boatner, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers and J. T. Carpenter, of Shreveport, attorneys for defendant, appellant.
   CULPEPPER, J.

This is a suit by plaintiff to recover of defendant the sum of $261 for hauling which plaintiff alleges he did for defendant in December, 1925, and January, 1926. Prom a judgment in favor of plaintiff in the sum of $201, witty legal interest from January 22, 1926, until paid, defendant appealed.

Plaintiff alleges he furnished work and labor “unto” defendant at various times between December 28, 1925, and January 22, 1926, aggregating $261, as per itemized statement attached. The statement attached shows the alleged debt consisted of hauling with teams at so much per day. There is no dispute as to the fact that the hauling was performed, and that the amount charged for same is correct.

Defendant, in answer, enters a general denial. No special defenses are pleaded. The defense actually made upon the trial is one of agency, in that defendant con- , tends that he was only representing Kaplan & Sons of Monroe when he contracted for the hauling to be done, and that therefore he is not liable. Counsel for plaintiff objected to this line of testimony for the reason that such testimony constituted a special defense which should have been specially pleaded. The testimony was admitted subject to the objections. The objections, we think, were good and should have been sustained by the court, because this particular defense is special and should have been pleaded. The answer makes no mention whatever of such defense. Plaintiff’s petition does not mention anything about defendant as having been an agent for some one else. That fact would make it all the more necessary. that defendant set it up in his answer.

“When defendant in an action ex contractu only denies the several allegations of plaintiff’s petition, he cannot be allowed at the trial of the caus.e to prove by evidence duly objected to that he acted for another and not for himself. Agency as defense against personal liability must be specially pleaded.” New Orleans Brewing Co. v. Goldstein, 12 Orl. App. 323; Mandate, paragraph 103, vol. 8, Merrell La. Digest; Cotton v. Union Bank of Louisiana, 15 La. 369.

Even taking the testimony, however, of defendant in support of his claim of agency along with the other testimony in the record, we still do not think it would avail defendant anything.

On or about January 19, 1923, a Mr. Kaplan, of Kaplan & Son, of Monroe, came over to the Continental. Asphalt & Petroleum Company lease in the oild field near Harmon, La., and purchased from that company a lot of junked pipe; Kaplan obligating himself to remove the pipe within thirty days. Defendant, it seems, had charge of the lease, was present and assisted in making the sale to Kaplan. Kaplan got defendant to have the pipe hauled from the leased premises to Harmon station for shipment to Kaplan & Son at Monroe, and then he returned to Monroe. After Mr. Kaplan left, Mr. Eylers, the defendant herein, went to see Mr. Loftin, who had charge of plaintiff’s teams and wagons, with the view of having the -pipe hauled to the station. Defendant testifies he told Mr. Loftin that Mr. Kaplan .had bought the pipé, was moving it off of the lease, and he wanted to get Loftin to haul it for Kaplan;' that Loftin asked defendant if he knew anything about Kaplan and he (defendant) told him, Kaplan “was a pretty responsible man,” whereupon Loftin said he would do the hauling. Defendant says he then told Loftin he (defendant) was going to have charge of the hauling and loading of the pipe for Mr. Kaplan. Defendant admitted, however, that he hims.elf contracted with .Mr. Loftin to have the pipe hauled.

Mr. Loftin, who was admittedly plaintiff’s agent in the transaction, testified that defendant came to him and wanted him to haul the pipe for Kaplan & Son of Monroe. He says he told defendant he could not do so because he did not know anything about Kaplan & Son. He says defendant came back the next day and on that occasion they came to an agreement whereby he (Loftin) would do the hauling and defendant would be responsible for the payment for same. Loftin says he did not see Mr. Kaplan at all. Loftin was asked:

“Q. Did you deal with Mr. Kaplan at all?
“A. Dealt with Mr. Eylers—for me to do that hauling, you see.
“Q. For him personally?
“A. He would see that I was paid for the hauling of the pipe.
“Q. I believe you said he would be responsible for the pipe?
“A. He said it was sold to M. Kaplan . & Son at Monroe, wanted me to do the hauling, I told him I would not do it.
“Q. Then later went ahead and hauled it?
“A. After he came back the next morning, made the agreement that he would be responsible for it.
“Q. That he would be responsible for it?
“A. Yes.
“Q. That if Mr. Kaplan didn’t pay he .would see you got your money?
“A. He didn’t mention Mr. Kaplan.
“Q. Didn’t you understand that was what he meant?
“A. Not that I know of, Mr. Kaplan was not mentioned, it was not mentioned at all.”

From the evidence we think it fair to conclude that defendant obligated himself primarily to pay for the hauling, and that it does not fall within the class of cases wherein one person promises to pay in the event some third person does not do so. Obviously it was not a promise by defendant to pay if Kaplan & Son did not. It was an independent obligation on defendant’s part regardless of conditions.

Plaintiff testified that defendant promised on several subsequent occasions to pay him, and did in fact pay plaintiff $60 on the account, which reduced the amount down to $201. Mr. May and Mr. Loftin both testified they had. heard plaintiff ask defendant to pay him, and that defendant said he would. The witness May was the one who actually did the hauling.

Counsel for defendant Says in brief that:

“There is only one strong point on which this appeál is based, that is whether or not the hauling was done' for Mr. Eylers, the defendant in this suit, or for Kaplan & Son, the owners of the equipment being hauled.”

He says the suit is really a contest between Mr. Loftin’s version of the agreement and that of Mr. Eylers. He refers to Mr. Eylers’ testimony at page 12 ol testimony as stating clearly Mr. Eylers’ position in the transaction.

We have already stated in substance defendant’s testimony referred to by counsel, unless it -be .that in regard to the bill for the hauling and his denial of promise to pay same. Eylers was asked by counsel if Mr. Pugh, plaintiff, sent him the bill, and he answered:

"I made out 'the bills for Mr. Pugh myself—there is Mr. Kaplan’s account, I made it out myself.”

Eylers says Pugh never did send him the bill for the hauling. He also says he never did promise to pay the bill, but asked Pugh to go with him over .to Monroe, when he (Eylers) went over there to enter 'suit against Kaplan for the pipe. It seems that Eylers had to sue Kaplan & Son for the price of the pipe, and that was the occasion for his going to Monroe. Eylers says .the $60 which Pugh testified he had received from Eylers was a part of the debt claimed by the latter.

Defendant, it will be seen, makes no mention of having gone to Loftin "the second time to see about getting the hauling done. Loftin, however, .testifies that defendant came to him twice.

Defendant, however, does not say he did not go to Loftin a second time. While Loftin admits that defendant told him the , pipe had been sold to Kaplan & Son, Loftin insists that he would not agree to do the hauling until defendant agreed to become personally responsible. We think defendant did in fact become personally and primarily responsible for the hauling.

If R be a fact, as counsel for defendant contends, that the pipe was being hauled for Kaplan & Son, that fact would not necessarily show that defendant could not and did not .bind himself primarily and unconditionally to pay for the hauling. In the case of Watson Bros. v. Jones, 125 La. 249, 51 So. 187, cited and relied upon by counsel, the court expressly held that:

“Two persons may make themselves liable, primarily (and not, necessarily, in the relation' of principal and surety) for the same debt.”

The court further says:

“If it (the evidence) shows that defendant was to pay only in the event that Pierson should not, it would have to be disregarded, * * * since it would, in that case, go to prove' a promise to pay the debt of another.”

Even if Kaplan & Son were obligated to pay for the hauling, that' was an obligation as between themselves and defendant, which would in no wise affect plaintiff’s right to hold defendant to his obligation to plaintiff. Plaintiff dealt directly with defendant. He took no chances on Kaplan & Son. Defendant had to become, and we think did become, primarily and unconditionally responsible to plaintiff before plaintiff would agree .to do the work. This evidently was the view the lower court took, after hearing the witnesses, and we find no error in thus holding, notwithstanding the testimony Of defendant.

It will be noted here .that the testimony of plaintiff and his two witnesses, Loftin and May, that defendant had promised to pay plaintiff, is not to be considered as binding on defendant as a promise to pay the debt of Kaplan & Son,- but is considered as corroborative of plaintiff’s contention that the debt was the debt of defendant himself, which he felt obligated to discharge.

The plea of prescription filed evidently was abandoned by defendant, since it has not been urged in argument nor in brief. The testimony shows the hauling was finished on January 22, 1924, and the suit filed December 27, 1926, which was within the three-year prescriptive period, hence the prescription would not apply, and the plea is therefore overruled.


author: TALIAFERRO, J.

text:
    No. 3507
    Second Circuit (Second Division)
    HAMNER & CO., LTD., v. JOHNSON
    (June 11, 1931. Opinion and Decree.)
    Bertram P. Barnette, of Arcadia, attorney for plaintiff, appellant1.
    Atkins & Meadors, of Homer, attorneys for defendant, appellee.'
   TALIAFERRO, J.

The sheriff of Claiborne parish, under a writ of fieri facias, issued in this case, seized and advertised for sale a Chevrolet truck, property of defendant. Defendant enjoined the seizure and sale of his property and demanded its release for the reason and on the ground that it was not subject to seizure, but exempt therefrom, as it was his “means, tool and instrument necessary for the exercise of his calling, trade and profession by which he makes a living”; that said truck is used by him as a “school bus" to transport children to and from the Haynesville High School in Claiborne parish.

Plaintiff denies that the seized property is exempt from seizure for the reasons set up by defendant, and asserts that he is a farmer, engaged in' raising cotton, corn, and other agricultural products. On these issues the case was tried, resulting in judgment for defendant. Plaintiff .took appeal.

No brief has been filed in this court by appellant, nor has. any appearance been made.

The sole question presented for decision is whether the seized truck is exempt from seizure, under plaintiff’s judgment, under article 644 of the Code of Practice, which prohibits the sheriff from seizing the tools and instruments of a debtor necessary for the exercise of the profession or trade by which he gains a living.

The evidence establishes that defendant was employed by the school- board of; Claiborne parish to operate a “bus” to trans-. port children to and from the Haynesville High School, at a salary of $100 per month for school term of nine months, and that the operating expenses of the bus. per month was $50. It is shown that defendant, through tenants, farmed some on the side, but that this line of endeavor has not proven profitable. He is virtually without property, save the truck seized.

We are satisfied, from the evidence, that defendant depended upon the compensation yielded him by the operation of his. truck as a school bus for his living.

Judicial notice may be taken of the fact that a school-bus must be operated on a fixed time schedule, both in gathering children in the morning for delivery at school and returning them safely to their homes in the afternoon, when school is out. Defendant gave his personal services and time to the operation of his truck. It therefore follbws that for five days- of the week practically all his time was consumed in the efficient discharge of the important responsibility incident to his employment. The school bus is an important adjunct in the successful carrying on of the high schools of the state, in fact, an indispensable factor therein, and the operation of such busses now may be properly called a trade or profession on the part of those engaged therein, within the intendment of article 644 of the Code of Practice. Such a trade or profession may only be exercised by employing means adequate to effectuate the objects and purposes implied in the very nature of the trade or profession. Such means, whether a wagon, automobile, or truck, is the “tool or instrument,” within the meaning of article 644, Code 'Prac. by which the trade or profession is exercised.

In Schwartz v. Dennis, 138 La. 848, 70 So. 857, Ann. Cas. 1917D, 94, the Supreme Court held that a wagon used by the owner in hauling brick, sand, cement, etc., to earn a livelihood, was an “instrument or tool,” within the meaning of article 644 of the Code Prac. If this be true, certainly it follows that a truck or bus employed, as herein shown, by the owner and operated by him personally, is such “tool or instrument” within such meaning.

In Wilbert’s Sons Lumber & Shingle Co. v. Ricard, 167 La. 416, 119 So. 411, the court held exempt from seizure a truck used by the owner to transport slaughtered cattle to market. It was also held in that case that the slaughtering of cattle and transporting them to market is a “trade or professsion or calling” within the meaning of the exemption statutes.

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


author: STEPHENS, J.

text:
    No. 3502
    Second Circuit (Second Division)
    STATE OF LA. EX REL. O’BEIRNE v. POLICE JURY OF RED RIVER PARISH ET AL.
    (June 11, 1931. Opinion and Decree.)

      H. L. Hughes, of Natchitoches, attorney for plaintiff, appellant.
    S.R. Thomas, of Natchitoches, and W. H. Wamsley, of Coushatta, attorneys for defendants, appellees.
   STEPHENS, J.

The state of Louisiana brings this suit on relation of J. J. O’Beirne, resident taxpayer. The relator alleges that he has no adequate remedy at law, and that in order to protect his interests and enforce his rights, the court should issue its alternative writs of mandamus, directed to the police jury of Red River parish, commanding it to open a public road, alleged to have been rendered useless to the public generally, ■ and to him in particular, by virtue of a caving bank of Red river anil a fence erected by Mrs. Catherine Brocato. Mrs. Brocato was made a nominal defendant in the suit, ’ but no relief is prayed for as against her.

The police jury excepted to relator’s proceeding by mandamus, and answered, admitting the former existence of the public road which relator seeks by this action to open, but alleging that said road had long since been abandoned, and that no necessity existed for its being reopened. The answer strongly suggests that the sole purpose of the suit is to compel the police jury to expropriate a right of passage for the benefit of relator over the lands of his neighbor Mrs. Brocato.

The district judge, after hearing had, recalled the alternative writs of mandamus and rejected relator’s demands, from which said judgment he appeals.

The evidence adduced on the trial of the case was not transcribed, but it was agreed between counsel for the parties that the finding of facts by the trial judge is correct and is accepted for the purposes of this appeal.

The facts as stated in the able judge's opinion are as follows:

"Many years ago, the road as alleged by plaintiff and designated as the river road was established. It is probable, there is no one living along this road who can recall just when it begun to be used and maintained as a public road. This road ran from Shreveport south on the west bank of Red River to the line of Natchitoches parish on- the south and perhaps on to the town of Natchitoches. It followed generally along the high bank of Red River. Opposite Coushatta • the road ran on or near the banks of this river and practically followed it to and through the property of plaintiff and that now owned by Mrs. Broeato, the property of the last two named persons being some eight or ten miles south of Coushatta. Some ten years ago there was constructed by the Police Jury of the parish of Red River a graded dirt road paralleling the road designated in plaintiff’s petition as the ‘river road,’ and which graded road extended from north line of Red River to the south line. This road is now known as the ‘Louisiana Purchase Highway’ and was constructed along the railway tracks of the Texas and Pacific Railway Company. This road ran west of the old river road varying in distance from a mile to perhaps half mile. After, this road was constructed, it was used in the place of the river road, except in extreme wet weather, when the river road because of its sandy soil to be found on the front of this river was ¡passable under most any conditions. However, in 1924 or early in ,1925 the road along the Texas and Pacific tracks was entirely gravelled and thereafter it was used exclusively. The Police Jury made no effort' to maintain it or to expend any money in its maintenance. In many places the old road bed caved, into Red River and a very great portion of it was fenced in and some of it placed in cultivation. Perhaps here and there the old road, as is the case with the plaintiff was used only as an outlet to the gravel road. O’Beirne seems to have continued to use this road as an outlet until April or May of the present year, when a portion of the road on the place of 'Broeato caved into Red River and thereby became impassable. At the place of entrance and where it left the Broeato property it seems not to have caved, but after the (portion had caved off, as I recall the evidence Broeato placed some bars across the road and extended his fence either to the bank. of Red River or to the stream of Red Rive'r. Plaintiff's demand as I understand it is that these bars be removed and that the Police Jury compel Broeato ' to give additional land for a new road bed in lieu of that caved in. O’Beirne made formal demand upon Broeato and the Police Jury to open the road and both refused. * * *
“It might be stated in connection with this that O’Beirne has an outlet other than the road in question but it is some considerable distance further over this outlet than over the road in question. * * *
“The old road running along the river bank from Caddo parish line to Natchitoches parish line covered perhaps a distance of 40 miles. The gravel road constructed some years ago, as previously stated, ran parallel with this old road. I do not remember exactly what the evidence showed as to whether from the time the gravel road or the Louisiana Purchase Highway enters Red River parish on the north and leaves it on the south takes up any portion of.the old road. However, our knowledge of this road together with the evidence leads me to doubt there being but very little, if any.”

The relator relies on the old English maxim “Once a highway, always a highway.” He contends that nonuser by the public, and failure to repair, and intention to abandon by the police jury cannot work a legal abandonment of a public- road once existing. That a public road legally ceases to exist only when it is no longer needed, for public purposes, and ‘ is abandoned by the police jury by formal ordinance duly passed. Relator may be correct in this, biit it must be determined that he is correct, in a proper legal proceeding. Mandamus may not be resorted to for such purpose.

Writs of mandamus will ¡properly issue to a public officer or body it said public officer or body has failed or refused to perform a plain, unequivocal, ministerial duty imposed by law. If the duty imposed requires the exercise of judgment or discretion on the part of the officer or public body, as to the manner or extent of its performance; or as to whether it be performed at all, writs of mandamus will not issue to enforce it. Clearly, it is the province of mandamus to enforce undisputed rights, .and such ¡process may not be lawfully substituted for the ordinary and less peremptory proceedings by which disputed questions are determined and adjudicated.

In the instant case the relator relies, lor authority for the issuance of the writs of mandamus, upon Revised Statutes, sec. 3386, which reads as follows:

“In case any legal road be closed, obstructed or changed in violation of the provisions of this act, it shall be the duty of the Police Jury, summarily, to open and remove all obstructions to said road, and to restore it to its former condition, at the expense of any person or persons who may have closed, obstructed or changed the ' same.”

This section dearly imposes upon the police jury the ministerial duty of opening closed legal roads, and removing obstructions therefrom. If this case presented no question of fact other than that the police jury had refused to remove an obstruction 'from an admittedly legal and existing road, we think writs of mandamus would properly issue to enforce relator’s rights. The case as presented, however, is far from being so simple of solution. The police jury, though not having abandoned the road by ordinance, no doubt considers it abandoned in law and in fact, as evidenced by the defense of this suit. If the road was legally abandoned, the jury was without duty as respects it, and if it had removed the obstructions erected by the adjacent landowner, who is asserting a reversionary interest, it would be an act of trespass for which the jury would be liable in damages. That portion of the road which has been physically extinguished by encroachment of the river cannot be restored. Therefore, in order to open the road the police jury must have proceeded to lay out and expropriate another right of way over the Brocato land, which would entail an expenditure of money for court costs and compensation. Certainly, under the difficult circumstances presented, it cannot be reasonably contended that the duty of the police jury in the premises was clear and unequivocal, and may have been performed without the exercise of discretion.

The courts will not interfere by mandamus to compel the performance of a duty dependent upon disputed and doubtful facts.

The Supreme Court of Wisconsin in considering this question used the following language in the case of State ex rel. Schermerhorn v. McCann et al., Supervisors, 107 Wis. 348, 83 N. W. 647, 649:

“A mandamus proceeding will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts, or where the legal result of the facts is a subject for reasonable controversy. If the right be reasonably in serious doubt, from either cause mentioned, the, discretionary power rests with the officer to decide whether or not he will'proceed to enforce it till the right shall have been established in some proper action; and that discretion, fairly exercised, cannot be controlled by mandamus. State v. Hastings, 10 Wis. 518; State v. Sauk Co., 62 Wis. 376, 22 N. W. 572; Wood, Mand. 67, 68.”

It was held by the Supreme Court of Michigan in the case of French v. Common Council of the Village of South Haven, 85 Mich. 135, 48 N. W. 174:

“Mandamus to compel the common council of a village to commence proceedings to remove obstructions in a street claimed to be a (public highway will not lie where the person obstructing the street in good faith denies that it is a highway, and asserts title thereto.”

We are of the opinion that the judgment of the district court is correct and should be affirmed, and it is so ordered.


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    No. 3557
    Second Circuit (Second Division)
    BARONNE BUILDING, INC., v. BULLOCK
    (June 11, 1931. Opinion and Decree.)
    Blanchard, Goldstein & Walker and Leon O’Quinn, • of Shreveport, attorneys for ¡plaintiff, appellee.
    Cal D. Hicks, ' of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

This is a suit to recover rents past due for April, May, and June, and for the unexpired months of July, August, and September, 1928, upon a written contract of lease dated September 28, 1927, at a monthly rental of $55 per month, payable on the 1st of each month, with a stipulation that, in event of failure to pay the rent punctually at maturity, the whole uneapired term of the lease shall at once become due; and, in case it becomes necessary to place the claim for rent in the hands of an attorney for collection, the lessee shall pay 10 per cent, additional as attorney’s fee and 8 per cent per annum interest on the amount of rentals from maturity. The contract, which is attached to the petition, recites the period tq run from October 1, 1907, to September 30, 1908. The petition alleges error as to- these named years, alleging it was intended to be 1927 and 1928, instead of 1907 and 1908. The testimony in support of this allegation shows unquestionably the error as alleged. In fact the error is not disputed.

The premises leased is shown to be room No. 602 of the Baronne building in the city of New Orleans. The purpose for which it was rented was for use by defendant as an insurance office.

Plaintiff alleges defendant failed to pay-rent for the month of April when due; that defendant continued in his failure to pay for said month, as well as for the subsequent months of May and June; that rents for the remaining three unexpired months are therefore now due, the whole aggregating $330, the principal amount sued for, including 8 per cent per annum interest thereon from April 1, 1928, until paid, plus 10 per cent additional as attorney’s fees, as provided for in the contract.

Defendant in answer admits he has ©aid nothing for the six months alleged on, but avers he owes nothing for said months, for the reason that when he paid rent for March, 1928, he informed plaintiff’s agent, Lewis P. Eaves, he had failed in his insurance business and would have to vacate the leased premises; that thereafter, on March 9, 1928, Mr. Eaves, as agent for plaintiff, received and accepted delivery of the keys to the said premises from Mr. J. R. Medlock, a représentative of defendant, whom defendant had left in charge of the premises; that later said Eaves' ordered Medlock to remove the furniture belonging to defendant from the premises, which was done in compliance with said order; that these alleged facts and circumstances operated as a cancellation of the lease.

Defendant then reconvenes for $65 for a counter desk which he alleges belonged to him among the things moved from the premises under orders from Eaves, and which defendant alleges cost him $65.

Prom a judgment in favor of plaintiff in the full amount sued for, and rejecting the demand in reconvention, defendant prosecutes this appeal.

The defense to the suit is based upon the claim by defendant that the contract of lease was canceled by reason of the alleged surrender by defendant and acceptance by plaintiff of the keys, and the removal of defendant’s property under orders of plaintiff from the premises. Upon this phase of the case we have the testimony of defendant, who says he left New Orleans and moved to Shreveport about March 10, "1928, and when he left he turned the keys over to Mr. • J. R. Medlopk, and told Mr. Lewis P. Eaves he had given Mr. Medlock permission to move the furniture and that, when the furniture was moved, to turn the keys over to Mr. Eaves.

Also we have the depositions of J. R. Medlock, taken under commission on behalf of defendant. A number of questions asked this witness by counsel were objected to, when, offered in court, as leading, and were held by the court, as shown in its written opinion, as being grossly leading and suggestive. We have read these questions and agree with the court in this respect. The questions áre lengthy, and about all the witness had to do was to answer “Yes” qr “No.” Counsel stated to witness what defendant claimed went with the keys, and asked if that was true, and witness said “Yes.” Witness did not give the detailed circumstances under which he turned the keys over to Mr. Eaves. Eaves, in his testimony, explained the circumstances fully. He denied - Med-lock turned the keys over to him. Ac-, cording to his testimony Medlock represented that all of the furniture that was in the leased office, except a counter desk, belonged to the American National Insurance Company, of which Medlock was general agent,. defendant being only a local agent; that Medlock remained in New Orleans a short time after defendant had left for Shreveport, to look after defendant’s affairs, and requested Eaves’ permission to move his company’s belongings from the office; that he (Eaves) permitted this done with the distinct understanding that defendant should not be released from payment of the rents; and. that Medloek assured him that defendant was reliable and was going to continue to represent Medlock’s company in Shreveport, where he would soon be able to recuperate his finances and could pay the balance on the rent claim.

We are convinced, as was the lower court, that the rent contract under the circumstances was not canceled, and its cancellation was hot so agreed upon nor un-. derstood by the parties, either tacitly or otherwise.

Counsel vigorously objected to the using in evidence of the depositions of Lewis P. Eaves and Charles, J. Gulzer, taken for plaintiff de bene esse under Act 98 of 1926, before a notary in New Orleans. He states numerous reasons, among which is that it is not affirmatively shown by the notary’s certificate attached to the depositions, nor in the preamble, or elsewhere, that the notary was not counsel or attorney for either party to the suit or was not interested in the cause. Counsel urges that such showing was necessary; that the burden was upon plaintiff to show this. The portion of the act pertinent to this point raised reads as follows;

“The deposition may be taken before an officer authorized by law to administer oaths, not being either counsel or attorney of either of the parties, or interested in the cause.’’

This is not shown affirmatively in the notary’s certificate nor in any other place connected with the depositions. The record in the case, however, as a whole, shows who the attorneys are representing the parties, and who the parties themselves are. Hence, we think.it reasonable to conclude, as evidently the lower court did, that, since the notary taking these depositions is not shown from the record to be one of the counsel in the case nor one of the parties to the cause, he was not such in fact. Besides, a rule was taken out to show casue why the depositions should not be used in evidence. The rule, according to the minutes, was regularly taken up, tried, and made absolute. Certainly defendant was given every opportunity to show in the trial of the rule any informalities there might have been in the taking of the depositions. We think the court was correct in overruling the objections of counsel on this point.

Taking the testimony as a whole we think plaintiff made out its case. The judge of the district court has written a lengthy opinion which is in the record, and we think his reasoning good and his conclusions correct. As he states, he cannot see why the acceptance of the keys and the permitted removal of the furniture constituted a cancellation of the lease. We think this also, especially when we consider the circumstances under which it was done are such as are disclosed by the testimony in this case.

We are also of the opinion that defendant has failed to submit sufficient proof in support of his reconventional demand. The desk for which he claims was apparently abandoned by him and given away by his agent Medlock to a negro for having it removed. Furthermore, as the judge states, the present value of the desk has not been proven. The amount it cost defendant to have it built cannot be taken to represent its present value.

Judgment is affirmed.


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    No. 3546
    Second Circuit (Second Division)
    OWENS v. OWENS ET AL.
    (June 11, 1931. Opinion and Decree.)
    S. R. Thomas, of Natchitoches, attorney for plaintiff, appellee.
    Rusca ' & Cunningham, of Natchitoches, attorneys for defendants, appellants.
   TALIAFERRO, J.

This is a suit to reform an authentic act of sale of land by correcting the description therein given, alleged to be erroneous.

Plaintiff alleges that in keeping with an agreement to take effect, entered into in the year 1907, he purchased from defendant Barney O. Owens, on February 4, 1912, lot No. 4 of section 18, township 6 N., R. 4 west, in the parish of Natchitoches for the price of $200, but through error the deed evidencing the transfer of said land described same as. being west half of said lot 4; that at date of said deed, said lot was in his physical possession and had remained so continuously since; that he has cleared portions thereof and improved it so that its. value is $2,000; that some seven or eight years prior to filing this suit, said Barney O. Owens became angered at him, and, discovering .the error in said deed, on January 23, 1923, purported to sell to his son, Otto Owens, defendant herein, the east half of said lot, which was the portion of land previously sold petitioner, erroneously omitted from his deed; that his dwelling house is located on said east half of said lot, having been built there at the suggestion of the said Barney O. Owens in the year 1907; that said Otto Owens is a party interposed to assist said Barney '0. Owens, in his fraudulent plan to deprive petitioner of said property, and the said purported transfer between them was and is a subterfuge, the price thereof being only $100, whereas the property described is worth $1,500; that he intended to buy, and said Barney O. Owens intended to sell him, all of said lot 4.

Plaintiff further alleges:

“That the said Otto Owens did not. purchase said property, that both he and his father Barney O. Owens, were in bad faith in the matter and that the said puri ported transfer was fand is fraudulent to the knowledge of both the said Barney O. Owens and the said Otto Owens.”
“Your petitioner shows that notwithstanding the said purported transfer was made by Barney O. Owens to Otto Owens on January 25,1928, that neither of said parties has ever notified your petitioner thereof, and that your petitioner . only learned qf said fraudulent and purported transfer on or about October 3, 1928.”

The prayer of the petition is for judgment correcting and reforming the description in the deed from Barney O. Owens unto petitioner so that the same will read: “Lot 4 of Section 18, Township 6 N., R. 4 West,” and he be decreed the owner thereof; that the purported transfer from Barney O. Owens unto Otto Owens be declared null and of no effect, and be erased from the records.

The answer of Barney O. Owens in the main is a general denial. .. He further says that he owned lands in section 18, which he offered to sell to plaintiff, which -was wild and unimproved, and worth very little in such state; that, plaintiff being unable to purchase the land, respondent permitted him to clear* a part of it, with the understanding that he might have free use thereof, provided he would clear and put in cultivation additional lands from time to time; that several days prior to the execution of said deed plaintiff and he discussed the sale of this and other land owned by respondent; that plaintiff desired to purchase the W: % of lot 4 of section 18, but respondent at first declined to sell same to him, for the reason that portion of the lot was the better, being high, sandy land, and, should, he do so, the balance of his property might be rendered valueless, but, being assured by respondent that he was unable to purchase more of said land, respondent finally agreed to sell him the west half of said lot 4, and the sale was consummated the following day before the clerk of court at Natchitoches; that plaintiff bought the land described in said deed, and that • only. He admits that he sold the east half of lot 4 to his son, Otto Owens, and specially denies that plaintiff intended to buy same, and that he did not pay for it, and never, prior to filing this suit, asserted claim thereto.

. The answer of' Otto Owens, in substance, is practically the same as that of his eo■defendant. He avers that on February 9, 1920, he purchased from Barney O. Owens the S. E. % of S. E. %, sec. 18, town. 6 N., R. 4 west, and. prior to that date he was living on said 40-acre tract; that on January 25, 1923, he purchased from said Barney O. Owens the east half of lot 4, adjoining above-described tract, and that he went into possession of that part of lot 4 not in possession of plaintiff, but that he was uncertain as to the location of the true, boundary lines of said lot; that any part of E.. % of said lot in plaintiff’s possession was due. to' his ignorance of the correct boundary lines thereof.

This defendant' further avers that he purchased said land from his father, Barney O. Owens, in good faith and on faith of the public records, after having an abstract of the title made and procuring a mortgage certificate showing it to be unincumbered, and paid a fair price therefor.

There was judgment for plaintiff as prayed for. Defendants appealed.

The parties to this controversy, and many of the witnesses, are related. The usual amount of contradictory evidence and cross-swearing, characteristic of such affairs, appears in the record.

Defendant Barney O. Owens, contradicting his answer, admits that in 1907 he had an agreement with plaintiff to the effect that plaintiff was to move on his lands in section 18, “build, clear and work the land, until he was able to buy it and pay for it,’’ and that ne agreed to make a deed whenever he was able to pay for it; that west half of lot 4 was the land mentioned.

It is established that m 1907 this defendant and plaintiff, accompanied by a mutual friend, went over lot 4, and in a general way located some of its boundary lines, and that at this .time defendant suggested to plaintiff that he build his home, where he did build it, in south end of the east half of the lot, and where he lived continuously until this suit was filed. I.t is also shown that then and there this defendant stated that he had agreed to sell plaintiff 40 acres for $200. Plaintiff commenced to clear land in 1914, and by 1923 had 18 acres open, of which 16 acres were on the east half of the lot and 2 acres on the west half of it. The value of the east half of the lot in 1923 was fixed by plaintiff at $1,500 and by defendant at $15 or $20 per acre. Defendant states that he did not know the east half of .the lot was in cultivation in 1923, but had an idea it was. He lived very close to it. Several witnesses, many of whom cannot be accused of being interested to any extent, testify that Barney O. Owens stated to them or in their hearing that he had sold 40 acres of land to plaintiff. One witness stated that this defendant told him that plaintiff was honest in thinking he bought 40 acres of land, and that he (defendant) was honest in thinking he had sold plaintiff this acreage; that they both thought the west .half of lot 4 contained 40 acres. It is also shown that this defendant stated that, if plaintiff did not withdraw some criminal charges, he had made against two of the Owens boys, the piece of land would be taken away from him.

At the date of deed to plaintiff Barney O. Owens owned the following described tracts of land in Natchitoches parish, contiguous, viz.; Lot 4 of sectionc 18, containing 40 acres; S. E. % of S.'E. %, section 18, containing 40 acres; lot 5 of section 17, containing 51% acres; township 6 N., R. 4 west, aggregating 131.50 acres.

He states that on the day he executed deed to plaintiff he went to the assessor’s office and had his assessment changed for the succeeding year. For the years 1909 tc 1912, inclusive, he was assessed with 131.50 acres, and for succeeding years to and including 1920 he is assessed with 91.50 acres described as being E. % of lot 4, Sec. 18, and" lot 5 of Sec. 17, Town. 6 N., R. 4. For the years 1921, 1922 and 1923 he is assessed with 71 acres, being lot 5, Sec. 17, and E. % of lot 4, Sec. 18, 6— 4, with some slight variations, while for the years 1924 to 1928 he is assessed with lot 5 of section 17, containing 51 acres. Prom 1912 to 1928 plaintiff is assessed with 40 acres,, described, in almost every instance, as W. % of lot 4 of section 18, T. 6 N., R. 4 W.

Plaintiff’s contention is. that he thought lot 4 of section 18 embraced 80 acres. There is considerable evidence in the record to indicate that defendant Barney O. Owens also thought so. An analysis of his assessments after 1912 lends force to this thought. In adjusting his assessment, after making deed to plaintiff, he instructed the assessor, evidently to reduce his acreage by 40, and for 1913 he is assessed with lot 5 of section 17, and east part of lot 4 of section 18, the acreage being given, at 91.50.

The evidence as a whole leaves no doubt in our mind that plaintiff intended to buy, and defendant intended to sell, 40 acres, of land, and that this tract was to contain plaintiff’s improvements and cleared land, where he had lived since 1907. We are also convinced that both parties were under the impression that lot 4 of section 18 not only embraced what in reality was lot 4, according to the official plat, but also 5. E. 14 of S. E. *4 of section 18. In not one of defendant’s assessments is the S. E. % of S. E. %, section 18, given; only the lots are described. The evidence also convinces us that plaintiff intended to buy from Barney O. Owens, and that he intended to sell to plaintiff, the west 40 of the land in section 18, and that land, according to the evidence, is designated on the plat book as lot No. 4.

Actions to correct and reform erroneous descriptions in deeds will be maintained by the courts when the evidence shows clearly the error ■ complained of. However,, relief against such errors will not be granted when, by doing so, the rights' of bona fide third parties will be prejudiced. No inflexible rule can be laid down as ,to what is good or bad faith in such matters. Every case, largely, must depend upon its own merits. Waller v. Colvin, 151 La. 765, 92 So. 328; Bender v. Chew, 129 La. 850, 56 So. 1023; Adams v. Drews, 110 La. 456, 34 So. 602; Gladdish v. Godchaux, 46 La. Ann. 1574, 16 So. 451.

A deed of record is controlling, except in cases of circumvention, fraud, and bad faith. Bender v. Chew, 129 La. 856, 56 So. 1023.

In Waller v. Colvin, supra it is. said:

“In a suit to reform a deed, testimony that those claiming under the deed had been in actual possession of the land claimed since its date during a period of over 20 years openly, publicly, and without disturbance of any kind from adverse claims, was most convincing proof of an intent to convey such land.”

Plaintiff herein has been in possession of practically all of east half of lot 4 of section 18 for many years prior to the deed thereto from Barney O. Owens unto Otto Owens. He had a large clearing on it in 1923, and continued to clear more land, sell timber therefrom, and. in all respects exercise undisturbed control and dominion over same, almost in sight of both defendants, to the filing of this suit in October, 1928. Otto Owens lived on S. E. 14 of S. E. y¡, section 18, adjacent to east half of lot 4 of that section; yet he denies that he knew that any part of the latter was cleared or that plaintiff lived on it, though admitting he did know that plaintiff erected a house thereon in 1907. He stated that he had no idea what the east half of this lot was worth, but afterwards admitted it was worth at least $15 per acre, but that he purchased it for $5 per acre. In many material respects he contradicted himself, was evasive, and professed .ignorance of facts, all the circumstances indicate unmistakably, he must have possessed knowledge of. In his answer he avers that he purchased this property from his father in good faith, after securing an abstract of title thereto and a mortgage certificate. It is shown he did not accompany his. father to Natchitoches when the deed was executed, and that he did not sign same. He admits he did not take these precautions when he purchased the S. E. % of S. E. %, Sec. 18, from his father. When deed was executed to him, his brother, Dewitt, represented him and paid the price of the’ sale in cash, $100. They had the clerk of court count the money in order that no mistake could be made. This was, to say the least, a suspicious transaction between father and son.

The testimony in this case discloses a multitude of circumstances, so suspicious and unusual in their nature, and unexplained, as to make the conclusion irresistible .that there was concert of effort on part of defendants to fraudulently deprive plaintiff of the east half of lot 4 of section 18 which he had bought and paid for, and that defendant Otto Owens acted throughout .the entire transaction in bad faith, knowing that the land did not legally belong to his father,' Barney O. Owens. The judge of the lower court, who is acquainted with all the parties involved, and who saw and heard the witnesses at trial, reached these conclusions. His judgment should not be disturbed, unless obviously wrong.

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


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    No. 3603
    Second Circuit (Second Division)
    FLORSHEIM v. PENN ET AL.
    (June 11, 1931. Opinion and Decree.)
    Cook & Cook and Cl D. Egan, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellants.
   CULPEPPER, J.

This suit involves a claim for rent and cancellation of contract of lease. Plaintiff and defendants entered into a written contract dated February 1, 1928, wherein plaintiff leased to defendants 75 acres .with buildings, and improvements, being part of Rose Hill farm, in Caddo parish, for a period of three years beginning February 1, 1928, at a stipulated ^monthly rental of $40 for the first eleven months and $50 a month for the remaining period, payable at the end of each month. The contract contains a clause stipulating: “If the lessees * * * shall fail to pay rents for three consecutive months when due, then and in that event all remaining installments for rent shall become due and payable at the option of the lessor.” It also contains a clause providing that “the lessees obligate themselves to pay all rents promptly, make all repairs at their expense, keep property in good repair. * * * ”

Plaintiff alleges, in petition, after setting forth the contract and the terms and stipulations therein, that under the terms of the contract the total rental due from the beginning of the lease to the end of November, 1928, amounted to $400; that lessees have paid a total of only $270, of which- amount $30 was represented by check given July 14, 1928, which check was dishonored when presented to the bank for payment and returned to plaintiff for lack of sufficient funds, and therefore the actual total amount paid was only $240; that there is now past due and unpaid the sum of $160, same being for rent for August, September, October, and November, 1928. It will be noted that this suit was filed on November 22, 1928.

Plaintiff further sets forth in petition that she desires to avail herself of the provision of the lease which authorizes her to declare the entire amount of rent due and payable for the entire three-year period of the lease, for the alleged reason that defendants have failed to pay rents for three consecutive months. And, so availing herself of said provision of the contract, plaintiff alleges defendants owe her, and same is past due, the additional sum of $1,290 over and above the $160 already alleged upon, making a total amount past due and unpaid of $1,450.

Plaintiff prayed for and obtained an order of provisional seizure of the movable effects belonging to defendants upon the leased premises.

Defendants moved to dissolve the seizure upon the alleged grounds: That defendants owed no rents;, that they hold receipts for each month except the month of April, which month was paid in cash but received no receipt for same; that the seizure was illegal and should be dissolved. Defendants set forth numerous other grounds in support of the motion, and pray for damages, for labor and improvement, and attorney’s fees, aggregating $1,000. The motion was referred to the merits by the court, whereupon defendants filed answer of general denial, averred all rents had been paid, part in cash and balance in improvement placed on premises. They aver that the $30 check of July 14, 1928, - described in petition should have been honored by the bank for the reason that defendants had sufficient funds in the bank to cover, and furthermore defendants had offered to make check good several times by offering to pay plaintiff the cash through her agent, Marks Meyer, in charge of the collections, for plaintiff, but said Meyer refused' on each occasion to surrender the check. They' aver they have receipts showing payments of rents regularly for each month; that some of the receipts show for less than $40, but in such instances the difference was always accounted for in labor and improvements, which was agreed upon by defendants, and said agent at the time. Defendants allege they placed improvements upon the property amounting to $100 for which they received no credit on rent. They claim reimbursement for that amount, together with $500 for mental worry caused one of the defendants, Mrs. Clarence M. Penn, time lost, etc., on account of the suit, $150' for attorney’s fees, and ■ $250 for alleged breach of the contract by plaintiff, all aggregating $1,000.

The case went to trial upon the issues thus presented, resulting in a judgment in favor of plaintiff for $1,430, rejecting the demands, of defendant, sustaining the provisional seizure, and ordering the sale of the seized property. Whereupon defendants filed a motion for new .trial and rehearing; same was tried, and a new trial refused, but rehearing granted. Rehearing was had, submitted, and judgment thereon was rendered in favor of plaintiff and against the defendants in solido for $100, with legal interest from October 31, 1928, reserving to plaintiff the right to sue for balance due under the lease. The demands of defendants, were rejected; the provisional seizure maintained and ordered enforced. From this judgment defendants have appealed.

MERITS

The rent receipts referred to in the pleadings, testimony, and briefs filed, and which the transcript shows were, marked and filed in evidence in connection with the testimony, do not appear in the record as brought up to this court. The clerk in his index to the record states the offerings of defendants, other than the one marked “D-5,” which is defendants’ bank statement, could not be located, notwithstanding diligent search. While plaintiff’s petition alleges the rent started February 1, 1928, Marks Meyer, plaintiff’s agent in negotiating the lease contract and wllo collected the rents for plaintiff, testified that the rent did not actually begin until the 15th of that month. The payments according to the receipts show to have been made in amounts and on dates as, follows:

$20 paid on or before February*. 1, for rent to March 1st.
40 paid April 2.
20 paid June 5.
40 paid July 31.
40 paid September 1.
40 paid October 1.
40 paid November 1.
$240 total called for by receipts.

Mr. Meyer testified that there were no other or further payments made, except that Mr. Penn, one of the defendants, gave him a check on July 14th for $30 on which payment was refused by the bank for lack of sufficient funds. Mr. Penn testified he paid Mr. Meyer at the latter’s home $40 in cash on April 29th, for which no receipt was given, for the reason that Meyer said he. was too nervous to write on account of being sick at the time; that he promised to furnish Penn a receipt as soon as he was able .to go to his store, but never did do so. Meyer denies having received the $40. One affirms and the other denies. The court saw and heard them testify. It appears that the judge refused to allow credit for this $40, and we shall be governed by his decision on this, point. The amount called for by the $30 check was also properly disallowed by the court, in view, .no doubt, of the circumstances in that connection.

The accruals on rents from February 15 to November 1 aggregate $340. The total payments for- that period were $240. This left a balance due to November 1 of $100. The judgment of the lower court was for that amount, which we think is correct. Rent for November - was- not due until the last of the month, and the judge properly-rejected the claim for that month, inasmuch as his final decision was. to reject plaintiff’s claim for all subsequent rentals under the contract. Plaintiff has abandoned her claim for these subsequent rents on appeal; hence it is unnecessary for this court to go into that question.

Regarding the demands of defendant for damages, attorney’s fees, and improvements, the testimony, we think, as did the lower court, is insufficient in support thereof to warrant any award on same. The district judge heard all the evidence, pro and con, on these demands, and rejected them in- toto. We see no reason to disagree with him on any of the points raised. The same is true with reference to defendants’ claim for credits on rents for alleged labor and improvements. Plaintiff’s agent, Meyer, testified that the reason he reduced the rents for the first eleven months, from $50 to $40 in the contract was to allow for improvements to be made. This amount would run to $110. The contract itself specially provides that the lessees shall make all improvements at their own expense. It is admitted that Mr. Meyer himself had the windows repaired at his expense. And he testifies he furnished lessees with a sink and offered them a bath-tub, but they never did come for it.

We think the judgment appealed from is correct, and same is therefore affirmed.


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    No. 3609
    Second Circuit (Second Division)
    PARROTT v. SELLERS ET AL.
    (June 11, 1931. Opinion and Decree.)
    J. W. Jones, of Natchitoches, attorney for plaintiff, appellant.-
    Gunter & McClung, of Natchitoches, attorneys for defendants, appellees.
   CULPEPPER, J.

T. B. Sellers, father of defendants, died January 14, 1928, and his wife, defendants’ mother, died December 9, 1925. At the time of the death of the former, his property was heavily incumbered; plaintiff being holder of a second mortgage against some of it at the -time, in the principal sum of $250. The Bank of Robeline also held a first mortgage for a considerably larger sum against the same property on which plaintiff’s rested. On March 5, 1928, G. C. English, president ,of the bank, filed application for appointment as administrator of the succession of said T. B. Sellers, alleging among other things that his bank was a creditor of the succession, and that the heirs had failed or neglected to claim the succession. In due course the application was granted and applicant permitted to qualify without opposition; an inventory having been regularly taken under the application. The administrator soon thereafter petitioned the court for, and obtained, an order to sell the entire property, real and personal, belonging to the succession, for the purpose of paying debts. After the sale was consummated, the administrator filed his final account, setting forth the assets and list of debts, among the latter being the $250 second mortgage debt owing to plaintiff in this suit.

There was also shown on the list of assets, under the head of “Rights and Credits,’’ the sum of $699.42 as being the proceeds. of an insurance, policy upon the life of said T. B. Sellers, which the administrator had collected. It is shown that the beneficiary named in the policy was Seller’s said wife, Mrs. Blanche Sellers, who was living at the time the policy was issued, but had died prior to hfs death, and under a clause in the policy the proceeds, in event the insured survived the beneficiary, was. payable to executors, administrators, or assigns of .the assured at his death. The administrator, proceeding in accordance with the. provisions of Act No. 88 of 1916, proposed in his final account to pay this insurance money over to the heirs of the deceased T. B. Sellers. The final account was advertised, no opposition made thereto, and in due course homologated, and the funds ordered distributed according to the proposals in the account. The heirs accordingly received the proceeds of the insurance. The other funds were distributed among the creditors as far as the funds went; plaintiff in this suit receiving enough on his second mortgage to reduce it to a balance unpaid amounting to $114.57.

Plaintiff brings this suit to recover said above sum of $114.57, with accrued interest and attorney’s fees, from defendants herein, viz.: Elma Sellers, Otto' Sellers, Ghreistell Sellers, Mrs. Vera May Sellers Weaver, and T. B. Sellers,, Jr., as heirs of said T. B. Sellers, deceased, for the alleged reason that defendants accepted the succession of .their said father “condi tionally’’ (evidently meant to say unconditionally) and without benefit of inventory, and that they are thereby bound for the payment of the debts of the succession, such as that herein sued for.

Defendants entered a general denial, and specially averred that their father’s succession w.as duly administered, the property sold under order of court, final account duly homologated, funds distributed, and administrator discharged.

The case was tried upon an agreed statement of facts. Prom a judgment rejecting plaintiff’s demands, plaintiff has appealed.

The agreed statement of facts filed in evidence shows that all the property and effects of the succession were sold under the administration opened by the Bank of Robeline, a creditor, and the debts, as listed on final account and tableau of distribution, were paid with the funds as shown on final account, which was duly approved and homologated by the court; that no opposition was made to the account; that defendants received the proceeds of the insurance as heirs, of the deceased. The entire proceedings had in the succession were filed in evidence. Defendants did in fact accept .the proceeds of the insurance with benefit of inventory as can readily be seen. It was not an unconditional acceptance as apparently alleged by plaintiff. It was also admitted that there was a balance left, unpaid on plaintiff’s mortgage note amounting to the sum herein sued for.

The sole question here presented is whether the proceeds of a life insurance policy payable to the estate of a deceased are exempt from the debts of the succession, Act No. 189 of 1914, as amended by Act No. 88 of 1916, provides as follows:

“The proceeds or avails or dividends of all life, including fraternal and co-operative, health and accident insurance rhall be exempt from all liability for any debt, except for a debt secured by a pledge of policy, or any rights, under such policy that may have been assigned; or any advance payments made on or against such policy.’’ See Succn. of Clement, 146 La. 385, 83 So. 664; Succession of LeBlanc, 142 La. 27, 76 So. 223, L. R. A. 1917P, 1137.

Since the claim of plaintiff falls under none of the exceptions named in the act, it is clear that the claim must fall. The provisions of the act are plain and unambiguous, and are the law oh the case.


text:
    No. 3516
    Second Circuit (Second Division)
    KEELEY v. CLARK & MORSE LBR. CO., INC.
    (June 11, 1931. Opinion and Decree.)
    Harry Y. Booth, of Shreveport, attorney for plaintiff, appellant.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff, the widow of Frank Keeley, deceased, instituted this suit- against Clark & Morse Lumber Company, Inc., to recover compensation to the amount of $5,980 and $150 for funeral expenses, on account of the death of her said husband, an employee of defendant, while on an errand alleged to have been incidental .to his employment and within the scope thereof. She alleges that he was receiving approximately $32.50 per. week wages when he lost his life on February 27, 1927, as the result of the automobile in which he was riding turning over on the highway. His position was that of circular saw filer, but in absence of the mill foreman and other executive officers kept time and performed other duties. Defendant admits that deceased was in its employ when killed and was receiving the wages alleged by plaintiff, but specially denies that at time of his death he was performing any service arising out of and incidental to his employment.

Plaintiff’s demand was rejected by tlie lower court, and she -prosecutes, this appeal.

Issues of fact only are involved.

The petition does not disclose the character of defendant’s business deceased was engaged in when killed. Plaintiff’s theory is that he had started .to Moritrose, some three or four miles, north of Derry, to get some machinery needed for repairing defendant’s mill.

Plaintiff, as a witness in her own behalf, says: That her hsuband worked at defendant’s mill until 11 o’clock Sunday morning, February 27, 1927, and then came home for dinner, -changed his clothes, borrowed a car from defendant, and, accompanied by her and their small son, .the trip up the river was begun. That when about- one mile from Derry he took out his watch and remarked: “We won’t have time to go up there and get back by one in time to put the men to work. I will go back and tell Eddie what to do and -then go on.’’ That he then turned the car about and headed for Derry and as they drove upon the bridge over Cane river another car drove on the opposite end, and, while backing his car off of the bridge and onto the embankment (approaches.), it turned over, causing injury .to him of which he died immediately.

Plaintiff testified that she told several persons after the accident to and death of her husband that he had started to Mont-rose for some, machinery for the sawmill, but no witness was introduced to corroborate her on this point.

E. W. McCall, adjuster of the company with whom defendant carried insurance, in August or September, interviewed plaintiff to secure from her the facts of her husband’s death. Her statement was reduced to writing. She admits signing it and that it was read to her before she did sign it. She does not challenge its correctness. As some of the .contents of this statement have an important bearing upon plaintiff’s, evidence, we quo-te it in full:

“On Feb. 27th my husband, Frank C. Keeley, took myself and our boy in the Willys-Knight roadster belonging to Clarke & Morse Lumber Co., and went to the forks of the Natchitoches highway about 2 miles from the mill. We left the mill at 12:20 P. M. Mr.-Keeley had been out about the mill that morning. I- don’t know whether he was working or not but he had his work clothes on, and I suppose he had been working. He came to the house about 11:00 or 11:30. We had 'dinner and then Mr. Keeley- told me that he had to go to Montrose and asked me to go with him. He did not say what he was going for and I do not know what he was. going for. We got our boy "and left at once. When we got to the forks of the road or just before we got there, Mr. Keeley looked at his watch and said, ‘By golly, we are not going to have time to make it now. We will go back and we will go later.’ I suppose that; he meant he' had to go back and put the men to work, at the mill and go to Mont-rose later. He turned the car around at the forks of the road and started back to the mill. When we got' to the Cape river bridge, we had started on the bridge, we were about 20 or 30 feet from the end of the bridge, when a car drove on the other end of the bridge. When the other car got on the bridge Mr. Keeley backed off of the bridge and when he did so he backed over the side of the dump and the car turned over.
“I went on this trip just to be with Mr.Keeley. I do not know what he went for. We did not go over there to get any kind of vegetables or poke salad.”

Mrs. Keeley gave the following testimony on direct examination:

“Q. Where did he go after he left the mill?
“A. He came home for lunch and after lunch we started to Montrose after machinery.
“Q. Do you mean your husband and you left for Montrose after machinery?
“A. Yes, sir.
“Q. What was the machinery for?
“A. For repairs to be' used for repairs at the mill.
“Q. Did you arrive at Montrose?
‘‘A. We did not.
“Q. For what reason?
“A. After going about a mile, approximately a mile up the road, my husband looked at his watch and said ‘We won’t have time to go and get back in time to put the men to work at one o’clock,’ so we started back.
“Q. Back to where?
“A. To the saw mill so he could put the men to work.”

It will be observed that there is material difference in detail and substance between the three versions given by Mrs. Keeley of the reasons assigned by her husband for not going' on to Montrose after looking at his watch. In the statement to Mr. McCall, given many months after the death of her husband, she declared twice she did not know why he was going to Montrose. In her petition no detail information on this point is given, while in her evidence at trial of case she stated he was. going to Montrose for repairs for the mill. In her evidence, quoted in the beginning of this opinion, she said her husband declared he would go back and ‘‘tell Eddie (referring to Eddie Carter) what to do and then go on,” while in the statement .to McCall no reference to Carter is made, but she did say, “I suppose that he meant that he had tq go back and put the men to work at the mill and go to Montrose later.”

It is disclosed by .the evidence that there was no one at the .mill after, 11 o’clock that Sunday morning excepting Louis Radial, the fireman whose .duty it was to “keep up insurance steam.” There was no one there to put to work, as Carter, testified he quit work when Mr. Keeley left the mill.

Eddie Carter, an employee of defendant when Keeley was killed, stated, as a witness, that he was at the sawmill the morning before the accident and put a pin in the ratchet wheel; that Keeley was there also and did some work on the roller bed and left the mill about 11 o’clock, and that he (witness) quit work at same time; .that he, Keeley, and Louis Rachal, the fireman, only were at the mill .that morning; that deceased told him as he left the mill that he was, going to Montrose to get the gear to repair the machinery; that he and deceased hunted together.on Friday previous; ■that., he never told any one, except his wife and father, that Mr. Keeley was going to Montrose. for the gear to repair the mill, and that neither Mrs. Keeley nor her attorney knew what his testimony would be before he gave it on trial.

Louis Rachal, the fireman, witness for plaintiff, stated that he was at the mill the day Keeley was killed “holding insurance steam,” but did not see either Keeley or Eddie Carter. However, he did see Keeley there the day he cleaned but the boilers, which was on Saturday; .that Keeley told him on that day he was going to Montrose Sunday to get a piece of machinery; that the mill did not run on Friday, February 25th. On March 20, 1927, this witness sighed a written statement, before two attesting witnesses, wherein he stated he washed out the boilers of the mill on February 27th. In his testimony at trial of case he explained that he had erred in fixing this date as. the 27th.

Defendant contends that plaintiff’s husband never intended to go to Montrose the morning he was killed for any machinery for its mill, but, on the contrary, .the trip was made to secure some poke salad (greens) which grew wild along the banks of Cane river and over the adjoining country,

Mr. J. T. George, assistant bookkeeper for defendant, testified that when deceased asked for the loan of the company’s car he stated .that he desired to go up the river for some poke salad, and would be gone not more than twenty or thirty minutes. Joe Haley, another witness, stated that, as Keeley and wife were leaving the company’s commissary on this trip, Mrs. Keeley, in thé presence of her husband, invited him to go along with them, saying that they were going for poke salad. Eight other witnesses testified that very soon after the tragedy, while Mrs. Keeley was in great distress and anguish, she told them that she and Mr. Keeley had gone up the river to get some poke salad. To some of these witnesses she reproached herself for having insisted on making the trip, her husband not caring to do so as the brakes of the car were not good.

O. Spillman was the day watchman at the mill on February 27th. He did not see either Keeley or Carter there that morning, but did see Keeley at the commissary with his Sunday clothes on. He heard him ask Mr. George for use of the company’s car, and corroborated George’s testimony as to what Keeley said he wanted the car for. This witness said his duties were to go over the mill every hour and “punch the clock,” and that he attended to this duty on February 27th.

James Yercher, an employee at defendant’s mill, stated, that he worked there on any Sunday when needed; that when there was work to be done on a Sunday Mr. Keeley would inform him of that fact on Saturday night. He did not work the day Keeley lost his life.

At the time of death of Keeley, Mr. J. Kelly Morse was assistant manager and mill foreman. He left Derry at’9 o’clock the morning before .the tragedy, but returned that night. He testified that the mill had not been running for two days, and that repair work was generally done, when needed, on the days when the mill was closed down. It was the business of Mr. Morse to see that the mill was in condition to run the following Monday morning; that no repair work was done without his order, and none was. needed on the mill on February 27th, He stated that he saw Eddie Carter leave Derry on a crawfishing trip at 7:30 o’clock that morning.

It is shown that work on defendant’s sawmill on Sundays was. no uncommon thing. It is also shown that poke greens grow promiscuously about Derry, and may be found within short distance of the home of deceased. No one saw any of these greens in or about the car in which Keely was killed.

There was very little objection made to the introduction of evidence at trial of the case, and it therefore took a wide range. The witness Rachal stated that Keeley told him Saturday night he was going to Montrose the next day for repairs for ,the mill, and Carter testified that deceased told him on Sunday that he would go for these repairs that evening. Beyond this testimony there is nothing in the record tending to disclose the purpose of the trip to Montrose, if such purpose existed, save the evidence of plaintiff. Only a short time before she filed this suit she declared in writing she did not know why Mr. Keeley started on the trip. It seems to us unreasonable, if Keeley intended to go to Montrose for machinery or repairs for the sawmill,' that he should stop1 about midway of the trip and turn back simply because he could not make the round trip by 1 o’clock. There was really no work going on at the mill that required his presence there at that hour or at any other hour that evening. And it is passing strange that Keeley, if he intended going to Montrose on company business, did not declare that purpose, to Mr. George when he asked for the use of the company’s car for twenty or thirty minutes. The car was generally used by the employees of the company.

We think plaintiff has failed to establish that her husband lost his life while discharging duties incident to or arising out of his employment with defendant, and the judgment of the lower court is therefore affirmed. •


author: TALIAFERRO’, J.

text:
    No. 3462
    Second Circuit (Second Division)
    JONES v. ROBELINE GARAGE ET AL.
    (June 11, 1931. Opinion and Decree.)
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    S. R. Thomas, of Natchitoches, attorney for defendants, appellees.
   TALIAFERRO’, J.

Plaintiff seeks to recover judgment for $300 against J. W. Payne, sheriff of the pari'Sh of Natchitoches, the Robeline Garage;; and the individual members thereof, and A. A. Pharis, in solido, on the following allegations of fact, viz:

That on January 27, 1927, said Robeline Garage filed suit against him on open account and sued out a writ of attachment on the ground that he was about to leave the' state with intent to defraud his creditors, under which the sheriff seized his Ford truck; that two days later, pursuant to some sort of agreement and understanding between said sheriff and the seizing «•editor, said truck was “turned over to one A. A.- Pharis to be used by him”; that said Pharis has been using said truck -daily for three months without any legal right or warrant in law; that the taking of said truck and delivering it to said Pharis to be used by him and his use thereof constituted an'illegal and tortious act and a trespass upon the rights of petitioner; that the use of said truck for said period was worth the amount sued for.

Defendants interposed exception of no cause or right of action, which was sus- 1 tained and plaintiff’s suit dismissed. He appealed.

The reasons of the lower court for sustaining the exception do not appear in the record. In brief, plaintiff states that it was held by the trial judge that plaintiff’s recourse was on the attachment bond. We quote the following from plaintiff’s brief, which amplifies the petition and more ; clearly reveals the basis upon which he stands, viz.;

“The use of the truck while under seizure by Pharis "with the consent of the seizing creditors and the sheriff of the parisn of Natchitoches was an illegal and tortious act and a trespass upon the rights' óf petitioner; that the sheriff was by the law charged with the duty of preserving the truck against wanton neglect and abuse and was not permitted1 under the law of the state to permit seized property to be used for the profit of any individual.”

There is no allegation in plaintiff’s petition giving the history of the suit against him by the’ Robeline Garage, other than that such a suit was filed and the truck was attached. We are left to conjecture whether the suit was opposed by defendant (plaintiff here), or whether it was proven up on default, or whether it was tried at all. There is no allegation fixing the damage inflicted upon the truck while in the use of Pharis, nor the nature of the use to which he put the truck while in his possession. There is no allegation that the truck was sold under process of court and brought an amount less than it . would have sold for had it not been subjected to the' unlawful use of Pharis. The absence of allegations covering these points is fatal to the petition.

The law prescribing the sheriff’s duty towards seized personal property is quite clear. Code Prac. art. 659. Article 662, Code Prac., prohibits .the sheriff from leasing or hiring out personal property held by him under seizure .unless by consent of both parties to the suit and the court. He is answerable on his official bond for any violation of this law, . resulting in damages. Latiolais v. Citizens’ Bank of La., 33 La. Ann. 1445.

“A sheriff is responsible to the owner for any damage resulting from his neglect to take proper care of property taken into his possession under an attachment.” Whitton v. Jones, Sheriff, 2 La. Ann. 802; Parish v. Hozey, Sheriff, 17 La. 578.

Plaintiff argues that, if his sui't is dismissed, the door is closed to him to hold the sheriff responsible for allowing the truck to he. unlawfully used, and, inferentially, damaged while so used, as no action lies on the attachment bond to recover such damages. We agree with the argument that plaintiff’s recourse is not on the attachment bond, hut there is abundant law available to him to have, his rights judicially determined in another suit.

Judgment appealed from is hereby affirmed.


text:
    No. 3576
    Second Circuit (Second Division)
    FELDER v. HORN ET AL.
    (June 11, 1931. Opinion and Decree.)
    Frazer & Carroll, of Many, attorneys for plaintiff, appellant.
    Boone & Boone, of Many, attorneys for defendants, appellees.
   CULPEPPER, J.

This suit arises out of an automobile collision between cars traveling in opposite directions, which occurred on the Belmont-Many highway, about .two miles south of Belmont. Plaintiff’s car, a Dodge roadster, was traveling in the direction of Many, and his car was practically demolished and he is suing for the damages sustained. , From a judgment rejecting the demands of plaintiff and also rejecting the reconventional demand of defendant Lee Horn, plaintiff appealed.

The defendants are Lee Horn, owner of the other car, a Studehaker roadster, and Jim Walden, who was driving the Horn car. Horn reconvenes for the damages to his ear.

The collision took place just after nightfall. Plaintiff occupied his car alone and shortly before the collision, had passed a house in the neighborhood at an ordinary rate of speed. Defendant’s car was occupied by four people, the two defendants, Albert Yawn, and a woman, whose name for some reason was never divulged. Horn was sitting in Yawn’s lap, but whether Yawn was occupying the end of the seat or the middle, the testimony does not disclose.

As is frequent in such cases, the oral evidence is in irreconcilable conflict. It becomes necessary, then, to consider very carefully the physical facts in order to arrive at what actually did happen.

After- the collision the rear wheels of plaintiffs car were found in the ditch with the front portion resting on the shoulders of, and pointing directly across the road! The left front wheel was completely demolished. The left hub and broken spokes hit the gravel nine feet from the right of the road going in the direction of Many, and scratched or tore up the road considerably in a swing to the left towards the ditch where the right wheels settled down.

The Studebaker car came to a stop near the-middle of the road about fifteen feet from the Dodge. There was room, after the accident, for cars to pass on both sides of the Studebaker. The road is a state highway, and is said to be from twenty-two to twenty-four feet wide, although no actual measurements were taken. 'The road was wide enough for both cars to pass in safety.

Plaintiff’s version of the collision is, that it took place on his own extreme right of the road, whereas the occupants of the Studebaker are equally positive that it occurred on their right side of the road. But the fact that the left hub of the Dodge car struck the highway only nine feet from the ditch on its right side, negatives the idea that it was, at the time of the collision, over on its left of the. highway. It seems incredible that the Dodge car could have been knocked completely across the road into the ditch while leaving the Studebaker in the middle of the road. We think the physical facts corroborate plaintiff’s version.

There are other circumstances that indicate the driver of the Studebaker was not in a position to' exercise that degree of care which the occasion called for. In the first place, four people, including the driver, were occupying a single seat. This would interfere, to some extent, at least, with the proper handling of the car. At a filling station where the Studebaker stopped just before the collision, the woman in the car was jokingly referred to or introduced as Walden’s wife. Walden asked for and was given a drink of water. Ben Garner picked up Walden and the woman after the wreck and took them to Sodus. On the way he had a flat tire. Walden went back of the car and the woman gave as the reason that Walden was sick. Garner said he could neither swear Walden was drunk or sober, but the evidence leaves no doubt that he was not altogether in a normal condition.

When these facts are' considered in connection with the undisputed physical conditions existing after the wreck, we are led to the irresistible conclusion that defendants were not only at fault, as found by our learned brother below, in rejecting Horn’s re conventional demand, but that they were wholly to blame for the collision.

There is no dispute as to the amount of damages suffered by the plaintiff.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed insofar as it rejects the reconventional demand of Horn, but it is otherwise annulled and set aside, and it is now ordered that there be judgment in favor of the plaintiff and against the defendants, Lee Horn and Jim Walden, in solido, for $183, with legal interest thereon from judicial demand, together with costs of both courts.