author: ODOM, J.

text:
    No. 2680
    Second Circuit
    FEDERAL LAND BANK OF NEW ORLEANS v. GREEN ET AL.
    (July 1, 1929. Opinion and Decree.)

      Atkins & Meadors, of Homer, and George Janvier, of Now Orleans, attorneys for plaintiff, appellee.
    W. D. Goff, of Arcadia, attorney for defendants, appellants.
   ODOM, J.

Hazard Green mortgaged his land in Claiborne Parish to the Federal Land Bank, of New Orleans, on July 18, 1919, the mortgage being duly recorded in the mortgage records. Subsequently, on October 6, 1921, he mortgaged the same property to Hamner & Company, Ltd., a mercantile corporation, to secure past due indebtedness. He failed to pay his taxes Cor the year 1922, and the property was sold at tax sale - on June 16, 1923, Ham-tier & Company, the second mortgage creditor, being the purchaser.

By the present suit, the Federal Land Bank seeks judgment against Hazard Green for the balance due on its mortgage, and judgment against Green and Hamner & Company decreeing the tax sale to Hamner & Company null, void and of no effect as against it. There was judgment for plaintiff as prayed for, and defendants appealed.

OPINION

Plaintiff’s claim against Green is not disputed. The only question, therefore, before the Court is whether the tax sale to Hamner & Company ■ is valid.

The plaintiff land bank set up various grounds of nullity, among them being that there was fraud and collusion between Green, the tax debtor, and Hamner & Company, his mortgage creditor and the tax purchaser, to let the property sell so that Hamner & Company could buy it in and thereby defeat plaintiff’s mortgage claim; and that Hamner & Company stifled bids at the tax sale and “chilled” the sale so that there was no competition, and further, that Green was insolvent and that the tax sale was no more than a voluntary transfer of his property to Hamner & Company, one of his mortgage creditors, in order to give it an unfair, illegal preference.

We shall discuss these points together.

Hazard Green borrowed $1250 from the plaintiff bank and mortgaged his property to secure the indebtedness. In the act of mortgage to the land bank, Green bound and obligated himself to pay all taxes assessed against the property during the life of the mortgage and agreed that, in case he should fail to do so, the mortgagee might pay such taxes, the amount so paid to become part of the indebtedness secured by the mortgage. Green failed to pay his taxes for 1922. M. S. Wright, a colored man, acting as Secretary of the Gibbsland Colored Farm Loan Association, whose duty it was to look after the payment of taxes on property against which the land bank held mortgages, called on Green to pay the taxes. Green told him that he had not then made arrangements to pay the taxes, but would do so. Later on, Green told Wright that he had paid the taxes and that Wright might so report to the land bank, and Wright made his report accordingly. But the taxes were not paid and the tax collector sold the property to Hamner & Company on June 16, 1923.

The land bank had no knowledge that the taxes were not paid and that the property was sold until 1925, a short time prior to the bringing of this suit. There is no direct, positive evidence that there was collusion between Green, the tax debt- or, and Hamner & Company, Ltd., represented by Leslie Hamner, to let the property go to sale for its taxes so that Hamner & Company could buy it in. Neither Green nor Hamner would admit that, of course. But the record is literally loaded with suspicious circumstances which lead irresistibly to the conclusion that Hamner, with Green’s consent, manipulated this entire transaction to the advantage of the tax purchaser and to the injury and hurt of the plaintiff land bank. Fraud may be proved by simple presumptions. (C. C. 1848.) What a man intends to do may be inferred from what he does.

Hazard Green is an ignorant, colored man, and in his dealings with Hamner was like clay in the hands of a potter. Leslie Hamner was the dominating head and spirit of Hamner & Company, Ltd., a mercantile corporation, and Green was a customer of that concern and had been for many years. He became indebted to it for $2100 and executed in its favor his note for that amount, secured by a mortgage on this land, which mortgage became second to that of the plaintiff land bank. Green depended upon Hamner for assistance when in need. When M. S. Wright went to Green about the taxes in the spring of 1923, before the sale, Green told him that he would get the money from Hamner, as he did not have it himself. Green testified that he went to Hamner about his taxes for 1922, and that Hamner told him he would take care of “conditions.” He was asked, “what conditions?”, and he answered, “delinquent taxes.” Hamner was asked the direct question whether Green went to him to raise money to pay his taxes, and he answered, “I don’t remember.” Hamner says he knew that Green’s taxes for that year were not paid, and, in view of Green’s testimony that he went to Hamner and consulted him about the payment of the taxes and in view of Hamner’s failure to deny that, we take it that it is true that Green did as he said he did. Green testified that Mr. Van Hooser offered to pay his taxes for 1922, and Van Hooser says this is true. The testimony shows that Green would never agree for Van Hooser to pay the taxes. He testified that he knew that Hamner would be at the tax sale and that either he or Mr. Van Hooser would ■ take care of the taxes. Green was asked if he did not know that Mr. Hamner was going to buy the land in at tax sale, and he answered:

“According to conditions, that meant the same.”

The question was repeated to him and he said:

“He (referring to Hamner) said he would take care of conditions.”

On being asked why he would not agree for Mr. Van Hooser to pay the taxes on his property, he said:

“Why, you might say, according to my circumstances, he (meaning Hamner) has taken care of me off and on, and we was involved in business matters throughout all these years and rather than to have my business scattered, I would rather have him to bought it in on that day, while they are both nice men, but conditions were more favorable in Mr. Leslie (Hamner).”

Green further testified that Mr. Hamner told him repeatedly after the sale that if he would refund the money paid for the taxes, the land would be deeded back to him, and, being asked why he did not redeem his property, he said:

“I’ll tell you why — I think I can, because the land was really tied up in the suit and we had to go through a process of law before it would be all right again.”

Hamner admits, with rugged candor, that he told Van Hooser prior to the sale that he did not want the taxes paid, but would rather buy the property in. He says also that he told Green that he, or his company, would sell the property back to him for what Green owed on it. Green was -not consulted about defending this suit' — his answer was filed by Hamner’s attorney.

In answer to the charge that he intended by this transaction (which he unquestionably manipulated) to defeat plaintiff’s mortgage to the advantage of his company Hamner retorts that he knew nothing of the existence of plaintiff’s mortgage until 1925, just prior to the filing of this suit. It is true that at the time Hamner & Company’took the mortgage in 1921, a deputy recorder of mortgages made a certificate showing that there were no mortgages on the property; but Green says he told Mr. Hamner that he owed the land bank. The testimony shows that Green was a customer of Hamner & Company when he borrowed from the land bank and that Hamner was familiar with his business — Hamner says so. Green borrowed the money from the land bank to finish paying for his place, and it is unbelievable that Hamner who was at the time not only the head of a large, mercantile corporation, but also vice-president of the bank and thoroughly familiar with conditions in that country, did not know that one of the customers of both the mercantile corporation and the bank was borrowing from the Federal Land Bank. If Hamner & Company had made Green a loan of $2100, as a business venture, it might seem reasonable that Hamner knew nothing of the existence of a prior mortgage on this land. But the mortgage to Hamner & Company was taken to secure past due indebtedness.

As further indicating that Hamner knew of the existence of the mortgage to' the land bank, Hamner & Company by its check paid the installments due by Green to the land bank, in February, 1923, before the tax sale, and in February, 1924. Green says he made arrangements with Hamner, personally, to do that. But Hamner says he knew nothing of his company’s having made these payments until just b’efore this case was tried. In view of his connection with the company, this seems to us most strange, to say the least.

Again, Hamner testified that his company bought the property at tax sale to protect itself. The only protection that we can imagine the tax deed afforded Hamner & Company was against the first mortgage of the plaintiff land bank. If, indeed, Hamner & Company held the first mortgage against Green’s land, as Hamner says he thought he did, in which Green,, joined by his wife, waived the homestead exemption, that mortgage was all tne protection it needed. Hamner says he knew he could pay Green’s taxes with subrogation and thereby be protected for the amount advanced.

Our conclusion is that Hamner manipulated this tax sale, with Green’s concurrence, with intent to shift the title to this property from Green to Hamner & Company, in order to defeat plaintiff’s mortgage, and that the tax sale, as between Green and Hamner & Company, amounted to a voluntary transfer rf the property.

The testimony shows that Green was insolvent. An insolvent debtor cannot give in payment to one creditor to the prejudice of another, and no distinction is recognized between a voluntary conveyance of property in fraud of creditors and' such an alienation disguised under the forms of legal procedure. The fact that the machinery of the law is used to effectuate the fraudulent purpose, aggravates the offense.

H. & C. Newman vs. Baer & Levy, 50 La. Ann. 323, 23 So. 279.

Marx et al. vs. Meyer Bros. et al., 50 La. Ann. 1229, 23 So. 923.

Minge et al. vs. Barbre, 51 La. Ann. 1285, 26 So. 180.

On the other point, we think the testimony amply shows that Hamner, representing the tax purchaser, so interfered that there was in fact no sale of the property as contemplated by law. It was due to his manipulation that the taxes were not paid. Mr. Van Hooser offered to pay them, but Hamner induced him not to do so, and stated as his reasons that he would rather that the property would sell, so that he could buy it. in for his company. Van Hooser says that if Hamner had not interfered, there would have been no sale as he would have paid the taxes. He said:

“Yes, I came to pay them, but Mr. Hamner told me that he would rather I wouldn’t pay them, that he wanted it to sell.”

Hamner admits that. Hamner also prevented Van Hooser, and others, we think, from bidding. Van Hooser was asked if Hamner had requested him not to bid and he said:

“I think that was prior to the sale and I think he asked me not to bid on it, and I left.”

Hamner testified that he himself left before the sale took place and that he does not know who bought the property in for his company. He said:

“I have been doing business here for the last two or three years, and I never have known who represented me. I would just let it be known that I was interested in certain pieces of property.”

He could have had but one purpose in letting it be known that he was interested in certain pieces of property, and that was to keep others from bidding on what he wanted.

Courts will not sanction such conduct at tax sales. The purpose of the advertisement is to invite bids and competition. Any interference by a tax purchaser which prevents open, competitive bidding at a tax sale, is a violation of the letter and spirit of the law and will render the sale void.

The land sold was a tract of more than 100 acres, and was worth $15 to $20 an acre. The taxes and costs amounted to less than $40. It is reasonable to assume that others would have paid the amount due for a less portion of the land — if Hamner had not interfered. But Hamner & Company was the only bidder and bought the entire tract in for that amount of the taxes. The result of Hamner’s manipulations before the sale was tantamount to an agreement between him and the others that there would be no bidding.

In the case of First National Bank of Abbeville vs. Hebert, 162 La. 703, 111 So. 66, the court said:

“An agreement whereby parties engage not to bid against each other at a public auction, especially where the auction is required or directed by law, as in sales of property under execution, and where one of the parties to the agreement is a party to the proceeding, is a sufficient cause for annulling the sale.” (See also authorities cited.)

In S. T. Austin, Jr., vs. Citizens’ Bank and Sheriff, 30 La. Ann. 689, Chief Justice Manning, the organ of the court, said:

“But no government will permit its machinery, constructed to enforce' the payment of public dues to the fisc, to be used to manipulate a fraud, and if the purchaser is a party to the fraud, he must share its ipunishment.”

(See Babin’s Heirs vs. Daspit, 120 La. 755, 45 So. 597; Swain vs. Kirkpatrick Lbr. Co., 143 La. 30, 78 So. 140, 20 A. L. R. 665, and authorities; Haas vs. Haas, 35 La. Ann. 885.)

The judgment of the District Court is correct, and is accordingly affirmed with costs in both courts.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. 434
    First Circuit
    JEANE v. TROTTI
    (May 7, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)
    S. I. Foster, of Luesville, attorney for plaintiff, appellee.
    Fern M. Wood, of Leesville, attorney for defendant, appellant.
   LECHE, J.

Plaintiff owns a forty acre tract of land on which there was some hardwood timber, and defendant is engaged in cutting and selling crossties. The parties agreed that defendant should cut cross-ties, described in the testimony as switch ties, and pay plaintiff as purchase price, at the rate of five cents for every eight lineal feet of all the ties that might be cut and taken away. This much of the contract is admitted) by both parties. The controversy that has arisen between them, is as to the location of the trees from which the ties were to be cut.

Plaintiff claims that he limited the sale to defendant only of such trees as were standing between a ditch and a fence, that he wished to clear this part of his land in order to convert the same into a field in which he intended to grow and cultivate crops. Defendant, on the other hand, contends that the contract included all the trees standing on the entire tract of forty acres.

Plaintiff in his petition, charges defendant with trespass for cutting beyond the agreed limit, sues for the value of all trees cut and removed, seems to abandon any claim for the agreed price of five cents per eight lineal feet and estimates his damage at two hundred and fifty dollars. The district court found with plaintiff but fixed the damage only at one hundred and twenty-five dollars and rendered judgment accordingly. Defendant has appealed, and plaintiff in answer to the appeal, asks for an increase o.f judgment to the amount originally prayed for.

It appears from this statement of the case, that it involves solely a question of fact, and it further appears to us from all the testimony in the record, that the judgment of our learned brother of the district court is in accordance with the preponderance of the evidence.

The testimony impresses us as confirming plaintiff’s version of the contract, that plaintiff was urged in selling the timber solely by a desire to clear that part of his land which he intended to put in cultivation, extending from a ditch to his side fence, that he did not sell with a view of converting the value of these trees into money and that he did not agree to sell all the trees situated on the other portions of his land. It appears further that defendant did cut trees outside of the limits fixed by plaintiff, that the measurements adopted by the estimator in order to fix the quantity of lumber taken by defendant were based upon the sizes of the stumps and the distance of the tops from the stumps, in accordance with the custom in making such estimates. It appears further that the price fixed for the value of such timber, conceded to be gum, is fairly supported by the evidence, that is, a't the rate of five dollars per thousand feet for twenty-five thousand feet, at the stump.

The judgment appealed from is therefore affirmed.


author: MOUTON, J.

text:
    No. 436
    First Circuit
    McBRIDE v. LIFE & CASUALTY INS. CO.
    (May 7, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)

      P. L. Ferguson, of Leesville, attorney for plaintiff, appellee.
    Fern M. Wood, of Leesville, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff was injured October 18, 1921, while employed by 'the White Grandin Lumber Company and brings this suit against the defendant, on an insurance policy issued to him by that company on March 22, 1920.

He alleges that the defendant company paid him eight dollars ($8.00) a week under the policy from the time he was injured to the 23rd day of April, 1928, at which time the company ceased and refused to continue these payments. He asked, because of the refusal of defendant to make the eight dollar ($8.00) weekly payments, the sum of sixteen dollars ($16.00), the double amount of the weekly payments as a penalty, reasonable attorney^ fees, and judgment for eight dollars ($8.00) per week during the life of the policy.

Judgment was rendered in his favor, as demanded, subject to the terms and conditions of the policy, from which defendant company prosecutes this appeal.

The defense is grounded on the clause of the policy wherein it is provided that the insurer will be paid when by reason of an accidental injury he is disabled of performing work of any nature.

Counsel for defendant says in his brief, that if plaintiff is able to work he cannot recover; if not, he is entitled to the payment of eight dollars per week under the policy. He contends also that the attorney’s fees are not recoverable against defendant company, nor the double weekly payments under the policy, under Act 310 of 1910, because when it ceased its weekly eight dollar ($8.00) payments, its refusal to continue the payments was based on just and reasonable grounds.

Plaintiff testifies that while he was working for the White-Grandin Lumber Company, a log which was being hooked by a fellow employee slipped away; that in trying to get away he fell and another log rolled over his hip from which, as he expresses it: “They taken it off of me.” As a result of the accident his bladder was broken and when he was first attended to by physicians, blood and no water was taken out of it. To relieve him two artificial channels, which we will not undertake to describe, were made as drains for his urine. Soon after he was injured in 1921, Dr. D. C. Willis attended him and under whose treatment he has been since that time.

Dr. Willis says he suffered in the inguinal region a ventral hernia on' both sides about three inches long; that at times the post-scrotum hernia has a tendency to close up which develops temperature, causing soreness and stiffness in plaintiff’s hips and back. Plaintiff, it is shown, cannot control his urine and as a result of this deplorable condition, the involuntary-discharges have the effect of scalding his skin, causing it to peal off on his thighs and other parts of his body.

The foregoing description of plaintiff’s condition has existed since he was injured and in which there has been no change according to the testimony of Dr. Willis. The fact is that plaintiff suffered other injuries from the accident, a recital of' which we find unnecessary to give.

Defendant in the answer admits that it paid plaintiff eight dollars ($8.00) per week under the terms of the policy from the time of the accident up to April 23, 1928, at which time it refused to make any further payments. In the answer the reason given for this discontinuance of payments is, as it is alleged, that since the month of May, 1928, plaintiff was able to resume his customary work and is now able to “do ordinary and customary work, and that your respondent owes him nothing more.” The fact is therefore established that defendant made these weekly payments under the policy for a period of more than six years. These payments by defendant’s own pleadings show beyond question; that prior to April 23, 1928, plaintiff could not do “ordinary and customary work” and was entitled up to that date to his weekly instalments under his contract of insurance.

Dr. Willis, who treated plaintiff from the very beginning of his troubles, says, that there had been no change for the better in plaintiff’s condition from April 23, 1928, until the time of the trial, nor before “that either.”

Several physicians testified as experts in the case but Dr. Willis was the only one who had actual knowledge of plaintiff’s condition prior to April 23, 1928. As he testifies that there had been no change for the better in his condition up to that time, since, nor before, it must be held that there is no basis for the defense which is embodied in the answer of defendant, that since the month of May, 1928, and now, that plaintiff is able to do “ordinary and customary work.”

The weekly payments under the policy prior to April 23, 1928, carried the admission that before that date plaintiff was unable to do work of ordinary or customary character, or else it is obvious they would not have been made. As there has been no change in plaintiff’s condition, it is likewise evident that he cannot perform work of that character from which it legally results that the weekly payments should have been continued under the terms of the policy.

Plaintiff, an ignorant -negro, testifies that he can do a little “piddling” “traficking” and such light work by which he means work requiring very little straining or exertion. Dr. Willis is emphatic in his opinion that he cannot do work of ordinary or customary character and so are two other physicians who testified in behalf of plaintiff.

Five physicians were examined as experts by defendant. Three said he could do work of ordinary character; one said ho would have to select his work; and the other, that in the summer he would be limited in his plowing, on account of irritation to his legs and that he would be able to do “selective light work.”

Another witness, Mr. Lewis, a neighbor of plaintiff, testified that he saw him cut trees with the axe and actually picked some up and walked along witli them which were twenty feet long, measuring four inches at the butt. It is probable that the lower court was inclined to believe that there might have been a little exaggeration in the testimony of Mr. Lewis, considering plaintiff’s condition as described by his physician and other physicians who testified in the case.

As it appears that plaintiff was in no better condition since April 23, 1928, than he had been prior thereto, for the reasons hereinabove given, it must be concluded that he was not able to do ordinary and customary work since that date. In addition thereto, we find, that the preponderance of the evidence shows that he could not, since April 23, 1928, do work of that character. It follows from the foregoing that defendant had no just and reasonable grounds to cease its payments to plaintiff on April 23, 1928, and is therefore liable to plaintiff for double the amount due under the policy, and for attorney’s fees under Act 310 of 1910.


author: LECHE,

text:
    No. 438
    First Circuit
    DORE v. LEJEUNE ET AL.
    (June 28, 1929. Opinion and Decree.)
    Dennis T. Canan, Jr., of Crowley, attorney for plaintiff, appellant.
    Chappuis and Chappuis, of Crowley, attorneys for defendant, appellee.
   LECHE,

J. A motion to dismiss this appeal on the ground that appellant had acquiesced in the judgment of the district court was filed herein. Thereupon this court ordered the case to be remanded for the purpose of taking evidence as to whether there had been such acquiescence. Dore vs. Lejeune et al., 10 La. App. 687, 122 So. 153.

The appeal was taken by Dore from a judgment awarding his claim in full against Lejeune, but only in part as to M. Pousson, Jr., the other defendant. Lejeune did not oppose plaintiff’s demand, hut Pousson acknowledged that he owed part of plaintiff’s demand and he represented that he had made a tender to Dore of the amount which he acknowledges to owe. Dore refused to accept the tender, and Pousson deposited the amount of the tender in a local bank, subject to the orders of Dore and accordingly notified Dore.

The case was tried in the district court and the trial judge held that Pousson only owed the amount of the tender and discharged him from any further liability on the claim.

Dore appealed from this judgment and the motion to dismiss is based on the ground that Dore has since accepted the amount deposited in the bank by Pousson and has thereby acquiesced in the judgment.

After the order of remand had been issued, Dore appeared by motion in this court, acknowledged that he withdrew from the bank, the amount therein deposited to his credit by Pousson, but denies that his action was an acquiescence in the judgment submitted for review on this appeal, and he further prays that the case be proceeded with and decided on its merits.

In the absence of a specific declaration or admission on the part of Dore, that he accepted and took the amount deposited by Pousson in the bank, in full satisfaction of his claim against Pousson, we do not believe that Dore’s action can be construed as an acquiescence. It is our understanding of the law, that where a debtor tenders only a portion of the amount claimed as due by his creditor, acceptance of the tender, in the absence, of a specific agreement that it is accepted in full payment, does not entirely discharge the debt- or. The plea in support of appellee’s motion is in reality that of estoppel and that plea must be founded on equity. A wholesale merchant notifies his customer, a retail merchant, that the latter owes him one thousand dollars. The retail merchant writes to • the wholesaler and encloses five hundred dollars in the letter and says, “I am sending you this amount in full payment.” The wholesaler writes back that he has accepted the five hundred dollars, but only as part payment. He refuses to give the retailer a full discharge. It seems to us that it would be unconscionable to hold that the only alternative of the wholesaler, would be to return the five hundred dollars to the retail merchant, in order to preserve the entirety of his claim against the retail merchant.

This whole subject was thoroughly argued and received full consideration by this court in the cases that were submitted some years ago in New Iberia. We held as we do here, that acceptance of part of a debt, does not, in the absence of a specific agreement and admission that it is received in full payment, discharge the debt in its entirety. - The New Iberia eases arose in connection with the purchase of sugar cane by central factories from cane planters. The factories sent out checks to the cane planters and marked them as given in full payment. The planters took the checks but refused to acknowledge or admit that they were accepted in full payment and the plea of estoppel was ■ overruled. These decisions although not reported, were not reversed by the Supreme Court, because writs of review were refused by that court.

The motion to dismiss the appeal is therefore overruled.

On the merits we believe that the judgment of the district court is absolutely correct.

Dore agreed to advance to Lejeune, eight hundred dollars in order to plant-and grow various crops on the latter’s farm. M. Pousson, Jr., endorsed the note as surety. Lejeune drew more than eleven hundred dollars from Dore, and in accordance with the agreement, delivered all of his crops to Dore. Dore sold the crops hut only realized some five or six hundred dollars from the sale of the same. Dore therefore advanced to Lejeune about three hundred dollars in excess of the amount stipulated in the agreement and in excess of the amount of the note endorsed by Pousson, and now he proposes to apply the proceeds of Lejeune’s crop to first pay the excess of his advances, about three hundred dollars, and to only impute the balance amounting to three hundred and thirteen dollars, towards the payment of the note. To this, of course, Pousson strenuously objects. Dore justifies himself in thus imputing the proceeds of Lejeune’s crops, on the ground that the surplus advances were made to pay for labor and certain supplies which by law were secured by a privilege outranking that securing the eight hundred dollar note, and that these advances enured to the benefit of Pousson as well as of himself.

We do not believe that the question of rank of privileges should be considered in the decision of the dispute between Dore and Pousson. The contract between the surety and the creditor is consensual; Gray vs. Blanchard, 32 La. Ann. 501, and the fiduciary relations between theha require morally and legally that the creditor do nothing to impair the rights of the surety as against the debtor. The creditor must absolutely protect the right of subrogation with which the law invests the surety who has to pay the debt. Dore did not ask the consent of Pousson when he advanced above the amount which all parties had, under the agreement, limited to the sum of eight hundred dollars. It would follow from the proposed action of Dore, that if Pousson pays as surety, the balance which Dore claims from Lejeune, that Dore could only subrogate Pousson to part of the proceeds of the crop and not to the entirety of these proceeds to which he is entitled as surety under the law. Again as said by the late Chief Justice Provosty in the. case of Interstate Trust & Banking Company vs. Young, 135 La. 471, 65 So. 611, plaintiff’s contention in effect is that Pousson is surety for over eleven hundred dollars instead of eight hundred dollars.

The judgment of the district court is therefore affirmed.


author: LECHE, J. PER CURIAM.

text:
    No. 440
    First Circuit
    HOOKER v. FULLER
    (May 7, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)

      P. E. Powell, of DeRidder, attorney for plaintiff, appellee.
    Ped C. Kay, of DeRidder, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sues for five hundred dollars, alleged to represent the balance due by defendant on the price of an automobile. She alleges that she sold a Willys Knight sedan to defendant in consideration of eighteen hundred and twenty-five dollars, that defendant turned over to her, his secondhand car at an agreed value of eight hundred and twenty-five dollars, paid her five hundred dollars cash and still owes her a balance of five hundred dollars for the recovery of which amount she presently sues.

Defendant’s answer denies the claimed indebtedness, denies the sale, denies payment of any part of the purchase price and denies turning over to plaintiff his secondhand car at a trade-in value of eight hundred and twenty-five dollars.

If the evidence in the case had been confined to the issues presented by the pleadings, the controverted facts would have been easy of ascertainment, but much testimony was admitted without objection, and the issues presented .in the trial of the case have been broadened and enlarged, and really present a charge of fraud and deception on the part of the salesman and agent of plaintiff in the sale of the automobile.

The defense in substance, as presented by testimony admitted without objection and as presented in argument, is that defendant had had some prior conversation with Greer, sales agent of plaintiff; that Greer came to defendant’s home or place of business and told defendant that he had brought him the kind of automobile which defendant wished to buy. Defendant accepted the automobile, turned over to Greer, his secondhand car at an agreed price of $825, and paid Greer $500 cash. This took place late in the afternoon.' It does not appear why defendant held back $500, the balance on the price of the automobile which was concededly sold for $1825.

The next morning, defendant after more carefully examining the oar which had been brought to him by Greer, saw unmistakable evidence chat the car was not new and that it was a used ear. Defendant then telephoned Greer, who returned within a day or two and called his attention to the fact that the car was secondhand and not new. After some discussion, defendant finally agreed to pay the balance due of $500 and issued his check for that amount, but with the distinct understanding and agreement on the part of Greer that tne latter would at once bring defendant a new car and take back the one which he had already delivered to defendant. Greer pleaded with defendant that his principal had just received a carload of new automobiles, that she needed this balance of $500 to obtain delivery of the new cars from the railroad company, and that he would at once make the exchange. This accounts for the reason why defendant, under these circumstances issued his check to plaintiff for the balance of the purchase price of the automobile.

Thereafter plaintiff communicated by telephone with defendant, the parties not agreeing as to the subject and purport of that conversation, but it is not denied that Greer then disappeared from the scene' of action. Defendant realizing that Greer was not carrying out his promise to exchange the car already delivered to him for a new one said to have been received by plaintiff, stopped payment of his check and instructed his bank not to honor the same.

Such are the facts, apparently uncontradicted as they appear from the record. Evidently plaintiff was as much deceived as defendant, in this transaction, for there is not a breath of suspicion as to the motives, conduct and actions of the plaintiff herself. But unfortunately for her, Greer was her agent and she Is bound by his promises and representations thus made to an innocent purchaser.

The defense is in the nature of a plea of want and failure of consideration and we believe plaintiff’s demand should be rejected.

For these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand is rejected at her costs in both courts.

ON APPLICATION FOR REHEARING.

PER CURIAM.

The opinion and decree in this ease, heretofore rendered on May 7, 1929, simply holds that the promises upon which defendant issued his check for five hundred dollars, were not fulfilled and that defendant was justified in stopping payment of the check. In substance, we held that the obligation sued upon, had become extinguished by failure of consideration.

We decided nothing beyond that, and we see no reason to change or alter the conclusion thus announced, and which we still believe is in accordance with the pleadings as enlarged by the admission of testimony.


text:
    No. 450
    No. 449
    No. 451
    First Circuit
    TAYLOR v. GULF REFINING CO. OF LA BORDE v. GULF REFINING CO. OF LA JORDAN v. GULF REFINING CO. OF LA.
    (May 7, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)

      Howth, Adams & Hart, of Beaumont, Texas, and Porteus R. Burke, of New Iberia, attorneys for plaintiffs, appellants.
    Weeks & Weeks, of New Iberia, and J. S. Atkinson and F. E. Greer, of Shreveport, attorneys for defendant, appellee.
   MOUTON, J.

Millard T. Taylor, Guilliam Borde, Jr., and Conrad A. Jordan, employees of defendant company while going across Lake Dauterive in a boat on the 22nd of May, 1928, lost their lives by drowning in the lake. Their surviving widows have each brought suit for compensation against defendant, submitted to the trial court on the evidence adduced in this case.

The trial court, for reasons given in this case, rejected the suits in the three cases.

Plaintiffs have appealed.

The defendant company was at the time drilling for oil at Eagle Point in a swamp on the edge of Lake Fausse Point in the Parish of Iberia. The place was not accessible by land. For that reason the employees of the company were taken to Eagle Point by boat across Lake Dauterive from Dauterive Landing situated near the town of Loreauville. The employees in going to their daily work left Dauterive landing early in the morning and in the evening at about 5 or 5:30 left Eagle Point to return to the landing on their way back to their homes in Loreauville, where they lived.

Three boats were furnished to the employees by defendant company for their transportation across the lake, and which were provided with life preservers. These employees knew that these arrangements had been made for their transportation to and from their work.

One of the boats was known as the Mildred, the two others were under the management of Tony Broussard and George Angells for defendant company, both skillful and competent boatmen.

On the evening of May 22nd, before the termination of the day’s work of Taylor, Borde and Jordan at Eagle Point, George Angells and Tony Broussard had left that place in their boats with other employees of the company on their way back to Dauterive landing. The Mildred, the other boat which was furnished to the employees by defendant, was then temporarily out of repairs and could not be used to carry the employees across the lake. Jordan, it seems was eager to return, and at his suggestión was taken by Paul Vaughn with Taylor and Borde and three other employees in a small boat for the trip to the landing. The record shows that Broussard’s boat returned to Eagle Point the same night and that they could have gone to the landing in that boat which was used for their conveyance, and which was to their knowledge, at their service.

It is true that the Broussard and Angells boats had seldom been used after coming from the landing for a return trip thereto, as appears from the record, but they were, however, used at times, and would have been available to the deceased if they had chosen to remain at Eagle Lake, where it is also shown that the company kept a house boat for the accommodation of their employees if they desired to remain at the camp over night. Instead of availing themselves of the means furnished by the company for their transportation in good boats provided with life preservers, they got into Vaughn’s boat, a much smaller craft, and started on their unfortunate voyage across the lake. After going about one mile from Eagle Point, Vaughn’s boat met Angells’ boat which was coming back. Vaughn stopped his boat in close proximity to the other boat and was told that they were returning on account of rough waters on the lake. Vaughn would not heed the warning of danger ahead and without protest from deceased and his other passengers, continued on his trip across the lake. Not far from the point where he had been apprised of the conditions ahead of him, his little craft was submerged by the waves of the lake, sank, and the three employees, whose surviving spouses have instituted this suit, lost their lives.

In 10 A. L. R. 169, the general rule in cases of this character and which has practically found approval in almost every other jurisdiction is thus stated:

“It is generally held that when transportation is furnished by an employer as an incident of the employment, an injury suffered by an employee in going or coming in a vehicle so furnished by the employer and under his control arises out of and is within the course of his employment within the meaning of the workmen’s compensation acts.”

It clearly appears in this case that the Angells and Broussard boats had been furnished the deceased and its other employees by the defendant as an incident of their employment, and it is therefore evident that if they had lost their lives while going across the lake in one of these vehicles which were under the control of the company, that it would have been unquestionably liable, as it would be impossible to escape the conclusion that the injury had arisen within the course of their employment. The company, it is true, did not make it a condition of their contract of employment that they should use the Mildred, or the Broussard or Angells boats for transportation, and no other. The placing of life preservers on these boats, however, was very suggestive of the desire of the company that the means of convéyance provided for its employees should be taken advantage of by them. It was therefore perfectly optional with the employees to make use of these boats for their daily trips across the lake. The record is clearly to the effect that upon the occasion in question, the deceased, upon their own personal initiative, and without any suggestion whatsoever from any one connected with the company, voluntarily took passage with Vaughn for a trip to the Dauterive landing as hereinabove stated.

Vaughn, the record shows, was also an employee of defendant company, lived in Loreauville, and. usually left in the morning, but a little earlier than the other employees from Dauterive landing to go across the lake to Eagle Point where the company was drilling for oil. It is however, clearly showD that the Vaughn boat was under his own control, and that the company had no control or supervision over it, though it furnished some gasoline to run it, because transportation was furnished the other men. Vaughn, it is true, says that he' sometimes took employees from Loreauville to work, but says he does not remember to have ever taken them back. They rode with him, he says, and he did not object. He further testified that he was not aware that Charmachael, superintendent of the company, knew that he had ever taken any of the employees to their work, and further, that he does not think he knew. He says in answer to a question from plaintiff’s counsel that he does not know that the superintendent had ever told him not to take any employee along with him on these trips, and is certain that the superintendent never took passage with him on his boat.

The superintendent in his testimony is equally positive that Vaughn had his own boat, used it himself for his personal benefit, and not for the company; that he never was instructed nor was it his duty to carry any of the employees across the lake, and that the company had no control whatsoever over Vaughn’s boat. It is shown by the superintendent and not contradicted, that Vaughn’s boat was not even used to carry the equipments of the company across the lake, which he testifies were carried across in Tony Broussard’s boat.

Counsel for plaintiff, in their brief, commend as the most just and comprehensive rule of law applicable to the facts of this case, the following rule quoted by the district judge in his opinion, viz;

"When the employee is injured while riding to or from his work in a conveyance provided by the employer, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment for the use of the employees, and is one which the employees are required, or as a matter of right, are permitted to use by virtue of the contract, the injury may be held to have arisen out of and in the course of the employment so as to entitle an employee to compensation.”

In our statement hereinabove in this opinion, that the company would have been clearly responsible if the deceased had lost their lives while riding in one of the three boats furnished for their conveyance, we have brought this case under the first portion of the above quotation, where it is said that when transportation is provided for the employees by the implied or express terms of the contract, if the employee is injured while riding in such conveyance of the employer, the latter is liable.

The foregoing rule of law, which we stated would have fixed the responsibility of defendant company if the deceased had lost their lives in one of the boats which had been provided for their transportation, we think has been universally applied in compensation suits and is not disputed by learned counsel for plaintiff.

It is therefore apparent that counsel for plaintiff desire to bring their case under the operation of that part of the foregoing quotation, which, in referring to the first part of the rule which fixes the responsibility of the employer when the employee is being conveyed in a vehicle provided for him under the implied or express terms of the contract, proceeds and says in referring to the conveyance so provided, quoting:

“And is one which the employees are required, or as a matter of right are permitted to use by virtue of the contract.”

If the employee is injured while riding in a conveyance .which, he is required or as a matter of right is permitted to use by virtue of the contract, the employer is liable under the portion of the rule herein-above quoted.

In our foregoing recital of the facts which are pertinent to the issue presented for solution in this case, it is evident that there is no proof whatsoever to show or from which the deduction could be drawn that either by the implied or express terms of the contract in question or by virtue of that contract, the defendant company by inference or otherwise ever “required” or “permitted as a matter of right” any of the deceased or other employees the “use” of Vaughn’s boat for their transportation across the lake or elsewhere.

In order, we presume, to bring their contention under that part of the quotation to which we have referred, counsel say in their brief that Vaughn had actually transported several employees on various occasions to and from their place of work. The fact is, Vaughn testifies, he did not remember taking the men back from work, but “sometimes to work.” This testimony does away with the idea that he was making it a business to carry these workmen across the lake to and fro, as counsel is contending for.

Vaughn says further: “They rode with me and I didn’t object.” Obviously this testimony taken alone, or in connection with other parts of his evidence to which we have alluded, cannot be construed into meaning that these employees “as a matter of right” either impliedly or expressly or by “virtue of their contract” with defendant were “permitted” to use the Vaughn boat for transportation.

Counsel for plaintiff say further, that defendant and Carmachael its superintendent, knew that Vaughn was carrying these men across the lake. Carmachael certainly does not say that, nor any other one connected with the company. On this subject Vaughn, witness for defendant, says he does not know if Carmachael knew he had conveyed men across the lake, and the fact is, he said he did not think he knew. Hence, there is no support in the record for the statement of counsel that the company or its superintendent knew that Vaughn had taken employees across the lake. Even if the company or its superintendent had had that information, and had not objected to Vaughn giving passage to the employees, such knowledge could not be legally interpreted as a permission to these men “by virtue of their contract” or “as a matter of right” to use Vaughn’s boat for transportation.

Counsel in their persistent efforts to bring their contention under the portion of the rule above quoted, say that the company had not promulgated any rules prohibiting their employees from using Vaughn’s boat to go to and from their work. On the contrary, counsel say, it had expressly ordered Vaughn to put life preservers on his boat, referring to pages 13, 15 and 16 of the record. There is no testimony in reference to these life preservers on the pages enumerated by counsel, which undoubtedly is merely the result of an error on their part.

Carmachael, the superintendent does say however, that he offered Vaughn a life preserver for his use. He makes it very clear that he was simply asked to take it as a mere request for his personal safety, and that he was at no time compelled or required to use the life preserver.

On this question, Vaughn ghys the superintendent suggested that he put one of these life preservers in his hoat for his own safety, which he construed to be for his individual protection, as very seldom, he says “I had any one else with me.” Counsel have simply fallen into error in saying that defendant company or the superintendent had “expressly ordered” Yaughn to put life preservers on his boat.

We know that this erroneous statement on their part is altogether unintentional and must be ascribed to an exuberance of zeal for their client, which is most commendable for the presentation of a case, but not for its decision.

The mere request by Carmaehael or suggestion to Vaughn that he should provide himself with a life preserver for his personal safety .cannot possibly be converted into any instruction that “by virtue of the contract” the company had with its employees, “or as a matter of right” the employees were permitted to take passage with Vaughn in his boat.

True it is, as stated by counsel, that the company had not promulgated any rules prohibiting its employees from using Vaughn’s boat. Because it had not forbidden its use to the employees, certainly cannot be construed into a “permit” to the employees, either impliedly or expressly, by “virtue of the contract” the company had with them or as “a matter of right” to use the boat. It is true that there was no such prohibition by the company, but the fact remains that there were three boats which had been furnished for the regular daily transportation of these employees and which were provided with life preservers. The means of transportation thus placed at the service of these employees certainly made it quite apparent to them that though the company did not prohibit specifically the use of other means of conveyance, that it nevertheless expected them to go to their usual avocations in safety in the boats under its control and management. The fact that the furnishing of transportation for these employees formed part of their contract with the company cannot be reconciled with, and in fact repels the idea that either expressly or impliedly or “by virtue of their contract” or “as a matter of right” the employees were permitted to use the Vaughn boat for their trips across the lake.

We must therefore conclude that under the doctrine embodied in the foregoing rule found in the opinion of the trial judge, and which has received the unqualified approval of counsel for plaintiffs in their brief, that the three deceased employees nor any one of them, at any time, had been permitted, either expressly or impliedly, or as a “matter of right” or “by virtue of their contract” or otherwise to use the Vaughn boat as a conveyance to Eagle Lake where they were engaged in drilling operations for defendant company, and that the plaintiff in this ease, and the other two in the companion cases are not entitled to a recovery under the compensation statutes of this state. This view of the case does away with the necessity of passing on the other contentions which have been adjudicated below adversely to the contentions of the plaintiffs.

The judgment in this case, also in the cases of Mrs. Edna Gonsoulin, Jordan and Mrs. Lela Borde, rejecting their respective demands against defendant, are for the foregoing reasons affirmed with cost.


author: HIGGINS, J. JANVIER, J.,

text:
    No. 11,048
    Orleans
    DOLAN v. METROPOLITAN LIFE INSURANCE CO.
    (June 24, 1929. Opinion and Decree.)

      Bernard Cunniffe and Irwin F. Williams, of New Orleans, attorneys for plaintiff, appellee.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff, as beneficiary, sued defendant life insurance company upon a life insurance policy on one Frank Lacaze. The policy was issued on February 2, 1925, and payable to the estate of the insured, but subsequently, plaintiff contends, was made payable to plaintiff as beneficiary, upon application of insured, concurred in by the insurance company. The insured died in the City of New Orleans on April 26, 1925.

At the time the policy was originally issued the age of the insured was given as forty years, but thereafter there was a correction of the age to read thirty-two years, the correction being stamped oh the policy.

The defendant resisted the claim on several grounds as follows:

First: That plaintiff was not the beneficiary of the policy.
Second: That the policy contains the following provisions which were conditions precedent to defendant’s liability.
“If (1) the insured is not alive or is not in sound health on the date hereof; or if (2) before the date hereof the insured has been rejected for insurance by this or by any other company, order or association, or has, within two years before the date hereof been attended by a physician for any serious disease or complaint, or before said date has had any pulmonary disease, or chronic bronchitis, or cancer, or diseases of the heart, liver or kidneys, unless such rejection, medical attention or previous disease is specifically recited in the ‘space for endorsement’ on page 4 in a waiver signed by the Secretary; or if (3) any policy on the life of insured hereunder has been previously issued by this company and is in force at the date hereof, unless the number of such prior policy has been endorsed by the company in the ‘space for endorsements’ on page 4 hereof (it being expressly agreed that the company shall not, in the absence of such endorsement, be assumed or held to know or to have known of the existence of such prior policy and that the issuance of this policy shall not be deemed a waiver of such last mentioned condition), then, in any such case, the company may' declare this policy void, and the liability of the company in the case of any such declaration or in the case of any claim under this policy shall be limited to the return of the premiums paid on the policy, except in the case of fraud, in which case all premiums will be forfeited to the company.”
Third: That plaintiff had no insurable interest in the life of the insured, not being related to the insured in any manner. '
Fourth: And in the alternative that as the insured was fifty-three years of age instead of thirty-two that the case be remanded to the District Court for proof of the amount that would be due under such circumstances.

We shall dispose of the issues presented in the above order.

I. Plaintiff and her son both testified that after the policy had been issued and was in the possession of the insured and beneficiary, who lived in the same house, that the insured filled out a writ of application for change of beneficiary to plaintiff and delivered the policy with the application to the company’s agent, Mr. Sanford, to have the change of beneficiary approved by the company. That in due course the policy was returned with a rider designating plaintiff as beneficiary. Upon the death of the insured the policy with the rider attached, was delivered to the defendant, but after the company had declined to pay the claim, it returned only the policy without the rider, notwithstanding repeated demands that the rider be also returned.

To rebut this evidence the defendant offered John R. Manasa, manager of the defendant’s office at New Orleans, who, over objections of plaintiff’s counsel, was permitted to testify as to the custom of the company in the change of beneficiaries on polices, by having the beneficiary’s name stamped on the policy instead of a change by a rider attached to the policy. On cross-examination this witness admitted that he had only been in charge of the office at New Orleans for about four months. We believe the objection of plaintiff’s counsel is well taken, the issue being whether or not through its agent, with the approval of the secretary or president of the company, change of beneficiary was made by a rider attached to the policy in question. It is to be noted that Mr. Sanford, whom plaintiff and her son testified is the agent that handled the change of beneficiary on the policy, was never called as a witness by defendant to rebut this evidence. We do not find anything in the policy that provides that the change of beneficiary must be stamped on the policy and are of the opinion that if a rider, properly approved by the company, was attached to the policy that it would be a legal change of beneficiary within the provisions of the policy. The provision governing the change of beneficiary, as found in the policy, reads as follows:

“This policy constitutes the entire agreement between the company and the insured, the nolder and owner hereof. Its terms cannot be changed, or its conditions varied, except by the express agreement of the company evidenced by the signature of its President or Secretary. Therefore, agents (which term includes also Managers and Assistant Managers) are not authorized and have no power to make, alter or discharge .contracts, to waive forfeitures or to receive premiums on policies more than four weeks in arrears, or to receipt for the same * * *”

The court finds that the preponderance of evidence is with the plaintiff on the question of changing the beneficiary.

II. We pass to a consideration of the provisions of the policy which were conditions precedent to defendant’s liability.

Plaintiff proved by herself and her son that the insured had lived with them for about five years and that he had always been in good health except for minor ailments.

Dr. W. E. Vanzant, witness for plaintiff, testified that he had examined the deceased on or about April 19, 1925, and diagnosed Ms case as inflammation of the stomach and bowels. That he had treated him for five or six days and during that time found no evidence of chronic miocarditis, having examined his lungs and heart with a stethos.cope.

To rebut this evidence defendant sought to introduce in evidence, records of the Charity Hospital tending to prove that one Frank Lacaze, age 57, had been admitted to the hospital on March 1, 1923, for treatment and operation for hernia and that he remained in the hospital eighteen days. And also Charity Hospital report that one Frank Lacaze, age 52, had been admitted to the hospital September 26, 1923, and his ailment diagnosed as chronic miocarditis. Also report that Frank Lacaze, age 53, had been admitted to the hospital on April 25, 1925, suffering from dysentery. The reports were certified by the superintendent as being true and correct copies of the record on file at the Charity Hospital. Counsel for plaintiff objected to introduction of these reports on the ground that there had not been any foundation laid to connect them with the insured. The district judge admitted this evidence, letting it go to the effect and stating that it was the weakest kind of evidence.

We are of the opinion that the objection should have been sustained and this evidence ruled out, first on the ground that it was not properly connected with the insured and second because the reports were hearsay. See Act 242 of 1912 and Act 267 of 1928. We have, therefore, reached the conclusion that the plaintiff has established a prima facie case that the insured was alive and in sound health on the date the policy was issued and that he had not been attended by a physician for any serious disease or complaint for two years prior to the date of issuance of the policy.

It is contended, by the defendant, that there had been previously issued by the defendant company a policy in force on the date of the policy sued upon, on the life of the insured, and that under the provisions of the policy it was necessary that the number of such prior policy be endorsed by the company in the space provided on page 4 of the policy for that purpose, otherwise the subsequent policy would be void and the premiums paid on account of the policy be returned. The only evidence in the record showing that there had been a prior policy issued by the defendant company on the life of the insured, was the testimony of Mrs. Agnes Scully, niece of the deceased, to the effect that she had a small policy on the life of the insured. It was only on cross-examination of this witness that it was brought out that the policy was issued, by the Metropolitan Insurance Company. However, the defendant company did not offer the policy in evidence, although Mrs. Scully claims to have been paid by the company and to have surrendered the policy to it. We do not find that the defendant has sufficiently proven that there was in existence a prior policy on the life of the insured, the best proof being the policy itself, which was never offered in evidence, although in possession of defendant, if in existence at all.

III. We now take up the defendant’s contention of whether the plaintiff had an insurable interest in the life of the insured, not being related to him in any manner whatever. The plaintiff’s evidence shows that the insured had lived with plaintiff and her son for five years and only occasionally visited his sister and his niece. That the insured knew of the existence of the policy because the evidence shows that he made application for change of beneficiary. Plaintiff admits that she paid the premiums on the policy. The evidence shows that plaintiff paid the funeral expenses to bury defendant, and that during his last illness at her home, she attended to him and called in Dr. W. E. Vanzant, and upon the advice of a Catholic priest, removed him to the Charity Hospital, where he died. The defendant has not offered any evidence to to show that the policy was taken out by the plaintiff and not by the insured. There is nothing in the law of public policy which would prevent an insured from taking out a life insurance policy and designating a stranger as the beneficiary, and upon his inability to pay the premiums, permitting the beneficiary to pay them. In view of the lack of evidence to support defendant’s contention this defense must also fall.

IV. We next pass to a consideration of the alternative defense that if the insured were fifty-three years of age instead of thirty-two years of age, then the case be remanded to the district court for proof so the proper amount of insurance, under the circumstances, would be paid.

The policy, as originally issued, gave the age of the insured as forty years, subsequently a correction pf age was stamped on the policy by the company, giving his age as thirty-two years. Plaintiff and her son testified that he appeared to be about thirty-five or forty years of age. It is to be noted that • these witnesses were cross-examined by attorney for defendant, but no effort made to get a complete description of the insured, tending to show if he were a young or old man. It is also to be noted that when Dr. W. E. Vanzant was on the stand he was also cross-examined and, although he treated the insured for five days, no effort was made to establish the insured’s apparent age by the doctor.

Defendant offered Mrs. Scully, niece of the deceased, as a witness, who testified as follows:

“Q. How old a man did he appear to be?
“A. He looked to be a man about 55 or 58.
“Q. Do you know how old he was?
“A. Well, between fifty and fifty-two.”

But on cross-examination this witness admitted that she did not know the date that the insured was born. This witness also testified that her mother, sister of the insured, had been to see her brother the day before he died. The defendant did not offer this lady as a witness and there is nothing in the record to show that she was not available as a witness.

The proof of death signed by plaintiff gives the date of birth of the insured as March 4, 1892, at New Orleans. Defendant did not produce any birth certificate to show that this day was erroneous and there is nothing in the record to show that a birth certificate could not be secured.

Defendant contented itself with showing that the duplicate original sent by the Charity Hospital to the Recorder of Deaths at the City Hall, had been altered to make it read' thirty-two years instead of fifty-three years, as shown by the duplicate original on file at the Charity Hospital. There is nothing in the record to show that plaintiff, at any time, had possession of either of these records, and, therefore, fcannot be held accountable for any discrepancy between the two. The defendant has not shown which of the two is correct. This Court cannot assume that the duplicate original on file at the Charity Hospital states the correct age when it is entirely unsupported. The duplicate original of the Recorder of Deaths stated the age as thirty-two and this age is supported by the plaintiff’s evidence.

It is to be noted that the district judge permitted the reopening of the case after the delay for ashing for a new trial had elapsed, and permitted defendant to take further testimony which, in our opinion, together with the evidence previously offered was insufficient to rebut plaintiff’s proof.

As this case presents only a question of fact and the lower court decided it in favor of plaintiff, the rule that an appellate court will not disturb a judgment of the lower court unless it is clearly erroneous is applicable.

For the reasons assigned the judgment of the district court is affirmed at the cost of appellant.

JANVIER, J.,

dissenting. I am quite convinced that the deceased had been seriously ill and had been in the hospital during the two years preceding the issuance of the policy, and that, therefore, the warranties in the policy were not complied with. I have no doubt that the deceased is the same party and that the attempts to change the age shown on the copy of the record sent by the Charity Hospital to the Board of Health should be sufficient in itself to show that those most at interest realized that they could not recover except by clouding the facts with doubt. In my opinion they have not done so, but have shown conclusively that recovery should be denied.

For these reasons I respectfully dissent.


text:
    No. 2821
    Second Circuit
    ECTOR v. KAHN
    (July 1, 1929. Opinion and Decree.)
    Galloway & Johnson, of Shreveport, attorneys for plaintiff, appellee.

      Long & McSween, and R. J. O’Neal, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Only questions of fact are involved in this case. The record is made up of a mass of details, figures and calculations. Our brother of the district bench wrote an exhaustive opinion in which he concisely stated the issues involved and with great labor and precision has discussed the facts, and has stated his reasons for allowing each credit or debit, as the case may be. We quote the following from that opinion:

“In 1923, the defendant conceived the idea of erecting a “White Way” along Travis Street from Spring Street to Common Street, the expense of same to be borne by the abutting property owners on a front-foot basis. The services of plaintiff were secured by defendant for the purpose of assisting in this work, plaintiff alleging that he was to receive, under a verbal agreement with the defendant, as compensation for his work one-third of the net profits derived by Mr. Kahn, and the present suit is brought by plaintiff to recover this one-third of the net profits less a certain amount which plaintiff admits was paid him.
“The defendant admits there was an agreement between them, but alleges that plaintiff was to receive ■ not one-third of the net profits, but was to receive one-fourth of the net profits; that in the month of April, 1924, a settlement was had between plaintiff and defendant by which the defendant paid the plaintiff the sum of $250.00, making a total payment to plaintiff of $725.00 in full settlement of any and all claims that the plaintiff had under the original agreement; that this was done with the understanding that plaintiff would continue to assist defendant in carrying out the project.
“Plaintiff swears in his testimony that the agreement was for one-third of the net profits; the defendant swears that the agreement was for one-fourth of the net profits. Only one other witness testified on this point, and that witness is Mr. J. A. Curtis, who testifies positively that Mr. Kahn told him that the agreement ■ft as for one-third of the profits. Under this testimony, the preponderance is with the plaintiff, and we must hold that the plaintiff has proven that the original contract was for one-third of the net ¡profits.
“The burden of proving a settlement and release plainly rests upon the defendant. Mr. Kahn testifies that the payment of $250.00 was in full and complete settlement of everything the plaintiff had coming to him, while Mr. Ector flatly denies this, so defendant has failed to prove a settlement with the plaintiff.
“Next, taking up the amount of gross receipts, we find that the following items have been fully proven, either as admissions, made by Mr. Kahn upon the witness stand, or as admissions taken in connection with the other evidence filed in the ease, to-wit: * * *”

He then sets forth in detail forty-nine items of receipts aggregating $9,747.50.

Then, taking up the items of expense properly chargeable to the contract, he finds the total of them to be $5,550.90, and he says:

“• * * Deducting this amount from the receipts, we find the net profit to be $4,196.60, of which amount Mr. Ector was entitled to one-third or $1,398.86. He has already received the sum of $838.50 and is therefore entitled to judgment for $560.36 * * *”

Counsel for appellant has not pointed out any error in the conclusion reached by the district judge, but, on the contrary, practically admits that the judgment is correct. Counsel for appellee asks that the judgment be amended so as to increase the award from $560.36 to $787.07. He has not pointed out sufficient reasons why this should be done.

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


text:
    No. 3578
    Second Circuit
    CAIN v. STEWART
    (July 1, 1929. Opinion and Decree.)
    G. Randall Whitmeyer and John R. Pleasant, of Minden, attorneys xor plaintiff, appellee.
    Mclnnis & Campbell, of Minden, attorneys for defendant, appellant.
   ON MOTION TO DISMISS APPEAL

ODOM, J.

This case was tried in the district court ox Webster Parish and submitted on February 5, 1929. On February 23, 1929, there was judgment in favor of plaintiff and against defendant. Defendant asked for ana was granted an appeal, both devolutive and suspensive, made returnable in this Court on March 25, 1929. Appellant failed to return the petition of appeal and the transcript of the proceedings into this Court and have the same filed on or before the return day fixed. The appellant, having failed to file the transcript in this Court as provided by law, appellee obtained the same from the Clerk of the district court of Webster Parish, brought it up to this Court, paid the filing fee and had the transcript properly filed here. Appellee has moved in this Court to have the appeal dismissed, and, on April 15, 1929, served notice on counsel for appellant by registered mail that he had moved to dismiss the appeal, and transmitted with said notice a copy of the motion filed. Up to this date, May 18th, no appearance has been made by appellant. The notice was received by counsel for appellant, as is evidenced by their signature on the return registry receipt which we find in the record.

Article 587 of the Code of Practice provides that “the appellant must return the said petition of appeal and the transcript of the proceedings into the Court of Appeal on the return day thereof.” Article 588 of the Code provides that “if the appellant neglect to file in the appellate court the copy of the record and the accompanying papers within the time thus fixed, the appellee may apply one of the modes mentioned in the two following articles, either to have execution on the judgment or final judgment on the appeal.”

Article 590 of the Code provides that “if the appellee prefers to have judgment on the appeal, he may obtain a copy of the record from the lower court and bring it up to the appellate court, and may pray for judgment or for the dismissal of the appeal in the same manner as if the record had been brought up by appellant.” The appellee has followed the letter of the Code and asks that the appeal be' dismissed.

It is therefore ordered, adjudged and decreed that the appeal herein be dismissed, with all costs.


text:
    No. 462
    First Circuit
    WELLS v. NEW AMSTERDAM CASUALTY CO.
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    Taylor, Porter, Loret and Brooks, of Baton Rouge, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff’s leg was broken just above the ankle while employed as a plasterer in a building in the city of Baton Rouge. This happened during the month of April, 1927. The fact that plaintiff was entitled to compensation, and that defendant was liable for such compensation, are not questioned in the present suit, which was filed in June, 1928.

Defendant paid plaintiff compensation at the rate of $10.92 per week for 52 weeks, approximately one year, and then ceased altogether to make further payments. Within two months thereafter plaintiff brought the present suit, in which he prays for additional compensation at the same rate of $10.92 per week from April 21, 1928, for a period of 248 weeks, on the ground that he is still suffering and is still totally incapacitated from doing work of any reasonable character. The district court refused his demand, and he has appealed.

Defendant concedes that there are only two questions involved in the case: (1) The nature and extent of plaintiff’s injury; and (2) the amount of compensation, if any, he is entitled to receive.

Considering these questions in the inverse order, it is patent that the amount of compensation which was due to plaintiff when the accident happened in April, 1927, was 65 per cent of his weekly wage, or $10.92 per week. This rate of payment was acknowledged as due by defendant when it proceeded to pay this amount to plaintiff. Payment was made amicably and without compulsion and accepted by plaintiff without any understanding or agreement as to the number of weeks during which it should continue. Defendant kept up these payments for 52 weeks, then ceased on the ground that it considered plaintiff entirely cured of his injury. If plaintiff had sued for compensation immediately after being injured, he could have recovered $10.92 per week during a time not exceeding 125 weeks, under paragraph (d) of section 8 of the Compensation Law as amended in 1926. Act No. 85 of 1926, p. 114. Such was the amount of the compensation to which he was entitled.

The first question propounded in defendant’s brief now arises for solution, and that is, the nature and extent of plaintiff’s injury.

As to the plaintiff’s suffering, no one outside of the plaintiff could testify directly to that fact, but at the time of the trial, one of the physicians remarked that he'noticed that plaintiff was limping at a time and place not suspicious, thus confirming the plaintiff’s testimony.

It is evident from the testimony that at the time of the trial, which took place January 9, 1929, there still was unquestionably something abnormal about the plaintiff’s ankle. Dr. L. J. Williams, a specialist and an expert in taking and reading X-ray pictures, says that on January 3, 1929, there was a healing of the fractured fragments with union; that in the lower third of the left tibia there is an osteomyelitis apparently in the zone of the fracture with a cavity or area of diminished radiopacity containing sequestra of bone. He says that a condition of this kind shows that the process of healing is not complete.

Plaintiff himself testifies that he is still suffering, and that he cannot stand on his leg for any length of time; that he can only walk successfully with the assistance of a cane.

Both Dr. Kemp and Dr. Sitman corroborate the testimony of Dr. Williams. Dr. McHugh and Drs. Bradburn and Samuels were of the opinion that plaintiff is cured,- and yet their testimony can be reconciled with that of Dr. Williams and that of the plaintiff. We believe that a preponderance of the evidence supports plaintiff’s claim.

It is therefore ordered tnat the judgment appealed from be avoided and reversed, and proceeding then to render such judgment as plaintiff was entitled to recover at the time of his injury, it is ordered that plaintiff have judgment against defendant for compensation at the rate of $10.92 per week from the 28th day of April, 1927, not to exceed 125 weeks; it is further ordered that defendant be recognized as entitled to credit for weekly payments made up to and including April 14, 1928, that all other unpaid weekly payments bear legal interest from the respective dates on which they were due, defendant to pay all costs of both courts.

MOUTON, J., not participating.


author: ELLIOTT, J.

text:
    No. 470
    First Circuit
    ROMANO v. DAVIDSON
    (June 28, 1929. Opinion and Decree.)
    Morgan & Simmons, of Covington, attorneys for plaintiff, appellant.
    Miller & Heintz, of Covington, attorneys for defendant, appellee.
   ELLIOTT, J.

Ernest Romano claims of Wallace Davidson damages to the extent of $900 on account of an automobile collision due, he claims, to defendant’s fault, and resulting in the complete destruction of plaintiff’s automobile. The collision occurred during the night of April 1, 1928, just out of Abita Springs, on the Covington highway.

The plaintiff’s car, a Chevrolet, was being driven at the time by his minor son, Benjamin Romano. He alleges: That his car was forced to a complete stop because of a deflated tire. That his son, in stopping, brought his sar to a standstill slightly to the right of the center of the road, facing Covington, with the intention of repairing or changing .his tire, leaving more than ample space for any size of car to pass it in the road to the left. That, within a short time after his car was stopped, defendant appeared from the rear, driving a Buick automobile at a reckless speed, estimated at 55 miles an hour, and crashed into him, demolishing his car, despite the fact that he had a clear view f”om the rear. That the collision was due solely to defendant’s gross negligence and his wanton disregard for the rights of others.

Defendant avers, in defense: That, coming out of Abita Springs driving at a slow speed, he noticed a large car in his front, with its lights shining diagonally across the road, and slowed down for the purpose of passing it. That just as he passed it he noticed a Chevrolet on the right-hand side of the road, with no lights showing. That said car came into view so suddenly that it was impossible to avoid striking it. That his car ran against its side without doing any damage. That plaintiff’s car had run into said large car just before his arrival on the scene, and had received, in its collision with the large car, all the damage he complained of in his petition.

The case depends on disputed and conflicting statements of fact.

Plaintiff’s son was accompanied by a young man friend. His son and this friend were the only witnesses for the plaintiff, who were actually present at the time of his collision.

The defendant had in his car, as companions, two young men besides himself and three young ladies, but only one of the young gentlemen who was with him at the time appeared as a witness in his behalf. But each side called other witnesses to corroborate them as to various facts and circumstances.

The occupants of both automobiles had just left a dance at Abita Springs, and had presumably started homeward. A witness named Pennington, driving out of Abita Springs just in advance of Romano, was passed by the -big ear, called by the witnesses the Lincoln, and almost immediately afterwards he heard a collision between it and plaintiff’s car, upon which he stopped and hurried back to the place. He testifies that, in a few minutes after getting back to the scene of the collision between plaintiff’s car and the Lincoln, he heard the roar of another car coming, and, fearing there would be another collision, he ran toward it in order to warn it, but its driver, who proved to be defendant, did not heed his warning, and passed him at great speed, and in a moment afterwards struck plaintiff’s car with great force.

This witness places himself about 50 yards distant from the collision. His testimony is that he saw it from where he stood in the dark.

Benjamin Romano, plaintiff’s son, claims: That, driving at a moderate speed, he had a blow-out which caused a flat tire. That he was slowing down and was just in the aLt' of stopping for the purpose of taking off the flat and putting on an extra tire when he was struck slightly on his left front fender and hubs by the Lincoln car, spoken of by the witnesses as the large car. That the blow from the Lincoln knocked his car into an oblique position, its rear end in the gutter and its front near the middle of the road. That he and his friend got out and were making preparations to prize up his car so as to change tires, when the defendant came up from the rear at about 50 miles an hour and struck him in the rear, sidewise, demolishing his car completely.

Two other witnesses not present at the time, but who arrived soon afterwards, gave corroborative testimony concerning certain facts and circumstances.

Young Mailhorse, in plaintiff’s car with his son, says that the Lincoln struck plaintiff’s car and knocked off a tire, but he does not speak of a blow-out and slowing down. Mailhorse was not questioned directly on the subject; consequently we take into account that the matter may have been overlooked.

Benjamin Romano testified that his father had paid damages to Michel, the driver of the Lincoln car, on account of the collision, but declared that he did not know the amount his father had paid.

Plaintiff, as witness, testifies that he paid ‘the driver of the Lincoln car $100 to repair his car on account of the collision, and that the amount had been agreed on between his son and plaintiff’s wife with the driver of the Lincoln; and, as the amount was paid pursuant to an agreement entered into between his son and the driver of the Lincoln car, the fact tends to weaken confidence in the statement of his son.

It is argued that the impact, when defendant’s on-coming ear struck the stationary car of the plaintiff, was so terrific, that two of the girls in the Davidson car fainted with fright. In some situations that argument would have weight, hut in this case the testimony shows that two of the young men in the Davidson car appeared to be intoxicated, one of thfem so drunk that he had to be lifted out of the car; yet they had all presumably just left Abita Springs together.

Plaintiff contends that the road was almost straight, that the head and tail lights on his car were showing, and that defendant could have seen his car had he been looking, and passed around it.

Benjamin Romano and his companion testify that the head and tail lights on their car continued to show, after their collision with the Lincoln, and were showing at the time it was struck by defendant. As against this, however, Davidson and his companion, Schumacher, claim: That there were no lights showing on plaintiff’s car. That the front end of it was near the center of the road, and that, blinded by the lights on the Lincoln, which they had just passed, they could not see plaintiff’s car in the dark. That they were not driving faster than 12 or 15 miles an hour, and struck it so lightly that they could not have done any damage.

The defendant testified that the result of striking plaintiff’s car was that one headlight was put out and one fender slightly bent on his car; that the-cost of repairing his car was only $1.70. His testimony is corroborated by several witnesses, and seems to be a fact. And it seems to be a necessary conclusion that defendant’s car could not have struck plaintiff’s car so hard that it was demolished otherwise there would likely have resulted a greater damage to the Buick car. The evidence shows that defendant’s car proceeded on its way in a few minutes after the collision. Plaintiff’s car and the Lincoln could not proceed and were both picked up by a wrecker that night and carried to the same garage. The next morning they both were examined by mechanics. These mechanics say: That the front axle of the Lincoln car was bent, the steering gear injured so that it would not work. That it was seriously injured, and that an injury of that kind could not have been produced on a Lincoln by a Chevrolet car unless they had come together with great force. That the impact required for a Chevrolet to produce such damage to a Lincoln as was done in this case would crush the Chevrolet, owing to the heavier and stronger material and structure of the Lincoln. They further testify that their examination of the Chevrolet showed that its front axle and wheels and other structure were bent backward, showing that it had been demolished by a blow from the front, and not from the rear and side. It was struck in front by the Lincoln and in the side and rear by defendant’s car.

The record contains three photographs of the Chevrolet car in the condition it was in after the accident, and it seems to us that these pictures support the testimony of the mechanics.

The burden of proof is upon the plaintiff to show, not only that the defendant was at fault, but he must also show that it was the blow from defendant’s car that did him the damage of which he complains in his petition.

The district judge rejected plaintiff’s demand, evidently concluding that- the evidence did not sustain plaintiff’s claim.

It cannot be satisfactorily concluded from the evidence that defendant was at fault. But, supposing he was, it then does' not appear to be established that it was the blow from defendant’s car that caused plaintiff the damage of which he complains.

The judgment appealed from is in our opinion correct.

Judgment affirmed; plaintiff and appellant to pay the cost in both courts.


text:
    No. 473
    First Circuit
    JONES & DUBUISSON v. PICARD ET AL.
    (June 28, 1929. Opinion and Decree.)
    Miller & Richardson and Bascom D. Talley, of Bogalusa, attorneys for plaintiffs, appellees.
    Ott & Rich, of Bogalusa, attorneys for defendants, appellants.
   LECHE, J.

Plaintiffs own a judgment for one hundred and five 90/100 dollars against the defendants.

The judgment represents part of a bill for repairs of an automobile and is secured by lien and privilege on the automobile, which under the terms of the judgment, is ordered sold to pay plaintiff’s claim by privilege and preference.

Plaintiffs obtained, when they sued, a writ of provisional seizure under which the automobile was seized, but the automobile was returned to defendants on their furnishing a forthcoming bond, with Mrs. M. E. Mitchell as surety, for the sum of one hundred and fifty dollars. Pending the trial of the case, the automo'bile was destroyed by fire, admittedly through no fault of defendants or their surety.

As soon as their judgment became final, plaintiffs attempted to execute it, but the automobile was then out of existence and the writ of fieri facias was returned with a statement endorsed thereon reciting the destruction of the automobile by fire. The present proceeding is by rule and its purpose is to hold Mrs. M. E. Mitchell, who signed the forthcoming bond as surety, liable for the payment of plaintiff’s judgment.

It seems that the automobile had been insured to secure part of its purchase price still due and unpaid to the vendors, the authors of defendant. That from the proceeds of the policy, after paying the vendor’s privilege, there remained sixty-four dollars which was paid to the defendant Picard. The trial judge assuming that the sixty-four dollars stood in lieu and place of the automobile, thereupon held Mrs. Mitchell liable to plaintiffs under the forthcoming bond, for sixty-four dollars, and accordingly rendered judgment against her.

Mrs. Mitchell has appealed from that judgment and the question for decision, is simply, whether the surety on a forthcoming bond is liable for failure to produce property destroyed by a fortuitous event.

We held in the case of Valley vs. Causey, & Floyd, 1 La. App. 179, that the non-production of a mule which had been returned to defendant under a forthcoming bond, and which was shown to have died a natural death through no fault or negligence of the defendant, did not render the surety on the bond liable for its value. We believe this ruling is in accordance with law and see no reason to change our opinion. The defendants and their surety cannot legally be expected to do an impossibility.

We cannot conceive what pertinency the question of insurance has in this case. The contract of insurance had been entered into by defendants and their vendor, for the protection of the latter, to secure his claim and neither for the benefit of plaintiffs nor for the benefit of Mrs. Mitchell. We do not understand by what process of reasoning it can be held that the proceeds of the insurance policy can be substituted for the automobile. Neither the plaintiffs, nor the executive officer of the Court, nor the surety had any part in effecting the insurance. Mrs. Mitchell certainly did not obligate herself to produce the proceeds of the insurance policy, either by the terms of the bond or by conventional agreement.

Believing that the judgment on appeal is erroneous, it is hereby avoided and reversed, and Mrs. M. E. Mitchell is declared discharged from any liability under the forthcoming bond herein sued upon.


text:
    No. 475
    First Circuit
    BURT v. ALLEN
    (June 28, 1929. Opinion and Decree.)

      Miller and Richardson, of Bogalusa, attorneys for plaintiff, appellant.
    Defendant and appellee unrepresented in Court of Appeal.
   ELLIOTT, J.

Mrs. Thomas R Burt, claiming of Sidney Allen $104.94 as the balance due on an account, instituted suit against him for recovery in the city court of Bogalusa.

The defendant Allen for answer admitted owing plaintiff $62 of the amount claimed, and tendered same in court to the plaintiff, leaving it in the hands of the clerk of court. He denied owing the balance of the amount claimed.

The lower court rendered judgment holding that the amount tendered was all the defendant owed, and ordered plaintiff to accept same in full payment.

Plaintiff has appealed.

When defendant admitted owing plaintiff $62 of the amount claimed and paid it into the registry of the court, then there remained but $42.94 in dispute. The amount in dispute therefore does not come within the jurisdiction of this court ratione materia. Hood vs. Wise, 128 La. 731, 55 So. 335; O’Shee vs. Chaudoir, 154 La. 517, 97 So. 796.

The appeal is dismissed.

MOUTON, J., not participating.