text:
    No.-
    First Circuit
    JONES v. POLICE JURY OF CAMERON PARISH
    (January 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Taxation—Par. 388, 389.
    In the absence of special legislation to the contrary one who buys property at a tax sale is witlmut recourse for the return of money 'expended, as all tax sales are executed without warranty.
    2. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action will be maintained and suit dismissed where petition is based on a claim to refund money paid state for invalid tax title, there being no legislation to require it.
    Appeal from the District Court, Cameron Parish.
    Action by A. L. Jones against Police Jury of Cameron Parish.
    There was judgment dismissing plaintiff’s demands on exception no cause of action.
    Plaintiff appealed.
    Judgment affirmed.
    Griffen T. Hawkins, of Lake Charles, attorney for plaintiff, appellant.
    John J. Robira, of Lake Charles, district . attorney for defendant, appellee.
   LECHE, J.

Plaintiff bought certain property at tax sale in the Parish of Cameron. He paid the price of adjudication, including all taxes, costs and penalties. Believing himself to be the lawful owner thereof, he proceeded to have the property assessed in his own name and continued to pay taxes thereon for several years, when, by a judgment of court, it was decreed that his title was null and void, as based on a sale for taxes which had previously been paid. In other words, there had been a dual assessment of the property, on which the tax debtor had promptly paid and continued to pay all taxes, and through the errors of the tax assessor and collector plaintiff had not acquired any title.

The present suit is to recover from the Parish of Cameron so much of the parish taxes, viz.: One hundfed and forty-four and 5-100 dollars, as was paid by plaintiff upon the property which had thus erroneously been sold to him for non-payment of taxes.

Defendant excepted to plaintiff’s demand as showing no right or cause of action. The trial judge maintained the plea and plaintiff has appealed.

In the case of Lindner vs. City of N. O., 116 La. 372, 40 South. 736, the court says:

“A tax sale, in the absence of special legislation to the contrary, is generally held to be subject to the rule ‘caveat emptor’, and the purchaser assumes the risk of all illegalities and irregularities in the proceedings, of which, as they are open to his inspection, he is presumed to have notice. He is therefore without recourse against the municipality at the instance of which the sale is made, and which not pretending to sell its own property warrants neither the title nor the return of the price.”

See also Lisso & Bro. vs. Police Jury of Natchitoches, 127 La. 283, 53 South. 566, which is to the same effect, and which holds that “the laws regulating tax sales and the collection of taxes are sui generis and constitute a system to which the general provisions of the Civil Code have, ordinarily, but little application”. See also Louisiana Land Co. vs. Police Jury of Grant Parish, 156 La. 849, 101 South. 241; Simpson vs. City of N. O., 133 La. 384, 63 South. 57.

The ruling of the trial judge is supported - by law; it should be affirmed, and it is so ordered.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No.-
    First Circuit
    CHAPMAN v. MEYER
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 356.
    Under Code of Practice, Article 573, as amended, an order of appeal taken by motion in open court at' another session of court from that at which the judgment was rendered, with no citation tp the appellee, is not properly taken and will be dismissed.
    'Appeal from the District Court of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Isaac Chapman against Charles Meyer.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee. '
    John W. Lewis, of Opelousas, attorney for defendant, appellant.
   LECHE, J.

The appeal in this case, was taken by motion in open court at a session held during a term subsequent to and different from that at which the judgment had been rendered. Plaintiff and appellee moves to dismiss on the ground that he was not cited.

The judgment was rendered and signed on May 12, 1926. The term of court ended on July 15, 1926. Another term of court began on September 15, 1926, and at a session held on September 20, 1926, defendant .obtained his order of appeal in open court. He did not ask for citation of appeal and none was served on the plaintiff.

Under these conditions the appeal must be dismissed. C. P., Art. 573, as amended by Act 49, p. 151 of 1871. Page vs. Pinckard qt al., 140 La. 257, 72 South. 955.


author: ELLIOTT, J.

text:
    No. 1193
    First Circuit
    BURKES v. KENNEDY
    (Dec. 7, 1927. Opinion and Decree.)
    (Jan. 7, 1927. Rehearing Refused.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62; Builders and Buildings — Par. 29.
    When the furnisher of materials sues the owner of the building to compel the owner to pay for the materials sold to the contractor as provided by Act 139 of 1922, he must' allege that he gave notice to the owner within the time provided .by the statutes or his suit will be dismissed on exception no cause of action.
    Appeal from the .District Court, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by J. V. & R. T. Burkes against Orlando P. Kennedy.
    There was judgment dismissing the suit on exception no cause of action filed by defendant. Plaintiffs appealed.
    Judgment affirmed.
    Charles A. Holcomb, of Baton Rouge, attorney for plaintiffs, appellant.
    Shelby Taylor and Moss & Moss, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit by furnisher of materials against the owner of a building to compel the owner to pay for materials sold to the contractor and used by him in the construction of the building, on the ground that the owner did not require of toe contractor a bond as provided by Act 139 of 1922.

J. V. & R. T. Burkes allege that on June 1, 1924, they sold and delivered to W. E. Stevens, contractor for Orlando P. Kennedy, building material worth 1342.26, which material the said Stevens used in prosecuting his work for said Kennedy; that said material constitutes part of the dwelling house which said Stevens erected for said Kennedy and that said house belongs to. said Kennedy. That said Kennedy did not require of said Stevens a bond as provided by Section 5 of Act 139 of 1922 and his failure to do so made him liable, to the petitioners for the amount of their claim, to the same extent as the surety on the contractor’s bond would have been, had bond been required. They pray for judgment against Kennedy for the amount of the material furnished to Stevens and used as above stated. Kennedy exceipted to their demand on the ground that their petition disclosed .no cause of action, which the court sustained and dismissed their suit. The plaintiffs appealed.

The amendment of Section 5 of Act 139 of 1922 by Act 230 of 1924, has no bearing on the question we now have to decide. The repeal of Act 139 of 1922 by Act 298 of 1926 is also without influence as to the petition in hand. Section 16 of Act 298 of 1926 contains a "saving clause, but even had there been no saving clause, if plaintiffs have a cause of action under Act 130 of 1922, the right of action still exists and continues for the purpose of enforcing payment under the act. The power to compel payment of an obligation created by the Act 139 of 1922, can not be repealed as long as the cause of action exists. The object and purpose of Act 139 of 1922 is to require written contracts concerning the erection and repair of buildings and bonds of contractors, employed to do tbe work and make them liable, in case of failure, under certain conditions.

Section 1 provides:

“That every contract hereafter made or entered into, * * * for the erection or construction of a building by a contractor, * * * shall be reduced to writing and signed by the parties * * * and recorded in the office of the recorder of mortgages before the day fixed on which the work is to commence, and within 30 days after the date of the contract.”

It further creates a lien and privilege on the building and the land on which it is situated in favor of the furnisher of materials and that the owner shall require of the contractor, a bond.

Section 2 provides that the contract shall be recorded, and further provides:

“Every person, having a claim against the * * * contractor * * * shall after completion of said work * * * mail or otherwise send a sworn itemized statement thereof to the owner or his architect or other representative, and record the sworn statement and the amount thereof * * * in the office of the recorder of mortgages * *

Section 5 provides:

“* * * if the owner fails to require a bond * * * he shall be liable to * * * the furnisher of materials to the same extent as the surety would have been.”

This Section further provides that' in all cases where surety has been furnished, the surety shall be entitled to make only the same defenses that the contractor for whom he signed the bond is authorized to make, except as to the owner who has made payments in anticipation.

Section 15 repeals all conflicting or inconsistent laws on the same subject matter.

Plaintiffs do not' allege in their petition that they mailed or sent to defendant a sworn, itemized statement of their claim against Stevens, and defendant contends .that' they have therefore, no cause of ac,-tion against him.

The Act 139 of 1922 has for its object the • protection of the owner, contractor, sub-contractor and furnisher qf materials. It is in furtherance of this end that every contract thereafter made or entered into for the erection or construction of a building is required to be reduced to writing, signed by the parties and recorded in the mortgage book.

The lien and privilege created is to protect the contractor, sub-contractor and the furnisher of materials, etc. The bond which the owner is to require of the contractor is for the protection of the furnisher of materials. The owner is made responsible to the same extent as the surety would have been, if no bond had been required. It is for the protection of the owner that persons having claims against thq contractor are required within the time fixed to mail or otherwise send a sworn, itemized statement' thereof, to the owner and record same with the recorder of mortgages. This notice if given enables the owner to save himself in his settlement with the contractor.

The liability which the statute imposes on the owner in favor of the furnisher of materials With whom he has had no . dealings, is an obligation created, by law. Obligations created by law, are defined and explained in the Civil Code, Arts. 1760, 2292, 2294. When a plaintiff undertakes to recover on an obligation created by the law, he must bring himself directly within the statute on the subject. He must allege substantial compliance on his part' with the statute, in every matter, which it is incumbent on him under the statute to do.

The act in question required plaintiffs to give notice to defendant of their claim against Stevens within the time and as provided by the statute. Their petition does not show that they did so, therefore, they have no action against defendant for failure to require of the contractor a bond. They can not single out section five and claim that it gives them an action against' defendant for failing to require a bond of the contractor, when they do not claim compliance on their part with section two, which requires all parties having claims against the contractor to give timely notice thereof to the owner; notice to the owner was necessary in order that the object and purpose of the statute may have effect as to all concerned.

The provisions of Act 139 of 1922 are similar to those contained in Act 262 of 1916. In Musey vs. Prater, 147 La. 71, 84 South. 498, and Rose vs. Eunice Electric Theatre Co., Ltd., 154 La. 81, 97 South. 322, the Supreme Court, in considering the provisions of Act 262 of 1916, held that the furnisher of supplies who had not served on the owner a sworn statement of the amount due him by the contractor, could not hold the owner personally responsible. A rehearing was granted and the first opinion set aside, but not on the ground that Act 262 of 1916 had not been correctly construed; but because the court came to the conclusion that the case under consideration came under the provisions of Act' 229 of 1918, which did not require service of notice on the owner. • This is further shown by Louisiana Glass & Mirror Works vs. Irwin, 126 La. 555, 52 South. 765. The Act 134 of 1906 contains a provision' similar to the one referred to in Acts 262 of 1916, and 139 of 1922, and the Supreme Court in the case last mentioned held that the owner was not personally responsible, if the furnisher of materials had not served notice on him as required by the statute. Act 180 of 1894 contains provisions which would support plaintiffs’ demand, were it not that this act only applies to cities of over ten thousand inhabitants. Alfred Hiller Co. vs. Hotel Grunewald, 138 La. 305, 70 South. 234, is based on this act, therefore has no bearing as an authority in the present case. Utley Paint Co. vs. Foster and Shushan, La. Ct. of App. Rpts., Vol. I, page. 27 cited by plaintiffs supports their demand according to the syllabus.

The report of the case in the bound volume does not seem to be complete; but stops before the opinion was finished. Supposing the opinion to be as outlined in the syllabus, it is our opinion that the exception of no cause of action was properly .sustained and the suit dismissed.

The judgment appealed from is affirmed.

The plaintiff and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No.-
    First Circuit
    BROUSSARD v. UNION SULPHUR CO.
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par 160, 160 (j).
    A widow can recover compensation under the Workmen’s Compensation Act No. 20, 1914, section 8, sub-section 2, for the death of her husband, where it is shown that he was afflicted with a dormant disease when he suffered the injury which caused this disease to develop into a malignant cancer causing his death.
    2. Louisiana Digest — Master and Servant —Par. 160 (l); Appeal — Par. 625.
    The finding of the trial court on a matter of fact, that the injured employee’s death was caused by the development of a disease which was dormant before the accident but was aggravated by the injury, being eminently correct, is affirmed.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from Calcasieu Parish. Hon. Thos. F. Porter, Jr., Judge.
    Action by Dauterive C. Broussard against The Union Sulphur Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. R. Stone, of Lake Charles, attorney for plaintiff, appellee.
    Cline & Plauehe, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff filed this suit under the Employers’ Liability Act, on October 16, 1925. He died before trial, and by supplemental pleadings under proper allegations, his widow was made plaintiff. The complaint is based on two accidents; one that occurred on March 5, 1925, and the other on May 19, 1925. The employment .of deceased is admitted; also the accidents as described in the course of the employment of deceased, but defendant denies that the injury was of the character alleged.

D. C. Broussard, original plaintiff, died in November, 1925, of cancer. The record, which is voluminous, consists mostly of the opinion of physicians. In touching upon their views we shall limit our discussion to the vital question presented for decision. At the outset' and before entering into our appreciation of the evidence, it may be proper to say that the medical experts who testified in the case, agree on the proposition that the cause or origin of cancer is unknown. In connection with this statement, it is also proper to say that it is not contended by plaintiff that the injury which her , husband received, caused or originated the cancer from which he died. Her contention is that the injury he suffered, excited, set in motion or activated the cancerous cells which resulted in a cancerous growth and the spreading of the disease in his system, finally resulting in his death. It is not disputed that the cancer of which Mr. Broussard died was in his lymph or axillary gland, which is located in the armpit. The cancerous cells were indisputedly there at the time of the accident, as the experts all agree that the injury could not have caused or originated the cancer. Therefore, the question is as to whether these cancerous cells were at that time in a dormant or quiescent' condition and that by the injury or its effects, were activated, excited or set . in motion, thus starting them on their mission of destruction. It is on. a determination of this issue, as we understand the case, that its proper solution depends.

On March 5th, when the first accident occurred, deceased was the last of six men carrying a five-inch pipe, twenty-two feet long, which was resting on the right shoulder -of the deceased and was held up with his upraised hands. In crossing an obstruction by means of a board, three of the men immediately in front of him, lost their footing and the weight of the pipe suddenly descended on his shoulder. Deceased staggered under this sudden jerk but did not fall. He immediately said he had hurt his shoulder. The pain was acute where the arm joins the shoulder and extended back through tlie shoulder. He continued work until 5 o’clock and then reported to the physician that he had “twisted” his shoulder, that it “cramped” him but that he thought he was not hurt much. In the night following the day of this accident on March 5th, plaintiff says he woke up and could feel a little soreness under his arm “as what generally comes from a bruise and hurt”; that he bathed his shoulder and under his arm with the liniment. The next morning he went to work, had a kernel under his arm which, during that day continued to swell, and which grew up to the size of a hen’s egg. In about ten days after this accident this “kernel” or “lump” had diminished to the size of a marble, leaving only that much swelling under his arm. Thereafter, on Muy 19, 1925, while deceased was carrying heavy junk on his right shoulder he suffered a similar injury and the same pain he had experienced on March 5th. This “lump,” which had fallen to the size of a marble, again began increasing and as had been the case in the prior accident, grew up to the size of a hen’s egg. The pain became so acute deceased had to lay off from work in the month of July. Later, an operation was performed on deceased by Dr. Holcomb of Lake Charles, who removed part of this swelling from the axillary space where it was located. In November following Mr. Broussard died of cancer.

The facts we have hereinabove given in reference to the appearance and growth of this lump or swelling on the two occasions mentioned were taken from the testimony of Mr. Broussard, which was given on his death bed. The truthfulness of his statement is not questioned. Mr. Broussard testified that during his boyhood he had suffered at times with kernels such as the evidence shows are usually experienced by most individuals at that period of life. He had, however, never suffered with a kernel in his arm pit under' his right shoulder prior to March 5, 1925. Jt also appears by the testimonies of Mrs. Broussard, his widow, and his daughter, Miss Stella Broussard, that prior to the date of that accident, he had never, to their knowledge, complained of any lump or kernel under his arm. His fellow laborers in defendant’s mine also testified that at no time prior to March 5th, had Mr. Broussard complained of any such ailment as far as they knew. Hence, it may be stated with absolute certainty that prior to that date deceased was free from any such complaint.

The contention of the defendant company is that this swelling, kernel or lump was actually in the arm pit of the deceased at a time prior to the accident ■ of March 5th; that the pain he suffered merely attracted his attention to the afflicted spot or area and that he then discovered the existence of this kernel; that as such was and must have been the case, and that the cancerous growth existed, had taken form or shaipe at that time, was then in a state of progression and being in that condition, the injury merely accelerated the virulent movement of these cells, but did not start, activate or set them in motion from a quiescent or dormant condition.

It must be noted as we enter into the analysis of this proposition that Mr. Broussard said that on the very night after the accident of March 5th, that -he woke up and felt a soreness under his arm and applied some liniment to the affected spot which seemed to be a bruise or hurt. Is it to be believed for a moment that if a kernel or lump had then been in that area that, notwithstanding the bathing of it with liniment, the deceased would have failed to notice or discover such a swelling? The only logical inference from this state of fact is that these cancerous cells had not yet taken shape in the form of a growth, had been merely awakened from their dormant condition by the disturbance which had occurred in these cells caused by the “twist” or “wrench” of the shoulder which deceased had suffered. If such a lump had existed prior to March 5th, is it reasonable to believe that deceased, who was engaged at defendant’s mine in handling heavy pipes and junk, would not have previously suffered from such a swelling of his lymph gland under that' arm? If not, why then did he feel acutely during the very night following the accident a pain in that region and at a time when there was a mere soreness, and when the cancerous cells had not yet taken the form or shape of a lump or kernel?

Some physicians, eminent in their profession, who testified as experts in the case, take the position that this lump was in the arm pit of deceased before March 5th, and that the cancerous cells had already been set in motion or activated when the accident occurred. They say that within their experience it has happened that persons have come to them for medical advice, complaining that by reason of some knock, bruise or sudden jerk, a lump, swelling of a gland or kernel had been caused thereby. They refer to causes in which women, particularly, have complained of a sudden lump on the breast which they would ascribe to the causes above referred to. Their conclusion is that in such cases, such lumps or swellings, had in such subjects existed at a time (prior thereto and unknowingly to them, and that the injury or accident to which they were ascribed had merely called their attention to their existence.

It may be that in the cases of the character above described that the patients are often led to such discovery of some pre-existing condition by having, in the manner stated, their attention directed thereto. In a case like this, however, where a person having a lump of the character described in a lymph gland under the armpit which became so acutely sensitive immediately after two accidents, it is hard to believe, could have handled such heavy work as a laborer in defendant’s mine as was shown, and yet could have remained in total ignorance of the existence of such a condition. We cannot reconcile ourselves to such a conclusion.

The facts above referred to lead us to a contrary view, and more so from the fact that several of the medical experts said, after a thorough consideration of the subject in answer to many hypothetical questions propounded to them, that the “twist” or “wrench” of Mr. Broussard’s shoulder could have set in motion or have activated these cancerous cells from a quiescent or dormant condition, thus disseminating them through his system with the fatal results which followed.

The district judge, after a thorough analysis of the fact's, adopted that view in an able written opinion. We have, after a careful examination of the record, reached the same conclusion on the facts, which show that deceased was afflicted with a dormant disease when the injury was inflicted on him by the accident' of March 5, 1925, which might never have developed; that the cells of this dormant disease were vitalized by this accident and in a short while caused his death for which his widow is entitled to recover under the rule recognized in Behan vs. John B. Honor Co., 143 La. 348, 78 South. 589; Donahue vs. Scharfenstien & Son, 154 La. 815, 98 South. 256, as was held below.


text:
    No.-
    First Circuit
    DAVIS v. DIXON. DANGEREAU, Intervenor
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1, Louisiana Digest — Appeal—Par. 475.
    Record filed in the appellate court within three days of the expiration of the return day, is timely.
    2. Louisiana Digest — Appeal—Par. 518, 729.
    The absence of evidence from the record which is not imputable to the appellant will not cause a dismissal of the case, but a remand to the lower court for completion.
    ■ Appeal from the District Court, Vernon Parish. Hon. Hal A. Burgess, Judge.
    Action by J. Henry Davis against Turner T. Dixon, and Alfred Dangereau, intervenor.
    Case remanded to the lower court for completion of evidence.
    P. L. Ferguson, of Leesville, attorney for plaintiff, appellant
    S. I. Foster, of Leesville, attorney for defendant, appellee.
   MOUTON, J.

Appellee moves to dismiss this appeal because the record was filed at Lake Charles, where this court sits, one day after the return day had expired; and, in the alternative, because the testimony is not in the record.

The record was filed within three days from the expiration of the return day. This filing was in time.

The absence of the evidence from the record is not imputable to the appellant who prays that the record be returned to the clerk of court at Leesville for completion. This showing having been made by appellant by motion filed in this court, it is therefore ordered that this record be returned to the clerk of court at Lees-ville, Louisiana, to be completed by the filing of the testimony of evidence in the record, and when the record is completed to be returned to the clerk of the Court of Appeal at Baton Rouge, Louisiana.


author: WESTERFIELD, J.

text:
    No. 10,127
    Orleans
    FRAZER v. NEW ORLEANS PUBLIC SERVICE INC.
    (Jan. 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Damages—Par. 104. Where plaintiff in a physical injury suit shows that his heel was hurt by reason of a heavy rail being pushed against or lowered upon it, necessitating his using crutches for several weeks and causing him a loss of $204.00 in earnings and an expense of $50.00 for a doctor’s bill, but no bones were broken, and no permanent injury resulted, an award of $500.00 is considered sufficient.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Walter M. Frazer against New Orleans Public Service Inc.
    There was judgment for plaintiff and defendant appealed.
    A. B. Booth, J. O. Chamberlain, of New Orleans, attorneys' for plaintiff, appellee.
    Judgment amended and affirméd.
    Benj. W. Keman, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for damages due to physical injuries sustained by plaintiff under circumstances alleged to involve the responsibility of the local street railway. A jury awarded plaintiff $1000.00 and the defendant has appealed.

Plaintiff’s version of the accid'ent is as follows:

“On February 7, 1922, at the corner of Howard Avenue, on the footpath provided at that point for pedestrians, in the direction of Rampart Street, through the act of defendant’s employees or servants in negligently and carelessly dropping on plaintiff’s foot, a heavy steel rail being moved by said employees or servants over said footpath or walk after plaintiff had completely crossed said rail and was walking away from it.”

Defendant pleads contributory negligence, and avers that plaintiff “saw the men moving the rail, and, as it was being lifted up and let down in the process of putting under it a roller, stepped over the rail and scraped his left heel as the rail was being let down”.

The evidence preponderates in plaintiff’s favor and we. find that after plaintiff had crossed the rail he was injured by reason of the end of the rail being swung around toward him and dropped or lowered on his heel. One of plaintiff’s employees in charge of the movement of the rail which was very heavy (2000 lbs.) directed pedestrian traffic over the rail and, plaintiff in following such direction crossed the rail and was injured. If the rail was moving when plaintiff crossed, as defendant contends, the fault is' nevertheless with defendant, because its employee directed plaintiff to cross, or in any event did not warn plaintiff against crossing. If, as plaintiff insists, he crossed when the rail was stationary and was struck after getting over the rail by a lateral movement of the rail the responsibility of defendant is the more evident. Besides defendant’s theory is most improbable. Plaintiff could not have been injured in the manner proven in the record by simply scraping his heel on the rail.

Dr. Cohn, plaintiff’s physician, testified that he advised the use of, and plaintiff that he used, crutches for nearly a month, during which time he was unable to work. However, no bones were broken, no sprain and no permanent injury has resulted. Plaintiff lost $204.00 in salary as a postal clerk and paid a doctor bill of $50.00. Under the circumstances we think $500.00 sufficient award. The judgment appealed from will, for the reasons assigned, be reduced to $500.00 and as thus amended it will be affirmed, defendant to pay all costs.

Judgment amended and affirmed.


text:
    No.-
    First Circuit
    TRIMBLE v. GULF LUMBER COMPANY
    (January 7, 1927. Opinion and Decree.)

      (.Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 160 (a), 160 (j).
    Where the preponderance of the evidence of physicians shows that the plaintiff, an injured employee suing for compensation under the Employers’ Liability Act, No. 20 of 1914, is really a shrewd malingerer who did not suffer the disability complained of, his demands will be refused.
    (The recent amendment of Act- 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from the District Court of Vernon Parish. Hon. Hal A. Burgess, Judge.
    Action by John Trimble against Gulf Lumber Company.
    There was judgment for plaintiff and defendant’ appealed.
    Judgment reversed.
    Fern M. Wood, Hardin, Hardin & Cavanaugh, of Leesville, attorneys for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for compensation at the rate of 65 per cent of his ■ daily wage of two and 40-100 dollars, for 400 weeks, on account of permanent total disability to do work of any reasonable character. His petition describes the injury as “a fall to the floor and a shock or strain at once producing very serious hemorrhoids or piles; an injury to the back, breaking three ribs and straining the entire muscular system, leaving plaintiff very nervous and helpless”.

The plaintiff as a witness gives the following account of the injury and the manner in which it was inflicted: He was working in the yard, banking lumber for the Gulf Lumber Company, on Friday, August 21, 1925, about two o’clock in the afternoon. He and a fellow laborer had picked up a wet and heavy piece of lumber, four by six, twenty feet long, each holding an end of same, when his fellow laborer fell through a crack in the floor, dropped his end, the jar or jerk pulling plaintiff down, and thereby hurting his left arm and part of his back. He says that when he fell down he stayed down and that he did not work any more since. He then informed his foreman that he was hurt and went to Dr. Carroll, the sawmill physician, who fixed him up, and he went home. He went back to Dr. Carroll the next day, Saturday, and the doctor again fixed him up. He says then that on Sunday morning he started passing blood and went in a car (an automobile) to call on the doctor. He then stayed in bed at home until now when he could get about. He says further .that he passed blood for three or four weeks. He began to work for defendant in 1920, lived at Fullerton until he moved to Leesville, that he has since been treated by Dr. Willis and Dr. Talbot. He further says that he is unable to work, that his arm was broken, but that Dr. Carroll said his arm was not broken. He was earning two and 40-100 dollars a day, and he drew money as compensation from defendant for ten weeks after the accident.

Dr. Carroll says that plaintiff called on him for medical advice and assistance, that the symptoms complained of were entirely subjective, that he could discover no objective symptoms of any injury to plaintiff. He however reported plaintiff’s complaint to the office of defendant company, but made no recommendation as to the payment of compensation. In this condition of doubt as to whether plaintiff had really been injured, the doctor prescribed liniments and lotions for him as placebos. This manner of treatment was continued for some time, and in the meanwhile defendant advanced money to plaintiff in sums of one and two dollars at a time, until he disappeared from the sawmill surroundings and moved to Leesville.

After plaintiff moved to Leesville, some time in November or the first part of December, he consulted Dr. Willis and Dr. Talbot, who treated him. Dr. Willis, as a witness, depended largely, if not entirely, in his treatment of the plaintiff from the history of the case as given to him by plaintiff himself. He found, however, the muscles of plaintiff’s left arm slightly enlarged and some adhesion of the bones of the elbow interfering with the rotating of his arm. He believed that the sensitiveness of the muscles and the bleeding complained of might have been produced by an infection of the prostate gland and he also thought that plaintiff had muscular rheumatism from some local infection. He mentioned gonorrhea as the most frequent cause of enlargement and infection of the prostate gland, but he says there are other causes, but he did not think it came from the accident by which plaintiff claims to have been injured.

Dr. Talbot had recently made a second' examination of the plaintiff and said he could find none but subjective symptoms. He did, however, find that plaintiff’s arm was abnormal and that his power to rotate tlie same was limited. He said he found no broken ribs and that plaintiff in giving him a history of the case made no complaint of having been injured about the ribs.

Besides Dr. Carroll, five other reputable physicians testified that they had examined plaintiff carefully and thoroughly and had observed him with- a view of determining whether he was really suffering from the alleged injury or was merely feigning. They were all of the opinion and most of - them were convinced that plaintiff was a shrewd malingerer.

As.to the law of the case, plaintiff refers to two decisions of the Supreme Court, wherein it was held substantially that where an employer pays compensation to an employee who has been injured, it will be presumed that he did so knowingly and it is an acknowledgment on his part that compensation is due. These decisions can have no application here for the reason that no compensation was ever paid as such by the defendant to the plaintiff. For some time after plaintiff had complained of an injury defendant was unable to ascertain whether plaintiff was really entitled to compensation, and pending the ascertainment of that fact it advanced plaintiff in sums of one and two dollars, not amounting to the compensation claimed, for the purpose of enabling plaintiff to provide absolute necessities of life, an amount approximating sixty-five dollars, from August 21 to November 10, 1925. It would be unconscionable to construe this act of humanity on the part of defendant as an acknowledgment of an obligation for which it is not responsible.

Plaintiff in his petition claimed that he had suffered from broken ribs. There is no evidence even on the part of plaintiff himself that any such injury had been inflicted. His petition says nothing of a broken or sprained arm and, strange to say, towards the close of the trial the main question in the case seemed to be whether he had been injured in his left arm. A large preponderance of medical opinion is that the arm is normal and uninjured.

We do not believe that plaintiff is entitled to compensation and for these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand is rejected at his costs.


text:
    No.-
    First Circuit
    BAUGH v. SCOTLAND LUMBER CO.
    (December 7, 1926. Opinion and Decree.)
    (January 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 160 (j), 160 (I); Appeal — Par. 636.
    Where the evidence in an Employers’ Liability Case, under Act 20 of 1914, is evenly divided the conclusion of the trial judge will be accepted as correct.
    2. Louisiana Digest — Master and Servant —Par. 158.
    A minor employed as a slabman in a lumber mill is in the course of his employment within the meaning of the Workmen’s Compensation Law, Act 20 of 1914, as amended, when he helps replace a belt which had slipped from a pulley, the evidence being conflicting as to whether he was forbidden to “fool with the belt”.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from the Parish- of Pointe Coupee. Hon. -, Judge.
    Action by Everett N. Baugh against Scot-, land Lumber Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Claiborne & Claiborne, J. H. Morrison, of Baton Rouge, attorneys for plaintiff, appellee.
    Albin Provosty, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

William Baugh lost an arm while engaged as an employee of defendant company. ■ This suit is brought by his father, the plaintiff, for compensation, under the Employers’ Liability Act, his son being a minor. The sole question presented for decision is as to whether or not William Baugh was, at the time of the accident, engaged in the performance of services arising out of or incidental to his employment. The district judge rendered judgment resolving this question in favor of plaintiff, from which defendant prosecutes this appeal.

William Baugh was employed as a slab-man by defendant company. He was stationed upstairs in defendant’s mill where he was required to catch slabs from rollers and to throw them in a conveyor, by which they were carried to a dumping place. The conveyor was operated by a belt which was located downstairs in the mill. The conveyor suddenly stopped and William Baugh went downstairs to see what was the cause of the trouble. The belt had slipped from the pulley and the conveyor had ceased to operate. Baugh, in attempting to replace the belt, got on the wrong side, was caught by the belt, which resulted in the tearing up of his arm between the elbow and shoulder.

A millwright, with a helper, was stationed downstairs, and as the evidence shows it was a part of their. duties to replace the belt when it happened to slip off from the pulley. Baugh, the injured boy, testified that Woody, the mill foreman, instructed him about three days after he was employed to go down and help put on the belt when it came off the pulley. Chaisson, a former wheelwright at the mill, testifies he was present when Woody gave these instructions to Baugh. Woody denies that he gave any such instructions and claims that, on the contrary, he warned Baugh that he should not “fool with the belt”, meaning, as he explains, that he was instructed not to try to put on that belt. Pittman, helper of the wheelwright, who was assisting Baugh to put on the belt when he was hurt, testifies that he heard Woody when he instructed Baugh not to “fool with the belt”. Callahan, another witness, testifies that he warned Baugh not to attempt replacing the belt when it ran off the pulley. His testimony is of a vacillating character, and rather unsatisfactory. The evidence shows it took two men to put that belt on the pulley when it happened to slip off, which was of quite frequent occurrence. It also appears that the slabman often assisted the wheelwright or his helper to put it on. This was particularly in line with the duties of the slabman, as was explained by McDonald, a former manager of the defendant’s mill. Ás a matter of fact, the record shows that not only slabmen but others working in the mill often assisted in replacing this belt. It does not appear that as a rule the slab-men were directed not to attempt to put the belt on the pulley. Woody says that he so warned Baugh, because he was young and inexperienced. The evidence shows that others nearly as young and quite as inexperienced were permitted to assist in replacing this belt. It is not shown that they undertook to do this under the instructions of Woody, but as it does not appear that they were advised against it or that any protest was made, it is but fair to presume such action met with the approval of the mill foreman or was acquiesced in by the management. With this practice, if not custom, prevailing at the mill, which was in keeping with the work 'of the slabmen as explained by the former manager, McDonald, it is reasonable to believe that Woody could have given instructions to Baugh to assist the wheelwright or his helper when necessary to replace the belt, particularly as he would very likely be the first man to notice the effect of the slipping off of the belt from the pulley. With evidence of this character before him, we do not think that the district judge erred in believing the testimony of Baugh and Chaisson to the effect that Woody instructed the former to assist in putting thé belt on the pulley when his services were needed for that purpose. If we leave out of consideration the facts and circumstances of the case which we find are favorable to the version given by Baugh and Chaisson, the solution of the issue would have to depend entirely on the veracity of the witnesses who testified herein. In such cases, and where the evidence is evenly divided as it is here, the conclusion of the trial judge will be accepted. Scott vs. Dounson, 148 La. 307, 86 South. 821; Cloud vs. Warner, 157 La. 14, 101 South. 794.

The district judge found that plaintiff’s minor son was acting within the scope of his employment when he was injured. We find that the judge is supported in this conclusion by the evidence, which being, however, at least sharply conflicting and about evenly balanced, would not justify a reversal.

Affirmed.


author: WESTERPIELD, J.

text:
    No. 9474
    Orleans
    LANDWEHR, WIFE OF NAWLO, v. AMERICAN CAN CO.
    (January 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Master and Servant, —Par. 159.
    The loss of one phalange of the little finger and of a part of one phalange of the two adjoining fingers is not an injury compensable under Subsection (e) of Section 8 of the Compensation Law.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal form Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Josephine Landwehr, wife of William J. Nawlo, against American Can Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jos. H. Brewer, of New Orleans, attorney for plaintiff, appellant.
    'Jno. E. Jackson, of New Orleans, attorney for defendant, appellee.
   WESTERPIELD, J.

This is a suit under the Workmen’s Compensation Law.

Plaintiff was employed in operating a machine which pressed or punched tin disks into tops for tin cans. The tips of the fingers of her right hand were caught in the machine and she suffered the loss of one phalange of the little' finger and a part of one phalange of two other fingers.

Defendant paid compensation at the rate of 60 per cent of plaintiff’s wages for twelve weeks under Subsection (a) of Section 8 of the law which provides for compensation:

(á) “Por injury producing temporary total disability to do work of any reasonable character sixty per centum of wages during the period of disability, not, however, beyond 300 weeks.”

The contention of plaintiff is that Subsection (e) and not Subsection (a) of Section 8 governs the case. This section reads as follows:

(e) “In cases not falling within any of the provisions already made, where the employee is- seriously permanently disfigured about the. face or head, or where the usefulness of a member of (or) any -physical function is seriously permanently impaired, the court may allow such compensation as is reasonable'in proportion to the compensation herein specifically provided in the case of specific disability above named not to exceed sixty per centum of wages during 100 weeks.”

The argument is that plaintiff’s injuries are permanent and are not covered by other provisions of the act and that the usefulness of plaintiff’s hand hy reason of the injury to her fingers is seriously and permanently impaired. Compensation is asked for 100 weeks subject to a credit in the amount previously paid hy defendant.

We are of opinion that plaintiff was properly compensated under Subsection (a), which provides for total and temporary disability.

Plaintiff bases her case on Kinney vs. Edenborn, 151 La. 221, 91 South. 712, which her counsel avers has not been overruled.

“The judgment of the trial court is clearly erroneous if the opinion of the Supreme Court of Louisiana in the case of Kinney vs. Edenborn, 151 La. 221, 91 South. 712, is still the jurisprudence of this state, and that case has not been overruled. In that case the employee lost the first joint of the second finger, a phalange of the third finger, and the tip of the little finger was chopped off. The court held that Section 8, Paragraph 1 (d) and Paragraph 1 (e) permitted recovery, and gave a decision upon the basis of the loss of two and one-half fingers. That case is absolutely and directly in point in the present instance, and shows beyond a doubt that the trial court erred in. its application and interpretation of the law and the facts in the present case at bar.”

But counsel like all the rest of us is sometimes mistaken, for in Black vs. Louisiana Lumber Co., 161 La. — (not yet reported), the Supreme Court observed:

“For the same reason in Kinney vs. Edenborn, 151 La. 216, 91 South. 712, the court allowed compensation under Subsection (e) for the loss of one phalange of a finger. In that respect, however, the decision was virtually overruled by Bell vs. Merchants Cotton Oil Co., 160 La. 585, 107 So. 436.”

In Black vs. Lumber Co. (supra) the court considers at length Subsections (a), (b), (c), (d) and (e) of Section 8. We quote the following as completely disposing of this case:

“(2-3). If it is possible for any proposition to be settled by the jurisprudence of a court of justice, it has been settled by the repeated and consistent rulings of this court and of the Courts of Appeal that, under the Employers’ Liability Act, the compensation to be paid for an injury producing disability to do work of any reasonable character is determined, not by Subsection (e), but by Subsection (a), or Subsection (b), or Subsection (c), or Subsection (d), as the case may be. Subsection (a) provides for compensation for an injury producing temporary total disability to do' work of any reasonable character; Subsection (b) provides for compensation for an injury producing permanent total disability to do work of any reasonable character; Subsection (c) provides for compensation for an injury producing partial disability — either temporary or permanent partial disability — to do work of any reasonable character; and Subsection (d) fixes definitely the compensation for certain specified permanent injuries, that is, for the. loss of a thumb, finger, toe, hand, arm, foot, leg, or an eye, and for the loss of both hands, both feet, or both eyes, or a hand and a foot. At the end of Subsection (d) is a new paragraph, which was not in the statute before it was amended by the act of 1922, declaring that the permanent total loss of the use of a member — meaning a thumb, finger, toe, hand, arm, foot or leg — shall be equivalent to the amputation of the member. Then follows Subsection (e), making provision for injuries not producing disability to do work of any reasonable character. This subsection provides that ‘in cases not falling within any of the provisions already made,’ where an employee is seriously permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation thereinabové specifically provided for the cases specified, not to exceed 60 per cent of the wages during 100 weeks. There is a misprint in Subsection (e) in the Act of 1922. The word ‘or’ is erroneously printed ‘of’ in the expression, ‘where the usefulness of a member of any physical function is seriously permanently impaired’. The word was printed correctly, ‘or,’ when this subsection was originally enacted, ;n the amendment of 1916, and also in the amendments of 1918 and of 1920, and it is printed correctly, ‘or,’ in the amendment of 1924. To speak of the usefulness of a member of any physical function would not make sense. Therefore, following the' Scotch rule, and observing the very obvious typographical error, we müst read Subsection (e), in the statute of 1922, as if it said, ‘where the usefulness of a member or any physical function,’ etc.

“Of course, when a man’s hand is seriously permanently deformed and weakened, as in this case, the case is one ‘where the usefulness of a member is seriously permanently impaired’. But Subsection (e), in terms, declares that it is not applicable to a case, ‘where the usefulness of a member or any physical function is seriously permanently impaired,’ except ‘in cases not falling within any of the provisions already made’; that is, in cases not falling within Subsection (a), (b), (c) cr (d).

"(4). We have decided, at least five times, with the utmost deliberation, and with careful consideration of the several amendments of Section 8 of the statute, that Subsection (e) does not apply to a case falling within the provisions of Subsection (a), Subsection (b), Subsection (c), or Subsection (d). See Mack vs. Legeai, 144 La. 1017, 81 So. 694; Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 So. 25; Garr vs. Wyatt Lumber Co., 147 La. 689, 85 So. 640; Dennis vs. Huber, ■151 La. 589, 92 So. 126; and Daniels vs. Shreveport Producing & Refining Corporation, 151 La. 800, 92 So. 341.”

For the reasons assigned the judgment appealed from is affirmed.


author: W. CATESBY JONES, J.

text:
    No. 10,638
    Orleans
    DR. COHN v. ST. CLAIR CASAYON AND MRS. ST. CLAIR CASAYON
    (January 17, 1927. Opinion and Decree.)

      (.Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 337, 343.
    When one expert testifies that he does the work every day and bills his patients therefor and the other expert testifies that he has never done the work in his private practice and has never sent out a bill therefor, the estimate of the former will be given greater weight.
    Appeal from First City Court, Section “A”. Hon. W. A. Bahns, Judge.
    Action by Dr. Albert"J. Cohn against St. Clair and Mrs. St. Clair Casayon.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended.
    Jno. E. Jackson, Baldwin J. Allen, of New Orleans, attorneys for plaintiff, appellant.
    Jos. A. Casey, of New Orleans, attorney for defendant, appellee.
   W. CATESBY JONES, J.

This is a suit against St. Clair Casayon and his wife for one hundred and thirty dollars ($130.00) for dental services rendered to Mrs. Casayon.

Petitioner alleges that Mrs. Casayon employed him to put her mouth and teeth in order about November 19, 1925; that no' price was fixed, but it was agreed that he should charge her. usual rates; that he treated the patient from November 19, 1925, to February 12, 1926, at various times, as per itemized statement, meanwhile attending to the gums, extracting and filling some teeth and installing an upper gold plate; that the services were satisfactory and the price reasonable..

The answer admits that no price was fixed and that the work was satisfactory, but denies that the charges are reasonble.

The lower court gave judgment against Casayon for eighty dollars ($80.00) and dismissed the suit against Mrs. Casayon.

Prom this judgment plaintiff appeals to this court and the sole question before us is the reasonableness of plaintiff’s bill.

Plaintiff, a graduate of the Ballmore College of Dental Surgery and a practicing dentist in this city for twenty-seven years, testifies that he put in one amalgum filling, treated two abscessed teeth from November 19 to January 6 six or seven times, meanwhile opening the root canals going through the apex, extracting pus and inserting medicine, extracted two teeth, made a gold plate with three teeth and fitted it in her mouth and cleaned her teeth; that his ordinary and usual bill for such work has been one hundred and sixty-six dollars ($166.00), but he charged only one hundred and thirty dollars ($130.00), because he had known the patient before her marriage.

He further testified that he had paid the laboratory for the gold plate and teeth thirty-six dollars ($36.00) and the other materials used were reasonably worth ten dollars ($10.00).

Dr. W. M. Miller, a graduate of Tulane and a practicing dentist in this city for twenty-four years, after examining the bill and the gold plate, testified that he did a lot of similar plate work and his minimum charge would have been in this matter one hundred and fifty dollars ($150.00).

Mrs. Casayon testified that Dr. Cohn had done work for her for thirteen years and his charges had always been moderate.

Dr. Skinner, a graduate of Tulane in 1911, testified that he had practiced dentistry continuously in this city, except for one year when he was in the army, where he also practiced his profession; that he was then working for the IT. S. Veterans Bureau; that he had never put in any gold plate like this in his private practice and consequently had never sent a bill for one) but that he put them in for government patients; that he had examined the plate and teeth and thought twenty-four dollars ($24.00) for the labor and thirty-six dollars ($36.00) for the material a reasonable charge.

To summarize: Dr. Miller testifies that he “got this plate work every day”; that he would never charge less than one hundred dollars ($100.00) for such work; Dr. Cohn testifies to the same effect and Dr. Skinner says that he has never made a charge for such work. As this item is by far the most important on the bill and there can be no question that thirty dollars ($30.00) was a reasonable price for the rest of the work, we are of the opinion that the plaintiff has the preponderance of the evidence with him and that the judgment should be amended by increasing the amount allowed to one hundred and thirty dollars ($130.00).

It is therefore ordered,, adjudged and decreed that the judgment of the lower court be amended and that there now be judgment in favor of Dr. Albert J. Cohn against St. Clair Casayon in the full sum of one hundred and thirty dollars ($130.00), with legal interest from judicial demand and all costs.


text:
    No. 9566
    Orleans
    NEW ORLEANS v. REATZ
    (January 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Costs' and Fees— Par. 31.
    The civil sheriff is not entitled to a fee of 2yz per cent on the amount awarded by a jury in an expropriation suit, which has been deposited with him pending decision on appeal, because the judgment based on such an award does not constitute “mesne” or final process.
    Appeal from Civil District Court, Division “A”. H. C. Cage, Judge.
    Action by City of New Orleans against Frederick Reatz.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. McL. Fayssoux, of New Orleans, attorney for plaintiff, appellee.
    A. J. Peters, Jas. Wilkinson, of New Orleans, attorneys for defendant, appellant.
   W. CATESBY JONES, J.

In this matter an expropriation jury in the court below awarded the defendant $8180.00 with legal interest and all costs for the value of his property. From a judgment of the lower court based on this verdict, appeal was taken to Supreme Court.

Acting under Article 2634 of the Revised Civil Code, which so permits, plaintiff deposited with the civil sheriff the amount of the jury’s award pending decision of Supreme Court on appeal and proceeded to demolish the buildings on the property.

When the defendant sought to withdraw the deposit from the civil sheriff this official claimed a fee of 2% per cent of the amount and filed in rule in court below against plaintiff and defendant to show cause why he should not be paid out of the deposit, because the money on deposit had been paid to him under “proceeding herein”.

To this rule defendant filed answer denying that the money was paid to sheriff under any proceeding or process of court “mesne” or final, and averring that said money was paid under an express provision of law.

The judge below dismissed the rule as to both defendants and the civil sheriff has appealed.

The civil sheriff claims under Paragraph 20 of Section 23 of Act 136 of 1880, which reads as follows:

“Commissions on moneys realized under ‘mesne’ or final process the same rates as in case of sale.”

And the preceding Paragraph 19 in regard to sale says:

“For commissions on sales of property made by the civil sheriff 2% per cent shall be allowed.”

Though in his brief appellant argues that the judgment of expropriation was a “final process”, -he refers us to no authority sustaining this contention and our research .has proved equally futile.

Paragraph 1 of Section 23 of Act 136 of' 1880 reads as follows:

“That the fees of the civil sheriff of the Parish of Orleans shall be as follows and no fee or charge shall be collected by him for any service not specially provided for in this section.”

The Supreme Court in construing this section in Succession of Czarnowski, 151 La. 762, 92 South. 325, held that the civil sheriff was only entitled to 2% per cent on the moneys actually collected by him; though he was charging $3345.00 for administering several properties which had been sequestered by the court.

In Conery vs. Waggaman, 1st McGloin 43, and Claverie vs. Waggaman, 1st McGloin 35, this court held that the 'term “mesne process” referred to our conservatory writs of attachment, sequestration, etc.

In the course of his opinion Judge McGloin uses the following language:

“But Blackstone and Bouvier and Webster copying declare also ‘mesne process’ is also sometimes put in contradistinption to final process or ‘process of execution’ and there it signifies all such process as intervenes between the beginning and - end of a suit.”

Cyc. Yol. 32, page 420, says:

“Final process is usually used as equivalent to a process of execution as distinguished from ‘mesne process’ which must issue before final judgment.”

For the reasons above set forth the judgment is affirmed.


text:
    No. 9493
    Orleans
    AMERICAN ELECTRIC WORKS, INC., v. WOLF ELECTRIC WORKS, INC.
    (Nov. 29, 1926. Opinion and Decree.)
    (Jan. 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 45, 58.
    A vendee in a contract of sale who delivers the merchandise sold before the dates mentioned in the contract, commits no breach thereby, particularly .when it appears that he was urged to make earlier delivery by his vendor.
    Appeal from Civil District Court, Division “F”. Hon. Percy Saint, Judge.
    Action by American Electric Works, Inc., against Wolf Electric Works, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    D. B. H. Chaffe, W. Catesby Jones, of New Orleans, attorneys for (plaintiff, appellee.
    Benj. Y. Wolf, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff alleges that on May 21, 1920, it sold to defendant 5600 pounds of “double cotton covered magnet wire in 200-pound reels, numbered 9 to 18, inclusive, and one reel No. 20,” deliveries to be made in installments at intervals of 6, 9 and 19 months; that at the request of plaintiff the delivery dates were changed; that on April 8, 1921, defendant refused, in writing, to accept further deliveries of wire and that, at the time, there was 2684 pounds of the original 5600 pounds on hand; that' in the meantime the market' had declined to the extent of $536.74, as affecting the wire on hand and unshipped. Plaintiff sues for that amount as damages for the breach of the contract by defendant.

The defense is two-fold. First, the contract is void because (a) it contains the potestative condition and (b) misrepresentation, i. e., fraud.

Second. The contract was first breached by plaintiff in that it delivered the goods before the date of delivery mentioned in the contract.

There was judgment for plaintiff as prayed for and defendant has appealed.

The alleged potestative condition is based upon the “strike clause” in the contract reading as follows:

“The seller shall not be liable for nonperformance of this order in whole or in part, if such non-performance is the result of any fires, strikes, difference with employees, casualties, delays or interruptions in transportation, shortage or failure of car supply or other causes beyond the seller’s reasonable control; and these exceptions shall not be limited or waived by any other terms of this order, whether printed or written.”

No argument, orally or in brief, was made in support of this contention and we therefore conclude it has been abandoned, and, we might add, properly so.

The misrepresentation is alleged in the petition to. consist of a statement by plaintiff’s salesman “that there would be a shortage of copper and cotton and that this company would not be able to deliver except after a lengthy delay” whereas “after said order was received the company notified respondent that it would be able to deliver all the wire ordered”. On the trial of the ease defendant was not permitted to prove the alleged statement of plaintiff’s salesman upon the ground that the contract was reduced to writing and its terms could not be varied by parol proof of a contemporaneous statement. Plaintiff complains of this ruling as prejudicial. We believe the ruling was correct. There is abundant proof in the record that plaintiff was having difficulty in making delivery of its products in keeping with it's sales and that defendant was most insistent in its request for earlier deliveries. We can see nothing fraudulent in the representations alleged to have been made.

The plaintiff corporation is domiciled in Philippsdale, R. I., and defendant in New Orleans. The contract between them is in the form of letters containing an offer to buy and an acceptance. The offer of plaintiff is in the following language:

“Please enter our order for the following wire.

(A detailed description of the wire follows) and the letter continues—

“In reference to delivery, we understand same to be on 9-10-11-12 thirty-five weeks (35) on 13-14-15 twenty-five weeks (25), on 16-17-18-19-20 nineteen months (19), and we further understand that you are bettering your deliveries considerably so that we sincerely hope that you will get our wire to us much sooner than these dates.

“We urgently request that if you can only ship us a reel at a time, that you please endeavor to better your deliveries to us on sizes 9-12-13-15-16.

“If you will refer' to our March order and try to let us have just a reel or so in these sizes on that order, you will help out tremendously.

“Yours very truly,

“WOLE ELECTRIC WORKS, INC., “(Signed) M. E. Williams,

“Secretary.”

On June 21st, one month after the offer had been accepted, defendant, in reply to a letter of plaintiff, stating that the best deliveries it could make would be February 25th, February 26th, and December 31st, wrote:

“Replying to your letter of the 16th inst., we will ask that you get in touch with the factory and use your "utmost endeavor to have our order of May 19th shipped, either in whole or in part, at a date in advance of those listed in your letter.

“When your Mr. Patton again calls we will give him another order as to be able to keep our stock in fairly good shape.

“A local concern is getting mighty good delivery on D.C.C. magnet wire from some manufacturer and due to the fact that you seem to be unable to make fairly prompt delivery we were forced to place an order elsewhere, much to our regrets as the writer’s dealings with your company in the past have always been so pleasant.

“You of course understand that we do not intend to be unreasonable in this matter, but, we do expect that, in view of the business you have received through the writer in the past you will manage to send us a (part of our order when you are drawing out wire for other concerns of the same sizes ordered by us.

“Kindly do your utmost to keep us supplied as we cannot keep our doors open without magnet wire.”

When the wire was purchased and for some time thereafter plaintiff was frantically demanding early shipment. For some reason its attitude changed and the wire is not wanted at all.

On November 19, 1920, defendant writes, asking the cancellation of the order so far as the unshipped wire is concerned, or “if this be impossible, to sell same for us at the price as billed us,” because “we cannot tell just what we can do so far as remittances are concerned. In fact we are so overstocked now. that we are disposing of some our wire at a loss”.

On January 8, 1921, defendant wrote:

“We find at the present mat we are considerably overstocked on magnet wire. We purchased wire from you sufficient for a year or more requirements, based on the statement of your representative, relative to the condition of the work in your factory. We now find that you are in position to make very (prompt delivery on wire but as stated above we are considerably overstocked.

“Due to the fact that we receive absolutely no protection on the order which we placed with you, we presume that it is necessary for us to allow you to complete same, however we will ask that instead of setting a fixed schedule for delivery on the balance of our order, you allow us to advise you as our stock decreases, what part of the order it is satisfactory to ship. We will give you our assurance that we will purchase no magnet wire, of the sizes specified on our order, from any other source, until the order is completed.”

Finally on May 20, 1921, in answer to a letter of plaintiff refusing to cancel the remainder of the order defendant wrote:

“We have your letter of April 11th with reference to. cancellation of the balance of our order of May, 1920.

“We feel that we are within our rights in demanding cancellation and have consulted our legal adviser, and upon his advice we will accept no further shipments to apply on this order. We find that cercain sizes of this wire, scheduled for nineteen months’ delivery, in accordance with the acknowledgment of our order, have been shipped to us already. We feel that you have not lived up to your agreement as stated in your acknowledgment and we are, therefore, not obliged to take the wire.”

We are forced to conclude that defendant’s difficulties are entirely due to its own fault. It is apparent that it overreached itself by buying beyond its requirements.

As to the measure of damages, the difference between the selling price and the market price is the rule to be followed. Woodstock Iron Works vs. Standard Pulley Mfg. Co., 115 La. 829, 40 South. 236; Hafner Mfg. Co. vs. Lieber Lbr. & Shingle Co., 127 La. 348, 56 South. 346; American Trading Co. vs. N. O. & N. E. Ry. Co., 159 La. 9, 105 South. 82.

The proof in this regard seems to us sufficient to support the award of the district court.

The judgment appealed from is therefore affirmed.


author: WESTERFIELD, • J.

text:
    No. 9463
    Orleans
    CLARKE CO., LTD., v. BOURGEOIS & DUVIGNEAUD
    (November 29, 1926. Opinion and Decree.)
    (January 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)

      1. Louisiana Digest — Mechanics’ Privileges — Par. 23.
    Under Act 229 of 1916 claims for work done, or materials furnished, must be recorded in the mortgage office within forty-five days from the completion of the work or the delivery of material, in order to create a privilege upon the building or a personal claim against the owner.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by J. J. Clarke Company, Ltd., against M. Bourgeois and Jos. G. Duvigneaud.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. & T. Williams, of New Orleans, attorneys for plaintiff, appellant.
    Roger Meunier, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, • J.

Plaintiff, a furnisher •of materials, sues the contractor and owner.

The petition alleges that plaintiff sold and delivered to M. Bourgeois, a contractor, certain building materials, from time to time, beginning September 6, 1922, and ending October 9, 1922, amounting in the aggregate to $435.00; that the materials so sold were actually used by the said Bourgeois in the construction of a building owned by Joseph G. Duvigneau; that on November 24, 1922, a lien was inscribed in the mortgage office against the property and a copy of the said lien, together with an attested account, was served on Duvigneau, the owner, and Bourgeois, the contractor. Judgment is asked .against the owner and contractor.

The contractor made no defense and a judgment by default was entered against him. The owner filed an exception of no cause of action and a plea of prescription. The plea of prescription was maintained on the face of the papers and plaintiff’s suit dismissed. The exception of no cause of action was not disposed of below.

Plaintiff has , appealed and defendant, Duvigneau, has answered, asking that the exception of no cause of action be also maintained.

We believe the plea of prescription was properly maintained. The date of the last delivery of material by plaintiff as set forth in his petition was October 9, 1922. The .alleged date of recording the lien in the mortgage office was November 24, 1922, or on the forty-sixth day thereafter. The law (Sec. 2, Act 229 of 1916) requires the recordation to be made within forty-five days. Hodgson vs. Roth, 33 La. Ann. 945; Breaux vs. Broussard, 116 La. 215, 40 South. 639; Robinson Slagle Lbr. Co. vs. Rudy, 156 La. 178, 100 South. 296.

The forty-five days begins to run in the case of the furnisher of materials from the date of the last delivery. Gleisner vs. Hughes, 153 La. 153, 95 South. 529. In J. J. Clarke Co., Ltd., vs. A. J. Petivan et al., No. 9257 Orl. App., a case in which the present plaintiff was also plaintiff, we considei'ed this question at length and reviewed the authorities. We can .add nothing to what we said there.

The judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,246
    Orleans
    ROBINSON v. TIEMANN, Appellant
    (Jan. 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 518, 729.
    If this court is unable to review the judgment appealed from because a material part of the record is missing' without appellant’s fault, the judgment will be avoided and reversed and the case remanded for a new trial de novo.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Andrew Robinson against L. A. Tiemann.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    J. C. Henriques, F. T. Doyle, of New Orleans, attorneys for defendant, appellee.
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellant.
   CLAIBORNE, J.

The testimony taken by the stenographer in this case on behalf of defendant was never transcribed owing to the death of the stenographer, and is consequently not in the transcript. Both parties ask that the case be remanded. The plaintiff asks that the judgment be avoided and reversed and that the case be remanded for a new trial de novo. The defendant prays only that the case be remanded for the exclusive purpose of taking anew the testimony and evidence on •behalf of the defendant without reversing and setting aside the judgment. ,We find no precedent for such action. But on the contrary in all cases where an essential part of the record is missing the judgment appealed from has been avoided and reversed and the case remanded for a new trial de novo. Such was the ruling in the following cases: Evins vs. Murphy, 1 R. 477; Agricultural Bank vs. Alexander, 1 La. Ann. 246; Lyons vs. Andrews, 5 La. Ann. 602; Barrow vs. Landry, 32 La. Ann. 83; Wilkinson vs. Martin, 13 La. Ann. 479; Meyer & Bro. vs. Dupree, 25 La. Ann. 216; Nichols vs. Harris, 32 La. Ann. 646; Miller vs. Shotwell, 38 La. Ann. 103; Dauchite Lbr. Co. vs. Lane & Bodley Co., 52 La. Ann. 1939, 28 South. 232; Barton vs. Burbank, 119 La. 227, 43 South. 1014; Union Garment Co. vs. Newburger, 124 La. 820, 50 South. 740.

It is therefore ordered that the judgment appealed from be avoided and reversed and that this cause be remanded for a new trial de novo.


text:
    No. 10.577
    Orleans
    STEWART, Appellant, v. SCIACCALUGA
    (December 13, 1926. Opinion and Decree.)
    (January 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 217, 218, 219.
    When a heater of a particular name and quality has been sold and delivered by a merchant without any special warranty, the price is due, though it fails to' answer the purpose intended by the purchaser.
    Appeal from First City Court. Hon. Wm. V. Seeber, Judge.
    Action by Samuel ^B. Stewart against G. Sciaccaluga.
    There ^ivas judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Louis E. Jung, of New Orleans, attorney for plaintiff, appellant.
    A. B. Leopold, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of a “No. 4 Estate Heatrola heater" and connections sold and delivered by plaintiff to defendant at his residence No. 2701 De Soto street.

For answer the defendant admitted that he purchased the heater but denied that there was anything due thereon for the following reason: “That it was agreed that the heater was to be satisfactory to respondent and give the required temperature in order to heat the bedrooms of respondent’s residence properly and in a complete manner, but that, on the contrary, after several tests were made it was discovered that the said heater failed to circulate the heat properly, so that the necessary temperature could be had in order to give the required heat in accordance with said verbal understanding. That the heater is of no value to your respondent, and he has on various occasions offered to return the same to the plaintiff and pay him a reasonable amount that he may have incurred for installation of the same.”

There was judgment in favor of the defendant “dismissing the suit as in case of nonsuit”, and the plaintiff has appealed.

In this court the plaintiff has prayed that the judgment be amended into an absolute judgment for the defendant.

Concerning the agreement alleged in the answer the plaintiff testified:

“I made no guarantee at all except to tell them it would heat in the usual way because I told them in a general way it would heat the house.”

The defendant said:

“Q. Are you still willing to carry out the allegation you made in your answer; you are willing to pay Mir. Stewart a reasonable amount he may have incurred in installing the heater?

“A. The full amount as I agreed if the heater did not meet with my approval.”

There is no evidence that it was stipulated that the heater would give any particular amount of heat. On the contrary, the defendant was asked:

“Q. Mr. Stewart did not warrant you any particular temperature?

“A. No, not that I know of.”

The plaintiff being asked whether the defendant had made an offer to return the stove and to reimburse the cost of installation expenses answered: “No”.

Upon the question of the amount of heat thrown out by the heater the evidence is conflicting, but preponderates largely by the physical facts and by the testimony in favor of the plaintiff.

Defendant’s house is thus described by plaintiff:

“There is a long room, built in between two old houses; it is four rooms connected and then four small rooms in the back and a space. One large room I measured is 26x9 feet. That is a very long room; that is what they tell me was the main room where they live, etc.”

The heater was put into that “large room”, at the plaintiff’s suggestion. He has been in the heating business for thirty years and twenty-seven years for himself.

“Q. During that time have you handled heaters of that kind?

“A. Sold a whole lot of them.”

M. J. Magruder, employed by plaintiff, handles and installs heaters; that is all he does; he made two tests of the heater; the first test was useless because there was no damper in the flue; he fired the heater for a couple of hours and placed thermometers in the different rooms and made readings every half hour; Miss Sciaccaluga was present, and the defendant came in afterwards and read the thermometers; the temperature of the .room in which the heater was rose to 81 degrees; the others varied from 70 up; the only room in which the temperature was below 70 degrees was the front bedroom in which the transom was closed; Miss Sciaccaluga told him that it made her father sick to have the transom open and she refused to have it opened; in that room he could not get more than 68 degrees with the transom closed.

Wm. B. McEnanry is a plumber employed by plaintiff; his business is installing heaters; he was present when Magruder made the tests; it seemed to him the place was warm enough at that time; the fire was very hot.

The only witness for the defendant was Sciaccaluga himself. He testified that there were only 64 degrees in his bedroom and that he required 70 degrees; and only 64 degrees in the other bedrooms; he admitted that the price of the heater was $175 and $25 for installation. His only objection was that there was not sufficient heat. He said:

“I feel I could get the same results from an ordinary stove.”

A heater or a stove speaks for itself: When a fire is built within it, it is bound to emit heat as a physical fact. There cannot be any complaint, and there was none, that the heater did not heat the sitting room, 26x9. With open doors, the adjoining rooms must, of necessity, also have been heated. If the defendant’s front room was not heated it was because the transom, and perhaps the door, was closed. While the defendant testified that he wanted 70 degrees, his daughter testified that her father would. not have the transom opened because it made hiin sick to sleep in a warm room. Plaintiff’s claim cannot be rejected upon the sole testimony of the father contradicted by two experienced witnesses and by the inherent nature of a heater. If it was true that the heater gave out no heat he should have had other disinterested witnesses to corroborate him. The trial judge had but little confidence in the correctness of his judgment, as he gave only a judgment of nonsuit.

The plaintiff is not a manufacturer but a dealer in “Heatrola” heaters.

In the case of Dreyfus vs. Lourd, 111 La. 21, 35 South. 369, the court thus states the facts and the law:

“Plaintiff is a merchant. He undertook to deliver to defendants certain pumps, described by manufacturer’s name, and a certain engine of specified horsepower, but not otherwise described than that they would be vertical, also certain minor articles. He bought these things from the manufacturers of them, and delivered them to defendants.

“They were properly constructed and of proper materials and had no inherent defects. Defendant accepted them, and set them up. They failed to perform satisfactorily the work for which they were purchased, the pumping of water for the irrigation of rice fields. The trouble is attributed by the defendants to the weakness or insufficiency of horsepower of the engines, and to the unsuitability of the gearing for transmitting the power from the engine to the pumps; and it is attributed by plaintiff to the insufficiency of water supply in the wells.

“Let the cause of the trouble have been what it may, plaintiff was not responsible for it. He furnished articles of the kind and quality called for by his contract, and his warranty went no further.”

Barclay vs. Conrad, 7 La. 261, 35 Cyc. 401.

Cyc. Vo. Sales, p. 408:

“On a sale of machinery there is in general an implied warranty that the machine is reasonably adapted to the purpose for which it is purchased. There is, moreover, no warranty that a machine designed for a general use is suitable for a particular purpose or use, or that a known and designated machine purchased by name will serve a specific purpose.”

We are therefore of opinion that the defendant has failed to make out his. case and that the plaintiff is entitled to judgment.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment condemning the defendant, G.. Sciaccaluga, to pay to the plaintiff, Samuel B. Stewart, two hundred dollars with five per cent per annum interest from March 4, 1926, till paid, and all costs of these proceedings.


text:
    No. 10,196
    Orleans
    JOHNSON v. BOYLE
    (Dec. 13, 1927. Opinion and Decree.)
    (Jan. 17, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4 (c).
    Drivers of motor vehicles owe children, aged, infirm and drunken pedestrians, especial care, particularly at intersections, where pedestrians, observing police regulations,. have the right of way.
    2. Louisiana Digest — Automobiles—Par. 8.
    Plaintiffs, in physical injury cases, are prone to exaggerate in ^ expressing their sufferings in terms o'f money.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court, Division “B”. Hon. M. M. Boatner,- Judge.
    Action by Cordelia Johnson against Thomas J. Boyle.

      There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    W. H. Talbot, of New Orleans, attorney for plaintiff, appellee.
    Jas. B. Rosser, Jr., of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a negress seventy-nine years old, sues for damages for personal injuries in the sum of $14,500.00 which she itemizes as follows:

For the impairment of the functioning of the left arm and hand _____ $6,000.00

For physical injuries sustained, contusions of the body, head, face and dislocated hip ______________ 3,000.00

For pain, suffering and mental anguish _________________________________________.— 4,000.00

For loss of job which paid her $6.00 per week which she is now unable to keep because of said injuries .................................... 1,500.00

She alleges that on March 10th, at 8:30 a. m., while crossing St. Charles Avenue at the intersection of Third, an automobile belonging to and being driven by defendant at excessive speed, and in a reckless manner, struck her as she neared the sidewalk on the river side of St. .Charles Avenue; that in consequence of the accident her left arm was broken at the wrist, her right hip dislocated and her body, head and face and limbs inflicted with general contusions.

Defendant, denying all fault, answers:

“That on the morning of the accident, defendant was driving his automobile at a moderate rate of speed on the river side of St. Charles Avenue, going in the direction of Canal Street, that a milk wagon was on the same side of said avenue, a little distance above Third Street, and in the act of making a detour or turn into Third Street, that the plaintiff was standing at the time on the neutral ground of said avenue and said Third Street, on the downtown or Canal Street side thereof, preparing to cross in the direction of the river, when plaintiff was first observed by defendant who slowed down on account of said milk wagon turning out Third Street at the time, that plaintiff then came from behind the side of said milk wagon directly in front of defendant’s automobile and could have crossed said avenue in safety, when she stopped and hesitated, defendant in the meanwhile having swerved his car to allow her to pass his machine, when the plaintiff changing her course, suddenly ran in front of defendant’s car, who was unable to stop in time to avoid striking and slightly injuring her.”

The district judge who tried the case first allowed _plaintiff $2500.00, and after granting a new trial reduced the amount to $1500.00.

The record contains only the testimony of plaintiff and defendant and plaintiff’s doctor who describes her injuries.

We are urged to apply the rule to the effect that plaintiff carries the burden of proof, and must make his case certain.

In this case, however, defendant’s, version of the accident involves him with responsibility for the consequences.

He saw plaintiff standing on the neutral ground, preparing to cross the street in time to stop his automobile, which he did in order to allow her to pass, but because of her confusion or terror or age, or all three, she hesitated, whereupon, he started his car and she ran into it.

The circumstances were such as to impose the necessity of great care on defendant’s part. He was crossing an intersection. He saw an aged negress and realized that she was about to cross' the street. He had stopped his car and should have remained motionless until she crossed his path or had indicated her intention to allow him to cross first. He should have called to her, or warned her of his intention to start his car. The fact that she was an old woman added to defendant’s responsibilities. Drivers of automobiles owe especial care to children and to aged, infirm and drunken pedestrians, particularly at intersections where pedestrians, observing (police regulations, have the right of way.

The milk wagon, the presence of which is denied by plaintiff, can not absolve defendant, because he says he saw plaintiff both before and after the wagon obscured his view and had stopped his car, after the disappearance of the wagon, if it was .ever there.

In Gonzen vs. Feraci, 2 La. App. 115, we said:

“The defendant urges that the plaintiff had been drinking just before the accident and that he was then drunk. There is no evidence that at the time of the accident or before he was under the influence of liquor. The evidence is to the contrary although he had been indulging in two drinks. Symptoms of drunkenness developed only after the accident when he was brought to the hospital where he was put to bed and he cursed and shrieked and had to be tied to his bed. But being drunk did not put him beyond the protection of the law. On the contrary, it (placed him in the position of a child — or of those unable to take care of themselves and called for more cautiqn on the part of others. Horsthempke vs. New Orleans Ry. and Light Co., 146 La. 932, 84 South. 210.” See also McClanahan vs. Vicksburg, S. & P. Ry. Company, 111 La. 781, 35 South. 902, and McGuire vs. V. S. & P. Ry. Co., 46 La. Ann. 1543, 16 South. 457.

The fact that in her confusion she may have turned toward the automobile can not help defendant’s case. In Navailles vs. Deilman, 124 La. 421, 60 South. 449, the court said:

“We are satisfied that the explanation of this sudden turning and running back is that when she looked back the machine had just come out of Street' ‘A’ and was in the act of turning towards the east and was therefore pointed straight for the path ahead of her; so that she imagined (very foolishly, no doubt) that if she kept on she would be run over. Constant practice in steering clear of pedestrians and vehicles coming towards us, or making toward our path at an angle and at a rate that will bring on a collision if we do not change our sourse, has so trained the eye of every gr ,wn person — especially of those living in cities, where the avoidance of collisions is more constantly practiced— that we are all of us — old ladies and all— pretty good judges of what line is being followed by a body moving towards us, or so as to intercept, or converge with our own line of progress.”

“The act of the old lady not having been voluntary, but simply the result of terror, does not constitute negligence on her part.”

See also:

“If an automobile- comes upon a boy under circumstances calculated to produce fright or terror, and such fright causes an error in judgment, by which he runs in front of the automobile, he is not' guilty of contributory negligence.” Thies vs. Thomas, (Sup.), 77 N. Y. Supp. 276.

We have now to consider the question of quantum. Plaintiff has been guilty of more exaggeration than is customary in personal injury cases. We sometimes wonder whether a plaintiff would not' suffer greater shock, as the recipient of a judgment fqr the full amount of damages claimed, than the defendant, cast for the judgment. We may be pardoned for suggesting that the advice, of St. Matthew, “Ask and you shall receive,” and his assurance, “For everyone that asketh receiveth; and he that seeketh findeth; and to him that knocketh it shall be opened,” has reference to spiritual consolation and not material advantage. A rather widespread misunderstanding of Scripture in this respect may be responsible for the universal, tendency of plaintiffs in physical injury suits to magnify their sufferings when expressed in terms of money.

Fourteen thousand and five hundred dollars is more than we can allow in this case. Plaintiff says she dislocated her hip. She is mistaken for she could not walk several squares, as she did immediately after the accident, with a dislocated hip. There is no evidence of contusions on her face, body, limbs, etc.

Plaintiff’s wrist was broken and some impairment' of the use of her hand will likely be permanent. She earned $6.00 per week. We will allow $1000.00.

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff from $1500.00 to $1000.00 and qs amended it is affirmed.


author: ’CLAIBORNE, J.

text:
    No. 10,634
    Orleans
    STATE OF LOUISIANA v. DUNBARDUKATE CO.
    (Jan. 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1.Louisiana Digest — Licenses—Par. 8, 10, 16.
    One who - preserves shrimp by a process of boiling, drying, sterilizing, and a ning is a manufacturer of canned shrimps and as such not subjected to a license tax by any law of this state.
    2. Louisiana Digest — Licenses—Par. 8, 10, 13, 16.
    A manufacturer who sells his own manufactured goods and is as such exempt from license taxation is not a wholesale dealer in merchandise and owes no license tax.
    3. Louisiana Digest — Licenses—Par. 6.
    No license can be exacted which is not clearly imposed by- the terms of the law.
    Appeal from Twenty-fourth Judicial District Court. Hon. L. Robert Rivarde, Judge.
    Action by State of Louisiana against Dunbar-Dukate Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    C. J. Larkin," Jr., of New Orleans, attorney for plaintiff, appellant.
    Jno. Dymond, Jr., of New Orleans, attorney for defendant, appellee.
   ’CLAIBORNE, J.

The State claims of the defendant a license tax for the years 1924, 1925 .and 1926, as a “wholesale dealer” under Act 233 of 1920, section 8, with two per cent interest under Act' 205 of 1924, section 7.

The defense is that defendant is not a “wholesale dealer”; that it is engaged in the manufacturing business of canning sea food products; that its business is that of manufacturing, in catching, or causing to he caught, and purchasing the raw material in the shape of what are commonly called Lake Shrimp; that these shrimp are then iced in the neighborhood of where they are caught and are then brought in special boats operated by respondent from the place where these shrimp are caught to the factory at Westwego, La.; that these shrimp are then handled by laborers, who remove the heads and the shells from the shrimp, picking each individual shrimp, leaving only the muscular part o.f the body or tail; that these tails are then processed or cooked in salt water, and are then placed in cans of the size desired, these cans being either paper-lined or not lined, as the market demands may require, the shrimp being graded as to size, so the can of a certain size and the better grade of shrimp will not exceed a certain number of individual shrimp in filling the required capacity of the cans or weight of material; all of this being done under thoroughly sanitary conditions; that thereupon said cans of shrimp are processed by subjection to hot water and steam pressure getting both the heat and pressure, the can having been previously sealed; that these cans are then labeled as may be ‘required and packed in boxes and the boxes labeled as may be required; that the only selling it does, is the selling of its own manufactured products; that under the provisions of Section 24 of Act 205 of 1924, p. 375, the Legislature has specially exempted manufacturers from the payment of a license tax.

The trial judge was of the opinion that the defendant was a manufacturer and as such exempt from the payment of a license and rendered judgment in its favor. From this judgment the plaintiff has appealed.

The testimony of James. Y. Dunbar, the president of defendant company, establishes that the process described in the answer is the one used by defendant in the preparation of canned shrimp, and that the defendant has not “done any business in the Parish of Jefferson other than the sale of its own manufactured products and that it has not bought any manufactured canned goods for resale”.

Under the ruling in the elaborate and learned opinion covering 46 pages in the case of State vs. American Sugar Refining Co., 108 La. 603, 32 South. 965, particularly at page 623, we are bound to hold that the defendant is a manufacturer of canned shrimp. We can add nothing to what was said in that case. See also 38 C. J., p. 982; State vs. Spencer, 127 La. 336, 53 So. 596; Henderson vs. Shreveport Gas & Electric Light Co., 134 La. 39, 63 So. 616; State vs. Bemis Bro. Bag Co., 135 La. 397, 65 So. 554; State vs. Lanasa, 151 La. 706, 92 So. 306; State vs. E. I. Young Co., 157 La. 846, 103 So. 186.

Section 8 of Act 233 of 1920, p. 401, upon which plaintiff relies to claim the license, applies in its very words to “every wholesale dealer in merchandise”.

We find nothing in any other section of said act imposing a license upon manufacturers. Indeed those were exempt under Article 229 of the Constitution of 1898 “other than those of distilled alcoholic, or malt liquors, tobacco, and cotton seed oil”.

Neither does plaintiff refer us to any other section than to section 8, which we have seen refers to “wholesale dealers”, nor do we, find any.

There is no section under the license Act 205 of 1924 imposing a license upon manufacturers. Indeed the paragraph following the 34th class of section 25 on page 375 provides;

“That any other business not provided for in this act and not otherwise provided for by separate law, except manufacturing, shall he graded the same, as above set forth, and shall pay a license as fixed in this section.” And section 28 of the same act, p. 379, provides that “nothing in this act contained shall he construed to affect or repeal any existing laws levying license taxes on businesses or professions not enumerated in this act”.

“No license can be exacted which is not imposed by the terms of the law.” Barnard vs. Gall & Pharr, 43 La. Ann. 959, 10 South. 5. Though these words are contained only in the syllabus, the judges at that time wrote the syllabus themselves. But that case is affirmed eonomine in State vs. Bank, 48 La. Ann. 1029, 20 South. 201 (1031); Ballard vs. Ponchatoula H. A., 137 La. 677, 69 South. 91.

In the case of Union Oil Co. vs. Marrero, 52 La. Ann. 357, 26 South. 766, the court' said on page 362:

“Where a corporation is engaged in a manufacturing business which is exempt from the license tax, and confines itself to the sale of the products manufactured by it, the business of selling such products, so manufactured, may well be considered as covered by the exemption accorded to the manufacturer.” Aliter, when it sells other than its manufactured products. State vs. Bemis Bro. Bag Co., 135 La. 401, 65 South. 554.

We think that the judgment of the trial court is correct and it is therefore affirmed. . ¡,11