author: LECHE, J. ELLIOTT, J.

text:
    No. -
    First Circuit
    WAKEFIELD STATE BANK v. BAKER WAKEFIELD CYPRESS COMPANY
    (May 4, 1926, Opinion and Decree.)
    (June 26, 1926, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Things—Par. 4, 5.
    Where property seized had been detached from the soil it has lost • its condition of immobility and has become movable and therefore was not affected by a mortgage and privilege placed on the immovable.
    2. Louisiana Digest — Obligations—Par. 101.
    The only reasonable meaning that can be attributed to a clause in an agreement “for the convenience of parties and to save costs” was to avoid further litigation as to what part of the property was movable and what part of it was immovable and to settle that question definitely.
    3. Louisiana Digest — Estoppel—Par. 1, 37; Judgment — Par. 152.
    Res adjudicata and estoppel can be successfully pleaded against a party who wishes to disregard a judgment of the Supreme Court between the same parties and on the same subject matter.
    Appeal from the Parish of Assumption, Hon. Samuel A. LeBlanc, Judge.

      Action by Wakefield State Bank against Baker Wakefield Cypress Company. T. Fitzwilliams and Company, Ltd., et al., intervenors and third opponents. There was judgment for plaintiff and intervenor appealed.
    Judgment affirmed.
    Howell and Wortham, of Thihodaux, attorneys for plaintiff, appellee.
    Marks and Gilbert, of Napoleonville, attorneys for defendant.
    E. Gianelloni, attorney for intervenor, appellant.
    ELLIOTT, J., dissents. Reasons attached.
   LECHE, J.

The Baker Wakefield Cypress Co., Ltd., owned a tract of land, situated in the Parish of Assumption, together with buildings and improvements thereon, consisting mainly of a sawmill and other machinery to manufacture lumber from cypress logs. In 1920 and in 1922, it mortgaged all of this property in favor of plaintiff as security for two debts aggregating some $26,000.00. It owed besides this mortgage indebtedness, various creditors, some fourteen of whom later obtained judgments against it.

The present litigation involves a contest between plaintiff as a prior mortgage creditor, and the intervenors, subsequent judgment creditors of defendant.

The judgment creditors or some of them, obtained writs of fieri facias under their judgments and seized a lot of machinery, tools, building material, etc., which had been used in the operation of the lumber mill, an.d on March 7, 1925, plaintiff alleging that the property seized by the intervenors formed part of the realty and was subject to its mortgage, ruled these seizing creditors into' court to show cause why they should not be enjoined. The district judge tried this riile and refused to issue the injunction. The Supreme Court was then resorted to by plaintiff and that court refused to interfere with the action of the district judge. (See 158 La. 838, 104 South. 734, Fitzwilliams vs. Baker Wakefield.) The court held that where the property seized had been detached from the Soil, it had lost its condition of immobility and had become movable and therefore was not affected by plaintiff’s mortgage.

While the application of plaintiff for injunction was pending, viz: on March 23, 1925, plaintiff obtained executory process on its mortgage, caused to be seized the whole property of defendant, including the alleged movables seized by the intervenors. Under the writ of seizure and sale thus obtained, the sheriff advertised the sale of 'defendant’s property to take place on May 4, 1925. On May 1, 1925, the present intervenors applied to have the property which they had previously seized, appraised and sold separately with a view of being paid out of the proceeds of same by privilege and preference over plaintiff. On the trial of these interventions, intervenors set up pleas of res adjudicata and estoppel against plaintiff and when plaintiff attempted to question the classification of the property as made by an agreement entered into on May 2, 1925, and the district court having maintained these pleas, rendered judgment in favor of intervenors, recognizing the validity of the seizures made under their judgments and ordering that intervenors and third opponents be paid by privilege and preference over plaintiff, out of the proceeds of the property which they had seized under their judgments.

The plea of res adjudicata is based upon the refusal of the district judge to grant the injunction prayed for by plaintiff in its rule of March 7, 1925, and the subsequent ruling of the Supreme Court holding that the property seized was movable and affirming the judgment of refusal of the district judge. The plea of estoppel is based upon a written agreement signed by the plaintiff and all the intervenors on May 1, 1925.

The trial judge upheld both of these pleas and the plaintiff has appealed.

In this court plaintiff contends in argument, against the claims of third opponents and intervenors, that even if the property seized by the intervenors by virtue of their judgments, has become mobilized, its prior mortgage is good upon these movables as a chattel mortgage, as all the requirements of the law in giving a chattel mortgage were complied with in the execution of the mortgages given to it by the Baker Wakefield Cypress Co., in 1920 and 1922. In other words plaintiff contends that if its two mortgages are not good on the property in .dispute as mortgages on immovable property, they are good as chattel mortgages on movables.

These mortgages are conventional agreements drawn up in conformity with the requirements of the Civil Code and being conventional agreements they must be construed as intended by the parties. It is too plain for argument that the Baker Wakefield Cypress Co. did not intend to give plaintiff a chattel mortgage and that plaintiff did not intend to accept a chattel mortgage from Baker Wakefield Cypress Co., as security for its indebtedness, when, the mortgages of 1920 and 1922 were drawn up . and signed by these parties. The ordinary conventional mortgage and ttíe chattel mortgage are two separate and distinct contracts and the only quality in common between them is -that they are each designed as a security or as an accessory to another contract.

The plea of res adjudicata and estoppei are so intimately connected that they may be discussed at the same time, and a ruling upon them will dispose of the case.

To re-state the facts and circumstances as we gather them from the record, it appears that third opponent first seized a lot of machinery, fixtures, attachments, etc., situated on the property of the Baker Wakefield Company. Their right to seize these things separately from the soil was attacked by the Wakefield State. Bank, holder of mortgages on the realty and that question was partly settled by the decision of the Supreme Court in the matter of Wakefield vs. Fitzwilliams, 158 La. 838, 104 South. 734.

The Wakefield State Bank then foreclosed on its mortgage and also seized the same property that had previously been seized by the intervenors, as part of the realty on which bore its mortgage. The machinery, fixtures, attachments, etc., being held by the sheriff under two separate seizures, one by the intervenors and the other by the. plaintiff, were then likely to become the subject of further controversy between the intervenors and the plaintiff. The decree of the Supreme Court merely decided that a “mortgage on land and buildings and all machinery located thereon, which was immovable by nature or destinaiton, held not to cover dismantled machinery, tools, implements and junk, which were shown to be movable, though formerly attached to realty, having lost immovable character on detachment”.

It thus appears that this decree only settled the law of the case but did not kettle the question of fact, as to what part of the property, if any or all, seized by the intervenors, had beep .dismantled and detached from the realty. That question of fact was still open and subject to controversy.

Such was the situation on May 2, 1925, the day before the sale was advertised to take place, when the agreement in the record was entered into and signed by all the parties in interest.

The pertinent part of the agreement reads as follows:

“* * * it is agreed * * that the property which is still attached to the realty, to-wit: (here follows a list of articles) * * * is hereby released from the seizure of the third opponents * * * It is further agreed that the remaining property * * (seized by third opponents) * * being such property as has been detached from the realty to be sold on the day of sale, separately and under separate appraisement, from the remainder of the property, and the proceeds of said sale he held by the sheriff * * * awaiting the final determination of the issue as to whom said proceeds belong.
“It is further agreed that the said third opponents shall not be held by the fact of their having filed a third opposition in this matter, to have in any way admitted the right of plaintiff in executory process to sell the said property together with the real estate on which it has a mortgage, nor to prejudice third opponents’ rights and privileges .under their writs of fi. fa. This agreement being made for the convenience of the parties and to save costs *

The plaintiff contends that the foregoing agreement was drawn up as stated, for the sole purpose of “the convenience of the parties and to save costs”. Intervenors on the other hand, contend that the purpose of the agreement was to fix the status of the property which they had seized, and to definitely settle the question as to what property was. movable and liable for their prior seizure and what property was still part of the realty.

They further contend that they would not have consented to the release of their seizure on the property first enumerated in the agreement, if the plaintiff had not consented to the separate appraisement and sale of the remainder of the. property seized by them; that to permit plaintiff to recall its consent to the classification of the remainder of the property, admitted by it as being detached from the realty, would deprive them of the consideration which induced them to consent to the classification of the property listed as being attached to. the realty, for the. reason that said property has now been sold and can no longer be appraised and sold separately. Upon this ground they base their plea of estoppel.

It is apparent, then, that the question of estoppel depends upon the construction of the written agreement between the parties.

The record further shows that when the agreement was signed, on May 2, the district judge had already, on April 28th, ordered on the petition of some of the third opponents, that all the property seized by third opponents be appraised and sold separately. So that if the agreement had not been, entered into, the property which third opponents therein released from their writs of fi. fa,, would also have been appraised and sold separately. There is then no doubt that the agreement to that extent was a concession by third opponents, in favor of plaintiff.

Considering therefore that the sole difference between the parties at the time the agreement was signed, only involved the status of the property seized by the intervenors and third opponents as to its character, whether movable or immovable, that the only reasonable and effective meaning that can be attributed to the clause in the agreement “for the convenience of the parties and to save costs” was to avoid further litigation as to what part of the' property was movable and what part was immovable and to settle that question definitely, and considering further that if plaintiff be allowed to recall anything which it had conceded in the agreement, it would be impossible to restore the situation that .existed on May 2nd and to re-invest in third opponents the right to exercise the remedy to which they had then already resorted, we believe the plea of estoppel which they now urge should be sustained.

It is true that the agreement is not worded clearly as to the purpose for which we believe and hold that it was entered into, but nevertheless we see no other reasonable purpose that it could have sub-served-

For these reasons, the judgment appealed from is affirmed at the costs of plaintiff and appellee.

DISSENTING OPINION OF

ELLIOTT, J.

I dissent from the above opinion and decree of the majority of the court, maintaining the plea of estoppel urged by intervenors J. M. Logan Lumber Co., Inc., A. W. Winnemann & Sons, E. L. Wilson Hardware Co., Ltd., Essex Sash & Door Co., Lock Moore & Co., Hillyer-Deutsch Edwards Inc., and Joubert Bros., against the right of Wakefield State Bank to show the error of fact, which the bank alleges to exist in the agreement of May 1, 1925, as regards the. “Re-saw outfit complete”.

The majority of the court are mistaken, when they say that the plea of estoppel, urged by the. above named intervenors is connected with the plea of “res adjudicata” urged by T. Fitzwilliams & Co., Ltd., and J. L. Lancaster and C. L. Wallace, Receivers, etc. The two pleas are not connected at all. Intervenors J. M. Logan Lumber Co., Inc., A. W. Wineman & Sons, E. L. Wilson Hardware Co., Ltd., Essex Sash & Door Co., Lock Moore & Co., Hillyer-Deutsch Edwards Inc., and Joubert Bros., were not parties to the suit in which the judgment was rendered, which is the basis of the res adjudicata urged by T. Fitzwilliams & Co., Ltd., and J. L. Lancaster and C. L. Wallace, receivers, and are not parties to the plea of res adjudicata. T. Fitzwilliams & Co., Ltd., and J. L. Lancaster and C. L. Wallace, receivers, did not seize the “re-saw outfit” involved in the plea of estoppel and are therefore not parties to the plea of estoppel, nor interested therein.

The Wakefield State Bank pleads that said agreement of May 1, 1925, is in error as to the status of the “re-saw outfit” seized by the first above named intervenors, in that part of it which reads: “It is, further agreed that the remaining property seized under said writs of fieri facias, being such property as has been detached from the realty, be sold separately and under separate appraisement, from the remainder of the property and the proceeds of the sale be held by the sheriff, awaiting the final determination of the issue as to whom said proceeds belong”.

A further provision in the agreement states: “This agreement being made for the convenience of the parties and to save costs.” That its counsel was uninformed on the morning of the sale, at the time said agreement was entered into, as to whether or not the “re-saw outfit” had been detached, from the realty and signed said agreement permitting the “re-saw outfit” to be sold separately, under representations then and. there made, that said “re-saw outfit” had been detached from the realty. That the fact is that said “re-saw outfit” has ne.ver been detached from the realty and that the agreement is in error as to the status of the “re-saw outfit”.

Intervenors allege in their plea, of estoppel “That on the first day of May, 1925, the written agreement was entered into between counsel for the plaintiff and third opponents in this matter in which it was agreed that certain property seized hy writs of fieri facias was detached from the realty and among said property detached is included the “re-saw outfit” complete, would he sold separately and without appraisement. That in said agreement, only certain articles are enumerated as still being attached to the realty and released from seizure, but that in said enumerated and listed articles, is not included the “re-saw outfit”, seized by opponents, as will more fully appear by reference to said agreement filed in this case as of date May 1, 1925, and made part and parcel of this plea of estoppel.

When plaintiff offered to prove that the agreement had been signed by plaintiff and intervenors under the impression and belief that the “re-saw outfit” had been detached, when in truth and fact, it had not been detached, but was still attached to the soil, intervenors objected on the ground that the proof would be contrary to the agreement. That plaintiff was es-topped by the agreement from showing contrary thereto. The court sustained the objection on the face of the papers, would not permit the proof and rendered judgment against the plaintiff, based on the agreement.

The plaintiff did not consent to the dismantlement of the saw and planing mill.

It is not alleged in the plea of estoppel, nor claimed in the objection, that the agreement of May 1, 1925, was a compromise agreement, for putting an end to a lawsuit and whereby the parties had adjusted their differences by mutual consent in the manner agreed on, which every one of them preferred to the hope of. gaining, balanced by the danger of losing, C. C., Art. 3071. The agreement does not purport to have such an end in view, but enumerates certain property seized as in fact attached and states that the balance of the property seized was in fact detached from the soil.

Referring to the remainder of the property, said to be detached it provides “that the proceeds- of said sale shall be held by the sheriff, awaiting the final determination of the issue as to whom said proceeds belong”. This stipulation evidently means that the court is to determine, after hearing evidence,'whether the remainder of the property was in fact detached from the realty or not at the time of the seizure. The plea of estoppel, if maintained, will have the effect of avoiding and rendering as naught, the agreement in that respect.The' ruling practically accepts the mere contention of the intervenors as the equivalent of allegation and proof of the essentials of an estoppel in pais, when such-essentials should be alleged and proved.

The pleader “must prove the very facts upon which the estoppel is based. In order that one should' be denied his rights or deprived of his property by reason of an equitable estoppel, it must appear that the party pleading the estoppel has been misled to his prejudice.” Hebert vs. Campagne, 144 La. 659.

The court takes the position that it is apparent on the face of the agreement that it must stand as it is written, otherwise intervenors will be prejudiced by what has been done under it. As already stated -the agreement does not appear to be a “transaction” of the kind provided for by the law, C. C., Art. 3078. Therefore considerations such as governed the sitúa-; tion in Robertson vs. Wilcox, 3 La. Ann. 93, and like cases have no bearing.

It is not necessary to set aside the entire agreement in this case, when error .is alleged to exist as to the “re-saw outfit” only and it is not claimed in the plea of estoppel, nor shown by proof, that the “re-saw outfit” influenced the contract and brought it about. The agreement of the parties that the proceeds of the “remaining property” shall be held by the sheriff awaiting the final determination of the issue as to whom said proceeds belong, repels that idea. I think the ruling of the court should be governed by Calhoun vs. Teal, 106 La. 47, 30 South. 288; Waters, Camden and Company vs. Briscoe, 11 La. Ann. 639; Perosine LeBlanc vs. Bertant, 16 La. Ann. 294; Watkins vs. Cawthon, 33 La. Ann. 1194; Succession of Harris, 39 La. Ann. 443, 2 South. 39; Minor vs. Hart, 52 La. Ann. 395, 27 South. 99; Succession of Drysdale, 130 La. 167, 57 South. 789.

A judicial confession of a debt may be avoided by showing error of fact, C. C., Art. 1846, No. 4. A judicial confession can be revoked, if it be proved to have been made through error of fact, C. C., Art. 2291. Error may exist as to all the circumstances and facts which relate to a contract, C. C., Art. 1823, 1824, 1827. And whatever is error, can be corrected; except when the parties are estopped by some matter of law or fact, which justifies doing so.

It is my opinion that the present plea of estoppel should be overruled. That the judgment appealed from, to the extent that same is sustained, should be set aside, the case re-opened and remanded, with instructions to hear evidence on the estoppel pleaded and whether or not the agreement was signed in error by the parties to it, as to the status of the “re-saw outfit” that the actual status of the “re-saw outfit” at the time of the seizure be ascertained at the same time, all to the end that the controversy may be terminated without unnecessary delay.

I dissent from the opinion and decree as regards the question of estoppel; but agree with the majority of the court in all other, respects.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2023
    Second Circuit
    VAUGHN v. KEMP
    (June 30, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Landlord and Tenant —Par. 63.
    Article 2726 of the Civil Code, which allows the lessor to retain the improvements which he has placed upon the soil on paying a fair price does not apply where the land has been sold to a third party by the lessee.
    2. Louisiana Digest — Registry—Par. 7.
    Under Civil Code 2266 all sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto.
    3. Louisiana Digest — Sales—Par. 192.
    The purchaser of real estate cannot be affected by unrecorded claims against the property, such as a garage erected thereon by a third party, even though at the time of the purchase he had actual knowledge of them.
    4. Louisiana Digest — Things—Par. 4-
    Under Article 464 of the Civil Code lands ' and buildings or other constructions, whether they have their foundation in the soil or not, are immovable by their nature.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Mrs. Maude Vaughn, et al., against J. L. Kemp.
    There was judgment for defendant and plaintiffs appealed.
    Judgment reversed and injunction perpetuated.

      Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiffs, appellants.
    Scheen & Blanchard, of Shreveport, attorneys for defendant, appellee. .
   ODOM, J.

Plairijtiff alleges that, on May 4, 1923, she purchased lot 16 of the Springhill subdivision of the city of Shreveport together with all the buildings and improvements thereon, from P. R. Hodges, by notarial act, which is duly recorded in the notarial records of C&ddo parish, and that subsequent to her purchase of the property and the recordation of her deed thereto the defendant, J. L. Kemp, has attempted to remove from the premises a small frame garage, and she brings this suit claiming ownership of the said garage and asking that the defendant be enjoined from removing it off the premises.

The defendant, in answer, set up that he built the said garage on the premises while he was a lessee thereof from Mrs. Rachich, which garage was built at his own expense and with the understanding with the lessor that he might remove it therefrom at any time he saw fit.

There was judgment in the District Court rejecting plaintiff’s demands, from which she appealed

OPINION.

The case was submitted on the following agreed statement of facts, to-wit:

“That for several months prior to May 4, 1923, Mrs. Mary B, Raccich, the owner thereof, leased lot 16 of the Spring-hill subdivision of the city of Shreveport, Caddo parish, Louisiana, together with the dwelling house thereon, to J. L. Kemp, said lease being from month to month and being a verbal lease with nothing filed of record to indicate the existence of same in either the conveyance or mortgage records of Caddo parish, Louisiana; that while J. L. Kemp was a tenant of Mrs. Raccich he built on the leased premises a small wooden frame garage of the value of two hundred and five dollars which was not attached to cement and could be removed, leaving the property in the same condition, the said structure being built on heavy timbers which lay on the ground; that on May 2, 1923, Mrs. Mary B. Raccich sold to F. R. Hodges the aforesaid lot, lot number 16 of the Springhill subdivision of the city of Shreveport, Caddo parish, Louisiana, as per map of said subdivision recorded in conveyance book 53, page 23, of the records of Caddo parish, Louisiana, together with all buildings and improvements thereon, and that on May 4, 1923, F. R. Hodges transferred the same to the plaintiff in this suit; that Mrs. Mary B. Raccich gave her consent to F. L. Kemp to erect said garage on; said premises with the understanding that he could remove same at the termination of the lease if .he so desired; that F. R. Hodges, of the plaintiffs in this suit, did not know that said garage belonged to F. L. Kemp; and that said garage was on the premises for several months prior to the sale to F. R. Hodges as aforesaid.”

After the property was purchased by plaintiff, defendant, who had erected the garage, attempted to remove same in accordance with his agreement with Mrs. Raccich.

Article 464 of the Civil Code reads as follows:

"Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.”

Under this article of the Code, plaintiff 'contends that she purchased the said garage along with other improvements on the lot under the clause in the deed, “with all buildings and improvements thereon”, and she invokes in her behalf Article 2266 of the Civil Code Which reads, in part, as follows:

“All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto.”

• On the other hand, the defendant points out that Mrs. Raccich did n'ót own the garage and that her sale thereof to Hodges and Hodges’ sale to plaintiff was absolutely null and void under Article 2452 of the Civil Code, which provides:

“The sale of a thing belonging to another person is null.”

And counsel argue that plaintiff, having obtained no title to the property, the defendant is privileged to remove the same under the agreement with Mrs. Raccich, his lessor, and under the express language of the Civil Code, Article 2726, which provides that:

"The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he leaves it in the state in which he received it.”

It being admitted that the garage was not attached to the soil by cement or mortar but was supported- by wooden blocks.

•' Counsel for defendant stress the point and cite many authorities to support it, that a lessee may remove the improvements which he places on the leased premises, unless such additions “be made with lime and cement”, in which event “the lessor may retain them, on paying a fair price”. Civil Code, Art. 2726.

No citation of authority is necessary on that point, for the Civil Code specifically grants to him that privilege. But that is not the point in this case. The question is, whether he may remove such improvements after the ground on which they were placed, “with all buildings and improvements thereon”, has been sold to a third person without notice.

. It is admitted that there was a contract between Mrs. Raccich, the lessor, and defendant, her lessee, that defendant was to be the owner of the garage built by him and that he should have the privilege of removing the same.

It is further admitted that the records of Caddo parish did not disclose this fact.

And it is further especially admitted that neither Hodges, who purchased from Mrs. Raccich, nor plaintiff, who purchased from Hodges, had in fact any knowledge of the fact that the garage was built by defendant or of the agreement between the lessor and the lessee that the lessee should be the owner thereof with the privilege of removing it.

Plaintiff therefore purchased and now holds the property in good faith.

Article 464 of the Code is a broad, concise statement of the law that:

“Landis and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.” (Italics ours.)

There is no qualification of this rule. The law makes no distinction between buildings erected by the owner and those erected by tenants or others. If they are erected on the land, they are immovable by their nature.

There are also things which are immovable by their destination, as:

“Things which the owner of a tract of land has placed upon it for its service and improvement.”

Civil Code, Art. 468.

Under this article things become immovable by destination only when placed thereon by the owner of the soil.

But the provisions of the Code, Article 464, with reference to things immovable by their nature, does not state that they shall be placed on the soil by the owner thereof.

It therefore follows that a building placed upon leased premises by- the lessee is an immovable under Article 464 of the Code.

It is not contended that Mrs. Raccich, the lessor, did not sell the garage; but it is contended by counsel for defendant, and so held by our learned brother of the district bench, that under the express provisions of Article 2452 of the Code the sale was a nullity.

Let it be said that the sale of a thing belonging to another is hull under • the Code. However, it is also true that one who purchases immovable property in good faith from the .record owner thereof without notice of any claim or right which another may have thereto is protected under the registry laws of the state.

The fact that the record owner of immovable property may convey a valid title thereto to an innocent third person even though he be not the owner of the property at the time of the sale, is too plain for argument. To illustrate: A sells a parcel of ground to B for an adequate consideration . by notarial act in due form. The moment the sale is complete A ceases to be the owner of the property. But B fails to record his deed in the notarial records of the parish where the property is situated. A subsequently conveys the same property to C who has n;o knowledge of the sale to B. C records his title. A day later B records his deed. C’s title to the property is good, because Article 2266 of the Code provides that:

“All sales,- contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto.” '

In the case of Duson vs. Roos, 123 La. 835, 49 South. 590, the court said:

“It is plain that a purchaser of real estate in good faith from the owner of record cannot be affected by equities which may have existed between former owners of the property and third persons, but which do not appear of record.”

Citing Harris vs. Natalbany Lumber Co., 119 La. 978, 44 South. 806.

In the case of Herndon vs. Wakefield-Moore Realty Co., 143 La. 724, 79 South. 318, the court, in discussing the effect of unrecorded contracts as to third persons, said: *

“To be ‘utterly null and void’ means to have no legal existence. Therefore, when
Taylor and Lawhon came to deal with the defendant company, with respect to this property, this alleged contract of plaintiff had no legal existence as to them. It being non-existeñt as to them, they would have scanned their legal horizon in vain to discover it or to discover any rights that plaintiff might have under it.”

So that, whereas it is true that the sale of a thing belonging to another is null, yet with reference to ' sales of immovable property the rule necessarily yields to other provisions of the Code relative to registry. Therefore, it avails defendant nothing to invoke the provisions of Article 2452 of the Code to the effect that the sale of a thing belonging to another is null.

On this point the following taken from the body of the opinion in the case of Waller vs. Colvin, 151 La. 765 (775), 92 South. 328, is pertinent:

“It is therefore clear, under the authority of these decisions, that the settled public policy of the state that protects innocent third persons acquiring real estate on the faith of recorded titles is paramount to that which merely protects individuals against acts done in violation of a prohibitory law.”

And the court quoted approvingly the following from Baker vs. Atkins, 107 La. 494, 32 South. 71:

“It is obviously of the utmost importance to the peace and welfare of society that all questions as to the manner in which title to property is acquired and divested, and as to the moment,at which one person becomes, and another ceases to be, the owner should be governed by definite and fixed laws.”

It is also contended by counsel and held by the court below, that one who purchases immovable property knows or must know that a lessee may remove from the leased premises the improvements which he has made under the provisions of Article 2726 of the Code.

If this doctrine can be invoked against a purchaser of immovable property he would, in addition to having to inspect the public records, be driven to the necessity of canvassing the city to ascertain if any third person had claims to or against the buildings thereon.

Under the registry laws of the state a purchaser is required to look no further than the public records to ascertain whether there are claims, contracts, judgments, liens or incumbrances affecting the title to an immovable. If it is possible to settle any question, that one is settled.

In the case of Soniat vs. Whitner, 141 La. 235, 74 South. 916, the court held that a purchaser of real estate cannot be affected by unrecorded claims against the property, even though he had actual knowledge of them at the time of the purchase, and the court said:

“By the decision in McDuffle vs. Walker, 125 La. 152, 51 South 100, and many subsequent decisions, the once vexatious question of whether the purchaser of real estate can be affected by unrecorded claims against the property, even though at the time of the purchase he had actual knowledge of them, has been settled in the negative — let us hope forever.”

See Baird vs. Atlas Co., 146 La. 1091, 84 South. 366.

If defendant be permitted to invoke against plaintiff the law which he is presumed to know, that a lessee may remove his improvements off the leased premises, the plaintiff may invoke in her own favor Article 506 of the Code, which provides that buildings and structures put on the soil are supposed to have been made by the owner at his own expense and to belong to him, and Article 505 to the effect that the ownership of the soil - carried with it the ownership of all that is above it.

When plaintiff in this case viewed the premises which she purchased, she saw certain buildings thereon. She had the right, under the law, to presume that they had been erected thereon by the owner of the lot and that they belonged to him. She examined the public records and found no claims or contracts recorded against them. She purchased on the faith of the public records. Admittedly she had no knowledge that defendant had ever occupied the premises as a lessee, much less any knowledge of any agreement between Mrs. Raccich and defendant as to the ownership of the garage.

Plaintiff purchased the lot “with all buildings and improvements thereon.”

Her title to the garage is good and defendant has no right to remove it.

Our conclusion, we think, is amply supported by the above cited codal provisions and decisions of the Supreme Court, but if further authority is needed we cite the following decisions where points similar to the one in the case at bar were presented and decided by the court.

Louisiana Land & Pecan Co. vs. Gulf Lumber Co., 134 La. 784, 64 South. 713.

Boagni vs. Stedman, 139 La. 851, 72 South. 417.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and it is now ordered, adjudged and decreed that the preliminary writ of injunction sued out and issued herein be sustained; and further ordered that said writ be and the same is perpetuated, and that defendant J. L. Kemp, is hereby enjoined and restrained from removing the said garage from the premises of plaintiff, all as prayed for. All costs to be paid by defendant.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    VIDRINE v. EVANGELINE GRAVEL COMPANY, INC.
    (June 5, 1926, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Marriage—Par. 25, 33.
    In view of Articles 642 and 3556 No. 12 of the Civil Code a man’s wife is a member of his family.
    2. Louisiana Digest — Master and Servant —Par. 39, 50, 66.
    The obligation of the employer to protect his servant against unusual risks and danger incident to the servant’s duty extends to the premises of the employee and requires that they be kept in a condition not to menace life and limb of the servant or his family.
    3. Louisiana Digest — Negligence—Par. 1.
    Ignorant negligence is equivalent to guilty knowledge.
    4.Louisiana Digest — Master and Servant —Par. 50.
    Revolving cog-wheels should be encased, when employees are forced to work near them.
    Appeal from the Thirteenth Judicial District, Parish of Evangeline, Hon. B. H. Pavy, Judge.
    Action by Mrs. Belle Henry Vidrine against Evangeline Gravel Company, Inc. There was judgment dismissing the suit on exception no cause of action filed by defendant. Plaintiff appealed.
    Judgment reversed and case remanded for further proceedings as the law provides.
    J. H. Dore, of Ville Platte and J. W. Lewis, of Opelousas, attorneys for plaintiff, appellant.
    Hawthorne and Stafford, of Alexandria, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit by an employee’s wife against his employer, on account of personal injuries received by her.

Mrs. Belle Henry Vidrine, wife of Pierre' Vidrine, acting for herself and in her own right under the law, C. C., Art. 2334 (Amd. 1920, No. 186) and Art. 2402 (Amd. 1902, No. 68), brought suit against EVangeline Gravel Co., Inc., on account of personal injuries received by her and which she alleges was due to the fault and neglect of defendant. The defendant excepted to her action on the ground that her petition did not set forth a cause of action. The exception was sustained and the suit dismissed. The plaintiff appealed.

It appears from plaintiff’s petition that defendant operates a gravel pit by means of electric power and that her husband is one of its employees doing general utility work on defendant’s dredge boat. That her husband occupied with her and her children, at defendant’s request and suggestion, a ’ tenant house on its premises, erected for the use of its laborers and workmen engaged in its work. That defendant agreed and was under .obligation to provide water for its laborers and their families, petitioner and her family being among the number. That the tanks and cisterns which defendant had provided for that purpose became dry, upon which defendant installed a pump in a deep well on its premises for the purpose of furnishing them water, the well thus becoming the sole source of water supply for petitioner and her family. That the water was pumped from the well by electric power and it was necessary for those needing water to turn on the electric current and start the pump.

In order to reach the switch, which was inside a house of some kind, it was necessary to pass two cog-wheels, which worked the pump and the gearing of which was open and unprotected. That when the current was turned on and the pump started, it was then necessary to. go outside the *pump house in order to reach the water and in going out it was necessary to pass by the cog-wheels which were then revolving.

After the supply of water had been obtained, it was nocessary to stop the pump and to do so it was necessary to go back into the pumphouse, pass the. revolving cog-wheels in order to reach the switch. That the men employed by defendant were constantly at work, consequently their wives and children were forced to pump from the well the water necessary for their household purposes, pursuing the course stated. That defendant’s employees made frequent complaint of the danger and defendant knew of the danger, but took no steps to remove it, permitting and encouraging petitioner and the wives of the other employees to. obtain, .water in the way stated, else do without it. That on March T8, 1925, petitioner needing water for her household purposes went to the well, turned on the switch and started the pump. She then started out, picking her way as carefully as she could, around the revolving cog-wheels, but the large revolving cogwheel in some way, caught her outer garment and drew her right leg into its teeth, greatly injuring her, etc.

Defendant cites us authorities on the subject of leases, licensees, invitees, trespassers, etc., but we do not find them applicable to the situation. The plaintiff in her petition speaks of occupying a tenant house, but when all that is alleged is taken into account, it is evident that her husband was not occupying a rented house, but his occupation and habitation was that of an employee who occupies a shelter provided by his employer for the use of his employees and their families while engaged in the employer’s work.

In this case it appears from the petition, taken as a whole, that the occupation was an incident of the service and the compensation which plaintiff’s husband received for his work was reckoned in connection therewith. ■ •

In Prevost vs. Gheens Realty Co., 151 La. 508, 92 South. 38, it was urged that the plaintiff in that case was not engaged at the time of his injury in performing service for the defendant arising out of and incidental to his employment.

In considering that part of Act No. 20 of 1914, the court said: “They slept in the bunkhouse on the premises, their privilege of sleeping there being a part of the compensation for their work.”

The habitation in the present case was similar to and within the reason of the case cited. It seems as a result of all that is alleged on the subject, that plaintiff’s husband was at work for defendant at the time she was injured, but suppose it was after work hours. In Wilson vs. Banner Lumber Co., 108 La. 580, 32 South. 460, the minor son of the plaintiff lived with her in the town of Kentwood. He was engaged in defendant’s service, but his work was out in the woods some 18 miles distant from home. He went to his work in the morning and came home in the evening after work hours, in a hand car furnished by defendant for the purpose. Her son was killed after work hours, while on his way home in a collision between the hand car and a cow. It was urged that the plaintiff could not recover because her son was not engaged in defendant’s work at the time he was killed and was furthermore, riding voluntarily, paying nothing for the privilege. The opinion indicates that the court regarded the privilege o£ coming home on the hand car after work hours as part of the service and that the service should have been discharged by defendant with proper regard for the safety of its employees.

In the present case, it is alleged that' the defendant agreed and obligated itself to provide water for its employees and their families. A man’s wife is of course a member of his family, C. C., Arts. 642 and 3556, No. 12. And the allegations are to the effect that getting water for household purposes was an incident of her husband’s employment and that defendant provided an extremely dangerous way in which it had to be obtained.

That the wives of defendant’s employees were forced to get water in the way described, otherwise their husbands would be taken from the work, in which their service required. Such being . the case, it was defendant’s duty to make getting water for their household purposes, reasonably safe for the wives of its employees.

The wives of defendant’s employees, when getting water, were performing service for defendant. Therefore defendant should not have permitted the work to be attended by the unusual risks and dangers alleged.

It is well settled that the employer is bound to protect his servant against unusual risks and dangers, that is, other than those naturally incident to the servant’s duty. This obligation extends to the premises of the emplqyer and requires that' they be kept in a condition not to menace the life and limb of the servant. Hoyle vs. Southern Athletic Club, 48 La. Ann. 883, 19 South. 937; Walker vs. Shreveport Gas, Electric Light & Power Co., 120 La. 75, 44 South. 925.

In this case, it is alleged that defendant knew of the danger, but it has been held that “Ignorant negligence, is equivalent to guilty knowledge.” Miguez vs. Delcambre, 114 La. 1032, 38 South. 820; Atkins vs. Bush, 141 La. 180, 74 South. 897.

“It is well settled, that revolving cogwheels should be encased, when an employee is forced to work near them.” Ballar vs. Puleston, 113 La. 239, 36 South. 951; Foreman vs. Eagle Rice Mill Co., 117 La. 227, 41 South. 555; Roff vs. Summit Lbr. Co., 119 La. 571, 44 South. 302; Rossey vs. Laurence & Hamilton, 123 La. 1053, 49 South. 704; Underwood vs. Gulf Refining Co. of La., 128 La. 968, 55 South. 641; LeBlanc vs. United Irrigation & Rice Milling Co., 129 La. 196, 55 South. 761.

Plaintiff’s petition therefore states a cause of action. The exception should have been overruled. The judgment appealed from is therefore annulled, avoided and set aside; the. exception of no cause of action is overruled and the case is remanded to the lower court for further proceedings as the law provides. Defendant and appellee to pay the cost of the. exception in the lower court and the cost of the appeal.


author: MO'UTON, J.

text:
    No. -
    First Circuit
    GREENFIELD BOX COMPANY v. INDEPENDENCE VENEER AND BOX MFG. CO., LTD.
    (June 26, 1926, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Quasi Contracts— Par. 1, 18.
    A payment, through error, for a shipment of merchandise which checked short on delivery is, in view of Article 2294 of the Civil Code, a quasi contract.
    2. Louisiana Digest — Error and Mistake— Par. 17.
    Under Article 2301 of the Civil Code and Article 18 of the Code of Practice it is the duty of one who has heen paid through error to restore it.
    3. Louisiana Digest — Prescription — Par 106.
    Actions which arise from quasi contracts are prescribed only in ten years.
    Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    Action by Greenfield Box Company against Independence Veneer and Box Manufacturing Company, Ltd. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Rownd and Warner, of Hammond, attorneys for plaintiff, appellant.
    S. S. Reid, of Amite, attorney for defendant, appellee.
   MO'UTON, J.

Defendant bought a carload of quart crates, containing 3900 complete crates in which cups were included. Plaintiff bought these crates from defendant company over the telephone at the rate of 40 cents per crate. By order from defendant, the shipment was diverted to Greenfield, Tennessee, the domicile of plaintiff company, but through error was shipped instead to Anderson, Missouri. A delay of about two weeks occurred before they reached Greenfield, Tennessee, their point of destination. Plaintiff company refused at first, on account of this delay, to accept delivery of the crates. Finally, plaintiff accepted the shipment, paid for the crates at 40 cents per crate, including the cups being the price at which it had made the purchase from defendant company.

The car containing the crates remained only a day or two on the railroad track at Greenfield, Tennessee, before it was unloaded. The seals on' the car were broken by Holder, manager of plaintiff, who, with two assistants, counted the number of crates in the car, and the number of cups. They found a shortage in cups of 83,600. These cups, as were shown by the record, were worth $8.75 per thousand, aggregating in value the sum of $731.50. Plaintiff had paid that amount to defendant for the cups in its purchase of the crates in which'they were thought to be included, and brings this suit against defendant for this shortage in the cups.

Pláintiff paid the drafts for the crates, June 17, 1920. This action was instituted more than a yehr and a half after plaintiff had discovered this shortage. Defendant company claiming that the demand of the plaintiff is in the nature of a suit quanti minoris, pleads the prescription of one year in bar of the action. The district judge rendered judgment simply rejecting the demand, and there is nothing to indicate on what grounds the suit was dismissed.

We will, however, pass on the plea of prescription and on the merits of the claim.

Defendant, in support of the plea of prescription, says that this is an action for the reduction of the purchase price and prescribed in one year under Article 2498, Civil Code. This article applies to suits for the diminution of the purchase price on account of shortage in a contract of sale of lands or immovables, where a deficiency occurs in the measure or acreage of the property sold. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to .restore it to him from whom he has unduly received it. C. C., 2301.

The 83,600 cups which upon investigation were found at Greenfield, Tennessee, not to have been in the carload of crates that had been sold by defendant company to plaintiff, had formed part of that sale. Defendant, in getting from plaintiff the full amount of the sale, received $731.50 for these 83,600 cups which were not in the carload of crates.

The evidence shows that defendant did not receive that amount as part of the purchase price with knowledge at the time that this shortage existed in the property it thought it had sold, and evidently intended to deliver. There is no question, however, that it received this amount of $731.50 for these cups. It is through error that it' received that amount, which was certainly not due defendant company, and it is therefore bound under the provisions of Article 2301 of the Civil Code and C. P., Article 18, to pay or restore that sum to plaintiff.

The payment by plaintiff was clearly “of a thing not due”. The action to recover this amount does not spring from any agreement but is imposed by law by virtue of a quasi contract. C. C., 2294. Actions which arise from quasi contracts are prescribed only in ten years. Gaty, McCune & Co. vs. Babers, 32 La. Ann. 1091; Garland vs. Estate of Scott, 15 La. Ann. 143; Police Jury vs. Succession of McDonogh, 10 La. Ann. 395.

The prescription of one year urged by defendant is not applicable to such actions. As we have hereinabove explained, plaintiff has clearly shown that it has paid the sum of $731.50 to defendant through error which it is entitled to recover from defendant, with legal interest from June 17, 1920, the date of payment for the carload of crates.

It is therefore ordered, adjudged and decreed that the judgment be avoided, annulled and reversed; that plaintiff have judgment against defendant company for the sum of seven hundred and thirty-one and 50-100 ($731.50) dollars with legal interest from the 17th day of Jupe, 1920, until paid and that defendant pay all costs of court.


author: CLAIBORNE, J.

text:
    Nos. 9905 and 9924
    Orleans
    ROUSSEAU v. TEXAS & PACIFIC ET AL.
    (August 2, 1926, Opinion and Decree.)

      (Syllabus by the• Court)

    1. Louisiana Digest — Master and Servant —Par. 164.
    The master is liable in damages for any negligence or illegal act committed by his servant in connection with, or in furtherance of, the purposes for which the servant is employed.
    2. Louisiana Digest — Evidence—Par. 55.
    Where one of the parties to a suit has more means of knowledge concerning a matter to be proved than the other the burden of proof is upon him.
    3'. ■ Louisiana Digest — Evidence—Par. 40, 42.
    Where a defendant fails to produce as a witness his servant charged with the commission of an illegal act the presumption is that the servant would not deny it.
    4. Louisiana Digest — Death by Wrongful Act — Par. 17, 18.
    .A judgment for $6000 in favor of father and mother claiming damages for the malicious killing of their son 26 years of age deemed a reasonable amount of damages for suffering of the deceased, loss qf his society, and deprivation of his support.
    Appeal from the Twenty-fourth Judicial District Court for the Parish of St. Charles, Hon. L. Robert Rivarde, Judge.
    Action by Theodule Rousseau and wife against The Texas & Pacific Railway Company and Missouri Pacific Railroad Company.
    The was judgment for plaintiffs and defendants appealed.
    Judgment amended and affirmed.
    Robert J. Perkins, qf New Orleans, attorney for plaintiffs, appellees.
    Hudson, Potts, Bernstein, Sholars, of Monroe, and John E. Fleury and Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for defendants, appellants.
   CLAIBORNE, J.

This is a suit by the father and mother for damages for the malicious shooting and killing of their son in the Parish of St. Charles by an alleged employee of the defendants. The plaintiffs are colored people.

The petition and supplemental petition alleged that Ursin Rousseau was one of the children of plaintiffs; that on March 5, 1921, he was twenty-nine years of age; that on the night of that day at about 11 o’clock at Luling, La., he was maliciously and without cause, shot in the back by a railroad detective in the employ of defendants and at the time in the discharge of. the duties incident to his employment; that he was taken to the home of petitioners and there attended by a physician; that upon the advice of said physician, their said son was put into an automobile and carried to the Charity Hospital in New Orleans where he. died in great suffering the next morning at eight o’clock; that his body was brought back to the Parish of St. Charles and there buried; that at the time of his death he was earning $2.25 per day; that he contributed to petitioners’ support and every pay-day gave petitioners about three-fourths of his wages. The plaintiffs, claim:

1st Damages for suffering on account of the loss of their son..$12,000.00

2nd Damages for loss of support of their son__________________________________ 12,000.00

3rd Doctor’s fees..................$ 5.00

Undertaker ______________________ 106.00

Shipping body.................. 4.00

Burial _____________________ 17.00

- 132.00

Suffering by their son------------ 5,868.00

Total____________________ $30,000.00

The Texas & Pacific exception to the jurisdiction of the court ratione personae and materiae, and that the petition disclosed no cause of action, without disclosing why in either case.

The Missouri Pacific excepted that the citation served upon it at Monroe, more than 100 miles from the Parish of St. Charles, did not state the exact distance and was an absolute nullity, it not containing the correct stipulation as to the time allowed it to appear and answer, although the citation did state that one day more was allowed for every ten miles that its residence was distant from the St. Charles Parish court house.

The attorney for the railroad certified “that the above and foregoing exception was filed in good faith and not solely for delay”.

The Texas & Pacific Railway denied each allegation of plaintiffs’ petition.

The answer is sworn to by its attorney as “true and correct”.

In answer to the supplemental petition the same Texas & Pacific Railway answered: “In the alternative, and in the alternative only, in the event that it be shown that the plaintiffs’ son was shot as and in the manner alleged in plaintiffs’ petition and his death ensued therefrom by any person riding at the time on one of the trains of this respondent and in the employ of this respondent or the joint employ of this respondent and any other railroad or carrier, that then and in that event, and in the alternative only, respondent shows that the act of such person in shooting plaintiffs’ son was without the scope of the employment of such person and was an act for which this respondent was in no wise responsible”.

The Missouri Pacific Railroad, denied each and every allegation of plaintiffs’ original and supplemental petitions and reiterated the answer copied above of the Texas & Pacific to the supplemental petition.

On October 30, 1923, the Texas & Pacific Railway filed a supplemental answer in which it alleged, “that on March 1, 1920, the possession, operation and control of said line of railroad and of all its property was resumed by the said court for the western district of Louisiana through the receivers appointed by said court, .to-wit: J. L. Lancaster and Charles L. Wallace,' and from the expiration of Federal control' until the present time,' said road has been operated exclusively by said receivers”. t ,

In a supplemental answer filed on the day of trial the Missouri Pacific Railroad, alleged that if the court should' find that the plaintiffs’ son was shot by any person in its employ then it averred “that the. shooting and' subsequent death of Ursin Rousseau, plaintiffs’ son, was due solely and entirely to the fault and actions of the said Ursin Rousseau which contributed to his shooting and subsequent death”.

All these answers are signed by attorneys of the defendants.

There was judgment rendered November 24, 1924, in favor of plaintiffs and against both the defendants in solido for $3000.00.

The defendants, have appealed.

The plaintiffs joined in the appeal and prayed for ,an increase of the judgment to $30,000.00.

.The transcript in this case is composed of 92 documents, over 200 pages of testimony, over 100 pages of briefs and citation of authorities that would fill a book case, and comes before us for the third time.

The judgment against the Texas & Pacific Railway is clearly erroneous.

The record contains an order dated December 1, 1919, appointing J. L. Lancaster and Charles L. Wallace receivers of the Texas & Pacific Railway Company by the United States District Court for the Eastern District of Louisiana.

In the case of Harris vs. Texas & Pacific Railway, 2 La. App. 501, the court sustained an exception of no cause of action “because the railway company being in the hands o.f the receivers cannot be held liable for the negligent acts of the receivers or their agents”, supporting their opinion by many authorities.

The marriage of the plaintiffs is established by abundant documentary and parol evidence as well as their parentage of Ursin Bousseau, alias Sambo.

The death of Ursin as a fact is also established by parol evidence and documentary evidence. The coroner’s inquest held on March 8, 1921, at Luling in the Parish of St. Charles reads as follows:

“Before me, Victor Lehmann, M. D., coroner for the said Parish of St. Charles, on the view of the body of Urbin Bousseau there lying dead.
“The jurors, whose names are hereunto subscribed, having been sworn to inquire on behalf of the state, upon their oath, do say, that: Ursin Rousseau came to his death as the result of a gun shot wound by a bullet from a gun or pistol in the hands of one H. T. Prudhomme, at Luling, La., at or about 10:30 p. m., on March 5, 1921, said bullet after penetrating the left side of the throat making its exit to the left side along or close to the spinal column. In testimony thereof, the coroner and the jurors of this Inquest have hereunto subscribed their names, the day and year above stated. Signed Jury, U. Mon-grue, Arnold Horn, Alfred Kinlair, Milo Lorio, Paul Friderick.
“V. Lehmann, M. D., Coroner.”

Also the certificate of death of the acting coroner for the Parish of St. Charles-, E. J. de Bergne of Ursin Rousseau’s cause of death: gun shot wound of abdomen. Homicide. Also the permit of John Callan, M. D., superintendent of Public Health for the removal for burial at Luling of the body of Ursin Rousseau. Cause of death: gunshot wound of abdomen. Homicide. Also certificate of death from Charity Hospital of Ursin Bousseau. Gunshot wound of abdomen. Also the testimony of James Johnson and of both plaintiffs.

The cause of death is also -proven beyond question.

B. A. Prickett was the conductor of the through freight train No. 59 for the Missouri Pacific on the night of the accident, he was in a caboose when he first heard of the shooting; he was told about it by an operator; there was a guard, on the train, whose name he does not remember; he had heard of the name of Prudhomme, but had never met him before; this was his first trip on his train as a railroad detective; Ama Tank or Davis is the station just below Luling about a mile and three-quarters; the guard left the caboose at the Davis water tank and went towards the head end but continued on the train; the first stop above Luling is Killona, the message that he received was that a man had been shot at Luling by some one on the train; he made no report of the shooting. The duties of the guard were “to keep people from robbing the cars”; the two brakemen were Gallup and Keith; Prudhomme and Burrows were in court on the day of the trial; as a usual thing there are a good many tramps on freight trains; it is not an unusual thing to hear shooting from or about freight trains through the night, besides the guard there was a detective on the train.

Ther.e was objection made by defendants to the introduction of this testimony taken under commission upon the, ground that the notary on suggestion of the witness had made corrections to it in writing outside of the presence of defendants after the testimony had been typewritten. The corrections were in the handwriting of the notary. For the reasons we have concluded to disregard the alterations or additions in writing and to consider only that part of the testimony in typewriting.

The, additions were not sufficient to exclude the whole testimony.

James Johnson testified that he lives at Luling; he remembers the night Ursin or Sambo was shot; he had been with Ursin at church; it let out at 10 p._ m.; after church he went over to the fruit stand on the river side of the track; he was standing there with a bag of apples and oranges in his hand, when- he saw the train coming; he delayed until it passed; he said: “during the time the train was passing I saw a flash, you know, and after 1 saw the flash I heard the report from the gun. I couldn’t tell whether it was a shotgun or what, but I saw a flash, and heard a report”.

“Q. Yes, about how many feet?

“A. About sixty feet: that is what I take it to be.

“Q. You think the car from which you saw a flash was about sixty feet west of the T. & P. station?

“A. Yes, sir.

“Q. How long after you saw this flash and heard this report, did you learn that Rousseau had been shot?

“A. About three or four minutes after the train passed; just about three or four minutes.”

The train did not stop at Luling, it passed at a rate of 15 miles an hour.

Ursin was taken from Luling to Gretna in an automobile, they got there at six o’clock in the morning; from Gretna he was carried over on the ferry to New Orleans, there taken to the Charity Hospital in an ambulance; he died at eight o’clock of the same morning; witness was with him all the time.

William Lassan is parish treasurer, 60 years old, to the “manor born”; he has known Theodule Rousseau “all his days”; he knows the church Johnson testified about and Rousseau’s house.

Rousseau’s house faces the Texas & Pacific station; in order to get from the church to the station one must walk either in the center of the railroad track or on the side of it, there is no other way; Ursin lived with his father.

M. J. Poirrer is a telegraph operator employed by the Texas & Pacific at Luling, some colored fellow told him about the shooting; he must have reported to the dispatcher, what they claimed had happened, that this negro got shot by the train crew; he could not say whether the train stopped at Luling or not, but the records should say, and they should be in the station; the schedule time for arrival of train 59 or 361 at'Luling was 10:35 p. m. ■

Leon C. Vial, sheriff for the Parish of St. Charles, says that he got information of the shooting of Rousseau and that he made an investigation; he knows Prudhomme and Barrows; he dealt with Barrows as a representative of the railroads; during the month of March, 1921, Prudhomme called on him in company with Mr. Burrows and Judge Fleury to find out whether there was a charge made against Prudhomme; he informed them that there was none, but that one would be made; he had had previous dealings with Burrows as representative of the railroad; he saw Prudhomme some time after, while the grand jury was investigating the matter; no charge was ever made against any one but Prudhomme; the grand jury investigated this case against Prudhomme and found not a true bill.

The judge admitted the testimony of Vial that Prudhomme admitted to him that he had shot Ursin. This was error. Merchants and Farmers Bank vs. Fisher Lbr. Co., 136 La. 859, 67 South. 932; Toca vs. Rojas, 152 La. 320, 93 South. 108.

Dr. L. T. Donaldson testified that he attended Rousseau; that he was suffering from a gunshot wound in the abdomen^ that the bullet, entered the right side over the. liver, through the stomach, and passed out the left side, he was vomiting, blood.

Dr. Victor Lehmann, coroner for St. Charles Parish for the last 34 years, held an inquest over the body of Ursin Rousseau at Luling.

Theodule Rousseau, father of Ursin, testified that Ursin at the time of his death, was 29 years of age; he was not married and had always lived with him and his mother.

The declarations of Ursin as to how he was wounded when, and by whom were objected to as not forming part of the resgestae.

The objections were sustained. Rousseau and his wife are about 55 years old.

Elizabeth Rousseau, mother of Ursin, testified that he lived with his father and mother; that he worked and brought his wages home and gave her $12 or $14 a week and sometimes more; he earned $1.75 to $2.50 per day; when he came home at night he had been shot; the bullet came in one side and came out by the other side.

Joe Dennis is 26 years of age. He met Ursin Rousseau on the night of the killing; they went together to church at eight o’clock; they left the church at about ten o’clock and went together to the house of witness’ grandfather, right back of the church about half an acre from the track. They stayed there about twenty minutes, witness then went to his house about sixty-feet from his grandfather’s house; Ursin left to go to his house; he had to cross the railroad track and Walk along the track in order to get there; that was the only way he could get home. Witness heard one pistol shot, and after that he heard Ursin’,s mother crying; he: knew Ursin’s mother well; he then went- over to Ursin’s mother’s house; he also crossed ■over the ramp and walked down- the railroad track; it was about five minutes after he left Ursin that he heard the shot. When he reached the track he saw the tail end of the train, the caboose, going west towards Ashton. When he got over to Rousseau’s house, Ursin was lying in bed, he went with Ursin to the Gretna ferry; they left Luling a little after two and got to Gretna at about six; the truck had a bad tire and they were driving slowly. It is,about half an acre from his grandfather’s house to the track and one acre from the track to Rousseau’s house.

F. G. Hudson, Jr., attorney for one of the defendants, was called as a witness by the plaintiffs. He was asked whether H. T. Prudhomme had been in the court throughout the whole of the day and yesterday, whether he had requested Prudhomme to be present at the trial, or whether he had at present in the court room the engineer, fireman and conductor, and one or more brakemen employed on train called No. 59 which passed Luling on the night of March 5, 1921; to all of which questions the defendants objected and were sustained by the court. He was asked whether or not Prudhomme was employed by the defendants at the present time, and he answered: “He is not, so I understand. I- don’t really know that of my own knowledge.”

Dr. Lehmann was also asked if Prudhomme was in the court room; this question was objected to and the objection maintained.

■ Mr. Fleury, attorney for the defendants, admitted having called on'- Sheriff Vial with Burrows and Prudhomme. He refused to say more on. the ground' of privileged ..communication-.

:. The defendants offered in evidence a certified copy of the order of the’ United States Court appointing receivers for the Texas & Pacific Railroad dated February 23, 1921. The defendants then rested.

They offered no document and produced no witness.

The testimony of James Johnson and other corroborative evidence establish with sufficient certainty that the shot that killed Ursin issued from the freight train of the Missouri Pacific Railroad Company running through Luling; as it was a freight train there were none but employees of the defendant upon it and the conclusion is irresistible that it was one of them who fired the shot. Upon that train there was one guard, one detective, and brakemen and no passengers. In the case of Simmons vs. Southern Rifle Club, 52 A. 1114, the defendant was held liable for an injury -inflicted upon a child by a rifle ball. When it was shown that the defendants had been firing and that there was no other firing going on in the neighborhood, it carried with it the conviction that the bullet by which the child was struck came from the rifle of one of those who alone had been firing”.

In the case of Lazarus vs. Freidricks, 125 La. 619, 51 South. 663, the court said:

“Where the -testimony of the two parties to an alleged contract conflicts and there are no other competent witnesses, and the preponderance of corroborating circumstances and probabilities sustain the defense, the demand of the plaintiff must be rejected.”

And in Castille vs. Cormier, 144 La. 640, 81 South. 210:

“While it does not follow, because a fire occurs after an engine has passed, that the one happening is necessarily the consequence of the other, yet, where a fire occurs the ignition of which- is explicable by the proximity ' of an . engine, ’capable, through negligence, of emitting'sparks and cinders, and uppn no other theory which finds any support in the facts, it is. unnecessary, in order to entitle the owner of the burned property to ■ recover, that he should have followed the sparks or cinders from the engine to the property’ and watched the -progress of ignition.”-
“Where evidence is not conclusive but leaves no other hypothesis it will be considered sufficient.” 10 Orl. App. 284; 13 id. 374, No. 7784 id.

In the case of Hart vs. Rrd., 1 Robinson 180, which was a damage suit against the defendants as owners of an omnibus, the court said:

“It was not necessary that’ the plaintiff should prove a legal title to the omnibus in the defendant, but only to make out a prima facie right; and it would then rest with them to show, what would not be very difficult in a case of this kind, that the omnibus belonged to some other corporation, company or individual.”

In the case of Phelps vs. Hughes, 1 La. Ann. 322, the court said:

“Where the issue is whether there was ever such a person as A it is enough for defendants to offer such evidence as, in the absence of counter evidence, will afford ground to believe that no such person ever existed. If such person ever existed plaintiff might have easily proved the fact.
“As to whether the store whs exclusively k,ept to supply the employees -and was not to sell to all comers, the onus was shifted by evidence strong enough- • to establish a prima facie case against. . the defend-, ants.” Lehmann & Co. vs. Knapp, 48 La. Ann. 1148, 20 South. 674.

In the case of Hollins vs. Rrd., 119 La. 418, 44 South. 159, thé court «said on page 421: .

“If the prima facie case. thus made out is not the .r.eal case, it was for. ¡the defendants to show it. The knowledge of their relations is in their possession, and not in the possession of. the plaintiff.”

'■ The testimony of Sheriff Vial is that he ' knew Prudhomme, and always dealt with him as an employee of the railroad.

This statement, in connection with other testimony, is sufficient to establish the balance of probability or the preponderance of evidence- in favor of the plaintiff. If Prudhomme ' was ; not an employee of the defendants, they knew it better than any one else, and they could have denied it by testimony; Prudhomme or the other trainmen were accused of having fired the fatal shot that killed Ursin, and the defendants were charged with civil responsibility of this deed. If it was not true, it was in the power of the defendants to have produced Prudhomme or the other employees as witnesses to deny it. The law is:

“The law of evidence is tha!t when one of the parties to a suit has more means of knowledge concerning a matter to be proved than the other the burden of proof is upon him.” 1 H. D., 237.

As far back as the year 1823 the Supreme Court said in the case of Powers vs. Foucher, 12 Martin 74:

“In the case of Delery vs. Momet, 11 Martin 4, and that of Nichols vs. Roland, id. p. 190, we held that the burden of proof lies on the party who has to support his case by proof • of a fact of which he is supposed to-be■ cognizant.” N

This principle has been followed ever since. Collins et al., vs. Andrews, 6 Mart. (N. S.) 195; Meilleur vs. His Creditors, 3 La. 534; Campbell vs. Miller, 1 Mart. (N. S.). 514; Offutt Bros. vs. T. H. Scribner, 10 La. Ann. 639; Griffin vs. Drainage Commission, 110 La. 840, 34 South. 799; Rugely, Blair and Co. vs. Gill, 15 La. Ann. 509; Bowman vs. McElroy and Bradford, 15 La. Ann. 663; Ford vs. Simmons, 13 La. Ann. 397; Arguimbau vs. Germania Ins. Co., 106 La. 139, 30 South. 148; 3 Orl. App. 285 (288); 13 id. 68; 2 Evans Pothier, p. 113; 22 C. J., p. 81, S. 24.

“When a defendant can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge, if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist.” Bank vs. Levy, 106 La. 586, 31 South. 164; School Board vs. Trimble, 33 La. Ann. 1073; King vs. Atkinson, 33 La. Ann. 1057; Dotson vs. La. Central Lbr. Co., 144 La. 83, 80 South. 205; Carroll vs. Cockerham, 38 La. Ann. 823; Succession of Lampton, 35 La. Ann. 424; Burke vs. Fuller 41 La. Ann. 740, 6 South. 557; Pruyn vs. Young, 51 La. Ann. 320, 25 South. 125; Bastrop State Bank vs. Levy, 106 La. 587, 31 South. 164; State vs. Jahraus, 117 La. 286, 41 South. 575; 2 McGloin, 34; Tessier Dig., 70, 72.

“Failure of a party to call an available witness possessing peculiar knowledge concerning facts essential to' a party’s case, direct or rebutting or to examine such witness as to the facts covered by his special knowledge, especially if the witness would naturally be favorable to the party’s contention, relying instead upon the evidence of witnesses less familiar with the matter gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of the party.” Pruyn vs. Young, 51 La. Ann. 320, 25 South. 125; Nunez vs. Bayhi, 52 La. Ann. 1719, 28 South. 349; Johnson vs. Marx Levy & Bros., 109 La. 1036, 34 South. 68; Hannay vs. New Orleans Cotton Exchange, 112 La. 1007, 36 South. 831; Rubenstien vs. Files, 146 La. 734, 84 South. 33; Toca vs. Rojas, 152 La. 319, 93 South. 108.

“Where facts are shown which are sufficient to throw doubt upon the reality of a transaction, the burden of proof is shifted to those who know the truth, and where they fail to furnish' information within thei-r knowledge the presumptions of law are against them.” Nunez vs. Bayhi, 52 La. Ann. 1719, 28 South. 349; King vs. Atkins, 33 La. Ann. 1064; Lovell vs. Payne, 30 La. Ann. 511.

It is also the rule that the failure of a ■party defendant to produce as a witness his employee charged with the commission of a wrong is equivalent to an admission of the truth of the charge.

The failure of a railroad company to introduce the testimony of its employees who were on the train at the time of the accident raises a presumption of negligence against the company.” Day vs. Rrd., 35 La. Ann. 694; 1 Thompson on Negligence, p. 514, sec. 6, affirmed in Ketchum vs. Rrd., 38 La. Ann. 777 (779) 22 A. and E. E. L., p. 1261, 2nd Ed.

In this case not only did the defendant fail to produce Prudhomme, or the trainmen, or the guard or detective, but when plaintiff’s asked the attorney for the defendants, sitting as a witness, and another witness, whether Prudhomme or any of these employees were in the court room, evidently with a view of calling them as witnesses, the defendants objected, and the court maintained the objection. The counsel and the court were clearly wrong in obstructing the discovery of the facts and the truth in the case. 16 Cyc. 1063. But where a person is the natural witness of an opponent such as an employee, his mere production in court does not free the party producing him from the inference which may arise from his not being called. He is not really a witness equally available to both parties, etc.”

The defendants have argued that there is no proof that Prudhomme was in their employ at the time of the trial. The proof shows however that he was in their employ at the time of the killing. There is no proof on the part of the defendants that the employment had ceased. When a state of facts is proven to have once existed it will be presumed to have continued until the contrary is proved. 22 A. and E. E. L., 1240. The burden of proof. was therefore on defendants to prove1 that Prudhomme ■was not longer in their employ on'the date of the trial.

In Jackson vs. Rrd., 52 La. Ann. 1711, 28 South. 241, (bottom of page)- the court said:

“When we add to this testimony the eloquent. silence of the defendant upon the subject of Smith’s employment, further comment becomes unnecessary.. If he was hot employed by it, some respectable and responsible officer would have so testified, as its learned counsel fully appreciated the importance of the question. * * * p. 1718.
“With the testimony which we have thus quoted in the record, it seemed rather significant that no officer or person connected with the defendant company should have taken the stand to say that. Smith was not acting for it, or with its authority, in ejecting the plaintiff, from . its train.” 1 Thompson, p. 514 (c); Maus vs. Broderick, 51 La. Ann. 1153, 25 South. 977; Dunn silent, claimant.

The last argument of the defense is that there is no proof that Prudhomme or any other employee whoever he was was acting within the scope of his authority and employment.

The duty of the guard and of the trainmen was to protect the property of the railroad, if they carried firearms we must presume that they did so with the knowledge and approval of their employers, and that they carried them for use. But it is immaterial whether their ' employees knew that they carried arms, the important point is that they did carry them. and did use them while in the discharge of their duties. In the case of Vallon vs. I. C. Rrd., No. 9005 of this court, decided May 28, 1923, we said:

“The master is liable in damages for any negligent or illegal act committed by his servant,-in connection with, or in furtherance of the purposes for which the. servant is' employed.”

The servant in that case was the locomotive engineer.

The facts and issues in that case were very similar to those here.

So are the facts in Vincent vs. Morgan’s La. Rrd., 140 La. 1027, 74 South. 541; Winston vs. Foster, 5 Rob. 113; Gann vs. Great Southern Lbr. Co., 131 La. 400, 59 South. 830; Mathews vs. Otis Mfg. Co., 142 La. 88, 76 South. 249.

In the case of Nash vs. Longville Lumber Co., 146 La. 475, the court said on page 480:

“When one person authorizes another to perform a certain function, lawful in itself and to be. lawfully and cautiously performed, he becomes liable for the consequences to third persons if it be unlawfully or negligently performed and such persons are thereby injured, and the same rule applies whether the employer or principal be an individual or a corporation.” Affirmed in Nash vs. Longville Lbr. Co., 148 La. 943, 88 South. 226.

The defendants in their brief express themselves “aggrieved and outraged at the unfairness of the trial judge” under the guise of securing all the facts, in permitting the plaintiffs to introduce further evidence after the trial had been closed except for certain, purposes. The- judge’s reason was that he “wanted light on the subject”. The law is, C. P., 547, that courts may, “ex officio, direct a new trial in order to revise their judgments”.

The jurisprudence has always been that courts may - re-open a case before judgment or grant a new trial after judgment in the exercise of a - sound discretion' and in, the interest of justice. Defendants cannot complain for they have not shown that they have suffered any injury by the order. Different from the object of attorneys, the impartial judge’s duty is to see that justice is done to the litigant in each case, and- his rulings should escape the harsh .criticism of interested attorneys. We see in the judge’s action nothing but the exercise of a fair discretion which has done no injury to the defendants and we therefore approve it.

In the case of Bastrop State Bank vs. Levy, 106 La. 587, 31 South. 164, Judge Blanchard said:

“Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.”

And in Baham vs. Stewart Bros., 109 La. 999, 34 South. 54, Chief Justice Nicholls, on page 1011 said:

“It having been established that a petir. .tion, with a citation accompanying the same addressed to A. J. Baham, was served upon the wife of A. J. Baham, it was his duty, if he was not the party concerned in the subject matter, to have appeared in the district court and excepted to the citation."

In former times the law went further and made it the duty of every citizen to denounce a crime which came to his knowledge, and the failure to do so was denominated a negative misprision and punished as a felony. 4 Blackstone, p. 83, S. 119.

The only remaining question is the amount of damages.

The rights of the plaintiffs in this case are composed of three elements:

First, the damages . which the . deceased suffered and which he transmitted by inheritance to his parents; and. second,' the injury which the plaintiffs themselves’ sustained by. reason of the death of their son, for the loss of his affection and society, and their grief; and third, the loss of his material assistance and support. C. C., 2315.

The following amounts have been awarded to parents for the killing of a child:

In the case of Pierre vs. Powell Box Co., 142 La. 998, 77 South. 943, a judgment of $2500 in favor of two colored parents was increased to $7500.

The plaintiffs in that case recovered for the three elements.

In the case of Hubert and Wife vs. Baton Rouge Electric Co., 150 La. 957, 91 South. 406, the jury allowed each of the parents $7500 for the death of a child 3 years of age.

The Supreme Court reduced the judgment to $2500 to each of them. In support of their judgment the court cites a large array of decisions of our Supreme Court. In that case the claim was only for suffering of the parents for 'the loss of the companionship of the child; nothing for the loss of support nor for suffering of the child.

In the case of Taylor and Wife vs. Vicksburg Rrd., 151 La. 270, 91 South. 732, a judgment was reduced from $7500 to $5000. But in that case the parents were respectively 70 and 56 and their son was instantly killed. The judgment did not include suffering of the deceased child and no authorities are quoted.

In the case of Aymond vs. Western Union Tel. Co., 151 La. 184, 91 South. 671, the court said: •

“A judgment in favor of the. father for $10,000 for the death of a boy 14 years old, who was not assisting his father in any way but on the- contrary .dependent upon him, was excessive and should ' be' reduced to $5000.”

This judgment covered the suffering of the boy and the grief of the father.

■In the case of Selser arid Wife vs. Revol, 152 La. 447, a verdict of $15,000 in favor of both parents for the death of their son 9 years old,’ held excessive and reduced to $6,000. This case is in line with the Ay-mond case cited above where the boy 14 years of age was not any assistance to his parents, the parents claimed for the suffering of their son and for their deprivation of his society.

In the case of Cherry and Wife vs. La. Ry., 121 La. 471, 46 South. 596, the plaintiffs were allowed $18,000 for the death of their two boys one 10 and the other 6. The boys were run over at 2 o’clock p. m., and died the next morning; one had a hand and foot cut off and the other a leg. The damages recovered were for the suffering of the two boys and the loss of their society.

In Bourg vs. Brownwell, 120 La. 1009, 45 South. 972, plaintiff recovered $5000 for the death of his minor son 13 years of age based exclusively upon the loss of his son’s society.

So in Buschner and Wife vs. City, 112 La. 599, 36 South. 603, the plaintiffs recovered $5000 for the drowning of their son nine years of age.

Also in Parker vs. Crowell, 115 La. 465, 39 South. 445, $5000 were allowed the father.

In the face of these decisions the judgment of the trial court must be increased.

As we have said béforé both the father and mother are plaintiffs in this case and both are claiming the three elements of damages, viz: the suffering of their son, the deprivation of his society and resulting grief, and the loss of support. We have concluded to adopt a conservative figure and to increase the judgment to the sum of six thousand dollars.

It is therefore ordered that the judgment appealed from in favor of the plaintiffs and against the defendant the Texas & Pacific Railway Company be reversed and annulled, and it is now ordered that there be judgment in favor of said Texas & Pacific Railway Company rejecting plaintiffs demand against it at the cost of said plaintiffs.

It is further ordered that there be judgment condemning the defendant the Missouri Pacific Railroad Company to pay to the plaintiffs, Theodule Rousseau and Elizabeth Rousseau, his wife, the sum of six thousand dollars with five per cent per annum interest from judicial demand, December 17, 1921, until paid and all costs of suit.

Judgment amended.