text:
    No. -
    First Circuit
    INVESTORS MORTGAGE CO. v. THERIOT ET ALS.
    (January 5, 1928. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sheriffs and Constables — Par. 13.
    Under Section 1 of Act No. 203 of 1898, where the sheriff in execution of a writ of seizure and sale received money sufficient not only to pay for the execution of the writ but also superior mortgages or liens on the same property, his fee is based on the execution of the writ and not on .the amount of the funds collected.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by Investors Mortgage Company against Ernest R. Theriot et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wilbur P. Kramer, of Franklin, attorney for Investors Mortgage Co., plaintiff, appellee.
    L. A. Pecot, of Franklin, attorney for sheriff, defendant in rule, appellant.
   MOUTON, J.

In this case the issue is as to the amount the sheriff is entitled to recover as commission on a sale in execution of a mortgaged debt. The execution was predicated on a third mortgage that rested on the property which was also burdened with a first and second mortgage, and a tax subrogation amounting in all to the sum of $57,036.05. The property was adjudicated for $62,000.00. The adjudicatee retained in his hands on the purchase price the sum of $57,036.05 to satisfy these prior liens and mortgages, leaving the sum of $4963.95 to be applied to the writ which totaled the sum of $8055.12 in principal, interest and attorney’s fees.

The contention of plaintiff is that the commission of the sheriff, under Section 1 of Act 203 of 1898, is restricted to the amount collected and paid over in satisfaction of the writ, that is, to the sum of $4963.95. On the other hand the contention of the respondent sheriff is that his commission must be based on the amount of the adjudication, $62,000.00. This constitutes the vital issue in the case. On the question thus presented, the district judge rendered the following able and comprehensive opinion:

“Plaintiff, as seizing creditor, and one R. B. Bishop, adjudicatee under the judicial sale held by virtue of execution issued in this matter, proceeded by rule on the sheriff of the Parish of St. Mary, to show cause why he should not be ordered to make a valid deed of title to the said Bishop, adjudicatee, upon compliance with the law relative to the payment of commissions, costs and fees as fixed by law,
“Reviewing the facts presented to arrive at a proper interpretation of the statute presented, it is found that plaintiff issued an order of seizure and sale against the property of defendants, debtors in satisfaction of a special mortgage. The property affected was seized, after due notices had been served, advertised for sale, and sold by the sheriff, defendant in rule. R. B. Bishop was adjudged the purchaser at the price of $62,000.00. Due notice was given, preceding the crying of the property, that the same was being sold subject to all privileges and hypothecations of whatever kind, with which the same was burdened, and that the purchaser was obliged to pay into his (sheriff’s) hands whatever portion of the price of adjudication would exceed the amount of the privileges and special mortgages to which the property was subject.
“The execution, in this instance, was predicated on a third mortgage, there existing at the time of sale and as' shown by the certificate of mortgages, a first and second mortgage and a tax subrogation amounting in all to the sum of $57,036.05. The amount of the writ totaled the sum of $8055.12 in principal, interest and attorney’s fees. The amount of the bid therefore exceeding the amount of all prior liens and encumbrances in the sum of $4963.95, and the writ was satisfied to that extent only prior to the payment of costs, etc.
“The question presented, and which is the only issue before the court, is what amount is the sheriff legally entitled to collect as his commission in executing the order of seizure and sale.
“Plaintiff and the adjudicatee contend that the commission of the sheriff can only be legally levied in the proportions as fixed by Section 1 of Act 203 of 1898, on the amounts collected and paid over in satisfaction of the writ, in this instance $4983.95. Counsel for the respondent sheriff contends that the commission must of necessity be levied on the bid of the adjudicatee, in this instance the sum of $62,000.00.
“This issue can be nailed down to one question of law, and that is whether the commission of the sheriff can be legally levied against the sums retained by the adjudicatee to satisfy all prior liens and encumbrances, in this instance $57,036.05.
“Section 1 of Act 203 of 1898 provides as follows: ‘That the sheriffs throughout the State of Louisiana (Orleans excepted) shall be entitled to demand and receive the following fees and compensation of office and no more, in all civil matters, to-wit:
“ ‘For making an actual levy- or seizure of property, under execution or order of seizure and sale without sale, $1.00. And 2% on the first five hundred dollars, and 1% on any excess of said amount collected and paid over to the party causing the execution or order of seizure and sale to issue or to the party to be adjudged entitled thereto in case of contest over the proceeds.’
“In view of the wording of the statute it will be necessary to determine what amount was the sheriff legally entitled to collect from the adjudicatee and to thereupon pay over' to the party causing the execution or order of seizure and sale.
“Whenever any property, sold by a sheriff, is subject to privileges or special mortgages in favor of other persons besides suing creditors, the sheriff .shall require from the purchaser only the surplus of price beyond the amount of the privileges of special mortgages, Code of Practice, Article 706, and the hypothecary action lies against the purchaser of such property in favor of creditors having such privileges and mortgages. Ibid. Article 709. The sheriff must give notice, before he commences the crying, that the property is sold subject to such privileges and mortgages, and that the purchaser is required to pay in his hands only the excess of the price, at which it shall be adjudicated, over those privileges and mortgages, Ibid. Article 679.
“These provisions are very clear, positive and unmistakable. It is manifest from them that the sheriff is neither required nor authorized to receive the amount of mortgages or privileges which prime that under which he is selling. His writ commands him to make a certain sum by and out of the sale of the property. The mortgages that are certified to him exhibit the sums for which the property is bound, and which must be satisfied, before the plaintiff in execution, whose writ he holds, is entitled to anything. If the price bid is insufficient to pay these sums, there can be no adjudication. Ibid. Article 684.
“If, as in this case, the highest bid exceeds the antecedent liens, the adjudication is valid and the sale complete, and the property passes to the purchaser, hut passes, burdened with these antecedent liens, which can be enforced by the holders of them against the property in the hands of its new owner.
“These codal provisions are just, and are admirably contrived to prevent injury to debtor, creditor or purchaser, and it necessarily follows that when the sheriff takes upon himself to receive money which his writ does not authorize him to receive, he is not acting officially, his sureties cannot be held liable, and he is concluded acting purely as the individual agent of the purchaser.
“The jurisprudence of this state is on positive and emphatic lines to the effect that not only is the purchaser permitted ■ to retain, but he is required to retain in his hands the amount of the liens in advance of that of the seizing creditor, and the day to which the interest upon them is to be calculated for retention has been fixed. Cummings vs. Erwin, 15 La. Ann. 289; Fireman’s Ins. Co. vs. Gillingham, 1 Rob. 305.
“In the case of Merchants Bank of New Orleans vs. Peters et al., 2 Rob. 214, the Supreme Court there declared: ‘There is no provision of the existing order which requires of the sheriff, or authorizes him to receive the amount of other mortgages, or any other sum than that which his writ commands him to make on the execution.’ If he takes upon himself to receive money, which his writ does not authorize him to receive, and to pay it over to persons not parties to the process in his hands, it is plain that he does not act officially, and, consequently, the sureties on his official bond are not responsible. The law fails to grant him any authority to receive from the purchasers anything more than what is due under the writ. Pepper et als. vs. Dunlap, 16 La. 163. In the latter cited case the Supreme Court there held and supplied a similar doctrine. Scott vs. Featherston, 5 La. Ann. 313. In the case of Quertier & Co. vs. Succession of Hille, 18 La. Ann. 65, the court recognized the legal right of antecedent creditors to secure judgment against a purchaser as a third possessor of the property subject to his mortgage, to be paid out of the funds which he should have retained for that purpose.
“The obligation- of the purchaser, together with his duties of retaining in his hands the proportion of price coming to a concurrent mortgage note not embraced in the judgment under which the sale was made, springs from the purchase itself. By analogy this can be applied to the purchaser where there exists antecedent liens. Johnson vs. Duncan, 24 La. Ann. 381.
In the case of Morris vs. Cain’s Executors, 34 La. Ann. 657, the Supreme Court clearly announced the following; ‘The retention of the surplus of the writ by the purchaser produces a right or claim in favor of the creditors who may be entitled to be paid out of that surplus. It is only by paying them that he can discharge himself from what responsibilities he may have incurred, and release the property from the encumbrances upon it. By paying the sheriff, who is the legal agent of the seizing creditor, he pays the latter and thus liberates both himself and the property to the extent of the creditor’s rights against it.’ Robinson & Company vs. Cosner, 136 La. 613, 67 So. 468; Forrey vs. Strange, 158 La. 950, 105 So. 21; Ash vs. So. Chemical Co., 107 La. 311, 31 So. 656.
“From the authorities hereinabove quoted only one deduction can be made. It being the duty of the purchaser to retain in his hands the sums necessary to liquidate antecedent liens and mortgages, the sheriff can not be held as being entitled to the custody of these funds. Were he to take the custody thereof, it would be an act outside of his official duty and beyond his official authority. The- law holds him and declares him to be the legal agent of the seizing creditor. His only authority is the mandate of the writ itself, and the law defines his duties relative thereto.
“Not being entitled to the custody of the funds retained by. the purchaser, to be held by the latter in satisfaction of the call of antecedent creditors, it is clearly evident that he can not be considered as having collected and paid over the same to the party causing the execution or order of seizure and sale to issue. The seizing creditor has no concern with the funds necessary to liquidate antecedent liens and mortgages. His only interest is in seeing satisfaction of the writ issued by him, and the sheriff’s concern in executing the writ under its mandatory provisions. The purchaser alone is the one concerned with the sums necessary to liquidate all antecedent liens and mortgages and the law fixes his liability as such, not only he being personally liable, but the land itself of which he is the new owner stands responsible by way of the hypothecary action, the latter in favor of antecedent creditors.
“Counsel for the sheriff urges the custom ■ which has prevailed allowing the latter to levy his commission on the entire bid irrespective of what is actually collected and paid over by him to the seizing creditor. However, it is axiomatic that custom can not prevail in the teeth of the positive law.
“Counsel further argues that were the court to declare that the commission of the sheriff can only be levied on what is actually collected and paid over by him and not upon the bid offered, that it would seriously hamper the maintenance of the offices of sheriffs throughout the state, the existence of which has been contemplated by the Legislature. The statute in question (Sec. 1, Act 203 of 1898) is positive and unequivocable. Were its provisions ambiguous the court would thereby resort to what the Legislature intended so as to arrive at a fair interpretation.
“However, this statute cannot be considered in the light of ambiguity. Furthermore, the courts cannot supply the want of any reasonableness in its application. The expediency and wisdom of legislative acts are questions addressed solely to the discretion of the Legislature as the lawmaking branch and not to the judiciary. State ex rel. Bahns vs. New Orleans, page 718 So. Reporter advance sheets, June 18th, 1927.
“The amounts realized on the writ being the sum of $4963.95, as having been collected and paid over to the seizing creditor on the third mortgage executed upon, in view of the above, the commission, as fixed by law, must be levied against that sum only. It cannot be levied against the sum of $57,036.05 representing the amount of the antecedent liens and mortgages withheld and retained by the purchaser in satisfaction of said mortgages.”

It cannot be contended that the amount thus retained by the purchaser could be said to have been collected by the sheriff, and paid over to the party causing the execution or order of seizure and sale under the writ. Under the plain terms of Section 1 of the statute, it is on the amount so realized and paid over to the seizing creditor that the commission of the sheriff is calculated. Three paragraphs further from the foregoing provision of the statute, we find the following: “For collecting

money on execution or ordering seizure and sale, without either seizure or sale, two per cent on the first five hundred dollars, and one per cent on any excess of said sum.” Hence, the sheriff gets exactly the same commission when there is neither seizure nor sale. This indicates that the legislative purpose in framing this statute was to base the commission of the sheriff on the collection he might make for the benefit of the creditor, and not on the trouble or responsibilities he might incur in going through the formalities of a seizure and sale.

In considering the case from another angle it must also be observed that the property in such case is sold subject to all the privileges, hypothecations with which it may be burdened, the purchaser being compelled - only to pay the portion of the purchase price which may exceed the amount of such privileges and special mortgages. The property adjudicated remains bound for these encumbrances. It may he that at their maturity the adjudicatee might fail to discharge these obligations. In such case the property would have to be sold to satisfy these unpaid mortgages or privileges. In such an instance the sheriff would again be entitled to his commission on the proceeds realized from the sale. He would thus he entitled to a commission on the amount retained in the hands of the adjudicatee on the first sale, and on the amount received on the subsequent sale, thus getting two commissions for the execution of the same mortgage bearing on the same property.

We do not think the Legislature ever intended to confer such a right on the sheriffs. The court correctly decreed that the commission of respondent should be computed on the sum collected and applied to the writ and not on the amount of the bid or adjudication.

For the foregoing reasons and those assigned by the district judge, the judgment appealed from is affirmed with costs/


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    SCHULTZ ET AL v. BATON ROUGE ELECTRIC CO.
    (December 6, 1927. Opinion and Decree)
    (January 5, 1928. Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest — Electricity—Par. 6,8. Where the evidence shows that the electric company was not negligent in placing its wires in a house and that, although occupant of the house was injured by lightning, it did not come through the cord of the drop light because, had it done so, it would have burned the fuses and left other evidence of its passage, there cannot be any liability of the electric company for the darn-age done by the lightning.
    Appeal from the Parish of East Baton Rouge. Hon. Geo. K. Favrot, Judge.
    Action by Carl F. Schultz et al. against Baton Rouge Electric Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment for two thousand dollars, damages said to have been suffered by Mrs. Carl F. Schultz, and both she and her husband, who are plaintiffs, have answered the appeal and pray that damages be increased and allowed as prayed for in their original petition, twenty-five thousand dollars for Mrs. Schultz and ten thousand dollars for Mr. Schultz.

The. complaint of plaintiffs is that Mrs. Schultz was painfully injured and permanently disabled by an electric current which passed through her body, from her head to her feet, on the night of June 26, 1926, during a severe thunder storm, and that the electric current which thus injured her was conducted into her home thence through her body by service wires which at some time previous had been used to connect thé premises for the purpose of illumination, with defendant’s electric light plant situated in the City of Baton Rouge.

They further complain that defendant had been requested to remove entirely from their premises, the service wires which had served to connect their said premises with its electric lines strung on poles along the street; that defendant promised to comply with their request but through indifference or negligence failed to do so and thus, through the fault and negligence of defendant, the electric current which injured Mrs. Schultz was by means of said unremoved service wires conducted into their premises and caused 'the physical and permanent injuries with which Mrs. Schultz has heen afflicted.

Plaintiffs’ residence is situated at 305 Main Drive, North Highlands, a suburb just outside the municipal limits of the bity of Baton Rouge. The building was erected in the early part of 1924 by A. L. Walker, who caused it to be wired by Felder, an ■electrical contractor, for the purpose of having it lighted by electricity and to obtain the use of electric current for other domestic purposes. Walker sold the building about the month of June, 1925, and, .although it is not made clear by the record, by whom the request was made, the electric service was then discontinued, and defendant proceeded, as was its custom, to take out its electric meter and to cut out and disconnect the secondary or hot wire which had connected the premises with its main line wires strung on its poles along the street in front of the premises. The plaintiffs bought the house on June 20, 1925, and moved into it on July 4, 1925, but did not care to obtain electrical service, as they did not feel able to stand that expense.

Plaintiffs claim that they requested defendant to remove from their premises the connecting service wires. This is denied by defendant, and much testimony was adduced pro and con on that subject. A discussion of the testimony taken upon that question would be merely academical, as from the view we have taken of the case the solution of that issue would have no bearing upon the merits of the controversy ’between the parties.

The Schultz home faces south on North .Highland Drive, near the corner of Woodland Drive. The wires which at one time entered the house at its southeast corner were connected with defendant’s electric line along North Highland Drive. On the '.night of 'the accident, about 10:30 P. M., June 26, 1926, during a rain and thunder storm, Mrs. Schultz had gone to a bedroom next to the northwest corner of the house, in order to place some sacks under a door for the purpose .of keeping rain water from entering into that room between the door sill and the bottom of the door. Her son, Irving, was assisting her and her husband was standing near the door that led into that room from the front bedroom situated at the southwest corner of the house. Mrs. Schultz was standing almost directly under an electric light cord at the end of which was an empty socket, the electric light bulb having previously heen taken out of it, when suddenly a bolt of thunder emanated from the rain clouds, penetrated into the room, and both Mrs. Schultz and her son were shocked and thrown to the floor. Mr. Schultz says the whole room was aglow with electricity and his belief is that the electricity was brought into the house along the unremoved service wires, and that the current which felled Mrs. Schultz came from the electric light cord, the end of which was from eight to twelve . inches from her head.

One of defendant’s electric light poles, the second one away from plaintiff’s premises, a distance of approximately 250 feet or over from the point where the house connection had existed, was by the same stroke of lightning shattered about four feet below the crossarms attached across the top of it, and plaintiffs, believing that the electric current from the lightning which struck the shattered pole, had entered their home by the unremoved service wires which served as a conduit from the street wires, charge in substance that the failure of defendant to remove the connecting service wires was gross negligence. They therefore claim that the damage suffered by them was caused by the fault of defendant.

,.- Much, testimony was adduced as to the nature and amount of injury inflicted on Mrs. Schultz as a result of the electric shock, the damage suffered by her, as also that suffered by her husband by reason of her incapacitated physical condition, but the fundamental question to be primarily decided is whether the defendant was at fault.

The manner in which the premises of plaintiff had been disconnected from defendant’s electric street line was by removing the meter from the house, then unwrapping the insulation around the secondary or hot wire at a point near the crossarm of the pole to which it was attached, then cutting that wire and bending down the two ends so they would be about three or four inches apart. Every electrician who testified in the case said that this method of disconnection was absolutely safe and was the usual way in which disconnections were made. To have entered plaintiffs’ house by this wire, the electric current from the stroke of lightning would have had to arc or jump the gap made by the cut in the wire; it would also have had to jump another gap made by removal of the meter and still another gap across the switch which is admitted to have been open at the time. Again, it is shown that the fuses in the switch box and in the socket which was above Mrs. Schultz’ head, were intact and unmelted. Then again for the electric current to have followed the course claimed by the plaintiffs, another and a larger gap from ten to twelve inches below the empty socket of the drop light would have had to be traversed or leaped through to reach Mrs. Schultz’ head.

M. C. Smith, J. L. Pillow, J. E. Sheehan and Paul A. Burvant, reputable graduated electrical engineers and experts on that subject, all testified that it was 'impossible . for the electric current which shocked Mrs. Schultz to have entered the building, under.the proven conditions, through the course and along the lines contended for by the plaintiffs.

Electricity emanating from lightning is one of the forces of nature which man has not yet been able to control. It is conceded that little is known as to its intensity, quantity and resistance, that its units of measurement as applied to dynamic or manufactured electricity, in volts, amperes, watts and ohms, are unknown; - that it is a freakish and eccentric force and its effects often unexplainable, when compared with known results in the application of dynamic or manufactured electricity. Mr. Schultz says that his whole house was lighted by the flash of electricity. Mr. Albritton, whose home is across the street and nearly opposite that of plaintiffs, says that his house was wired for electricity, that he used electricity for lighting purposes, that on the same occasion all the fuses in his house were blown out, and that his whole house was lighted up by electricity from the same flash of lightning. It is also shown that another house, adjoining that of plaintiffs, on the same side of the street, and situated between the shattered pole and the house of plaintiffs, was also similarly affected and some damage was done therein to a screen door by the same bolt of thunder.

The most logical and reasonable explanation of these phenomena is offered by Mr. Pillow, who says that the “whole charge of electricity from a stroke of lightning does not necessarily come down in one place. It comes down split. It frequently strikes several houses or' objects in the same vicinity”. That is most probably what took place when. Mrs. Schultz was injured. It is impossible to say how the current of electricity entered the house, but the evidence is convincing as testified by all the experts who testified in this case, that it could not come through the cord of the drop light, without burning the fuses and leaving other evidence of its passage through that conduit.

The record is replete with testimony showing the great misfortune of the two' plaintiffs, good, quiet and industrious citizens of the community. But the sympathy which arises from the reading of that testimony snonld not be allowed to becloud the real issue in the case: Did this misfortune come upon plaintiffs through the fault and negligence of defendant? We are convinced, after careful consideration of all the evidence, that there was neither fault nor negligence on the part of defendant and therefore that plaintiffs’ demand should be refused.

For these reasons the judgment of the District Court is avoided and reversed and plaintiffs’ demand rejected at their costs.


text:
    No. -
    First Circuit
    MORRIS ET AL v. PRUTSMAN
    (February 15, 1928. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Surveyors and Surveys — Par. 10, 11; Prescription — Par. 20, 33.
    In view of Article 3478 of the Civil Code, the building of a fence dividing the alley-way was a fixing of the boundary by consent and a plea of prescription of ten years, where such limits were established more than ten years previous, is properly maintained.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Richard S. Morris et al. against George W. Prutsman.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    S. S. Reid, of Amite, attorney for plaintiff, appellant.
    Purser & Magruder, of Amite, attorneys for defendant, appellee.
   LECHE, J.

Plaintiffs own a lot of ground in the town of Amite, which faces east on Duncan Avenue. The defendant also owns a lot of ground facing on the same avenue, contiguous to and north of that belonging to plaintiffs. The present suit was brought in order to have the boundary line separating the two properties fixed and established in pursuance of the articles of the Civil Code, 823, et seq., under Title V. The court appointed T. A. Tycer, C. E., and parish surveyor, to make the survey, in accordance with the prayer of plaintiffs’ petition.

The defense substantially is that the properties are separated by a partition fence which has been in existence for nearly fifty years and that the proper line is shown by that fence. Defendant then pleads specially the prescriptions of ten and thirty years.

Tycer proceeded to make a survey under the order of court, and, while he was so doing, defendant employed J. P. Kemper, another civil engineer and surveyor, also to establish the boundary line in dispute.

The reports of these surveyors are in the record and they differ as to the proper location of the boundary. The correctness of each report is questioned for lack of certainty as to the proper location of the respective points from which the surveys were started.

The judgment of the District Court fixes a boundary line whose western extremity corresponds with the location of the fence, as shown on Tycer’s plat, where the northwest corner of plaintiffs’ lot and the southwest corner of defendant’s lot adjoin; said line is ordered to be projected eastward along the fence line to Duncan Avenue, but to be so projected as to eliminate the crook or offset at present existing in said fence.

The plaintiffs have appealed from the judgment.

As we understand the decree of the District Court, although no written reasons are assigned, it neither approves nor disapproves of either of the surveys and practically maintains the line presently existing, as being the true boundary, except that it orders the line to be drawn straight, the effect of which straightening will take from defendant and give plaintiffs about one or two feet more on Duncan Avenue.

Evidently that decree is based upon the plea of prescription of ten years.

The testimony in the record fails to show with certainty that the fence now separating the properties of plaintiffs and defendant, has been in existence for thirty years or more, but it does show that, in 1915, more than ten years before the present suit was filed, one of the plaintiffs, who was then a boy, together with the son of the owner (at that time) of defendant’s lot, built a fence extending from Duncan Avenue to the offset now existing as shown on Tycer’s plat. The purpose of that fence was to divide lengthwise an alleyway or driveway which was then used to enter the two properties. That entrance or alleyway was recognized as being owned to the extent of one-half by each of the owners of the adjacent properties, so that the two boys built a fence in the center thereof, and extended the fence towards the rear where the offset in the line appears on the plat.

The building of the fence, dividing the alleyway, was. a fixing of limits by consent, and the plea of prescription of ten years was for that reason properly maintained by the District Court. Opdenweyer vs. Brown, 155 La. 621, 99 So. 482.

The straightening of the line as decreed by the judgment of the District Court is a small matter of detail, is to the advantage of plaintiffs and appellants, ahd as defendant has not answered the appeal, he cannot in argument demand that the decree be amended in that regard.

Believing that the judgment appealed from is correct, it is ordered that it be affirmed.


text:
    No. -
    First Circuit
    COOK v. UNEEDUS LBR. CO.
    (February 15, 1928. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 159, 160 (j).
    Where plaintiff, an injured employee suing under Workmen’s Compensation Act No. 20 of 1914, fails to prove any connection between an ailment in his hands and fingers and the injury which he received to his head, he cannot recover compensation for disability of his hands and fingers.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge!
    Action by Charles Cook against Uneedus Lumber Company.
    There was judgment for defendant and plaintiff appealed.

      Judgment affirmed.
    Mat. J. Allen, of Amite, attorney for plaintiff, appellant.
    ' Purser & Magruder, of Amite, and J. C. Henriques, of New Orleans, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff while working for the defendant company in the Parish of Tangipahoa, defendant being a partnership composed of W. L. Houlton, C. W. DeWitte and B. L. Johnson, was struck on the forehead by the rocker arm of a hand-car on which he was riding. The blow felled him to the floor of the car and he says he was rendered unconscious for a few minutes. He was attended to by defendant’s physician and paid wages during his confinement from this injury. Subsequently he complained of stiffness of the joints of his arms and the joints of his fingers, ■ and was then sent to New Orleans for further examination and treatment. By that time, however, the local injury to his head on his forehead and back of his skull had completely disappeared.

The question in the case is whether the injury to the head, received by plaintiff on the hand-car, is the cause of the ailment from which plaintiff subsequently suffered.

In New Orleans plaintiff was examined by Dr. H.'Theodore Seymour, who is a specialist and an expert orthopedist, and who found that plaintiff was suffering from polearthritis. When asked his opinion as to the cause of this physical condition of plaintiff, he said that it came from an infection, the focus of which was in the teeth and gums of the patient, which he found in a terrible condition. He was of the opinion that the injury received by plaintiff on the hand-car had nothing to do with plaintiff’s ailment.

Dr. M. Compagnio also examined plaintiff, found him ' suffering pain in both hands and unable to close his hands. He found no injury to the frontal bone of his head or to the base of his skull, and could trace no connection between plaintiff’s rheumatic trouble and the injury received by him on the hand-car. In his opinion plaintiff’s ailment was due to some focal infection. .

Dr. Glenn J. Smith, a local physician, also testified in the case. He says that he remembers examining plaintiff (about the month of August, the blow in the hand-car having been inflicted in February or six months previously) and that he found a slight enlargement of the finger joints and hand joints of plaintiff, a condition in which he appeared unable to use his hands properly, otherwise the case was negative. He says that he could not tell the cause of this paralysis of the hands but thought, at the time, it might have had some connection with the injury received on the hand-car.

There is nothing in the testimony of Dr. Smith to discredit the opinions of Dr. Seymour and Dr. Compagnio, and thus the connection of the plaintiff’s ailment in his hands and fingers with the injury to his head, received on the hand-car, remains unproved and improbable. The only argument in favor of plaintiff’s contention is that of “post hoc ergo propter hoc” which as a rule is weak and unreliable.

The trial judge did not believe that plaintiff had made out a ease for compensation, and we agree with him.


author: MOUTON, J.

text:
    No. -
    First Circuit
    SUCCESSION OF CLOUD
    (Feb. 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Bastards and Natural Children — Par. 18; Donations — Par. 38, 41.
    In view of Civil Code Articles 202, 920, 921 and 1470, the unacknowledged, illegitimate children of a legitimate daughter cannot inherit as universal legatees from the succession of their grandmother. *

    Appeal from the . Parish of St. Tammany. Hon. Prentiss Carter, Judge.
    Succession of Leah Sarah Cloud. Opposition of Ralph Thompson, Leah Thompson, Willie Terral, Tutor for Neda and Slow Terral.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    S. W. Provensal, Slidell, attorney for plaintiff, appellee.
    L. V. Cooley, Jr., Slidell, attorney for executor, defendant' and appellant.
   MOUTON, J.

Leah Sarah Cloud made her last will in favor of Irma Ardnett April, and Alfred Henry Simmons as her universal legatees. Ardnett April and Alfred Bennett Simmons are the illegitimate children of Missouri Fields, the legitimate daughter of Leah Sarah Cloud, the testatrix, and who died prior to her mother. The money realized from the sale of the property of the estate of the testatrix is now in the possession of Frank Cloud, her tastamentary executor.

Ralph Thompson, Leah Thompson, majors, Neda and Slow Terral, minors, represented herein by Willie Terral their tutor, and admitted to be the legitimate heirs of the testatrix, are suing for the funds of the succession, claiming that Ardnett April and Bennett Simmons, the illegitimate, unacknowledged children of Missouri Fields, deceased legitimate daughter of the testatrix, can not take the property of the succession as legatees.

In the case of Daniel Barnett vs. M. D. C. Cane et als., 18 La. Ann. 590, Barnett died without legitimate descendants but leaving as heirs, legitimate brothers and sisters. He made his will in favor of Mary Alexander, his natural, unacknowledged daughter, leaving his estate to her. His brothers claimed the succession contending that Mary Alexander could not take it as legatee. The Court denied her the right to the estate under the will under the provisions of Article 920 C. C., which reads as follows: “Bastards, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more "than a mere alimony.” In commenting on that article, the Court says: “If she be prohibited from receiving as an heir, under said article, how can she take as a legatee? Would the law permit her to receive as a legatee what it refuses to her as an heir? Ardnett April and Henry Simmons, devisees under the will, are the illegitimate and unacknowledged children of Missouri Fields, and therefore bastards. C. C. 202. Being bastards, they are barred as legal heirs, so far as inheritance established by law is concerned, the law allowing them nothing more than mere alimony. And they have no greater capacity to take under dispositions mortis causa.” Succession of Vance 110 La. 760, 34 South. 767. Thus, was the doctrine enunciated in Bennett vs. Cane, 18 La. Ann. 590, confirmed in the Vance Succession, a later decision. Natural children, says Article 921 C. C., are also denied inheritance to the estate of the legitimate relations of their father or mother. In the Bennett vs. Cane, 18 La. Ann. 590, case, it will he noted that the Court said, if bastards are prohibited from receiving as heirs, will they be permitted to take as legatees? Would the law permit them to receive as legatees what it refused them as heirs ?

It will be seen from those significant remarks of the Court that their exclusion from receiving as legatees was recognized because of the legal prohibition refusing them the right of inheritance or to receive as heirs. In the Barnett case, 18 La. Ann. 590, this denial was applied to his natural unacknowledged daughter as against the claim of his lawful collateral kindred. In the instant case, these natural unacknowledged children of Missouri Fields are also debarred from the right of inheritance from the succession of the testatrix, mother of Missouri Fields. Being legally prohibited from inheritance therein, they cannot receive the succession of the, testatrix as her universal legatees.

In passing on the capacity of bastards to receive under the will, the Court in the Bennett vs. Cane, 18 La. Ann. 590 case did not give any consideration to Article C. C. 1470, which reads: “All persons may dispose or receive by donation inter vivos or mortis causa, except such as the law expressly declares incapable.” In Dalloz Codes Arnote’s, p. 362, we find the following commentary on an Article of the Code qf Napoleon, similar to ours on this subject, viz: “En general chacun est presume capable de donner et reeevoir; cette capacite ne peut etre enlevee que par un texte formel; les incapacitees ne se suppleent pas.” In referring to such incapacities we find also in Journal Du Palais the following: “Elies ne sauraient etre etendues par analize a des can non ex-pressement specifies.” Tome Deuxieme 1891; 1898 p. 448. See also to the same effect Mareade Art. 902; Vol. 2, p. 393. Thus, it will be seen from these French commentators that the right to dispose or receive is the common and general rule, and that incapacities are the exception, and must be provided for by some 'positive, specified or textual provision. In the Bennett vs. Cane, 18 La. Ann. 590, case, the Court makes no allusion to this rule as recognized in Article 1470 of our Code. In referring to the rights of bastards to receive under a will, Mareade in Volume 3, p. 404, says: “C’est uniquement vis-a-vis de ceux ci qui est posee leur incapacite de rien reeevoir au déla de ce qui leur est accorde. On ne concoit pas que le batard ne peut rien reeevoir par donation ni testament d’aucun parent de ses pere et mere. It est tres vrai que Particle 756 ne lui accorde aucun droit sur la succession legitime des parents de ses pere et mere; mais ce n’est pas une raison assurrement pour qu’ils n’en puissent pas reeevoir des liberantes.”

This author seems, therefore, to be of the opinion that though a bastard has no right of inheritance from the succession of the parents of his father and mother, this is not a reason why he. should not be the recipient of liberalities from such parents through a donation or testament. The other French commentators seem also to have taken that view of the subject. Our Courts, however, have not followed this doctrine as appears in the cases above cited.

There is, however, as we see it, sound logic and wisdom in the ruling of the Court in Bennett vs. Cane, 18 La. Ann. 590, because if the estate could be devised to the bastard to the detriment of the lawful kindred of the donor, testatrix or testator, the purpose of the law which is to prohibit him from receiving as an heir would be defeated. Whatever may have been the reason for the ruling in the cases above cited, it is now the principle which governs in cases of this character. Under that doctrine, the devisees under the will of the testatrix in the instant case are debarred from taking her estate, as her legatees under her will, as was decreed below.

Judgment affirmed.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    TEN DAY GROCER CO., INC. v. SMOOT & CO.
    (Feb. 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 375.
    Where order for devolutive appeal was obtained directing citation on the appellee, failure of sheriff to make citation will not be ground for dismissal of case in the Court of Appeal but merely cause the case to be remanded for proper citation according to law under Code of Practice Articles 581, 582, 583 and 584.
    Appeal from the District Court, Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Ten Day Grocer Co., Inc., against J. E. Smoot & Co., Inc.
    There was judgment for defendant and plaintiff appealed.
    Case remanded.
    Rownd & Warner, Hammond, attorneys for ¡plaintiff, appellant.
    Kemp & Buck, Amite, attorneys for defendant, appellee.
   ELLIOTT, J.

J. E. Smoot & Co., Inc., moves to dismiss the appeal herein on the ground that no citation has issued or been served on appellee as the law requires.

It appears from the record that plaintiff obtained an order for a suspensive and devolutive appeal on January 18th, 1927, the day the judgment was signed. This order does nqt direct that the appellee be cited. No bond appears to have been given under it, and so far as the record shows, nothing was done under it.

Another order for a devolutive appeal was obtained on November 7th, 1927. This order directs that the appellee be cited according to law, and an appeal bond was given under it, but it does not appear that the appellee was cited to appear and answer the appeal.

As the order directs that the appellee be cited and as nothing indicates that the failure to do so is chargeable to appellant, the appeal will not be dismissed, but instead, the record is ordered remanded to the lower court in order that the appellee may be cited as the law provides. C. P. Art. 581, 582, 583, 584.


author: MO'UTON, J.

text:
    No. -
    First Circuit
    HALE v. HAMILTON
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Attachment—Par. 104.
    An attachment is properly dissolved where, although it was alleged that defendant had left or intended to leave the state permanently for the purpose of defrauding his creditors, there was no proof in the record to show that he had actually done so, his leaving the state being temporary and his actions in offering to give a deed to the property showing that he did not intend to defraud.
    2. Louisiana Digest — Attachment—Par. 157, 159.
    Defendant who, in his motion for dissolution of attachment, asked that his right be reserved to sue the plaintiff for damages for its wrongful issuance, is entitled to that reservation in judgment where attachment was illegally issued.
    Appeal from Vernon Parish. Hon. Hal. A. Burgess, Judge.
    Action by Thomas P. Hale against G. C. Hamilton.
    There was judgment for defendant and •plaintiff appealed.
    Judgment affirmed.
    A. B. Cavanaugh, Leesville, attorney for plaintiff, appellant.
    S. I. Poster, Leesville, attorney for defendant, appellee.
   MO'UTON, J.

The property of the. defendant was attached by. plaintiff, and the Union Assurance Society, Ltd., debtor of defendant, was garnished.

On motion by defendant, alleging that the petition for the attachment was false and untrue, the -writ was dissolved. Plaintiff appeals.

The grounds for the attachment were that defendant was about to leave the state permanently; that he had already left it permanently and had acquired a residence in Texas; also, that he had disposed of or was about to dispose of or conceal his property rights and credits to defraud his creditors. The record is barren of any proof that defendant ever attempted to conceal or part with his property to defraud plaintiff or any one else. There is no insistence here that defendant entertained that purpose when the writ was issued.

Defendant owned a property in Anacoco, Vernon Parish, where he had been living for a period of about four years prior to the issuance of this attachment. He was owing plaintiff several promissory notes amounting to $582.95; was unsuccessful in business, and could not pay his debt. He left for Texas in quest of work, and from all indications, with a view of making money to meet his obligations. His wife and several children remained in Anacoco. He found employment in the oil fields of Beaumont where he was boarding. His wife knew where he was, and there is no proof to show that he had left this state permanently or intended to do so, unless such an inference can be drawn from the terms of a letter written by defendant to plaintiff, February 6, 1927. In that letter defendant offers to turn over his home in Anacoco in payment of his debt to plaintiff. The letter concludes as follows: “I will give you a deed and move out, you know that it’s dirt cheap. I can’t possibly duplicate it nowhere else, but I want to start even again. Let me hear from you.”

Plaintiff, when on the witness stand, was asked if there was anything in that letter to make him think “defendant was not going to p.ay him,” or to arouse his suspicions. His answer .was “no”. In answer to another question, he said the letter had not prompted him to run the attachment. There is nothing in the letter to justify the assumption that defendant intended to leave the state, or to defraud plaintiff, whose answers to the questions so propounded to him were proper, and candid.

The proof shows that there had been some discussion between plaintiff and defendant as to the latter paying a note of $23.60. Defendant told plaintiff he had paid it, but thought he had lost the receipt showing its payment. Plaintiff, thereupon -paid the note, saying, however, that he did not propose to say that defendant had not paid it. Plaintiff frankly admits that the difference which occurred between them on account of that note, caused the issuance of the attachment. It is shown that the property of defendant' in Anacoco was destroyed by fire on Saturday the 6th or 7th of February, and that the attachment was levied the Monday following. Several ¡parties, it appears, had endorsed the notes defendant had made in favor of plaintiff. It seems that one of these endorsers conceived the idea that the insurance policy on the property which had been destroyed by the fire, should be seized to protect all parties' concerned, defendant and his sureties. This was an additional cause which seems to have prompted the issuance of this writ. These causes, were not, however, made a ground for the writ, and could not have formed a basis for such a proceeding. The writ was properly dissolved.

In his motion for the dissolution of the attachment, defendant asked that his right be reserved to sue plaintiff for the recovery of damages for its wrongful issuance. In this court defendant'filed an answer to the appeal, asking for this reservation. He is entitled thereto.

It is, therefore, ordered that the judgment be affirmed, and that the right is hereby reserved to defendant, to assert such rights as he may have for the recovery of damages for the wrongful issuance of the attachment.


text:
    No. -
    First Circuit
    BROWN CARRIAGE CO., INC. v. ARMAND COREIL
    (January 5, 1928. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Mandate—Par. 73,74, 78.
    An agent has no right to modify a contract changing the delivery date from “Ahgust first” to “August first or as soon thereafter as possible”.
    2. Louisiana Digest — Sales — Par. 58; Action — Par. 10.
    When an obligation is to be performed within a specified time, and the time expires without the performance, default is not necbssary.
    3. Louisiana Digest — Sales—Par. 58.
    In a contract for the sale and delivery of goods at a future date, time is the • essence of the contract and, therefore, purchaser will not be bound to .accept or pay for goods delivered thereafter.
    Appeal from the District Court, Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Brown Carriage Company, Inc., against Armand Coreil.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Sandoz & Sandoz, of Opelousas, attorneys for plaintiff, appellant.
    J. Hugo Dore, of Ville Platte, attorney for defendant, appellee.
   ELLIOTT, J.

Brown Carriage Company, Inc., claims of Armand Coreil the sum of $750.00, on account of an alleged breach of contract. Plaintiff alleges that it shipped to the defendant on September 14th, 1926, a carload of buggies pursuant to an order given it through its representative, by defendant, on February 26th, 1926. That said shipment was to be made “On or about August 1st, or as soon thereafter as possible,” subject to cancellation up to July 1st, 1926. That as soon as the time within which the order could be cancelled passed, it proceeded to fill the order as fast as possible, but due to difficulty and delays that could not be sooner overcome, it was not able to ship until September 14th, 1926. That said Coreil then refused to accept the shipment, claiming it came too late, and that he had bought buggies elsewhere.

Plaintiff alleges that the order was timely filled; that due to defendant’s refusal to receive the buggies, it was forced to sell them to the best advantage, suffering a loss of $750.60, which it prays that the defendant be compelled to pay and make-good.

In response to a subpoena duces tecum, the plaintiff produced the order on which it bases its demand, and the same was filed in the record.

Defendant denies being indebted unto the plaintiff; he denies that he gave plaintiff the order produced in court, and alleges in his answer that he did not authorize nor direct anybody to sign such an order in his behalf. He alleges that plaintiff’s agent solicited an order from him, but that he refused to give him one, stating that he was not in the market at that time. That plaintiff’s agent then proposed that plaintiff would probably take his order upon the same terms and conditions as prior orders, whenever defendant would be ready to order; upon which, he informed plaintiff’s agent that if plaintiff would furnish him with an order blank that he would probably, later, enter the market and order from plaintiff, but under the conditions that the buggies be shipped not later than August-1st, 1926.

• That plaintiff’s agent then advised him that he would have plaintiff send him a proper contract to be entered into, and wrote and left a memorandum addressed 'to plaintiff to be attached to an order when filled out. That after waiting and not having received from plaintiff a contract to be signed, he wrote plaintiff on July 9th, 1926, requesting information as to the proposed order. That not receiving an answer nor confirmation of the receipt of his letter, he sought another market. That receiving the invoice of plaintiff’s shipment some two months after his inquiry, and some forty-five days after the proposed time of delivery had expired, and not needing the buggies, he declined to accept the shipment. That his offer to purchase was only tentative and was to be put in writing signed by him and accepted by plaintiff in duplicate, and the date of delivery was to be not later than August 1st, 1926. That the plaintiff and its agent having failed to furnish defendant with the necessary blanks, no order was given.

But in the alternative, and in the event the court found that there was a complete contract, defendant further alleged that the buggies were not to be shipped later than August 1st, 1926; that time was of the essence of the contract. That the buggies having been shipped without the consent of the defendant, and some forty-five days after the specified time had expired, the shipment was too late.

The evidence shows that on February 27th, 1926, plaintiff’s agent called on defendant in his private office at his place of business at Ville Platte, and solicited an order for buggies, and we think he gave the agent a complete order, because he himself produced and placed in the record the duplicate of a complete order in the handwriting of plaintiff’s agent, dated Ville Platte, Louisiana, February 27th, 1926, addressed to plaintiff, requesting it to ship to defendant at Ville Platte, duplicate of last car in price, terms and specifications, except no nickel hubs; ship August 1st, subject to cancellation to July 1st, signed W. H. Kirk, representative.

Defendant testifies that plaintiff’s agent wrote and left this order with him, and its agent, Mr. Kirk, admits that he did so. The defendant accepted this as an order. His acceptance of it as an order is shown by the copy of the letter which he also produced and filed in evidence, signed by him, addressed to the plaintiff, dated July 9th, 1926, and which reads as follows:

“Dear Sir:
“Have not heard from you in regard to my buggies to be shipped, August 1st, not later. Please advise.”

This letter not only shows acceptance of the order of February 27th, 1926, written and signed by W. H. Kirk and left with defendant, but after the buggies had’ been shipped, and defendant had received the invoice, he sent plaintiff a telegram bearing date, September 17th, 1926, in which he says, in line with the letter, that the shipment was to have been made on August 1st, and urges no other reason for not accepting the same.

This letter of July 9th, 1926, followed by said telegram of September 17th, 1926, shows an agreement on defendant’s part to buy a carload of buggies from the plaintiff, the duplicate of last car in price, terms and specifications, except as to nickel hubs. Shipment to be made August 1st, subject to cancellation up to July 1st.

The evidence shows that plaintiff in acting on these orders sustained a loss to the amount claimed, but we nevertheless find that the evidence does not fix liability on defendant, on account of the loss which plaintiff has sustained. The evidence shows that plaintiff required its agent to obtain and send in orders on forms furnished him for the purpose, and which were to be signed by the party ordering. Plaintiff’s agent says, that not having a blank order with him at Ville Platte at the time defendant gave him the order, he wrote the order February 27th, 1926, on defendant’s stationery and left a duplicate of it with defendant. That he then returned to Opelousas and there filled out and sent in the order which the plaintiff sued on and produced in court. This order purports to have been signed by defendant, but the evidence shows that defendant did not sign it. His name was affixed to it by plaintiff’s agent.

The order which plaintiff’s agent filled out and sent in from Opelousas, which purports to have been signed by defendant, per Kirk, and on which this suit was based, is substantially different from t'he one he wrote in defendant’s office at Ville Platte and left with him. The order sent in to the plaintiff says in regard to the time of shipment: “Please ship A. Coreil on or about August 1st, or as soon thereafter as possible.” The order which plaintiff’s agent wrote on February 27th, 1926, and left with the defendant, and on which the evidence shows the defendant acted, says for plaintiff to ship on August 1st, and says nothing about anything being done later.

Plaintiff’s officials in their testimony stress the fact that the order they received from their agent, and upon which they acted, says: “Ship on or about August 1st, or as soon thereafter as possible,” and contends that it did so. That it was delayed until September 14th, but through no fault of the plaintiff.

It is not necessary for us to decide whether the shipment on September 14th, 1926, -was'timely or not. under the order sent in by plaintiff’s agent, for the reason that the evidence does not show that defendant agreed to that order, hut that the order which he agreed to directs that shipment be made on August 1st.

Defendant’s letter and telegram and his testimony support that proposition. It is substantiated by the order written by plaintiff’s agent, a duplicate of which was left with defendant, and there is nothing to the contrary. The statement in the order of February 27th, 1926, “Ship duplicate of last car in price, terms and specifications,” does not refer to the time in which shipment was to be made. As to what plaintiff’s agent did with the duplicate of February 27th, 1926, which he took with him, the evidence is not clear.

It is sufficient that the evidence does not show that the order to ship on August 1st, 1926, was ever changed by the consent of the defendant, therefore plaintiff can not hold the defendant to the order sent in hy its agent, which says to ship on or about August 1st, or as soon thereafter as possible. Time was of the essence of the contract agreed to by the defendant. He was not called upon to place the plaintiff in default. He has a right to urge in defense that, under the law, the failure of plaintiff to ship on August 1st, 1926, released him from the obligation to accept the shipment. Shelby Mills, Inc., vs. Namie, Court of Appeal Report, Vol. 1, p. 116; Red Wing Milling Co. vs. Franciques, Court of Appeal Report, Vol. 1, p. 270.

For these reasons the judgment appealed from rejecting plaintiff’s demand is correct, and must be affirmed.


author: MOUTON, J. ELLIOTT, J.

text:
    NO. -r
    First Circuit
    DARTEZ ET ALS. v. STERLING SUGARS, INC.
    (January 5, 1928. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 158.
    One employed as a driver of a cart to haul cane who stops to help untangle the twisted line to a derrick hoist which could not operate and unload the carts, was within the scope of his employment even though he was not asked to do this work by his fellow employee who accepted his services.
    2. Louisiana Digest — Master and Servant —Par. 154, 158.
    The Employers’ Liability Act No. 20 of 1914, as amended, is essentially intended to provide insurance against all risks to which the employee may he exposed by his -employment, thus covering work done by driver of a wagon hauling cane to a steam der: rick voluntarily assisting around the derrick when such work was needed.
    3. Louisiana Digest — Master and Servant —Par. 154, 157.
    It is the occupation in which the person is employed to perform services rather than his particular duties that determines the application of the Workmen’s Compensation Act No. 20 of 1914. The hauling of cane to the derrick was part of the operation of the- factory where the finished product was made, and, therefore, the business was hazardous within the meaning of the Workmen’s Compensation Act No. 20 of 1914, as amended.
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    Action by Felix- Dartez et als. against Sterling Sugars, Inc.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Porteus R. Burke, of New Iberia, attorney for plaintiff, appellee.
    Burke & Smith, of New Iberia, attorneys for defendant, appellant.
    ELLIOTT, J., concurs for written reasons herein.
   MOUTON, J.

The defendant company operates a sugar factory near the town of Franklin, La. It cultivates sugar cane in the Parish of Iberia on the Peeble’s Plantation, as a feeder for its factory. The cane is hauled from the plantation to a derrick by drivers or teamsters, from where it is transported by railway to the factory.

Aymar Dartez was employed as a teamster by the company to haul cane to the derrick. He was killed near this derrick on December 15th, 1925. His parents brought this suit against defendant company, as dependents, to recover compensation under the Employers’ Liability Act.

The first duty of the deceased, as the driver of a wagon or as a .teamster, was to haul the cane to the derrick. After he got there he had to hook the cane in a rope or sling to have it hoisted into a car for transportation. As soon as the cane was unloaded he had to return to the field for another load. Such was the ordinary work which was required of him under his contract of employment. It is shown . that when there was an unusual number of wagons at the derrick, and cane had fallen from the wagons, the teamsters were called to help in clearing the way for the passage of the wagons, and sometimes to assist Rogers, a one-armed man, to pull the rope to lift this cane into the cars. Greig, witness for plaintiff, says that the teamsters, at times, helped to pull the cables. Peter Meyers, another of plaintiff’s witnesses, says he did all sorts of work around the derrick, except to operate the steam derrick. The witnesses for defendant say that these teamsters were never called upon to assist in the manner testified to by the witnesses above referred to. We believe, however, that the evidence justifies the conclusion that the drivers of the wagons were not restricted to the hauling of the cane to the derrick, and to hook them for hoisting into the railway cars. Their functions had been extended to other duties, at various times, as above indicated. It frequently happened that the teamsters would, of their own will or voluntarily, proffer their services around the derrick as exigencies might arise, and without regard to the character of the work performed, and it is not in the evidence that the services so proffered were ever refused. The running of the derrick in the manner stated had been going on for quite a while before the accident, and had, no doubt, received the approval of those in charge of its operations. The record shows that the derrick was operated by the engineer, a one-armed man, as hoister, and two negro boys, one aged about sixteen and the other about twelve, which probably accounts for' the necessity that arose at various times for the assistance of these teamsters. The evidence shows that Rutson Boutte was the engineer who was operating this steam derrick. It is shown that Aymar Dartez, the deceased, was in the act of assisting him in rolling a rope on the drum when his arm was caught in the cable by which he was dashed against the boiler and killed. This was caused by the act of the twelve-year-old negro boy, who, of his own volition and unexpectedly, started the engine. Boutte, the engineer, says he had not called on the deceased to help - him put the cable around the drum. The record supports this statement, as it shows that the deceased went to the assistance of Boutte without any call from him. It appears, however, that he had been helping Boutte about ten minutes before the accident occurred. Boutte says he had not asked for his help, and that he had told him to go back to his wagon. The proof shows that two parties were standing at about three feet from the point where Boutte and deceased were working to place the rope on the drum. These witnesses never heard Boutte tell deceased to return to his wagon. We have no doubt from the position they occupied, if Boutte had given any ' such order to the deceased, he would unquestionably have been heard by them, or even if he had shown any sign of displeasure because of the presence of deceased, these witnesses would have perceived it. The record shows that Boutte accepted the services of deceased withoút objection, and which were in line with the help or assistance that had been given by the teamsters in many instances for the operation of the derrick. His acceptance of the help of the deceased was equivalent to a call upon him by Boutte, and the services which were thus being rendered by Dartez, under the facts and circumstances of the case, -fell within the scope of his employment, as he was then engaged in the discharge of a function or duty, which he was authorized to undertake, and which was calculated to further, directly or indirectly, his master’s business. Myers vs. L. R. & N. Co., 140 La. 940, 74 So. 256.

In performing these services, and when killed, deceased was subjected to risks to which he was exposed by the nature of his employment. In the case of Dyer vs. Rapides Lumber Company, 154 La. 1094, 98 So. 677, deceased was killed at night in the woods in an isolated spot by unknown p'arties while he was making a fire in an engine of defendant company. The court found that the accident arose out of and in the course of his employment within the Workmen’s Compensation Statute. The court said that he had been exposed to those risks by the nature of his employment, and held the defendant company liable, remarking, in coming to that conclusion, that the statute was intended to provide insurance for the employee against such risks. “Hence,” says the court, “the statute expressly provides that the employer shall be liable even when the injury occurs through the tort of a third person. Section 7.” This doctrine was approved in Yellow Cab Co. of New Orleans vs. Jones, 156 La. 841, 101 So. 216, where the court said, for a stronger reason, the employee should obtain relief when the injury results from the tórt of a fellow employee, as the statute is essentially intended to provide insurance against all risks to which the “employee may be exposed by his employment”.

The negro boy who started the engine that caused the accident was a “water boy” for the defendant company, and a fellow employee of deceased. It was through his tortious or negligent act that Dartez lost his life. We find that the killing of the deceased was the result of an accident, “arising out of and in the course of' his employment” within the Employers’ Liability Act.

Defendant company contends that it is engaged in. the Parish of Iberia in agricultural pursuits; that the derrick was merely used to transport the cane from the plantation to its sugar factory near Franklin. Therefore, that the defendant cannot be construed as engaged in a hazardous business simply by reason of ihe fact that it was necessary to operate a steam derrick for the transportation of the cane. In the reports of the Court of Appeal, Yol. 4, p. 43, Mackey vs. Fullerton Naval Stores Company, we had occasion to pass on a similar question, in that case we said the Compensation Act does not concern itself with the question as to whether or. not the (services in which the employee happens to be engaged at the time he received an injury be hazardous or perilous. Our conclusion was based on the doctrine announced in Dewey vs. Lutcher-Moore Lbr. Co., 151 La. 672, 92 So. 273, where the court had the following to say on the subject: “It is the occupation in which the person is employed to perform services, rather than his particular duties, that determines the application of the act.” Our decision was further grounded on the case of Durette vs. Woods, 155 La. 533, 90 So. 430, where it was shown that defendant, employer of plaintiff, was engaged in the business of constructing, repairing, demolishing and the removing of oil, gas wells and derricks. Plaintiff, in that case, had nothing to do with ° the erection, repair or demolition of those gas wells or derricks. He had been employed as a teamster for the hauling of logs and timber for the construction or repair of these derricks. In referring to the duties of this teamster in the hauling by him of these logs and timber, the court says in the above case:

“Therefore, the furnishing of same and the placing of same upon the location for the well was to all intents and purposes the initiation, the beginning and a part of the construction and erection and in putting in operation of an oil well, within the •meaning of the statute.” Likewise here, the hauling of the cane to the derrick for transportation was the initiation or beginning of the system which had been adopted by defendant for the operation of its factory where the finished product was put out through its manufacturing process. The business in which defendant company was engaged was “hazardous” and it cannot escape liability on the plea thus tendered.

Judgment was properly rendered in favor of plaintiff.

CONCURRING OPINION OF

ELLIOTT, J.

Under the evidence, it was the duty of Aymar Dartez, as driver of a cart, upon arriving at the hoist with his loaded cart, to attach hooks to the load of cane, whereby the load was hoisted into the car.

The power lines leading to the drum, whereby the hoist was lifted, had become twisted and entangled, and as a result the hoist had stopped, and could not be operated to unload the carts.

It was while helping to untangle the twisted line so that the hoist could operate and unload the carts, that the plaintiff’s son was killed.

I submit these as additional reasons why Aymar Dartez was helping in the work in which he was engaged.


author: ODOM, J.

text:
    No. 3069
    Second Circuit
    SECURITIES SALES COMPANY OF LA., INC., v. C. V. BREITHAUPT PLAUCHE-LOCKE SECURITIES, INC., Intervenor
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Intervention—Par. 5; Execution — Par. 168.
    An intervenor cannot attack the validity of a sale nor complain of its defects in the suit or proceeding between the original parties nor of the form of action and at the same time claim .to be paid out of the proceeds.

      2. Louisiana Digest — Execution—Par. 168; Mortgages — Par. 189; Intervention— Par. 5.
    An intervenor who claims to be paid by preference out of the proceeds of a sale takes the suit as he finds it; he cannot attack the validity of the other mortgagee’s claim.
    3. Louisiana Digest — Execution—Par. 168; Mortgages — Par. 189.
    In order tor one mortgage creditor to aestroy the right ot another mortgage creditor m order to oDtam a prererence, ne must do so by direct action anu not uy intervention.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Securities Sales Company of Louisiana, Inc., against C. V. Breithaupt. Plauche-Locke Securities, Inc., Intervenor.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    B. T. Dawkins, W. C. Roberts, of Alexandria, attorneys for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

Plaintiff, as owner and holder of a promissory note secured by chattel mortgage on an automobile, proceeded by executory process to foreclose the mortgage. A writ of seizure and sale was issued and under said writ the sheriff seized the mortgaged property and advertised it for sale. Prior to the date of the sale, the Plauche-Locke Securities, Inc., intervened in the suit by way of Third Opposition, claiming the proceeds of the sale on the ground that it also had a chattel mortgage on said automobile seized and advertised for sale and that its mortgage was superior in rank- to that of the seizing creditor and asked that its claim be paid'out of the proceeds of the sale by preference and priority over plaintiff’s claim.

The allegations of intervenor’s petition and the copy of its chattel mortgage attached to and made a part thereof, show that its mortgage was executed and recorded more than four months subsequent to the execution and recordation of plaintiff’s mortgage.

To intervenor’s petition, plaintiff filed an exception of no cause of action, which was sustained by the lower court, and it has appealed.

OPINION

Plaintiff’s chattel mortgage, which is attached to the petition and made a part thereof, shows on its face that it was executed and signed before a notary public and two witnesses, imports a confession of judgment and bears the seal of the notary. The note executed by the debtor at the same time bears the seal and paraph of the notary before whom it and the mortgage were passed. They are both dated March 8, 1926. According to the certificate of the recorder of mortgages attached thereto, the mortgage was duly recorded in chattel mortgage book 16, page 428, on March 19th, 1926.

The mortgage being authentic in form and importing a confession of judgment, the court, upon its presentatation together with the note which it secured, ordered its foreclosure by executory procéedings upon petition of (plaintiff.

Intervenor has a chattel mortgage on the same ear, but its mortgage is dated July 24, 1926, and while the copy attached to the petition of intervention does not show that fact, it is conceded that it, too, was duly recorded in the chattel mortgage records.

Under Article 3329 of the Civil Code, mortgages rank according to the date of registry.

Therefore plaintiff’s mortgage, if it be regular and valid in all respects, is superior to that of intervenor, as it was registered first.

We are spared the time and labor of discussing in detail all the points raised in intervenor’s petition and brief, as we find that counsel has admitted, in brief, that plaintiff’s mortgage is valid.

He says:

“The validity of the mortgage as between Breithaupt (the mortgagor) and the Sales Company (the plaintiff) is not disputed, nor is their right to proceed as they did disputed, nor is the validity of the mortgage denied, but as third opponent we simply claim the proceeds of the sale.”

That point conceded, it is difficult to understand the theory upon which the intervenor claims the proceeds of the sale, in view of the fact that its petition of intervention shows that its mortgage was registered more than four months after the registry of plaintiff’s, for the Code specifically provides that mortgages take their rank according to the date of registry. Article 3329.

Counsel’s admissions, which we may say are amply supported by the pleadings and the exhibits attached, foreclose further discussion.

But if counsel’s contention and argument that there are defects in the mortgage not disclosed on its face (which argument is utterly inconsistent with an admission that it is valid) be conceded, intervenor has no standing to urge such latent defects in this proceeding. It did not set up such defects and irregularities in plaintiff’s mortgage and enjoin the sale on that account. It is in court claiming the proceeds of a sale of the mortgaged property under the foreclosure proceedings.

There is no point more thoroughly and definitely settled in our jurisprudence than this, that a party cannot attack the validity of a sale nor complain of informalities or defects in the suit or proceedings between the original parties nor of the form of action, and at the same time claim to be paid out of the proceeds.

An intervenor who claims to be paid out of the proceeds of a sale takes the suit as he finds it. Mortgage creditors who seek a preference over the proceeds of mortgaged property are not permitted to attack the validity of each other’s claims by way of third opposition. In such an action it is not the right over the thing mortgaged which is to be determined, but rather the disposition of the proceeds of the sale of the thing mortgaged, and the respective rights of the parties to such proceeds are to be determined by the priority of the rank of the mortgages.

Livaudais vs. Livaudais, 3 La. Ann. 454.

Peychaud vs. Citizens Bank, 21 La. Ann. 262.

Tarleton, Whiting & Tullis vs. Kennedy, 21 La. Ann. 500.

Boubede vs. Aymes, 29 La. Ann. 274.

Mather et als. vs. Knox, 34 La. Ann. 410.

Asher vs. Fredenstein, 19 La. Ann. 256.

Cahn vs. Ford, 42 La. Ann. 965, 8 So. 477.

Equitable Securities Co. vs. Block, 51 La. Ann. 478, 25 So. 271.

Frere vs. Mentz, 23 La. Ann. 546.

Theurer vs. Knorr, 24 La. Ann. 597.

Layman vs. Succn. of Woulfe, 136 La. 767, 67 So. 823.

Howe vs. Whited, 21 La. 495.

In Frere vs. Mentz, 23 La. Ann. 546, supra, to quote the syllabus, it was held:

“The true doctrine on this point seems to be that if one creditor wishes to destroy the right of another for the purpose of securing a preference for himself, he must do so by direct action and not by way of third opposition.”

The judgment of the lower court sustaining the exception of no cause of action is correct and is therefore affirmed with costs.


text:
    No. -
    First Circuit
    ROSENBERG & SONS, INC., v. PAPANIA
    (January 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Marriage—Par. 63, 71, 173, 175.
    The wife, having the right to be a public merchant under Article 131 of the Civil Code, is bound when she conducts business in her own name and induces innocent third parties to contract with her on her and her husband’s representations, even though the business really is that of her husband.
    Appeal from the Parish of Calcasieu. Hon. Jerry Cline, Judge.
    Action by B. Rosenberg & Sons, Inc., against Mrs. J. D. Papania.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Plauche & Plauche, of Lake Charles, attorneys for plaintiff, appellee.
    Robert R. Stone, of Lake Charles, attorney for defendant, appellant.
   LECHE, J.

The defendant, a married woman, who resides the city of Orange, State of Texas, was brought into the District Court .for the Parish of Calcasieu, in this state, by an attachment of her separate property situated in the City of Lake Charles in said Parish of Calcasieu. The plaintiff is engaged in the wholesale mercantile business in the City of New Orleans and obtained the attachment on a claim for goods and merchandise, the correctness whereof is not questioned in this court. The defense is that the claim in suit is a community debt and therefore that defendant is not personally liable for the same.

The question then presented is a mixed one of law and fact.

Defendant conducts a store in the City of Orange, Texas, under the name of Mrs. J. D. Papania. She says that her name is used because she owns property and is thereby able to command a line of credit which her husband could not obtain. She contends, however, that the business belongs to her husband and is really community property. Mrs. Papania, however, is rated by Dun and Bradst'reet as ostensible owner of the store, and both she and her husband hold her out as owner of the business. It is well known that both the Dun and Bradstreet credit ratings are largely, if not entirely, depended upon in the commerce of the country as a basis upon which credit is extended in mercantile transactions.

In the conduct of defendant’s business goods are bought and sold indifferently both by the wife and the husband, but the business is held out to the world by both of them as belonging to the wife.

According to Article 131, C. C., if the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade and, in such case, her husband is bound also, if there exists a community of property between them. She is considered as a public merchant, if she carries on a separate trade but not if she retails the merchandise belonging to the commerce carried on by her husband.

In this case, the goods, for the price of which this suit was instituted, were furnished to supply the store conducted in the separate name of the wife and the obligation that arose related to her business.

When a wife conducts business in her own name and ostensibly for her own account, and induces innocent third parties to contract with her upon the faith of her own and her husband’s representation that the business is her own, she cannot after-wards repudiate her obligation on the pretense that the business was really that of her husband. John Chaffe & Son vs. Watts, 37 La. Ann. 324.

We believe that defendant is personally liable for plaintiff’s claim and that the attachment of her separate property as an absentee should be sustained. The district judge so found. His judgment is correct and should be affirmed, and it is so ordered.


text:
    No. -
    First Circuit
    LA. ELECTRIC CO., INC., v. AZELLE MOUTON, WIFE.
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the' jury of free holders on the question of the value of land taken for right-of-way for an electric power line, being clearly correct, is affirmed.
    Appeal from the District Court, Parish of Lafayette. Hon. W. W. Bailey, Judge.
    Action by Louisiana Electric Company, Inc., against Azellie Nouton, Wife.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Mouton & Debaillon, of Lafayette; Pujo, Bell & Hardin, of Lake Charles, attorneys for plaintiff, appellee.
    St. Julian, Fournet & Mouton, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

The record, in which the present appeal was taken, was before this court on a previous appeal taken by the plaintiff from a judgment fixing the amount of damages which the defendant had sustained on account of the taking of the right of way described in the petition. Louisiana Electric Co. vs. Mouton, 5 La. App. 628, 629.

The present appeal is by the defendant and involves the value of the land taken for the purpose of erecting poles and anchors necessary in the construction of plaintiff’s power, line across defendant’s land. The value of the land required for such purposes was estimated by a number of witnesses in the vicinity, called by defendant, at all the way from 10% to 50% damages to the tract. Plaintiff called as many in rebuttal who testified that defendant’s tract of land would not be, in their opinion, depreciated in value by the taking.

The jury of freeholders visited the land in question before hearing the evidence on the subject, and then, after hearing the evidence and charge of the court, they fixed the value of the land taken at $7.00.

The defendant contends that the taking may endure for ninety-nine years. This is a possibility, but the witnesses and the jury had that question before them and after considering all that has been said on the subject, we do not feel able to say that the jury erred in fixing the value of defendant’s land, which plaintiff needs for the purpose of its power line, at the amount stated.

Judgment affirmed. Plaintiff to pay the cost in the lower court, defendant the cost of appeal.


text:
    No. -
    First Circuit
    MATTE v. MATTE
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Elections by the People — Par. 42, 66.
    Where the evidence shows that a ballot-box was kept' for several hours while in charge of a deputy sheriff in a locked room close to which slept a man who would have known if anyone had entered the room during the night, and, upon opening the box, it was found' that none of the seals had been tampered with; held, that all the time the box was within the custody of deputy sheriff and ballots should be counted as valid.
    Appeal from the Parish of Acadia. Hon. W. W. Bailey, Judge.
    Action by Pierre J. Matte against Etienne Matte.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Philip S. Pugh and Dennis T. Canaan, of Crowley, attorneys for plaintiff, appellee.
    Percy T. Ogden, of Crowley, attorney for defendant, appellant.
   ELLIOTT, J.

This contest between Pierre J. Matte and Etienne Matte involves the nomination for constable of the Third Ward of the Parish of Acadia, at the Dejnocratic Primary Election held on January 17th, 1928.

Etienne Matte was returned by the commissioners of election as having been nominated and Pierre J. Matte brought suit to have the result set aside and himself declared the nominee. His principal ground of contest is that a certain number of ballots held as invalid by the commissioners at the Adolphe Miller Box, in Precinct 2, and not counted, were good ballots as to constable and should have been counted as to that office. That said ballots being counted gave him a majority and made him the rightful nominee. The ballots were recounted by the District Court on the trial of the case and they showed that plaintiff was nominated by a majority of seven (7).

The evidence shows that Precinct 2, known as the Adolphe Miller Box, is located at the residence of Allen Laughlin, and in one of the front rooms of a house forming part of his residence. There are two houses forming his residence. They are not under the same roof nor embraced within the same walls but they are within two or three feet of each other and connected by a platform which leads from the door of one into the door of the other. The two are in fact but one residence, Mr. Laughlin and the females constituting his family sleeping in one, while Emile Miller, an elderly and unmarried brother-in-law, sleeps in the main room of the other.

This room in which Emile Miller sleeps and which is his bedroom at night, is the room in which the election was held; it forms the precinct in question.

After the election was held, the votes counted and the returns signed, the box with all the ballots in it was closed and properly sealed and left on the table in the room in question, and in the charge and custody of Allen Laughlin, deputy sheriff at that precinct. This was about half past two on the morning after the election. The commissioners then left, and Allen Laughlin, deputy sheriff, remained in custody of the box in this room on his premises. The deputy sheriff latched and hooked all the doors and windows opening into this room except one, the one that opened on the platform which led to the room in the house in which he slept with the balance of his family. The room in which the election was held was latched from the inside, and when Mr. Laughlin, the deputy sheriff, left the room in order to enter the one in which he slept, Emile Miller remained in it with the box on the table, latched the door on the inside, and went to bed in the room. Emile Miller remained in the room with the box until about five-thirty A. M. on the 18th, after which Mr. Laughlin may well be said to have had the box within his view for the balance of the day until it was called for by the commissioners and carried by them to Crowley and deposited with the clerk of court. The occupancy of the room by Emile Miller until he was awakened the next morning at half-past five, when he unlatched the door and came out, and the leaving of the box in the room until brought to Crowley, are urged by the defendant as the reason why the box should not have been opened and the ballots counted. The contention is that it was in the hands of an unauthorized person, and could have been tampered with. The trial court did not accede to this contention and held that the box could be opened and the ballots counted, and we have come to the same conclusion.

The place where the box was kept was, of course, not in the sight of Allen Laughlin, deputy sheriff, during the few hours that elapsed between the completion of the count and five-thirty on the morning of January 18th, and during which time Emile Miller used the room as a bedroom. The room in question was part of the residence of the deputy sheriff. It was fastened up from the inside, and no one on the outside could or did enter it. Emile Miller unlatched the door the next morning when he got up. The location and fastening of the room was such that nobody could have access to it except in the way stated, and entry into the room was all the time in view of the deputy sheriff, although, of course, he was not looking at it while asleep. In such a situation the box could not have been tampered with by anybody except Emile Miller, and the evidence shows that he cannot read or write, and he testifies that he did not touch the box and that nobody else did, and the evidence further shows that nobody else entered or could have entered the room. The box may not have been in the physical possession of the deputy sheriff, but it was in his possession as much as if it had been in his hands. The commissioners recognized that the fastenings and seals on the box had not been changed.

In view of these facts and circumstances we see no reason for holding that this box should - not be held to have been all the time within the custody of the deputy sheriff, and therefore it could be opened and the ballots counted as was done in the lower court.

The judgment appealed from is therefore affirmed.


text:
    No. -
    First Circuit
    CUNNINGHAM v. MITCHEL ET ALS.
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Timber—Par. 1, 3, 10.
    Where sale of timber with “fourteen top sixteen feet from the ground” is made, and some other timber is cut unintentionally, it being very hard to estimate dimensions of standing timber, there will be no judgment for damages.
    2. Louisiana Digest — Timber—Par. 7, 14; Damages — Par. 91.
    Where the evidence in suit for breach of contract fails to show the amount of loss resulting by the cutting of trees ‘ and other loss from sale of timber not included in the contract, there can be no damages awarded.
    3. Louisiana Digest — Damages—Par. 91.
    Where there is no proof of damages resulting from loss of time on account of alleged breach of contract there can be no award of damages therefor.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by George W. Cunningham against W. L. Mitehel et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Robert M. McGehee, of Hammond, attorney for plaintiff, appellant.
    Rownd & Warner, of Hammond, attorneys for defendant, appellee.
   MOUTON, J.

In May, 1926, plaintiff sold some standing timber' on á tract of land desecribed in his petition. The sale was made to W. L. Mitehel, who by the same contract transferred the timber to L. W. Prime. The contract of sale is of timber “with 14 top, 16 feet from the ground”. This description is rather vague, but it was to some extent clarified by the testimony. The complaint is that Mitehel and Prime, in violation of the terms of the contract, cut timber on the land of “every description”. An injunction was obtained by plaintiff to stop this cutting. Damages were ashed for the sum of $900.00; $275.00 for loss from sale of timber not included in the contract; $500.00 for illegal trespassing, cutting and removing of the timber; and $125.00 for loss of time and expenses.

Mitehel had nothing to do, or very little, with the cutting of this timber which the contract shows he conveyed to Prime. The latter was the one in possession, and who did the cutting under the agreement. The proof shows that Prime had a mill on the land where much of this timber was sawed. The man in charge of this sawmill testified that the logs or trees he sáwed came up to the size which was specified in the contract.

Bossell, and other witnesses, who were employed by Prime to fell the timber, testified that they tried to cut trees ranging from 16 inches down which they say was in accordance to the instructions of their employer, Prime. The agreement was that the trees cut from the land were to measure 14 top, 16 feet from the ground. Some of those cut by Prime exceeded this measurement by about 2 inches top, and. 2 inches in length. Thus, was there a small discrepancy between the size of the timber, as specified in the contract, and those of the larger dimensions, that were felled. It is shown that it is almost impossible to estimate correctly the size of standing timber, and the proof shows that when the cuttings exceeded the proportion of the trees referred to in the contract, such cuttings were not at all intentional on the part of Prime.

The evidence also fails to show what was the amount of loss that resulted to plaintiff, if any, by the cutting of the trees which exceeded by a few inches the size of those that had been transferred under the agreement. The determination of the foregoing involves the main issue presented in the case, and the evidence is altogether insufficient to sustain the demand in that respect. It also falls short of establishing with any degree of certainty that plaintiff suffered any loss from the sale of timber not included in the contract, and it is still more unsatisfactory as to expenses suffered by plaintiff or loss of time, which forms one of the items in his claim for $900.00. There is also no proof to support the alleged trespass and the damages claimed therefor.

The claim was properly denied. Judgment affirmed.