text:
    No. 2268
    Second Circuit Appeal
    HANS CARL HANSEN AND WIFE v. THE OHIO OIL COMPANY
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Master and Servant— Par. 160.
    Under the Workmen’s Compensation Act, Section 8, subsection 2 (g) of Act ■ 20 of 1914 as amended by Act 43 of 1922, where it is proven that the deceased had been away from l\is family ten years and during that time had sent them the equivalent of $30.00 as presents, the father will not be entitled to recover compensation, he not having been dependent on the deceased employee to any extent for support.
    2. Louisiana Digest — Master and Servant— Par. 160.
    Under the Workmen’s Compensation Act, Section 8, subsection 2 (g) of Act 20 of 1914 as amended by Act 43 of 1922, where the plaintiff, the father of the deceased bought a residence about a year before the son, the employee, was killed, even though the father expected the son to help him pay for it, if the son did not actually aid his father he cannot recover compensation for the death of his son.
    3. Louisiana Digest — Alimony—Par. 1.
    Under Article 229 of the Civil Code children are bound to maintain their father and mother who are in need. Where it is proven that the father and mother were not in need this Article does not apply.
    4. Louisiana Digest — Master and Servant— Par. 160.
    Under the Workmen’s Compensation Act, Section 8, subsection 2 (g) of Act 20 of 1914 as amended by Act 43 of 1922, where the father is earning a salary sufficient not only to take care of himself and family in the station in which they live in Denmark but sufficient to take care of reasonable payments on the property which he has purchased, he will not be entitled to recover compensation for the death of this son.
    Appeal from Third Judicial District Court of Louisiana, Parish of Claiborne. Hon. J. E. Reynolds, Judge.
    This .is a suit brought by the father of an employee who was instantly killed while performing services arising out of and incidental to his employment. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Fields and Blackshear, of Farmerville, and Scarborough and Carver, of Natchitoches, Huey P. Long, of Shreveport, attorneys for plaintiffs, appellees.
    Smitherman, Tucker and Mason; of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Fred Jenet, a young man about 26 years old, possibly a little older, was employed by the Ohio Oil Company as a pumper at a weekly wage of $37.50.

On the morning of October 4, 1922, he was instantly killed while performing services arising out of and incidental to his employment. He was never married and therefore left no widow or minor child or children. This suit is by his father and mother, who live in Denmark, to recover 60% of his wages for 300 weeks on the ground that they were at the time of his -death actually dependent on him for support.

The defense is that plaintiffs were not at the time of their son’s death dependent on him for support to any extent.

There was judgment in the lower court in favor of plaintiffs, from which deféndant has appealed.

OPINION

Plaintiffs, Hans Carl Hansen and his wife, Johanne Sofie Henriette Hansen, are residents of Denmark, where they have always resided. They were married in the year 1895, and of their union were born six children, the oldest of whom was Fred Jenet, who was accidentally killed while at work for defendant on October 4, 1922. Their other five children are living in Denmark. The two oldest are 25 and 24 years old, respectively, and are earning salaries, one of 3000 kronen and the other of 1500 kronen per annum, and are therefore not dependent upon their parents for support. The other three children are 15, 14 and 11 years old, respectively; are living with their parents and dependent upon them for support.

Hans Carl Hansen, the father, is 54 years old and in good health. His wife is 50 years old and is also in good health.

The father, the head of the family, is now employed and has been for many years, as a sausage maker. The testimony, which was taken by commission in Denmark, shows that he holds a responsible and important position in sausage factories there corresponding to what we term superintendent. He is what they term a “boss sausage maker.” He superintends the making of sausage in some six or seven factories and has about fifty men under him. He is not classed as a common laborer but he himself says that he is in a class by himself. He gets a much higher salary than a common laborer. He is evidently a very competent man in his line. In 1913, 1914 and 1915 he drew a salary of 1940 kronen per annum; in 1916, 1917 and 1918 his salary was 3320 kronen per annum; and in 1919 it was raised to 5000 kronen per annum, and that was his salary in October, 1922, when his son was killed. Whether his salary was increased to meet the high cost of living or whether his services were growing more valuable to his employers and on that his salary was raised, is not shown by the evidence, but we gather that he was above the average in his line and that the salary; which he was drawing was considered a| good one.

It is shown, for instance, that good carpenters draw 4500 kronen; railroad clerks and conductors 3500 kronen; brickmasons, 4000 kronen, and printers, 4000 kronen; and that other men engaged in the same line of work as plaintiff, that is, sausage makers, receive much less salary than he did. However, it is shown that in order to hold the position which the plaintiff held, it was necessary for him to live in a better residence than was necessary for common laborers, just what the added expense was for such a house as plaintiff is required to keep is not shown by the testimony.

Subparagraph (g) of paragraph 2 of Section 8 of Act 20 of 1914 provides that in case of the death of an employee:

“If there be neither widow, widower or child, then to the father or mother of the deceased employee, if actually dependent on the deceased employee to any extent for support at the time of the injury and death, 30 per centum of wages. * * *

In this case there is but one question to be determined; and that is, whether the plaintiffs, the father and mother of Fred Jenet, were, at the time of his death, actually dependent on him to any extent for support.

In order to ascertain whether or not these plaintiffs were dependent to any extent for support upon their son, it is necessary, of course, to ascertain the income of the plaintiffs and their expenses. We think that only conditions which prevailed in Denmark, where these plaintiffs lived at the time of the death of their son, are to be taken into consideration. There was considerable testimony adduced to show the difference between the cost of living in Denmark and in America at that time, and to show what the salary of the father amounted to in American money. We think all that testimony entirely irrelevant

The plaintiffs base their right of recovery upon the proposition that they were at the time of their son’s death actually dependent on him 1’or support. If they were, they should recover, of course, and we think the conditions in Denmark must be inquired into in order to ascertain whether or not as a matter of fact they were dependent upon him to any extent.

As stated, the plaintiff, that is, the father, was earning at the time of the death of the son 5000 kronen per annum.

As to the cost of living in Denmark, we have the testimony of the plaintiff and his wife and that of J. F. Malmros and M. Nissen Petersen, the two latter being residents of Denmark and well acquainted with plaintiffs and their family.

The plaintiff was asked to give a statement of the family budget as of October 4, 1922, the date on which his son was killed, showing the amount of salary he received, the amount set apart for rent, for food and for clothing, and he stated that his salary was 5000 kronen per annum; that he set apart 1600 kronen for rent, 2200 kronen for food and 400 kronen for clothing, making a total of 4200 kronen. He would, therefore, have left out of his salary 800. kronen, or about one-sixth thereof. He does not state what other expenses he had, but he undoubtedly had some.

J. F. Malmros testified that he had a wife and child and that he paid 500 kronen 'for rent, 350 kronen for clothing and 2000 kronen for food. He draws a salary of 3500 kronen per annum. He says that in that country they figure one-fifth or one-sixth of a man’s income for rent, the amount depending upon the size of the family.

M. Nissen Petersen testified that he is a printer by trade and gets a salary of 4000 kronen per annum. He pays 350 kronen for rent, 500 kronen for clothing and 2200 kronen for food. He has a wife and one child.

These latter witnesses say that plaintiff could live comfortably on the salary which he received but could not save anything.

It would therefore appear from the testimony of plaintiff and his wife and that of the other two witnesses that the parents, the plaintiffs in this case, were not, on October 4, 1922, the date of the death of their son, dependent on him for support to any extent. It would appear that his salary of 5000 kronen was sufficient to take care of all his expenses, allowing an exceedingly large estimate for rent, which he says he budgeted at 1600 kronen per year.

Common experience teaches that the items of rent, food and clothing are the principal ones in the family expense. However, there are other expenses, which, of course, have to be taken care of, such as those for light, fuel, taxes, medicine and laundry. But, as was seen, after paying, or rather after setting aside 1600 kronen for rent, 2200 kronen for food and 400 kronen for clothing, the plaintiffs had 800 kronen per annum left, which we imagine should bé sufficient to take care of the other expenses.

Mr. H. Miller, who is secretary to the Danish Consul and resides in the city of New Orleans, was called as a witness and was questioned with reference to conditions in Denmark in the year 1922. According to the testimony, a salary of 5000 kronen was not sufficient to support a family of five in October, 1922. According to his testimony, the living expenses of the plaintiffs and their family at that time would have been approximately 5500 kronen. He furthermore says that a man with a small family could not live there at that time on a salary of 4000 kronen. In another place he says that a man getting a salary of 4000 kronen arid with three children would be very poor.

We cannot attach much importance to the testimony of Mr. Miller for the reason that, according to what he states about the condition of the laboring classes there, quite a large percentage of • the laborers would be dependent on charity for support.

The testimony shows, for instance, that conductors and railway clerks receive a salary of 3500 kronen per annum;' that printers and bricklayers receive 4000 kronen per annum, and that it is only skilled laborers who receive in excess of 4000 kronen per annum.

If Mr. Miller’s testimony that the average family cannot live on less than 4000 kronen per annum is correct, then it is difficult to see how those who receive a less sum live.

In this connection Mr. Miller refers to a table which was filed in evidence showing the cost of living of a laborer’s family of five persons in July, 1922. That table shows that for food such a family would spend 1745 kronen per annum; for colthes, shoes and laundry, 587 kronen; for rent, 443 kronen; for fuel and light, 301 kronen; for taxes, subscriptions, etc., 535 kronen, and for all other expenses, 376 kronen, malting a total of 3987 kronen.

Mr. Miller, in his testimony, states that these figures are somewhat exaggerated as they are taken from tables or from schedules which are made out by the laborers themselves, who think it to their advantage to make the figures, or rather to make the estimates larger than t-heir real necessities.

Of course, we are unablé to say just what it would eost plaintiff to live a year, but taking his own estimate of his expense, and taking the estimate shown on the table above referred to, it is perfectly evident that all of his salary of 5000 kronen was not consumed in living expenses.

Taking the table above referred to as too high an estimate, let us assume that the cost of living for a family of five in Denmark in 1922 was 3750 kronen per annum. This' table includes all expenses. According to that the plaintiff would have left out of his salary 1250 kronen per year. Therefore he was not dependent upon his son to any extent for support.

But it is shown that in the year 1921, the exact date not being stated, plaintiff purchased a residence for 22,500 kronen and paid in cash on the date of the purchase 1000 kronen, leaving a debt of 21,500 kronen which he had to pay.

It is plaintiff’s contention that he was dependent upon his son for assistance to pay this debt. It is not contended by plaintiff and his wife, as witnesses, that they were dependent on the son for support, that is, so far as the family expenses were concerned. They were asked to state to what extent they were dependent on him for support and the father answered: “The debt of the property of 21,500 kronen.” Therefore, if they had not purchased this property, and if they had not incurred the debt for the property, the father could have paid all of his expenses according to the table above referred to and have left from his salary 1250 kronen' per year.

Under such conditions it could not be said, of course, that the father and mother were dependent to any extent upon the son for support at the time of his death.

But it is urged on behalf of the plaintiffs that inasmuch as they had purchased this residence and had on that account become involved in debt, they were dependent on their son to assist them in discharging this debt, even though they were not in fact dependent upon him for support.

But we do not find that plaintiffs were dependent on their son for assistance to pay for their residence. We are not informed as to how long they were given in which to pay the balance of the purchase price of the property which they bought, but from the fact that they were required to pay less than one-twentieth of the price in cash on the date of the purchase and from the further fact that plaintiff had no property prior to his purchase and therefore no additional security to give for the balance of the price, we think it reasonable to assume that credit is easy in Denmark and that the annual payments are not heavy.

Now the father is earning 5000 kronen per year. He says that he budgets 1600 kronen for rent, 2200 kronen for food, and 400 kronen for clothing, leaving 800 kronen to pay his other expenses. Since he now owns his own home, he does not have to pay rent and therefore he can apply the 1600 kronen which he would otherwise have to pay as rent as a payment on the property.

The record shows that he leases a portion of this residence for 400 kronen per year, which, added to the 1600 kronen, makes 2000 kronen at least available with which to keep up the payments on his house, assuming, of course, that the 800 kronen would pay his other expenses.

If we take the table of living expenses in Denmark in July, 1922, as being approximately correct, the plaintiff would have left from his salary the sum of 1250 kronen and an income of 400 kronen from rent, making a total of 1650 kronen per annum left out of their total income after paying all living expenses, including taxes on the property.

As stated, we are not advised as to what amount it is necessary 'for plaintiff to pay on his property each year, but it would seem that. 1650 kronen would be sufficient for that purpose. If this amount was not sufficient, they should have shown it. The burden was on them. They are found to have a considerable sum, just a little less than one-third of their income, over and above their living expenses. The^r should have accounted for that sum. They have failed to do so. If, as a matter of fact, they stood in need of help from their son, they should have shown the conditions that made that help necessary. As it is, they come before the court asserting dependence upon the sole ground that they had purchased a home on terms of credit and that they had expected their son to help pay for it. But they have not shown that they were dependent on him for such help.

If the father were an old man, in bad health, and whose strength was on the wane, and whose earning capacity is likely to decrease at an early date; or if the mother were old and out of health, it might be said that they could not reasonably expect to be able to pay for the house they had bought and therefore stood in need of help from their son. But the father is only 54 years old, in good health, with no indications, so far as the record shows, that his salary will grow less in the immediate future. He. is not a common laborer. He is a master butcher. He superintends the making of sausage in several factories and has something like fifty men- under him. There is no indication that he will lose strength at an early date or that he will lose his position. He is therefore in position, it seems to us, to be able to pay for his home without assistance.

In this connection it may be remarked that Mr. Miller, whose testimony has been referred to above, states that laborers in Denmark are not able to command good saiaries after they pass the age of 35 or 40 years. He says the tendency is to replace old men with young men. However, with reference to the plaintiff, he says he should expect to draw a salary of 5000 kronen for a number of years yet, although he does not state for how long.

Plaintiff is not a common laborer but, as stated, is placed in the class of skilled laborers, without any heavy manual labor to perform; and even if common laborers do begin to grow weak at 85 or 40 years, we see no reason to suppose that tne plaintiff will at an early date lose his earning capacity.

And regardless of what Mr. Miller says, the plaintiff and his wife do not claim for themselves that they are growing weak or that they anticipate that the head of the family will soon lose his earning capacity.

In this connection it may be remarked that of their five children two are over age, one 25 and the other 24 years old; one earning 3000 kronen and the other 1500 kronen per annum; the other three are living with their parents and range, in ages, from 11 to 15 years.

Plaintiffs testify that they expected assistance from th.eir son; that he had written them that he would help them pay for the house. .One of the other witnesses says that he saw a letter from him to his parents in which he stated that he would help them. But strange to say plaintiffs were not able to produce any of the letters in which their son had promised such support. Mrs. Pugh, a lady with whom the deceased boarded at the time of his death, testified that it was her understanding that he was helping his family, and she thought he had sent them money and was assisting them. She says she got her impression from what he said. But evidently she had misunderstood him and was under a wrong impression, because the testimony of hi§ parents shows that he had contributed absolutely nothing to their support.

Mrs. Pugh also stated that the deceased said he was going back home to help his family, and she was asked:

“You got the impression that he was going back to Denmark to live with his parents ?”

And she said:

“Going back there to make his home, I suppose,, because it was home to him. His people lived there, and he impressed me as if he was going back, just as anyone would say that they were going back to the old folks.”

While she states, in response to some questions, that he stated that he expected to .help his family, yet our interpretation of her testimony as a whole is that about all she heard him say was that he expected to go back; but we do not think it shows an intention to render his family any material aid.

Under the circumstances of this case we do not think the plaintiffs had a right to expect assistance from their son. He was about 26 years old. He had been away from his family for about ten years. During all that time he had contributed absolutely nothing towards the support of the family. During these ten years’ absence he had sent the members of the family at difieren times only 140 kronen, less than $30 in our money, and these amounts were not sent to help support the family but only as presents on birthdays and holidays.

Plaintiff bought the residence in 1921 and says that he expected at that time that his son would help him pay for it. The son was killed in October, 1922. He was a soldier and during the eighteen months that he was in the World War no allotment was made from his pay to the support of his family. There is absolutely nothing in the record to indicate that plaintiffs had any reason to expect help from their son and we do not believe that they did.

Of course, any assistance from him would have been welcomed by them, but we see no reason why they should have expected assistance under the circumstances. And, as shown' above, it is clear that they were not dependent upon him for support.

In support of their case, counsel, for plaintiffs have cited Article 229 of the Civil Code which reads as follows:

“Children are hound to maintain their father and mother and other ascendants, who are in need; . and the relatives ■ in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.’”

But, as we have seen, the parents of the deceased were not in need at the time of his death.

Counsel have also referred us to the case of Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717.

Hamilton vs. Texas Oil Co., 151 La. 692, 92 South. 301.

Heinzelman vs. Board of Commissioners, 149 La. 251, 88 South. 798.

Harris vs. Calcasieu Long Leaf Lumber Co., 149 La. 649, 89 South. 885.

All decided by the Supreme Court of this state.

And also to the cases of Hand and Wife vs. Gulf Refining Co.; and

Cauthon vs. Cypress Tank Co., 1 La. App. 100.

Both decided by this court in support of their contentions in this case.

A casual reading of these cases will disclose that no one of them was on all fours with the case at bar.

In the Gregory case, speaking of the deceased son, the court said:

“tie contributed his bone and sinew, the strength of his vigorous young manhood to the cultivation of the little farm which his father had rented. A fairly good crop was raised in 1919, the one-half of which was sufficient to meet the year’s bills for provisions and clothing, with a little left over to carry them through the winter. Young Roy was the main hand in the making and harvesting of that crop. The place was again rented for the year 1920 on the same terms. The last of November, or first of December, 1919, Roy left home with the consent of his parents to seek employment where wages were more attractive and he could furnish more assistance to his parents. Before leaving he told his father and mother and the owner of the farm that he would send to his father $35 each month out of his wages to assist them in employing a hand to take his place in the farm work for the coming year. He made the same statement to his sister with whom he was boarding. * * * He did not send any of his wages of the first month, except $5 to a younger brother, having borrowed that amount to pay his way seeking work. * * * The reputation which the young man had earned, as attested by his neighbors, exemplified in his devotion to his parents, and the faithful-discharge of his filial duty, gave his parents every reason to expect the redemption of his promise of pecuniary assistance and to look forward to such aid when the larder, filled by the fruits of his labor of the previous year, began to get low.”

In the case of Hamilton vs. Texas Oil Co., noted supra, the court said:

“The father and two sons pooled their earnings, and the same were spent in paying the family living expenses, one-half or more of the deceased, Mark Hamilton’s, earnings going to pay the grocery bills, market bills for clothing, etc., for other members of the family.”

.And, again:

“All that was earned was used for the suppoi't of the family, and notwithstanding a most searching cross-examination and inquiry into the minutest details of the family expenditures, it did not appear that they lived extravagantly or beyond »what was reasonably appropriate and necessary for their station in life.”

In the case of Heinzelman vs. Board of Commissioners, supra, the court found that the father of the deceased son was a barber owning no property but making a'salary of $100 per month; liis family con sisted of a wife, mother-in-law and five children. He did not own his own house but lived in a house with others. None of the children earned wages, and “that he was dependent on the wages of his son which were turned over to him because he needed it. That his wife had informed him that it was necessary. That she could hardly get along with $125 or $135 per month.

In the case of Harris vs. Calcasieu Long Leaf Lumber Co., 149 La. 649, 89 South. 885, cited supra, the court said, speaking of the deceased son:

“He was under 21 years of age and was the oldest of plaintiff’s seven children. The father was earning $156 per month. The deceased had been contributing approximately $44 per month to the support of the family, and to that extent the parents were dependent upon him for the family support.”

In the Cauthorn case, decided by this court, we said, in speaking of the deceased son:

“When he left home, however, he promised his father that he would assist him in paying for the 126-acre tract, and a few months before his death he sent his father $100 to help him pay the first note due on the property. The letter in which the money was sent is in evidence in the record. His father, however, having some other pressing debts to pay, used this $100, with tie consent of the holder of the note, to discharge them. The young man was killed a few months after the first note b.ecams due, and the proof shows that now two of the notes are due and unpaid, and the plaintiff testifies that he has no means of ' paying them, or the three remaining notes, or the interest or taxes. He says he relied upon his deceased son' to assist him in paying for the place and was dependent upon him to that extent.
“The testimony further ' shows that after the young man left home he sent his father $50.00 at one time, and gave $10.00 and $5.00 at other times; that he gave his father the-shoes-and hat which he wore at the time of the trial, and had given him other articles of clothing — a nice jumper, and, in the words of the plaintiff, ‘just such things as a boy would send home to his parents,’ He also gave his sister, then a minor at school in Eldorado, $20.00 and bought her books and • some clothes.”

In this case the court found that the father, on the date of the trial, was 58 years old, and that his wife was 47. The father’s health was fairly good, but he said that he could not do much more than a few days’ plowing at a time and stated that he did not have the strength and the power and was worn out just like an old piece of machinery. The testimony showed that his wife had kidney trouble but that in other respects her health was reasonably good.

In the case of Hand and Wife vs. Gulf Refining Co., also decided by this court, the court said, referring to the assistance which the deceased son had , rendered to his parents and their need thereof:

“We find that his deceased son had assisted him a short time before his death in preparing the farm for planting and cultivation that year; that he had relieved his father of the financial burden of his (the son’s) further education; that he was contributing a substantial sum to the education of a young sister, .and to that extent relieving his father of that financial burden; and that out of his wages he contributed something in the way of money or clothes to his father.”

It will be seen that the cases cited and quoted from are easily distinguished from the case at bar.

In the instant case, we find that the father is earning a salary sufficient not only to take care of himself and family in the, station in which'.they live in Denmark but sufficient to take care of reasonable payments on the property which he has purchased.

We therefore conclude that the plaintiffs in this case were not, at the date of the death., of their son,. dependent upon him to any extent for support; and further find that the plaintiffs had no right to expect assistance from their. deceased son, considering the fact that he had been away from home for about ten years and during that time had contributed absolutely nothing to their support; and that notwithstanding the fact the parents had purchased a residence in 1921 and that the son died in October, 1922, he had not contributed anything towards the payment of this debt, notwithstanding the fact that the proof shows he was earning at the time of his death $37.50 per week.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and plaintiff’s demand rejected at their costs.

REYNOLDS and CARVER, J., recused


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9015
    Orleans Appeal
    MRS. BETTY FRANKLIN v. FIRST AFRICAN BAPTIST CHURCH OF NEW ORLEANS, Appellant
    (June 22, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 108.
    The best evidence of any fact must if accessible be produced but if inaccessible the next best evidence may be received.
    ?. Louisiana Digest — Evidence, Par. 110.
    Where primary evidence is, or should be, in possession of a party who is called upon to produce it and he fails to do so, secondary evidence may be intrqdueed by his opponent and he is not in a position to complain of its unsatisfactory character.
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a suit on a promissory note.
    Judgment for plaintiff and defendant has appealed.
    Judgment affirmed.
    E. A. Parsons, attorney for plaintiff, appellee.
    B. J. Rosborough, H. W. Robinson, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, the universal legatee of Harriette Smith, sues defendant in personam upon a certain mortgage' note in the sum of $1,000.00 dated' New Orleans October 28th, 1910, payable three years after date to the order of ourselves signed and endorsed by the “First' African Baptist Church of New Orleans La. by Joseph H. Meade, Prest. Trustee Board.” and paraphed for identification with an act of mortgage passed before E. H. Parsons November 28th, 1910. The following- inscriptión appears upon the back of- the note “March 3,- 1914 payment of this note extended for five years from November 28th, 1913 First African Baptist Church of N. O. La. By J. H. Meade Pres, of Board of Trustees N. O. Mar. 3, 1914.”

This suit was filed April 11th, 1922 and the sole defense is a plea of prescription of five and ten years. There was judgment for plaintiff and defendant has appealed.

It is evident that if the purported extension of the note by J. H. Meade on March 3rd, 1914 was the valid act of the defendant corporation, the note was not prescribed at the time suit was' brought since the prescription of five years would not accrue until five years from the extended maturity of November 28th,\ 1923.' But defendant denies the validity of the extension upon the ground that J. H. Meade was not authorized to act for the Board of Trustees and that the Board of Trustees were themselves without authority to extend the note.

The Board of Trustees derive their powers from the following provision of the charter:

“The Board of Trustees shall have the management and control of the Church property and of all church affairs. It may purchase real property for account of the corporation and bind it for the price thereof, but it shall not alienate or encumber the church property without the consent of the majority of the church members competent to vote under this article; the consent of said church members when given shall be endorsed by the certificate of said church clerk, countersigned by the President of the Board of Trustees, and attested by the seal of the church, if there be one, and no other evidence of the consent of the church members shall be necessary.”

The argument is that since the Trustees have no power to alienate or encumber the church property without the consent of a majority of the church members they could not extend the note because such action amounted to an alienation. We cannot follow counsel here for it seems to us the statement of this proposition carries its own reputation.

Was Meade authorized by the Trustees?

Upon the trial of the case Meade testified that he had been President of the Board of Trustees for fourteen years and had signed the note originally with, full authority. He was asked whether the extension of the note of March 3rd, 1914 had been authorized by the board when counsel invoked the “best evidence” rule and was sustained by the court, the witness being withdrawn. Thereupon plaintiff’s counsel obtained a subpoena duces tecum for the production of the minutes of the meetings of the Board of Trustees. Defendant in response to the writ produced the minutes from January 24th, 1909 to August 13th, 1909 and from May 3rd, 1921 to January 9th, 1922 but no minutes covering the period from 1909 to 1921. In response to plaintiff’s demand for the m'issing minutes defendant counsel stated that “the return of defendant is that we have none”.

Meade was then recalled and over the renewed objection of counsel he was permitted to testify in detail concerning an alleged meeting of the Board of Trustees at which he was authorized to sign the note. Before examining this evidence we will consider counsel’s objection to its introduction.

The best evidence rule requires that “the highest degree of proof of which the case from its nature is susceptible must, if accessible, be produced”. But if the best evidence can not be produced then “the next best evidence should be admitted”. The primary evidence of what was done by the Board of Trustees in the instant case was not accessible and secondary evidence was therefore admissible. Moreover the primary evidence was or should have been, in defendant’s possession and his failure to produce it was the occasion and created the nesessity for resorting to the next best evidence. Under such circumstances defendant can not complain of the unsatisfactory character of • such evidence.

“Failure of Adverse Party to Produce Primary Evidence on Notice — a. In General. Where the primary evidence of a fact which a party desires to prove is in the possession or control of his adversary, who after being notified to produce it fails or refuses to do so, secondary evidence becomes admissible. The rule applies, although the person to whom the notice is given is not a party to the record, if it appears that he is the real party in interest and the fact that the party seeking to show the contents of the writing might have comp-lled its production by its adversary does not preclude his offering secondary evidence of its contents under the circumstances stated. A person who has failed to produce the primary evidence, and through whose fault the necessity has arisen for resorting to secondary evidence cannot complain that the latter is not of a wholly satisfactory character.”

. Corpus Juris Verbo Evidence Vol 22 p. 1038.

See also Merritt vs. Wright, Williams & Co. 19 La. Ann, 91., the syllabus of which reads as follows:

“The testimony shows that Downing, _ a merchant in Vicksburg, received from plaintiffs a draft on defendants, Wright, Wil'liams & Co., of New Orleans, and forwarded it to them with a letter written to himself; book, and,' subsequently, sent the letter-that he copied the letter into his letter-book to defendants, and they are now in possession of the letter, and the letter-book, and have failed to produce them on demand. Held that on a foundation thus broad, the plaintiffs are entitled to prove the contents of the missing letter by parol, and in connection therewith to show the copy from the letter-book.”

There was no error in admitting this testimony. Meade gives the following account of his alleged authorization:

“A. I called the board of Trustees in special meeting and read to them a letter ' that had been received from the attorney threatening a suit, and I knew that the Church had no money. At that time I called the board together, explained the sitaution to them, and at that meeting a resolution was passed and adopted by the board authorizing me, as Chairman of the Board, to take the matter up with our attorney who then was representing the Church in the person of Mr. Parsons, and his advice, after consulting him, was to renew the note, and I did that to save the Church.
“Q. Do you recall the name of the lawyer who was pressing the Church for for payment at that time?
“A. The late Mr. Pen Baldwin, and the other was an attorney from Mississippi, but I don’t remember his name. These letters were presented to the Board at that meeting and it was upon these letters that the resolution was offered to save the Church.

The court.:

"Q. Are you certain that a resolution was read and placed upon the minutes of that meeting upon that occasion?
“A. Yes, a resolution was read authorizing me, as Chariman of the Board, to save the Church and take the matter up immediately with Mr. Parsons,
“Q. You 'are certain that the resolution was made a part of the meeting at- which you were authorized to extend that note?
“A. Yes, sir.”

Mr. Parsons:

“Q. Did you take the matter up with Mr. Parsons?
‘A. Yes, immediately after the meeting.
“Q. Was he the lawyer of the Church?
“A. Yes, sir.
“Q. Did you follow his advice?
“A. Yes, sir.”

(Testimony of J. H. Meade, pp. 5-6.)

Meade was deposed as President of the Board of Trustees and was succeeded by R. O. Sanders. Sanders testifying in dedefendant’s behalf says he could not remember any meeting of the Board at 'which Meade was authorized as alleged and referring to the minutes of the board and their disappearance remarked ■ that “the minutes of the Board of Trustees has always been a matter of secondary importance”.

He was asked:

“Q. You heard Meade testify, that a meeting of the Board of Trustees was called in the latter part of February .when he was authorized to consult Mr. Parsons about this mortgage note.
“A. There was meetings, held but I never heard of any matter- with reference to Betty Franklin. There was meetings called to discusé other mortgage notes * * *".

Mr. Parsons, at that time .the attorney for the Church and now the counsel for plaintiff in this suit testified to the affect that. the Betty Franklin note was held by the late Mr. Pern Baldwin then a member of this bar. That Mr. Baldwin threatened suit and that he Pa,rsons, advised with Meade and councelled the extension of the note in order to save the Church.

There is no specific denial that Meade was authorized by the Board and he testifies positively. The circumstances corroborate him. The Church was certainly interested in extending its obligation when it could not pay it. The evidence shows that the Franklin note was secured by a second or third mortgage and suit on this note would in all probability cause the holders of the prior liens to foreclose.

We have reached the conclusion that Meade was properly authorized to extend the note. This view makes it unnecessary to consider ■ the extended argument of. counsel concerning the implied powers of executives of non-trading corporations. The plea of prescription was properly overruled.

For the reasons assigned the judgment appealed from is affirmed.


author: ODOM, J.

text:
    No. 2138
    Second Circuit Appeal
    JOSEPH L. GARNER v. GERMAIN & BOYD LUMBER COMPANY
    (June 23, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest-r — Surveyor and Surveys 1, 3, 4, 24.
    Where the result of a survey made by a surveyor appointed by the court clearly shows that the surveyor took every precaution in locating the corners, established the line in question, and the result arrived at is the same as the conclusion reached by the parish surveyor, it will be considered correct by the court.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Winnfield, Hon. J. E. Reynolds, Judge.
    This is a suit for $1900.00, the value of timber alleged to have been cut from defendant’s land. There was judgment for defendant and plaintiff appealed.
    Judgment. affirmed.
    Peters and Lyons, of Winnfield, attorneys for plaintiff, appellant.
    Pearce and Fuller, of Winnfield, attorneys for defendant, appellee.
   ODOM, J.

This is a suit for $1900, the value of timber alleged to have been cut and removed from plaintiff’s land by defendant.

Plaintiff alleged that he is the owner of east half of southeast quarter of. Section 7 and ■ the southwest quarter of Section 8, in Township 9 North Range 5 West, less the east half of the southwest quarter of the southwest quarter and the east half of and the north half of southwest quarter of northwest quarter of southwest quarter of Section 8, in said township and range; and that about September 1, 1919, defendant trespassed upon said land and cut and removed therefrom 169,000 feet of merchantable pine timber which was worth $1900.

In answer to a motion for a bill of particulars plaintiff set out that' the particular land from which the timber was removed was described as:

“A strip of land in the northeast corner of the northeast quarter of the southeast quarter, Section 7, Township 9, Range 5 West, measuring two chains east and west by twelve chains north and south, and that said defendant company cut and removed from said described tract forty-five merchantable pine trees, standing and growing thereon; that said defendant company also cut and removed one hundred and ten merchantable pine trees, standing, growing and being on the northwest quarter of the northwest quarter of the southwest quarter, Section 8, Township 9 North, Range 5 West; and that said defendant cut and removed two hundred and fifty merchantable pine trees, standing, growing and being on the east half of northwest quarter of southwest quarter, Section 8, Township 9 North, Range 5 West.’’

Defendant answered and denied that it cut or removed any timber from Section 7, but admitted it took the timber on Section 8, alleging, however, that it owned the land in Section 8 and therefore had a right to cut the timber.

The trial of the case in the District Court resulted in a judgment for defendant, rejecting plaintiff’s demand, from which he appealed.

Appellant has made no appearance in this court, through oral argument or brief.

OPINION

It appears that there developed a dispute or controversy over the line between Sections 7 and 8, and in order to determine the correct line the court on March 23, 1921, appointed N. C. Woody to establish the line in dispute.

Woody declined the appointment, and on September 29, 1921, the court appointed G. W. McKnight, a civil engineer, to establish said line.

McKnight refused to accept, and on October 20, 1921, the court appointed Bob Lovett for that purpose.

Lovett also declined, and oh January 17, 1922, the court appointed R. M. Crowson, a civil engineer, to establish the line. He •accepted the appointment, made the survey and filed his proces verbal thereof which was offered in evidence and is part of the record in this case.

The cause went to trial and on the minutes of the court we find the following entry:

“Plaintiff abandons his claim for any timber cut and removed covered by this law suit situated in Section 8, Township 9, .Range 5.”

Mr. J. N. J. Peters, Jr., attorney, represented plaintiff in the trial and dictated the above entry.

Following this minute entry there is an admission by defendant that plaintiff is the owner of the land and timber described as northeast quarter of southeast quarter of Section 7, Township 9, Range' 5 West.

On the trial of the case there was no testimony adduced with reference to 'any timber, except that which was alleged to have been removed from Section 7.

On September 25, 1923, plaintiff, through another attorney, Mr. Bethard, filed a motion setting up that the above mentioned entry, showing that he had abandoned his claim to the timber on Section 8, was entered through error and without his sanction, and asked that it be set aside.

There was testimony taken on the trial of the motion to correct the minutes, and while we find no ruling by the court it must have been overruled. The testimony, however, establishes to our satisfaction that the minute entry was correct, and that it was dictated by Mr. Peters, attorney for the plaintiff, in open court, while plaintiff was present, and that the attorney had full authority to make the minute entry.

Plaintiff formerly owned land in both Sections 7 and 8, but on December 8, 1902, he sold, by notarial act, to Maurice Quinn land in the western part of Section 8, the deed describing all of that part of the west half of the southwest quarter of Section 8, Township 9 North, Range 5 West, containing timber.

Plaintiff’s vendee sold the same land to the defendant company and it cut and removed the timber .therefrom in 1919. This fact accounts, no doubt, for plaintiff’s action in abandoning his claim for any timber cut or removed from Section 8.

Defendant cut timber up to the line between Section 7 and 8, and plaintiff contends that defendant cut over the line and cut his timber in Section 7. •

Mr. Smith, a surveyor, ran the line between these sections and, according to his survey, defendant cut and removed forty-five trees, or 17,936 feet of timber, on Section 7.

But according to an old survey made by a Mr. Melton, the parish surveyor, defendant did not cut any timber on Section 7. This is proved by a number of witnesses.

The correct line between Sections 7 and 8, therefore, became an issue. If Smith’s line is correct, defendant cut timber on plaintiff’s land; if the old line is correct, defendant cut timber only on Section 8, on land which it owned.

The court, as stated, appointed Mr. Crowson, a surveyor, to establish the line. He seems to have proceeded according to law to make the survey, and according to his survey the old line established by Melton, the one recognized by defendant, •is correct.

Mr. Crowson seems to have taken every precaution in locating the corners and establishing the line, and we think his survey is correct.

As against Smith’s survey we therefore have that of Melton, parish surveyor, and Crowson, appointed by the court.

The lower court found that plaintiff had failed to make out his case and rejected-his demand. We think that judgment' is correct and it is affirmed with costs.

REYNOLDS, J., being recused, takes no part.


text:
    No. 2426
    Second Circuit Appeal
    POLICE JURY OF WINN PARISH v. W. T HEFLIN, SHERIFF, ET AL.
    (June 30, 1925, Referred to Supreme Court)
    (See 159 La. —, 105 South. 377.)
    Appeal from Eighth- Judicial District Court of Louisiana, Parish of Winn. Hon, F. E. -Jones, Trial Judge.
    Harry Fuller, attorney for plaintiff, appellant.
    A. Leonard Allen, of Winnfield, Hawthorn & Stafford, of Alexandria, attorneys for defendants, appellees:
   The Police Jury of Winn Parish sued the sheriff and treasurer of that parish

to recover $1605.75 alleged to have been paid by the latter to the former out of the sheriff’s salary fund in the parish treasury.

From a judgment sustaining an exception of no cause of action and dismissing its suit, the Police Jury appeals to this court.

The members of the court, pursuant to Section 25 of Article VII of the Constitution of 1921 hereby certify the case to the Honorable Supreme Court for instructions in the premises.

The petition alleges:

That the $1605.75 was paid as additional expense money for the year 1924, over and above the $3500.00 salary and $4500.00 expense allowance fixed by Act No. 156 of 1920 as amended by Act No. 86 of 1924;

That it was demanded by the sheriff and paid by the treasurer on a requisition ap proved by the District Judge and by the supervisor of public accounts after the president of the police jury had refused to approve the same, because, in his judgment, it was not necessary;

That no emergency existed and such additional expense, if needed at all. was-for the performance of the usual and ordinary duties of the office;

That, in fact, said additional expense was not necessary;

That the law does not' authorize the supervisor of public accounts to decide disagreements between the District Judge and the president of the Police Jury respecting the sheriff’s expense account, except disagreements in case of emer-' gency;

That except in cases of emergency the law does not authorize either the District. Judge, the president of the Police Jury or the supervisor of public accounts to approve requisitions for additional expense money after' the expense has been in? curred but only before it has been incurred ; and

That as the expenses challenged in this case were incurred for the year 1924 and the approval of the supervisor of public 'accounts obtained February 11, 1925, such approval was unauthorized and illegal.

Upon this petition and exception this court submits the following questions:

I.

Is the supervisor of public accounts authorized to decide disagreements between the District Judge and the president of the Police Jury as to the sheriff’s need of additional expense money in the absence of an emergency?

II.

If so, the .absence of an emergency being alleged, were the judge and supervisor authorized to approve the requisition made after the expense had been incurred or could they do so only before it was incurred ?

III.

If not authorized to grant the approval after the expense was incurred, can the Police Jury sue for the amount demanded by the sheriff and paid by the treasurer on an approval, made after incurring the expense?

IV.

If so, should recovery bo had against the treasurer as well as the sheriff?

A copy of the petition and exception are annexed hereto to show more fully the claim of the plaintiff.

Respectfully submitted,

Fred M. Odom,

J. E. Reynolds,

M. H. Carver,

Judges of the Court of Appeal, Second Circuit.


author: MOUTON, J.

text:
    No. -
    First Circuit Appeal
    SUCCESSION OF JOHN BROWN OPPOSITION OF FRANKLIN HARRIS TO FINAL ACCOUNT OF C. F. TAYLOR, ADMINISTRATOR
    (April 3, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4.
    Where one, driving an automobile on a public highway, suddenly and without giving any warning, swerves his car to left, thus causing a collision with another automobile which was attempting to pass, he or his estate is responsible for the damages resulting from this negligent act.
    (Civil Code, Articles 2315, 2316. Editor’s note.)
    Appeal from the Judicial District' Court, Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge;
    This is an opposition to an account of the administrator for recognition and payment of a claim for damages to an automobile, resulting from a collision caused by the negligence of the deceased, another automobile driver.
    There was an exception of no cause of action filed by defendant, which was sustained.
    Plaintiff appealed.
    Judgment reversed.
    Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    ’ L. B. Aldrich, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

Opponent, Franklin Harris, claims the sum of $283.55 with legal interest from January 13, 1924, against the estate of John C. Brown for injury to an automobile alleged to have occurred on the date aforesaid. After alleging that at the request of John C. Brown, "deceased, he was taking him ttr Plaquemine in his auto, and that, knowing him to be an experienced driver, had' allowed him to drive the auto on his way from Port Allen to Plaquemine, Opponent makes in his petition the following allegations which are pertinent to the "issues presented for decision herein, viz.:

“Petitioner now shows that the said deceased had driven said car for about two miles, and that said car was in perfect running order, and that the said deceased endeavored to pass another car going in the same direction as petitioner’s car, both going towards the town of Plaquemine, and that the car in front, responding to the signal given by the deceased with the horn of petitioner’s car, pulled over to the right-hand side of the road, so that petitioner’s car could pass on the left-hand side. That there was plenty of room to pass on the left-hand side, but that, just as petitioner’s car came alongside of the car in front, the car in front was speeded, up, and the said deceased, instead of slowing down and keeping straight in the road, where there was no danger,suddenly and before your petitioner could interpose or give any warning, recklessly and .negligently swerved to the right- and caused petitioner’s car to turn over, throwing petitioner, .out in the road and crushing deceased under the car, the said deceased being •■injured so severely that he died on the ■ ferry boat between Port Allen and Baton Rouge.
“Your petitioner now shows' that his said automobile was wrecked through the fault, recklessness and negligence of the deceased, and. through no fault or negligence of your petitioner, and was done so quickly that your petitioner had no chance to say or do anything to prevent the..wrecking .of his automobile and the unfortunate killing of the deceased.
“Petitioner now shows that tlie damages to-his automobile and the amount expended by him in having said automobile repaired was the sum. of $283.55, and that the estate of said 'deceased and the administrator thereof owe your petitioner the said sum, together with five per cent per annum interest tliereotí from the date of the accident..”

An exception of no cause or right " of action was filed to this petition by the administrator. Thereafter, the attobhey for the administrator,filed the -following written admission: “It is admitted that all of the facts and allegations set forth in the petition of the said Franklin Harris, in opposition to the final account of the administrator, are true.”

It will be observed, in the part of the petition above reproduced, that opponent alleges that in response to the signal given by the deceased, the car "which was being driven in front was turned to the right side of the road, leaving ample room for the passage of petitioner’s car on the left side thereof; that the car of petitioner then came alongside of the front car, but that deceased, instead of slowing down and keeping straight in the road, where there was no danger, suddenly and before opponent could interpose or give any warning, recklessly and negligently swerved to the right and caused petitioner’s car to turn over. Opponent then alleges that his auto was wrecked as the result of his careless and reckless driving of the deceased. It is • evident from the ■ foregoing allegation that if the deceased had continued on his way on the left side of the road where there was ample room for him to pass, as appears from the foregoing allegation, that he would have passed ahead of the car in the front without injury or damage to opponent’s auto. This is made apparent from the facts which were clearly alleged in the petition of the opponent, and can not be said to depend on any averment or mere conclusions, either of law or fact. The petition of the opponent, therefore, shows • a cause of action ' based altogether on distinct allegations of fact. It will be also noticed that opponent in his petition alleges that deceased thus swerved to the right so quickly and suddenly "that petitioner had no time to interpose any warning or do anything to prevent the wrecking of his automobile. Such an allegation negatives the inference of contributory negligence on the part of opponent, and preserves his cause of action free from any such deduction which possibly could be urged as a bar or impediment to his recovery. Besides it is also admitted by the attorney for the estate that “all of the facts and allegations set forth in the petition of the said Franklin Harris, in his opposition to the final account of the administration, are .true”.

Not only are the facts above referred to admitted, but also the allegations of the petition. It is, it will be seen from above quotation from opponent’s petition, that the allegation is clearly set forth, that petitioner’s car was wrecked through the fault and negligence of the deceased from which resulted the damage amounting to $283.55 with legal interest from the date of the accident.

Article 2315, Civil Code reads:

“Every act of man that causes damage to another obligates ' him to whose fault it happened to repair it.”

The allegation of fact found in the petition hereinabove referred to leaves no doubt that the damage to opponent’s auto was caused by the fault of the deceased, and these facts being admitted to be true, obligates the estate of the deceased to “repair it”.

Article 2316, Civil Code, says:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence or want of skill.”

Opponent alleges that the damage was caused by the recklessness and negligence of the deceased, which necessarily implies imprudence and want of skill. This allegation was admitted to be true, also the amount averred for the damage claimed. Under the allegations of fact contained in the petition, and with this admission of its allegations as being true, we cannot see how the estate can escape liability for the amount of damages in the opposition. The judgment dismissing this opposition must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is further ordered and decreed that Franklin Harris, opponent, have judgment against the succession of John C. Brown in the sum of two hundred and eighty three and 55-100 ($283.55) dollars, with five per cent per annum interest from January 13, 1924, until paid, and that opponent be carried on the final account of said estate for that amount, and which must be accordingly amended; and that the estate be cast for the costs of this opposition.


text:
    No. -.
    First Circuit Appeal.
    LEONCE SONIAT v. VILLAGE OF KROTZ SPRINGS
    (May 5, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 142
    The Supreme Court is vested with jurisdiction of a case, ratione materias involving the illegality and unconstitutionality of a municipal ordinance.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a case involving the unconstitionality of a municipal ordinance.
    Dismissed by Court of Appeal for want of jurisdiction.
    W. A. Robertson, of Opelousas, attorney for plaintiff, appellee.
    E. V. Boagni and John W. Lewis> of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

The demand in this case is in excess of two thousand dollars and does not involve any claim for damages, for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances; nor is it a suit for compensation under any State or Federal Workmen’s Compensation law. This court has therefore no jurisdiction over this controversy, ratione materias. The judgment rendered in this case declares an ordinance of the defendant municipal corporation as being illegal and unconstitutional. From a judgment declaring such an ordinance, unconstitutional, the appeal lies to the Supreme Court which is invested with jurisdiction of such issues, and of which this court has no jurisdiction. Article 7, Section 10, Par. 4, Constitution 1921, p. 40.

For the foregoing reasons this appeal is dismissed at the cost of appellant.


text:
    No. -
    First Circuit Appeal
    SIDNEY L. CHIASSON v. BANK OF THIBODAUX AND TRUST CO.
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 185, 189, 191.
    Where one buys the business of a firm he does not thereby become liable for notes signed hy that firm unless he had specifically assumed responsibility thereon.
    2. Louisiana Digest — Banks and Banking-Par. 23.
    A bank having in its possession notes made by a firm had no authority to transfer funds deposited by the purchaser of that firm to the payment of these notes.
    3. Louisiana Digest — Compensation — Par. 2-
    No compensation takes place between a bank deposit and a debt due it by a depositor.
    4. Louisiana Digest — Guaranty—Par. 3.
    Under Art. 2278, Paragraph 2 of the- Civil Code, a promise to pay the debt of a third party must be in writing and therefore, parol proof is inadmissible.
    5. Louisiana Digest — Estoppel—Par. 46.
    Where one, having deposited in a bank receives cancelled notes of the firm which he had purchased, through the mail from the bank without any explanation, he has not thereby acquiesced in or ratified the action of the bank in charging his account with the amount of these notes even though he does not ask the hank for an explanation.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Twentieth Judicial District, Parish of Lafourche, Hon. Robt. B. Butler, Judge.
    This is a suit for damages growing out of the bank refusing to pay checks for alleged “lack of funds.”
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pugh & Pelletier, and Howell, Wortham & Howell, of Thibodaux, attorneys for plaintiff, appellee.
    Caillouet & Caillouet, of Thibodaux, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff drew two checks on defendant bank, one for $20.00, October 13, 1922, the other for $51.00, October 14, 1922. The bank refused to pay these checks for lack of funds. Plaintiff alleges he had sufficient funds in deposit with he bank upon which he issued these checks, which the bank he avers illegally and maliciously refused to pay. Plaintiff claims damages against the bank in the sum of $10,098.82, and for the sum of $96.82, the amount he claims he had in deposit with the bank when his checks were dishonored.

The court rendered judgment for plaintiff for $250.00 in damages with interest from judicial demand. In this court plaintiff asks that this amount be increased to the sum of $2000.00 which brings this case within our jurisdiction.

In paragraph .6 of plaintiff’s petition it is alleged that this amount of $96.51 which he avers • he had to his credit in the bank was constituted of the following items in deposit with the bank, made on the following 'dates: August 28, 1922,' $25.69; Sept. 20, 1922, $51.21; and Sept. 26, 1922, $35.92.

In answer thereto defendant admits- that it had these items in deposit for plaintiff but -avers that they were charged against the amount of the plaintiff and that they were credited to the bank’s account, “because, as stated ■ in the brief of counsel for defendant, the several items so charged against plaintiff’s account and placed to the credit of defendant's account, represent amounts of notes due by plaintiff to defendant, and that as each charge was made, due written notice through the mail was given to plaintiff, who acquiesced in and ratified said charges as made”. The foregoing embodies the substance of, the defense upon which the bank relies to defeat the demand of the plaintiff.

The notes which were mailed to plaintiff, after the - bank had absorbed these respective items by crediting them to its account, bore the signature of Rodriguez and McCormick. These notes were not signed or' endorsed by plaintiff and upon which he was not bound' by any written evidence. The proof shows that Rouriguez and McCormick had been in the garage business in Thibodaux, and most probably had executed these notes during the time they were in that business.

It appears, that in July, 1922, plaintiff bought out the interest of Rodriguez in the garage. In buying this interest plaintiff became a new member thereof, and the firm was thereby changed; and even if the notes had been contracted by the previous firm of Rodriguez and McCormick, plaintiff did not become liable on the notes, unless he had specifically assumed responsibility thereon, Hibernia Bank & Trust Company vs. Dresser, 132 La. 532, 61 South. 561. There, being, no proof of such, assumption, obviously, the bank was .without authority to credit its account with the items before referred to, on the assumption that, tliesp notes were due by plaintiff to the bank. Even if plaintiff had been obligated on these notes to the bank, it .had no. authority to so credit its account against plaintiff as it is well settled that no compensation takes place between a bank deposit and a debt due it by a depositor. Peoples Bank in Liquidation vs. Mississippi & Lafourche Drainage Dist., 141 La. 1009, 76 South. 179; Avery Breed vs. Purvis, Wood & Company, 7 La. Ann. 53; J. M. Seixas vs. The Citizens Bank of Louisiana, 38 La. Ann. 432; Thomas S. Morgan vs. C. C. Lathrop, 12 La. Ann. 257.

The position of the bank -is, however, that plaintiff was duly notified of these charges which had been made to the credit of the bank in which he acquiesced,, and were by him ratified. It is contended by the bank that two notes were sent by it to plaipr tiff, one for $35.00, dated May 25,. 1922, payable three months after date; and another bearing the same date for .,same amount, to be paid four months from its execution, both signed by Rodriguez and McCormick, and both made payable to the bank of Thibodaux, marked paid — that.each was accompanied by an- explanatory letter, stating that plaintiff’s account had' been charged therewith, and that the notes had been cancelled. The bank claims that another note for $25.21, subscribed by Andrew-Robinson had also been mailed to plaintiff also with a letter thereto attached. As there is no proof that this Robinson note was ever received by plaintiff, it will be eliminated from further consideration herein and our remarks will be directed 'to a discussion of the issues revolving around the two other notes hereinabove; referred to.

An. attempt was made to prove by parol testimony, that plaintiff had bound himself to pay these two 'notes. As we have before stated, plaintiff was not bound on these notes which represented the obligation of the., previous firm of Rodriguez and McCormick. Not being bound thereon by assumpsit, endorsement pr otherwise in writing, counsel for plaintiff objected to this evidence on the ground that parol proof is inadmissible to prove the promise to pay the debt of a third party. C. C. 2278. This testimony was excluded and properly. Even if considered, the preponderance of the' evidence introduced on this issue, shows that no such promise to pay these notes was made b'y plaintiff as contended for by the bank.

This preponderance of the evidence is in keeping with the natural promptings of self interest which preclude the idea that a person -would and without any apparent profit resulting to him therefrom, voluntarily assume the payment of an obligation due by another party.

We now pass to the next and last issue presented which is as to whether or not plaintiff acquiesced in the absorption of his deposit of $96.82 to the credit and account of the hank.

The proof shows that the two notes were mailed to plaintiff and were received by him. Plaintiff admits this. The bank contends that enclosed in the envelopes containing these two notes were also enclosed two letters explaining that they had been cancelled, and had been charggd to plaintiff’s account. The cashier and the stenographer of' the bank testify that these letterá were enclosed in these envelopes. Their evidence on this issue was based on the fact that it Was usually the custom of the bank to enclose such letters with notes when' so • mailed to its customers. Neither of these two witnesses would swear that they remembered in this particular' instance that-these letters had-been; enclosed with the notes-.. .

Plaintiff, as a witness, says he is certain' and positive that there were no letters with the notes.

Gaston Mire, a witness for plaintiff in his employ at the time, says, he saw plaintiff open the envelopes in which the notes were enclosed. He testifies .there were no letters. in the envelopes. ' Further, he .says, that plaintiff showed him the note and said: “Here.is a note for a Buick car. I don’t know what it is. We haven’t got no Buick motor here.” If the letters above mentioned had accompanied these notes, it is but natural to infer that plaintiff would ■ .have taken note of their contents as it was therein explained that the notes had been cancelled, and had been charged to his account. It is not to be believed he-would have passed over these explanatory letters without comment and would have remained contented with the remark he- did not know what the notes were for. Plaintiff was unquestionably not bound on these notes, and from the mere fact that' they'were received by him through the mails,’ without the explanatory letters, it can not be inferred that he was thereby imparted with .the knowledge that the bank had. charged them to his account. It is true, plaintiff made a few small deposits with the bank after this absorption of his account, but there is nothing in his continued relations with the bank' to indicate that he had in any way acquiesced in or ratified the action of the bank in thus charging his account with the amount of these notes.

The evidence shows that after the bank had turned down these checks of the plaintiff, that his credit suffered and that' he was seriously handicapped in the management of his little business. It is shown that the decrease in his business immediately followed the dishonor of his' checks, and was a result thereof. He suffered damages which the court fixed at $250.00 and which we do not find excessive.


text:
    No. 2231
    Second Circuit Appeal
    RAYVILLE STATE BANK v. MANGHAM STATE BANK ET AL.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Corporations—Par. 68.
    The general rule is that a party entitled to a transfer of stock may maintain an action for damages against the corporation where it improperly refuses to register the transfer upon the books of the corporation.
    2. Louisiana Digest — Corporations—Par. 68.
    Under Act 180 of 1904, one who is a bona fide purchaser or pledgee of stock in a corporation in which the corporation improperly refused to register the ‘ transfer can collect damages occasioned thereby.
    3. Louisiana Digest — Evidence—Par. 53, 59.
    The plaintiff who claims to be the owner of capital stock of a bank has the burden of proving that it has title to said stock.
    4. Louisiana Digest — Appeal—Par. 625.
    The finding -of the lower court that the plaintiff who was suing for damages, caused by the refusal of the bank to transfer its capital stock to it, had failed to prove that it was a “bona fide purchaser or pledgee” of the stock being clearly correct is affirmed.
    Appeal from Seventh Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    This is a suit to recover the' value of five shares of capital stock which plaintiff claims the bank refused to transfer to its name. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellant.
    Ellis and Ellis, of Rayville, and T. H. McGregor, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff brings this suit to recover of defendant, Mangham State Bank, the sum of $840.00 with 5% per annum interest thereon from judicial demand until paid; the said amount being the alleged value of five shares of the capital stock of Mangham State Bank represented by certificate No. 68.

As a cause of action, plaintiff sets out, in substance, that the said five shares of stock represented by certificate No. 68 were issued by the Mangham State Bank to W. Kline on February 20, 1913, and that on April 9, 1913, said Kline signed, in blank, a power of attorney for the transfer of said stock on the books of the corporation, and that subsequently the said Kline and one A. S. Brown became jointly indebted to the plaintiff bank and that Kline pledged the said certificate of stock as collateral to secure the payment of said indebtedness; that said indebtedness was renewed from time to time, and that at the time of the filing of this suit said Kline and said Brown are indebted to plaintiff bank for a considerable amount represented by a certain promissory note signed by A. S. Brown and endorsed by Kline dated April 16, 1920, and due December 1, 1920, and to which note is attached as collateral security the above referred to bank stock.

The plaintiff alleges that said note provides for the sale of any collateral which may be attached thereto, and’that upon the failure of said Kline and Brown to pay the note due it applied to the Mangham State Bank to have five shares of its stock transferred to petitioner for the purpose of giving credit on said note for the value thereof.

And it is further alleged that plaintiff was then informed hy the hank officials that the transfer could not he made for the reason that it had previously issued to said W. Kline, the book owner of the five shares of stock represented by certificate No. 68, a new certificate, No. 177, in lieu of certificate No. 68, which latter certificate was represented to have been lost or destroyed and advertised in a local newspaper; and that on December 22,1922, said certificate No. 177 was transferred to Mrs. Rosa B. Willis who surrendered the same and had issued to herself certificate No. 178.

Petitioner then sets up that the acts of said Kline and Mrs. Rosa B. Willis in representing that certificate No 68 had been lost or destroyed and procuring the issuance of certificate No. 177 lieu thereof were fraudulent and that said certificate No. 68 had been pledged to it and was in its possession for more than five years and that Mrs. Rosa B. Willis knew at the time she acquired said certificate of stock from Kline that the original certificate was not lost or destroyed but was in plaintiff’s possession.

Plaintiff further alleges that the Mangham State Bank had knowledge of these fraudulent acts and deeds by and between Kline and Mrs. Willis and knew that the original certificate had not been lost.

Both Kline and Mrs. Willis were made parties to the suit.

The defendant bank answered especially denying any liability- to plaintiff and setting up that certificate No. 68 was never held as collateral to the note which plaintiff alleges is due it by Brown and endorsed by Kline but that it was held as collateral to an indebtedness of Kline’s which had been paid.

It admitted that it refused to issue a certificate to plaintiff when requested to do so, and it especially alleged that before it issued certificate No. 177 it required the said W. Kline, who was the record owner thereof, and Mrs. Willis, who claimed to hold the same, to advertise the loss of the original certificate No.. 68, and that upon the failure of any one to claim the ownership thereof it issued the duplicate.

Defendant asked that Mrs. Willis and the said Kline be called in warranty and made to respond to it in ease it should be held that it is due plaintiff any amount. W. Kline answered denying that the bank stock was ever pledged to the plaintiff bank on account of the indebtedness alleged upon but, on the contrary, he alleged that said stock was left in the plaintiff bank, merely for safe-keeping and that said stock Was never pledged to plaintiff as collateral to the Kline-Brown indebtedness.

He admits that in the summer of 1912 he agreed to sell the stock to Mrs. Willis and being unable to find the certificate he caused the same to be advertised in the name of Mrs. Willis at the direction of the Mangham State Bank and that after the advertisement the bank issued certificate No. 177 which he subsequently transr ferred to Mrs. Willis.

Mrs. Willis answered alleging especially that she acquired certificate No. 178 in good faith, paying therefor $790.00, but only after the loss of the original certificate No. 68 had been advertised.

Further answering, she reiterates the allegations of Kline’s answer as to the pledge of the stock to the plaintiff bank, and she especially alleges that the plaintiff bank was aware of the advertisment of the loss of the certificate of stock, and made no claim to the stock.

The trial of the case in the lower court resulted in a judgment rejecting plaintiff’s demand and recognizing Mrs. Willis as the owner of the stock from which judgment .plaintiff has appealed.

OPINION.

i A complete history.of this case and the .various transactions with reference to. the dive , shares • of the capital stock of the .•Mangham State Bank, as between W. Kline, •the original owner thereof, and the plaintiff, and as between Kline and Mrs. 'Willis, his transferee of the stock, and as between Kline and the Mangham State Bank and Mrs. Willis and the plaintiff, is fully set forth in the above statement of pleadings.

The suit is to recover of the defendant bank the sum of $840.00, the alleged value of five shares of its capital stock.

Plaintiff is the holder, under a blank endorsement of W. Kline, of certificate No. 68 representing five shares of the capital stock of defendant bank, issued to W. Kline; claiming that said stock had been pledged to it by Kline as collateral for an- indebtedness which he was due it ■and which he failed or refused to pay, plaintiff presented said certificate to the defendant bank in the latter part of 1922 and asked that said bank cancel it and issue in lieu thereof another certificate •for a. like number of shares of its capital stock; the bank refused to to this and gave, as its reasons, the following, stated in a letter to Tobin R. Hodge, attorney for the bank, dated May 2, 1923.

. “We are" unable to accept certificate No. 68 for five shares stock, in favor of W. Kline, and issue to the Rayville State Bank a like number of shares, for the reason - that this stock was advertised in the' Richland Beacon News, as lost, and on 11-29-22 we issued to W. Kline cer. No. 177 for the said shares of stock and he, on' Dec. 22, 1922, transferred to the same to Mrs. B. R. Willis, which stock she now holds under certificate No. 178 as of last date named.”

It is. plaintiff’s contention that "it is entitled,,to stock and that defendant bank should not have reissued it to Kline, and the said bank, being custodian of its shares of stock and being" vested with the power ’and it .being its duty, to protect the interests of its stockholders must respond to plaintiff in damages on account of the injury which plaintiff suffered by reason of defendant’s failure to properly exercise its powers and perform its duties.

It is alleged and proved that defendant bank has . issued all the stock it is permitted to issüe under its charter. Therefore, if the bank is now under any obliga-’ tion to plaintiff it must respond by paying the loss sustained, as it cannot now issue stock.

There does not seem to be. any dispute as to the law applicable to the case as between the plaintiff and defendant bank.

In the case of Eisenhauer vs. New Orleans Cotton Exchange, 140 La. 574, 73 South. 685, the court quotes approvingly the following from ruling case law:

‘‘The general rule is that a party entitled to a transfer of stock may maintain an action for damages against the corporation where it improperly refuses to register the transfer upon the books of the corporation.”

And in Leurey vs, Bank of Baton Rouge, 131 La. 30, 58 South. 1022, the court said:

“A corporation, the capital stock of which is transferable only upon its books, is the custodian of the shares therein, and, being vested with the power and charged with the duty to protect the interests of the owners of such shares, it must repair any injury which they may sustain by reason of its failure properly to exercise such power and discharge such duty.”

Act 180 of 1904, page 370, provides:

“That the delivery of a stock certificate of a corporation to a bona fide purchaser or pledgee, for value, together with a written transfer of the same, or a written power of attorney to sell, assign, and transfer the same, signed by the owner of the certificate, shall be sufficient delivery to transfer .the title as against all parties; but no such transfer shall affect the right of the corporation to pay any" dividend due upon . the: stock,. - or . to treat the holder of record as the holder in fact until such transfer is recorded upon the books of the corporation, or a new certificate is issued to the person to whom it has been transferred.”

The plaintiff bank was in possession of Certificate- No: 68 for five shares of the ¡apital stock of defendant bank issued to W. Kline, endorsed on which was a written transfer in 'blank and a written power of attorney to sell, assign or transfer the samé signed by said W. Kline. This certificate'with the transfer and power of attorney was presented by plaintiff to the defendant bank with the request that the stock be transferred to it, which request ■Was refused:. Therefore if the plaintiff is á “bona fide purchaser or pledgee” of the Stock and if the defendant bank improperly refused to register this transfer it must of course respond to plaintiff in damages. The case, therefore, resolves itself into one of fact' as to whether plaintiff is or was a bona fide purchaser or pledgee of the stock and whether the defendant bank improperly refused to register the transfer in plaintiff’s favor.

The burden was, of course, on plaintiff to establish its title to the stock. According to our view of the testimony, taken as a whole, it has failed to discharge that burden.

Mrs. M. T. Brand was called as a witness for plaintiff. She testified that she was Connected with the plaintiff bank from about February 1, 1917, to December, 1923, and that' she had occupied various positions therein, among others that of cashier for about three years. She says that in her .capacity of cashier she handled all the securities belonging to the bank. She was handed a note signed by A. ,S. Brown and endorsed by W. Kline which she recognized as the property of the bank and was asked if Certificate-No. 68 of the Mangham State Bank was attached as collateral thereto and she said “To the best of my knowledge”.

She makes it plain that she has -no knowledge of any transaction whereby Kline pledged the stock as collateral. When she went into the bank in 1917 she says there was in the bank a note of Kline and Brown and she was asked:

“Now then, so-far as your personal- knowledge goes, you cannot swear that Mr. Kline e\er authorized the pledge of. certificate 68 as collateral to note 162.”

(Which note 162 is signed by A. S. Brown and endorsed by W. Kline and represents the indebtedness of Kline to the bank) and she answered:

“I just know it is listed on the notes as collateral pledged over his signature.”

Referring to the note offered in evidence, we find one dated May 1, 1918, for $5,722.15 signed by W. Kline and A. S. Brown made payable to plaintiff bank. Endorsed on the face of this note in the handwriting of the then cashier we find the following with lead pencil:

“25 Bis. cotton.
2000.00 deposit.
5 shares Mangham.
State Bank stock.”

None of the witnesses for plaintiff know when endorsement or memorandum was made or whether Kline authorized it. But Kline states positively that he did not authorize it and that it was placed thereon after he signed the note. .But it is stamped “Paid” with the bank’s stamp in May, 1920. The other note is attached to plaintiff’s petition and is dated April 16, 19.20, due December 1„ 1920, for $4,175.57. Hodge says this is a renewal note, given to take up the old note above referred to; but it ipust be noted that this latter note does not appeqr to evidence an obligation of Kline’s for it is signed by A. S. Brown and endorsed on the bank by W. Kline. This is the only live note, so far as the record discloses, held by the plaintiff bank for which Kline is in any way responsible, and on its face it does not evidence an obligation of Kline’s.

We are unable to understand how this note can be a renewal of the old note for, as said, the old note on its face evidenced a solidary obligation of Kline and Brown to the bank whereas the new note evidences Brown’s obligation to the bank endorsed by Kline.

Even if it be conceded that the bank stock was pledged as collateral to the first note, when that note was paid and a new note which shows on its face that only Brown and not Kline is the obligor, the collateral was released and could not be held as security for the new note without an agreement to that effect by Kline.

It is a significant fact that there is no notation on this note that the bank stock is pledged as collateral thereto like the notation which was found on the old note dated in 1918 and stamped paid by the bank.

As stated, this new note is dated April 16, 1920. At that time Mr. Hodge was a director in the bank and a member of the discount board, and says he was familiar with all the securities in the bank, but he does not swear that Kline ever agreed that, the bank stock be held in pledge, as collateral security for the payment of this.note.

Mr. Hodge says that he went into the bank as a director and member of the discount board in 1917 and that he found the stock attached to the Kline and Brown note;. He does not know how it became so attached. He was connected with the bank as a member of the board in 1920 when the new note was taken but he does not explain how the bank stock became attached to this new note as collateral.

We have carefully read all the testimony introduced by plaintiff and we fail to find it anywhere asserted that Kline ever agreed that this bank stock be pledged for any obligation to the plaintiff bank except a possible overdraft by him. Hodge says that he found the stock attached to the Kline-Brown ogligation but he does not know that Kline authorized the pledge. Mrs. Brand has no knowledge of any .such agreement. On the other hand, Kline swears unequivocally that he did .not pledge the stock except to secure an overdraft and that he paid this obligation to the bank and that Mr. Smith, who was then with the bank, handed him the certificate of stock which he says he then in turn handed to Mr. Etzel, the then cashier, and instructed him to place the same in his private box in the bank with his other papers, and he says he saw Etzel place it in the • box.' He testifies that that is the last time he saw the certificate and that he at no time authorized any one to remove it from the box. His testimony on this point is strongly corroborated by that of Mr. G. L. Compton, former president of the plaintiff bank.

Mr. Compton says that Kline placed the stock in the bank to secure any overdraft which he might make; and he says that he personally had that understanding with Kline which was concurred in by Mr. Smith, the attorney for the bank.

Mr. Compton left the bank in February, 1917, and he says the stock may have been left with Mr. Etzel, the cashier, as collateral to Kline’s cotton account. He is not positive about that, although he leaves the impression that he thinks that is true.

Etzel’s testimony was not taken.

Mr. Hodge says that he found the stock attached to Kline’s note when he went into the bank in 1917 and that in March, 1921, it was attached to another note and held by the bank as collateral. Mrs. Brand says it was considered collateral to the Kline note. But the fact remains that neither witness is able to swear that Kline at any time agreed to the pledge.

In view of this fact and considering the positive testimony of Kline, that he did not make a pledge of the stock except to secure an overdraft, and considering the testimony of Mr. Compton which corroborates that of Kline, we hold that plaintiff has not a pledge of the stock and is not entitled to have the defendant bank cancel it on its books and issue new stock therefor.

From the standpoint of the Mangham State Bank and Mrs. Willis, we think they both acted in entire good faith. Mrs. Willis bought the stock from Kline and paid a sound price for it. She applied to the bank through her son to have the stock transferred to her. She was then advised that the original certificate would liave to be produced or its loss accounted for. She consulted counsel and was advised to advertise the loss of the stock. The advertisement was inserted ' in the ' Richland Beacon' News, a weekly newspaper published in Rayville where the plaintiff bank is located, the advertisement appearing in six issues of that paper. This was in August and September, 1922. No one appealed and claimed the stock. There was nothing secret about her dealing with Kline or the defendant bank. We think the transaction between Kline and Mrs. Willis and between Mrs. Willis and the defendant bank are all free from taint. Mrs. Willis presented to the bank a written order from Kline to transfer the stock from him .to her. But the bank refused to do this for the reason that she did not present and- surrender the original certificate and was advised to advertise the loss of the stock. It was only after the loss of the stock had been duly advertised that the bank issued the new stock to Mrs. Willis. The bank had no knowledge that any one other than Mrs. Willis made' claim to the stock until after it had issued a new certificate to Mrs. Willis.

“Where a corporation acts in good faith and without negligence in allowing a transfer by one who appears to be the absolute owner of shares, it is not liable to one having a mere equitable title by virtue of a prior unregistered transfer or otherwise of which it had no notice.”

Leurey vs. Bank of Baton Rouge, 131, La. 30, (39), 58 South. 1022.

The lower court rejected plaintiff’s demand and recognized Mrs. Rosa B. Willis as owner of the stock in question. We see no error in the judgment and it is therefore affirmed.