author: LeBLANC, J.

text:
    No. 782
    First Circuit
    PLUMB ET AL. v. HAMMOND LANDS, INC.
    (May 5, 1931. Opinion and Decree.)
    Rownd &• Warner, of Hammond, attor; neys for plaintiffs, appellees.
    B. and M. Purser, of Amite, and Reid & Blache, of Hammond, attorneys for defendant, appellant.
   LeBLANC, J.

This case was before us on a previous occasion when it was remanded to the lower court for completion of the record. See 14 La. App. 496, 130 So. 257.

As stated in the original opinion, the controversy is over the ownership of a tract of land of approximately 80 acres which before formed part of a larger body of about 2400 acres. The defendant had called his vendor, Columbus Reid, in warranty, and the latter in turn had called on his author, J. Barney Arnold, to come and defend the title which he had warranted to him. The plaintiffs set out a chain of title dating as far back as the United States government,' and the defendant and warrantors relied on a plea of prescription of ten years with title and possession for more than that period of time. Proper offers of the title were made, but were not filed in the record. The record comes back before us with all deeds relied on by the defendant and warrantors supplied, but none furnished by the plaintiffs. As we are able, however, with the title deeds submitted, to pass on the plea of prescription, which ¡presents the only issue in the case, we will- dispose of it without further delay.

The deeds supplied in the record on behalf of the defendant and its warrantors in title conform to the offers made by them on the trial of the case. They appear to be regular in form, and are not questioned. They show a title in J. Barney Arnold, as far back as November 8, 1902, on which day he purchased a large tract containing 1,090 acres, in which the tract in dispute was included, from George E. Dunn. The 80-acre tract is then identified in various deeds from that time on to January 2, 1926, on which day it was sold and transferred by Judge Columbus Reid, who had title to it,' to the present defendant. As already stated, the deeds are not at all questioned, and the issue resolves itself into one of possession.

On question of possession, quite a bit, if not most, of the evidence relates to acts performed by George E. Dunn, a few years prior to the year ly02, when Arnold purchased from him. Dunn, however, as far as the record discloses, did not have" title to any qf the property, and may therefore be considered as having been a mere trespasser. For that reason, whatever acts of possession were shown through him can avail the defendant and these warrantors nothing.

The testimony, as we view it, does, however, show acts of possession exercised by Arnold after he had acquired title from Dunn in 1902. He states that he cut all of the timber from off the land, and, as we construe his testimony further, he hauled it to a sawmill that was being operated at the time 'by the Hammond Lumber Company. He says that this was about two or three years before he sold to Judge Reid. "We presume he refers to the sale made by him in 1914 to the Hammond Realty Company, of which Judge Reid was secretary and treasurer. Arnold’s testimony is not contradicted.

According to Judge Reid, upon the acquisition of the entire body of land by the Hammond Realty Company, boundaries were fixed and stakes put down, dividing a portion of it into twenty-acre tracts. Roads were built, and he especially refers to a road which “was run east and west which cut straight through the south of this particular 80 acres of land mentioned.” On the entire .tract, there were several farms in cultivation, and as late as 1917 or 1918 they were logging timber on it. After that, cross-tie timber was sold from off of it, and, as late as 1922 or 1923, a man by the name of Webb, who operated a woodyard at Hammond, bought and removed from it some, stove wood. Under such facts it seems clear that there was such possession that the law presumed the intention of possessing the whole body of land included in the title. Relative to the extent of possession, article 3437 of the Revised Civil Code provides as follows:

“It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that it included within the boundaries.”.

Then there is also article 3498, which reads:

“When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.”

To cite decisions sustaining the well-recognized rule of law formulated from the above article of the Revised Civil Code, that actual possession of a part of a tract of land with title to the whole and intention to possess according to. the title is possession of the whole would be merely adding unnecessary length to this opinion. Especially pertinent to the present case is the ruling to that effect laid down in the cases of Leonard v. Garrett, 128 La. 535, 54 So. 984; Eivers’ Heirs v. Rankin’s Heirs, 150 La. 4, 90 So. 419; and Haas v. Currie, 169 La. 1041, 126 So. 547.

We believe that Arnold’s testimony, which we accept as showing the cutting and delivery of timber from off the very land in controversy, coupled with those of the subsequent title holders showing actual possession of the greater portion of the larger body of land in which this tract was included, is sufficient to support the plea of te.n years’ prescription on which the defendant relies.

The plaintiffs do not appear to have exercised any acts of 'ownership or possession whatever, except the payment of taxes, which of itself is not sufficient to constitute corporeal possession. Searles v. Costillo, 12 La. Ann. 203; Chamberlain v. Abadie, 48 La. Ann. 587, 19 So. 574.

The district judge assigned no reasons for judgment, but evidently came to the conclusion that the defendant and its authors in title had not shown the possession required.to maintain the plea of ten years’ prescription acquirendi causa, as he rendered judgment in favor of the plaintiffs, recognizing them to be the owners under their' title, and ordering the cancellation of the. titles through which the defendant claims the property. He' also decreed judgment against Columbus Reid and against J. Barney Arnold on the calls in warranty made on them, our consideration of the testimony, of course, leads to a different result, and it follows that the judgment will have to be reversed.

It is therefore ordered that the judgment herein rendered by the district court be, and the same is hereby, set'aside, annulled, and reversed, and it is now ordered that there be judgment in favor of the defendant, Hammond Lands, Inc., and in favor of Columbus Reid and J. Barney Arnold, both called in warranty, sustaining the pleas of prescription of ten years filed by them, and rejecting the demands of the plaintiffs at their cost in Jjoth courts.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 717
    First Circuit
    PLUMLEE v. CALCASIEU SULPHATE PAPER CO.
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)

      Julius T. Long, 'of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   ELLIOTT, J.

Randolph Plumlee, an employee of Calcasieu Sulphate Paper Company, Inc., while performing services for the defendant, arising out of and incidental to his employment, was severely injured. The injury is alleged to have occurred in catching a heavy roll of paper, falling, or about to fall, in defendant’s paper mill on August 17, 1928. Plaintiff alleges a number of injuries and disabilities sustained, all very serious, resulting from said accident. Those in support qf which plaintiff testified are, injury to the nerves, ligaments about the abdomen, injuries to the spinal column and hips, the bones and joints of the spine and hips, hernia in both right and left sides, constant pain and suffering and weakness in the hernial regions, to the extent that he can hardly get about or out of bed; that on or about October 2, 1928; defendant had a physician to perform an operation upon him for the bernia on his right side; that there is constant pain in the area where the operation was performed, etc.

He alleges that he was being paid by defendant at the time of the accident a daily wage of $3 a day, or $18 a week; that said injury received in defendant’s service has produced in him a permanent total disability to do work of any reasonable character. He claims of defendant, compensation at the rate of $11.70 per, week for a" period of 400" weeks; that de7 fendant paid him part of the compensation due him for 18 weeks; and then quit, refusing to make any further payments.

Defendant in the first part of its answer denies that plaintiff was employed by it and injured in its service, but mis uenial is followed by admissions in its answer that it became aware that plaintiff had sustained a hernia as alleged in article 5 of his petition. Defendant further alleges in its answer that on October 2, 1928, it had plaintiff operated on by its physician for hernia on the right side, and had paid plaintiff compensation for 19 5/6 weeks at the rate of $9.75 per week on said account; that plaintiff had entirely recovered from said operation, and prayed that his demand be rejected.

From a judgment rejecting his demand, the plaintiff appealed.

The averments in defendant’s answer amount to an admission that the plaintiff Plumlee was by it employed to work in its paper factory, and while so engaged accidentally sustained a hernia on the right side of his hernial region; that defendant had him operated qn, for said hernia, by its physician, and paid him compensation on said account for 19 5/6 weeks, at the rate of $9.75 per week. Defendant avers that plaintiff has recovered from said operation. All the other averments in plaintiff’s petition are denied.

Defendant’s answering admission restricts the dispute to the question whether plaintiff received, as a result of the accident mentioned, a hernia on the left side of his hernial region, injury to the muscles, nerves, and ligaments of his abdomen, in his spinal column and hips, to the bones and joints of his spine and hips, and suffers pain, discomfort, and weakness in his left hernial region to the extent that he can hardly get about or out of bed, producing in him a permanent total disability to do .work of any reasonable character. The amount of compensation, if plaintiff is entitled to anything further than the amount paid him, is also a mat-/ ter of dispute.

Plaintiff alleges that he was being paid at the time of his injury a weekly wage of $18 per week. On the trial he testified that he was receiving 25 cents an hour and working thirteen hours a day. If this was true, and plaintiff worked six days a week, he was in fact being paid more than he claims to have been getting, but we hold that he is bound by the averments in his sworn petition.

Plaintiff, speaking of the time he was in the hospital and in charge of defendant’s physician, says:

“In my right side there was a bump and my left side was hurting me and the doctor told me, if I would be real quiet and lie on my back and elevate my feet, he didn’t think they would have to operate on my left side.
“Q. Who told you that?
“A. Dr. Allums.”

This testimony was given by the plaintiff in open court on the trial of the case September 23, 1929. Dr. Allums’ testimony had been taken in Shreveport on September 19, 1929, and was offered in evidence by the plaintiff in opening the trial. Dr. Allums testified that Dr. Mangum was in charge of the hospital in which the (plaintiff was operated on, and that he (Allums) had been plaintiff’s regular family physician, and had known plaintiff for 3 or 4 years; that he operated on plaintiff for hernia, he was not absolutely sure that it was on the right side, but thought it was on the right side; that plaintiff had no other physical trouble that he knew of, except some shin ulcers; that plaintiff did not complain of any other physical disability or injuries at the time, and he did not treat him for any other.

“Q. Did you know of his ever having any other physical disability besides this hernia?
“A. I don’t recall any.
“Q. Did he ever complain to you of the back injury or of the nerves?
“A. He did not.”

Dr. Allums’ testimony having been taken before the trial, this testimony of the plaintiff as to his condition in the hospital while under defendant’s phsyician’s care, “In my right side there was a bump and my left side was hurting me and the doctor told me, if I would be real quiet and lie on my back and elevate my feet that he did not think they would have to operate on my left side,” given by the plaintiff while putting, his case before the court in chief, called for contradiction on the part of the defendant, if untrue. Because, if the statement was true, then defendant’s physician, Dr. Allums, was well aware that there was trouble in plaintiff’s left hernial region at the time he was in the hospital, regarded it as an injury sustained in the same way that the hernia for which he was operated on was produced, discussed the matter with the plaintiff, and advised him as to the course to (pursue in an effort to avert,, an operation on account of same. Dr. Allums' testimony, which had been offered in evidence by the plaintiff at the time he made this statement, cannot be regarded as a denial of the truth of plaintiff’s quoted statement, because Dr. Allums did not testify with reference to such a matter. Plaintiff made the statement at a time, when, if untrue, defendant could have called on the court for time in which to take the testimony of Dr. Allums for the purpose of showing that it was, but no such request or effort was made to show by Dr. Allums that the conversation did not take place. Plaintiff’s testimony on the subject is supported by the testimony of Dr. Cassidy, taken at Shreveport at the same time that of Dr. Allums was taken and introduced in evidence at the commencement of the trial. Dr. Cassidy, on the staff of the Charity Hospital at Shreveport, examined plaintiff on February 27, 1929, some .6 or 7 months previous to the trial of the case.

The testimony of Dr. Cassidy is not so much in the form of an opinion as it is the ¡positive assertion of physical facts found. He says that, at the time he examined the plaintiff, he found his left hernial ring slightly dilated; that the situation there was not normal, describing the condition as an incomplete hernia, capable of producing the pain and general disability of which the plaintiff complains.' His testimony lends support to plaintiff’s testimony that his condition, found to exist there, results from, and has existed since, the accident which produced the hernia in his right side.

Dr. Hargrove examined plaintiff on the day of the trial at the same time as was done by Drs. Mangum and Rand. Dr. Hargrove testified to finding a condition in plaintiff’s left hernial region that was not normal, describing same as an incomplete hernia, the injury capable of producing the pain and weakness of which plaintiff complains. Drs. Cassidy and Hargrove examined plaintiff at different times, and did not hear each other testify, but their findings are almost exactly alike. Dr. Hargrove’s testimony lends support to plaintiff’s testimony' that his condition found to exist there results from, and has existed since, the accident which produced the hernia in his right side.

Dr. Mangum, referring to the time when plaintiff was brought to the hospital, says:

“Q. What did he come to the hospital for?
“A. With a pain in his sidie and I examined him and fo.und a hernia on his right side.
“Q. At that time did you examine his left side ?
“A. Yes, sir.
“Q. Did you find a hernia there?
“A. No, sir.
“Q. Did he complain of any other injuries then?
“A. No, sir.”

He then testified that he had examined plaintiff on the day of the trial for a slight hernia on his left side and did not find any. He gave it as his opinion that plaintiff did not have an inguinal hernia on either side. He found no other injuries, testified that plaintiff had recovered from the, operation which had been performed, and that he knew of no reason why .he should not be engaged in manual labor. Dr. Rand examined plaintiff on the day of the trial. He had had large experience with hernia. He says, referring to his finding in plaintiff’s left hernial region, “that the left side of the ring was about normal in size. I do not think any hernia exists.” He found no injuries, and considered plaintiff able to perform manual labor.

As Drs. Mangum and Rand gave their testimony after that of Drs. Cassidy and Hargrove had been introduced, and do not directly contradict the findings of the latter that plaintiff’s condition in the left hernial region 's not normal, and that plaintiff has an incomplete hernia there, capable of producing the pain and weakness of which he complains, a demarcating line exists between the testimony of Drs. Allums, Mangum, and Rand on one side and that of Drs. Hargrove and Cassidy on the other in the matter of their findings.

If Drs. Mangum and Rand had intended to contradict Drs. Cassidy and Hargrove in the matter of their findings that plaintiff’s condition in his left hernial region was not normal, that he had an incompíete hernia, which might develop into a hernia, and which in its present state was capable of causing him the pain and weakness of' which he complained,' as they followed them on the stand, it seems to us that the contradiction would have been stated in explicit and pointed terms. As it was not done, it is a reasonable assumption that no real difference existed between them in regard to the existing condition in plaintiff’s left hernial region. It appears, from the testimony on the subject, that Drs. Allums, Mangum, and Rand can in fact say that under their testimony, the condition existing in plaintiff’s left hernial region as testified to by Drs. Cassidy and Hargrove is not inconsistent with their findings that no hernia exists there. Therefore, taking the testimony as a whole and giving to it all the effect which it should justly receive in the case, it seems to us that’the plaintiff has established his claim to injury in his left hernial region and to pain and weakness there, resulting from the accidental injury alleged in his petition, with the certainty required by law.

The law Act No. 20 of 1914, sec. 18, subd. 4 (amended by Act No. 85 of 1926) provides that:

“All findings of the fact must be based upon competent evidence, and all compem. sation payments provided for in this act, shall mean and be defined to be for injuries and only such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.”

Section 38 (amended Act No. 38 of 1918) contains further provisions defining the meaning of the word “accident” as used in the Employers’ Liability Act. The proof in our opinion satisfies these requirements. A man must be regarded as disabled from performing manual labor of any reasonable kind, sufficient to earn his living, who suffers pain and weakness at all times, such as we conclude from the evidence that the plaintiff suffers and feels. He is therefore entitled to compensation during the period of his disability, not, however, beyond three hundred weeks. The evidence supports the claim of the plaintiff that he was earning at the time of his injury a weekly wage of $18 per week. The plaintiff is entitled to be paid 65 per cent of this weekly wage,. or $11.70 per week, during the time stated.

The judgment appealed from being in our opinion contrary to the law and the evidence, for the reasons stated, the judgment appealed from herein is now annulled, avoided, and set aside, and it is now ordered, adjudged, and decreed that the plaintiff, Randolph Plumlee, have judgment for compensation against the defendant Calcasieu Sulphate Paper Company, Inc., for the period of his disability, not exceeding three hundred weeks, at the rate of 65 per cent of a weekly wage of $18 per week, the sum to be paid being $11.70 per week, less payments at the rate of $9.75 per week for 19 5/6 weeks received; the compensation to commence on August 24, 1928, and to continue each week thereafter for the time stated; each weekly payment to draw legal interest from the time it was due until it. has been paid. The weekly payments made and to be credited, to be applied commencing with the first week and to be credited each week thereafter for 19 5/6 weeks. Only the balance due for said weeks during which payments are to be credited is to bear interest; defendant and appellant to pay the costs in both courts.


author: WESTERFIELD, J.

text:
    No. 13,781
    Orleans
    SUCCESSION OF MEYERS
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    Paul W. Maloney, of New Orleans, attorney for movers in rule and appellants.
    Long, Guillot & Simoneaux, of New Orleans, attorneys for appellee Inheritance Tax Collector.
   WESTERFIELD, J.

Henry Wellman Meyers died intestate on December 21, 1919. A dispute aróse as to the amount of inheritance tax due, with the result that on January 16, 1923, $120 was deposited in the registry of the Civil District Court until such time as the matter might be adjudicated. On March 14, 1923, a rule was taken to determine the ownership of the fund so deposited, which the court evidently intended to decide in favor of the tax collector, as appears by the following excerpt from the minutes of division “A” of the Civil District Court under date of July 10, 1923:

“On rule against Inheritance Tax Collector: For the written reasons assigned by the court, the law and the evidence being in favor of defendant in rule, it is ordered that said rule be discharged at the cost of the movers.”

No formal judgment, however, was ever rendered and the fund remained in the possession of the clerk of court until December 3, 1930, when the widow and child, heirs of deceased, who had in the meantime been put into possession of the succession, took a rule against the clerk of court, ex officio registrar and inheritance tax collector, to show cause why the deposit should not he paid over to them, upon the ground that the claim of the inheritance tax collector had been prescribed by the lapse of five years, under the provisions of Act No. 82 of 1924. To this rule the clerk of court, in his capacity of inheritance tax collector, filed an exception of res adjudicata, and, in his capacity as registrar, a plea of estoppel. This rule was tried on the merits and judgment was rendered in favor of defendant on January 9, 1931, and signed on January 19, 1931. Plaintiff in rule has appealed. In the meantime, however, on January 9, 1931, a judgment purporting to have been rendered, on July 10, 1923, was signed and the following entry appears in the minutes qf the court of that day:

“On rule against inheritance tax collector.
• “For the written reasons assigned by the court, the law and evidence being in favor of defendant in rule.
“It is ordered, that said rule be discharged, at the costs of the mover.
“Judgment rendered and read in open court on July 10, 1923.
“Judgment signed in open court on this 9th day of January, 1931.”

The contention of the defendant in rule is, first, that the minute entry of July 10, 1923, was sufficient evidence of judgment to serve as the basis of a plea of res judicata, but, in any event, its signature in 1931 would be effective as of the date of its inscription in 1923, but if the judgment be invalid, the rule is still pending and serves to interrupt prescription; second, that Act No. 82 of 1924 does not apply because the deposit involved in this litigation was made prior to the adoption of the act; and, lastly, the doctrine of “quae temporilia sunt ad agendum perpetua sunt ad excipiendum” is relied on.

. An unsigned judgment can have no effect. Reneau v. Brown, 8 La. App. 475, and authorities there cited. The invalidity of the judgment, however, does not result in the dismissal of the rule. It is still pending, awaiting judicial determination, and interrupts prescription, which can only begin to run after the disposal of the (proceedings, no matter how long delayed. Prescription, once interrupted by suit, ceases to run until the termination of the suit, no matter how long it may last. Turner, Wilson & Co. v. McMain, 29 La. Ann. 298.

The other defenses need not be considered. .

-'.For the reasons assigned the judgment appealed from is affirmed.


author: LeBLANC, J. ELLIOTT, J.

text:
    No. 709
    First Circuit
    BRANDON ET AL. v. GOTTLIEB ET AL.
    (January 26, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Taylor & Parker and Fred G. Benton, of Baton Rouge, attorneys for plaintiffs, appellants.

      J. Y. Sanders, Jr., • of Baton Rouge, and J. C. Hollingsworth, of New Orleans, attorneys for defendants, appellees.
   LeBLANC, J.

Plaintiffs are the father and mother of a young negro hoy who was injured in an elevator accident in the Cangelosi building in the city of Baton Rouge, on Thursday, July 21, 1927, and died as a result of his injuries on the following Saturday, July 23, 1927. They seek-to recover damages in the sum of $12,000 for the death of their son, which, they allege was caused through the negligence of the lessee of the building, Lewis Gottlieb, in maintaining an old and dilapidated elevator therein and in not having an experienced and competent tender operating it on the day that he was injured. The Metropolitan Casualty Insurance Company of New York, indemnitor of the lessee of the building, is also made party defendant to the suit, and judgment is prayed for against both defendants in solido.

Plaintiffs allege in their petition that there had been a pretended adjustment and settlement of all .claims for liability, which they aver was obtained under certain circumstances and conditions detailed by them at length, all of which they attack on the ground of fraud and misrepresentation on the part of defendant .Gottlieb’s agent, M. E. Byrd, and also on the part of one W. A. Merchant, claim adjuster and representative of the Metropolitan Casualty Company, the other defendant.

This purported settlement in compromise or release, as it is styled, formed the basis of an exception of no cause of action; which was sustained by the district court in December, 1927. On appeal to this court, the judgment of the lower court on the exception was reversed and the case was remanded to the district court for further trial on the merits. See Brandon v. Gottlieb et al., 8 La. App. 415.

Defendants resist the claim on three grounds: (1) That the settlement in which plaintiffs accepted $350 was a complete adjustment of- any and all claims they might, have against them, and operated as a release which they aver that it is, from all liability whatever for any damages ■ that might arise out of the injury and death of their son, all charges of fraud and misrepresentation are of course denied; (2) that- there was no negligence on , the part of the lessee of the building whatsoever; and (3) that plaintiffs’ son, by his own wanton and gross negligence contributed to his -own injury and resulting death.

It was on .the Friday following the Thursday on which the.accident happened that the question of a settlement was first broached. Byrd, Gottlieb’s, agent, had gone to the hospital where the injured boy was, to see how he was getting along. He says that while there he was asked something by the boy’s father as to how the expenses were going to be paid. He answered him that he thought the company (meaning no doubt' the insurance company) would pay all the doctors’ and hospital expenses. With ’ this opening, which offered an opportunity of adjusting what might eventually turn out to be, as it subsequently did, a large. .claim for damages, Byrd lost no tihie in getting into communication with Merchant, the claim adjuster of the insuranee company. Merchant came from New Orleans -to Baton ■ Rouge on the, .following day, Saturday, and, after a hurried investigation -of the accident, he and Byrd had a conference with-the boy’s father and one of. the latter’s friends named Joe King. A proposition to pay $850 cash for a release from all claims for damages, at the same time disclaiming all liability, was submitted, but it was not accepted that day. It was the same proposition which however resulted in the signing of the release by the plaintiffs a few days later.

It seems that from the very beginning there was no hope for the boy’s recovery. Byrd appreciated that fact, as the testimony reveals. It was on the very Saturday that they were trying to effect a settlement that he died, and we hesitate to think that, on that unfortunate day for them, his parents were in a condition of mind to. consider and carefully weigh the details of a proposition which meant the relinquishment of any and all claims for damages for the death of their son. The matter of settlement did not seem to be that pressing, and it might have been more proper .to defer for a day or two at least the opening of any negotiations leading thereto.

However, as already noted, plaintiffs did not accept on that day, the orfer made to them, and we would not be disposed to set aside the release because of these agents’ impropriety alone, if their action may be so termed, were it not for another more important and serious circumstance surrounding its. confection, which in our opinion, affects its validity.

In their investigations of 'the accident, Byrd and Merchant learned that there was but "one person who claimed to have seen how it happened. That was- Mrs. O. P. Kennedy, a lady who With her husband occupied offices on the second floor of the building. She was interviewed by them and gave an account which would appear unfavorable to the defendants. In making their offer to the plaintiffs, Byrd and Merchant laid before .them their theory as to how their son was injured, based on facts learned by them, which would indicate that he alone was at fault. They did not, however, give them the information which they had obtained from Mrs. Kennedy, according to which, the boy was injured through the gross carelessness of the operator of the elevator. Their reason for withholding that information they say, was because Mrs. Kennedy refused to commit her statement to writing and also because of some remark made by her which satisfied them that she was not telling the truth. The fact that they did not believe her did not give them the right to suppress what she had told them when they came to deal with the plaintiffs in order to obtain a release from them. The latter were entitled •to the benefit of that information as well as the other information they had received and judge for themselves of its truth or falsity. It would have been fairer not to give them any of the knowledge they had and let them make their own independent investigation. By disclosing only a part of it and suppressing some, they led these plaintiffs into an error of fact, which it may be said “comes under the head of fraud’’ which is sufficient to invalidate the contract. Civ. Code, arts. 1821, 1832, also Civ. Code, art. 1847, pars. 2 and 5.

In view of the conclusion we have reached with regard to the release, we can dispose of the defendants’ contention that it cannot be set aside until plaintiffs have returned or tendered the return of the money they received, by referring again to •the former judgment rendered by this court in this case reported in the 8 La. App. at page 415, from which we quote:

“No one can retain the benefits under a contract and lawfully avoid its consequences. There will be restitutio in integrum. The party who wishes to avoid, the consequences must first offer to restore the other to the situation he occupied previous to the contract. Although we are not referred to any statutory law to that effect, we believe that this is an elementary rule in.' jurisprudence. The Civil Code, Art. 1913, provides that in order to enforce a commutative contract or- to secure damages for its non-performance, one must first tender to perform his part of the obligations under the contract, hut we are not referred to any article providing that in order to set aside a transaction one must offer to return that which he may have received when the transaction was, entered into, and for that reason, we say that such a rule originated in jurisprudence and is solely founded upon equity. Our Supreme Court substantially so held in the case of Germaine v. Mallerich, 31 La. Ann. 372, where it says that ‘it is purely an equitable rule, and would be abused by allowing wrongdoers to avail themselves, of it as a condition precedent to the undoing of their own illegal acts.’ ”

We now reach the merits of the controversy.

It will be recalled that there were two specific charges of negligence against the defendant Gottlieb: One, that he maintained .as the only elevator available to the public in this building this old, inferior, and antiquated type, in which the accident occurred; and the other that he had in charge thereof, as operator that day, an inexperienced and incompetent one-armed negro man, through whose wanton and willful negligence the boy was injured and subsequently died.

Outside of the testimony of Mrs. Kennedy, who says that it looked like an antique, and who refers co it as being “old and rickety,” we find nothing in the record to show that the elevator was faulty in construction, or that it was “dangerous and hazardous and a death trap in itself,” as is alleged in plaintiff’s petition. True it was, not of the modern express type, but Professor Hamilton Johnson,' professor of mechanical engineering at Louisiana State University, who had examined it carefully, says that it “is of the ordinary type of small, moderate speed elevator.” It is of standard make, and he also testifies that at the time he examined it, “the machinery seemed all right.” We find that it had been constantly in use by the public as well as the tenants of the building. Moreover, it is not pretended now that the condition or the age of the elevator was the proximate cause of the accident, so we can pass on to the other charge of negligence; that is,, the incompetencel and inexperience of the operator and his wanton and willful carelessness in injuring the plaintiffs’ son.

To condemn the defendants in damages on this, charge, we would have to accept Mrs. Kennedy’s testimony at its full face value and decide the case on that evidence alone.

In the first place, her testimony hears a stain left by the remark she is reported to have made when she was first interviewed by Byrd and Merchant. She seemed solicitous about Byrd’s interest in the matter, and told them both, so they say under oath, that “if necessary she would swear to a lie to help him.” That was the remark which, they say, satisfied them that she was not telling the truth about the accident and which served as their reason for not revealing the information she gave them ,to the plaintiffs, when they were negotiating with them for a compromise. It is true that in rebuttal Mrs. Kennedy denies having madé such remark, but she admits that her husband was present at the interview referred to and heard all ■that was said, and yet he does not join her in her denial of this most damaging assertion against, her as a witness. His silence under the circumstances is rather significant.

More important, however, in our consideration of her testimony, is the fact that we are unable to grasp the details of her version of the actual happening. And these are most important. She has the operator of the elevator doing too much, at one time, with his single arm and hand, to charge him with responsibility for this boy’s death. She says that he was arguing with' the boy; that while arguing with-him,' he was shoving him and edging him away from the door the boy insisted on entering; that he closed the door, pinning the boy in it as he did so, and then started the elevator by turning the wheel which was used as the control. All of this, according to her' further statement, took, place “in a very short space of time” as necessarily it had. That a one-armed, and as is claimed, inexperienced elevator tender could have done all this in the time it .took for this accident to happen, seems to us to be highly improbable, if indeed, not physically impossible.

She would make it appear that the boy’s body was pinned or jammed in the door of the cage surrounding the elevator shaft, and that, as the elevator went down, the boy was struck on the side of his face by the iron bar forming the .top part of the frame of the opening in the carrier. Considering the small space of only a few inches between the cage and the carrier, that also would seem physically impossible. If his body was so pinned and it was the iron bar across the opening of that descending elevator that struck him, then indeed, as Professor Johnson says, either one of two things would have happened;' The elevator would have stopped, or else the boy’s body would have been cut in two. Neither of these things happened, and we are left again in utter uncertainty as to how the accident occurred under her version of it or the theory advanced on behalf of the plaintiffs.

On the other hand, there is abundant proof to show that this unfortunate boy was unusually meddlesome, especially* so about and around elevators-. He seemed to have a hobby to try and do “stunts” around them. This is shown not only with reference to the elevator in which he was injured, but also to the one in the Court House building when he had occasion to go .there. He worked in a drug store on the lower floor of the Cangelosi building, and had strict and positive instruction not to use the’ elevator unless he was delivering soft drinks to the tenants in the building. At the time he was injured, he was not and had not been engaged on such errand. He had been warned repeatedly about the danger he seemed to be inviting, but was stubborn a-nd gave no heed to the warnings.

The operator of the elevator cloes not know how the accident happened. He denies that he argued- with the boy, as he says that he did not even stop' at the second flo.or on which he was, as no signal was given for a stop. He had taken some passengers to the third floor, and, as he was going down again, on passing the second floor and when the floor of the elevator was about two feet below the second floor of the building,-he heard what he refers to as “a burst into the door, and •the next thing was something fell on the top" of it” (meaning the top of the elevator).. This something was the body of that poor boy, who once again, most probably, had not obeyed the instructions given to him, and had failed to heed the warnings of danger.

We are not aware from the judgment of the lower court which dismisses the' suit whether it was on the ground that the plaintiffs were bound by the release which they had signed, or they had failed to prove their case on the merits. Inasmuch, however, as we have the whole record before us on the merits, and w© fail to find it shown that this accident happened by reason of the negligence and carelessness of the defendant Gottlieb, the judgment dismissing the suit against him and his indemnitor, the Metropolitan Casualty Insurance Company of New York, will be affirmed.

ELLIOTT, J.

(dissenting). I agree with the majority of the court that the compromise agreement, urged by the defendants, should be set aside on the ground that it was not based on plaintiffs’ “consent legally given,” Civil Code, art. 1779, “with regard to a matter understood by all, reciprocally communicated,” Civil Code, art. 1819. But, on the merits, I think the plaintiffs have established their case. Plaintiffs’ claim, however, is not established without the testimony of Mrs. Kennedy, and, if her testimony is seriously discredited, the result is the same. The majority of the court do not accept her testimony. Her testimony is said to bear a stain left by the remark she is reported to have made when first interviewed by Messrs. Byrd and Merchant. It is said of her that she seemed solicitous about Byrd’s interest in the matter, and told them both, so they say under oath, that, if necessary, she would swear to a lie to help him. That was the remark which they say satisfied them that she was not telling the truth about the accident, and which served as their reason for not revealing the information she gave them to the plaintiffs when they were negotiating with them for a compromise. “It is true,”- the opinion says, “that in rebuttal she denied having made such a statement, but she ad-' mits that her husband was present at the interview referred to and heard all that was said, and yet he does not join her in her denial of this most damaging assertion against her as a witness. His silence under the circumstances is rather significant.” I find on this subject that Mr. Kennedy testified that he was present when his wife related to Messrs. Byrd and' Merchant what she claimed -to have seen, that the interview took place in his office and on his invitation to defendants’ agents that his wife would tell them all she knew about the occurrence; but he was not asked on the trial if his wife had offered in his presence or within his hearing to swear to a lie, if it would help Mr. Byrd. Therefore, when it isf said that “he did not join her in her denial,” it must be taken to mean thht he was not asked about the matter, Mr. Byrd's testimony on the subject, and that of Mr. Merchant, cannot all be quoted, but Mr. Byrd says in one place:

“Q. What if any thing was said by Mrs. Kennedy after she asked you whether you had any interest in the matter as to her statement or- testimony?
“A. She asked if it meant anything to me. I told her I was agent for the Company. If I remember correctly her words were something like this (addressed to Mr. Merchant and myself). If necessary she would swear to a lie to help me.”

No reason appears why Mrs. Kennedy should volunteer to do such a thing to help Mr. Byrd in this matter. He is in no way, as far as the record shows, personally responsible for the occurrence. If he has any kind of claim on her, it does not appear in the record.

The law, Civil Code, art. 2282, provides that, when a party is in the actual service of another, it “may, according to circumstances, diminish the extent of his credibility,”

Messrs, Byrd and Merchant are and were at the time, in the actual service of the defendant insurance company. Mr. Byrd, in addition, had charge of the building in which the occurrence took place as the agent of Mr. Gottlieb, and was also in that way in the actual service of Mr. Gottlieb at the time in question.

This attack of defendant’s agents on the credibility of Mrs. Kennedy, whose testimony is so important to the plaintiffs, makes it necessary to consider matters shown by the record which takes from the force of the attack. Mrs. Kennedy, according to the testimony of herself, and what she says in that respect does not appear to be denied by Messrs. Byrd and Merchant, informed Messrs. Byrd and Merchant at the interview in question, that the boy Alvin and herself were the only parties at the time on the second floor and that the boy Alvin was at the elevator cage ringing the bell; that the elevator had been to the third floor and had stopped at the second floor and an argument was going on between the operator, a young negro man with one arm, named Albert Robertson, and the boy Alvin, which she did not hear (witness was hard of hearing) ; that the boy Alvin seemed to be trying to push his way into the elevator, and the operator trying to keep him out. She further stated:

“The next thing I saw was the operator closing the door, and when he did that, he pinned the little boy in the cage of the elevator. The elevator operator had only one arm and he took this- same arm that he closed the door with and' started the elevator down and the little boy was pinned in the door. And he must have been hurt when the elevator passed and crushed his head and turned it to the side because he stayed a fraction of a second in this cage with his head between his shoulders like that (indicating). A second later, he plunged down .head foremost on top of the elevator whicli by that time had gotten to the first floor.’’

After hearing this, statement from Mrs. Kennedy, Mr. Merchant requested her to sign a written statement of the facts, and, upon her refusal to do so, advised her that the best thing she could do was to keep her mouth shut; that, if she did not, they would make a liar out of her, or used words to that effect. The record indicates that this advice was effective for a time at least, because, between the time the boy was injured and the offer to compromise and the several days during which plaintiffs had the offer under advisement, .then accepted and signed a receipt, and the still further time that elapsed after the receipt was signed before the $350 was received and expended in the way shown by the testimony, not a fact or circumstance indicates that plaintiffs became aware of what Mrs, Kennedy claimed were the facts as to how their son received his injury.

After Messrs. Byrd and Merchant had heard Mrs. Kennedy’s statement about the occurrence, they lost no time in procuring from the plaintiffs a settlement of their claim for damages, paying them $350, and they admit in their testimony that, in bringing it about, they represented to the plaintiffs that, according to an investigation which they had made, it seemed to them that plaintiffs’ son Alvin, in disregard of repeated warnings to let the elevator alone and keep out of it, had in some way gotten, open the door to the shaft on the second floor, and must have jumped on top of the elevator as it passed, in effect killing himself; that they did not then, nor any time since, make known to the plaintiffs the statement that had been previously made to .them by Mrs. Kennedy as to how the occurrence had taken place and according to whom the boy Alvin had stopped the elevator at the second floor and was trying to get into it against the will of the operator, who pushed him out and closed the door on him in such a way that he pinned him in between the elevator door and the wall of the shaft, fastening him there, and the operator with the boy thus fastened then started the elevator downward, crushing the boy’s head in the descent.

Their explanation that they did not make known to plaintiffs what Mrs. Kennedy had informed them about the matter, because they did not believe that the occurrence had taken place in the way she claimed it did, invites an inference unfavorable to their attack, but no explanation was offered for having advised Mrs. Kennedy at the time that it would be well for her to keep her mouth shut, and what she might expect if she testified in court in conformity with her claim to them as to how the occurrence had taken place. Conduct of this kind should be deducted from their attack and the same duly appreciated. The credit of Mrs. Kennedy is to my mind, not seriously impaired.

Taking her to be a credible witness and giving proper effect to corroborating facts and circumstances and to the inferences and presumptions which naturally arise, it seems to me that the plaintiffs have established their case. The court, however, finds otherwise, holding that she has the operator of the elevator doing too much at one time with his single arm and hand ■to charge him with responsibility for the boy’s death. Among other matters of which the court makes mention, it is said that she would make it appear that, as the elevator went down, the boy was struck on the side of his face by an iron bar, forming the top part of the frame of the opening of the carrier. There was evidence introduced showing that an iron bar extending across the upper part of the front frame of the elevator had been bent near the middle, but this iron bar could not have injured the boy according to the testimony of Mrs. Kennedy. The evidence- in fact showed that this bar had been bent prior to the occurrence, and therefore the bend could not be connected with the injury in question. Then again this bend in the bar mentioned was over ■the doorway, while the boy, according to Mrs. Kennedy, at the time he was injured, was pinned in between the closed door and the wall of the shaft, which would make the place where the wall corners on the shaft opening. A comminuted fracture of the skull on the right-hand side of the head, the side of the face mashed in, and both jaws broken at the same time would seemingly be the natural result to a person fastened a3 this boy is said to have been, should an elevator descend upon him, if his head was in the path of descent. Sidonia Brandon, the boy’s mother, went to his bedside at the hospital as soon as she heard about his injury, and, upon getting there, she asked him questions, and her statement as to What the boy said in reply, being received without objection, is as follows:

“Q. Alvin who hurt you?”
And she says he replied:
“Mamma, Albert hurt me.”'
She then said to him:
“Tell me how he hurt you.”
She says he answered:
“When I get better I will tell you all about it.”

She says that she asked him some further questions about the matter, but no further information was obtained. Albert was Albert Robertson, the operator of the elevator at the time in question. The accusation of this boy tends to support Mrs. Kennedy as to who hurt him. Mrs. Kennedy further ' states:

“A second later he plunged down head foremost on top of the elevator, which by that time had gotten to the first floor.”

• When the elevator reached the first floor, the boy was found on top of it in the condition heretofore mentioned.

The defense set forth in article 10 of defendant’s answer is in effect that the boy Alvin Brandon picked the trap lock on the door of the elevator shaft, without the knowledge of defendants, and, after the elevator had passed the second floor, he forced open .the door and fell on the elevator cage and its protruding iron parts, his acts constituting the sole negligence in the case, pleading, however, contributory negligence in the alternative.

The testimony of Albert Robertson, .the operator, is in part as follows:

“Q. Where do you think Brandon was?
“A. I don’t know.
“Q. You are positive that he was not standing at the elevator door?
“A. He wasn’t standing at .the elevator door.
“Q. He could have opened the door with a pencil, the latch on the do.or was so loose that- anybody could open it with a pencil or stick?
“A. I don’t know how he opened it, but it was fastened. I had it fastened. It wasn’t open at all.
“Q. You testified when you were being examined by Mr. Hollingsworth that as you passed the door, it was closed. Is that a fact?
‘A. Going up.
“Q. I mean coming down.
“A. The door was closed.
“Q. And you testified that it remained closed as you were passing. Is that a fact?
“A. Going which way?
‘‘Q. As you were coming down.
' “A. Yes, sir.- It wasn’t open then, I didn’t see it open.”

Later he stated again that the door to ■the elevator on the second floor was closed when he passed, and that the boy Alvin was not there, at least he didn’t see him; that he did not stop at the second floor; that the first he knew about .the matter was after he. had gotten about two feet below the second floor something fell on top of the elevator.

The motive of self-exoneration should be taken into account in considering the testimony of this operator,' employee of the defendant.

If the boy Alvin had been at the elevator door as the elevator passed, he would probably have been seen. He says that he did not see him. If the boy was not at the door and if .the door was closed and fastened as he says and if the elevator did not stop at the second floor as he says, then the boy could not have gotten on top of the elevator when it was about two feet below the second floor.

But suppose for the sake of argument that the witness be not believed and Suppose it be taken that the boy was at the door, the door open, and that the elevator passed him there without stopping, and that the hoy accidentally fell in, or intentionally jumped in the open shaft, the strong probability is that he would have gone down feet foremost, and, in a drop of two feet, his head and face and jaws would not have been crushed and broken as was found to be the case. A plunge down head foremost can easily be conceived as the result of a fatal injury received in the way stated by Mrs. Kennedy. It would not likely have occurred except in that way. In such a situation there exists the presumption res, ipsa loquitur.

The defense argues, and the majority of the court, hold, that a one-armed operator could not have pinned the boy between the door and the wall of the shaft and started the elevator downward all at one and the same time.

• It is not claimed by Mrs. Kennedy that the operator did1 all this with .his one arm and hand, at one and the same time. Her testimony as to how the operator managed, is stated at length, and a fair appreciation in my opinion does not justify such a conclusion. She was questioned, as if such was. the result of her statements on the subject. She was asked:

“Q. You don’t mean for the court to understand, that a one-armed man with one arm was pushing the boy and also holding the elevator door too, do you?
“A. Not at the same time.”

The operator no doubt moved quickly, and all that he did could have been, and no doubt was, the result of quick movements. He had been operating the elevator all day. The regular operator was a one-armed man.

For my part, giving credit to Mrs. Kennedy as a witness and taking into account all the facts and circumstances, it is my conclusion that it appears- with reasonable certainty that plaintiffs’ son was injured as claimed by them.

The petition charges the defendants with gross willful negligence in the matter, and the evidence received without objection to my mind requires a holding that the action of the operator was wanton and reckless within the sense and meaning of the law on the subject of negligence. It is my conclusion that the operator pulled the door against the boy, pinning him in between the door and the wall of the shaft, and, whilij, the boy was thus fastened, the operator started the elevator downwards, the elevator crushing the boy’s head in its descent as stated by Mrs. Kennedy in her testimony; that the operator knew and must be charged with knowing that -the elevator in its descent was bound to injure the boy as was done in the predicament he was in. As the operator could not help seeing the predicament of the hoy, it became his bounden and immediate duty, to hold the elevator off of him and to not let it descend, until he could see that the boy had extricated himself and gotten out of the way of danger. • The operator did not have it purposely in mind to kill the boy, but, as he could not help seeing the predicament the boy was in, his lack of malice and intent did not prevent his act from being willful, wanton, and reckless within the meaning of the law on the subject of negligence.

And, as against an injury wantonly, willfully, and recklessly inflicted, the negligence of the boy, his mischievous conduct in ringing the bell, stopping the elevator, and trying to get into it against the will and wish of the operator, after having been warned of the danger, told ,to keep away from the elevator, and to keep out of it, is no defense.

“If the wrong on the part of the defendant is so wanton and gross as to imply a willingness to inflict the-injury, the plaintiff may recover, notwithstanding his own ordinary negligence, and this is always to be attributed to the defendant, if he might have avoided injuring the plaintiff notwithstanding his own negligence,” etc. Ruling Case Law, vol. 20, subject, “Negligence,” pp. 144 and 145, sec. lie, Ruling Case Law, Permanent Supplement, subject, “Negligence,” vol. 7, p. 4845, sec. 118.

A wanton act implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them. Thompson on Negligence, vol. 1, pp. 246, 247, secs. 265 and 266.

Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the faults which placed the plaintiff in the way of such injury. Cooley on Torts (2d Ed.) subject, “Redress for Negligence,” pp. 810, 811; 21 Louisiana and Southern Digest, “Negligence,” sec. 27; 21 Louisiana and Southern Digest, Second Supplement, “Negligence,” sec. 27; Ross v. Sisters of Charity of Incarnate Word, 141 La. 601, 75 So. 425, L. R. A. 1917F, 260.

I think the judgment appealed from is erroneous, and that it should be reversed and judgment rendered in favor of the plaintiffs for the amount proper under the evidence, and I therefore respectfully dissent.


author: MOUTON, J. MOUTON, J.

text:
    No. 752
    First Circuit
    VARNADO v. MEYER & NEUGASS CO.
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)

      Ott & Johnson, of Franklinton, attorneys for plaintiff, appellant.
    Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellee.
   MOUTON, J.

This case was before us in March, 1930, 12 La. App. 543, 126 So. 544, on appeal from a judgment in favor of defendant company maintaining an exception on a plea of 10-year prescription. The judgment wás reversed for - lack of evidence to support the prescription urged. As there were other contested questions be-: tween the litigants, and as other issues might be presented by them, we said, such, issues would remain open for future action should the case return to this court for decision.

The case was tried a second’ time, and resulted in a judgment for defendant company, decreeing its ownership to the property claimed, and rejecting the demand of the plaintiff, from which he prosecutes this appeal.

The contest is in reference to a 133.90-acre tract of land situated in the parish of Tangipahoa. The sale of the land was originally made by John Dickerson in 1902, which bears his signature, as vendor, and was signed Jasper E. Varnado & Bro., as vendee. This signature of Jasper E. Varnado & Bro. was. affixed to the act of sale by Jasper E. Varnado, then a member, with his brother, Dewitt D. Varnado, plaintiff herein, in a commercial partnership.

The contention of the plaintiff is that, as the sale was signed, Jasper E. Varnado & Bro., it was bought in the name of the commercial partnership, which cannot own immovable property, and that they therefore became joint owners in the land purchased from John Dickerson. Poydras v. Laurans, 6 La. Ann. 771; Bernard v. Du-four, 17 La. 596, and other authorities are cited by counsel for defendant, in support of that legal principle.

The act of sale says that John Dickerson conveys, sells, sets over, etc., “unto the said Jasper E. Varnado and Bro., being present accepting and purchasing for themselves, their heirs • and assigns the following property,” etc. If the sale had heen to the firm of Jasper E. Varnado & Bro., the words used for “themselves,” heirs .and assigns, would, it seems to us, have been rather out of place. They do not indicate that the sale was. to a firm or commercial partnership.

In 1907, five years thereafter, a sale was made of the same land- to John Dickerson, and is signed as follows: J. E. Varnado & Bro., by J. E. Varnado. This sale was on credit for $972.74, represented by three notes made payable to the Magnolia Bank or order.

Under an order of seizure obtained by Meyer and Neugass, defendant herein, against John Dickerson, the land in dispute was seized and sold, and was bought at public sale by Meyer and Neugass.

This suit is brought against Meyer and Neugass by Dewitt D. Varnado for one undivided half interest in the land. His claim is based on the contention that, by the purchase of the property in the name of the Varnado firm, he became joint owner with his brother, Jasper E. Varnado, and that he never was divested of his ownership therein, and is now owner in indivisión with the Meyer & Neugass Company, defendant.

Defendant claims ownership by virtue of the sales, and also pleads the prescription of ten years as a muniment of title.

It is contended by plaintiff that the sale to John Dickerson in 1907 was made for the commercial firm of Jasper E. Varnado & Bro.; that it was effected by Jasper E. Varnado, without plaintiff’s consent, authority, or knowledge, and in consequence there was no divestiture of his joint ownership therein.

As we have heretofore observed, the original sale by John Dickerson in. 1902 declared that it was made to Jasper E. Varnado & Bro., present, accepting, and purchasing for “themselves” heirs, assigns, etc. This language thus used does not, in the slightest degree, intimate a sale to the firm of Jasper E. Varnado & Bro. On the contrary, it would seem therefrom that the Requisition was for Jasper E. and Dewitt D. Varnado. It will also be noted that in the subsequent sale, in 1907, to John Dickerson, though the transfer is declared to be by Jasper E. Varna'do & Bro., nothing appears therein to give the remotest suggestion that Jasper E. Varnado & Bro. was a commercial firm.

There are several different partnerships recognized by the Civil Code (Rev. Civ. Code, arts. 2825, 2826), among which are commercial and ordinary partnerships. In view of our system, which recognizes these different classes of partnerships, it is not logical to hold that the two sales, to which] we have referred, were in reference to a commercial partnership, ‘exclusively, and were so understood by the parties to these transactions.

It is shown, besides, that in 1904, two years after the purchase from Dickerson, Dewitt D. Varnado, plaintiff, and his brother, Jasper E. Varnado, gave a mortgage for $2,200 on the land in question to the Magnolia Bank, represented by a note for that amount. This note was given to the bank to secure an indebtedness due it by the firm of Varnado & Bro. John Dickerson made a payment of $50, and another of $15 on that note.

In a suit subsequently brought by the bank against Dewitt and Jasper E. Varnado bn the $2,200 note, credit was given for the payment of $65 made by Dickerson. The sale to Dickerson was ,made March 8, 1907, and the two payments on the note of $2,200 were made by Dickerson in November and December, 1907. He was then in debt for the purchase price of the property which had been bought on terms of credit, and, as far as the record shows, owed no other debt to the Varnados. It is not therefore illogical to infer that these payments on the note by Dickerson were in part satisfaction of the price he owed on the land.

The court in Thomas v. Scott, 3 Rob. 256, said:

“Where real property is purchased by a commercial firm, the members of the firm become joint owners thmeof. * * * C. C. 2796. But where the latter, by receiving a portion of the price, subsequently ratify a sale by the former, they will be estopped from asserting any title to. the prejudice of a bona fide purchaser.” See also Farias, v. De Lizardi, 4 Rob. 407; Raymond v. Palmer, 41 La. Ann. 425, 6 So. 692, 17 Am. St. Rep. 398.

The court distinctly held in 3 Rob., supra, that the act of receiving the whole or a part of the proceeds of the property, though sold without authority, constitutes a ratification of the sale.

It may be said that there is no direct proof to show that these payments were made by Dickerson on the purchase price of the land but, when we consider that plaintiff remained silent for a period of 25 years before asserting his claim to an undivided one-half of the property, we cannot day that the district judge erred in concluding that plaintiff had acquiesced in the sale made by Jasper E. Varnado, even if executed without his authority or knowledge, and that there had been a ratification of the sale.

Let us say, however, that the sale to Dickerson was made without the authority of plaintiff, and that there has been no ratification of the sale by him; we find that defendant has acquired the property under his plea of prescription, for the reasons which follow:

Plaintiff, in his petition and prayer, is asking for a recognition of his title to one undivided half interest in the property, and for a partition thereof by licitation. The demand therefore combines the double character of a petitory action and an action for partition. In an action of this character, defendant is entitled to' plead, the prescription of ten years (C. C. art. 3478), although an action for partition is only barred by thirty years (C. C. art. 1305). LeBlanc v. Robertson, 41 La. Ann. 1023, 6 So. 720.

The defendant is urging the prescription of ten years, and upon that issue the case must .be determined.

Plaintiff, assuming that the sale of the whole tract was made by Jasper E. Varnado, without his sanction or authority, contends that there was therefore no transfer of his ownership. Under the plea of ten-year prescription, the transfer of ownership from the real owner is not an issue, because, if the title were derived from him, “then no true prescription would be necessary.” C. C. arts. 3484, 3485; Johnson v. Sugar, 163 La. 785, 112 So. 721. Hence the question, under that plea, is as to whether the title was received from any person whom the purchaser honestly believed was the real owner, and whether that title, by its nature, was sufficient to transfer the ownership. C. C. art. 3485; Johnson v. Sugar, 163 La. 785, 112 So. 721.

The sale by Jasper E. Varnado to Dickerson in 1907 was for the transfer of the 133.90 acres: of land, and was by authentic act. It was obviously “a title which by its nature” was sufficient to transfer the ownership, and therefore a just title. C. C. art. 3485; Johnson v. Sugar, 163 La. 785, 112 So. 721.

There was no defect stamped on the face of the deed, and it was therefore valid in form. Pattison v. Maloney, 38 La. Ann. 885. The defect in the title must appear on its face, is what the law means, and not one “that may prove defective by circumstances, or evidence dehors the instrument.” Hall & Turner v. Mooring, 27 La. Ann. 596.

In this case the title is perfect as respects form. The attack on the title is based on the contention that Jasper E. Varnado had no authority or right whatsoever to .transfer the undivided one-half claimed by plaintiff. Obviously, such an attack was directed to a fact or circumstance dehors the deed. In one of our earliest cases, Dufour v. Camfranc, 11 Mart. (O. S.) 714, in passing on a similar question, the court said:

“Pothier tells us that a just title is that which is of a nature to transfer the property; so that when it is not transferred, it is a defect of right in the person who makes ity and not a defect in the title, in consequence of which the tradition is made.”

In such a case, says the court, the error is one of fact, not of law. Later, in Reeves v. Towles, 10 La. 284, body of decision, the court has this to say: That, when one takes upon himself as attorney in fact to sell a property, his deed of sale may form the' basis of prescription, because the defect consists in the want of evidence of the mandate,, and is not a nullity of form resulting from the legal incapacity of the vendor, etc.

Here the defect, if any existed, was. for lack of evidence of a mandate, and was not a nullity of' form. It was an error of fact which the law would not consider of such a nature as to preclude the party from pleading prescription. Dufour v. Camfranc, 11 Mart. (O. S.) 714.

In a recent case, Bowers v. Langston et al., 156 La. 188, 100 So. 301, the court approved the ruling in the case above cited, and others enunciating the same doctrine'.

The verbiage used in the original sale of Dickerson co Jasper E. Varnado, “themselves.” or assigns, and his repurchase of the property from them, convinces us that he honestly believed he was buying the whole property from: the true owners. In this regard, it is proper to say that there is nothing whatsoever dehors the deed to show that Dickerson knew or .had any reason to believe, that he was not buying from the true owner. He was, we have no doubt, in perfect good faith which is always. presumed in such cases, as the rule is that the burden of proof is on the party alleging bad faith. C. C. art. 3481; Land Development Co. of Louisiana v. Schulz, 169 La. 2, 124 So. 125. The fact is however that here plaintiff does not charge bad faith, and none is proved.

It is shown that defendant company bought the property at sheriff’s sale and that there is no irregularity in the deed. It appears that its title is derived from Dickerson,' original owner of the land.

The proof shows that Dickerson cultivated the property, up to the time it was acquired by defendant company in 1923 at public sale, since when it has been in possession of defendant. This possession of Dickerson and defendant company from 1902 to 1923, the evidence shows, has. been continuous, uninterrupted, peaceable, and public, as owners (C. C. art. 3487). The prescription urged is shown, and defendant is entitled to the ownership of the property. The demand of plaintiff was properly rejected.

ON APPLICATION FOR A REHEARING

MOUTON, J.

In our original opinion we referred to the wording of the sale from Dickerson as having been intended to convey the land to Dewitt Varnado and his brother, Jasper Varnado, and not to the commercial firm of Jasper E. Varnado and brother. We then referred to the sale of the land to Dickerson, and signed J. E. Varnado and Bro., by J. E. Varnado. From the language used in the sale by Dickerson in 1902, and in the deed transferring the land back to him in 1907, we concluded that Dickerson honestly believed he was acquiring the property from the true owners, the Varnado Brothers. We found that he had been a purchaser in good faith; that his actual possession coupled with that of Neugass Company, as stated in our opinion, entitled defendant to title ' under the prescription of ten years.

Counsel for plaintiff expresses surprise in reference to our allusion to the question of mandate on the issue of prescription.

In article IV of plaintiff’s petition, he alleges that J. E. Varnado had no right or authority to transfer the undivided one-half interest in the property acquired by petitioner in the deed from Dickerson. That averment, as we understand it, means that J. E. Varnado had no power of attorney, agency or mandate to transfer the undivided ownership of his brother, plaintiff, in this suit. That allegation appeared to us as being one ■ of the most important of the averments in plaintiff’s petition. If J. E. Varnado undertook to sell the land without right or authority, as plaintiff alleges, it must follow that he took upon himself, as a self constituted attorney in fact, to transfer the property.

Accepting that view of the case, we held, that the fact of this alleged lack of right or authority in J. E. Varnado was a fact dehors the deed and was no bar to the plea of prescription where the property, as in this case, had been sold by authentic act, which constituted ■ a just title for the reasons given in our original opinion, and not necessary to be repeated here.

For the reasons given in the original opinion and those, above stated, the rehearing is refused.


author: MOUTON, J.

text:
    No. 749
    First Circuit
    COLONIAL CREOSOTING CO. v. J. H. NEWTON CONSTRUCTION CO.
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)

      Ott & Rich, of Bogalusa, attorneys for plaintiff, appellee.
    H. R. Reid, of Hammond, attorney for defendant, appellant.
   MOUTON, J.

In March, 1928, the defendant company entered into a contract with the police jury of St. Tammany parish to build the Mandeville Junction highway.

The defendant company, as principal, with the Federal Surety Company, as surety, executed a bond for the faithful performance of the contract, both recorded, and for the payment of all claims for labor, supplies, and materials in accordance with the statutory provisions on that subject.

Plaintiff company sold creosoted lumber to; the defendant company which was used in the construction of the highway. The materials furnished amounted to $443.44, for which judgment in solido was rendered against the defendant company and the Federal Surety Company.

The surety company alone appeals.

The correctness of the account is admitted; also that demand for payment was made more than thirty days prior to the institution of the- suit.

The contention of the Federal Surety Company is that plaintiff should, for the preservation of its lien, have recorded a sworn statement of its account. It is now well settled that the materialman is not required to record his claim to preserve his right of action against the surety on the contractor’s bond. American Creosote Works v. Aetna Casualty & Surety Co., 167 La. 601, 120 So. 21; Madison Lumber Co. v. Bachemin, 166 La. 1066, 118 So. 141.

Learned counsel for defendant surety company does' not seem to dispute the correctness of the foregoing rule of law. His contention appears to be based on the fact ■that plaintiff had been requested by the manager of defendant company to file its lien, which, if it had been filed, says counsel, there would have been funds to pay it. A proper. answer to this contention is found in the following quotation from the opinion of the court in American Creosote Works v. Aetna Casualty & Surety Co., 167 La. 601, 120 So. 21, 22, above cited:

“A legal right can never be lost or forfeited by the neglect or failure to perform an act which the law has declared need not be performed.”

Judgment affirmed.


text:
    No. 759
    First Circuit
    PELLETIER ET AL. v. PUGH
    (March 3, 1931. Opinion and Decree,)
    (May 5, 1931. Rehearing Refused.)
    - -Hy. -L. -Garland, of • New Orleans, attorney for plaintiffs, appellants. - - •
    Miller & Heintz,' of Covington, attornéys for defendant, appellee.
   LeBLANC, J.

Plaintiffs .appeal from a judgment .of. -the district court which- rejected . their - demand for damages against the defendant, for having trespassed upon -their land - situated in or near the town of Lewisberg .in St, Tammany parish, and Jiaving removed therefrom 1,170 feet. of cypress and 600 -feet of gum-timber. The .judgment also-awarded the defendant -$75 on a reeonventional demand as damages to his good name and reputation because óf cértáiñ allegations in the' plaintiffs’' petition' which charged 'him w'ith the' commission óf an offense'against'the law^'of this state. ‘

- Plaintiff James-B, Pelletier,-who-lives in New Orleans, -and his children, Roger E. and. Rene J. Pelletier,- are the owners of • a tract of land adjoining - that • of- George -E. Powers, about, a mile and a half from Lew.isberg. The timber on the -Powers -tract .had -been sold by him,to a-- man • named Coffer.. . Pugh,. the defendant, • who - is a surveyor and- occupies -the-position of-parish surveyor, had surveyed the Powers land before -the purchase of - the -timber thereon, by. Coffer. - On a certain day -he happened to be on the -property when the timber was. being cut, and observed, as he thought, that the timber cutters had gotten on some one .else’s property, which- he learned later, was that of the plaintiffs. He at .once notified Coffer, and the latter, apparently in the spirit of making proper restitution for any damage ne may have caused, asked. Pugh, as -the latter ■ went- to New Orleans more frequently than he did, to call on Mr. Pelletier on his next visit there, and tell him that he (Coffer) would pay for the stumpage value of whatever timber he might have cut on his property. Mr. Pugh did, on his next trip to New Orleans, convey Mr. Coffer’s message to Mr. Pelletier, who was a total stranger to him, and Pelletier told him that he would go to Lewisberg on the following Sunday to look into the matter. He did go and Mr. Pugh met him, but as there was too much water on the property, they did not visit it. Pelletier made another trip to Lewisberg, but again they were unable to go over the land because of high water. That was the last the defendant Pugh knew or heard of the matter until this suit was filed against him.

Plaintiff James B. Pelletier testifies that at the time Pugh called on him in New Orleans, he told him that he (Pugh) had cut the' timber and would be responsible for the damage occasioned by its cutting and removal. His testimony to this effect is corroborated by Miss Marie Moliere, a lady employed by him in his Antique Shop on Royal street in New Orleans. Both of these witnesses seemed to have in mind a letter which they say Pelletier had received from a man named Fournette, notifying him that the timber had been cut. They probably connected the information said to be conveyed by that letter with the message brought by Pugh from Coffer that the timber would be paid for, and got the matter confused in their minds. The letter referred to by them could not be produced, and there is no evidence to indicate that in it Fournette had charged Pugh with cutting the timber. In testifying, Fournette frankly states that he never saw Pugh on the property of the plaintiffs, and doesn’t know who cut the timber. Pugh positively denies that he told Pelletier that he had cut it, and, in view of Coffer’s admission on the witness stand that he did, and of his offer, even then, after prescription had run, to pay. for it, we are bound to conclude that both Mr. Pelletier and Miss Moliere are mistaken when they say that Pugh told them that he had cut the timber and would pay for it.

We find no difficulty in agreeing with the district judge in his finding that this defendant committed no trespass and his judgment rejecting the demand of the plaintiffs was correct.

The demand of the defendant in reconvention is for damages for defamation of character for having been charged in a judicial proceeding with the violation of a criminal statute. He had asked for $2,000, and now, in answering the appeal, prays for an increase from the sum of $75 as allowed by the judgment of the district court, to the sum of $1,000. In his brief before this court, his counsel states, that the damages awarded should be increased to at least $500. .

In their petition, the plaintiffs allege that in the month of March, 1929, they learned that the defendant, Joseph W. Pugh, “had committed a serious trespass” upon their property. Further, in paragraph 3, they aver:

“That said Joseph W. Pugh, by his agents, and employees, cut and removed from said lot, (in spite of the warnings of G. Fournette, that he was committing a trespass) the following timber: * * *”

We are referred to two statutes which make it a criminal offense for a person to cut timber from off the land of another without his consent, or cause the same to be done.

The proof is, as we have already concluded in considering the main demand, that this defendant never committed any trespass such as is charged in the petition, and it is further shown that Pournette never gave him any warning whatsoever. This, Pournette admits himself. Moreover, plaintiffs permitted a whole year to elapse from the time they allege they learned from this defendant himself of the cutting of the timber, to the filing of this suit. It would seem that they had ample time and opportunity to make an investigation which would have readily disclosed that Pugh had nothing whatever to do with the cutting of their timber. They had no reasonable ground on which to base a belief in the allegations made against him in their petition^ In the absence of any just or probable cause to believe that they were true, they' became liable in damages to the injured defendant.

The right of a party to recover damages under our law, for libelous allegations contained in a judicial proceeding, is recognized in the case of Lescale v. Joseph Schwartz Co., Ltd., et al., 116 La. 293, 40. So. 708. In a subsequent case, Sabine Tram Co. v. Jurgens, 143 La. 1093, 79 So. 872, 873, the Supreme Court of the state, in re-affirming that right, said:

“No one has a right to deem appropriate or pertinent to an issue presented for decision in a judicial proceeding a libelous allegation that he knows is false or that he has not just or probable cause to believe is true.”

The defendant in this case enjoyed a good reputation in the community in which he lived. This is attested by various officials of St. Tammany parish. The fact •that he occupied the position of parish surveyor adds weight to this testimony. This proceeding wad no doubt the cause of considerable embarrassment and humiliation to him, for which he is entitled to recover a moneyed judgment against these plaintiffs. With regard to the amount, we have to confess, the difficulty with which we approach the question. As intimated in ■ the case of Sabine Tram Co. v. Jurgens, supra, the vindication by the judgment of the court is perhaps more' compensating than a sum of money would be. The trial judge, to whose discretion we yield in large measure, made an award of ?75 which we do not feel disposed to, and will not, disturb.


text:
    No. 767
    First Circuit
    CANULETTE SHIPBUILDING CO., INC., v. HURSEY TRANSPORTATION CO., INC.
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    S. W. Provensal, Jr., of Slidell, attorney for defendant, appellant..
   ELLIOTT, J.

Canulette Shipbuilding Co., Inc., alleges that it was required by Bank of Slidell to pay a note for $1,000, on which it was the indorser, but of which Hursey Transportation Company, Inc., was the maker; that, having paid the note in conformity with its obligation as indorser, Hursey Transportation Company, Inc., is. indebted to. it for the amount paid, with interest and attorney’s fees as stipulated in the note.

The note in question is annexed to, and made part of, the petition.

Hursey Transportation Company, Inc., defendant, excepted to plaintiff’s petition on the ground that it did not disclose cause or right of action, for the reason that defendant, while apparently maker of the note, was not the maker, but was in truth and in fact the indorser, and the plaintiff, the maker.

The court, acting on .the face of the petition, overruled the exception of no cause of action, but heard evidence in support of the exception that the petition disclosed no right of action, and, after hearing evidence, overruled it. The defendant, reserving its rights under the exceptions mentioned, then answered, admitting that it made and executed the note in question, but claimed that, as between plaintiff and defendant, the plaintiff had received the consideration and was the prior obligor.

It denied that plaintiff was an accommodation indorser for defendant. It admitted that it did not pay the note, and that plaintiff did pay the amount due on the note to the bank; alleges .that plaintiff negotiated the note, obtained the money for same, and that, when it paid the note, the note was discharged, and there was no obligation on defendant to pay same.

The present suit No. 5573 was consolidated and tried together with the suit for $2,000, No. 5574 on the docket of the lower court, brought by the same plaintiff against the same defendant. 132 So. 772. The two cases are dependent on the same law and facts. The defendant filed the same exception in suit No. 5574, and the court acted.on it in the same way. There was judgment in each case in favor of the plaintiff as prayed for. In each case defendant has appealed. Both cases have been submitted to us at the same time.

What defendant calls an exception of no right or cause of action is not really such, but a defense on the merits, and, to the extent of the averments therein contained, constituted an answer.

The facts show that Hursey Transportation Company, Inc., became indebted to Canulette Shipbuilding Company, Inc., on an open account, which it settled by giving two notes, one for $1,174.24 and another for $3,877.80. The bookkeeper and manager of Hursey Transportation Company, Inc., obtained the note forms of Bank "of Slidell, and wrote the notes, making same in that way payable to the Bank of Sli,'dell. Hursey Transportation Company, Inc., acting through its president, then signed the notes, and its manager-bookkeeper delivered them to Canulette Shipbuilding Company, Inc., in settlement of its account. Canulette Shipbuilding Company, Inc., accepted the notes in settlement of its account, indorsed them, and delivered them to Bank of Slidell, receiving credit for the proceeds.

Hursey Transportation Company, Inc., as maker, then made payments to the bank on each note, reducing the note for $1,-174.24 to $1,000, and reducing the note for $3,877.80 to $2,000. Bank of Slidell then required new notes, and Hursey Transportation Company, Inc., acting through its manager-bookkeeper, using the note forms of the bank, wrote up the notes sued on, which Hursey Transportation Company, Inc., acting through its president, signed for the purpose stated and delivered to Canulette Shipbuilding Company, Inc. Canulette Shipbuilding Company,' Inc., then indorsed said notes and returned them to the Bank of Slidell. Bank of Slidell required plaintiff’s indorsement as a prerequisite to receiving them, and giving Canulette Shipbuilding Company, Inc., credit for the amount which the notes called for. The notes not being paid at maturity, Bank of Slidell called on Hursey Transportation Company, Inc., for payment. Not receiving payment, it then called on Canulette Shipbuilding Company, Inc., to make good the amount it had received on the notes. Canulette Shipbuilding Company, Inc., made good the amount, and the present suits followed.

There is no dispute about the important facts. Hursey Transportation Company, Inc., received from Canulette Shipbuilding Company, Inc., full consideration for the notes in the way stated. The maker of a negotiable instrument, by making it, engages to pay it according to its tenor. Act No. 64 of 1904, sec. 60.

Canulette Shipbuilding Company, Inc., received no value for its indorsement from Hursey Transportation Company, Inc. It indorsed the notes for purposes, of its own to make them acceptable to the bank, therefore, when Hursey Transportation Company, Inc., failed to pay the notes, Canulette Shipbuilding Company, Inc., having by its indorsement bound itself on the notes to the bank, it was obligated to make good to the bank the sum it had received on the notes. And, having complied with its obligation to the bank, it was legally subrogated to the rights of the bank against the maker of ithe note. Civil Code, art. 2161, par. 3. It has the right of the bank to recover of the maker the amount called for by the notes.

In fact, as these notes represent the amount which the defendant owed the plaintiff on open account, unless it collects the amount due thereon from the defendant, it will not have in fact truly received the amount due it on the account, in settlement of which the notes were given.

The judgment appealed from is correct.

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


text:
    No. 743
    First Circuit
    SCOTTISH UNION AND NATIONAL INS. CO. v. THE BAIST LUMBER & SHINGLE COMPANY, INC.
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and, Review Refused by Supreme Court.)
    J. C. Hollingsworth, of New Orleans, and Laycock, Borron & Lay cock, of Baton Rouge, attorneys for plaintiff, - appellant.
    Schwing, Morrison, Schwing & Obier, of Plaquemine, attorneys for defendant, appellee.
   MOUTON, J.

This appeal is taken from a judgment rejecting the demand of plaintiff for $1,000, alleged value of a dwelling house, property of George A. Banta, Jr., destroyed by fire ignited by sparks alleged to have been emitted from the smokestack of defendant company’s sawmill.

The building caught on fire in the evening of October 11, 1924, about 7:30 or 8 o’clock. The fire alarm was sounded and many persons rushed to the scene. Several witnesses for plaintiff testify that they ran towards, the building immediately and saw fire blazing on the roof. Not one of these witnesses said, however, that they saw the roof set on fire by sparks falling from the smokestack of defendant’s mill. The weather was extremely dry at the time, and .evidently they merely inferred that the sparks from the smokestack had ignited the roof. These witnesses said that previous to the fire, and on the same evening, they, had noticed the falling of sparks from the smokestack which gave color to their impression about the origin of the fire. On the other hand, several witnesses for defendant company, some of whom got to the building a minute or two after the fire alarm,- say that they saw no fire on the roof; that when they first ;saw it, the flames were coming from the inside of the house, shooting upwards through the roof. A lady,, whose dwelling was about (ten . feet from the building says when she first saw the fire it was blazing from the kitchen. No witness, however, for either plaintiff or defendant could testify as to the origin of the fire. There is therefore no testimony from these witnesses to support the averment of plaintiff company that the. building was set on fire by. sparks emitted from the smokestack of defendant’s mill.

It is alleged in the petition that the smokestack was not equipped with a spark arrester or device to prevent the escape of sparks or live coals from the smokestack. This was really the alleged cause of negligence on the part of defendant company upon which was based the ground of complaint.

The defendant’s mill was erected and put in operation in July, 1923. It is shown that the smokestack was equipped with a, spark arrester when the mill was built. This equipment it is shown, was attached to the smokestack under the instructions of Mr. Shuman, at the time inspector for the Louisiana Fire Insurance Bureau. It also appears from the evidence that this spark arrester was in good condition when the fire occurred in October, 1924, ,and had remained as installed without change or modification.

The proof shows that on (.he day of the fire, Saturday, October 11, 1924, the mill, as usual, had closed at about 5 o’clock. When the mill closed, it is shown, there was a little fire under one of the boilers and none under the other two. The force draft had been cut off and there was nothing left but a banked fire under the boilers. Under such circumstances, it is proved by Mr. Baist, president of defendant company, the watchman who was left at the mill the evening of the fire and by others, that no sparks or live coals could go through the arrester at the .top of the smokestack which was at an elevation of about one hundred feet from the ground. The testimony of Mr. Baist and the other witnesses, above referred to, has not been contradicted.

The testimony of plaintiff’s witnesses, above alluded to, could only raise a presumption of fact that the fire was caused by sparks emitted from the smokestack of the mill, but as was said in Edrington v. Louisville, N. O. & T. R. Co., 41 La. Ann. 96, 6 So. 19, 21, we think that the testimony of defendant “has effectually repelled that presumption by establishing quite the reverse,- namely, the taking of all required precautions, and the physical improbability of the occurrence, under the circumstances charged.” To the same effect are the decisions in Higdon v. W. R. Pickering Lumber Co., 148 La. 504. 87 So. 252; Laurel Hill Gin & Mfg. Co. v. Yazoo & M. V. R. Co., 149 La. 224, 88 So. 801.

We find that plaintiff has failed to prove its demand with legal certainty, and that there is no ground to warrant a reversal of the judgment rejecting the claim.


text:
    No. 768
    First Circuit
    CANULETTE SHIPBUILDING CO., INC., v. HURSEY TRANSPORTATION CO., INC.
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      (No Syllabus)

      L. V. Cooley., Jr., of Slidell, attorney for plaintiff, appellee'.
    S. W. Provehsal, Jr., of Slidell, attorney for defendant, appellant.
   ELLIOTT, J.

Canulette Shipbuilding Company, Inc., alleges that it was required by Bank of Slidell to pay a note for $2,-000 on which it was the indorser, but of which Hursey Transportation Company, Inc., was the maker; that, having paid the note in conformity with its obligation as indorser, Hursey Transportation Company, . Inc., is indebted .to it for the amount paid, with interest and attorney’s fees as stipulated in the note..

The note in question is annexed to and made part of the petition.- -

Hursey Transportation Company, Inc., defendant, excepted to plaintiff’s petition on the ground that it did not disclose cause or right of action, for the reason that defendant, while apparently maker of the note,' was not' the maker, but was in truth and in fact the indorser, and the plaintiff, the maker.

The court, acting on the face of the petition, overruled the exception of no cause of action, but heard evidence in support of the exception that the petition disclosed no right of action; and, after hearing evidence, overruled it.

The defendant, reserving its rights under the exceptions mentioned, then answered, admitting that it made and executed the note in question, but claimed that, as between plaintiff and defendant, the plaintiff had received the consideration and was the prior obligor. It denied that plaintiff was an accommodation indorser for defendant. It admitted that' it did not pay the note, and that plaintiff did pay the amount due on the note to the bank; alleges that plaintiff negotiated the note, obtained the money for same, and that, when it paid the note, the note was discharged, and there was no obligation on defendant to pay same.

The present suit, No. 5574, was. consolidated and tried together with the suit for $1,000, No. 5573 on the docket of the lower court, brought by the same plaintiff against the same defendant. 132 So. 771. The two cases are dependent on the same law and facts. The defendant filed the same exception in the present suit, No. 5573, and the lower court acted on it in the same way.

There was judgment in each case in favor of the plaintiff as prayed for. In each case the plaintiff appealed.

For the reasons assigned in the suit entitled same as above, but No. 5573, the judgment appealed from herein is .correct.

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