text:
    No. 9134.
    Orleans
    PEARCE FILMS, INC., v. J. H. DUMAINE, Appellant.
    (January 18, 1926, Opinion and Decree.)
    (February 15, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 351.
    In case of conflict between the testimony of plaintiff and of defendant, the Court will be governed by the preponderance of the testimony.
    Appeal from Civil District Court, Hon. Mark M. Boatner, Judge.
    This is a suit upon an open account.
    There was judgment for plaintiff and defendant appealed. Judgment amended and affirmed.
    St. Clair Adams and Francis P. Burns of New Orleans, attorneys for plaintiff, appellee.
    M. C. Scharff and Jos. Lautenschlaeger of New Orleans, attorneys for defendant, appellant'.
   CLAIBORNE, J.

This is a suit upon an open account.

The plaintiffs alleged that they purchased the accounts of Pearce Films against the defendant J. A. Dumaine by Act of March 14, 1921; that between October 13, 1919, and March 7, 1921, they rented to the defendant films for Mars theatre

to the amount of________________________________$1,291.50
subject to a credit of-------------------------- 946.29
leaving a balance due of----------------$ 345.21

as the whole appears by itemized statements annexed to the petition; that they frequently presented the account herein sued on to the defendant, who acknowledged its correctness and paid sums on account.

Defendant admitted that he operated the Mars theatre, but that the rentals charged to him are incorrect and have been overcharged in the following instances:

The serial Vengeance, $5.35, instead of $5.25; Confession, $81.38, instead of $50; Devil’s Angel and Woman Under Oath, charged twice; all overcharges amounting to $94.85; that he has not been given the proper credits; that he paid by checks, $1,017.36; that he is entitled to credits for returns up to $120.21 and further credit of $57.11 for Vengeance $10, Husband and Wives and “Adele” not received at his theatre, and a further credit of $34.58 for Home Without Children; that he employed A. J. Derbes, a public accountant, to examine the said accounts sued on, whose report shows that defendant is indebted to plaintiff only in the amount of $1.97; defendant further denied that he ever acknowledged the correctness of plaintiff’s account.

There was judgment for plaintiff and defendant has appealed.

• Although it is true that the report of the accountant employed by the defendant finds defendant indebted unto plaintiff only in the amount of $1.97,' the defendant admits owing the plaintiff $134.65. This is an admission that the accountant’s report is not reliable.

Hilton J. Herman Was employed by the plaintiff; his principal duty was that of managing the film business, selling and booking films; the items on the statements are correct to his personal knowledge; the charges are $1,291.50, and the credits $946.29; he explains the charges of the different films mentioned in defendant’s answer the Vengeance and others; duns were sent to him weekly and accounts monthly, and he never contested the correctness of any one until after suit was filed against him.

L. V. Schexnayder was also employed by the plaintiffs since February, 1920, as booking clerk; he assisted Mr. Herman, the entries in the booking record from February 11, 1920, to date March, 1921, were made by him; he explains away the complaint about the Husband and Wife and other films.

The statement referred to by defendant was made by Louis H. Pilie; he is not a certified accountant; he is employed by A. J. Derbes, who is himself a certified public accountant; he made his audit from “a statement purporting to come from Pearce Films, Inc., and also checks which were purported to be paid to the Pearce Company,” all furnished him by defendant.

Arthur Dumaine, the defendant, testified that he received statements “sometimes once a month and sometimes twice a month”; he received a letter from Mr. Herman dated December 24, 1919, and several other letters; he did not answer them; “he rang me up and I told him I had all my checks to show that I paid my bills and I didn’t owe him anything.”

Cyril Dumaine testified that “Husband and Wives” were never played at the Mars and Poland theatres and Adele was cancelled out.

This testimony is not contradicted. The defendant is entitled to those items to a credit of $39.50.

With the exception of these items we are of the opinion that the preponderance of the testimony is in favor of plaintiff and that there is no other error in the judgment appealed from.

It is therefore ordered that^ the judgment appealed from be reduced from three hundred and forty-five 21-100 dollars to three hundred and five 71-100 dollars, and as thus amended that it be affirmed, defendant to pay costs of appeal.

Judgment amended and affirmed.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 10,286.
    Orleans
    WALTER GOLDMAN v. JOHN H. THOMSON, Appellant.
    (February 1, 1926. Opinion and Decree.)
    (February 15, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 594.
    Where the recitals in a judgment taken by default are that “plaintiff has made due proof of his claim,” it will be presumed that legal and sufficient evidence was before the Court.
    2. Louisiana Digest—Judgment—Par. 43.
    In City Court suits for money demands within amount stated in Act 128 of 1921, no preliminary default is necessary, and delays for answering are three days only, Sundays and holidays excluded. A judgment taken in conformity with these provisions is valid.
    Appeal from the First City Court, Parish of Orleans, Section “C”, Hon. William V. Seeber, Judge.
    Plaintiff obtained a judgment by default. Defendant asked for a new trial, which was refused. Defendant appealed. Judgment affirmed.
    B. T. Cahn of New Orleans, attorney for plaintiff, appellee.
    Arthur Landry of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiff sued defendant in the First City Court of New Orleans and obtained judgment by default in the sum of $140.00. The material allegations of the petition, sworn to by plaintiff’s attorney, were as follows:

“That petitioner sold and delivered to the said defendant at his instance and request certain goods and merchandise for the agreed price of $140.00. That said sale and delivery was made on and about September 2, 1922; that the merchandise was delivered to defendant, at his residence, No. 7934 Poplar Street, to defendant’s wife, and was by her accepted and received for the said defendant; that said merchandise was payable in cash on delivery. * *• *
“Petitioner avers amicable demand and failure on the part of defendant to pay the amount past due.”

Citation was duly served upon defendant on February 3, 1923, and judgment by default was taken on February 12, 1923.

On February 15, 1923, defendant filed motion for a new trial, and on September 23, 1923, after due hearing, same was denied. A suspensive and devolutive appeal was taken by defendant on October 5, 1925.

On February 12, 1923, the same day upon which judgment by default was taken, plaintiff made and filed in Court an affidavit reading as follows:

“Walter Goldman, of full age, a resident of this city, who having been first duly sWorn, according to law, declared:
“That he is the plaintiff named in proceeding No. 109,531 of the docket of the First City Court of New Orleans, entitled Walter Goldman vs. John H. Thomson, Div. “C.” That he has read the petition therein filed; that all the facts and allegations therein are true and correct; that said defendant John H. Thomson is still indebted unto affiant in the full sum of one hundred and forty dollars, no part of said indebtedness having been paid since the institution of the said suit.
“Sworn to and subscribed before me this 12th day of February, 1923.
WALTER GOLDMAN (Sgd.) BERTRAND I. CAHN (Sgd.),
Notary Public.”

The judgment, which was duly rendered and signed by the trial judge, contains other recitals that plaintiff made due proof of his claim. The following reasons (among several others which need not be noted for purposes of this appeal) are set forth in the motion for new trial, and are urged on appeal as grounds for reversal of the judgment:

First. That counsel for plaintiff took a default contrary to the agreement with defendant’s counsel, “that he would wait a week for the filing of an answer or other defenses on behalf of defendant.”

Second. That no preliminary default was taken and that judgment- by default was entered in less than ten days after service of citation, all in contravention with Section 91, Article YII, of the Constitution of 1921, wherein it is provided that suits filed in the First City Court of the City of New Orleans, involving money demands above one hundred dollars and not exceeding three hundred dollars, shall be tried, and the testimony and evidence therein taken in the same manner as cases tried in the Civil District Court.

Third. That defendant was not legally cited.

Fourth. That the suit was upon a contract for sale of merchandise, payable cash on delivery—as alleged by plaintiff— and not a suit upon open account, and hence .judgment was rendered on insufficient proof; that is to say, upon the ex parte affidavit above noted.

I. The record shows that domiciliary service of citation was made on February 3, 1923, and that judgment by default was not taken until February 12, 1923, that is, ten days after filing of the suit, and nine days' after citation. There is no legal proof in the record as to the alleged agreement between counsel regarding delays for answering, but if such an agreement existed there is record proof that it was not violated.

II. Act 128 of 1921 is the law governing procedure as to delays for answering, and also as to taking of defaults in suits similar to the one now under considerar tion. It is expressly stated in the Act that delays for answering shall be three days only, Sundays and holidays excluded, and that no preliminary default shall be necessary prior to judgment.

III. The return on the citation shows that defendant was legally and properly cited. The objection as to delays for answering before taking of default admits citation, and waives all formality as to service thereof.

IV. It is plain from the allegations of the petition that the contract for merchandise, which was not paid for on delivery, gave rise to a demand for a sum due on open account. Under these circumstances, an affidavit of the correctness of the account was prima facie proof of the demand, and constituted sufficient evidence to justify a judgment by default, all as provided by Act 90 of 1904, amending Article 312 of the Code of Practice.

Although there is no note of evidence in the record showing that the affidavit of plaintiff, as above set forth, was offered in support of the demand, there is a specific recital in 'the judgment to the effect that plaintiff made due proof of his claim.

“A judgment by default must express the ground on which it is rendered, but it is sufficient to state in the final judgment that the demand was proved.” C. P. Art. 315.

In Fowler vs. Smith, 1 Rob. 448, it was held:

“Where it is not certified that the record contains all the evidence adduced on the trial, and the judgment purports to have been rendered on due proof of the plaintiff’s demand, it will be presumed that evidence was offered to satisfy the court, though the record does not otherwise show that any was produced.”

In Huhhell vs. Clannon, 13 La. 494, the court, affirming a judgment by default, said:

“The judgment expresses that it was confirmed and made final ‘on due proof of the plaintiff’s demand’; and the 315th Article of the Code of Practice, cited by the appellant, positively declares that this is sufficient.”

The rule is broadly stated in Black on Judgments, Sec. 271, as follows:

“When nothing whatever is shown, if evidence were necessary to have authorized the particular decision complained of, it will be presumed that the evidence was before the court and that it fully justified the conclusions reached.”

In Lamazon vs. Bromschwig, et al., No. 7693 Orl. App. (Book 56), this Court held:

“When it appears that testimony which was taken in the trial of the case is not in the transcript, the presumption is that the judgment of the District Court was rendered upon sufficient evidence and that it is correct; in the absence of a statement of facts, the judgment will be affirmed.
“There is neither law nor rule of court that requires a litigant to make a note of evidence or to take down the testimony in writing.”

See also Miller vs. Whittier, 6 La. 72; Allen vs. Peytavin, 10 La. 40; Patterson vs. Bonner, 15 La. 232; 1 Rob. 448; Escurieux vs. Chapduc, 4 Rob. 325; Landry vs. Pres. Dir. of Jefferson College, 7 Rob. 179; Succession of Franklin, 8 La. Ann. 437; Smith vs. Stewart, 22 La. Ann. 73; Graham vs. Rice, 23 La. Ann. 393; Smith vs. City of N. O., 24 La. Ann. 20; Fuqua vs Chaffe & Brother, 26 La. Ann. 148; Jacobshagen vs. Moylan, 26 La. Ann. 734; City of New Orleans vs. Labatt, 33 La. Ann. 107; Verges vs. Gonzales, 33 La. Ann. 415; Nugent vs. Stark and Husband, 34 La. Ann. 631; Fazende & Seixas, In Re., 35 La. Ann. 1147; Succession of Chas. M. Pilcher, 39 La. Ann. 364, 1 So. 929; Miller, Lyon & Co. vs. Cappel & Curry, 39 La. Ann. 881, 2 So. 807; Succession of John T. Moore, 42 La. Ann. 335, 7 So. 561; Harrison & Bro. vs. Their Creditors, 43 La. Ann. 91, 9 South. 15; Goodrich vs. Newell, 43 La. Ann. 378, 8 So. 921; State vs. Dennie, 51 La. Ann. 610, 25 So. 394; Ansley vs. Stuart, 123 La. Ann. 341, 48 So. 953; Garig vs. Truth Printing & Pub. Co., 123 La. Ann. 902, 49 So. 632; Freeman on Judgments, Vol. I, Secs. 387, 388.

None of the mandatory grounds for the granting of a new trial as enumerated in Article 560 C. P. are shown to have arisen in the instant case. The judgment appealed from is correct, and should he affirmed.


author: MOUTON, J.

text:
    No.-.

      Orleans

    LOUISIANA FARM BUREAU COTTON GROWERS’ CO-OPERATIVE ASSOCIATION v. W. E. BANISTER
    (June 12, 1925. Opinion and Decree.)
    (November 10, 1925. Rehearing Refused.)
    (Original Opinion may be found in 2 La. App. 620.)

      (Syllabus by the Eilitor.)

    ON APPLICATION FOR A REHEARING.
    1. Louisiana Digest—Agriculture—Par. 14.
    Farm laborers who for their work are to be given a share in the cotton produced by them are not co-owners of their promised. share of the cotton after it has been ginned and bailed, but have a privilege on the cotton.
    2. Louisiana Digest—Obligations—Par. 172.
    A party entering into a contract must abide by the legal consequences of his agreement, which entitles him to the right of a laborer for his wages and not to those of a co-owner in the products of the farm.
    3. Louisiana Digest—Pleading—Par. 113.
    One who alleges that he is a co-owner must be restricted to that claim, even though he may have a privilege which .is not alleged.
    This is an opinion on an application for a rehearing.
    Taylor and Porter and Jos'. A. Loret of Baton Rouge, attorneys for plaintiff.
    Ott and Johnson of Franklinton, attorneys for defendant.
   MOUTON, J.

In this case, as held in our original opinion, it was shown that defendant had three tenants on his farm in 1924. He furnished harness, mules and equipments to two of the tenants, while one furnished his own equipments. Two were to receive one-half of the crops produced by them on defendant’s farm, and the other one-fourth. In the Bres & O’Brien vs. Cowan, 22 La. Ann. 438, the owner of the plantation had agreed to give the tenants “one-third of the gross product of the cotton.” In the Lalanne Bros. vs. McKinney, 28 La. Ann. 642, the court said the contract in that case was exactly like the one reported in Bres & O’Brien vs. Cowan, 22 La. Ann. 438. In both cases the Court held that these tenants were hirelings or laborers to whom the owner of the farms had contracted to' give a share of the crop they would produce, in Iie.u of wages, for their labor. In the course of the opinion in the 22nd Annual case, the Court said: “The plantation was the Cowans’; the cotton as it grew was theirs; the supplies were furnished to them for the crop; and every fibre of the cotton, as it matured, was affected by the privilege of the plaintiffs.” Obviously, if the Court had considered for a moment that the tenants on the farm had had an undivided interest as owners in the cotton for their promised share or portion therein, it would not have held that every “fibre” thereof was affected with a privilege for the supplies which had been furnished to the defendants, and certainly not to the tenants. In that case, Faulk, an intervenor, claimed nine bales of cotton as owner and a privilege upon 19 bales. This privilege was abandoned, and it is to his claim as owner that we are here concerned. It was shown that the tenants were indebted to the Cow-ans, defendants and owners of the farm. This claim of the Cowans was assigned to Faulk, intervenor. Upon this state of facts the Court said: “The defendants * * * rolled out to the laborers the nine bales as their promised one-third of the crop, and the laborers then turned over this cotton to Faulk in satisfaction of their indebtedness to him as transferee of the claim of defendants.” The Court, after expressing some doubt as to whether the defendants were really indebted to Faulk, said, that the effect of the deal was to pay a debt of defendants “with cotton on which the plaintiffs had a privilege of a high character.” Further on the Court said, in referring to Faulk, quoting: “He appears in the case as a party interposed to rescue nine bales of cotton for the benefit of defendants from the just grasp of plaintiff’s privilege.” These nine bales, although they had been rolled over to the tenants as their “promised one-third of the crop,” were held to be encumbered with the privilege of plaintiff, furnisher of supplies to the Cowans, defendants. It is true that the Court found that these tenants were indebted to the defendants for supplies, but nowhere intimated that they were in debt to plaintiff for any supplies. Clearly, their indebtedness for provisions to the Cowans could not have the effect of creating a privilege in favor of plaintiff furnisher of supplies to the Cowans. It is equally clear that the assignment by the Cowans to Faulk of their claims for the provisions furnished to the laborers or tenants could not create a privilege on the nine bales of cotton in favor of plaintiff in the case. The privilege which the Court recognized in the case was grounded on the finding that every “fiber of the cotton as it matured,” and in fact after it was baled, was the property of the Cowans, owners of the farm, and was affected by the privilege of the plaintiffs. If the tenants or laborers had been co-owners therein no such conclusion could have been reached. It will also be observed that in the concluding part of the opinion in the Cowans’ case, the Court said no question of the laborers’ privilege had been raised, as no privilege existed when the tenants entered into their contract, again emphasizing its findings that they were not co-owners, but might have had a privilege for their wages if there had been a law granting them a lien therefor at that time. Counsel for applicant contends that the effect of our decision infringes on the right or liberty of contract. .No such result follows from our decision. A party has the perfect right to enter into a contract of the character in question. Such a contract, however, is governed by the rules which are adapted to its nature, and the party entering into it must abide by the legal consequences of his agreement, which entitle him to the rights of a laborer for his wages, and not to those of a co-owner in the products of the farm. In the instant, case, two bales of cotton were seized in which the two intervenors claimed an undivided interest as owners, and which had not been turned over to them as their share of the crop, as was the situation in the Cowans’ case, above referred to. It therefore appears that the “promised share” in the crop had not been segregated, as before stated, and no delivery thereof had been made to intervenors. They were not co-owners with defendant herein for the undivided' interest in the two bales of cotton seized herein. At most, these intervenors had a lien or privilege for their share in the crop, as wages, but this is not asserted by either in these proceedings. They must be restricted to their claim as owner, and can not obtain relief, as such, for the reasons hereinabove stated. The complaint of the applicant is direct mainly, if not exclusively, to our finding on the question above discussed. Our conclusions were based on the 22nd and 28th Annuals, which have never been reversed in so far as we are aware, and which we find to be decisive of the issues presented. We will state, however, that if the. contract is to be considered as a lease, the defendant could have demanded the delivery of his portion of the crop, and could have turned this over to the Association for the reasons stated in our original opinion, and which we will not reiterate. The proof, shows that defendant willfully violated his contract with plaintiff Association, and must be held to his obligations as originally .decreed.

The rehearing is therefore refused.


author: CLAIBORNE, J.

text:
    No. 9987
    Orleans
    W. A. McBRIDE, Appellant, v. N. O. PUBLIC SERVICE, INC.
    (February 15, 1926, Opinion and Decree.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Evidence—Par. 349, 351.
    When the manner in which an accident is alleged to have taken place is improbable it will take but a slight preponderance of evidence to justify the conclusion that the accident did not occur in the manner alleged.
    Appeal from Civil District Court, Hon. Mark M. Boatner, Judge.
    This is a damage suit for injury alleged to have been suffered through the fault of defendant’s employees.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Frank S. Normann, of New Orleans, attorney for plaintiff, appellant. „
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for injury alleged to have been suffered through the fault of defendant’s employees.

Plaintiff alleged that at some time between 12 and 1 o’clock a. m. of August 12, 1923, he was riding as a passenger on a Danphine street car of defendant company and was seated in the rear of the car; when the car reached midway between Andry and Flood streets, on Chartres street, the plaintiff rang one bell to have the car stop at Flood street, where plaintiff desired to get off; that the conductor heard his signal and gave the motorman one bell to stop the car at Flood street; that at the same time plaintiff arose from his seat and walked to the rear platform where he remained standing with his hands holding the brass handle of the folding doors; that when the front part of the car had reached the uptown side of the intersection of Flood and Chartres streets, plaintiff placed “his feet on the step of the car” and held the grab iron with his left hand, without objection from the conductor; that when the rear of the car was about midway in the intersection of Flood and Chartres streets, petitioner realized that it was not possible to stop the car at the usual and customary stopping place and asked the conductor; “How come the ear was not going to stop?”; that the conductor was in the act of writing out a report; that the conductor reached for the leather cord and gave two bells to the motorman “to go ahead” just as he wás about to pass the usual stopping place; the ear which was in motion gave a severe jolt and jerk, which petitioner alleged was caused by the motorman feeding the motors; that as .a result of the jolt and jerk “petitioner was thrown violently forward from and off of the step of said car with the result that your petitioner suffered a crushing injury to his left foot, completely macerating the member, by reason of coming in contact with the wheel and steel rail of the defendant’s car and track; that as a result of the injury it became necessary to amputate his foot above the ankle; that the accident was caused by the negligence of the defendants’ employees to which plaintiff did not contribute. Plaintiff claims $10,904.80 for the injury and pain and loss of earnings.

The defendant denied all the allegations of the petition and further answering averred: That some time after 2 o’clock a. m. on August 12, 1923, a colored man whose name waos given as William McBride, alighted from a Dauphine car at the corner of Chartres and Flood streets, and as he was apparently intoxicated the conductor, before starting, assured himself that the passenger was safely on the sidewalk; that thereafter William McBride was injured at a point below Flood street; that if injured as alleged in the petition, the injuries were caused by plaintiff’s own negligence in failing to take the proper care required of a man in his condition.

There was judgment for the defendant and plaintiff has appealed.

The plaintiff supports the allegations of his petition by his own testimony. He is corroborated, as to his fall from the platform, by Benjamin Davis, another colored man like himself, driver of a night wagon at the slaughter house, and Z. H. Rieulfy, another colored man, solicitor for the People’s Life Insurance Co. The behavior of this witness upon the stand was so peculiar that the judge asked him if he had been drinking and he admitted that he had had “one drink” in the morning.

Defendant’s theory of the case is entirely different. It is this:

Henry Moss testified that on the morning of August 12 he was acting as motorman on the Dauphine car of defendant company, No. 713; that he left the station at the corner of Canal and Wells streets at 1:15 a. m.; that the next car after him was at 1:45, and the third at 2:15; that the conductor on his car was Joseph Meyers; that’ he made a long stop at Flood street because his conductor was leading a man out of the car; that he led him under Mumme’s shed, and then he proceeded on his run; that the man the conductor was leading out was the plaintiff, McBride; that McBride was under the influence of liquor.

Joseph Meyers was conductor on the same car, No. 713, on the morning of August 12, with Henry Moss as motorman; he has known the plaintiff when he lived' down on Flood street since the witness was a boy in short pants; he picked up the plaintiff, McBride, as a passenger on his 1:15 trip at the corner of Canal and Rampart streets; he was intoxicated; he asked Moss to put him off at Flood street if he went to sleep; he fell asleep; witness picked him off his seat and brought him to the side of the Mumme grocery and told him to go home; he then returned to his ear and continued on his trip; after he got off his car in the morning at 4:45 he learned that plaintiff got his foot crushed.

McBride admits that he had taken “two drinks”.

William Jones was the motorman of the car No. 719; he left the corner of Canal and Wells streets at 1:45 a. m., with Dominick as conductor; that would put him at the corner of Flood and Chartres streets at about 2:15 a. m.; the last time he stopped, before the accident, was at the corner of Flood and Chartres streets; he stopped there to discharge a passenger, a dead stop; after he had “hit” about a hundred and some odd feet in the center of the block he heard a jolt from the front end of the car; he had seen nothing because it was very dark in the center of the block; and the lights threw a shadow in front of the car; he heard a moaning and stopped as quickly as possible; he got off the ear and saw a man sitting holding his leg up; the crew of the'car ahead were Meyer-and Nuss, 30 minutes ahead.

Albert J. Dominick was the conductor on the car No. 719 on the morning of August 12; Jones was the motorman; they left the corner of Canal and Wells at 1:45 a. m.; they reached Flood street at 2:15; they made a stop on that street to discharge Schule who was a passenger from the rear platform; no one was thrown off of the car; the next stop was after the accident, about 120 feet from Flood street; the jolt of the car attracted his attention; the motorman stopped the car without a bell; he called upon the main office for the ambulance; he used the phone at Sehule’s home, 615 Flood street; Howell and Broussard, going out fishing, and another gentleman were in the car; the front truck ran over plaintiff’s foot.

These four employees of defendant company are corroborated by the following witnesses:

1st. Fred Schule lives on Flood street; the fourth house from the corner of Chartres; he was the man who got off of the car when the accident happened; he got off from the back end; the* car stopped to let him off; there was no one else on the platform waiting to get out; nor any colored man holding the handle bar; the motorman and conductor were Jones and Dominick; after he got out of the car he went to the left towards the woods; it was about 2 o’clock; he heard the car jump as if it had run over something; he turned back, he met the conductor who wanted to use' a telephone, and he brought him to his house; he went back to the car with the conductor and saw the man with his leg cut; he was lying about 125 feet from Flood street; Mr. Howell was there.

2nd. Andre L. Broussard, office manager for McDermott Surgical Instrument Co., testified that he was standing on the back platform of the Dauphine car August 12, a Sunday; it was between 1 and 2 o’clock; he was on the platform because he was going out fishing and he had a fishing basket and some poles; he does not know the number of the car but recognizes Jones and Dominick as the motorman and conductor; the car stopped on Flood street and he saw a man get off; .after they got to the middle of the block he heard something as though the wheels had gone over something; he saw the man who had been hurt; it was McBride whom he recognizes; when the car stopped on Flood street, McBride was not on the car.

3rd. Charles D. Howell was Working in August, 1923, in the Alden Cotton Mills; on the morning of the 12th he and his wife were coming home from a-dance between half-past one and' two o’clock; they were on the street car that had the accident; the motorman’s name was Jones, a big fat fellow; the car came to a dead stop on Flood street to let out a passenger; then the car gave two jerks or bumps; he rushed to the front and saw a colored fellow had his leg smashed; the front wheel caught him.

4th. Mrs. Charles D. Howell corroborates her husband. She was not swayed or moved off of her seat by the bump.

5th. Miss Elmo Delorde is working for the Capital City Auto Company, and in August, 1923, had been employed by the Southern Cabinet Works; she was living at No. 308 Delery street; on the morning of August 12, 1923, she was in the street car which caused the accident; she knew the crew of the car; the motorman was Bill Jones and the conductor Dominick; she recognized them as they were brought into court; the car came to a stop on Flood street and Mr. Schule stepped off; Mr. Broussard was on the car too; it was the last stop before the accident; the accident happened between 1:30 and 2:30; Mr. and Mrs. Howell were in the car with her; she did not see McBride in the car; she saw Mr. 'Schule get off of the car.

George E. Murphy, claim agent of the defendant company, testified that he saw the plaintiff on August 13 at the Charity Hospital; that the plaintiff told him that he boarded a Dauphine car at the corner of Canal and Rampart streets; that he paid the conductor his fare; that he recognized the conductor whom he knew by the name of Joe; that he had had a few drinks before getting on the car but was not drunk; he asked the conductor to put him off at Flood street; that he went inside of the car and fell asleep; when the car reached Flood street it came to a full stop and the conductor took him out of his seat and helped him out of the car and took him to Mumme’s grocery; that after he had gotten off of the car and as he was crossing the track he was struck and knocked down and his foot was cut off by the car.

Many of the witnesses above named testify that a big tall colored man was on this car No. 719 and created a disturbance, and their description fits the witness, Benjamin Davis.

It is not possible to believe that four employees of the defendant company and five disinterested and reputable passengers could have been procured to testify falsely to the facts stated by the nine witnesses above mentioned. They were all separated.

It is true that six witnesses for the plaintiff, Davis, Riculfi, Martha Servat, Olga Cartwright, Bertucci and plaintiff’s wife, testify that Meyers was the conductor of car 719. But all but Davis and Riculfi came upon the scene after the accident, and had not known Meyers previously. They saw the persons in the uncertain light of the night, and testified one year after the accident, and it is possible that they were in error. The judge who saw and heard these witnesses refused to believe them as against defendant’s witnesses.

But be that as it may, the testimony of defendant’s nine witnesses pitted against the six of plaintiff’s is sufficient to destroy plaintiff’s theory of the accident, which is improbable, if not impossible.

The defendant has produced a photograph of the side of the car No. 719, which is the same as car 713, supported by the testimony of a witness.

The bottom step is 17 inches from the ground; the distance from the front end of the rear step to the rear wheel where it touches the rail is 37 inches, or three feet one inch; the wheel is recessed under the car; from the outside flange of the wheel to the outside line of the car is nineteen inches; the car overhangs the wheel nineteen inches; the arched truck frame upon which rest the two side wheels is four and a half inches from the top of the rail and ten inches from the point of contact of the wheels with the rail.

The plaintiff alleged that as the car gave a jerk, caused by the feeding of the motor, he was thrown violently forward and off the step, with the result that his left foot was caught by the rear wheel and was crushed. The natural result of a sudden forward movement of a car upon a passenger standing on the car looking forward is to throw the passenger backward. A reaction may take place by which the passenger in exerting himself to regain his equilibrium may lose his balance and fall. But while plaintiff was upon the steps, and the car was moving forward, that fall could have been upon the side of the steps or behind them, but not ahead of them. Plaintiff’s feet upon the steps were at least three feet one inch from the nearest point of junction of the car wheel with the rail and many more inches from the front of the wheel. By no acrobatic feat, had he attempted, could he have swung his feet forward from the handbars so as to have brought them in • front of the wheel and under the truck frame only four and a half inches from the rail. Had he succeeded, his foot would have been instantly crushed, kept in position by friction and the weight of his body. But the testimony is that the accident occurred at a distance not less than 75 feet from the corner of Flood Street, thus confirming the theory that he was not crushed by a car from which he fell.

We have given this record more than ordinary attention, and we have come to the conclusion that the testimony does not justify us in concluding that plaintiff was thrown off of defendant’s car. The District Judge was of the same opinion, and his judgment is therefore affirmed.


author: ELLIOTT, J.

text:
    No. 8033
    First Circuit
    ALEXANDER HAMILTON INSTITUTE v. M. B. SACHSE
    (Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 278.
    A record filed two weeks after the return day is filed too late and the appeal is therefore dismissed.
    Appeal from the Twenty-second Judicial District Court, Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit based on a contract with the correspondence school.
    There was judgment for defendant and plaintiff appealed.
    Suit dismissed on motion.
    Charles A. Holcombe, of Baton Rouge, attorney for plaintiff, appellant.
   ELLIOTT, J.

This suit is based on a contract with the plaintiff, a correspondence school, in which the defendant agreed to pay tuition. The plaintiff alleges that the sum claimed, $102.00 is due, and the defendant resists payment; contending that the plaintiff failed to comply with its part of the contract.

The district judge, after trial, rejected plaintiff’s demand and the plaintiff appealed.

The defendant and appellee moves in the court to dismiss the appeal, on the ground that the record was filed in this court after the return day had expired, and the right had been lost.

The appeal was taken June 22, 1925, and was made returnable to this court on July 20, 1925.

The record was not filed in this court until August 3, 1925.

We think that the appeal has been lost and that the motion to dismiss must prevail.

It is therefore, ordered, adjudged, and decreed that the appeal herein taken be dismissed, at the cost of plaintiff and appellant.


author: WILLIAM A. BELL, J.

text:
    No. 10,238
    Orleans
    STATE EX REL. MRS. BERTHA GERVAIS, WIFE OF ANDREW L. TUJAGUE, ET AL., Relators and Appellees, v. AUGUSTUS C. WILLIAMS, RECORDER OF MORTGAGES, ET AL., Appellant.
    (February 15, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Mandamus—Par. 23, 48, 87.
    Mandamus properly lies against a Recorder of Mortgages and a furnisher of materials to compel cancellation of the latr ter’s attested account filed more than thirty days after registry of notice with the Recorder that the o.wner of the building has accepted the work.
    Appeal from Civil District Court, Div. “B”, Hon. M. M. Boatner, Judge.
    This is a mandamus suit against the recorder of mortgages.
    . There was judgment in favor of the relators and defendants appealed. Judgment affirmed.
    J. J. Landry and Emile Pomes of New Orleans, attorneys for relator and appellee.
    Geo. Montgomery of New Orleans, attorney for recorder of mortgages and appellee.
    E. M. Cahn and W. F. Conkerton of New Orleans, attorneys for defendant appellant.
   WILLIAM A. BELL, J.

Relators herein, as owners of a certain building situated in the City of New Orleans, bring this action for alternative writs of mandamus, directed against.the Recorder of Mortgages for the Parish of Orleans and against the Standard Sanitary Manufacturing Company, to compel the erasure of a certain lien and privilege recorded by the latter respondent for materials furnished to a sub-contractor and placed in the relators’ building. The building contract was executed, recorded and bonded under the provisions of Act 139 of 1922.

All allegations necessary to sustain the writ are admitted, except the date upon which it is alleged that final payment was made to the contractor.

The terms of the building contract provided that the total price of the building should be paid in five installments of $1,-890.00 each. Relators’ written notice of acceptance of the building was made upon payment of the fourth installment, to-wit: August 15, 1923, and recordation of said notice was filed in the Mortgage Office on the same date. The fifth and final installment was made in accordance with law, thirty days after recordation of the owners’ acceptance of the building. This payment was evidenced by two checks aggregating $1,890.00. Each check was dated September 17, 1923, and was payable to the contractor. One of these checks was for the sum of $1,680.00, and the other for $210.00; both of these checks were drawn by the Homestead Company, who carried the loan for relators. The small check was indorsed by the contractor, and turned over to relators, who, in turn, delivered it to the Homestead Company, the latter company holding it for account of relators until some time in October, 1924. This transaction as to the smaller check was had because of the fact that the contractor had not been able to build a fence in connection with the building for lack of skilled labor; and it appears that he took the matter up with the building expert and with relators, and upon reaching an agreement between them as to the price of the fence, relators agreed to accept the work on the building as it was. It was necessary for the Homestead to pay out the entire last payment, because relators’ loan from them was based upon the entire contract price, and it was upon that price that the Homestead was to draw interest.

The check appears from the indorsements thereon to have been ultimately deposited by the Homestead Company, and there is no evidence in the record that the fence was ever built.

It is contended by the Standard Sanitary Manufacturing Company, one of the respondents herein, that the building was never completed, and that until completion there could not have been a valid legal acceptance of the' building by relators, and that therefore the provisions of Act 139 of 1922, requiring recordation of a material man’s lien within thirty days after written notice of acceptance of the work by the owner cannot apply in the instant case.

It appears from the record that this respondent’s attested account was not filed in the Mortgage Office until September 19, 19'23, that is, until 34 days after the recordation of relators’ acceptance of the building.

The sole question for determination is whether the material man’s lien was properly recorded. Act 139 of 1922 is the only law controlling the rights of the parties involved in this proceeding. Section 2 of this Act reads, in part, as follows:

“* * * Every person having a claim against the undertaker, contractor, master mechanic or contracting engineer shall after the date of the completion of said work by, or the- date of default of the undertaker, contractor, master mechanic or contracting engineer, mhil or otherwise send a sworn itemized statement thereof to the owner or his architect or other representative, and record a sworn statement of the amount thereof, of his contract, if it has been reduced to writing, in‘the office of the Recorder of Mortgages for the parish in which the work has been done within thirty days after the registry of notice with the Recorder of Mortgages for the parish where the work is done, by the owner of his acceptance of the work or of the contractor’s default, or the recordation of the architect’s certificate of completion, until which time the delay to file claims of privileges shall not run.
“If at the expiration of said thirty days there are no such claims filed, the Recorder of Mortgages shall, upon written demand of any party interested, cancel and erase from the books of his office all inscriptions resulting from the recordation of said contract or bond as to all parties except the contractor. If at the expiration of thirty days there are such recorded claims filed, the owner or other interested person may file a petition in a court of competent jurisdiction citin'g all -claimants, including the -undertaker, master mechanic, or engineer, against whom said claims are filed, and the surety on the bond ® * * .”

It follows from the provisions of the above quoted Act that the sworn statement required of material men for the preservation of their liens must be filed not from a designated time after completion of the building, as formerly provided in Act 134 of 1906, but as now provided, within thirty days after written acceptance of the building by the owner has been recorded with the Recorder of Mortgages for the parish where the work is done.

In the instant case, there appears from the record that the contractor gave receipt in full for the fifth and final payment of the contract price on the building. This receipt was dated September 17, 1923, and on the same date the expert acting for the Homestead Company certified that all work had been done and materials furnished in accordance with contract and specifications, and that the contractor was entitled to the final payment on the contract. The recordation of the owner’s acceptance of the building was all the notice required by law to all parties concerned, and the Court finds nothing in the transaction here complained of which could have militated to the prejudice of the material men, respondent herein. The recordation of the attested account was undoubtedly irregular under the facts of this case, and the remedy for its cancellation as here sought has been properly brought. In State ex rel. Liuzza vs. Sims, et al., 1 La. App. 487, this court decided (writ by the Supreme Court being denied) the following:

“Mandamus will lie to compel the cancellation of an affidavit in which the existence of a verbal lease is alleged. Affiant, as well as the Register of' Conveyances, causing the illegal registration of such a document, are proper parties defendant to such proceedings."

See also Lanaux vs. Recorder of Mortgages, 36 Ann. 974; State ex rel. Macheca vs. Dunn, 148 La. 460, 87 South. 236; State ex rel. Henderson Iron Works vs. Jeter, 151 La. 101, 92 South. 594.

The decisions of this Court cited in respondent’s brief—State ex rel. Orleans Homestead Association vs. Recorder of Mortgages, 9 Ct. of App. 222; Daniel vs. Vasquez, 9 Ct. of App. 301—have no application to the instant case, the court having had under consideration, when rendering these decisions, the provisions of Act 134 of 1906.

The judgment appealed from is correct, and should be affirmed, at respondent’s cost in both courts.


text:
    No. -
    First Circuit
    ADAM BREAUX v. CHAS. GANUCHEAU, ET AL.
    (December 8, 1925, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Fixtures—Par. 2.
    The instances of immovables by destination given in Article 468 of the Civil Code are merely illustrative and not restrictive.
    2. Louisiana Digest—Fixtures—Par. 2.
    A dough-mixer and engine which were physically attached to the fundus of a building are immovable by destination within the intention of Article 468 of the Civil Code.
    3. Louisiana Digest—Execution—Par. 16, 168.
    A seizure by virtue of a fifa in execution of a judgment which was not based on a vendor’s privilege or any other lien was subordinate to a prior seizure based on a mortgage and could not have the effect of setting aside or annulling the rights of the plaintiff in the prior suit.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit in which an injunction was granted enjoining the sale of a dough-mixer and engine on a writ of fi fa.
    The lower court perpetuated the injunction and defendant appealed.
    Judgment affirmed.
    A. Y. Pave, of Opelousas, attorney for plaintiff, appellee.
    Sandoz & Sandoz, of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

On May 17, 1924, JackArseneaux, for the purpose of securing the sum of $600.00, executed a mortgage in favor of the Bank of Sunset and Trust Company on three town lots with all the buildings and improvements thereon, situated in the village of Grand Coteau,- Louisiana. This mortgage was recorded June 5, 1924. Jack Arseneaux had a baker-shop on that property^ and to which were attached a dough-mixer, engine, ovens, pans, etc., at the time of the execution of this mortgage. The bank, in foreclosure proceedings, levied seizure on these lots and improvements on December 3, 1924. At the sheriff’s sale of the property, under said proceedings, Adam Breaux, plaintiff herein, on January 10, 1925, bought the property with the building and improvements. Chas. Ganucheau, defendant, had obtained a judgment, on open account, against Jack Arceneaux, on November 17, 1924, and which was recorded on the same date. The mortgage Jack Arceneaux had given the bank had been recorded several months before this judgment was obtained or inscribed by Ganucheau. Ganucheau, defendant, obtained the issuance of a writ of fieri facias on his. judgment January 6, 1925, in pursuance of which the sheriff, on January 7, 1925, seized the dough-mixer and engine situated in the bakery that had been erected on the lots mortgaged to the bank.

January 21, 1925, plaintiff filed this suit alleging that the dough-mixer and engine seized by defendant were, immovable by nature and destination and as such were attached to the property he had acquired at sheriff's sale in execution of the bank’s mortgage, and asking for a writ of injunction to arrest the sale. The injunction being granted the sheriff did not proceed with the sale ofi the dough-mixer and engine under the fi fa issued at the instance of defendant, judgment creditor of Jack Arceneaux, the seized debtor.

The first question presented for decision is as to whether or not this dough-mixer and engine were immovable by nature or destination. It is shown that this mixer and engine were placed in the baker-shop by Jack Arceneaux, the owner at the time; that the dough-mixer was necessary to make bread, and that the shop was used exclusively for that purpose. Arceneaux operated this bakery in Grand Coteau and, no doubt, was using this mixer for the purpose of making the bread he needed in his business. This mixer rests on a concrete foundation, and is bolted in the cement. The engine stands a little higher up and runs the mixer with a cogwheel. It is shown that the mixer and engine could be removed from the foundation by cutting the bolts which are attached to the cement and without breaking the foundation. It does not appear that these movables would necessarily be broken or injured if taken or would cause any breaking or injury to the building if removed therefrom. The mixer and engine were not therefore attached forever or in perpetuity to the building within the meaning intended to be conveyed under the provisions of Article 469, Civil Code.

The proof is that the mixer and engine were used exclusively for the manufacture of bread by the then owner, Jack Arceneaux. They were physically attached to the fundus, and there can be no doubt were placed there for the exploitation of the fundus, for its interest and utility. These movables were dedicated by the owner to the service of the fundus and became immovable by destination. C. C. 468; Scovel vs. Shadyside Co., 137 La. 918, 69 South. 745. Though these movables are not enumerated among the objects mentioned in Article 468, Civil Code, they nevertheless come within the purview of that article, the court having in Scovel vs. Shadyside Co., 137 La. 918, 69 South. 745, held that the instances given in that article as being immovable by destination, are merely illustrative and are not restrictive.

Attorneys for defendant contend that the dough-mixer and engine cannot be classed as immovables by destination, because the owner, Arceneaux, did not follow the requirements of Acts 30 and 187 of 1904. These statutes provide that the owner of real estate upon which is located an industrial or manufacturing plant may have machinery or appliances thereto attached classified as immovables by destination by making and having duly recorded a declaration that such appliances are to be considered as a whole, and part or parcel of the real estate on which they may be erected. In Bank of LeCompte vs. LeCompte Cotton Oil Mill, 125 La. 844, 51 South. 1010, the court held that there was nothing repugnant in the acts above mentioned, to the provisions of Article 468, Civil Code, and which remained in full force and effect. The court held that the said acts had provided a means by which the owner of an industrial plant might convert a movable into an immovable by making the declaration pointed out in these statutes. This declaration, says the court, “makes it possible for the owner to immobilize property where immobilization is not certain”. The statutes, if we understand the legislative purpose correctly, were enacted for the purpose of allowing the owner of such plants, by the mere exercise of his individual will, to give the character of an intellectual or moral immovability to the articles or appliances which he might mention in the declaration permitted in these statutes. In the case at bar the owner did not have to depend on such a declaration to convert the mixer and engine into immovables by destination. The fact that they were attached to the building and had been dedicated by the owner to its service, brought them within the grasp of Article 468 C. C., making them immovables by destination. There was therefore no necessity for a declaration in conformity with Acts 30 and 187 of 1904.

The lower court in its opinion held that the seizure by defendant effected after the first seizure by the bank under its mortgage was of no effect or validity, citing Denton vs. Woods, 19 La. Ann. 356, and other decisions. Attorneys for defendant, while admitting that a second seizure cannot interfere with a prior one, contend that the cases cited by the court do not hold or indicate that a subsequent seizure would be invalid or illegal.

In Denton vs. Woods, 19 La. Ann. 356; the court held that the second seizure was ineffective, and did not authorize the disregarding of the first seizure which was the equivalent of holding that it was invalid.

In this case the mortgage was granted by Arceneaux on the lots, buildings and improvements. At that time the mixer and engine were attached to the building where the bakery was located. They became, for the reasons above stated,. immovables by destination. As such, they were effectively incorporated with the lots and buildings, forming, in legal intendment, an integral part of the land and tenements as a whole. The mortgage given the bank covered every part of the property, lots, tenements, including the mixer and engine. The seizure by the bank under the mortgage affected every part of this property. The mixer and engine were validly seized under the mortgage. It is evident that the seizure of this mixer and engine by virtue of the fi fa in execution of the judgment of defendant, which was not based on a vendor’s privilege or any other lien, was subordinate to the first seizure, and could not have the effect of setting aside or annulling the rights accruing to the bank under its mortgage. Though the seizure of the defendant under his judgment preceded the sale, the bank had, however, the right to obtain a public sale of the whole property. Plaintiff bought at the sheriff’s sale under the bank’s mortgage, and acquired title to- the land, buildings and the mixer and engine, an integral part thereof as an immovable by destination.

Attorneys for defendant take the position that plaintiff’s petition does not disclose a cause of action because it is not alleged therein that he was the owner at the time of the seizure by defendant under his judgment. This seizure by defendant being ineffective for the reasons above stated, plaintiff, though he purchased at sheriff’s sale after the seizure under the judgment, acquired ownership of the property, including the objects in' contest, and had a cause of action to demand the recognition of his ownership thereto. The lower court correctly declared him the owner of the- mixer, perpetuating the injunction.


author: REYNOLDS, J.

text:
    No. 2019
    Second Circuit
    JESSIE RAWLS v. JOHN C. THOMAS, ET AL.
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Registry—Par. 7, 12.
    Registry of a deed under private signature without proof of the genuineness of the signature of the parties thereto is notice to third persons of the change in the title.
    Appeal frofh the Second Judicial District Court of Louisiana, Parish of Bossier. Hon. Robert Robers, Jr., Judge.
    This is a jactitation suit converted intq a petitory action by the answer of the defendant, There was judgment for plaintiff adjudging him to be the owner of the land and awarded him $500.00 damages.
    The demand of the defendant, John C. Thomas, against the warrantor was rejected.
    The defendant,‘John C. Thomas, appealed,
    Judgment amended increasing the damages and otherwise affirmed.
    Drew & Drew, of Benton, attorneys for plaintiff, appellee.
    T. H. McGregor, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

This is a jactitation suit, converted into a petitory action, by the answer of the defendant, involving the title to 40 acres of land, more or less, being the east half of the west half of the northeast quarter of Section 16, Township 22 north, Range 11 west, in Bossier parish, Louisiana. ,

Plaintiff claims title- by deed from David Rawls . dated October 23, 1919; David Rawls acquired the land from the Succession of Will Rawls; and Will Rawls acquired it from Eliza Tidwell by deed dated November 16, 1905, recorded March 19, 1907.

The land is shown to have belonged to Eliza Tidwell at the time she sold to Will Rawls by unbroken chain of title going back to the United States government.

Defendant, J. C. Thomas, claims title to the land by deed from Eliza Rawls Carter (formerly Eliza Tidwell), dated October 27, 1919, recorded November 6, 1919.

Defendant further claims that the deed from Eliza Tidwell to Will Rawls is without legal effect for the reason that it was recorded without the signatures of the parties thereto being proved up, and because the notary public who passed the act endorsed thereon:

“I certify that the foregoing is a true copy.”

Defendant called Eliza Tidwell Carter in warranty and she answered, setting up that the deed from herself to John C. Thomas was obtained by him by fraud; that it was her intention to convey and his intention to acquire only the west half of the west half of the northeast quarter of Section 16, Township 22 north, Range 11 west, and that John C. Thomas fraudulently had the deed drawn to convey the entire west half of the northeast quarter of the section.

C. C. Collins, to whom John C. Thomas had made an oil and gas lease on the land, was made a party to the suit and cited, but he did not seriously defend the suit and has not appealed from the judgment of the lower court, so that as to him the judgment appealed from is final.

On these issues the case was tried and there was 'judgment in favor of the plaintiff, Jessie Rawls, and against the defendant, John C. Thomas, decreeing 'him to be the owner of the land in controversy and quieting him in his title to and possession thereof and cancelling, as a cloud thereon, John C.'Thomas’ deed thereto, and awarding him five hundred dollars with legal interest thereon from the date of the judgment until paid as damages. The demand of the defendant, John C. Thomas, against the warrantor was rejected.

The. defendant, John C. Thomas, appealed.

OPINION

The first question to be decided is in whom is the title -to the land in controversy vested.

Elizabeth Tidwell was the true owner of the property and she sold it to Will Rawls by deed dated November 16, 1905, recorded March 19, 1907.

The gravamen of defendant’s contention is that this deed was without legal effect for the reason that there was written across it by the notary who passed it: “I certify that the foregoing is a true copy.”

The deed as written and signed was actually recorded in the conveyance records of Bossier parish, where the land is situated, and stood upon the record, if as nothing more, then at least as notice to the world that the title to the property had passed out of Eliza Tidwell.

In Stallcup vs. Tyron, 33 La. Ann. 1249, the court said:

“It is elementary that, between the parties to the act, defendant’s sale without registry was translative of title, and was a perfect conveyance, and that registry in the proper office was the only element wanting to render it binding on third parties, and on the world. The object of registry is notice, and we hold, as settled, that notice is given by the registry , of a sale under private signature, even without proof of the signatures of the parties thereto, as required by Article 2253.
“A broad distinction exists ■ and must be made in law between the effect of registry of an act of sale, as to notice, and the effect of such an act as proof of title. And, in this connection, it must be noted that, in the Code of 1825, Article 2250, which is Article 2253 of the present Code, is to be found under the head of Copies of Titles. The rule is that an act of sale under private signature, recorded in the conveyance office, even without proof of the signatures of the parties to the act, is sufficient to give notice, which is the only object of registry; but that such an act, thus registered, could not be used as evidence of the title which it purports to transfer, adversely to third parties, without proof of such signatures.”

In this case iL'has been clearly proved that the signature of Eliza Tidwell to the deed conveying the property to Will Rawls is genuine.

Eliza Tidwell, being sworn, testified that she signed the deed, and so also swore thé attesting witnesses to the act, W. C. Mears and W. H. Stroud.

It is therefore clear that Jessie Rawls, who holds under an unbroken chain from Will Rawls, has a perfect title to the land in dispute, and that the judgment of the lower court so holding is correct.

Defendant contends that he acted in good faith and therefore should not be held for actual or any other damages . caused plaintiff by his assertion of title to the land.

The evidence in the case convinced the trial judge to the contrary, and we think his finding on that point also is correct.

The case. bristles with conditions that are not to be found in good faith transactions.

Defendant claims to have traded forty acres of land said to be worth $500.00 for $200.00 in cash and forty acres of land burdened with a mortgage for $300,00 in favor of the Federal Land Bank, together with another forty acres and the timber and mineral rights in the entire 120 acres.

Defendant testified that the surface rights of the land in Section 16, Township 22 north, Range 11 west, was worth very little, the principal value of the land being for the timber thereon and mineral rights; and yet he claims to have traded the naked surface rights on forty acres of land in that section for eighty' acres adjoining it and in addition thereto all the timber on and minei’al rights in the entire 120 acres and $200.00 in cash.

Defendant, John C. Thomas, testified, page 54:

.“Q. Was good timber on the land you let her have?
“A. Well, there was some good timber on it but I .reserved it.
“Q. You got that timber?
“A. Yes, sir.
“Q. You also got the timber on the land that she traded you?
“A. Yes, 'sir.
“Q. And reserved the timber on the land that you sold her?
“A. Yes, sir. I was in the timber business. I was working in the tie business and would not sell any timber at all.

H. L. Giles testified, pages 34 and 35:

“Q. Mr. Giles, did you ever hear Mr. Thomas tell about the trade that he made with Eliza Tidwell?
“A. Yes, sir.
“Q. What did he say the trade was?
“A. He said that he had swapped Eliza Tidwell forty acres for forty acres and had gotten two hundred dollars to boot and the timber off of both forties.
“Q. Is that what he told you the trade was?
“A. I heard him say that.
“Q. How long ago was that?
“A. Just after he made the trade.”

From all the evidence in the case we are' convinced that it was the intention of John C. Thomas and Eliza Tidwell to trade forty acres of land for forty acres of land and that the east half of the west half of the northeast quarter of Section 16, Township 22 north, Range 11 west, in Bossier parish, Louisiana, was included in the deed from Eliza Tidwell to John C. Thomas by error and mistake.

It is shown by the evidence that at the time of the transfer from Eliza Tidwell Carter to John C. Thomas that Jessie Rawls, the plaintiff, was living on the land in controversy as his home, and that he had a title thereto by unbroken chain going back to the United States Government. «

Defendant, John C. Thomas, testified that it was not his intention to take title to the land on which Jessie Rawls was residing; nevertheless when his attention was called to the' fact that the deed from Eliza Tidwell Carter to him embraced the land on which Jessie Rawls was living and also that he had been offered $2,000.00 for part of the mineral rights therein, he, Thomas, made no effort to correct his deed or to remove the cloud , cast on plaintiff’s title thereby.

We think plaintiff has clearly proved actual damage beyond the amount claimed by him in his petition, but, of course we cannot allow judgment for more than the amount claimed.

Plaintiff claimed damages in the sum of ' $750.00, which included $250.00 .attorney’s fees. The District Court allowed him $500.00, but rejected his claim for attorney’s fees. In this court the plaintiff has asked that the judgment be amended so as to allow the $250.00 attorney’s fees claimed.

Under authority of Letham Cypress Co. vs. Dusenbury, Teiss. Orleans App. Dig. 157, and the evidence in this case, we think the plaintiff is entitled to judgment for the attorney’s fees in 'addition to the amount allowed him by the District Court.

The defendant’s call in warranty against Eliza Tidwell Carter is without merit, and was properly rejected by the lower court.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended by increasing the damages allowed plaintiff from five hundred dollars to seven hundred and fifty dollars with legal interest on five hundred dollars of said amount from the date of the judgment of the lower court, to-wit, June 8, 1923, and with like interest on two hundred and fifty dollars thereof from the date of this judgment, and that in all other respects the judgment appealed from be affirmed with costs.


text:
    No. 1948.
    Second Circuit
    JERE JACKSON v. J. J. WHITBECK.
    (March 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest—Injunction—Par. 119, 123, 125.
    One who procures the issuance of an illegal injunction must pay the damages done by it.
    2. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on the question of fact, the quantum of damages done by the illegal issuance of an injunction being clearly correct is affirmed.
    "* Appeal from the First Judicial District Court of Louisiana, parish of Caddo, Hon. E. P. Mills, Judge.
    This is an injunction suit to have abated as a nuisance an amusement park. On the trial of the case the injunction was dissolved with $600.00 damages allowed the defendant.
    Plaintiff appealed. Judgment affirmed.
    Cook and Cook of Shreveport, attorneys for plaintiff, appellant.
    Charles F. Crane of Shreveport, attorney' for defendant, appellee.
   REYNOLDS, J.

This is an injunction suit to have abated as a nuisance an amusement park ' on Douglas Island in Caddo Parish, Louisiana.

Defendant denied that his amusement park was a nuisance and asked that the injunction be dissolved and plaintiff’s suit dismissed, and for damages to his business in the sum of $2,500.00, for $100.00 a day during four days of each week during the continuance of the injunction for loss of profits in his business and for $250 00 as attorney’s fees for obtaining dissolution of the injunction.

On these issues the case was tried and there was judgment in favor of the defendant dissolving the injunction add awarding him $600.00 with legal interest thereon from the date of the judgment. The plaintiff has appealed.

OPINION.

The evidence shows that the defendant, J. J. Whitbeek, was not operating the amusement park at all before June 10, 1922, and that since that date the park has been conducted in an orderly and legal manner. The preponderance of the evidence clearly establishes these facts. Hence the plaintiff has failed to establish the allegations of his petition and the writ of injunction must be dissolved.

This brings us to the question of damages.

Defendant asked for judgment in the sum of $2,500.00 for damages to his business, $100.00 per day for four days during each week during which he was kept out of the use of his amusement park by the injunction, and $250.00 for attorney’s fees for dissolving the injunction.

Under the allegation of damages to his business, defendant offered to prove the amount of expense he had been to in building a plank fence , around the park. Plaintiff objected to the admission of this evidence and the objection was sustained.

In view of the fact that the fence was built by defendant for the purpose of enabling him to conduct the business and in view of the fact that the injunction had rendered the fence useless to defendant’s business, we think the evidence should have been admitted. All expenses incurred by a person on getting ready a place in which to conduct a lawful business may be recovered as damages from any one who illegally makes it impossible for him who has prepared such place to .conduct his business. 17 Corpus Juris, page 800, sec. 126.

In view of the fact that defendant was given judgment in the District Court for $600.00 damages and as he has not 'asked for an amendment of the judgment in this court, and in view of the further fact that we find ample evidence in the record, out-' side of the excluded evidence to warrant us in affirming the judgment of the lower court, it becomes unnecessary for us to remand the case for the admission of the excluded evidence.

Defendant testified that he would have been able to have from two to three entertainments a week during the life of his lease, from June 10, 1922, to November 1, 1922,. if he had ' not been restrained by the injunction. Allowing only two entertainments a week, and then only for the months of July, August and September, would have given defendant twenty-four entertainments.

The evidence shows that the gate receipts at the park during the two meetings held, during one of which it rained, amounted to $110.00, and that the expense for holding the two meetings amounted to $30.00 for deputy sheriffs, $4.00 for gatekeepers and $8.00 for umpires, making a total of $42.00 expense for the two meetings, or a net profit of $68.00 for the two days, or $34.00 as an average profit per day. And in view of the fact that it rained one of the days, we think the average a fair one. Thirty-four dollars a day for twenty-four days amounts to $816.00 that the gate receipts alone would have amounted to, without taking into consideration the profits that defendant testified he lost on cold drinks and barbecued meats business or the profits that he swore he would have made on dances.

The District Judge who heard the witnesses testify and observed their manner of testifying gave the defendant judgment for $600.00 as damages for the illegal suing out of the 'injunction. We are convinced from the evidence that this is well within the damages established by the proof.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 2462.
    Second Circuit
    JOHN R. CHAPMAN v. LOUISIANA CENTRAL LUMBER COMPANY AND OUACHITA & NORTHWESTERN RAILROAD COMPANY.
    (February 8, 1926. Opinion and Decree.)
    (March 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest—Master and Servant —Par. 160 (a).
    If it is necessary for the injured employee suing under the Workmen’s Compensation Law Act No. 20 of 1914 to undergo considerable pain while exercising his injured arm in order to recover sufficiently to do the • work he was accustomed to, his refraining from doing the work which would cause this pain will not be considered unreasonable, nor will it debar him from compensation under the Workmen’s Compensation Act.
    Appeal from Eighth Judicial District Court of Louisiana, parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit ¡for compensation under the Louisiana Workmen’s Compensation Law Act No. 20 of 1914 and in the alternative under the Federal Liability Act, but the alternative demand has not been pressed.
    There was judgment in favor of one defendant, the railroad company, but plaintiff did not appeal this judgment. There was judgment in favor of plaintiff against the lumber company and defendant appealed. Plaintiff moved to increase the judgment.
    Judgment affirmed.
    Long and Crow and Geo. T. McSween of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richie of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit against the Louisiana Central Lumber Company for compensation under the workmen’s compensation act (Act 20 of 1914 - as amended by Act 216 of 1924).

The claim under the Louisiana compensation law was presented as an alternative demand for $25,000.00 under the Federal employers’ liability act, this demand being against both the Louisiana Central Lumber Company and the Ouachita & Northwestern Railroad Company.

Judgment having gone in favor of the railroad company, ,and plaintiff not having appealed, we need not consider the claim against that company.

The District Judge held that as to the Louisiana Central Lumber Company the applicable law was the state , and not the federal statute. We agree with this view and do not understand plaintiff’s counsel seriously to contest it.

On September 18, 1924, plaintiff ;was thrown from a motor car and suffered an oblique fracture of his left collar bone two or three inches from the top of the shoulder. Good union .was effected in healing, but the parts overlapped about an inch, with consequent shortening of the collar bone and slight forward tilt of the shoulder.

These conditions are permanent.

At the time of the trial, May 12, 1925, there was atrophy and flabbiness of the muscles of the left arm, which was about an inch smaller than the right arm. .

The plaintiff is right-handed.

The District Judge allowed $9.75 a week for 17 weeks for total disability, $3.90 a week for partial disability, during such disability, but not exceeding 283 weeks, and $27.00 for medical expenses; subject to a credit of $100.00 paid by defendant.

Defendant appealed. It does not complain of the allowance for total disability, but claims that the District Judge erred in allowing the other two items.

Plaintiff moved to amend the judgment by increasing the allowance for partial disability from $3.90 a week to $8.00 or $8.50 a week.

I.

Defendant pleads that plaintiff had fully recovered in December, long before seventeen weeks after the time of the accident, but the testimony fully satisfies us that he was still partially disabled at the time of the trial, more than twenty-eight weeks after the accident.

Defendant’s chief defense is that plaintiff’s present disability is due, not to the injury, but to his wrongful refusal to use his arm, which use, it claims, would have restored him to normal ability to do any work of a reasonable character.

Counsel for defendant, in brief, say:

"If it had not been for the possibility of getting compensation, this plaintiff would have been back to work within a period of four to six weeks after the accident."

They cite no authorities on the question thus posed.

In some of the state compensation laws it is expressly provided that compensation will not be paid for disability, so far as it is caused, continued or aggravated by an unreasonable refusal to submit to medical or surgical treatment.

See “Workmen’s Compensation Acts”, a Corpus Juris treatise, by Donald J. Kiser, issued by the American Law Book Company, paragraph 62, page 71. •

This author further states:

“Further it. has been held, in the absence of provision in the statute, that a continuing disability due to the wilfuj, or unreasonable refusal of the claimant to submit himself to safe and simple surgical treatment is not proximately caused by the accident.
“But although the statute requires the employer to furnish medical services, the employee by refusing such service does not forfeit his right to compensation unless such refusal is unreasonable or wilful.”

In the same work, paragraph 94, page 98, we find the following:

“The question of whether a result due to failure of the employee to avail himself of proper medical or surgical treatment may be said to flow from the primary injury, has already been considered. Apart from this, in determining the amount of compensation, a condition cannot be taken as a basis which may readily be alleviated, as by a safe and not extraordinarily painful surgical operation which offers a reasonable prospect of relief; but the employee is not to be compelled to submit to a dangerous operation. Notwithstanding the possibility of such subsequent amelioration of the injury by an operation to which the employee is not required to submit, the court should, in awarding compensation, make the award in accordance with the facts, as they exist at the time of the award. Refusal of the employee to undergo a reasonable surgical operation may be urged by an application to review or terminate the compensation.”

Under each of these statements various authorities are cited.

Dr. Stafford, a witness for defendant, testified that he examined plaintiff March 17, 1925; that he found no disability to do ordinary manual labor, except that owing to flabbiness of muscles of the left arm it was not capable at that time of performing full function as far as manual labor was concerned; that he attributed this to lack of' use of the arm; that the atrophy usually and necessarily follows as a result of an accident of the kind in question; that to get full function it is necessary to use the arm all the patient possibly can; that he advised plaintiff to do this; that he thinks three or four months ample time for the arm to recover with proper exercise; that if plaintiff had begun exercising the muscles properly at the expiration of the time he was necessarily disabled plaintiff would, he thought, have been able to perform ordinary manual labor at the time witness examined him; that at the time he examined plaintiff he expressed the opinion that with proper use of the muscles he should be able to perform his full capacity of work within two months; that there was no reason why he should not begin doing manual labor at that time; that he could have done it, but the arm would have been somewhat weak for a period of about two months, by which time if he had continued to work he would have gotten maximum use.

Dr. Rand testified for defendant that he did not see -how the slight overlapping could affect plaintiff's ability to do manual labor; that the injury would disable plaintiff a maximum of about three months from the time it occurred; that he did not examine the man very carefully in March, but that injuries of a similar nature in other individuals considered plaintiff ought to have been able to do work at that time; that there was nothing with reference to the injury that would prevent him from working at that time; that in practically all oblique fractures of the collar bone there is a certain amount of overlapping; that this is a common condition which ordinarily produces no disturbance of function and one to which no particular attention was paid until the X-ray began ' to be used; that following any fracture there is atrophy of the muscles if the patient does not show a disposition to use the member; that in his opinion atrophy was due entirely to disuse; that with reasonable exercise the condition would improve and the arm get back to normal; that the time for its doing this would be extended somewhat due to the fact that following injuries near the joint there is some pain when the patient first uses the arm, and, as plaintiff’s arm has not been used, the return to normal condition of the muscles will possibly be delayed, the time dependent on how much work he actually does, certainly a matter of a few weeks; that, assuming that his job was that of a section foreman, whose principal work was to ride a handcar and stand around and. direct the men, witness saw no reason why he should not do this at the time of the trial' as well as before the accident.'

Dr. Richardson, testifying for defendant, said that he first examined plaintiff about four weeks after the injury; that the bones had completely united at that time; that he examined him every once in a while until about December; that the atrophy was accounted for partly by the fact that the plaintiff was right-handed and partly by non-use of the arm; that he examined plaintiff on the day of the trial; that overlapping is not out of the ordinary in oblique fractures, it being almost impossible to retain the proper position of the shoulder long enough for the bones to unite with perfect adjustment; that the plaintiff would have-to gradually use the arm, but would finally get to where he would practically have normal use of it again; that by “practical” he means it would be as good as is usually gotten from a broken bone; that a fracture of the collar bone is not a serious injury; that plaintiff should be able to do manual labor in three months after the injury; that from experience with that kind of injury it is usually from five to six months or seven months after the injury before the injured person regains normal use of the arm, or say two or three months after he begins exercising the arm; that if he never begins to exercise it he never gets full use of it; that plaintiff’s injury interferes with his striking and lifting powers for the time; that plaintiff’s condition causes the muscles over the shoulder to be in a strained position until they get accustomed to the tautness which necessarily keeps them in a peculiar position; that a fracture of the clavicle with overlapping is always permanent; that there is impairment of the function of the shoulder and left arm, and, like broken bones in other parts of the body, has never gotten back to where it was before the breaking; that for all practical purposes plaintiff has as good an arm as ever; that the. condition of the arm should bind when he lifts his arm; that the interference with his labor by the sticking in the flesh would finally be very slight; that the percentage of plaintiff’s impairment is about twenty-five; that eventually he will reach the stage where it will not interfere with doing manual labor; that plaintiff complained of a pain reaching over the front part of the shoulder when he raised his arm, and that naturally there would be some pain, stretching atrophied muscles will cause pain.

Dr. Stafford, it will be noted, was not asked about the feature of pain, and said nothing about it. Dr. Rand was not asked, either, but stated that there was some pain when the patient first used the arm after the injury.

Plaintiff was not ■ a section foreman, but a section hand.

Dr. Adair testified for plaintiff, but merely described the break, its complete union, with overlapping and shortening, and that he did not consider the result govod, as .overlapping in ordinary cases is not expected any more.

Dr. Sanderson, after describing the condition of the arm and clavicle, which was not disputed, on being asked what the atrophy indicated, replied:

•‘Well, it might indicate one of two things; it might indicate disuse following the injury, and the fact that he has probably not exercised the arm since the injury, that might account for it. It might have to be accounted for by the pressure on some nerves that go into the arm, which are beneath the clavicle.”

He further says that he does not know whether disuse or the difference in the use of the two arms accounted for all the difference he found, and asked if the condition was one he would expect to impair the use of that side and arm, he replied:

“Well, a good deal depends upon just what degree, cause some impairment, regardless of the pressure, where a fracture overrides on the clavicle, it is perhaps against or causes some pressure on the nerves of the arm.”

He further said that the injury was of such a nature as would make the man less able to use that arm and side; that he did not consider plaintiff permanently disabled from doing reasonable manual labor; that where the clavicle is fractured if good results are obtained and the patient gets back to work and uses that hand as much as the other normal tone should be regained within a y^ar; that when the injured man first goes back to work he will necessarily suffer some pain from the use of the arm; that if he did not use the arm to do manual labor he would be keeping the arm from regaining normal muscle strength; that a man timid about using an arm that pained him would be harder to get back to normal than one not afraid to use it; that plaintiff’s condition was the usual one where the patient had made up his mind not to use the arm; that usually those so injured could do about the same things they could do before in the way of handling themselves; that since discovery of the X-ray overlapping is less frequent than before; that •there is no way of telling how much nerve pressure there is except from the patient’s own feeling; but that if the nerve pressure is severe there is marked atrophy; that in plaintiff’s case there is rather marked atrophy.

Plaintiff testifies:

“Q. Since you received this injury have you been able to do any work of any kind?
“A. Why, no, sir. I have tried to work; it hurts underneath my arm; so I work a little while and my arm hurts all the time.
"Q. Do you know what is the matter with your arm at this time?
“A. Well, I know it is injured from that hurt. It hasn’t got any strength in it as it should have.
“Q. E*xplain to the court how that pain affects you?
“A. Well, it burns right in there (indicating) just like it was from the sun, and something seems to be sticking in there whenever I get my arm up like that (indicating). It’s that way all the time, and if I go to pull on anything, why, it hurts.
“Q. Are you able to place your arm in any kind of position you want to?
“A. No, sir.
“Q. To what extent are you limited to the use of your arm?
“A. I can lift it up like that (indicating).
“Q. You can’t raise your arm to the level of your shoulder?
“A. I can with my other hand.
“Q. I mean with its own volition?
“A. No, sir.
“Q. Do you suffer any pain from this?
“A. Yes, sir, like I do in the day time. Whenever I turn over on my left side that sticking insinuation hurts and wakes me up.”

On cross-examination plaintiff testified that after Dr. Richardson told him to take the banages off he tried to do little piddling jobs, such as hoeing and thinks like that; that he hcted about a day and a half for his brother-in-law, Ainsworth, for which he got paid about 75 cents a day; that the only other work he had done was to help saw stove wood, to help a boy saw stove wood; that he was a widower, 41 years of age, with two children, one of whom was at his sister’s and one at a cousin’s, and that he had not applied for or tried to hold a position.

He further says that he received from defendant on account of compensation for the injury the following sums: $17.50, $57.25, $15.00, and $18.20, making $107.95. Of this, $15.00 was to pay the expenses of a trip to Alexandria to see a doctor on the request of defendant, and $27.00 he paid to a physician of his own selection. This would leave him, to be applied on living expenses, $65.95, from the date of the injury, September 28, 1924, up to the time of the trial, May 12, 1925. At $9.75 per week, the largest amount he could possibly claim, this $107.95 would be compensation up to about January 1, 1925.

It is not "shown whether plaintiff is a man of means or not, but we think it would not be a violent presumption to presume that he is not a man of much means.

Defendant ceased paying plaintiff compensation some time in December; so at the time of the trial he had not been drawing any compensation for about four months and a half.

Defendant took a suspensive appeal from a judgment which allowed full compensation for seventeen weeks or, say, until about February 1st, and only $3.90 a week during disability after that time, but not exceeding 300 weeks, and this subject to a credit of $100.00.

The history of jurisprudence makes us aware that sometimes claimants pretend to injuries they have not received or exaggerate those actually received. Naturally, though, this is more common where the prize is a large lump sum to be realized soon after the trial and without the necessity of keeping up the pretence after the trial.

Defendants in this class of cases often charge, and perhaps it is sometimes true, that similar false pretences are made by persons claiming compensation. Where they are actually receiving considerable compensation there is no doubt strong temptation to malinger. Where they are not receiving compensation, though, the proof should be strong indeed to convince us that a plaintiff is deliberately refraining from earning money which he could earn and doubtless needs for his support when the object to be attained is not a considerable lump sum by keeping up the pretence for a relatively short time, but is merely a small weekly allowance terminable or reducible on proof of changed condition, thereby necessitating continuance of pretence indefinitely.

It has been pointed out that our statute contains no provision for denying compensation where the disability is due to an unreasonable refusal of workmen to take medical treatment.

Conceding, without deciding, that, as held in some jurisdictions, the court should deny compensation in such cases, on the theory that in those cases the disability is not due to the injury, but to the plaintiff’s own wrongful conduct, it should be quite clear under the evidence that the refusal to follow medical advice is unreasonable to justify us in applying the doctrine.

We have seen from the above quotation from Corpus Juris that in those jurisdictions applying this doctrine, the burden is on the defendant to establish the un-. reasonableness of the refusal.

“Notwithstanding the possibility of a subsequent amelioration of the injury by an operation to which the employee is not required to submit, the court should, in awarding compensation, make the award in accordance with the facts as they exist at the time of the award.”

In support of this text is cited the case of Feldman vs. Braunstein, 67 N. J. L. 20, 93 A. 679; and of the proposition;

“Refusal of the employee to undergo a reasonable surgical operation may be urged by an application to review or terminate compensation”—

is cited Krickinovich vs. American Car, etc., Co. (Mich.), 159 N.W. 362, and O’Neill vs. Ropner, 2 BWCC. 334.

In this case we cannot say that plaintiff’s non-use of his arm is unreasonable. We are satisfied that the mere hope of obtaining a small weekly compensation which at most he could obtain would not be sufficient inducement to make him continue deliberately to refrain from work and earning a living. It may be true, as the doctors testify, that he could regain the use of his arm by exercising it, but if exercising it is so painful that he retrained from such exercise, though at the cost of privation and of a continuance of his disability, which naturally he would wish terminated, even though he might want that termination concealed from defendant, we cannot say that the refusal to exercise it is so unreasonable as to deprive him of the right to compensation.

As shown above, some of the doctors make no mention of the pain, and others, while they do not, of course, corroborate plaintiff as to the fact that he does have pain, yet they do corroborate him to the extent of showing that his condition would be likely to cause him pain.

The court cannot know the extent of this pain and does not consider that it has the right to tell the plaintiff that he shall undergo it or lose his compensation when he prefers, much as he must desire to regain his ability to work, to stand a continuance of his disability rather than to undergo the pain.

Under all the facts in the case, we think the judgment of the lower court is right.

Defendant bitterly complains of the allowance of the $27.00 medical bill.

plaintiff, with a broken shoulder, never refused treatment tendered him by the lumber company. He went to Dr. Holloman, who gave him a couple of tablets, several bottles of linament and two boxes of antiflogistine, but he did not place the shoulder. Under the circumstances, plaintiff called in Dr. Hamilton, who set his arm. His bill for this service was $27.00. We think the services were clearly medical services, for which the defendant is responsible.

For the above reasons, the judgment of the lower court is affirmed.


text:
    No. 1954.
    Second Circuit
    MYERS MANUFACTURING COMPANY v. A. C. WATERMAN.
    (March 11, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    I. Louisiana Digest—Error and Mistake— Par. 3.
    A definite promise to pay a past due account binds the person making the promise and the promise will not be disregarded unless in error of fact or under duress. Keough vs. Foreman, 33 La. Ann. 1434.
    Appeal from the First Judicial District Court of Louisiana, parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit upon an open account for natatorium goods sold to. defendant.
    There was judgment for plaintiff as prayed for and defendant appealed. Judgment affirmed.
    Crain, Benoit and Jackson of Shreveport, attorneys for plaintiff, appellee.
    Dickson and Denny of Shreveport, attorneys for defendant, appellant.
    STATEMENT OF THE CASE.
    This is a suit upon an open account for $645.90 for natatorium goods sold by plaintiff to defendant.
    The answer admits the correctness of the account, as to prices, dates and items charged thereon, but denies liability on the ground that the goods were sold under false and fraudulent representations; that they were guaranteed to be with salt water dye and not to fade, and to be fresh stock as to the bathing suits, and the rubber caps were bought as new rubber stock, whereas said bathing suits were defective in that they faded, shrunk and wore out in a very short time, being rotten, old and decayed and of poor material.
   REYNOLDS, J.

On these issues the case was tried and there was judgment in favor of plaintiff and against defendant for the full amount sued for, and defendant appealed.

OPINION.

The goods whose price is sued for were shipped by express, April 20, 1921.

Defendant sold the goods during the months of June and July.

On August 28, 1921, defendant telegraphed plaintiff:

“Will remit September tenth. Many thanks for your courtesy.”

This promise to pay was made long after the goods had been received and after many of them had been sold; and under this telegram we do not think the judgment of the District Court was erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.