text:
    No. 3896
    Second Circuit
    STATE EX REL. MARTIN v. CITY OF MONROE ET AL.
    (December 23, 1930. Opinion and Decree.)

      McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    W. A. Walker, Jr., W. M. Harper and H. H. Russell, of Monroe, attorneys for defendant, appellee.
   DREW, J.

The petition alleges that on April 2, 1930, one H. J. Hicks was arrested by police officers of the city of Monroe and charged with driving and operating a motor vehicle while drunk; that his bond was fixed at the sum of $375, and that J. R. Martin deposited the sum of $375 in cash with the authorities of the city of Monroe for the purpose of securing the release of the said Hicks and for the purpose of securing the appearance of the said Hicks in the city court of Monroe for trial on April 7, 1930; that on April 7, 1930, the said Hicks appeared for trial, was tried and convicted; that the condition upon which the deposit for bond was made was complied with by the appearance and conviction of the said Hicks; that respondents have refused to deliver possession of the said money to relator and are illegally retaining his money; and that relator is entitled to the return of his money.

Relator prays that writs of mandamus issue herein, directed to the mayor of the city of Monroe, the commissioner of finance, the commissioner of streets and parks of the city of Monroe, and to the judge of the city court of Monroe, both in his official capacity and individually, and to each of them, ordering and commanding them to deliver and turn over to relator the $375 — $250 in the hands of the city judge, and $125 in the possession of the city of Monroe, La.

Respondents answered the rule to show cause, alleging that the money deposited for bond was deposited by the said Hicks to guarantee his appearance for trial, admit that Hicks appeared for trial and was convicted, and allege that, after conviction, Hicks appealed to the district court of Ouachita parish and instructed the police desk sergeant, who had in his possession the $375 to deduct from the $375 the sum of $84 to cover the amount of a bond previously forfeited against the defendant, Hicks, for non-appearance on a previous charge, and to deliver to the city judge of the city court of Monroe $250 as bond for the appeal above referred to; that the desk sergeant paid to the treasurer of the city of Monroe $84, as requested by Hicks, turned over to the city judge $250 for appeal bond, and has in his possession $41, which he is informed and believes belongs to the said Hicks.

Respondents deny that the said relator is entitled to the return of said money, and allege that the money was deposited by Hicks and not by relator and pray to be discharged from further answering, and that the rule be dismissed.

After trial of the rule in the lower court, the writs of mandamus issued herein were set aside and annulled and relator’s demand rejected at his cost. Prom this judgment, relator has appealed.

There has been no question raised as to the form of procedure, and, however unusual the form of procedure might strike us to be, we presume that the respondents are desirous of having the rights of the parties decided, and, if the city of Monroe is not entitled under the law to the money held by it, that it has no desire to retain it through technicalities.

There is very little dispute over the facts in the case. Hicks was arrested, as alleged, and placed in the city jail of Monroe, where he remained over night. Then relator appeared at the police station with the brother of Hicks, and relator placed with the proper officer the sum of $375 in cash, as bond for Hicks. Relator secured the money from the Bank of West Monroe by personal check, and the officer who received the money from relator placed it in an envelope and made the following notation on the back of the envelope:

“Monroe, Louisiana, April 2, 1930. $375.00 in cash put up by J. R. Martin for H. J. Hicks’ bond to appear April 2, 1930, 3 p. m.”

At the time the money was put up by Martin, the man Hicks was confined in the city jail, and was not present, and all parties present, including the officer who received the money, testify that Martin put up the money and not Hicks. There is no dispute on this point, and the uncontradicted testimony is that the money was the property of relator, Martin, and not of Hicks.

■ At the time of the trial of Hicks, relator was sick and confined to his bed, where he remained for six weeks or two months, and therefore did not call for his money. However, as soon as he was physically able to call at the police station, he demanded his money, and it was refused him. The only authority the police officer who held the money had for paying the $84 to the city for a bond of Hicks that had been forfeited in another case was from Hicks and not from Martin. The only authority for delivering $250 to the city judge for an appeal bond was from Hicks and not from Martin. In fact, Martin was never consulted about the disposition of his money at any time; the police officers relying entirely on what Hicks told them about it.

The city of Monroe, through its officers, and its officers, were without authority to use the money deposited by relator for the bond and appearance of Hicks for any other purpose other than that for which it was deposited.

Article 97 of the Code of Criminal Procedure for Louisiana provides for the giving of cash bonds; and article 98 sets forth the duties of the officer receiving such cash bond. Article 99 deals with the duty of the court when such bond is discharged. Article 100 exempts such bonds from garnishment or attachment, and says:

.. “No assignment thereof shall be valid unless it be in writing, signed by the depositor, before two witnesses, acknowledged before an officer having authority to take the acknowledgment of deeds, and specifically stating the desired disposition of the whole of the deposit. * * *’’

The condition of a bond is that the accused will appear for trial on the day set and stand trial. After Hicks appeared on the day of trial, was tried and convicted, the condition of the bond made for him by Martin' the relator herein, had been discharged, and the bond was discharged. It was the duty of the judge of the city court to enter an order to that effect and the duty of the police officer in whose possession the money was to deliver it to the relator, Martin. The said officer was entirely without authority to make any other disposition of the money deposited by Martin.

Respondents, in argument and in brief, urge that there was a conspiracy between Hicks and Martin, whereby Hicks failed to appear for trial in the district court and for Martin to then demand his money from the city. ' However, there is no evidence to support the theory. It is shown that Martin was afflicted with a disease which forced his remaining in bed for several months, and that as soon as he was physically able to appear he demanded his money. He also testified that he was anxious to find the man Hicks, against whom he had filed a charge of embezzlement. There is absolutely nothing to support the theory of conspiracy.

The $375 was the property of relator; it was put up as a cash bond for Hicks, and the bond was discharged, and the money should have been returned to relator.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that there be judgment in favor of relator and against respondents making the writs of mandamus issued herein peremptory, and that the city of Monroe, herein represented by Arnold Bernstein, mayor, D. A. Breard, commissioner of finance, and Will Atkinson, commissioner of streets and parks, and W. M. Harper, judge of the city court of the city of Monroe, are hereby ordered and commanded to deliver to the relator, J. R. Martin, the sum of $375, to-wit, $250 in the possession of W. M. Harper, judge of the city court of Monroe, La., and $125 in the possession of the city of Monroe. It is further ordered, adjudged, and decreed that the respondents pay all costs of both courts.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3844
    Second Circuit
    SITES v. CRUSE
    (December 23, 1930. Opinion and Decree.)
    S. R. Holstein, of Jena, attorney for plaintiff, appellee.
    Wm. H. Mecom and Vinson M. Mouser, of Columbia, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued defendant for the sum of $1,950, alleging that he had been damaged in that amount by reason of defendant violating a contract made with him to cut and haul certain timber.

He alleges that he entered into a verbal contract with defendant to cut and haul all the merchantable timber on two hundred acres of land in Caldwell parish, La., from the land to the mill of defendant located near Columbia, La. That before he could haul the timber from the land, it was necessary for him to build roads and bridges at a cost of five or six hundred dollars, and also, in order to carry out the contract, he was forced to buy extra trucks, all of which he did. That he began his operations under the contract in June, 1928, and continued for about three months, at which time the defendant stopped him from cutting and hauling and advised him to secure another job, if he wanted work; • that he was forced to seek another job and abandon the contract he had with defendant.

Plaintiff alleges that the contract price agreed upon was $10 per thousand for cutting and hauling the timber, and that there was left on the tract of land at the time of the breach of contract by defendant, 975,000 feet of timber, and that he would have made a profit of $2 per thousand, if he had been allowed to complete his contract, and that he has been damaged in the sum of $1,950.

Defendant admits the contract, as alleged, but denies that he breached same in any manner. He alleges that at the time he stopped plaintiff from hauling, his mill yard was filled to overflow with logs, and that he reguested plaintiff to stop his operations for a few days until the mill could catch up with the logs on the yard. He claims that such a situation was contemplated at the time the contract was entered into; that plaintiff admitted his right to make this reguest and asked to be relieved from the fulfillment of the contract and the contract was voided by mutual consent, at the reguest of plaintiff.

On these issues, the case was tried in the lower court resulting in judgment for plaintiff in the amount of $250, with legal interest from judicial demand until paid and for all costs of court. Prom this judgment, the defendant has appealed.

The case involves only guestions of fact, and the lower court has decided these guestions in favor of the plaintiff, and, unless the finding of the lower court is clearly erroneous, it is the policy of this court not' to disturb the judgment.

The lower court in a written opinion held that the contract was breached by defendant, /and we cannot say that his decision was incorrect. Plaintiff had gone to much expense in building roads and bridges, buying trucks, and rebuilding old trucks. He had only cut and removed timber from one forty acres and testified that he had made a profit of $2 per thousand on that which he had cut and hauled. The job that he took after being stopped from hauling for defendant was one in which he could not use his trucks, and the evidence shows that he sold one or more of them at a loss. He was also at great expense in moving from the defendant’s job to his new one, and the evidence discloses that he was able to earn almost if not giuite as much on the new job as on the one with defendant. All of the circumstances tend to show that plaintiff could not have had any good reason for wishing to abandon his contract with defendant and, on the other hand, he had every good reason to want to complete the contract. We accept the finding of the lower court that the ecntract was breached by defendant as correct.

The only remaining question is the amount of damage sustained by plaintiff by virtue of this breach.

Plaintiff secured another contract and was at work under it within a week or ten days after he was forced to cease operations under the contract with the defendant. His new contract was almost as lucrative, if not entirely so, as the contract with defendant, and the lower court found the damage for loss of profits to be $100, and allowed the further sum of $150 for his expense in moving from the first job to the second. This last item of damage is complained of by defendant for the reason that there is no allegation in the petition to cover it, although proof was allowed over objection. Be that as it may, we are not disposed to reduce the judgment. The lower court correctly found that the cost of building roads and bridges amounted to three or four hundred .dollars. The eighty acres on which these bridges and roads were built had only been half cut and hauled when the contract was brought to an end, and the plaintiff was damaged at least half the cost of the road and bridges built on the eighty acres to be used in removing the timber. He was further damaged in that he had purchased trucks to complete the contract with defendant, for which he had no use on the second job and was forced to sell at a loss

The record clearly shows that plaintiff was damaged in a sum of at least $250, all brought about by the breach of contract with the defendant.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.


author: JANVIER, J.

text:
    No. 13,309
    Orleans
    FLANDERS v. COX
    (November 17, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Cahn & Cahn, of New Orleans, attorneys for defendant, appelleee.
   JANVIER, J.

Plaintiff, an owner of real estate, sues a former tenant for the alleged value of certain wall material which was in the premises at the commencement of the lease, but which, it is alleged, was missing at its termination. He also claims what he says is the replacement value of a certain toilet bowl, which he charges was broken during the existence of the lease.

As to the broken toilet bowl, the defense is that it was not broken while the lease, was in existence, but after its termination and by employees of the plaintiff, who were engaged in cleaning up the premises. This contention seems to be borne out by the evidence and we will dispose of that item without more ado.

The defense as to the wall material claimed to have been taken from the premises is that it was necessary to rearrange the more or less temporary walls within the premises and to enclose the elevator shaft; that permission was given to the defendant to use so much of the material as he might find necessary for this purpose, and that it was understood that he was not to be called upon to return any of the material which might thereafter be missing.

Plaintiff contends that evidence as to the verbal understandings which may have been reached prior to the execution of the written lease should not be considered because, under “the parol evidence rule” there is a presumption that “when the parties to a contract have reduced their negotiations to a complete and perfect written -instrument, all prior and contemporaneous oral agreements pertaining to it are, as a general rule, conclusively presumed to have been merged in the document; and evidence of such prior and contemporaneous oral agreements is inadmissible.” Hughes on Evidence, 3rd ed., p. 238; Graham v. Sadlier, 165 Ill. 95, 98, 46 N. E. 221.

The parol evidence rule will not help plaintiff’s case because, whatever may have been the prior verbal agreement between the parties, plaintiff concedes that there was a subsequent agreement entered into to the effect that so much of the material as might be necessary might be used in rearranging the premises, and the conclusion to which we have come makes it unnecessary for us to determine whether that understanding included a donation by the landlord to the tenant of so much of the material as might not be used. There can no longer be any doubt that a verbal understanding entered into subsequent to the execution of a written lease may be proved by parol. Fossier v. Knight Motors Co., Inc., 13 La. App. 11, 127 So. 87; Harvey v Mouncou, 3 La. App. 231; Wigmore, vol. 5, verbo Parol Evidence Rule, page 330.

A careful study of the record convinces us that "all, or substantially all, of the material in question was used for the purpose of rearranging the interior of the premises and for the purpose of enclosing the elevator shaft. The lease was in existence more than three years. During that time there seem to have been three fires immediately adjacent to the premises in question. The walls which were in the first instance more or less temporary and composed of used material were taken down and demolished and the material used over and over again and, under these circumstances, it is not surprising that some of the material cannot now be found. We believe that all, or substantially all, of the material has been accounted for.

The judgment appealed from is, therefore, affirmed.


text:
    No. 13,357
    Orleans
    BUSH v. LIBERTY INDUSTRIAL LIFE INS. CO., INC.
    (November 17, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellant.
    F. B.. Smith, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Barbara Bush, wife of George Hudson, was named beneficiary in a policy of life insurance issued by defendant, Liberty Industrial Life Insurance Company, Inc., on the life of Lillie Bush, sister of the beneficiary.

The insured died suddenly at about 12:30 or 1 o’clock in the afternoon of Tuesday, February 28, 1928. On the morning of February 28, 1928, the premiums due on the policy at the rate of 25 cents per week had been in arrears for a period approximating sixteen weeks. These premiums were paid tq the agent and collector of the company by the beneficiary either on that day, prior to the death, or on the next day, subsequent to the death, one of 1he contentions of defendant being that they were paid subsequently, and, of course, plaintiff contending that they were paid prior thereto.

It was stipulated in the policy that failure to pay premiums for four consecutive weeks should effect the lapse thereof and that payment thereafter of the premiums in. arrears should not be considered as reinstating the policy, unless, on the policy itself, the company should place a stamp agreeing to the reinstatement. The payment of the premium, whether on the 28th, prior to the death, or on the 29th, subsequent thereto, was the result of the solicitation by the agent of the company and was made by the beneficiary, who handed to the agent $5 in cash.

The agent and collector, shortly thereafter, hearing of the death of the insured, attempted to return the said money to the beneficiary, but she refused to accept it, and it was later turned over to defendant company.

As justifying its refusal to pay. to the beneficiary the face of the policy, to-wit, $230, defendant presents two contentions, one raising a question of fact, i. e., that the insured was already dead at the time of the payment to the agent of the overdue premiums, and the other containing a legal proposition, viz: that, in view of the policy stipulation that after a lapse thereof no reinstatement could be effected by the mere receipt by the agent of the overdue premiums, the payment thereof did not reinstate the obligation under the policy, which, having terminated as a result of the lapse, was not, by the payment, brought back into existence.

We will first consider the disputed question of fact. It appears that, as a fairly regular custom, the collector was in the habit of calling for weekly premiums on Tuesdays and that the premiums on this policy were usually paid not by the insured, but by the beneficiary. It is very true that in the receipt book the collector entered the payment as having been received by him on February 29th, and r.hat February 29th was a Wednesday, and that, if that entry is correct, the payment was received after the death of the insured. But in view of the uncertainties appearing in the evidence given by 'the collector, and bearing in mind the positive statements of the beneficiary that the payment was made on the 28th, which was a Tuesday, and that it was made prior to the death, and that, at the time it was made, the insured was in apparent good health, we have reached the conclusion that the evidence on this question of fact preponderates in favor of plaintiff’s contention.

Plaintiff’s counsel concedes that the legal contention can be decided in favor of his client only by our holding that the actions of the company on this and prior occasions, in accepting, without formal acknowledgment and without formal reinstatement of the policy, premiums more than four weeks in arrears, had established a custom under which plaintiff was justified in believing that, in case of delinquency existing four or more weeks, the formal requirement that the payment of the overdue premiums must be made directly to and accepted by the company, and that a reinstatement stamp must be placed on the policy itself, had been and would be waived.

The evidence leaves no room for doubt that on four prior occasions the premiums had not been paid over periods of at least four consecutive weeks and that in each such case, when the overdue payments were finally made, they were accepted and entered on the books of the company without any suggestion that the policy must be brought in for formal reinstatement.

We find in the testimony of the secretary of the defendant company a significant, though apparently inadvertent admission. When he was questioned with regard to the four prior occasions referred to and was asked why no protest was made in those cases, he said: “The company takes that up in settlement of death claims.” This statement seems to mean that the company is perfectly willing to accept premiums overdue more than four weeks, but that in case of death the company will then look into the matter, and, if it finds that at some time in the past a default had existed for four weeks, it will refuse payment.

It appears to us that a clear waiver has resulted and that the principles announced in Insurance Company v. Eggleston, 96 U. S. 572, 577, 24 L. Ed. 841, and in Gunther et al. v. The New Orleans Cotton Exchange Mutual Aid Assn., 40 La. Ann. 776, 5 So. 65, 2 L.R.A. 118, 8 Am. St. Rep. 554, govern this feature of the case. In the Eggleston case the court said:

“We have recently, in the case of Insurance Company v. Norton (supra, 96 U. S., page 234) (24 Law. Edition 689) shown that forfeitures are not favored in the law; and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action, on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.”

In the Gunther case the Supreme Court of Louisiana quoted with approval the language which we have just above set forth.

It is suggested that our view that the company has, by its course of conduct, waived its right to a strict compliance with the letter of the contract itself, is contrary to the doctrine announced by us in Embert v. Sovereign Camp, W. O. W., 2 La. App. 140, and by our Supreme Court in Taylor v. Latin-American Life & Casualty Ins. Co., 152 La. 740, 94 So. 375. We do not think so. It is true that the facts of the Embert case rather closely resemble those which we find here, but there is a fundamental difference in that there, though the overdue premium was received by the agent after the policy had lapsed, still it was not unconditionally received, but, on the contrary, a receipt was given reading as follows:

“Received from Mrs. Mary Embert $2.52 being in arrears on Certificate No........- _ which the applicant desires the Society to revive.
“Under no circumstances will the Society be liable under said certificate until the certificate has been revived on the book of the Society and the money credited in the Premium Receipt Book belonging to said Certificate.”

A reading of our opinion in that case shows clearly that we felt then, just as we do now, that, but for the condition contained in the receipt of the premium, a waiver would have been effected. We said:

“Plaintiff contends that the acceptance of the three months’ arrears constituted a waiver of the forfeiture clause and cites a number of authorities to this effect. If the acceptance had been unconditional, these authorities would have been apposite, but it was conditioned upon satisfactory evidence of insurability being furnished the Sovereign Commander and conditioned further that at the date of revival the member is in good health.”

In the Taylor case, supra, the facts in no way resembled those of the case at bar. There, after a lapse of 28 days, reinstatement was applied for and granted, with the stipulation that the policy should not afford protection for the results of disease contracted during the 28-day period. Plainly there is no analogy between that case and this one.

We feel that the premium was paid' before the death of the assured and that defendant has waived its right to demand strict formal compliance with the policy stipulation with reference to reinstatement.

The judgment appealed from is annulled, avoided and reversed and there is now judgment in favor of plaintiff and against defendant for $230, with legal interest from judicial demand, and for all costs.


author: HIGGINS, J.

text:
    No. 13,326
    Orleans
    ANDRY & FEITEL v. EWING, JR.
    (November 3, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Joseph a. Casey, of New Orleans, attorney for plaintiff, appellee.
    Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

The plaintiff, an architectural firm, brings this suit against the defendant for the sum of $525 alleged to be due under a verbal contract of employment whereby plaintiff undertook to prepare certain plans and specifications for a residence for the defendant. Defendant in his answer admits the agreement and that the plans and specifications were prepared and furnished by the plaintiff, but denies liability on the ground that it was agreed and understood that the plans and specifications would be for a building not to exceed the cost of $12,000, but that the plans and specifications furnished were for a building that was approximately 50 per cent in excess of $12;000.

There was judgment in favor of plaintiff as prayed for and the defendant has appealed.

The pertinent facts of the case are as follows:

The defendant purchased a building site in the city of New Orleans for the sum of $6,000, and desired to eroct a U-shaped residence, with a patio or court, which was to be formed by the three sides of the building. He obtained a sketch and floor plan from a friend who had recently graduated from college as an architect and called upon Mr. Feitel, a member of the plaintiff firm, for the purpose of having ¡plans and specifications drawn whereby the contemplated residence could be constructed under plaintiff’s supervision. At the time of his initial visit the defendant stated that he did not wish to spend in excess of $12,000 for such a building and requested that the plans and specifications be drawn accordingly. Preliminary plans and specifications were drawn after a considerable number of conferences between thé parties, and then, in order to more accurately determine what the cost of the proposed structure would be, the parties agreed to have a contractor make a preliminary bid, which amounted to the sum of $17,926. The defendant frankly expressed his disappointment at the amount of the bid, whereupon the bidder and members of the plaintiff firm pointed out that final bids were always, lower than preliminary bids. Defendant then suggested that there was another contractor whom he understood might do the work for a more reasonable price. The parties, at the suggestion of defendant, went to view a residence which had been constructed by this other contractor, but both members of the plaintiff firm advised the defendant that the building was cheaply constructed and that he ought not to have his residence similarly built. The members of plaintiff firm then made a number of suggestions by which the cost of the building could be materially reduced, but these suggestions were rejected by the defendant. Both members of the plaintiff firm then testified that the defendant stated that he would have the proposed residence built in accordance with the plans and specifications as drawn, even if it ¡placed him in bankruptcy, and considered that this was an order to proceed with the drafting of the final plans and specifications for the erection of the building. The defendant denies that he made the statement attributed to him, but said that he did say if he were to erect the building at a cost of approximately $18,000 it would cause him to go into bankruptcy. The plaintiff prepared the final plans and specifications and asked for bids. There were several bidders and the bids ranged approximately from $18,-000 to $21,000, including everything except lighting fixtures. When plaintiff informed the defendant of the amount of the bids he was astonished and disappointed and stated that he was .forced to abandon the construction of the building. Plaintiff again recommended certain changes to bring the price down, but defendant rejected them.

Some time later the defendant erected a different type residence on the building site and did not use the plans and specifications drawn by the plaintiff. The plaintiff then demanded the sum of $525, or 31/2 per cent of the amount of $15,000, a figure that the plaintiff arbitrarily adopted, as a reasonable fee for its services. Defendant refused to pay the fee and this litigation resulted.

The two members of the ¡plaintiff firm who testified as witnesses in its behalf admit that when the defendant called upon them for the purpose of having plans and specifications drawn, he stated that it was his desire to spend between ten and twelve thousand dollars for the construction of his residence. They further admit that they had no intentions of charging him any fee for the preliminary plans and specifications and for obtaining the preliminary bid by the contractor. They also admit that after the preliminary bid had been received that in order to lower the price of the building they recommended certain changes, but that the defendant refused to adopt them, as the appearance of the building was changed. It also appears that, even after the final bids, these two gentlemen further recommended changes in the building in order to bring the price of the bids down and again the defendant rejected them on the same ground. The defendant positively states that he made it clear to the members of the plaintiff firm that he did not desire to spend in excess of $12,000 for the contemplated residence. We, therefore, find that the defendant did place a limit of $12,000 for the building to b.e covered by tbe plans and specifications which were to be drawn by the plaintiff.

We next pass to a consideration of the second contention that the defendant waived the limit of $12,000. This argument is based upon the alleged statement imputed to the defendant to the effect that, after the preliminary bid had been received, he stated to the members of the plaintiff firm that he would have the residence, as originally designed and planned, erected, even though it placed him in bankruptcy. Defendant denies that he made such a statement, but claims that he said if he were to build the proposed residence at a cost of approximately $18,000, he would be forced into bankruptcy.

Mr. Viptor Wogan, a well-known and reputable architect of this city, who testified as a witness in behalf of plaintiff, on cross-examination was shown the sketch and floor plan and the preliminary plans and specifications for the building and testified that, if a client of his were to have asked him to. draw plans and specifications covering a similar building and limited the cost so as not' to exceed $12,-000, that he would not even undertake such a task, because it was apparent by just looking at the plans and specifications that such a building would cost far in excess of $12,000. He further stated that he would also advise his client that if he cared to have the plans and specifications drawn, that in the event the bids would exceed the sum of $12,000, that his client would have to pay him his architectural fee; in short, that he would have a clear and definite agreement with his client concerning his fee. It appears to us that the members of the plaintiff firm did not act with reasonable care and prudence in going forward with the final plans and specifications and bids upon what would appear to any reasonable man a most unusual statement. We feel that the defendant’s version of what he said is correct because, throughout the whole matter, he complained of the excessive amount of the preliminary bid and the members of the plaintiff firm were doing everything in their power to make changes to reduce the cost to an amount that would be acceptable to defendant. He finally rejected all such recommendations because they changed the appearance of the contemplated residence.

We are of tbe opinion that the case falls squarely under the doctrine of MacDonnell v. Dreyfous, 144 La. 891, 81 So. 383, where it was held (syllabus):

"Where an architect agreed to prepare plans for a building to cost in the neighborhood of $50,000, and the plans prepared and delivered were for one that would cost $69,000, together with the usual excess, the owner was not liable to the architect for the plans.”

' In the case of Williar v. Nagle, 109 Md. 75, 71 A. 427, 16 Ann. Cas. 982, the court said:

“An architect employed to prepare plans and specifications for a building to cost a specified sum cannot recover compensation for his services where the building cannot be erected except at a cost materially in excess of the amount specified.”

See, also, Horgan & Slattery v. City of New York, 114 App. Div. 555, 100 N. Y. S. 68, 72; Maack v. Schneider, 57 Mo. App. 431; Bair v. School Dist. No. 141, 94 Kan. 144, 146 P. 347; Bernstein v. City of New York, 143 App. Div. 543, 127 N. Y. S. 987.

We do not believe the cases of Nolan v. Perloff, 10 La. App. 618, 119 So. 754, and Nolan v. Great Southern Wirebound Box Co., Inc., 12 La. App. 688, 127 So. 98, are applicable because in both of those cases the court found that the defendant had not placed any limit on the amount that the proposed building was to cost.

The amount of the bids in the instant case being materially in excess of the amount originally fixed by defendant, which he never waived, we are of the opinion that our learned brother, a' quo, erred in rendering judgment in favor of the plaintiff.

For .the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment herein in favor of the defendant, dismissing the plaintiff’s suit at its cost.


text:
    No. 13,463
    Orleans
    FORT WAYNE ENGINEERING & MFG. CO. v. BAKER FUEL OIL BURNER CO.
    (December 15, 1930. Opinion and Decree.)
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellant.
    Louis R. Hoover, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit on an open-account for the sum of $187.03, the alleged" balance due plaintiff on the purchase price of 111 pumps which the • defendant purchased from the plaintiff at various times between October 5, 1925, and February 23, 1927, at a total cost of approximately $1,800. • ■

Defendant, in its answer, admits the sale and delivery of the pumps but denies liability on the ground that some of the pumps “were defective in parts,” which rendered them useless or their use so imperfect that they could not be used for the purpose for which they had been bought.

On the trial of the case on its merits plaintiff offered the testimony of two wit-, nesses, taken by deposition, making out a prima facie case, and rested. The defendant then sought to prove by its president and two employees that a number of the pumps locked because of their inability to pump heavy or gritty oil, which was used in their operation, causing the couplings to be severed from the force of :he racing motor which also “froze.” One of the alleged defective pumps was produced in open court and the alleged defects in the mechanism weré pointed out by the president of the defendant corporation.

The plaintiff in rebuttal then offered, produced and filed in evidence the testimony of two mechanical experts together with all the correspondence concerning the sale of the pumps. The testimony of these two experts shows that the pumps were not designed for the purpose of pumping gritty or heavy oil and that flexible couplings were recommended in the sales circular instead of solid couplings, in order to avoid the very difficulty which the defendant complained of. It further appears that before the defendant purchased any of the pumps during October, 1925, that a sample pump was sent to him by the plaintiff and that after testing it, in connection with an • oil burning apparatus that the defendant was installing in residences and apartments for heating purposes, found it to be suitable and satisfactory.

The defendant, without complaining, paid from January 21, 1926, through February 17, 1927, all except $537.03. After the account was placed in the hands of plaintiff’s attorneys for collection defendant paid the sum of $200 without any complaint as to the pumps. Defendant further paid the sum of $150 cash which was first offered as a full compromise and settlement of the balance due but which was refused by the plaintiff and credited on the account which left the balance of $187.03.

While the defendant contends that some 40 pumps of the lot were ' defective and unsuitable for the purpose for which they were installed, it did not produce any”of its customers to corroborate this line of testimony, although it appears that these witnesses were living in the city of New Orleans and, therefore, available.

Where a purchaser of mechanical tools and other materials uses them in his business for nearly a year, making part payments on the purchase price thereof, he cannot, when sued for the balance due, repudiate the contract by pleading defects, or improper construction. Hooper v. Dry Hand Mop Co., Inc., 1 La. App. 621.

Under the circumstances of this case we find that plaintiff has successfully rebutted the evidence offered by the defendant tending to show that the pumps were defective and is, therefore, entitled to recover. '

For the reasons assigned it is ordered that the judgment appealed from be annulled, avoided and reversed and that there now be judgment in favor of the plaintiff, Fort Wayne Engineering & Manufacturing Company, against the defendant, Baker Fuel Oil Burner Company, in the sum of $187.03 with legal interest from judicial demand until paid. Defendant to pay all costs.


text:
    No. 13,443
    Orleans
    DE LATOUR v. LALA
    (December 1, 1930. Opinion and Decree.)

      See, also, 12 La. App. 341, 125 So. 138.
    H. W. Kaiser and J. H. Hammel, Jr., of New Orleans, attorneys for plaintiff, appellant.
    James G. Schillin, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff sues on an open account. Defendant admitted the indebtedness and pleaded, as a bar to plaintiffs right to recover, his discharge in bankruptcy. Plaintiff then urged that the debt was not discharged in bankruptcy, because the credit,’ extended to defendant, was obtained by him on the false pretense that he had certain outstanding accounts which he would collect and pay to plaintiff, and that, as plaintiff relied on this fraudulent misrepresentation of the defendant in extending him further credit, the debt was not affected by the defendant’s discharge in bankruptcy under the express provisions of section 17 of the Bankruptcy Act (11 USCA, sec. 35). There was judgment dismissing the suit and plaintiff appealed.

We gather from the record that the plaintiff was engaged in the wholesale poultry business and defendant was engaged in the retail poultry business. Defendant had an open account with the plaintiff for about two years prior to the time of the alleged fraud. Between the dates of October 3, 1924, and November 21, 1924, the plaintiff had sold the defendant, at various times, poultry amounting to the sum of $755.85, on account of which defendant, on November 4, 1924, had paid the sum of $200, leaving a balance due of $555.85. On or about November 25, 1924, the defendant went to the plaintiff’s place of business for the purpose of obtaining merchandise, and, when plaintiff expressed his reluctance to extend further credit, defendant stated that he had lots of outstanding accounts and that he would pay. Defendant admits that this statement was made for the purpose of obtaining further credit and that his statement was false.

The pertinent portion of the Bankruptcy Act in this regard is Section 17, as amended by Act of February 5, 1903 (U. S. Comp. Stat. No. 9586, et seq., 11 USCA, sec. 35) which reads as follows:

“Sec. 17. DEBTS NOT AFFECTED BY A DISCHARGE. — (a) A'discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (1) * •* *; (2) are liabilities for obtaining property by false pretenses or false representations * *

Analyzing this language, it would appear to us that, before Section 17 (11 USCA, section 35) would be applicable, the plaintiff must show: (1) That defendant made false representations; (2) that these representations were made with the intention of defrauding the plaintiff, and ’ (3) that the plaintiff relied upon and was misled by the false pretenses or representations.

The plaintiff’s testimony as to what happened on the occasion in question is as follows:

“Q. When you sold Dominick Lala, did you inquire of him or make any effort to get from him any statement as to his financial condition?
“A. Well, I was informed that he had had enough credit, and I couldn’t go any further, and he told me that he had a lot of outstanding accounts, and as soon as he collected he would pay me, and to give him a little more credit, and under those conditions I gave him credit.”

•It is difficult to believe that the plaintiff relied upon the defendant’s most general statement in extending further credit to him, and it also appears that the defendant, while he made a false statement for the purpose- of obtaining credit, had no intention of defrauding the plaintiff., Plaintiff’s own statement, annexed to his petition, shows that the defendant was indebted to him in the sum of $755.85 at the, time of the alleged conversation on November 25, 1924. On that same day plaintiff sold the defendant merchandise on credit in the sum of $189.51, but the very next day the defendant paid the plaintiff the sum of $175 qn account. The statement further shows that between the dates of November 25, 1924, and December 29, 1924, the plaintiff extended the defendant credit to the extent of $330.39, and that between the dates of November 26, 1924, and January .8, 1925, the defendant paid plaintiff the sum of $500.

The plaintiff is an educated business man and defendant an illiterate retailer with a stall in the Poydras market, who is unable to read or write, or sign his name.

The burden of proof is upon the creditor, who claims that his duly scheduled debt is excepted from the operation of the discharge in bankruptcy because of fraud. Gerald v. M. C. Kiser Co., 209 Ala. 532, 96 So. 428 (Ala.), 3 A.B.R. (N.S.) 592.

The mere fact that the defendant procured credit and promised to pay for ordinary current purchases of goods and subsequently failed to meet his obligations will not bar his discharge. Brooks v. Pitts, 24 Ga. App. 386, 100 S. E. 776 (Ga.), 44 A.B.R. 437.

We conclude that the plaintiff has failed to establish by a preponderance of the evidence that he was misled and relied upon the defendant’s statement that the latter had a lot of outstanding accounts and, as soon as he collected them, he would pay, in extending further credit to him, and that the defendant, in making such statement, had any intention of defrauding the (plaintiff.

For the reasons assigned the judgment is affirmed.


author: WEBB, J.

text:
    No. 3845
    Second Circuit
    ROBERTS v. HOWARD
    (December 23, 1930. Opinion and Decree.)
    W. D. Cotton, of Rayville, attorney for plaintiff, appellee.
    Y. M. Mouser, of Columbia, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, • Felix Roberts, brought this action against defendant, M. L. Howard, to recover judgment in the sum of $200, with legal interest from January 6, 1928, and attorney’s fees of 10 per cent on the principal sum and interest.

Plaintiff alleged that he was the owner of a certain promissory note for $500, drawn by defendant, payable to plaintiff’s order on January 6, 1928, which stipulated for the payment of 10 per cent attorney’s fees, and that, although there was not any stipulation for interest, he was entitled to legal interest from date of the note; that defendant had paid petitioner $200 prior to the maturity of the note, represented by two payments which had been credited on the note; that plaintiff pledged the note to Mrs. Frances Rushing, and that he had authorized the pledgee to collect $100 on the note, but that the pledgee, after demanding payment of $100 on the note and collecting same, had, without the consent or knowledge of plaintiff, delivered the note to defendant, who held or destroyed same with the purpose of defeating plaintiff’s rights.

In answer defendant admitted that he had drawn, the note, and that the payments as alleged had been made. But he alleged that he had made other payments to Roberts aggregating $200. Defendant also admitted that he had paid $100 on the note to Mrs. Rushing, or her representative, and alleged that such amount was the balance due on the note, and that Mrs. Rushing or her representative had delivered the note to him, and that the note was either among other papers of defendant, or had been destroyed, and that he had been unable to find the note.

On trial judgment was rendered in favor of plaintiff for the principal sum, with interest as demanded, and rejecting the demand for attorney’s fees, from which judgment defendant appealed, and plaintiff has answered the appeal, praying that the judgment be amended and his demand for attorney’s fees allowed.

In presenting the cause here, as appears to have been the case in the trial court, appellant urges that, defendant having the note in his possession, the presumption is that it has been paid, and that plaintiff carried the burden of proof to establish that the note had not been paid, while appellee urges that the burden of proof was on defendant.

While as a general rule the presumption is as stated when a note which has been negotiated is afterward found in possession of the drawer. The presumption, however, as in that of ownership under like circumstances, arises from the fact of possession; but when, as in the present case, the pleadings as well as the evidence show that the note was not indorsed, and that possession of the note was acquired from a pledgee who was without title to the note, and whose authority at most was to collect the note, the presumption does not, we think, arise (see Dufour Bertrand Feed Co. v. Dedebant, 9 Orl. App. 321; 8 Corpus Juris, sec. 1014), and in the present case the burden of proof was on defendant to establish that the amount paid to Mrs. Rushing or her agent was the balance due on the note.

As stated, the note was for $500, of which amount plaintiff- alleged defendant had paid $200, before the note was pledged by him to Mrs. Rushing, an,d defendant alleged that he had paid plaintiff an additional amount of $200, leaving only a balance of $100, due on the note, which defendant alleged was paid to Mrs. Rushing.

On trial, however, defendant, in explanation of the alleged payment of $200, besides that admitted to have been paid, said that he had paid $85 at one time, for which plaintiff agreed to allow him credit for $100, and that he had made three other payments of $15, $40, and $45. Defendant was unable to give any further information relative to the payments other than that they were made in cash and when no one, other than himself and plaintiff, was present, and the latter denied that any of the payments had been made.

There was not any positive proof which directly supported the statements of either of the parties, and while defendant’s evidence does not show that he made any effort to find the note, and the record shows some inconsistencies in his testimony, but aside from that, the burden of proof was on defendant to establish that the note had been paid, and clearly the preponderance of the evidence does not establish any such fact.

Relative to the prayer of appellee to amend the judgment and allow the claim for attorney’s fees, there is not any evidence to support the demand other than that the note was drawn on the usual blank form, or such as is used by banks, which is not we think sufficient to show that attorney’s fees were stipulated for and warrant any judgment on that demand.

The judgment appealed from is affirmed, at appellant’s cost.


text:
    No. 13,470
    Orleans
    ROE v. MANISCALCO ET AL.
    (December 15, 1930. Opinion and Decree.)
    McCloskey & Benedict, of New Orleans, attorneys for plaintiff, appellee.
    Habans & Coleman and Gus Levy, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This is a suit wherein the plaintiff seeks the return of a deposit of $900' and the rescission of a written contract whereby he agreed to purchase an oil station consisting of real estate, stock, and fixtures, for the sum of $10,000, and under the terms of which agreement he deposited with one of the defendants, the real estate broker, the sum of $900 on account of the purchase price. The ground upon which the plaintiff asks that the contract be annulled and set aside is that the defendant owner did not own the stock and fixtures covered by the agreement. The defendant denied that he did not own the stock and fixtures covered by the contract.

There was judgment in favor of the plaintiff as prayed for, and the defendants have appealed.

While the question of jurisdiction was not raised by the parties, we observe that, as this is a suit not only for the return of the deposit of $900, but also for the annulment of a contract involving $10,000, which exceeds the jurisdictional limit of this court, we are without jurisdiction in the matter, and the consent of the parties cannot confer jurisdiction ratione materias upon this court under the circumstances. Villemeur v. Woodward et al., 130 So. 366, decided by this court October 20, 1930; Hunley et ux. v. Ascani, 14 La. App. 95, 129 So. 164; Bussey v. Wise-Miller, 14 La. App. 104, 129 So. 166; Bussey v. Barilleaux, 14 La. App. 82, 129 So. 167.

However, the appeal will not be dismissed, because under the provisions of Act No. 19 of 1912 we have authority to transfer such an appeal to the Supreme Court.

It is therefore ordered, adjudged, and decreed that this appeal he and it is transferred to the Supreme Court of Louisiana, to be disposed of according to law; the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal to be deemed dismissed, defendants and appellants to pay the costs of appeal in this court, the remaining costs to await final determination of the matter.


author: WESTERFIELD, J.

text:
    No. 13,499
    Orleans
    FONTAINE v. DORSEY
    (December 15, 1930. Opinion and Decree.)
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellee.
    Hugh M. Wilkinson, A. Miles Coe, Fred W. Oser and Harry Nowalsky, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Lawrence Fontaine, Jr., on whose behalf his father brings this action, was knocked down by a truck owned and operated by the defendant at the intersection of Gov. Nicholls and Bourbon streets.

From a judgment awarding plaintiff damages in the sum of $455, defendant has appealed.

The accident occurred on the 28th day of June, 1929, in broad daylight, when the Fontaine boy, who was ten years old, had almost succeeded in crossing the intersection from the lake to the riverside corner of Bourbon street. The defendant’s truck was being driven down Bourbon street in the direction of Esplanade avenue. The accident was due, in our opinion, to the failure of the driver of the truck to so regulate its speed after the appearance of the boy in his path to permit the child to cross in safety. The driver was either not looking in front of him, as was testified by one of the witnesses, and therefore did not see the boy in time, or, if he saw him, he did not apply his brakes in time to stop. When children are seen in the pathway of a motorist, extraordinary precaution should be observed to avoid injuring them. Jacoby v. Gallaher, 10 La. App. 42, 120 So. 888.

The driver of the truck testified that the boy ran out from the sidewalk just before he reached the intersection, but his statement is not supported by the evidence, which clearly preponderates to the contrary. As was said by the judge a quo:

“The negligence in this case was the failure of the driver, at the speed he was going, to have kept the proper lookout to be in a position to see these children (Lawrence was with his brother at the time) walking across the street. I cannot assume that the testimony of the driver is correct when it is contradicted by three witnesses.”

As to the quantum, it does not appear to us to he excessive. No bones were broken but the boy suffered a slight concussion of the brain. He was taken to the Charity Hospital, removed to his home, where he was confined to his bed for several days, and was under treatment for several months, incurring a medical expense in the sum of ¡¡>55.

For the reasons assigned, the judgment appealed from is affirmed.


author: LeBLANC, J.

text:
    No. 646
    First Circuit
    BROWN v. VACUUM OIL CO.
    (June 9, 1930. Opinion and Decree.)
    (June 30, 1930. Rehearing Refused.)
    (August 7, 1930. Writs of Certiorari and Review Granted by Supreme Court.)
    (December 1, 1930. Judgment of Court of Appeal Reversed by Supreme Court.)

      C. V. Pattison and E. E. Gayle, of Lake Charles, attorneys for plaintiff, appellant.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for defendant, appellee.
   LeBLANC, J.

This is a suit for compensation, brought under the provisions of the Employers’ Liability Act (Act No. 20 of 1914, as amended).

The plaintiff alleges that he was injured on August 5, 1929, while in the performance of his duties as a helper on one of the defendant’s oiL rigs in the Lockport oil field in Calcasieu parish.

He described the accident ‘ which caused his injury, substantially, in the following manner: That while engaged in his duty of cleaning the floor of the oil derrick with a water hose, another employee by the name of Hasha leaped on him in an attempt to take the hose away from him, and in the tussle between them he slipped and fell to the floor, Hasha falling at the same time on his left leg and injuring it. He avers that he had done nothing to provoke this sudden attack on him. tie claims that his left leg and knee are permanently injured as a result of the accident, that he is unable to continue to do work of the character he was engaged in, and therefore is entitled to the compensation which the law provides in cases such as this.

The defendant denies that plaintiff’s injury arose in the manner as set out by him, but avers on the contrary, that the scuffle in which he was hurt was provoked by him after he had used the water hose to throw water on his co-worker, Hasha, a habit he had been indulging in, against the rules and orders of his employers and over the protest of his fellow employees. It is specially averred that the nature of his employment did not make it necessary for liim to use the hose in the manner he was using it at the time, and that he was not at that ’moment performing any service arising out of, or incidental to, his employment.

There was judgment in the lower court rejecting the plaintiff’s demand, and he has appealed.

Plaintiff, from his testimony, would want to have it appear that if Hasha was drenched with water from the hose, it was purely accidental, but our consideration of the evidence convinces us that it was not. He seemed to have made it a habit of engaging in the boyish prank of splashing his fellow workers on the derrick with this water hose. On the night he was injured he had twice before sprayed the one he had provoked into this scuffle which resulted in the accident. The night was rather cold, according to the testimony, and it must have been irritating to Hasha to have to remain in wet clothes especially as he . had to work on top of the derrick. After the second wetting, he remonstrated with plaintiff and told him that if it occurred again, he would drown him. To this remark, the plaintiff jocularly answered that he had often been in deep water, but had not been drowned yet. His conduct in general and his attitude on this occasion would indicate a deliberate intention on his part to have some fun in this way at the other man’s expense, and that he was ready to meet the consequences. His splashing of Hasha for the third time that night was an implied challenge to the latter to carry out the threat he had made, and prompted the scuffle which resulted in the injury he claims to have received.

Under this state of facts, can it be said that the accident, which was the cause of his injury, arose out of, or was incidental to, his employment? We think not.

To bring an accident and its resulting injury within the terms of the Employers’ Liability Act, there must be some causal relation or connection between the source of the injury and the character of the employment. Conaway v. Marine Oil Co., 162 La. 147, 110 So. 181.

The nature of plaintiff’s employment required that he use the water hose for the purpose of washing off the water and mud from the floor of the oil derrick and the machinery on and around the derrick, and, any other use of it, especially for indulging in a bit of “horseplay” by wetting his fellow workers, was an act which not only did not arise out of his employment, but was entirely foreign to it. Besides, the source of his injury was the tussle between himself and his fellow worker, which can hardly be said to bear any relation to the character of his employment. The water hose itself may have been the object which led to the encounter, but it was not the instrumentality which caused the accident, and it is in this respect, it may be said that the case differs materially from that of Schexneider v. American Tank Car Corporation, 5 La. App. 84, which is relied on by the plaintiff. In that case, an employee was killed through the accidental discharge of a pistol in the hands of a fellow worker who was a night watchman. The Court of Appeal for Orleans parish allowed compensation on the theory that "the revolver, from which the shot was accidentally discharged was a part of the watchman’s equipment and essential to his employment as a means of protecting his employer’s property” — and it made the further pertinent observation that the case differed from “the cases cited from other jurisdictions where the injury resulted entirely from the pranks of employees without reference to any instrumentality of the employer’s business.”

One of the principles on which the humane legislation embodied in workmen’s compensation laws is grounded, is that the employer who engages people in hazardous occupations assumes the risk of the dangers incident thereto. This does not relate to the dangers common to the neighborhood or to everyday life, but to those that are peculiar to the nature and character of the particular kind of employment.

A man using a water hose in washing the muddy floor of an oil derrick is exposed to the danger of slipping and falling thereon and thereby hurting himself. That is a danger incident to the character of work he does. But, when in a spirit of frolic he uses' the water hose to splash a fellow worker, who, having already threatened him, engages him in a ■ physical combat, whether friendly or not, he then exposes himself to a danger common to any man in everyday life, and one which the" law did not contemplate should be assumed by the employer.

We have kept in mind that the Workmen’s Compensation Law (Act No. 20 of 1914, as amended) is one which should be, and usually is, liberally construed in favor of the employee, but we do not feel, under the facts of this case as we view them, that we can extend its provisions so as to grant relief to this plaintiff.

The judgment of the lower court correctly rejected his demand, and it is affirmed.


text:
    No. 13,618
    Orleans
    BORNE v. HARDIN
    (December 15, 1930. Opinion and Decree.)
    Edwin C. Kohn, of New Orleans, attorney for plaintiff, appellee.
    Henry G. Huckabee, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by ■ a plumber for the sum of $295.60, the balance alleged to be due under a verbal contract by which he installed certain plumbing and fixtures in the defendant’s premises. Defendant filed a general denial. On the trial of the case on the merits there was judgment in favor of plaintiff, as prayed for. Defendant then filed a motion for a new trial, which was granted on the ground that the transcript of the testimony of the witnesses had been lost. The defendant then filed a supplemental answer in which he admitted that the contract was entered into and that there was a balance due the plaintiff, but specially pleaded that the work had never been completed and accepted, because the supervisor of plumbing of the city of New Orleans, in accordance with the rules and regulations of the city engineer’s office, refused to issue a certificate of approval, because the kitchen sink on the second floor was not properly vented through the roof and one basin on the first floor was not vented, or connected to the waste line. The plaintiff objected to the filing of the supplemental answer and the court sustained the objection. During the course of the second trial the transcript of the testimony taken in the original trial was found and introduced in evidence.

There is some doubt as to the right of defendant to file a supplemental answer, which seems to conflict with his original answer, or general denial, but assuming that the supplemental petition was properly before the court, the most favorable view we could take of the situation, as far as defendant is concerned, we pass to a discussion of the evidence in the cáse.

Plaintiff’s evidence tends to show that the plumbing and fixtures were installed, in a workmanlike manner, in accordance with the contract. The defendant frankly admits that • the contract was entered into and that there is a balance due plaintiff, the only objections being as above set forth in the supplemental answer. But, it appears that these requirements of the supervisor of plumbing were of such a nature that they could be easily remedied. The defendant, however, disposed of the premises, including the plumbing and fixtures, without any loss to himself, and thus made it impossible for the plaintiff to remedy the alleged defects.

Defendant also complained in his testimony that the kitchen sink was not in accordance with the fixture that he had selected. But it is noted that this was not pleaded in his answer and, even if it be considered that the pleadings were enlarged by the admission of the evidence, as the defendant had the burden of establishing this special defense, and the testimony is conflicting on that issue, we find that he has failed to sustain his claim on that score.

For the reasons assigned the judgment is affirmed.


author: ELLIOTT, J. LeBLANC, J.

text:
    No. 613
    First Circuit
    CAILLIER v. PROFITO
    (May 6, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    (July 19, 1930. Writs of Certiorari and Review Granted by Supreme Court.)
    (December 1, 1930. Judgment of the Court of Appeal Affirmed.)
    Chas. T. Wortham, of Donaldsonville, attorney for plaintiff, appellant.
    C. C. Weber, of Donaldsonville, attorney for defendant, appellee.
   ELLIOTT, J.

Ferdinand Caillier as sole heir of his father, Valsin Caillier, claims against Victor Profito in a petitory action a certain lot of ground situated in the parish of Ascension one and one-fourth miles below the town of Donaldsonville on the left bank of Bayou Lafourche, described in the title from Martial Capbern to Valsin Caillier, passed September 28, 1874, measuring 60 feet front on said bayou by a depth of 120 feet, bounded above and in the rear by lands of the present vendor, and below by lands of Leon Babin, together with all buildings and improvements thereon and thereunto belonging.

The title from Capbern to Valsin Caillier was recorded in the conveyance records on or about the time it was passed. There is no dispute about plaintiff being the sole heir of his father, and as such he appears to be the owner of all the right, title, and interest, which his father left, by inheritance. It is not claimed that his father ever parted with his title acquired from Capbern.

The plaintiff alleges that the defendant Profito is in possession of said property without right or title thereto.

He alleges in article 6 of his petition that said Profito has sold and conveyed to the Texas & Pacific Railroad Company a large amount of dirt from said property, and in article 7, that said railroad company has, in pursuance of said agreement, removed and hauled away a large amount of dirt from said property.

He prays for judgment recognizing him to be the owner of said property, and, as such, entitled to the possession of the same. The plaintiff also prays for judgment against Profito and the railroad company in solido on account of the dirt taken, but he subsequently withdrew his demand against the railroad company, leaving his demand against Profito for the land, and also for the dirt removed.

The defendant Profito excepted to plaintiff’s petition on the ground that it did not disclose any right or cause of action. But this exception was not pressed and we look on it as abandoned.

The defendant answered, and denied plaintiff’s alleged ownership of the property. He admits plaintiff’s averment, article 6, but denies that plaintiff has any interest whatever therein. He also admits plaintiff’s averment in article 7, but denies that plaintiff has any interest therein. He sets up title to certain property, but he does not directly aver that the title which he pleads calls for the land described in the petition of the plaintiff. He does not pray to be recognized as the owner of the property, but prays that plaintiff’s demand be rejected, and that his suit be dismissed.

Defendant subsequently urged, as an exception against plaintiff’s demand, that he and his authors had been in the full and peaceable possession of the property claimed by plaintiff for a period of more than 10 years under title translative of property, and that he and his authors in title had been in the peaceable and physical possession of the property sued for, for a period of more than 30 years, pleaded the prescription of 10 and 30 years, prays that the prescription of 10 and 30 years be maintained, and that plaintiff’s suit be dismissed at his cost.

As the prescription of 10 years requires possession and a just title as a basis therefor, it follows that plaintiff has set up title, and defendant has set up title to and possession of the land in question, although defendant does not pray for judgment recognizing him to be the owner.

The parties offered their titles in evidence. Parol testimony was offered on the question of identity and possession. The parol evidence does not show possession in either party, and does not indicate that the land in question is covered by the title set out in the answer of the defendant, and nothing in the title set up by defendant indicates that the land in question may be included therein.

We have considered the effect of defendant’s answer, admitting averments Nos. 6 and 7 in plaintiff’s petition, but at the same time denying that plaintiff has any interest in the property. This qualified denial does not do away with the admission that the ground from which Profito had sold the dirt is the identical ground called for by the title from Capbern to Yalsin Caillier. Defendant’s answer is in effect an admission that the dirt sold by defendant to the Texas & Pacific Railroad Company was the same which Capbern had sold to Caillier by title declared on by the plaintiff.

This .judicial admission entitles the plaintiff to a judgment for the land, as prayed for.

There is no foundation for the prescriptions of 10 and 30 years pleaded by defendant. The lower court rejected plaintiff’s demand. The judgment is erroneous, and must be set aside and rendered in favor of the plaintiff.

The parol evidence does not show the value, of the dirt taken, but the plaintiff states in his brief that he will be satisfied with $80 on that account. We are satisfied from the agreement between the railroad company and Profito that dirt to the value of $80 has been sold from the land by Profito. Plaintiff’s demand for damages to the extent of $80 is therefore established.

For these reasons the judgment appealed from is annulled, avoided, and set aside, and it is now ordered and decreed that there be judgment in favor of the plaintiff, Ferdinand Caillier, and against the defendant, Victor Profito, recognizing Ferdinand Caillier as the owner of that certain lot of ground situated in the parish of Ascension, about 1% miles below the town of Donaldsonville on the left bank of Bayou Lafourche, described in the title from Martial Capbern to Valsin Caillier, passed September 28, 1874, measuring 60 feet on said bayou, and by a depth of 120 feet, bounded above and in the rear by the lands of the present vendor, and below, by the lands of Leon Babin, together with all the buildings and improvements thereon and thereunto belonging. And that said Caillier be placed in possession of the land called for by said title.

It is further ordered that said Caillier have judgment against said Profito for $80, with legal interest thereon from June 26, 1929, until paid; the defendant Profito to pay the cost in both courts.

LeBLANC, J.

(dissenting). The judgment in the lower court was one of non-suit, based on insufficiency of evidence to properly identify the property claimed by the plaintiff. The majority opinion of this court holds that the evidence does not show possession in either party nor “does it indicate that the land in question is covered by the title set out in the answer of the defendant.” This the defendant was not called on to do, but the plaintiff had to, as it is almost too elementary to have to be stated here, that, in a petitory action, the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary.

The decision of this court as it now stands is in effect a judgment on the face of the papers based on admissions made in articles 6 and 7 of the defendant’s answer. There was no rule for judgment on the pleadings in the lower court, nor was that issue presented before this court either in oral argument or in brief. Conceding, however, that it is proper for the court to consider the question, I am of the opinion that these so-called admissions do not have the effect given to them in the majority opinion. They are admissions of fact, alleged by the plaintiff that the defendant sold dirt from the land claimed to the Texas & Pacific Railway Company, and that the railway company removed the dirt, but, in each, it is specifically denied that the plaintiff had any interest therein.

I am unable to agree that, by his pleading in these articles of his answer, the defendant has admitted title in plaintiff to the property sought to be recovered by him, and I therefore respectfully dissent.


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    No. 559
    First Circuit
    CHARGEOIS ET AL. v. FIERO
    (June 30, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Mouton & Debaillon, of Lafayette, attorneys for plaintiff, appellee.
    J. J. Davidson, Jr., of Lafayette, attorney for defendant, appellant.
   LeBLANC, J.

Plaintiffs bring this suit against the defendant to recover rent on a small tract of land east of the city of Lafayette, which they had leased to the defendant and Fred Fiero for the term of five years, beginning August 1, 1923, for the purpose of conducting a water resort. There was a cement swimming pool on the premises which we take to have been the main object of the lease. Lessees had the right under the contract to erect the necessary buildings such as dressing rooms, toilets and such other accessories as were necessary to carry on the business contemplated under the lease, and to remove them at its termination.

The high water of 1927 completely inundated the property and it remained under water from the latter ©art of May until the latter part of August. There was as much as twenty feet of water over it.

Fred Fiero is alleged to be a non-resident and -the suit is prosecuted against Ray Fiero alone as a solidary obligor for the amount of rent that is claimed. The defense urged by Ray Fiero is that the inundation of the property during the three months of June, July and August rendered the property totally unfit for the purpose for which it had been leased and therefore he is entitled to an annulment of the lease under article 2699 of the Civil Code, which reads:

“If, without any fault of the lessor, the thing cease to be fit for the purpose for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls, shall intercept the light, of a house leased, the lessee may, according to the circumstances, obtain the annulment of the lease, but has no claim for indemnity.”

Defendant also pleads in reconvention, alleging that as plaintiffs prevented him and his co-lessee from removing the improvements he had placed on the property after the lease had terminated, they are liable for their value which he places at the sum of $315, and he prays for judgment against them for that amount.

The lower court rendered judgment in favor of plaintiff for the full amount of the rent claimed, and in favor of the defendant on the reconventional demand decreeing him and his co-lessee, Fred Fiero, to be the owner of the improvements placed by them on the leased premises with the right to go thereon and remove them. From this judgment, the defendant has appealed.

The contention of the plaintiff is that as the inundation of the property leased caused the defendant only a temporary inconvenience, and did not totally destroy the property leased or damage it to the extent that it would have to be reconstructed, the most the lessees were entitled to was a remission of the amount of rent covering the period of inconvenience which they aver they have remitted to the defendant.

Plaintiffs’ contention would more properly apply to a case arising under the provisions of article 2697 of the Civil Code where the rights of the parties are regulated when the property leased is destroyed either in whole or in part. A total destruction by some fortuitous event puts an end to the lease. A partial destruction only grants to the lessee either of two remedies, to demand a diminution of the price, or a revocation of the lease. It is to be noted that even here, the choice of the remedy is given to the lessee. But we do not think that that article is the one which applies in this case. There was no destruction, either total or partial of the property leased. What property was destroyed, if any, consisted of the improvements placed thereon by the lessees. The property leased consisted of the small tract of land with the cement swimming pool on it. The land could not be destroyed and it is not pretended, as we understand, that the cement pool was; but it is manifest from the evidence that during the three months of June, July and August, they both ceased to be fit for the purpose for which they had been leased. As these very three months constituted the bathing season, the only period that was remunerative for the lessees, the inconvenience they suffered was more than temporary as claimed by the plaintiffs. As a matter of fact, the property, which they had leased was rendered totally unfit for the purpose for which it had been leased during those three months, and the recourse accorded them under the provisions of article 2699 of the Civil Code was to obtain, not a remission of the rent for that period, but an annulment of the lease.

Counsel for plaintiffs urges very strongly upon us to apply the principle laid down by the Supreme Court in deciding the case of Dussnau v. Generis, 6 La. Ann. 279, in which it refused to annul a lease of a residence and- premises in the city of New Orleans because of the fact that the sidewalk and banquette in front of the tenant’s house was temporarily submerged with water from a crevasse that had occurred a few miles above the city. The court reached the conclusion that ‘‘tfce law-giver did not contemplate the dissolution of leases except in extreme cases, but rather an equitable indemnity, to the tenant for a temporary inconvenience sustained unexpectedly and without the fault of the lessor.” The facts as disclosed in the body of the opinion show that the water never even reached the yard, and the most the court found was that he was subjected to some inconveniences, but was not deprived of the use of the premises. The difference in the facts between that case and those in the one before us becomes apparent at once upon consideration that in this case, the very property leased was covered with twenty feet of water and it was out of the question for the lessees to use it at all, not to mention using it for the purpose for which it had been leased.

An examination of the cases in whicn the doctrine of the Dussnau v. Generis case was followed, reveals in each circumstances which show that the inconvenience or discomfort suffered by the lessee was so slight compared to the total loss of the use of the property in this case for the only period of the year during which lessees operated their business on it, that we are satisfied it is not applicable here.

In the case of Viterbo v. Frendlander, 120 U. S. 708, 7 Sup. Ct. 962, 974, 30 L. Ed. 776, the Supreme Court of the United States had before it for consideration a question almost similar to the one {presented here, the only difference being that instead of a bathing resort, the property involved in the lease was a sugar plantation. The lease was for a period of five years and during the second year of its life, the property was inundated by water from a crevasse on the Mississippi river. It remained covered with water for three months. It was admitted that after the water would recede, with the expenditure of some money and the putting out of labor the plantation would grow a crop of cane. Lessor contended that as those wei'e matters incident to the growing of a crop each year, the property had not ceased to be fit for the use for which it had been leased and lessee was not entitled to a revocation of the contract. The court, in a very elaborate opinion, very interesting also because of its discussion of the articles of our Civil Code on the subject of leases, decided adversely to the lessor’s contention however, and held, that the léase was cancelled. We quote the following from the opinion:

“The general purpose and the common rule of the Civil Law as expressed in the Code of Louisiana, are: that the lessor shall secure to the lessee the possession, use and enjoyment of the thing leased, against everything but the fault of the latter; and that any loss of the thing, or deprivation of its use or enjoyment by accidents or fortuitous events, shall be borne by the lessor and not by the lessee. This appears from the general provisions in the articles above quoted, by which the lessor is bound, from the very nature of the contract of lease, and without any clause to that effect, not only to deliver the thing leased to the lessee, but also to maintain it in such a condition as to serve the purpose for which it is leased, to cause the lessee to be in peaceable possession of the thing during the continuance of the lease, to make, during its continuance, all repairs, except some petty internal ones, and, to make even those when rendered necessary by unforeseen events; as well as by articles 2697 (2667) and 2699 (2669), which apply both to country estates and to town houses, and entitle the lessee, whenever by a fortuitous event, and without his fault, the thing is either destroyed, or ceases to be fit for the purpose for which it has been leased, or its use is much impeded, to demand the annulment of the lease, and if it is only destroyed in part, to demand either a revocation of the lease or a diminution of the rent.”

It is interesting to note that in that case also the court was urged to apply the doctrine of the Dussnau v. Generis case and the cases that followed it, and it may he proper here to quote what the court said in reference thereto:

“The learned counsel for the defendant much relied on some dicta of Louisiana Judges to the effect that the law of the State does not favor the abrogation of a lease when the loss or inconvenience is not caused by the fault of the lessor. Dussnau vs. Generis, 6 La. An. 279; Denman vs. Lopez, 12 La. Ann. 823; Foucher vs. Chopin, 17 La. An. 382; Penn vs. Kearney, 21 La. Ann. 21, 23. But such dicta cannot be understood as laying down a general rule, in opposition to the express words of Articles 2697 (2667) and 2699 (2669) of the Civil Code. The circumstances of each of the cases in which they were uttered were quite different from those before us. In two (2) of them the injury or inconvenience is comparatively unimportant; and in the other two (2) the tenant had not surrendered the lease but remained in possession, In a later case than any of these, which was one of partial destruction by fire of a building in a city, the Court held that under Art. 2697 (2667) the lessee, although he might, if he pleased, have the rent abated, had a ¡perfect right to elect to have the whole lease annulled. Higgins vs. Wilner, 26 La. Ann. 544.”

We are of the firm opinion that under the facts as presented, this case comes clearly under the provisions of article 2699 of the Civil Code entitling the lessee to an annulment of the lease. That being so, the lessor has no claim for the rent. To the extent therefore that the judgment of the lower court condemned the defendant for the rent, it is erroneous and will have to be set aside and reversed.

With regard to defendant’s reeonventional demand for damages for the value of the improvement placed by him and his co-lessee on the (property and which he claims they were prevented from removing by plaintiffs, we think the judgment of the district court decreeing them to be the owners thereof with the right of removal, was the proper one to be rendered under the facts and the law in this case. When plaintiffs objected to the removal of this property they were of the opinion, as they still contended throughout this trial, that the lease was not terminated and they had a privilege on the property of the lessees situated on the leased premises to secure the payment of their rent. They no doubt were acting within the exercise of what they considered were their legal rights. We do not believe that the change in the position assumed by them later on, in recognizing the lessee’s right to remove the ¡property had the effect of making them liable in damages for the value of the property. Not only the contract of lease but the law itself gave the lessees the right to remove their property and' they could have prosecuted that right successfully had they persisted in their efforts to do so.

The judgment of the lower court on the defendant’s reconventional demand is, in our opinion, correct and should be affirmed.

It is therefore ordered that the judgment in this case insofar as it was in favor of the plaintiffs and against the defendant condemning the latter to pay the amount of rent claimed is annulled, set aside and reversed, and it is now ordered that the said plaintiff’s demand be rejected, and it is further ordered that the judgment on the demand of the defendant in reconvention be and the same is hereby affirmed. It is also ordered that the plaintiffs pay all costs of this proceeding in both the lower and in this court.


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    No. 3831
    Second Circuit
    LEE v. MARK H. BROWN LUMBER CO.
    (December 23, 1930. Opinion and Decree.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellee.
    Jas. H. Gilfoil, Jr., of Lake Providence, attorney for defendant, appellant.
   WEBB, J.

This action was instituted by plaintiff, Earl Lee, against defendant, Mark H. Brown Lumber Company, to recover compensation under the Employer’s Liability Statute (Act No. 20 of 1914, as amended), for disability to work, alleged to have resulted from injury sustained by plaintiff while he was engaged in the service of defendant.

Plaintiff alleged that he, together with other persons, was employed by defendant to haul logs from a log dump on the public highway to the right of way of the Missouri Pacific Railroad Company, at Oak Grove; that in such work he used and operated his own truck, and was paid for the logs hauled at the rate of three dollars per thousand feet; that his earnings had been considerably in excess of thirty-five dollars per week; that among the other persons employed by defendant to haul the logs, was Percy Newton, who had, in dumping the logs from the truck operated by him, thrown one against plaintiff’s leg, breaking the leg between the knee and ankle, and that plaintiff had expended $494 for medical fees and hospital services in having the leg treated.

Plaintiff further alleged that the injury had permanently totally disabled him to do work of any reasonable character, and that he was entitled to the maximum weekly rate of compensation, or $20 per week, during the period of disability, not to exceed 400 weeks (see sec. 8, subsec. 1, cl. b, Act No. 20 of 1914, as amended by Act No. 242 of 1928), and in event it should be held that he was not entitled to compensation for the period stated, that he should be allowed compensation for a period of 175 weeks (section 8, subsec. 1, cl. (d), subd. 8, Act No. 20 of 1914, as amended by Act No. 242 of 1928), and plaintiff prayed for judgment accordingly.

Defendant answered, denying plaintiff’s allegations, and pleaded that plaintiff was an independent contractor, and further, in event it should be held that plaintiff was not an independent contractor and was entitled to compensation, defendant asked that after hearing, plaintiff should be awarded such compensation as the facts developed warranted.

On trial, plaintiff was awarded compensation at the rate of $15.60 per week for the p'eriod of disability, not to exceed 125 weeks, payments to begin on the date of the accident, May 3, 1929, with legal interest on all past due payments from date of maturity; and an additional amount of $250 for medical service. Defendant appeals, and plaintiff has answered the appeal praying that the judgment be amended and the period of compensation fixed at 175 weeks (sec. 8, subsec. 1, cl. (d), subd. 8, Act No. 20 of 1914, as amended by Act No. 242 of 1928).

In support of the appeal, defendant and appellant contend the evidence established that plaintiff was an independent contractor, and urges that the court erred in finding to the contrary; and in event it should be held that the finding of the court in that respect was correct, appellant urges that the court erred in fixing the weekly payments at $15.60, and in awarding .any amount for medical fees.

With reference to the question as to whether or not plaintiff was an independent contractor, it is conceded that defendant was engaged in the business of logging and' lumbering, which is specifically declared under the statute (sec. 1, sub-sec. 2, cl. (a)), to be a hazardous occupation or business, and it is not suggested that the work of hauling the logs was not an incidental and necessary part of the business. But plaintiff, as well as other persons, who engaged in the same character of work on the same terms as plaintiff, having said that defendant did not have any control of the work undertaken by them, only as to the result of the work, and not as to the means by which the work was accomplished, defendant urges that plaintiff was clearly an independent contractor within the meaning of the provisions of section 3, subsec. 8 of the statute, (as added by Act No. 85 of 1926) which reads as follows:

“A person rendering service for another in any of the trades, businesses, or occupations covered by this act (other than as an independent contractor, which is expressly excluded hereunder) is presumed to be an employee under this act. The term ‘independent contractor’ shall be considered to mean for the purpose of this act, any person who renders service other than manual labor for a specified recompense for a specified result either as a unit or as a whole under the control of his principal as to result of his work only, and not as to the means by which such result is accomplished.” '

The definition of an independent contractor as given is, with the exception of the phrase, “other than manual labor,” the same as the usual definition, and appellant states that prior to the insertion of the provision quoted (see Act No. 85 of 1926), the plaintiff would not have been held to be an independent contractor, but appellant contends that the definition of an independent contractor was inserted into the statute for the purpose of requiring that any 'one who contracted to render service for a specified recompense for a specified result, either as a unit or a whole, under the control of his principal as to the result of his work only, and not as to the means by which such work is accomplished, should be held to be an independent contractor, unless he was required to do manual labor.

There is not any decision cited from this state in which the effect of inserting the definition of an independent contractor, as shown by the provision quoted, has been considered, but the object of the statute being to provide compensation for workmen injured in certain hazardous employments (Hall v. City of Shreveport, 157 La. 589, 102 So. 680), and the owner being liable to workmen injured in such work, even though the particular work in which he was engaged was distinguishable from other work necessary to effect the object of the hazardous business and had been sublet to a third person who was the immediate employer of the injured workman (sec. 6 of the statute (as. amended by Act No. 85 of 1926); Helton v. Tall Timber Lumber Company, 148 La. 180, 86 So. 729; Seabury v. Arkansas Natural Gas Co., 171 La. 200, 130 So. 1), we do not think that by adding the phrase “other than manual labor” to the usual definition of an independent contractor, there was any intention to exclude from the benefit of the statute any person theretofore included.

However, without regard to. that question, the evidence in the present instance showing that plaintiff, the owner of the truck, was employed, together with other persons owning trucks, to haul logs from the dump to a sawmill at Lake Providence at the rate of $5 per thousand feet or to Oak Grove at the rate of $3 per thousand; that the logs to be hauled to the respective places were not segregated and that none were designated to he hauled by any of the trucks, such matters being left to be determined by defendant’s representatives when the logs were loaded on the trucks, does not, we think, show that defendant was without control only as to the result of the work. The fact that defendant would select and direct the place to which the logs should be hauled when the trucks were loaded, all of which was dependent upon the pleasure of defendant, indicates there was not any contract for want of an object or cause (articles 1779, 1883, 1886, Civil Code) until the logs were selected and loaded on the trucks and directions given relative to the place where the logs’ should be delivered, and as we see ft, the defendant had control of everything except the manner in which the trucks were to be driven.

While it is true that one who is engaged in the trucking or hauling business is regarded as an independent contractor, when he is doing work with his own equipment in carrying on his business, the mere fact that an owner of a truck with others owning trucks is engaged in doing work which is necessary to be done in conducting a hazardous business, does not indicate that they are independent contractors, but where they are employed by the owner of the hazardous business, they are, we think, employees (see Dick v. Gravel Logging Co., 152 La. 993, 95 So. 99, and authorities cited; Burt v. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87), and we are of the opinion that plaintiff was not an independent contractor, but merely an employee of defendant and that defendant was liable to him under the statute for compensation.

Relative to the award, as stated, appellant urges that the court erred in fixing the rate of the weekly payments, and in making any award for medical fees; while appellee urges that the period of payments should be increased to 175 weeks.

It is conceded that in fixing the weekly payments, the court fixed the amount on the average weekly wage of a truck driver, which he found was $25, or that the usual daily wage was found to be $4 per day, $24 per week. There is not any objection to the method employed (see Alexander v. Lattimer, 5 La. App. 41; Morgan v. Nelms, 5 La. App. 414), but it is contended that the weight of the evidence shows the usual daily wage of a truck driver was three dollars, and that the average weekly wage of plaintiff should not have been fixed in excess of $18.

There was some conflict in the evidence relative to the usual pay of a truck driver in the logging business, but it clearly appears that the court in fixing the rate of pay at $4 per day, considered the qualifications of plaintiff, which, however, are not shown to have been such as would have enabled him to obtain a greater wage as a truck driver than usually paid to persons in that employment, which the' preponderance of the evidence shows was three dollars per day. Therefore the average weekly wage should have been fixed at $18 and the weekly payments at 65 per centum of that amount, or $11.70.

Relative to the period of payment, the evidence established that plaintiff was disabled for some time, and while it appears that he could walk at the time of the trial, the leg which was fractured was not healed at that time. Plaintiff’s disability was due solely to the injury to the leg, and the extent of the injury was under the evidence equivalent to the loss of the foot, for which the statute provides that the period of compensation shall be 125 weeks (sec. 8, subsec. 1, cl. (d), subd. 7 of the statute as amended by Act No. 242 of 1928), and under the provision of subdivisions 14 and 15 of the same clause, subdivision and section, the period of compensation was properly- fixed at 125 weeks.

The contention that the court erred in allowing any award for medical fees is based upon the fact that, although plaintiff alleged he had incurred medical fees, etc., in excess of the amount allowed under the statute, he did not specifically pray for judgment for same.

However, evidence was introduced showing that the fees had been incurred, after plaintiff had demanded that defendant furnish him with such attention, and the judgment awarding plaintiff medical fees as allowed by the statute (sec. 8, subsec. 1, cl. (d), par. 7, as amended by Act No. 242 of 1928) was warranted under plaintiff’s prayer for general relief. (State ex rel. Levert v. Lapey-Rollerie, 38 La. Ann. 912.)

It is therefore ordered that the judgment appealed from be amended and that the amount of the weekly payment be fixed at $11.70, and as thus amended, the judgment is affirmed at plaintiff’s cost.