author: LECHE, J. ELLIOTT, X,

text:
    No.-
    First Circuit
    MORGAN v. LA. RICE MILLING COMPANY, INC.
    (Februry 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)
    (April 9, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4, 4 (c).
    The driver of an automobile is not negligent when he hits a pedestrian who, although he had been running along the side of the road in the same direction, suddenly starts to run across the road directly in front of the automobile, giving the driver no chance to stop or turn his car before • striking him.
    Appeal from the Parish of Acadia. Hon. W. W. Bailey, Judge.

      Action by Mrs. Alice Sarver Morgan et al. against Louisiana Rice Milling Co., Inc.
    There was judgment for plaintiffs and defendant appealed.
    Judgment reversed.
    Philip S. Pugh and Percy T. Ogden, of Crowley, attorneys for plaintiff, appellee.
    Monroe & Lemann, of New Orleans; W. C. Carmouche, of Crowley; and Modisette and Adams, of Jennings, attorneys for defendant, appellant.
    ELLIOTT, J., dissents for written reasons.
   LECHE, J.

The judgment of the District Court in the above cause, rendered upon the verdict of a jury, condemns the defendant to pay unto plaintiff, damages for the death of Joseph A. Morgan who was struck and killed by an automobile driven by an employee of the defendant. The plaintiffs are the widow and minor children of Morgan, and the defendant does not deny its responsibility, if any, for the conduct of the driver of the automobile, who was acting within the scope of his employment.

The accident happened on the public highway between Crowley and Kaplan, a few miles south of Crowley. That highway runs approximately due north and south, is thirty feet in width and its surface is graveled to within six and a half feet, about, of the drainage ditches on its sides. Its edges measuring, as noted, about six and a half feet, are overgrown with grass extending to the side ditches. The center part of the road, coated with gravel, is about seventeen feet wide and it is almost exclusively used for vehicular traffic; there are two well marked paths on the graveled part of the road, one on the east side used for traffic going north, and the other on the west side, used for traffic going south.

Morgan was on his way north to Crowley, he stopped and parked h,is Ford automobile to get some lubricating oil. In order to get the oil, he had to walk back south, some 300 o,r 400 feet to reach the home of Fred Cole. He went into Cole’s premises, got a small can of lubricating oil, went back on the public highway and was facing north on his way to his Ford with the can of oil in his hand, when he was struck by the automobile driven by defendant’s employee.

The automobile of defendant was under the control of and was being driven by Jules Motty, who was accompanied by Z. Warren Broussard. Motty and Broussard are employees of defendant and were on their way from Kaplan to Crowley, so that when they approached Morgan, they were, like Morgan, going in a .northerly direction. They saw Morgan who was walking or running, as they say, along the edge of the gravel and the grass for some distance before they reached him, but just before reaching Morgan, they met another automobile going south nearly in the center of the road. This automobile, a Chrysler coupee, was being driven by W. T. Elder who was on his way to Kaplan to see a Mr. Meaux. Elder thinking that he might meet Meaux on the road, when he saw defendant’s automobile coming, purposely drove near the center of the road in order to see who were the occupants of the automobile going north and this action of Elder compelled Motty to keep well on the east side of the road to avoid a collision with the Chrysler, and immediately thereafter, the distance being estimated anywhere from 20 to 40 feet and the time only a few seconds, Motty caught up with Morgan.

Motty and Broussard whose testimony accords in every essential particular, say that the direction of the course along which they were driving would have led them two or three feet to the left of Morgan, if he had also kept straight on in the same direction he had been running, but that as they approached within a few feet behind him, he suddenly changed his course, started across the road in a northwesterly direction and got in front of their automobile. The road was straight, the weather was clear and all the witnesses agree that it was then about 7.30 o’clock on a cold frosty morning. Morgan was lightly clad and his apparent purpose in running was to keep his body warm. Motty, in order to avoid striking Morgan, then instantaneously veered the automobile to the left. The automobile skidded and Morgan was first struck by the right front fender and then again by the right rear fender. The automobile then proceeded in a northwesterly direction and Motty succeeded in stopping it on the west side of the highway, about 30 feet beyond the place where Morgan was thrown to the ground. Broussard, who occupied the right hand seat in defendant’s automobile and was in a better position to see, says that Morgan’s head came in contact with the right rear fender of the automobile and this most likely caused the fracture of Morgan’s skull, resulting in his death a few days later.

The first other person to reach the scene, after the accident, was Elder, then came Cole, from whom Morgan had procured the can of oil.

These two witnesses describe the scene substantially as follows: Morgan’s automobile was parked two or three hundred feet north of the place where the accident occurred, defendant’s automobile, which had been occupied by Motty and Broussard, was about thirty or forty feet northwest of Morgan’s body, on the west side of the road and headed towards the west side ditch, Morgan’s body was lying diagonally across the road, and one of the witnesses says he was lying on his back. Motty, who had reached the body first, had turned him over, for when Morgan fell his face was on the gravel. The oil can had rolled into the ditch on the east side and the oil was spread from the gravel and over the grass to the edge of the ditch. Fred Cole says that the gravel showed that defendant’s automobile had skidded twice, the first time just south of Morgan’s body and the second time near the spot where it had been stopped.

The conditions existing at the locus immediately after the accident are not disputed, and a map annexed to the record of testimony, illustrates them better than they can be described in this opinion. They constitute a chain of circumstantial evidence which is in perfect accord with the testimony of Motty and Broussard, the only eye witnesses to the tragedy.

The first skid accounts for the fracture of Morgan’s skull by the rear right fender of defendant’s automobile. It is well known and it is in accordance with physical laws, that when an automobile is driven at a speed of about thirty miles or more, a sudden and sharp turn will cause it to move sideways. The front wheels will change their direction, but the back wheels, owing to the momentum of the body which' they support, will not follow into the tracks of the front wheels, they will skid, will continue to move forward on a straight line and the 'automobile then advances sideways, and that is why Morgan was struck by the right side fenders of the defendant’s automobile.

Both Motty and Broussard insist in their testimony that although forced to the east side of the road by Elder’s automobile, they would have passed on a straight line several feet to the left of Morgan, if the latter had not suddenly changed the course of his movement. It is only a matter of surmise why Morgan suddenly turned towards the center of the road. There was apparently no reason for him to have done so and it is equally apparent that Motty had no reason to believe that Morgan would suddenly change his course and place himself in front of the automobile.

When asked as to whether he blew his automobile horn before reaching Morgan, Motty frankly admits that he does not remember. He says that he always blows his horn when pedestrians on the highway are not looking, that he does this so often, that the habit has grown on him to the extent that he does it automatically without mental reflection and he cannot remember. It is a matter of common knowledge that an old Ford, such as was being driven by Motty, is quiet noisy and can generally be heard when running at thirty miles an hour, for a great distance. But it nevertheless appears that Morgan left the safe path he had been following and ran suddenly without looking or listening, into a place of great danger.

The testimony of both Motty and Broussard is given frankly, it appears truthful, it accords thoroughly with the circumstantial evidence of the facts testified to by Elder and Cole, and it ’is difficult to conceive why the jury rendered a verdict against defendant. Under the facts established by all the testimony in the record, defendant was not guilty of any fault, and plaintiff’s demand should have been rejected.

For these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand rejected with costs.

ELLIOTT, X,

dissenting:

I think the judgment appealed from should be affirmed. According to Messrs. Motty and Broussard, the first named being the driver of defendants’ automobile, and Broussard, his companion who was sitting by his Side, Mr. Morgan, the deceased was walking on the right hand side of the highway going north towards Crowley. Defendant’s automobile was also going north on the highway in the same direction, and Motty saw Mr. Morgan a hundred yards or more ahead, but defendant’s automobile just before overtaking him met another automobile coming south. The line on which this southbound car was running in the road, made it necessary for Motty to stay closer to the right hand side of the road and closer to the line in which Mr. Morgan was walking than likely would have been done if it had not been for the course taken by the car coming south which passed Mr. Morgan just as defendant’s car came up close behind him. The line on which defendant’s automobile was running, due to the southbound car, would have passed two or three feet to the left of Mr. Morgan, but just after the southbound car had passed him, and with the automobile of defendant close in his rear, Mr. Morgan suddenly and unexpectedly to Motty, changed his course and without looking back, left the side of the road and started running diagonally ahead in the road, placing himself almost immediately in front of defendant’s automobile, and so close, that due to tbe speed at which it was running, it was impossible, so Motty says, to avoid striking him.

The law, Act 232 of 1926, Section 15, does not in terms require the driver of an automobile to slow down for the purpose of passing close by a pedestrian in the road, but in my opinion it is contemplated that for the purpose of passing close to a pedestrian should slow down and swerve away from him, so that in case he suddenly and unexpectedly, and without looking back, steps a few feet from the side of the road into the highway, the driver can avert striking him. A proper human regard for the pedestrian, requires that this be done.

If the driver of the automobile knows that the pedestrian has seen him 'and knows that he is coming up behind, he then has the right to act on the supposition that the pedestrian will keep straight ahead and not step out in the line of contact, but when the driver, as in this case, has observed that the pedestrian walking ahead has not looked back, and therefore knows that he has not seen him and may not have heard him, then the last clear chance to save life and responsibility for not doing it rests on the driver of the automobile. And when his line of direction is within two or three feet of the pedestrian, then the duty is on him to slow down timely and swerve out in the road further to the left in time to avert just what happened in this case. Motty says, and he is corroborated by Broussard, that he did apply his brakes and swerved to the left the moment he saw Mr. Morgan’s sudden movement. But at the time he acted, it was of no more effect than if he had not made any effort at all. According to Motty and Broussard the last clear chance was in Motty’s hands; he could have saved the situation by timely slowing down and bearing further to the left, but he kept straight ahead on the line on which he was running and kept up his speed until it was too late. This left Mr. Morgan’s life dependent on the chance that he would keep straight ahead and would not suddenly leave the side of the road and turn running diagonally ahead in the road without first looking behind him.

Burvant vs. Wolfe, 126 La. 788, 52 South. 1025, is a case in which a last clear chance responsibility existed at a place where the danger of running over pedestrians was apparent to the driver of an automobile, and in which the observations of the Court seem to me to be pertinent to the one in hand. It is not negligence in all jurisdictions to turn out into a road without previously looking behind as defendant’s witnesses, Messrs. Motty and Broussard, say he did. See Ruling Case Law, Vol. 2, p. 1186, Section 21, and Vol. 13, p. 293, Section 243. But suppose it was a negligent act, that did not absolve defendant from the duty incumbent on it, to take into account and provide for the known danger of passing within two or three feet of a pedestrian walking ahead on a road, and going at a speed so fast that the car could not be checked after it had been observed that the pedestrian had not looked back. The margin was too close. The striking is not excusable by showing that it could not have been averted after the danger was seen.

“A pedestrian in a highway is under no legal duty to look back or watch behind, to see whether or not he is in danger of being struck or run down by any vehicle approaching from the rear.” Hatzakorian vs. Rueker-Fuller Desk Co., 41 A. L. R., 1027.

The above is part of the syllabus and opinion in a California case in which a pedestrian walking on a highway in the night time without having looked back, was struck by an automobile and killed. If, as held in that case, a pedestrian is not bound to look behind before he turns out into a highway in the night time, then there is less reason for doing so in the day time as in the present case.

For the foregoing reasons, I hereby dissent.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No.-
    First Circuit
    CONSOLIDATED CO. v. GERACE, ET AL.
    (January 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Fraudulent Conveyances — Par. 92, 94.
    The creditor is not estopped from claiming the sale of the debtor’s property simulated because of the creditor’s receiving a very small part of the fund collected by the debtor, although, not informed that the property had been • sold.
    2. Louisiana Digest — Marriage—Par. 158, 159.
    Under Civil Code, Article 2402, a title to the wife is on its face an acquisition of community property and cannot be made separate property of the wife by her testimony, uncorroborated, that she borrowed the money from her father to buy it, where the circumstances show it to be an acquisition of the com munity.
    3. Louisiana Digest — Fraudulent Conveyances — Par. 25, 29, 34.
    A sale in which an interest in property was purchased but only part of it paid for nine months after from the sale of the crop, will be considered a simulation and fraud upon the creditor of the seller.
    4. Louisiana Digest — Fraudulent Conveyances — Par. 25, 29, 43.
    A sale of an interest in a plantation which, although the purchase price was handed to the notary public who paid it to the seller, was in view of surrounding circumstances and family relations between the buyer and the seller, fraudulently made, for the purpose of defeating the right of the creditor of the seller is a simulated sale.
    Appeal from the District Court, Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Consolidated Companies, Inc., against Joseph A. Gerace, et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee.
    R. Lee Garland and Robert Harry, of Opelousas, attorneys for defendants, appellants.
   ELLIOTT, J.

Consolidated Companies, Inc., sued Joseph A. Gerace, et als., for $770.05, balance due on an open account. It subsequently filed an amended and supplemental petition in connection with its suit, in which it sought to attach and sequester one-third of the proceeds of the cane crop which had been grown by J. A. Gerace on the plantation hereinafter mentioned, during the year 1925, making Songy Sugar Company, Inc., garnishee, but its effort came to nothing.

The plaintiff then filed a second amended and supplemental petition against J. A. Gerace, Mrs. Angelino Gerace, his wife, and Sam and Tony Gerace, attacking as a simulation the sale of his one-third interest in the crop • for the year 1925 and a like interest in the mules and farming tools used on the plantation they operated. It also attacked in the same way the sale from Angelino Gerace, wife of J. A. Gerace, to Sam and Tony' Gerace of one-third interest in a certain plantation acquired by defendants from E. G. Richard. The act from Angelino Gerace bears date October 19, 1925. The act whereby J. A. Gerace claims to have sold his interest in the growing crop and mules and farming implements and tools to Sam and Tony Gerace, bears date May 29, 1925.

The plaintiff alleges that these acts are fictitious and simulated; that they are each feigned sales, the purpose and object of which was to conceal the property of J. A. Gerace from his creditors, and to thereby defeat - his obligations under the law. That being a creditor of J. A. Gerace, said sales operated to its injury and prejudice.

Plaintiff alleges in the alternative and in case it is found that said sales are not simulations, that both are then and iñ that' event, each and collectively, acts done in fraud of creditors and with the intent of defrauding petitioner and depriving it of its legal rights on the property of J. A. Gerace.

- That J. A. Gerace has no property except that pretendedly sold, and said acts, unless set aside, render J. A. Gerace insolvent and leave him without any means to pay the amount of his indebtedness to petitioner. That the amount due by J. A. Gerace is a debt of the community which exists between J. A. Gerace and Angelino Gerace, and that, one-third interest acquired in the plantation in the name of Mrs. Angelino Gerace was in truth and in fact an acquisition and asset of the community of acquets and gains which exists between J. A. Geráeé and Angelino Gerace, and belongs thereto. That, said interest is therefore' responsible -for the amount due petitioner.

■ J. A. Gerace did not- answer plaintiff’s demands, so a judgment -by default was entered up and confirmed against -him, but Angelino Gerace, and Sam and Tony Ger-ace appeared, and for answer denied plaintiff’s averments. They alleged that the one-third interest in the plantation bought in the name of Angelino Gerace was a separate and paraphernal acquisition and asset by her acquired, and not an asset of the community with J. A. Gerace. That said acts of May 29, 1925, and of October 19, 1925, are both real bona fide acts of sale made for cash and valid in law; that the price named in each was truly and actually paid. That plaintiff received part of the price which. J. A. Gerace obtained from his sale of his interest in the growing crop and in the mules and farming tools on the plantation, and is therefore estopped from attacking the character and reality-of the sale.

J. A. Gerace testified on that question that part of the proceeds which he received from his brothers for his interest in the growing crop and in the mules and implements on the plantation, were applied by him to the payment of the debt to the plaintiff, but the evidence shows that' he did not at that time so inform the plaintiff. The payments on account are shown to have been small and made at different times. There was one for $120.00 in amount and several for $100.00, all, some mouths after the'sale in question. He did not inform plaintiff that he had sold his share of the crop until after his store had been closed, which was not until about the last of November or the first of December. The manager of plaintiff testified that he was not aware that J. A. Gerace had sold his interest in the crop of 1925 and in the mules and implements on the plantation until some time in December, and that soon afterwards this suit, was filed. The sui;t was filed on December 15, 1925; the last payment on account, $4.00, was made November 19, 1925. The plea of estoppel is not good. :

The title from E. G. Richard shows that one-third interest in the plantation was acquired in the name of Mrs. Angelino Gerace. The act reads:

“With full guarantee of title to Mrs. Angelino Mestratto, wife of Joseph Gerace, who hereby authorized his said wife to do all things necessary in the purchase of the herein described property.”

J. A. Gerace and Angelino Gerace testify that they were married in 1913; that Saro Mastretto, father of Angelino Gerace, gave her $400.00 cash about the time or soon after their marriage, and that her one-third of the $1200.00 cash payment, made at the time the plantation was bought, was paid for by her with this money given her by her father. Saro Mestratto testified that he gave Angelino $400.00 on or about the time she was married. Direct proof that this $400.00 was not given could not be expected, therefore before the testimony of Angelino Gerace, and that of her husband and father is accepted to prove this gift and the separate and paraphernal investment, it is well to consider the dependability of their testimony in connection with attending and subsequent but connected and related facts and circumstances.

The plantation was bought in 1917 and the price was $12,500,00, -of which amount $1200.00 was paid in cash. The credit part of this price was represented by ten notes of $1130.00 each, payable in one, two, three, four, five, six, seven, eight, nine and ten years from date. Angelino claims to have paid one-third of each of these notes. At the time this suit was filed the last two of the notes had not matured, but the evidence shows that all of the notes were paid and taken up by 1921 or 1922, and the plantation fully paid for.

Angelino Gerace testified that she borrowed'$2600.00 from her father at different times to help complete paying her share of the notes, and that with the money borrowed from her father added to her share of the plantation revenues, her share of the credit price was paid. This $400.00 claimed to have been received by her as a gift from her father was never deposited in a bank, but according to her testimony she- kept it at home in a trunk. It was about four years, according to her testimony, before it was needed and used in making the first payment on the plantation. Her father had six children, and lived in the Parish of Avoyelles. According to her testimony and that of her father, she went by herself, from where she lived, in the Parish of St. Landry, to where he lived in the Parish of Avoyelles and borrowed from him the money that she needed in order to meet and pay her share of the notes. No receipts or notes were given for the amount borrowed. The amounts borrowed were not deposited in any bank. Her father also claims to have kept his money at home and not in banks. At the time the money was loaned, no time appears to have been fixed for its return, but her reason for selling her interest in the plantation when she did, was, that her father had called on her to return the $2600.00 she had borrowed. She sold her interest in the plantation, which cost her $4000.00, to Sam and Tony Gerace, her two brothers-in-law, for $3000.00 in cash, in order to repay the amount her father had loaned her for the purpose of enabling her to buy it.

According to Sam and Tony Gerace the $3000.00 with which they paid her for her interest in the plantation was also kept by them at home in trunks. That as they were about to start from the residence of Joseph A. Gerace on their way to Opelousas for the purpose of having the act of sale passed, Sam handed Tony $1500.00, which Tony placed with a like sum which he had in his coat pocket, and when they got to Opelousas and the act of sale had been passed, Tony handed the $3000.00 to the notary public who passed the act. The notary, after counting it in the presence of the witnesses, handed it to Angelino. She did not deposit it in any bank, but took it home with her, q,nd a few days afterwards she took $2600.00 of the amount and went by herself to her father’s residence in the Parish of Avoyelles and repaid him the amount she had borrowed. Her father, after receing it from her, kept it at home and did not deposit it in any bank.

Now, we know that some people do, even in this day and time, when banks are within the reach of everybody, keep important sums of money at home, or on or about their places, but as a rule if it becomes a matter of inquiry whether such parties really had the money corroborating facts and circumstances come to light in support of the fact. But Joseph, Sam and Tony Gerace had, before this time, dealt in a business way with three different banks and nothing indicates any reason on their part for mistrust in them.

Under the law, C. C. Art. 2402, the title from E. G. Richard to defendants as to said one-third interest acquired by Angelino Gerace, is on its face, an acquisition of the legal community of acquets and gains which existed between her and J. A. Gerace and an asset of the same.

The testimony relied on by J. A. Gerace and his wife to establish that said interest was acquired by Angelino with her separate and paraphernal funds and for her separate and paraphernal use and benefit, has not convinced us that it was acquired otherwise than by the reciprocal industry and labor of J. A. Gerace and Angelino Gerace. The act whereby it was acquired, should, in our opinion, have legal effect, as it was written. The conclusion of the district judge on this subject, is in our opinion, correct.

The next question is whether -Sam and Tony Gerace paid J. A. Gerace $2500.00 for his one-third interest in the plantation, crop, mules and implements, as claimed by them in the" act of May 29, 1925, before H. S. Joseph, Notary Public. After they had all testified that the amount had been paid to J. A. Gerace soon after the transaction, the plaintiff showed how in a devious and round about way the said Sam and Tony, acting through a man named Ruffino and another man named Napoli, paid to J. A. Gerace $667 from the proceeds of this crop nearly nine months, after the sale had been made. This showing indicates that no dependence can be placed on their testimony. We are satisfied, as was the district judge, that the sale was a sham an4 simulation.

The act before E. P. Dunbar, Notary Public, dated October 19, 1925, whereby Angelino Gerace purports to have sold ‘to Sam and Tony Gerace, one-third interest in the plantation, is also in our opinion, a pure simulation. To our minds the facts and circumstances attending the transaction indicate as, much, and the witnesses have not inspired us with any confidence in their statements. Tony Gerace produced and handed $3000.00 to the notary public, and the notary counted it in the presence of the witnesses and then handed it to Angelino Gerace, who ostensibly received it and took it away, but as far as concerns J. A. Gerace, Angelino, Sam and Tony Ger-ace, we are satisfied that this formality was feigned and amounted in law to nothing.

A sale cannot be made without serious intent on the part, of the purchaser to buy, and of the seller to sell. The necessary intent did not in our opinion, exist in this instance, on the part of any of the parties acting as buyers, and seller, in the execution of said act.

We concur in the conclusion of the district judge as to same.

The judgment appealed from is correct.


author: WEBB, J.

text:
    No. 3053
    Second Circuit
    SUCCESSION OF CROUCH OPPOSITION OF CROUCH
    (December 12, 1927. Opinion and Decree.)
    (February 3, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Marriage—Par. 141.
    Where the wife is named beneficiary for ’ a soldier’s bonus or insurance claim, this. fund is her separate property.
    2. Louisiana Digest — Executors and Administrators — Par. 338.
    An administration of deceased husband’s estate properly included the community property; and where the wife’s separate property was also erroneously administrated, tne administrator should be made to account for these funds also.
    3. Louisiana Digest — Executors and Administrators — Par. 146, 156.
    Under Act 207 of 1906 as amended by Act 11 of 1916 where administrator , of an estate does not bring suit within twelve months following the death of the party nor have the account filed within twelve months, parol evidence is not admissible to prove it, unless statute is complied with by evidence of at least one credible witness of good moral character besides the plaintiff.
    4. Louisiana Digest — Executors and Administrators — Par. 92, 93, 347.
    Under Civil Code Article 1150 an administrator who fails to deposit funds in any bank in his official capacity as administrator is liable to pay 20 per cent per annum interest on those sums.
    5. Louisiana Digest — Executors and Administrators — Par. 328.
    The costs of a rule filed against administrator to make him file final account should not be taxed against the administrator personally where no judgment taxing costs was made at the time that the rule was discharged when administrator filed his final account.
    6. Louisiana Digest — Executors and Administrators — Par. 328.
    The costs of an opposition against an administrator’s account in which, although some items were sustained, the administrator was not personally interested in them, the administration being conducted in the usual manner, should not be charged against the administrator personally.
    7. Louisiana Digest — Executors and Administrators — ;Par. 367.
    An administrator’s fees are fixed on the value of the property actually administered.
    8.. Louisiana Digest — Executors and Administrators — Par. 138.
    The Court cannot allow more for attorney’s fee than that claimed by attorney and placed on the account of administrator.
    Appeal from the Seventh Judicial District Court, Parish of Concordia. Hon. R. M. Taliaferro, Judge.
    Action by Hardy B. Crouch against Mrs. Mary Edith Crouch.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hugh Tullís, of Vidalia, attorney for opponent, appellee.
    G. P. Bullís, of Vidalia, attorney for defendant, appellant.
   WEBB, J.

H. B. Crouch died intestate on September 25, 1925, at his residence in the Parish of Concordia, leaving a widow and two minor children and an estate consisting of separate and community property and owing some debts.

J. L. Calhoun, a brother-in-law of decedent, who was closely associated with deceased and his family, with the knowledge and consent of the widow, Mrs. M. E. Crouch, was appointed administrator of the succession, and this action arises out of an opposition filed by Mrs. Crouch, individually and as tutrix of the minors, to a purported final account, tableau of debts and plan of distribution filed by the administrator.

In the opposition Mrs. Crouch alleged that the administrator had administered property as the property of the succession which was her separate estate for which the succession should account to her individually, and she opposed each and every item shown on the account, especially alleging that an indebtedness shown on the account as due to the administrator was excessive and that the commissions allowed the administrator were in excess of those provided by law; and she further charged that the administrator had failed to deposit the funds coming into his hands as required by law, and that he had been forced to file the account and should be personally condemned to pay 20 per cent per annum interest on the sums coming into his hands and which he had failed to deposit, as well as the costs of filing the account, and the cost of the opposition.

Trial was had on the opposition without objection, and it was developed that the administration had been initiated in such manner as to involve only the separate property of the decedent and an undivided one-half interest in the community property, that is, in making the inventory, the separate property and an undivided half of the community property was listed and appraised, while the surviving spouse, Mrs. Crouch, was recognized as having a present vested interest in the other half of the community property without regard to the administration and community debts; and the Court, after hearing the evidence, recast the account so as to bring the whole of the community property under the account and to subject the whole to the payment of the debts of the community and cost of administration, and based his judgment on the account, as recast, and condemned the administrator to pay 20 per cent per annum interest on the money which had come into his hands, and also to pay the cost of the rule in answer to which the account had been filed, and all costs of the opposition.

The administrator appealed, and urges that the Court erred on the points which we state and consider as follows:

1. That the Court erred in holding a fund of six hundred dollars, shown on the inventory and account as the property of the deceased, was the separate property of Mrs. Crouch and in ordering the administrator to account to her for the fund.

The evidence established that the fund was one-half of an amount which had been paid by the Veterans’ Bureau to Mrs. Crouch for a soldier’s bonus or insurance claim under which Mrs. Crouch was named as the beneficiary, and that following the course adopted for the administration, and the administrator and Mrs. Crouch conceiving that the amount paid Mrs. Crouch fell into the 'community, one-half of same was delivered to the administrator and the other half retained by Mrs. Crouch.

Considering that Mrs. Crouch was the beneficiary and that the fund was paid to her as such, by the Veterans’ Bureau, it was her separate property (Pilcher vs. N. Y. Life Ins. Co., 33 La. An. 324; Kelly vs. Kelly, 131 La. 1024, 60 So. 671; Louisiana Digest, Marriage, Chap. VII, No. 141) and it not appearing that any action was taken by the administrator with reference to the fund delivered to him, which should estop Mrs. Crouch from claiming the fund as her separate 'property, we are of the opinion that the ruling of the Court was correct. (Cordill vs. McCullough, 20 La. Ann. 174; Succn. of Quin, 30 La Ann. 947.)

2. That the Court erred in charging the administrator with the sum of four hundred twenty-eight and 70-100 dollars, an amount shown by the evidence to have been collected by the administrator from the Veterans’ Bureau, instead of one-half of such amount, or one-half of such amount as shown by the administrator’s account.

The evidence establishes that the above amount was collected by the administrat- or, and while he contends that one-half of the amount was paid over to Mrs. Crouch as her interest therein, Mrs. Crouch denies having received any such sum.

The administration properly conducted included the community property (Durham vs. Williams, 32 La. Ann. 162; Oriol vs. Herndon, 38 La. Ann. 759; Berthelot vs. Pitch, 45 La. Ann. 389; Succession of Fernandez, 50 La. Ann. 564, 23 So. 611; Succession of McLean, 12 La. Ann. 222; Lawson vs. Ripley, 17 La. 239) and though the widow, who appears individually and as tutrix to the minors had acquiesced in the error under which the administration was initiated and apparently attempted to be carried on, yet the Court was considering an accounting by the administrator and not any dispute as between the administrator and Mrs. Crouch, to whom the administrator may have illegally delivered the property of the succession, and we think that the administrator was properly ordered to account for the funds admitted to have come into his hands, and we find that the ruling of the Court was correct.

3. That the Court erred- in reducing the claim of the administrator against the succession from twelve hundred fifty-two and 74-100 dollars to eight hundred seventy-eight and 84-100 dollars.

On the final account the administrator set forth his claim as follows:

“TABLEAU OF DISTRIBUTION
“To J. L. Calhoun, for account filed for expenses of last illness, etc., $1252.74.”

And on the trial it was admitted that the expenses of last illness amounted .to only eight hundred seventy-four and 84-100 dollars, and that such amount had been paid by the administrator, and the administrator offered to prove by parol evidence that the balance of the indebtedness claimed, or three hundred seventy-three and 90-100 dollars, arose from obligations not having any connection whatever with the expenses of decedent’s last illness, and on objection being made to parol proof it was sustained.

The statute, Act No. 207 of 1906, as amended and' re-enacted by Act No. 11 of 1916, reads:

“Section 1. Be it enacted by the legislature of Louisiana, That parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if suit upon the asserted indebtedness or liability shall have been brought more than twelve (12) months after the death of the deceased.
“Section 2. That parol evidence shall be incompetent and inadmissible to prove any • debt or liability upon the part of a party deceased, if a suit upon the asserted debt or liability shall have been brought within a delay of twelve (12) months after the death of the deceased, unless it consists of the testimony of at least one credible witness of good moral character, besides the plaintiff; or unless it be to corroborate a written acknowledgment or a promise to pay, signed by the debtor.”

There was not any suit brought by the administrator within a period of twelve months following the death of H. B. Crouch, and under the literal terms of the statute parol evidence was not admissible. (See Succession of Manion, 148 La. 98, 86 So. 667.) But conceding without deciding that the action of the administrator in placing himself on the final account as a creditor without specifying the nature of the indebtedness due, should be considered as the equivalent of a suit or as having interrupted prescription, the account was n<?t filed until November 18, 1928, or more than twelve months after the death of the person against whom the claim was urged, and we are of the opinion that the objection was properly sustained and the claim reduced to eight hundred seventy-eight and 84-100 dollars.

4. That the Court erred in condemning the administrator to pay 20 per cent per annum interest on the sums which he had received as administrator and which he failed to deposit as required by Article 1150 of the Civil Code.

The evidence establishes that the administrator received two hundred seven and 90-100 dollars belonging to the succession on December 9, 1925, and two hundred fourteen and 35-100 dollars on June 22, 1926, and that he did not deposit such funds in any bank in his official capacity of administrator, and we think that the Court properly condemned him to pay 20 per cent interest on such sums from the date he received same. (Conery vs. Creditors, 113 La. 420, 37 So. 14; In re Dimmick’s Estate, 111 La. 655, 35 So. 801; Succession of Conery, 111 La. 113, 35 So. 479.)

5. That the Court erred in rendering judgment against the administrator personally for the cost of the rule filed against him to show^ cause why he should not be ordered to file an account.

The plaintiff in the rule urged various grounds why the administrator should file a final account, some of which, if established would have been sufficient to dismiss him from his trust. . However, on the account being filed the rule was discharged and in default of a judgment taxing the cost of the rule when it was discharged, we think the cost should be borne by the plaintiff in rule, especially when it does not appear that a year had elapsed since the administrator was appointed or that any demand had been made on him to account; and it appears that some of the claims due the succession had not been collected.

6. That the Court erred in rendering judgment against the administrator personally for the cost incident to the opposition.

The opponents disputed each and every item on the account, and while the opposition was sustained as to some of the items on the account, in which the administrator was personally interested, the evidence does not indicate that the items in which he was personally interested were fictitious or that he sought to take any advantage by reason of his official position; and while the account shows the administration was conducted in an unusual manner, the opponent, Mrs. Crouch, was aware of and acquiesced in the method adopted, and we do not think that the administrator should be personally condemned to pay the cost of the opposition.

7. That the Court erred in reducing the commission claimed by the administrator.

The Court fixed the administrator’s fees on the value of the property actually administered; and from our review of the record it is .substantially correct, although if the administrator had administered the entire community property instead of one-half, as he undertook to do, the commission would have been as much as he claimed. (See Succession of Sparrow, 40 La. Ann. 484, 4 So. 513; Succession of Fontelieu, 28 La. Ann. 638; Succession of Butterly, 10 La. Ann. 258) and we approve, the finding of the Court.

8.That the Court erred in fixing the attorney’s fees at fifty dollars.

The attorney’s fees placed on the account was only fifty dollars, and we do not think the Court could allow more than was claimed.

While the administrator carried on his account an item for court costs (we presume cost of inventory, etc.) he did not attempt to prove same, and the judgment of the Court made an allowance for the proof of such claim, and as there was not any objection urged to such proceeding, we shall not amend the judgment in that respect, although it was the duty of the administrator to file and prove an account on which a final judgment could be rendered, the administration closed, and the property and funds of the succession, after payment of the debts, delivered to the widow and heirs.

For the reasons assigned, it is ordered that the judgment appealed from be amended so as to reject the opponent’s demand to cast the cost of the rule to show cause and cost of the opposition against the administrator personally, and that the judgment appealed from, as thus amended, be affirmed; the cost of the appeal to be borne by the succession; and the cause is remanded for further proceedings in accordance with the decree of the District Court, as amended herein.


author: LECHE, J.

text:
    No.-
    First Circuit
    MANNING v. BARELLI
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Privilege—Par. 3, 4; Mechanical Privileges — Par. 4.
    There is no statute in Louisiana creating a lien or privilege on money.
    2. Louisiana Digest — Mechanical Privileges — Par. 53, 55.
    Under Acts 262 of 1916, 139 of 1922 and 230 of 1924 the surety is liable for a claim representing labor and material furnished by a sub-contractor to make alterations and additions to the building not covered by the original contract, because the surety cannot make any defense which the contractor for whom he signed cannot make.
    8. Louisiana Digest — Mechanical Privileges — Par. 53; Suretyship — Par. 22; Attorneys — Par. 59.
    Under Act 225 of 1918 where surety fails to pay his obligation promptly he is liable for an additional sum of 10 per cent attorney’s fee on the amount recovered against him.
    Appeal from the Parish of St. Tammany. Hon. P. B. Carter, Judge.
    Action by Jas. T. Manning against Percy S. Barelli et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    Morgan & Simmons of Covington, attorneys for Dr. F. F. Young, defendant, appellee.
    Eugie Y. Parham, and Edward Rightor, of New Orleans, attorneys for defendant, American Employers’ Insurance Company, and appellant.
   LECHE, J.

Dr. F. F. Young entered into a written contract for the construction of a building with Percy S. Barelli, and the American Employers’ Insurance Company signed a bond to guarantee the faithful performance of the contract. Jas. T. Manning, the plaintiff, as sub-contractor furnished materials and , performed certain work on the building, and in this suit, he claims the sum of Nine hundred dollars, for which amount he prays for judgment in solido against Barelli and against the insurance company, as surety, and he further prays for recognition of a lien and privilege on the building and on the sum of Five hundred dollars which he claims has been withheld in the hands of Dr. F. F. Young. Manning also prays for attorney’s fees against Barelli and the insurance company. The District Court rendered judgment as prayed for by plaintiff, for Nine hundred dollars against Barelli and the insurance company, but refused to grant plaintiff’s demand for recognition of a privilege on the sum of Five hundred dollars, said to be in the hands of, and held by, Dr. F. F. Young.

The present appeal was taken suspensively by the American Employers’ Insurance Company the condemned surety, and Manning, the plaintiff, also took a devolutive appeal.

We do not find in the record, any bond by plaintiff to sustain the devolutive appeal which he obtained on condition that he furnish a bond for Twenty-five dollars. But Dr. F. F. Young has filed no motion to dismiss upon that ground, and as such bond is purely in his interest, we assume that he has waived the same. State ex rel. Pontchartrain R. R. Co. vs. Judge, 27 La. Ann. 697.

The demand of plaintiff to have his claim recognized as secured by a privilege on Five hundred dollars said to have been retained by Dr. F. F. Young out of the money due by him under the contract with Barelli, rests on two propositions; first, the fact that Dr. Young really holds such a sum of money out of the funds due by him to Barelli, and, second, on the theory that one may have a privilege on money. The first proposition involves a question of fact which does not seem to, be proved with any degree of certainty and upon which it is not necessary to express any opinion, because the second proposition which is equally necessary to sustain that part of plaintiff’s demand, is not tenable under the law of this State. There is no statute creating a lien or privilege on money. Money is merely a representative of value and if plaintiff has any lien or privilege, ft is on the building and not on the money which Dr. Young may owe to Barelli. We therefore believe that the District Judge properly refused this part of the prayer of the petition.

Plaintiff’s demand for Nine hundred dollars against Barelli and his surety, the American Employers’ Insurance Company, seems to be supported by the evidence in the record. The trial judge so found and Barelli has not appealed from the decree condemning him to pay that amount to plaintiff together with 10 per cent attorney’s fees. The surety, however, resists the payment of $547.00 of this amount, on the ground that this sum of money represents the price of labor and material not included in the contract for which it gave bond as surety. The surety in argument nevertheless expresses the willingness to pay plaintiff $353.00, the difference between $900.00 and $547.00, which it concedes, really represents the price of labor and material furnished under the terms of the contract.

The question then to be decided, is whether a surety is liable for a claim representing the price of labor and material furnished to the owner and to the contractor by a sub-contractor, to make alterations and additions in a building contract. Of course, it is not pretended in this case, that the surety would thereby become liable for more than the amount stipulated in his contract of suretyship.

Bonds given as security for the faithful performance of building contracts are statutory bonds and are provided for and regulated by Act 139, page 290, of 1922, and Act 230, page 451, of 1924. These statutes therefore must be read into such bonds and form part of their conditions. They provide that the surety in such bond, when sued, shall be entitled to make as against sub-contractors and material men, only the same defenses as the principal contractor for whom he signed the surety, is authorized to make. It is then apparent that the surety in this case has no right to plead the defense which it presents. Surely the contractor ■could not oppose the payment of plaintiff’s claim on the ground that part of the claim represents the price of labor and material not provided for under the specifications of the contract, when he openly concedes that such labor and material were furnished at his own request and at the instance of the owner for the purpose of completing the building. The same .provision with regard to the defenses of a surety under a building contract, is contained in Act 262, page 538, of 1916.

The Supreme Court has passed upon this question in the case of Graphic Arts Bldg. Co. vs. Union Indemnity Co., 163 La. 1, 111 South. 470, and held that a defense such as is presented here, cannot be made by the surety. See also Meyer vs. Bichow et als., 133 La. 976, 63 South. 487.

The case of Wells vs. Fidelity & Deposit Co., 146 La. 170, 83 South. 448, was a suit by the owner against the surety and .not as is the case here, a suit by a sub-contractor, and is therefore not in conflict with the cases cited herein.

Plaintiffs demand for attorney’s fees is sanctioned by Act 225, page 409, of 1918 and the amount thereof is in accordance with the provisions of that Act.

Finding no error in the judgment appealed from, it is ordered that same be affirmed.


author: MOUTON, J. ELLIOTT, J., LECHE, J.,

text:
    No.-
    First Circuit
    BANK OF KAPLAN v. RICHARDS
    (June 28, 1927. Opinion and Decree.)
    (October 6, 1928. Rehearing Refused.)
    (February 13, 1928. Affirmed by Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Corporations—Par. 46, 115, 117.
    The purchaser at a receiver’s sale of the credits of a corporation, not being given the right to sue for the unpaid amount of a stockholder’s subscription under Section 9 or Section 13 of Act No. 27 of 1914, until judgment has first been recovered against the corporation and an execution returned unpaid, cannot obtain judgment against the subscriber to stock and therefore an exception no cause of action will be maintained.
    2. Louisiana Digest — Corporations — Par. 46, 115, 117.
    Although an assignee of a credit acquired its accessories and the right of action of his vendor, nevertheless, Sections 9 and 13 of Act 267 of 1914, a special act, governs the right of an assignee of the rights of a corporation to sue a stockholder for subscription to capital stock of the corporation.
    Appeal from Calcasieu Parish. Hon. T. H. Porter, Judge.
    Action by Bank of Kaplan against E. E. Richards.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chappuis & Chappuis, of Crowley, attorneys for plaintiff, appellant.
    C. R. Liskow, Lake Charles, attorney for defendant, appellee.
    ELLIOT, J., concurs for written reasons.
    LECHE, J., dissents for written reasons.
   MOUTON, J.

Edward E. Richards subscribed to ten shares of stock in the Rice-O-La Food Company, incorporated in Acadia Parish. Plaintiff bank alleges that at a receiver’s sale, through A. M. Smith, it bought all the credits and rights of the said Rice-O-La Company, in and to the subscription of stock of defendant, in said corporation. As an adjudicatee or assignee plaintiff brings this suit against Richards for $1000.00, the unpaid amount of his subscription and for attorney’s fees.

An exception of no right or cause of action was filed by defendant and was maintained.

Sections 9 and 13 of Act 267, 1914, which are pertinent to the issues involved, read as follows:

Section 9. “Be it further enacted, etc., That subscriptions to the capital stock of a corporation shall be paid at such times and in such installments as the Board of Directors may dierct, unless otherwise provided by this Act. If default be made in the payment of any installment, the Board of Directors may sue and 'recover the unpaid balance of the subscription; together with a reasonable attorney’s fee.”
. Section 13. “Be it further enacted etc., That except in case of insolvency or bankruptcy proceedings, and except as provided in Section 9 of this- Act, no action to recover an unpaid balance of stock subscriptions shall be brought against any stockholder until judgment has been recovered against the corporation and an execution returned unsatisfied in whole or in part.”

Plaintiff, it is evident, is not suing in insolvency or bankruptcy proceedings, nor in the name of the Board of Directors. It has not therefore brought its suit within either of the two exceptions provided for in Section 13 of the Act. Not having brought itself within either of these exceptions plaintiff’s suit is controlled by the provision of Section 13, which says that:

“No action to recover an unpaid balance of stock subscriptions shall be brought against any stockholder until judgment has been recovered against the corporation and an execution returned unsatisfied in whole or in part.”

No interpretation or construction of the statute is needed to ascertain the legislative purpose as its language states clearly that no action will lie against any stockholder for an unpaid balance of his subscription unless preceded by a judgment with an execution, returned unsatisfied.

Counsel for plaintiff says that an assignee of a credit acquires its accessories and the right of action , of his vendor. That is true as a general proposition. There is nothing, however, in the Act negativing that contention, as the Act concerns itself in merely regulating the manner in which the right of action shall be exercised, unless it comes within the exceptions provided for in Section 13.

The exception was properly, maintained.

ELLIOTT, J.,

concurring. It is not alleged nor shown that the present suit was authorized by a " board of directors as provided for by Act 267 of 1914, Sections 9 and 12. The amount due on his ’subscription by a stock subscriber is an asset of the corporation while the corporation is operating, and is -a going concern, but when it ceases to function and passes into the hands of a receiver, then the balance due by a stock subscriber on account of his subscription can be called in for' the purpose of paying creditors or for the purpose of an adjustment between the stockholders themselves, but not otherwise.

Plaintiff’s action is -therefore inhibited by Section 13 of -Act 267 of 1914. Section 13 was cited by the Court in State vs. Atchafalaya-Teche-Vermilion Co., 155 La. 882, 99 So. 633, but the present question was not before' the Court and was not decided.

. A similar question was considered and decided by the Supreme Court of the United States in Fourth National Bank vs. Franklyn, 120 U. S. 747, and Evans vs. Nellis, 187 U. S. 271. The first case involved an interpretation and application of a statute of Rhode Island, which according to the report must have contained a provision similar to Section 13. The other case involved the interpretation and application of a statute of Kansas, which according to the report must also have contained a provision similar to Section 13 of Act 267 of 1914. It was substantially held in both cases that as a prerequisite to a suit in equity against a stockholder to enforce his liability for a stock subscription, a judgment must generally be obtained against a corporation and an execution issued and returned nulla bona, as stated in Ruling Case Law, Vol. 7, ■ Subject,' Corporations, Section 376, page 391.

I, therefore, contend that the judgment appealed from is correct and should be affirmed.

LECHE, J.,

dissenting. . Defendant had subscribed to One thousand dollars worth of 'stock in the Rice-O-La Company. The company' was placed in the hands of a receiver, ■ and the receiver found it necessary to sell all the assets of the corporation. Among these assets was the stock subscription of the defendant; which with the other assets was sold by the receiver to plaintiff, the Bank ■ of Kaplan.

The present action is by the Bank of Kaplan against the defendant to recover the amount of his unpaid stock subscription in the Rice-O-La Company.

Defendant pleaded no cause of action and the trial Judge believing that Sections 9 and 13 of the Corporation Act, No. 267, pp. 528 and 527, of 1914, deprived plaintiff of the right to sue, maintained defendant’s exception. Plaintiff has appealed.

Under Section 9 of the Act, the board of directors of a corporation is given the right to sue the subscriber of stock for the unpaid subscription due by him to the corporation. By Section 13, except in insolvency or bankruptcy proceedings and except as provided in Section 9 of the Act, no action to recover such subscription may be brought until after a return of nulla bona under an execution upon a judgment against the corporation.

Plaintiff does not sue as a creditor of the corporation, but as assignee and as owner of the assets of the corporation. It was not therefore called upon to allege the obtention of a judgment against the corporation and an unsatisfied writ of execution thereon.

Admittedly, under the clear language of the statute, the. board of directors could have brought the present suit, and the only way to hold effective the words “except in insolvency or bankrupt procedings” is to hold that the receiver could have also brought the suit. There are at present no such proceedings in our Courts as insolvency proceedings, eo nomine, for such proceedings were placed in a condition of lethargy by the United States Bankruptcy Law, which is a federal proceeding. See Duffy vs. His Creditors, 122 La. 600, 48 So. 120. The Act, No. 159, p. 312, of 1898, is in its nature akin to an insolvency proceeding. The receiver appointed under that Act is given, with the sanction of the .Court, all the powers which may be exercised by a board of directors and it is obvious under the exception in Section 13 of the Act of 1914, that he may sue to recover unpaid stock subscriptions.

The question then in its final analy•sis is whether the power to sue for unpaid stock subscriptions is transferable by sale.

The general law is that any effects of commerce may be sold, when there exists no particular law to prohibit the traffic thereof. C. C. Art. 2448. There is no particular law to prohibit the .traffic of a credit such as an unpaid stock subscription. By Art. 2449 incorporeal things such as a debt or any other rights may be sold. There is nothing 'in the Act 267 of 1914, prohibiting the sale of the right to collect an unpaid stock subscription, and no reason is given or suggested why there should be any such prohibition.

The right to collect the unpaid stock subscription of defendant in the Rice-O-La Company is, under the quoted articles of the Civil Code, subject to be sold and there is nothing in the Corporation Act of 1914 prohibiting such sale.

The judgment appealed from should therefore be reversed and the case should be remanded for further proceedings.


text:
    No. 3201
    Second Circuit
    PIPES v. JONES-McCANN. INC.
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to matters of fact will be affirmed if not manifestly erroneous.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge. , , ■ ¡ ;;
    Action by Charles W. Pipes against Jones-McCann, Inc.
    There was judgment for defendant and . plaintiff appealed.
    Judgment affirmed.
    John G. Gibbs, of Shreveport, attorney for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff appeals from a judgment rejecting his demands for compensation for disability alleged to have resulted from a traumatic hernia alleged to have been received by him while in the course and. arising 'out of his employment with defendant.

The cause was decided on a question of fact, that is, whether or not the hernia was sustained while the plaintiff was in the course of his employment, and the fact being dependent entirely on the testimony of the plaintiff, and his testimony being in conflict with itself and with many material facts established by the preponderance of the evidence, the trial court did not accept his testimony, and under such conditions the finding of the trial court, before whom the witnesses appeared, will not be reversed. (See La. Dig., Appeal, No. 625, et seq.)

Aside from this, however, the evidence does not show that the employer was notified of any claim of such injury within forty-eight hours of the time the plaintiff claimed to have been injured, as required by Section 8, Subsection 1(d), Paragraph 17 of the Statute (Act No. 20 of 1914 as amended by Act' No. 85 of 1926).

The judgment appealed from is therefore affirmed.


author: REYNOLDS, J.

text:
    No. 3164
    Second Circuit
    JAMES v. SCHUSTER
    (December 21, 1927. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 7, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625; Evidence — Par. 52, 351.
    The burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence the certainty of his cause of action, and where the issue of fact is left in doubt the finding of the trial court, rejecting the plaintiffs demand, will not be disturbed.
    Lazarus vs. Newman, 52 La. Ann. 1964, 28 So. 331; Payne vs. Reynolds, 164 La. —, 114 So. 153.
    2. Louisiana Digest — Negligence—Par. 25; Automobiles — Par. 7.
    Where the plaintiff himself was guilty of negligence at the time and place of an automobile accident he cannot recover in the absence of proof that the defendant’s fault or negligence caused the a-cident.
    Foreman vs. Louisiana Western Ry. Co., 140 La. 389, 73 So. 242.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Mrs. Mary James against Dave Schuster.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John B. Johnson; Yernis ’ Morgan, of Shreveport; J. M. Munholland and Stubbs & Thompson, of Monroe, attorneys for plaintiff, appellant.
    Barnett & Roberts, and Crain, Jackson & Johnson, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sues to recover damages for the death of her husband caused by his being struck by an automobile being driven by the defendant.

She alleges that his death was caused by the carelessness, recklessness and negligence of the defendant.

Defendant denied liability and especially alleged that he was not careless, reckless or negligent at the time of the accident and that plaintiff’s husband met his death solely as the result of his own carelessness and negligence.

On these issues the case was tried, and there was judgment rejecting plaintiff’s demand and dismissing her suit, and she appealed.

OPINION

Plaintiff’s husband was traveling in an automobile at night over the Dixie-Overland Highway from Minden to Monroe, and the tire on the rear wheel on the left hand side of the car being punctured, the car was stopped, ■ with its headlights burning brightly, about six or eight feet from the edge of the highway on its right hand side looking in the direction in which he was traveling, a few miles west of the town of Ruston, and plaintiff’s husband and Tony Katz, who was in the car with him, got out for the purpose of replacing the defective tire with a good one, and while they were. so engaged an automobile being driven by defendant in the direction opposite to that in which plaintiff’s husband was going, passed by on the right hand side of the highway, facing west, and in some way plaintiff’s husband was struck and killed by defendant’s automobile.

There is no evidence in the record tending to show that defendant’s automobile was being driven negligently or carelessly. The weight of the evidence is to the effect that it was being driven at from twenty to thirty miles per hour and on the right hand side of the road in the direction in which it was moving and that defendant and his cousin, A. Walberg, who was in the car with him, were keping a vigilant lookout ahead of them on the road and that there was a space of about fourteen feet between the edge of the parked car and the right hand side of the road in the direction in which defendant was traveling, so that defendant had ample room in which to pass the parked car and therefore cannot be said to have been negligent in driving through this unoccupied space.

Plaintiff’s husband was negligent in undertaking to replace the tire on his car at night near the center of the highway on the left hand side of the car in the direction in which he was moving and behind the brightly shining headlights of his car.

But whether or not plaintiff’s husband’s negligence contributed to the accident, the fact remains that' there is no evidence in the record tending to show negligence on the ipart of the. defendant. The District Judge, who heard and saw the witnesses testify, so held on this issue of fact, and a careful reading of the evidence convinces us that' his finding is right.

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


author: MOUTON, J.

text:
    No.-
    First Circuit
    WEST v. IMPORTERS AND EXPORTERS INSURANCE CO.
    (January 5, 1928. Opinion and Decree.)
    (February 15, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Arbitration and Award — Par. 2.
    Under Article 2997 of the Civil Code power to refer a matter to arbitration must be specifically and expressly conferred.
    2. Louisiana Digest — Insurance—Par. 24; Arbitration and Award — Par. 2, 5; Specific Performance — Par. 10.
    The owner of a chattel mortgage note is not bound by the provision of an insurance policy, resquiring proof of loss, to be determined by arbitration before suit' instituted in court.
    3. Louisiana Digest — Arbitration and Award — Par. 2; Specific Performance —Par. 10.
    Act No. 105, 1898, amended by Act 255 of 1914, regarding fire insurance policies . do not abrogate or supercede Civil Code, Article 2997, requiring the power to arbitrate to be expressly conferred.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Jeff West against the Importers and’ Exporters Insurance Co. of New York.

      There was judgment for the plaintiff and defendant appealed.
    Judgment affirmed.
    O. E. Guillory, of Ville Platte, attorney for plaintiff, appellee.
    J. H. Hollingsworth, of New Orleans, and L. A. Fontenot, of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff bought a Ford automobile from Stromer Motor Co., of Evangeline Parish, for $571.75, of which he paid in cash $228.70, leaving a balance of $343.05, payable in twelve installments, which were evidenced by a promissory note secured by a chattel mortgage. In the act of mortgage, plaintiff obligated himself to insure the automobile, and upon his failure to do so, gave the option to. the vendor or holder of the note to have it insured. The note was transferred to the Standard Motor Finance Company, which took out an insurance policy on the auto from the Importers and Exporters Insurance Company, against which plaintiff brings this suit for the value of the. auto, alleging that it was destroyed by fire.

On the back of the policy in reference to “appraisal” is found a clause providing for the appointment of appraisers by the insured and the defendant company in case of a disagreement as to the amount of loss or damage; also for the selection of an umpire, and upon failing within fifteen days to agree on an umpire, on the request of either the insured or the company, such umpire to be selected by a judge of a court of record. The clause above referred to, proceeds as follows:

“The appraisers shall then appraise the loss and damage stating separately sound value or loss or damage to each item, and failing to agree, shall submit the differences only, to the umpire. An award in writing, so itemized, or any two when filed with this company shall determine the amount of sound value and loss or damage.”

It is provided in the policy under the foregoing clause, that no suit or action shall be sustainable in any court of law or equity, unless the assured shall have fully complied with the foregoing requirements.

The defendant contends that plaintiff has refused to have his loss appraised as is provided for under the stipulation of the policy, and has therefore no right to sue or or recover in these proceedings.

It will be noted that the clause hereinabove referred to in relation to the question of appraisal, clearly provides for the appointment of arbitrators. It must, however, be observed in connection therewith, that in the chattel mortgage, plaintiff, as subscriber of the note for the deferred payments of the balance of the price, gave to the original or subsequent holder of that note the right to have the automobile insured. This was the extent of the authority conferred on such holder of the note. Such holder is nowhere empowered to appoint or consent to the appointment of arbitrators to estimate or fix the loss plaintiff might suffer from damage to or destruction of the auto. The power to refer a matter to arbitration must be specifically and expressly conferred. C. C. 2997.

The Standard Motor Finance Company, transferee of the note, had therefore no authority when it obtained the insurance policy from defendant company, to bind plaintiff to the obligation of appointing ah umpire, appraisers or arbitrators, to fix the amount of the damage he might suffpr in the loss of his auto or injury thereto. In the absence of authority to that effect, plaintiff cannot be bound by the said clause in the policy, even if such a stipulation in regard to matters to arise in the future, is enforceable under ours laws. The Supreme Court in McCreight vs. Leavel, 156 La. 496, 100 So. 289, takes the view as a general proposition that stipulations of that character are not binding, and thus expresses its views on the subject as follows:

“Courts will not compel persons to appoint arbitrators, nor will they otherwise enforce agreements whereby persons undertake, with regard to matters to arise in the future, to close the doors of the courts against themselves.” See also Gauche vs. Metropolitan Bldg. Co., 125 La. 530, 51 So. 578.

Counsel for defendant company contend, if we correctly appreciate the position taken by them, that the decisions which refer to the submission of such matters to appraisers or arbitrators, have not application to a case of this character, which is for the enforcement of an insurance policy. They contend that contracts of insurance must be differentiated from other contracts. In support of that contention they refer to St. Landry Wholesale M. Co. vs. New Hampshire Fire Ins. Co., 114 La. 146, 38 So. 87. In that case, the court,a in making reference to a contract of insurance, merely said in conclusion that it did not see why, in the interpretation of such a contract under the provisions of Act 105, p. 151, of 1898, it should “lean one way more than another.” Such an expression from the court, does not, in our opinion, support the contention that insurance contracts are in a class of their own in reference to the subject under discussion.

In reference to the appointment of arbitrators, counsel refers us to Section 22 of Act 105 of 1898, which says that no- fire insurance policy shall issue on property in this State “other than those which shall conform to the requirements of the New York Standard form of Fire Insurance Policy.” This act repeals all laws or parts of laws in conflict with its provisions. Counsel also refer to Act No. 255 of 1914, which amends and re-enacts Section 22 of Act 105 of 1898. This amendatory act, after declaring that these fire insurance policies must conform to the New York Standard form of Fire Insurance Policy, has these words: “Of the form now in force in the State of Louisiana.” In this latter act there is no clause repealing all laws or parts of laws in conflict with its provisions.

Counsel contend that these acts have the effect of abrogating and superseding all the provisions of the Civil Code in reference to arbitrators or amicable compounders insofar as insurance contracts are concerned. They contend that the New York Standard form of Fire Insurance Policy has been adopted by our statutes as the determining authority or factor in these insurance contracts, and that the provisions of the Code which refer to arbitrators, have no application. We do not think that either Act 105 of 1898, or Act 225 of 19IÍ, have had that effect, or were ever intended to abrogate or supersede the provisions of our Code as to insurance contracts or those of a different character.

We are not aware of any statute that gives us the New York Standard form of Fire Insurance Policies, or the form in force in this State, to which reference is made in Act 225 of 1914, hereinabove cited. There is no proof in the record giving us that form of insurance policy, or as to whether they demand the requirement of leaving to appraisers or arbitrators the rights of assessing the loss and damage that the assured may suffer in cases of this nature. It would certainly be impossible for us to take judicial cognizance of the contract in this case as coming under the New York form of Fire Insurance Policy, even if we were inclined to the conclusion that the articles of the Code, which deal with arbitrators, had been superseded by the statutes, which counsel for defendant strenuously contend have accomplished that purpose.

Counsel for defendant cites decisions of the Supreme Court of the United States to the effect that an agreement for arbitration is valid even if it provides for determination of liability that a stipulation in an insurance policy which provides a method of estimating and ascertaining the amount of loss, is binding. Under the decisions of our courts, above cited, such stipulations cannot be successfully invoked as heretofore, noted. Even if such stipulations in insurance contracts are legal, they can have no effect unless the party “against whom they are urged, has bound himself personally thereto, or through another, legally authorized.” In this case the record shows that the stipulation in question was entered into by the Standard Motor Finance Company without any authority having been conferred upon it by plaintiff, to bind him by any such agreement.

It is also contended by defendant that plaintiff has not made proof of the loss he suffered at the time the auto was burned. The proof shows that about a week (prior to the injury by fire, the auto was in good condition, and was worth from $300.00 to $350.00. This estimation is made by two disinterested witnesses, men with experience in the automobile business. There is not the slightest evidence to show that the auto suffered any depreciation in value in the week that intervened between the time when this estimation was based, to the date of the fire. On the contrary, everything indicates that the auto had remained in good condition up to the time it was burned. The value, at the time of the fire, is sufficiently established. The fire reduced it to mere junk, as the record shows; its value then was about $25.00.

The amount decreed below is supported by the evidence; statutory damages and attorney’s fees were also properly allowed.


text:
    No. 2267
    Second Circuit
    HAWKINS v. SHUTT
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Taxation—Par. 281, 283, 330, 338.
    A sale of immovable property for delinquent taxes without previous notice of delinquency to the tax debtor is null and void.
    Sections 50 and 51, Act No. 70 of 1898.
    Adsit vs. Park, 144 La. 934, 81 So. 430.
    2. Louisiana Digest — Taxation—Par. 283.
    •The person to whom notice of tax delinquency must be given is the actual owner of the property on the day that proceedings are initiated to sell it for delinquent taxes.
    In re Lafferranderle, 114 La. 6, 37 So. 990.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Chaney Rawls Hawkins against H. G. Shutt.
    There was judgment for plaintiff asnd defendant appealed.

      Judgment affirmed.
    L. C. Butler, of Shreveport^ attorney for plaintiff, appellee.
    George Thurber, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Chaney Rawls Hawkins, sues defendant, H. G. Shutt, to annul a sale of immovable property belonging to her made to him for taxes of the year 1920 under assessment to Chaney Rawls, on the ground that no notice of tax delinquency was given to her and that she was not aware of the intended sale. She alleges that she duly tendered defendant the price paid by him for the property and interest thereon and that he refused to accept, it.

The defense -is that the property was legally sold, and, in the alternative, should the sale be annulled, defendant asks for judgment in reconvention for the price paid for the property and interest.

On these issues the case was tried and .there was judgment in favor of the plaintiff and against the defendant annulling the sale. Defendant’s reconventional demand was not passed on. Defendant appealed.

OPINION.

Plaintiff purchased the property in the year 1919 in her then name of Chaney Rawls and her title was duly recorded. Thereafter she married William H. Hawkins. It was assessed to her on the tax rolls for the year 1920 in the name of Chaney Rawls. In the month of February, 1921, she sold the property in the name of Chaney Rawls, wife of William H. Hawkins, and in March, of the same year, she reacquired it in the name of Chaney Rawls, wife of William H. Hawkins, both titles being duly registered. The taxes for the year 1920 not being paid the property was sold by the sheriff and ex-officio tax collector to defendant, H. G. Shutt, and on September 8, 1921, a tax collector’s deed was made to him therefor and it was duly recorded.

A notice of tax delinquency addressed to “Chaney Rawls, Shreveport, Louisiana,” was duly mailed by the sheriff and ex-officio tax collector and in due course was returned to him by the postoffice authorities as uncalled for.

At the time the notice was mailed plaintiff resided in the city of Shreveport but but outside of the limits within which mail was delivered by carrier.

The city directory for the year 1921 of the City of Shreveport contained this information:

“Hawkins, Wm. H. (c.) (Chaney) lab. Ozan Lbr. Co., r. 1026½ Carter al.”

That address was within the limits that mail was delivered by carrier. She had resided there and though at the time of the mailing of the notice of tax delinquency she no longer resided there, mail addressed to her there had been left with some person there for her who had either carried it to her or sent it to her by special messenger.

“Notice of tax delinquency must be given to him who is the owner of the delinquent property at the time the notice is issued.” Adsit vs. Park, 144 La. 934, 81 So. 430.

The notice of tax delinquency in the case at bar was issued to “Oaney Rawls” and at the time of the issuing of it “Chaney Rawls Hawkins’’ was the owner of the property. The notice did not reach her and she was not aware that the taxes were unpaid.

The notice was insufficient to support the tax sale and the sale was null and void.

Defendant contends that “the owner at the time of issuing of the notice” means the name in which the property was assessed and in which the title stood on the public records on the first day of January of the year for which it was assessed; that as the property was assessed to Chaney Rawls and the title to it stood in that name on the public records, on the first day of the year for which the assessment was made, it was proper to issue notice of tax delinquency in that name; and that as she lived in the City of Shreveport at the time the notice was issued, though outside of the limits within which mail was delivered by carrier, it was also proper to address the notice to her at “Shreveport, Louisiana.”

The judge of the lower court did not accept this contention nor do we.

In March, 1921, several months before the notice of tax delinquency was issued, a deed had been recorded reconveying the property to plaintiff under the name of Chaney Rawls Hawkins. This record was notice to the sheriff and ex-officio tax collector of the change of plaintiff’s name from Chaney Rawls to Chaney Rawls Hawkins and he should have taken cognizance of it and issued and addressed the notice to Chaney Rawls Hawkins instead of Chaney Rawls.

Adsit vs. Park, 144 La. 934, 81 So. 430.

In the alternative defendant reconvened against plaintiff for the price he paid for the property and interest, but the demand was not passed on by the trial court.

“No judgment annulling a tax sale shall have effect until the price and all taxes and costs paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser.”

Defendant was entitled to judgment on his reconventional demand for the amount so paid and interest.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that defendant, H. G. Shutt, do have judgment against plaintiff, Chaney Rawls Hawkins, for the price paid by him for the property and all taxes and costs, with ten per cent per annum interest on the amount of the price and taxes paid from the date of respective payments, and that the judgment annulling the tax sale shall not have effect until the same be previously paid to defendant.

It is further ordered, adjudged and decreed that in all other respects the judgment appealed from be affirmed.

The costs in the Distrnct Court to be paid by defendant; those in this court to be paid by plaintiff.


text:
    No. 2399
    Second Circuit
    COX v. MAGNOLIA GAS CO.
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Negligence—Par. 10, 41; Master and Servant — Par. 164.
    The burden of proof is on the plaintiff to prove that a fire had been negligently set out by the servants of the defendant acting within the scope of their employment and negligently permitted to spread to defendant’s property.

      2. Louisiana Digest — Evidence—Par. 42, 52.
    The failure of defendants to call all persons who may have known of the circumstances of the case could not supply the want of affirmative proof, the burden of which was on the plaintiff.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by Levi C. Cox, et al., against Magnolia Gas Company, et al.
    There was judgment for defendant and. plaintiffs appealed.
    Judgment affirmed.
    Hays & Mclnnis; Mclnnis & Campbell, of Minden, attorneys for plaintiffs, appellants.
    Pugh & Boatner; B. A. Irwin, of Shreveport, attorneys for defendants, appellees.
   WEBB, J.

The plaintiffs brought this action to recover damages for the destruction of fences and crops alleged to have resulted from the negligence of defendants when constructing a pipe-line on adjoining Hands which were under the same enclosure as the property of plaintiffs; it being specifically alleged that defendants had torn down the fence and set out fire on the adjoining property, which destroyed the fence protecting the property and that cattle had come upon the premises and destroyed the crops, and that the fire had spread to plaintiffs’ property, burning over pasture lands and destroying fences thereon.

The plaintiffs appeal from a judgment rejecting their demands, and it is urged that the court erred in weighing the evidence offered by the respective parties.

Relative to the proof of the allegations that a fire had been set out by the defendants, and that it had spread to plaintiffs’ property, the only testimony indicating that a fire had been set out by defendants is the testimony of one of the plaintiffs who stated that on the date of the fire and during the time defendants were building the pipe-line, he had seen a fire on the adjoining premises and some persons near the fire, but there is not any testimony that the fire the witness claimed to have seen had spread to plaintiffs’ premises, or destroyed the fences on either of the properties, unless it may be presumed that it had spread from the fact of the fence on plaintiffs’ property being burned.

It was incumbent upon the plaintiffs to prove with legal certainty that a fire had been negligently set out by the servants of defendants acting within the scope of their employment (Higdon vs. W. R. Pickering Lumber Co., 148 La. 504, 87 South. 252; LeBreton vs. Kennedy, 27 La. Ann. 32; R. C. L. vol. XII, page 942, No. 2), and negligently permitted to spread (R. C. L. vol. XI, page 955, No. 13). If we could assume that the fire which the witness claimed to have observed on' the neighboring premises had spread and destroyed the fences, in order to hold defendants responsible, we would have also to presume that the person who the witness claimed to have seen near the fire was the employee of defendant and that he had, acting in the scope of his employment, negligently set out the fire or permitted it to spread.

The only reason which is suggested for any such presumption is that the defendants had not called all of their employees who had assisted in the work of laying the pipe-line; however, the witnesses for plaintiffs fixed the date of the fire some three weeks prior to the time the preponderance of the evidence establishes that the pipeline was laid, and we do not think' that the failure of defendants to call all persons who assisted in laying the pipe-line could supply the want of affirmative proof.

The evidence on the part of plaintiffs as to the fence on the adjoining property, being removed and not being replaced by defendants, when laying the pipe-line, is very vague and indefinite, while the evidence offered by defendants was that the fence had been immediately replaced; and besides the evidence indicates that the plaintiffs’ property had been left exposed to marauding cattle by the destruction of the fence by fire at about the same time it is claimed the fence on the adjoining property was torn down by the defendants, and if it had been proven that the defendants had left gaps in the fence, it could not be said such action was the proximate cause of the damage to the crops which were already exposed.

Prom our review of the record we find that the judgment appealed from is correct and it is affirmed.