text:
    No. ......
    First Circuit Appeal.
    MITHRIDATE BILLAUDEAUX v. LASTEE MANUEL ET AL.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)
    (Writs of Certiorari and Review to Supreme Court.)
    (See 105 South. 256, 159 La. -.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Marriage. — Par. 186; Garnishment. — Par. 16.
    In a garnishment under an attachment, as provided by Code of Practice, Article 241, the property of the debtor can be seized in the hands of a third person by whatever title the same be held, “either as a deposit or placed under their custody”. Art. 246 of the Code of Practice makes no change as to the character of possession referred to. The widower has a legal unsufruct of the estate of his deceased wife as the surviving husband in a community but not that of an heir of his wife by a former marriage. Held, that the possession of the surviving husband in community and his possession of the interest of the heirs of his wife by former marriage are not the character of possession contemplated by Arts. 241 and 246 of the Code of Practice.
    (Civil Code, Arts. 916, 940. Editor’s note.)
    2. Louisiana Digest, Garnishment. — Par. 43.
    A garnishment against the surviving husband of the interest of an heir of the wife by a former marriage conferred no privilege on the funds in the contest.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    This is a suit against an heir of an estate- accompanied' by attachment and garnishment. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. B. Dubuisson, J. H. Dore, of Opelousas, attorneys for plaintiff, appellant.
    Guillory & L. Fontenot, of Ville Platte, attorneys for defendant, appellee.
   MOUTON, J.

Ophelia Chapman died, leaving an estate in community with Mithridate Billaudeaux, her surviving husband. The deceased had left several heirs by a previous marriage, viz: Durand, Lastee, Eusire and Sidonia Manuel. On a rule on the Sheriff judgment was, on the 4th of January, 1922, rendered by the District Court recognizing Mithridate Billeaudeaux as surviving partner in community and sending him in possession of the Estate in the proportion of four eighths thereof and also placing Durand Manuel and the other heirs of deceased aforesaid each in possession of one-eighth of the succession. On the same date, Jan. 4th, 1922, Durand Manuel, by authentic act, sold all his rights, title and interest in the Estate to Henry Lafleur. Dec. 31st, 1921, on the application of J. Z. Fontenot and Co., a writ of attachment was issued against Durand Manuel, also garnishment process, directed to Mithridate Billeaudeaux, with accompany' ing interrogatories, thereto annexed.

• These interrogatories were, on Jan. 3rd, 1922, served on Mithridate Billeaudeaux, who filed his answer thereto on the same date. In this answer he stated he had in his hands and under his control all the property mentioned in the succession of Ophelia Chapman, in which Durand Manuel owned an undivided one-eighth interest. These interrogatories were therefore served on Mithridate Billaudeaux one day prior to the sale by Durand ,Manuel of his interest in the Estate of his mother to Henry Lafleur.

In partition proceedings, all of the property of the estate was sold and the funds realized from the sale were distributed by the notary appointed to make the partition. The amount coming to Durand Manuel was, by the notary, deposited in the registry of the Court due to the contentions involved in litigation between J. Z. Fontenot Co,, plaintiff in garnishment proceedings, and Henry Lafleur in reference to these funds. The District Judge ordered the notary to turn over the sum so deposited to Henry Lafleur, refusing at the time to recognize the privilege claimed by J. Z. Fontenot Company thereon, as resulting from its garnishment of the undivided interest of Durand Manuel in the alleged possession of Mithridate Billeaudeaux, prior to Durand Manuel’s sale to Henry Lafleur.

Counsel for Henry Lafleur, appellee, contends that an interest in a succession cannot be seized. Here, the Sheriff seized all the rights, credits, monies or other property coming to Durand Manuel in the Estate of Ophelia Chapman. In Boisse vs. Dickson, 31 La. Ann. 741, the Court recognized as valid the seizure of the undivided interest of an heir in a succession without the necessity of reducing any specific property to possession. Such a seizure is albo authorized by Article 241, C. P. Counsel for appellee contends also- that as notice of seizure was served on Durand Manuel on the 7th of Jan. 1922, after he had sold his interest to Henry Lafleur, it was not effective.

Article C. P. 246 says that property in the possession of a third person, belonging to defendant, etc., shall he decreed to be levied as by the. Sheriff, from the date of the service of the interrogatories on such persons.

In Re. New Orleans Drainage Co., 12 La. Ann. 346, the Court held that when in an attachment suit the party garnished acknowledged in his answer to the interrogatories that he has property in his possession belonging to defendant — which is the situation here — that it is not necessary there should he a seizure by the Sheriff to support the attachment. Under the provisions of Article 246, C. P., and the decision above referred to, the service on Billeaudeaux of the interrogatories was sufficient to effect a seizure although service thereof was made on defendant subsequently thereto, if Billeaudeaux could be legally brought into Court as a garnishee under the attachment. The determination of this question presents the vital issue in this case.

The mandate of seizure authorizing the seizure of the property of the debtor in the hands of third persons is conferred in attachment suits by Article 241 C. P. This article says the property can he seized •whether it is in the hands of the debtor or in that of third persons by whatever title the same be held, “either as deposit or placed under their custody.” The garnishment process provided for by Article 246, C. P., makes no change as to the character of possession referred to in Article 241, above quoted. In the instant case, Mithridate Billeaudeaux had the legal usufruct of the Estate of his deceased wife, Ophelia Chapman, as surviving husband in community. His possession was that of a usufructuary, and the control of the property of the Estate referred to in Hawley vs. Crescent City Bank, 26 La. Ann. 230, cited by counsel for appellant, was conferred upon him as surviving husband in community, until the debts of the succession were paid. The possession as usufructuary was granted him by law for his personal benefit, and the control of the community property as surviving spouse was conferred upon him for the administration of its effects until the debts of the community were settled. As surviving husband his possession was in the interest of the creditors, if there were debts; and as usufructuary, for his individual advantage. This character of possession is not the one contemplated under Article 241, C. P., where it says, by whatever title the property is held by third persons, “either as deposit or placed under their custody.” A succession is acquired by the heir immediately after the death of the deceased. C. C. 940. The right of possession which the deceased had is continued in the person of his heir, C. C. 940. When the service of the interrogatories was made on Billeaudeaux, the legal right to the possession in proportion to his undivided interest, was vested by operation of law in Durand Manuel. He had not divested himself of this right in favor of Billeaudeaux or anyone else, nor had he authorized Billeaudeaux to take possession, in fact or otherwise, of his interest in the Estate, as “depositor, custodian,” or by any other title, whatsoever.

We, therefore, hold that Billeaudeaux did not have the possession of the interest of Durand Manuel in the Estate to authorize process against him as a garnishee under the attachment suit instituted by J. Z. Fontenot & Co., against Durand Manuel. The garnishment conferred no privilege on the funds in contest in favor of the Fontenot Company, which were correctly awarded to Henry Lafleur by the District Court.

Affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. ......
    First District Appeal.
    PEOPLES BANK AND TRUST CO. v. GILBERT RACCA. Eugene Houssiere and Latreilie Estate, Intervenors.
    (December 30, 1924. Opinion and Decree.)
    (May 5, 1925, Opinion on Rehearing)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Pledges — Par. 17, 33.
    Where, in a contract of pledge of a rice crop made to secure promissory notes for payment of money advanced by a bank to. plant, cultivate and harvest the rice crop, it is stipulated that the “entire crop out of his share raised by him on the above described land” is pledged and where it was understood that 1/5 had been dedicated to water rent and 2/5 to land notes under the terms of the contract; held, that the bank, holder of the notes, has. a pledge only on the remaining 2/5 of the crop and cannot seize the 2/5 which is to be applied to the land notes. .
    Appeal from the Parish of Vermilion, Hon. W. W. Bailey, Judge.
    This is a sequestration suit by a bank, the holder of promissory notes secured by a pledge. The owner of part of the rice seized intervened. There was judgment for intervenors, and plaintiff appealed.
    Judgment affirmed.
    Nugier & Gordy, of Abbeville, attorneys for plaintiff, appellant.
    Broussard & Samson, of Abbeville, attorneys for defendant, appellee.'
   MOUTON, J.

Plaintiff bank brought suit against defendant on several promissory notes, alleging that these obligations represented cash advances made to defendant to plant, cultivate and harvest a rice crop in the year 1923 on his farm, situated in Vermilion Parish.

Averring that it feared defendant would conceal or dispose of his . rice crop, the Bank obtained the issuance of a writ of sequestration, under which 279 sacks of rice were seized by the sheriff.

Eugene Houssiere and the Latreilie Estate intervened in the case, claiming they had acquired the rice from defendant in September and October, 1923; that they were the owners thereof, and that the rice was not subject to the lien asserted by plaintiff. The defendant came into court and filed an answer to the demand of the bank.

In answer thereto defendant alleged that he had entered into an. agreement in writing with plaintiff bank for advances for his farm for the year 1923, and that he had on Jan. 11th, 1923, the date of the execution of this agreement, executed his note in favor of plaintiff for $2000.00; that in this contract it was specially stipulated that one-fifth of his crop would be reserved for water rent; two-fifths for .the holder' of land or mortgage notes he owed, and that the Bank was given a lien and pledge, under this contract, on the other two-fifths of the entire crop he would raise on his farm. He alleged further that in accordance with the stipulations of this agreement he had delivered to plaintiff two-fifths of his rice crop, one-fifth to the United Irrigations and Rice Milling Company for water rent, and the remaining two-fifths he had delivered at the Mutual Warehouse, Gueydan, Louisiana, for Houssiere and Latreilie, intervenors, who were the holders of the mortgage or land notes bearing on his property.

This contract was executed Jan. 11th, 1923, before R. M. Montagne, Notary Public, under the provisions of the pawn and pledge act, No. 66, 1874, after stating that the bank was making these advances to defendant in cash and supplies in the sum of $2000.00 for the year 1923 on his farm in Vermilion Parish, the contract says, quoting to wit:

“On his own land 2-5 of. crop — 1-5 for water and 2-5 for land notes. This lien covers all rice raised by Racca on any place.” The words: “On his own land— 2-5 of crop” can have no other meaning but that the privilege would affect in favor of the bank only 2-5 of defendant’s crop. If any doubt could be said to exist over such a plain declaration, the words which immediately follow: “1-5 for water and 2-5 for land notes” have certainly the effect of removing all such possible obscurity, and making it clear that the bank consented to a restriction or limitation of its lien to 2-5 of the crop. The plaintiff does not dispiite that the 1-5 of the crop was dedicated for water rent under the terms of the contract. It contends, however, that 2-5 of the crop for land notes was not excepted from the operation of its privilege. The defendant says that Mr. Montagne, manager of the bank, agreed to advance him the money on 2-5 of his crop, because, as he testified: “I had to give the other 2-5 to Messrs. Houssiere and Latreille.” The proof shows that defendant made a distribution of his crop for water rent on his land notes, and to the bank in accordance to the proportions stated in the contract. There can be no question that he so understood the agreement, and so construed it in making these deliveries of his rice. Mr. Montagne, manager of the' bank, says Racca, defendant, delivered 2-5 of his crop of 1923 to the bank. He also says the bank knew he was delivering 2-5 of his crop to Houssiere and Latreille. This evidence shows that defendant was making an open distribution of his crop and according to the stipulations of his contract with the bank, as he understood it. The record shows that on Jan. 13th, 1923, defendant executed a written pledge of his crop of that year to the intervenors. This lien was given by defendant merely to secure the mortgage or land notes he had executed in favor of Houssiere and Latreille, no money having been advanced on this contract, which was also drawn up in the form of a pawn and pledge. Mr. Houssiere testifies that it was understood when defendant granted them this security for the mortgage, that defendant was to grant them a lien on 2-5 of his crop free of any liens or encumbrances in favor of any one else. • This contract executed in favor of intervenors did not have the effect of creating a lien on defendant’s crop, as no money was advanced thereon, but it shows that defendant had intended thereby to grant a lien in favor of intervenors on a basis of 2-5 of his crop. This contract between Houssiere, Latreille and defendant was passed only two days prior to the execution of the contract with the Bank. There is, therefore, nothing surprising that defendant should have stated to Mr. Montagne when he agreed to give the Bank a pledge on his crop that it would be restricted to 2-5 thereof, as he had promised to give the other 2-5 to Messrs. Houssiere and Latreille. The contract with the bank was' executed by Mr. Montagne as Notary. The words: “2-5 for land notes” were inserted therein to his knowledge. They could have no possible reference to the obligations defendant had incurred towards the bank, as it was not the holder of notes of that character against defendant. Evidently, these words referred to the land or mortgage notes defendant owed intervenors. Counsel for plaintiff says these figures, 1-5 —2-5 and 2-5 used in the contract of pledge had reference to an old indebtedness due by defendant to the bank, which was to receive credit in these proportions, after the year’.s advances had been paid. Mr. Montagne stated as a witness that the indebtedness of defendant ■ to the bank which existed prior to Jan. 1923, liad been secured’ by a chattel mortgage defendant had given on his live stock and implements of husbandry. This testimony negatives the idea that the figures hereinabove referred to could have had any reference to any old indebtedness that may have been due by defendant to the bank. If these figures had been used for the purpose stated by Mr. Montague there can be no doubt they would have been made to directly apply to the old debts due by defendant, the contract having been executed by Mr. Montagne himself, in his notarial capacity. Instead of giving them the meaning now contended for, these figures, with’ the accompanying language, make it clear that the parties thereto referred specially to the .land notes which were held by intervenors; and this construction of the contract is fully sustained by the testimony and circumstances of the case for the reasons hereinabove given.

Counsel for the bank calls for attention to the following words in the contract: “This lien covers all rice raised by Racca in any place.” The contract declares that these advances were made for the farm of the defendant situated in the Parish of Vermilion. As such was the purpose for which the advances had been furnished, it is difficult to account for the words: “All rice raised by Racca in any place,” which are found in the line quoted above. It does not appear in this case that any of the rice seized had been harvested anywhere else but on the farm of the defendant, and we fail to see that the foregoing statement in the contract is of any importance in the decision of this case.

Counsel for the bank calls for attention particularly to that clause of the contract where Racca obliged himself to deliver to the bank his “entire crop out of his share raised by'him' on the above described land.” It'is stated” here, it.will be noted, his en: tire crop “out of his share”. This crop was to be grown on his place and was, no doubt, to be all his. As before stated, 1-5 had been dedicated to water rent, and 2-5 to the land notes under the terms of the contract. As such was the agreement, the entire crop out of his “share”, which defendant bound himself to deliver to the bank, had reference to the other 2-5 of his rice crop. This construction is in conformity with the wording of the contract, and the testimony given in explanation of its terms.

Counsel for plaintiff argues that it would have been the height of folly for the bank to have advanced the sum of over $1700.00 on a lien bearing only on 2-5 of defendant’s crop. The evidence justifies the conclusion that this security was not sufficient to protect the bank’s entire loan on these advances. It is very probable that the bank made a bad investment, but the contract became the law between the parties, as there was nothing to impair or invalidate it in law or morals, and it must be enforced according to its terms and conditions. The proof shows that the 279 sacks constituted 2-5 of defendant’s crop, and that this rice has been delivered by him to intervenors in part payment of their land or mortgage notes. Ownership of this rice passed to intervenors free of the bank’s privilege, ’ and they are entitled to recover its proceeds.

It is, therefore, ordered adjudged and 'decreed that the part of the judgment appealed from decreeing that the proceeds of the rice seized be applied to plaintiff’s claim, and perpetuating the sequestration, be avoided, annulled and reversed; and that the cost of the intervention be paid by plaintiff bank. It is further ordered and decreed that the proceeds of sale of said rice be paid to intervenors; and as thus reversed and amended that the judgments in’ other respects be affirmed.


author: ELLIOTT, J.

text:
    No. 12,163.
    First Circuit Appeal.
    EMILE J. GUIDRY AND WIFE, MRS. SALINA ALBERT GUIDRY, v. TECHE TRANSFER COMPANY, INCORPORATED.
    (December 30, 1924. Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus hy the Editor.)
    1. Louisiana Digest, Automobiles. — Par. 4.
    Where the driver of a motor-bus leans over to fight a bee, thereby causing the bus to run into a ditch, he is negligent and his employer is liable for the resultant damage.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana Digest, Act of God. — Par. 8; Evidence — Par. 58.
    Where the defense to a suit' is that the damage was caused by an accident or uncontrollable event, the burden is on the defendant to prove it under Article 2754 of the Civil Code. This arti- ’ cle applies indirectly to personal injuries.
    Appeal from the 19th Judicial District Court, Parish of St. Martin, Hon. James Simon, Judge.
    This is a damage suit for personal injuries. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Charles J. Boatner, of Franklin, attorney for plaintiffs, appellants.
    Burke & Smith, of New Iberia, attorneys for defendant, appellee.
   ELLIOTT, J.

An automobile omnibus, operated by Teche Transfer Company, Inc., in which were passengers for hire, plaintiffs Emile J. Guidry and his wife, Mrs. Salina Albert Guidry, their child, and Mrs. Goulas and L. B. Dixon, ran off the highway and down an embankment into a ditch and overturned.

There was considerable water and soft mud in the ditch and Mr. and Mrs. Guidry’s child came near being suffocated in the mud and water, but escaped serious injury. Mr. and Mrs. Guidry and L. B. Dixon were more or less bruised, Mr. Dixon suffering the greatest injury, but both Mr. and Mrs-. Guidry were injured in various ways and shocked and frightened largely because of their child, and their clothes soiled and torn.

Mr. and Mrs. Guidry have brought this suit against Teche Transfer Company, Inc., for damages on said account: Their petition alleges that the omnibus was overturned and their injuries sustained as a result of the negligence and want of care of defendant, Teche T'ransfer Co., Inc., its agents and servant in operating the same on the highway; that the occurrence was due solely to the fault of the driver, etc. The sum of $1500.00 is claimed on account of the injuries sustained by Mrs. Guidry and $2190.00 on account of those sustained by Mr. Guidry.

The answer of defendant denies the negligence and want of care alleged by plaintiffs and alleges that a bumble bee unexpectedly and without warning flew into the automobile and stung the chauffeur, the pain and shock of which caused him to momentarily loose control of the omnibus and that as a consequence it went over the embankment. That the sole and proximate cause of the accident was the attack made by the bee on the chauffeur, an uncontrollable event which defendant could not foresee nor avoid. That defendant- was therefore not liable and prayed for the rejection of plaintiffs’ demand.

The district court rejected plaintiffs’ demand and they have appealed, the defense being accident and uncontrollable event, the burden devolved upon the defendant to prove- it C. C. Art. 2754.

Tlie Article speaks of “things,” but the same rule applies when the injury is to a person carried.

According to the testimony of the chauffeur, he was driving carefully along the highway about 10 or 12 miles an hour, when a bumble bee got up his right leg under his pants and stung him on the ankle, just below the knee, paralyzing him so that he lost control of the car and it was gone so far when he realized it that he was unable to bring it back on the road; that he did not see the bee until it stung him, upon which he grabbed for it with one hand and in doing so must have swerved the car around; declares he was stung 15 or 20 times. A bee sting on the calf of the leg, particularly up under the knee, would leave a mark which would be visible for several hours afterward and such a number of stings would do more than that.

His leg was not examined, however, and no witnesses to any marks' appeared, and whatever marks there might have been would not remain longer than a day or so. Mr. L. B. Dixon, who has a similar sui.t, testified as a witness that he was reading a paper and the first thing he knew they were in the ditch. Plaintiff Emile J. Guidry testifies that he was sitting with ’his wife and baby near the driver and saw a bee, which he did not know whether it was a bumble bee or a honey bee, come through the windshield; that the driver reached over and opened the door and reached for his cap' to fight the bee, with his head down, and ran into the ditch. That the driver first opened the door and then took off his cap and fought the bee with his right hand, his left on the wheel, his head down, without slacking the speed of the car, which ran 50 or 100 feet from the time he first saw the bee until it ran over the embankment. That the driver never quit fighting the bee, which was flying around him, until the car went into the ditch; that he saw the car going into the ditch, etc.

The testimony of Mrs. Guidry is to the same effect.

Mrs. A. G. Goulas saw a disturbance at the wheel, saw that the chauffeur and Mr. Guidry were both attracted by something, saw the cap; they were fighting something, saw the car was going over, etc. Her testimony corroborates Mr. and Mrs. Guidry that the driver was fighting the bee with his cap.

According to the testimony of the driver, there was an uncontrollable event, superior force, fortuitous event, called in the French law force majeur, cas fortuit, etc. — C. C. Arts. 3556 No. 14 & 15; 2754, 1933, etc.

Domat’s Civil Law, speaking of accident, says they sometimes happen by the act of man, sometimes by the act of God, sometimes partly by the act of man and partly by the act of God, etc.

According to the testimony of Mr. and Mrs. Guidry and Mrs. Goulas, the driver, defendant’s servant, engaged in striking at the bee with his cap, not heeding the running car and the embankment on which it was going. He was not giving to the safety of his passengers proper care, his conduct was careless and his fault was the sole and proximate cause of the occurrence in question.' To our mind the testimony of the driver is not sufficient to prove against the countervailing testimony of Mr. and Mrs. Guidry and Mrs. Goulas the uncontrollable event alleged by defendant; that the testimony of Mr. and Mrs. Guidry and of Mrs. Goulas establishes that the omnibus was overturned as a result of the driver’s negligence and want of care at the .time mentioned and renders the defendant responsible to plaintiffs for all the injuries and damages sustained by them on account of same. The judgment rejecting their demand is, therefore, erroneous.

The next question is the amount of damages, the most difficult question in the case The plaintiffs have largely over-claimed in that respect; at the same time they would not undergo the same risk and experience for a great deal more than they have claimed.

We have concluded that Mrs. Saline Albert Guidry is entitled to recover of the defendant on account of physical pain and injuries, shock, fright and suffering a total of one hundred and fifty dollars with legal interest from judicial demand and that Mr. Emile J. Guidry is entitled to recover of defendant on account of his loss and injury to clothing of himself and wife; loss of his wife’s service and expenses on account of her injuries and pain; and on account of his own shock, injuries and pain; expenses for dental work and for loss of his teeth a total of one hundred and fifty dollars with legal interest from judicial demand.

It is therefore ordered adjudged and decreed that the judgment appealed from be and the same is hereby annulled avoided and set aside and it is now ordered adjudged and decreed that Mrs, Saline Albert Guidry have and recover judgment of the defendant Teche Transfer Co., Inc., the sum of one hundred and fifty dollars with legal interest from judicial demand and that Emile J. Guidry have and recover judgment against the defendant Teche Transfer Company, Inc., in the sum of one hundred and fifty dollars with legal interest from judicial demand; that the defendant and appellee pay the cost of both courts and the ■ judgment is remanded to the lower court for execution.


text:
    No. 12,202.
    First Circuit Appeal.
    LEE BOOTH DIXON v. TECHE TRANSFER COMPANY, INCORPORATED.
    (December 30, 1924. Opinion and Decree.)
    (February 18, 1925, Rehearing Refused).

      (Syllabus by the Editor.)

    1. Louisiana Digest, Automobiles. Par. 4.
    Where the driver of a motor-bus leans over to fight a bee, thereby causing the bus to run into a ditch, he is negligent and his employer is liable for the resultant damage.
    2. Louisiana Digest, Act of God. — Par. 8; Evidence, Par. 58.
    Where the defense to a suit is that the damage was caused by an accident or uncontrollable event, the burden is on the defendant to prove it under Article 2754 of the Civil Code. This Article applies indirectly to personal injuries.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal .from the 19th Judicial District Court, Parish of St. Martin, Hon. James Simon, Judge.
    This is a damage suit for personal injuries. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Charles J. Boatner, of Franklin, attorney for plaintiff, appellant.
    Burke & Smith, of New Iberia, attorneys for defendant, appellee.
   ELLIOTT, J.

This case was tried in the lower court with that entitled Emile J. Guidry and Mrs. Salina' Albert Guidry vs. Teche Transfer Company, Inc.,' No. 12,163, and submitted on the same evidence; except the furthér evidence of Drs. J. S¡ Martin and L. C. Chamberlain, taken in this case, and the lower court rejected plaintiff’s demand; he appealed to this court and the appeal submitted to us on the evidence contained in the record and in the case of Emile J. Guidry and of Mrs. Salina Albert Guidry vs. Teche Transfer Co., Inc., No. 12,163, the briefs of the parties covering both cases and this court is of the opinion that the judgment appealed from refusing plaintiff’s demand is erroneous for the same reasons which we have given in the case No. 12,163 entitled as above stated and that plaintiff Lee Booth Dixon is entitled to recover of defendant, Teche Transfer Co., Inc., all the damages sustained by him as a result of the overturning of the omnibus in which he was riding for hire with the plaintiffs in the said suit No. 12,163.

Having considered the anjount which the said Dixon ought to recover we have concluded that he is entitled to recover on account of his loss of clothing, loss of time caused by his injuriés, expenses on account of his injuries, and on account of his injuries and pain and suffering the total sum of Two Hundred Dollars, with legal interest from judicial demand until paid.

It is, therefore, ordered adjudged and decreed; that the judgment appealed from herein be and the same is hereby annulled, avoided and set aside and it is now ordered that plaintiff, Lee Booth Dixon, have judgment against defendant, Teche Transfer Co., Inc., in the full sum of Two Hundred Dollars, with legal interest from judicial demand; that the defendant and appellee pay the costs of both courts and this judgment is remanded to the lower court for execution as the law provides.


text:
    No. ______
    First Circuit Appeal.
    H. W. JOHNS-MANVILLE CO. INC., v. EUNICE ELECTRIC THEATRE CO., LTD. INTERSTATE TRUST & BANKING CO., Third Opponent.
    (December 30, 1924, Opinion and Decree.)
    (March 3, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    I. Louisiana Digest, Laws — Par. 72; Mechanics Privilege — Par. .18, 23.
    Under the provisions of Act No. 229 of 1916, Section 2, the words “after acceptance of the work” mean “the acceptance of the labor, material, machinery, etc., of each individual claimant.” Consequently, a lien filed more than 45 days after the acceptance of the material on the job is filed too late and ineffective.
    (Gleissner vs. Hughes, 153 La. 133; 95 South. 529, directly in' point.)
    (For more recent legislation see Act 'No. 139 of 1922, page 299, as amended by Act. No. 230 of 1924, page 503. Editor’s note.)
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit to recover the cost of materials delivered and for recognition of a lien. The holder of the mortgage intervened.
    There was judgment declaring the lien invalid. Plaintiff appealed.
    Judgment affirmed.
    Sandoz & Sandoz, of Opelousas, attorneys for plaintiff, appellant.
    W. A. Robertson, of Opelousas, attorney for defendant, appellee.
   MOUTON, J.

The defendant company executed a mortgage in favor of the American Bank and Trust Company for ¡ $15,-000.00, and issued its promissory note to the bank for that amount. The Interstate Trust and Banking Company, third opponent in these proceedings, is the holder of this mortgage note.

Plaintiff, H. W. Johns-Manville Company, furnished roofing materials which were used in the construction of a building erected on the property upon which the defendant company had given a mortgage to the American Bank and Trust Company, as above stated. This mortgage was recorded October 23rd, 1920.

The account or statement for the roofing materials furnished defendant company was sworn to by plaintiff and filed' in the recorder’s office on the 1st of March, 1921. The lot of ground and the building erected thereon were sold, but the amount realized at the sale not being sufficient to pay all the creditors, plaintiff, as a furnisher of materials, and third opponent, by virtue of its mortgage note, are each claiming to be paid by preference or priority out of the- proceeds of sale.

In the statement filed for record by plaintiff, the amount claimed, the names of the owner, contractor, claimant, with the description of the property, are given with sufficient particularity to meet the requirements of Sec. 2 of Act 299 of 1916, and is properly verified by affidavit. In this respect plaintiff has complied with that section of the Act in asserting its claim to a privilege.

The mortgage upon which the Interstate Trust and Banking Company, third opponent, bases its claim to a preference over the funds in contest, was recorded several months prior to March 21st, 1921, the date the statement of plaintiff company was recorded.

The vital question presented here is as to whether or not plaintiff company recorded its claim for a privilege within the time required under the provisions of Act 229 of 1916, so as to entitle it- to a preference over the proceeds - of salé -as against the mortgage rights of the bank, third opponent.

In referring to the account which a person claiming a privilege must file, under the provisions of Act 229, 1916, section 2 of the Act, reads: “Such statement must be filed within forty-five (45) days after the acceptance of the work by the owner of the land on which work was done or his trustee or agent.” It is upon a proper construction of this clause of the Act that this case turns.

Thurston McKinney, the evidence shows, was employed by the Eunice Theatre Company to superintend the erection of the building of the Eunice Theatre Company; also to buy the materials and to employ all labor for its construction. He was, therefore, the trustee or agent of the owner of the land. McKinney testifies that the building was never completed, and there is no proof to the contrary. Counsel for plaintiff company takes the position that until the work is completed, and accepted by the owner of the land, his trustee or agent, the forty-five days fixed in the statute within which persons “claiming a privilege” must file their claims, cannot begin to run. In support of this contention counsel refers us to the case of Rose vs. Eunice Electric Company, 154 La. 81, 97 South. 322. In passing on the question as to what time the delay for recordation began to run, the Court in the case cited by counsel referred to the clause of the Act hereinabove reproduced, but in connection therewith cites the case of Gleissmer vs. Hughes, 153 La. 133, 95 South. 529. In that case the very question submitted here was brought up for consideration. There the court held that liens in favor of furnishers of material and labor were superior in rank to all other incumbrances on the property, whether arising prior or subsequent thereto, provided the, same were recorded within 45 days “after acceptance of the work”, meaning in cases like the one now under consideration, the acceptance of the labor, material, machinery, etc., of each individual claimant, “as distinguished from the completed job.” It is thus clearly stated that the “acceptance” mentioned in Act 229, 1916, means the “acceptance” of the material or labor of each “individual claimant” and to clear the signification of the word “acceptance” from all doubt tne court proceeds to say: “As distinguished from the completed job.” The court in that case states over again the “acceptance” must date from the time the labor and materials are' received and accepted upon the building. Finally, the court in referring to the 45 days’ delay provided for in the act, says: It was therein made to run from the “acceptance by the owner of the work” in the sense above indicated. Obviously, from the time the materials were accepted from “each individual claimant, as distinguished from the completed job”. The record shows that the materials furnished by plaintiff were accepted on the building by McKinney, the agent or trustee of the Eunice Theatre Company, about Jan. 1st, 1921, and that the roofing had been completed by the plaintiff company, which recorded its claim on March 1st, 1921, more than 45 days after the delivery and acceptance of the materials furnished the Eunice Electric Theatre Company. If there be any doubt on this question, it is certain that plaintiff company has failed to prove that it recorded itá claim within forty-five days from thé time its materials were accepted and used in roofing the building. Privileges ’ áre in derogation <of common rights and tho'Se asserting them must make proof of all the 'statutory requirements granting-the privilege claimed. Counsel for plaintiff company does not contend, if we understand his position correctly, that his claim for a privilege, was recorded within 45 days from the time the materials furnished by his company were accepted and used in the building. His position is that the delay for recordation does not begin to run from that time, but only from the completion of the building, and if not completed, as was the case here, that the time limit of 45 days could not and did not begin to run at all under the terms of the statute.

We cannot accord to this proposition and must hold, as was held by the court in Gleissner vs. Hughes, 153 La. 133, 98 South. 529, that the delay begins to run from the acceptance of the materials on the building. As more than 45 days had run from that time before the claim of plaintiff company was recorded, it is not entitled to a privilege over the proceeds in preference to the third opponent, as was decreed below.

Affirmed.


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    No. ......
    First Circuit Appeal.
    ADRASTE LAFLEUR v. ROBERT DUPRE.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Assault and Battery— Par. 1, 11.
    Damages will be allowod for an assault in which the defendant was the agressor: although the amount ($125.00 in this case), is not large.
    (Civil Codde, Article 2315. Editor’s note.)
    Appeal from the Parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is a damage suit for an assault.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. H. Dore, of Ville Platte, attorney for plaintiff, appellee.
    A. P. Garland, of Ville Platte, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff wrote a letter to defendant, asking him if he had in his possession two tarpaulins belonging to the Lafleur Soileau Wholesale Company; and, if he had, to please return them. Plaintiff had been appointed receiver of that company and was making this inquiry upon information received from one of its stockholders. The letter did not contain the slightest insinuation or imputation that dedefendant had gotten the tarpaulins by unlawful or improper means. It was written by plaintiff in the interest of the company he was representing as receiver, was apparently prompted by a sense of duty, and not by personal ill-will towards defendant. Plaintiff while walking on the streets of the Town of Ville Platte coming from a meeting of the Board of Directors of the People’s Bank and Trust Company was accosted by defendant, and, was asked for an explanation of the letter, above referred to. This letter, though written to defendant, had been addressed on the envelope to Robert Soileau. Plaintiff when accosted by defendant, explained to him that this address to Soileau was simply the result of an error on his part, and that if he did not have the tarpaulin “it was all right” and was a “misunderstanding”. The evidence shows when defendant stopped plaintiff on the street for the purpose of engaging in a conversation with him in reference to these tarpaulins, that they shook hands and were apparently on good friendly terms. It appears, however, from the record that sometime prior thereto, that these parties had had a settlement of accounts, which, no doubt, from the evidence had not terminated to the entire satisfaction of the defendant. Defendant, in the course of his testimony, says he said to plaintiff, during the conversation hereinabove referred to, quoting; “It looks every time I have had business with you, and every letter I get from you is a pretty short letter.” Further, he says again “it looks like you want to abuse me.” No doubt, defendant was smarting under what he considered some ill-treatment on the part of plaintiff, whether true of fanciful. It was defendant that brought on this discussion which degenerated into a quarrel, and finally resulted in a blow on plaintiff’s face inflicted by defendant. He, defendant, was the agressor as appears from the evidence above quoted, and other facts of the case which it is not necessary to mention.

The defendant, as a justification for his act seems to contend that plaintiff was in a threatening attitude when he was struck. It appears when the blow was inflicted that plaintiff had "his left hand on his hip pocket. His right hand was, however, hanging on his side. When- he was struck or at about that time, plaintiff said he did not want to fight and from his general demeanor during the short but heated discussion which took place between the parties, plaintiff at no time exhibited the least desire for an encounter, and indulged in no gesture nor committed any act, showing that he was in a belligerent attitude or desired to inflict any injury on defendant in any manner whatsoever.

Several of the witnesses who saw the difficulty, overheard plaintiff say as follows, during the discussion and in reference to the tarpaulins: “It looks like you are guitly, Mr. Dupre.” Such language as this, under the circumstances, carried with it a serious imputation, and was unquestionably very provoking. It was at the time these words were uttered that the blow was struck, which, no doubt, prompted the battery, and which was not caused by the threatening attitude of plaintiff as defendant would have it appear. He simply, could not stand the insulting insinuations of the plaintiff, and in an outburst of passion suddenly aroused, struck plaintiff with his fist on the face. This case is not a parallel one to the case reported in the Brodtman vs. Finerty, 116 La. 1106, 41 South. 329, relied upon by counsel for defendant, where the court refused damages to plaintiff although defendant was not justified in law in his conduct. In the case cited- by counsel, the court held- that- the plaintiff was at fault, and the aggressor from beginning to end. Here, the defendant was the agressor and brought on the quarrel which ended in the battery on plaintiff. It also appeared in that case that plaintiff was very insulting, and acted in company with two other employees in the interviews he had at different times with the defendant, his employer, that when he was struck by. defendant he was calling the latter a highway robber and stood facing him with a clenched fist, and defendant thinking he would be struck gave plaintiff the first blow. There is nothing of the sort here. Defendant was not, when he hit plaintiff, in the immediate danger of injury or bodily harm from plaintiff, who was not at fault, and is therefore entitled to the recovery of damages. The proof shows that when plaintiff was struck he staggered a step or two, and that he was not seriously injured. It also shows that defendant did not pursue his advantage over plaintiff by attempting to strike him a second time, and did not appear, to have been actuated by a revengeful or malicious spirit. He simply lost control of himself in a moment of sudden anger, and inflicted the blow. On the other hand, it -also appears that plaintiff also lost control of his equilibrium and permitted himself to indulge in provoking and unjustifiable remarks. An encounter like this, though it calls for compensation in damages to the party injured, does not justify a large assessment.

The judge granted damages for $125.00 and we believe, he wisely exercised the discretion vested in him by law in such cases.


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    No. 22,834.
    First Circuit Appeal.
    WOODWARD WIGHT & COMPANY, LTD., v. JOHN F. SAVANT ET AL.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Appeal — Par. 598.
    Where a default is taken and confirmed, the judge is presumed to have acted on sufficient evidence.'
    Appeal from the 16th Judicial District, Parish of St. Landry, Hon. B. IT. Pavy, Judge.
    This is a suit on an open account. There jvas judgment by default against defendant, Savant, who filed a motion for a new trial on the ground that there was no evidence of a partnership between Mr. Perkins, a co-defendant, and himself. The new trial was denied and Mr. Savant appealed.
    Judgment affirmed.
    Plenry Cooper and Judge W. W. Westerfield, of New Orleans, and Harris G-agne, of Opelousas, attorneys for plaintiff, appellee.
    R. Lee Garland, of Opelousas, La., attorney for defendant, appellee.
   ELLIOTT, J.

Woodward Wight & Company, Ltd., brought suit on an open account 'against Savant & Perkins, alleged to have been a commercial firm, composed of John 'P. Savant and J. Austin Perkins, which partnership had been dissolved at the time of the suit. Judgment was prayed for against each of them in solido and both were duly cited.

Mr. Perkins filed a motion asking for further information, and a default was entered and confirmed against Mr. Savant.

Savant filed a motion for new trial, which was overruled.

John P. Savant has appealed from the judgment confirming the default against him; Perkins is not a party to the appeal.

Savant filed a motion for new trial on the ground that there was no evidence showing .that Savant & Perkins was a commercial partnership or had been dissolved, etc.

There is no evidence in the record.

The plaintiff alleges that an itemized and sworn account is annexed to its petition and we find thereto a statement of account sworn to, and the judge of the lower court 'is presumed to have acted on proper and sufficient evidence. Succession of Moore, 42 La. Ann. 332, 7 South. 561, and' others. '

The judgment appealed from is found to be correct under the record.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby affirmed, the defendanf and appellant' to pay the cost of both courts.


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    No. 22,884.
    First Circuit Appeal.
    ROBERT L. BAILEY v. TEXAS & PACIFIC RAILROAD COMPANY.
    (December 30, 1925, Opinion and Decree.)

      (Syllables by the Editor.)
    j. Louisiana Digest, Citation and Appearance-t — Par. 50; Pleading — Par. 37, 62.
    Where, in an exception no cause of action, based' on an allegation that because the T. & P. Ry. Co. was at the time of the accident and presently in the hands of the Receivers, plaintiff’s right, or cause of action must be against the Receivers, an answer and denial of the plaintiff’s allegations was also contained; the exception must be regarded’ as an appeal to the merits.
    ON. THE MERITS
    2. Louisiana Digest, Railroads — Par. 84,. 85, 86.
    In an accident in which a train killed five mules, the defendant proved the engineer used due care, prudence, freedom, from fault and negligence; consequently there was judgment 'for defendant railroad. The fact that the fence' • was out of repair does not constitute negligence of the railroad.
    (See Act 70 of 1886 and Civil Code, Article 2315. Editor’s note.)
    Appeal from the 16th Judicial District, Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a damage suit to recover the value of mules killed by a railroad. There, was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John W. Lewis, of Opelousas, attorney for plaintiff, appellant.
    W. H. Peterman, of Alexandria, attorney for defendant, appellee.
   ELLIOTT, J.

This is a suit to recover damages on account of the killing of 5 mules belonging to the plaintiff Robert L. Bailey, by the fast passenger train operated on the Texas & Pacific Railroad on the morning of July 29th, 1923. The petition alleges that the killing of the mules is attributable to the negligence of the servants and employees of the defendant in operating said train and in not keeping in repair the fencing closing the right of way; thereby permitting ingress and egress to' animals, etc.

Alleges ineffectual amicable demand for payment — “on the Receivers of the Defend-' .ant Railroad Company’?, etc., that said Rail-’ way Company was' at the time and is' now presently in the hands of Receivers namely J. L. Lancaster and C. L. Wallace, who should Be called on to defend this action for account of said Railway Company. The prayer is — “that service and citation do issue on the Defendant herein through its said Receivers — and for judgment— against said defendant”.

The Texas & Pacific Railway Company appeared in response to the citation issued and excepted to plaintiff’s petition on the ground that same — -“discloses no right or cause of action against exceptor” for the reason that on October 27th, 1918 J. L. Lancaster and Pearl Wight were appointed Receivers for the property of the Texas & Pacific Railway Company by the U. S. District Court for the Western District of Louisiana and upon said date took charge of said property and operated same continuously as a line of railroad until January 1st, 1918, when it was taken over by the President of the United States, etc.” That upon March 1st, 1920 the possession, operation and control of said line of railroad and all of its property was resumed by said United States District Court for the Western District of Louisiana, through the Receivers appointed by the court to wit J. L. Lancaster and Charles L. Wallace and from the expiration of said Federal Control, until the present time, said road has been operated exclusively by said Receivers. Exceptor avers that it has not had since October 27th, 1916 any possession of or control' over the operation of said line of railroad of The Texas & Pacific Railway Company and is not responsible for any damages occurring from said operation, etc.”

The lower court overruled the exception. The Texas & Pacific Railway Company then further appeared and reserving all- rights under the exception of “no right or cause of action” urged again the same facts alleged in the exception and only if the court decided that said plaintiff had a cause of action and a right to maintain this suit against respondent and not otherwise for answer denied that the killing of the mules was attributable to the fault or neglect of the servants or employees of defendant, as well as the alleged negligence concerning the fence alleged that respondents train was running between 45 or 50 miles an hour at the time, that the weather threatened rain, that a light fog or mist obscured the view of the engineer at the place, etc.

That • the killing was unavoidable; etc. That plaintiff kept his mules in a corral near the railroad, the gates of which he left open and the mules passed through the gate into a pasture and from the pasture entered on the railroad, which defendant averred was a negligent act on the part of plaintiff, etc.

Admitted that at the time the mules were killed, the railroad was and that it is now in the hands of Receivers; but denied that the Receivers should be called on. to defend the suit; because the suit was against The Texas & Pacific Railway Company and as such only and wherein no judgment was prayed for against the Receivers, etc., and prayed for the rejection of plaintiff’s demand.

The District Court, after trial for written reasons filed; rejected plaintiff’s demand and plaintiff has appealed.

The Texas & Pacific Railway Company appeared in this court and for answer to the appeal urges that the exception of “no right or cause of action” should be maintained; otherwise that the judgment appealed from he affirmed.

The plaintiff and appellant states in effect in his brief and argued at the bar that his suit is against the Receivers of The Texas & Pacific Railway Company. That The Texas & Pacific Railway Company is not a party to the litigation and is to all legal intents and purposes an inter-pleader or interloper in the suit, etc. It is evident that the Texas & Pacific Railway Company is the appellee as regards this ' appeal.

As heretofore stated plaintiff avers Art. 2 that: “the fast train of The Texas & Pacific Railway Company ran into and killed his mules, etc.” and in Art. 3 “represents that the killing was wholly attributable to the fault and negligence of the servants and employees of the Defendant Railway Company in operating said train, etc., and in not keeping in repair the fencing closing the right of way,” etc. It is true he further alleges “ineffectual amicable demand for payment on the Receivers and that they should be called on to defend this action for account of said Railway Company, etc., and prays “that service and citation do issue on the defendant herein, through its said Receivers”, etc.; but he prays that there “be judgment against said defendant”, etc. It appears to us from the language used in the petition (see our italic type) that plaintiff has proceeded against The Texas & Pacific Railway Company and not against the Receivers; except as legal representatives of the Railway Company in the operation of its trains.

We therefore hold that under the allegations in plaintiff’s petition, . his suit is against The Texas & Pacific Railway Company. •

This construction of his petition is supported by the fact that the minutes brought up do not indicate that he ever moved for a judgment by default against the Receivers; according to the minutes there is no issue by default as against the Receivers and they never made any appearance in the case, and as we have already stated The Texas & Pacific Railway Company is certainly the appellee here.

Plaintiff tried the case in the lower court on the answer of The Texas & Pacific Railway Company without objection that we can find.

The Texas & Pacific Railway Company felt moved by the petition and citation, etc., else it would not have appeared to except.

In dealing with plaintiff’s petition and the exception urged to it, we have nothing before us but the face of the petition; no copy of the judgment appointing Receivers was annexed to the petition nor to the exception thereto.

After consideration of the question we have not gone out of the record and put in force against the petition information brought before us in the case Mrs. Sussie Anding vs. The Texas & Pacific Railway Company recently decided, appealed from . the Parish of Assumption and which involved a similar situation in one respect, which record contains a certified copy of the judgment of the U. S. District Court for the Western District of Louisiana, appointed Receivers for The Texas & Pacific Railway Company and according to which the said Railway Company is now and was at the time plaintiff’s stock was killed in the hands of Receivers and being operated' by them as a common carrier under the authority of said court, nor general legal knowledge that The Texas & Pacific Railway Company was chartered under the Acts of Congress, nor the case Godchaux vs. Texas & Pacific Railway Company, 151 La. 955, 92 South, 398, and cases contra The Texas & Pacific Railway Co., vs. Johnson 151 U. S. 101 and Gableman vs. Peoria R. R., 179 U. S. 335 & 336.

Defendants exception is not based on the ' ground that plaintiff does not allege an actional injury, but that due to his averment that The Texas & Pacific Railway Company was at the time and presently in the hands of receivers, his right or cause of action must be exercised against the receivers.

The judgment appointing' Receivers and showing their authority over the railroad was, however, not pleaded nor offered in evidence. The information brought before us. in the Anding case not being available for the purpose of passing on the exception; the exception must be regarded as an appeal to the merits and as such must be considered with the merits. The exception is therefore referred to the merits for consideration with defendants further defenses.

Getting now to the merits of the case, R. H. Whittington was the only witness for plaintiff who saw the occurrence. He heard the short sharp blasts of the locomotive whistle, looked out and saw a mule running or commencing to rundown the track and saw at the same time the others in a confused excited bunch on the track, with the’ train almost on them. His testimony is not different from that of the train crew.

The main- witness concerning the occur rence is the engineer.

He says it was about 5 o’clock in the morning; that the weather threatened rain; there was a light fog or mist over the track; that he was running 45 or 50 miles an hour, his schedule time, and was between 5 and 8 minutes late. He noticed’ objects ahead on both sides of the track three or four feet from the track. The distance ahead when the objects were first noticed is not clearly established by his testimony; but we estimate from what he says on the subject that it was from five to six hundred feet. At the speed he was running he traversed this distance in -less than half a minute. The objects were not moving when he first noticed them and' he supposed that it was negroes. As he was near a road crossing at the time he blew the crossing whistle, expecting them to move further away; but the whistle caused them to quickly get on the track and he then saw at once that 'it was animals and blew the stock alarm and applied the brakes; but at the speed he was running it was impossible to avoid striking them after discovering that the objects were animals.

In one place in his testimony he says he could have seen the animals more than four or five hundred feet ahead; but he had in mind to say that he could only see the objects on the side of the track that distance ahead, because in subsequently testifying he explains that he did not see the objects sooner because they were not on the track, but three or four feet from it and that he would have seen the objects sooner and in time to slow down, even stop his train if necessary, before striking tljem, if the objects had been on the track. We find that to be reasonable an engineer can not be expected to notice objects that are moving on the side of the track, even only three or four feet from it, as quick and as far ahead as he ca,n and should if the object is on the track.

We do not find any negligence, want of care or prudence on the part of the engineer under the facts and circumstances of the case. The fog and mist was not heavy enough to require him to lower his schedule and the locality and track did not require that it be done.

There is nothing in the testimony of any of the other witnesses, nor in any fact or circumstance brought to light, which indicates anything different from the' testimony of the engineer and according thereto; the burden on defendant to show due . care, prudence, freedom from fault, and negligence has been discharged.

The evidence shows that plaintiff’s mules were exposed to just what happened each time they got out of the corral into the pasture and that plaintiff was not free from neglect in that respect.

The district judge gave written reasons for judgment finding that the evidence was in favor of the defendant.

His judgment appears to be correct and must be affirmed.

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


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    No. .....
    First Circuit Appeal.
    SUCCESSION OF HOMER DAVID v. JOSEPHINE L. RICHARD.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Taxation — Par. 376.
    Where a colored woman living on a farm gives a prominent white man money to pay her taxes and he allows the property to be sold at tax sale, buying it in for himself and where for seven years after this until his death the white man does not pretend to be owner of the property allowing the colored woman undisputed possession, the tax .sale to the white man was'a fraud and a nullity, he having purchased it as agent of the colored woman.
    2. Louisiana Digest, Appeal — Par. 630; Evidence — Par. 344.
    The evidence of a colored woman, a party to this suit was amply corroborated by other testimony and circumstances which makes it worthy of belief. The judgment of the trial court being ' against the weight of evidence is therefore reversed.
    • 3. Louisiana Digest, Evidence — Par. 1.
    Courts of justice can take judicial notice of the status of those who belong to the colored race.
    Appeal from the Parish of Acadia, Hon. W. W. Bailey, Judge.
    This a suit to gain possession of property fraudulently purchased at a tax sale. There • was judgment' for plaintiff and defendant appealed.
    Judgment reversed.
    Chapuis & Chapuis, of Crowley, attorneys for plaintiff, appellee.
    W. J. Carmouche, of Crowley, attorney for defendant, appellant.
   MOUTON, J.

C. Wimberly in his capacity of administrator of the succession of Homer David, sues defendant for the ownership of a 26-acre tract of land situated in Acadia Parish. He alleges that defendant is in possession thereof, and prays for the restoration of possession to the succession.

The District Judge rendered judgment in favor of plaintiff from which defendant prosecutes this appeal.

The land was adjudicated to Homer David, June 5th, 1915, at tax-sale for the taxes of 1914, which amounted to $13.35. Defendant testifies that she gaye the money to Homer David to pay taxes of 1914. The year before, she says, Pierre Higginbotham paid the taxes on the property for her, and that in 1923, they were paid by Ben. Daigle. Homer David died March 22nd. 1922. Defendant says, as a witness, that her taxes on this land were paid for her with her money by Homer David, practically to the year of his death; that she either handed over to him the money to pay these taxes, or if he paid them with his own funds he was re-imbursed by her for his outlay.

Her son, Theodore Richard, says in the Spring of 1915, at his mother’s home, he heard Homer David say he was going to Crowley and could pay her taxes, and she would refund him when he came back. He says, one of his mother’s “big troubles” was to pay her taxes; that every year Homer David and his mother spoke about these taxes and he often heard David tell her not to trouble herself about her taxes. Her daughter, Amelia Richard, testifies that her mother having heard -her property was for sale for taxes, sent for David who, at her reguest came to her home; she told David that Gay, a neighbor, had told her the property was advertised and she inquired from David how that had happened. David said that it was an error; that she asked him what was the amount of her taxes, he told her and that she paid him. Her brother, Theodore, testified on this subject, saying David said he would pay her taxes and she would refund him the money. In this respect there is a discrepancy in the evidence of these two witnesses. Amelia says, she heard conversations between David and her mother in reference to these taxes. In this regard the testimony of the brother and sister are in accord. Amelia also says every year David would tell her mother .he had paid her taxes and which is substantially what her brother testified to.

Defendant is a colored woman the widow of Theogene Richard, a white man. She was married to him-after several years of illicit cohabitation, and the children born of that unlawful union, including Theodore and Amelia, were subsequently legitimated in a contract of marriage entered into between defendant and Richard. The two children who testified and the mother likewise are illiterate and ignorant. In their testimony they were a little confused in the references they made to the respective years in which they said Homer David paid these taxes for defendant. Their testimony is not just alike in all particulars, not stereotyped, and does not show that these witnesses were drilled or had undergone any preparation for the purpose of concocting a fabricated story. The narrative they gave of the incidents to which they testify is simple, not tortuous or evasive, and is not suggestive of a conspiracy on their part, manufactrued to bolster up a false claim against one who was dead and who could not contradict their testimony. The testimony of these witnesses shows, however, that the taxes on the property in question weré paid by David for defendant with money handed him by her or with his money for her and for which he was reimbursed, for the year 1914, and practically to the year of his death, in 1922, with the exception of the two years when these taxes were settled for by Pierre Higginbotham and Ben. Daigle, as was explained by defendant.

The assessment rolls of the Parish of Acadia show that the property was assessed to Homer David in 1916; also in the name of defendant for that year. It is explained, however, that it was so assessed to defendant in 1916, after David had acquired, because the period of redemption which was running in favor of defendant had not yet expired. These rolls show, further that in the two following years, 1917, and 1918, the property was assessed in the name of both David and defendant. For 1919 and 1920, it was assessed to David; and in 1921, in the name of defendant. Little valuable information can be derived from such irregular and variable assessments as to the indicia of ownership after the alleged acquisition by David. The record shows that the taxes for the year 1917, paid Jan. 26th, 1918, due by defendant on this property were settled on the same day Homer David’s taxes were paid. íhe record does not show that David paid these taxes for defendant except as this is supported by- her testimony and that of her children, hereinabove discussed. It is strange, however, that they were paid on the same date that David’s taxes were paid; and if David paid them for defendant, it would also appear quite singular,m that he should have paid for both on the same property. In the light, however, of the facts which will be hereinafter discussed it will be seen that David, after his alleged purchase, never made a clear-cut claim of ownership to this property and seems at different times to have been in a wavering state of mind or uncertain as to his title thereto. This may explain the state of confusion which appears in these assessments, and this double entry of payment of these taxes as before stated. Defendant was living at the time these payments were made and is now living near a small town known as Church Point, situated about ten miles from Crowley, she says, she never went to Crowley to pay her taxes and entrusted their payment to David for almost all of these years. It* is incontrovertibly established by- the 'record that it was customary for prominent men from Church Point to pay the taxes for other people in that community. Homer David had once been a candidate for or had been mentioned for the office of sheriff, and was, no doubt, a man of some prominence; and hence, there is nothing surprising in the claim of defendant that he had been selected by her to perform the little neighborly service of attending to the payment of her taxes. The proof shows that June 24th, 1905, 245 acres of land, which defendant then owned, were bought by Dr. Rufus C. Webb at tax sale. The record also shows that in a deed executed later, in July 1905, and signed by David as the agent of defendant, that this property was redeemed for defendant by Homer David, acting as her agent, and in which it was declared that David was the undertutor of her children. This deed, unquestionably, shows that in 1905, Homer David, was the agent of defendant, and as such, was entrusted by her with the authority to redeem her property which had been adjudicated at tax sale. The proof shows, indisputably, that the cordial relations which existed between these parties in 1905, continued without a break to the time of David’s death in 1922. As such were the relations existing between David and defendant in 1905, and had so continued to the demise of the former in 1922, is it not but fair and reasonable to believe that in the years prior to 1915, and subsequent thereto, as was testified to by defendant, her son and daughter, that David was again entrusted with the duty of paying the taxes of defendant on the land in contest. The testimony of these witnesses in this respect is in harmony with the proof that it was customary for prominent citizens of Church Point to attend to the payment of taxes for others; and is strongly corroborated by evidence of the relations of trust and confidence which had always existed between defendant and David. We say, to the time of his death as it was only sometime thereafter that defendant was sued to be dispossessed of the land by the administrator of David’s estate, and for the first time, was apprised that her property had been bought at tax sale by David. Defendant testies that Homer David asked her to allow him to put down an irrigation well on the land in question; that he said if she permitted him to do so she could plant rice, and he would furnish water for her rice, if she wanted to plant any. She says, she declined the offer. Theodore and Amelia, son and daughter, say they heard when David sought this permission to dig a well, and when their mother refused.

On cross-examination counsel for the administrator asked defendant if she thought David was so anxious to get her land tha.t he was willing to furnish the water for all the property. To this question her answer was “yes”. She had not, however, in her, statement about the well, said that the proposition for the privilege asked by David included the obligation of watering all of her land. Her son, Theodore, testifying on this subject, says, that David said to him if he got his mother to consent to the putting of the well, “the first year you will pay no water rent.” . This clarifies the situation and explains the reasonableness of the offer.

This offer was made after David had become the tax adjudicatee of the property. If he had been a bona fide purchaser and owner, it is not to be believed for an instant that he would have been so solicitous to obtain the permission of this old colored woman for the authority to drill a well on this land. This old woman, 74, at the time this suit was tried, had been living on this property for a period of 51 years. In the Fall, of 1922, more than seven years after the alleged tax-purchase of David, the administrator notified her to turn the property over to the estate. It was the first time an attempt was made to disturb her possession in law or in fact. It is shown, and beyond question, that in 1915, the year it is claimed David acquired, prior thereto, and subsequently thereto, at the time of his death in March 1922, and even during the succeeding Summer, she continued in unquestioned possession of this property, renting parts of it to tenants and collecting rents, without turning over to David one cent of these revenues. It is not to be believed that David would have allowed defend ant to enjoy all the fruits of this property if in his conscience he had considered himself the true owner thereof. These are facts which spring from the record and are not dependent for proof of their existence on extra judicial admissions from the dead.

They speak for themselves, and reveal such a situation of inaction on the part of David which can not be reasonably explained except as showing that he hesitated to assert his ownership. Such facts as these make it dpubtful that he felt he was the real purchaser of this property. Sometime before his death, Homer David suffered financial reverses. He was pressed for debts and in 1922, or possibly in 1921, he gave a mortgage to the Commercial Bank of Church Point on all available property he owned, excepting some woodland, a character of assets, upon which the Bank made no loans. Loyd Franquez, cashier of the bank, says, David gave the description of the property covered by the mortgage. Nevertheless, it appears that he did not include therein, the property in dispute, good valuable prairie land, said by the administrator to have been worth $1200.00 when the suit was brought, and $2000.00 when it was tried. Several witnesses called by the administrator said that Homer David was always considered a man perfectly honest, truthful and entirely reliable. Defendant and her witnesses also frankly admit that they so considered him, until they found out after his death that he had placed this property in his name as a purchaser, and had thus revealed the betrayal of his trust as the agent of the defendant. If he was, in reality, the honest man as he is represented to have been by the witnesses for the estate, the question arises why did he not include' the tract in dispute in the mortgage he executed in favor of the bank? The answer would naturally be, judging from the facts of this case, and his unaccountable failure to assert his ownership after his pretended purchase, that his mind still wavered as to whether he would go to the extent of placing a mortgage on the land of which he appeared the purchaser. Strange to say, in this act of mortgage, David declared he had acquired this land from defendant and that he had bought it'at tax-sale. He may not have known much about business ’ but he could not have failed to realize that if he had bought it from defendant it would have been his property, and that he could not have acquired his own land at a sheriff’s sale. Here, again the same hesitation to assert his ownership appears in his declaration in the deed, demonstrating an irreconcilable position. Sucli a declaration is not consistant with the rights of ownership to a property legitimately acquired. If this declaration stood alone, some reason might be advanced .in justification for it, but taken in connection with the facts and cirsumstances herein-above detailed, such a declaration can not be explained except as the results of one whose ownership was not honest and real Counsel refers the court to the familiar rule that evidence of the extra judicial admissions df a dead man out of the presence of witnesses, is -the weakest kind of all testimony, Calhoun vs. McKnight, 44 La. Ann. 575, 10 South. 783. There can be no question of the correctness of this doctrine, so-often applied. He also refers to the following found in the same case: “Fraud is never presumed. While it may be inferred from circumstances, these must be of a character ■ clearly convincing the judicial mind in order to support, the charge of an offense closely akin to crime.”

Here, the admission of the deceased in reference, to the payment of the taxes for defendant as claimed by her, were made in the presence of two witnesses besides the defendant. Such admission as appear in the instant, case could not be entirely disregarded under a strict application of the first ,part of ,tke quotation above, reproduce#.. ¡jWe .would not, -however,; accept: the testimony of defendant and her witnesses as proving these extra-judicial admissions standing alone, and without the support of corroborating circumstances.

That fraud is never presumed' is also an axiom of the law.. No one disputes this. But, says the court in the case cited, fraud may be inferred from circumstances clearly convincing the judicial mind. Here, not only the circumstances but also many facts in the case, silent but potent, elaborately recited and exhaustively considered hereinabove, are irresistibly convincing that Homer David, though acting as the agent of the defendant to pay the taxes on this land for her, acquired the property in his name at a tax-sale and. in violation of his obligation as a fiduciary.

Counsel for the administrator makes a spirited attack on defendant as being unworthy- of belief because she had many children for Theogéne Richard, a white man, before she was married to him. A marriage ceremony was however, performed many years after they had lived in concubinage, uniting them in the bonds of lawful wedlock. He makes a like attack on the testimony of Amelia, because she .entered into an illict union with Higginbotham, also a white man. It is but' natural to aspire to a higher scale in life, and strong must be this feeling in the hearts of those of an inferior race. If such as these overstep the rules of sexual morality in thus attempting to rise higher in their social, status', though their conduct in so doing can not be overlooked by the law, still, its severity should not be visited on them to the extent of justifying the conclusion that; because of their sexual derelictions, their testimony should be taken as unworthy ,of belief. Courts of Justice can take judicial notice of the social- status of those wlio belong to the' colored race, and can not’ be expected to apply the rule invoked.- > by;: Counsel, otherwise few indeed would be those of that race that would be accorded belief in the trial of judicial cases.

Counsel for the administrator has presented a well prepared brief, and dwells with unusual warmth on this phase of the testimony given in support of the kindness, honesty and straightforwardness of the deceased, and stresses the argument that one of that character could not have been capable of committing a breach of trust, an offence “closely akin to crime”. No doubt, he enjoyed that reputation to the time that he passed to the great beyond, not only in the estimation of the witnesses who testified -for the estate, but also in that of the defendant and her children, witnesses in the case. This court is called upon to perform an unpleasant duty in this case, but must accomplish its task in compliance with law and justice. In so doing, not wishing to touch upon the character of the dead, will close with the well known lines:

“No farther seek his merits to disclose, or draw his frailties from their dread abode.”

The judgment 'must be reversed.

It as therefore ordered adjudged that the judgment appealed from be avoided and annulled; and that .plaintiff’s demand be rejected; that the alleged purchase by Homer David of the land in contest, at tax sale June 5th, 1915, be and is hereby decreed to have been acquired for defendant; that the defendant is hereby decreed the owner thereof, and entitled to the possession of said land; and' that the alleged tax-title of record in the name of Homer David, be cancelled from the public records of the Parish of Acadia; and, that plaintiff pay •all cost of suit.


text:
    No. _____
    First Circuit Appeal.
    ESTATE OF CELESTIN MANUEL AND WIFE. OPPOSITION OF JOE AND ALEXANDER MANUEL.
    (December 30, 1924, Opinion and Decree.)

      {Syllabus by the Editor.)

    1. Louisiana Digest, Appeal — Par. 625.
    The decision of the trial judge on matters of fact is not clearly erroneous and is therefore affirmed.
    Appeal from. the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is an opposition to the tableau filed by the administrator of a succession. There was judgment for plaintiff and the administrator appealed.
    Judgment affirmed.
    A. V. Pavy, Geo. K. Perrault, of Opelousas, attorneys for plaintiff, appellee.
    M. F. Thompson, of Opelousas, attorney ’ for defendant, appellant.
   MOUTON, J.

Leontine Briscoe died without descendants or accendants, leaving a small estate amounting to $836.92. A final tableau was filed in the succession by the administrator, distributing the funds of the estate among her collateral kindred. The tableau is opposed by Joe and Alexandre Manuel who claims $250.00 against the estate for supporting and nursing Leontine Briscoe during a period about two years preceeding her death. The court rendered judgment in favor of the opponents for $192.50 from which the administrator appeals. In this court the opponents are asking for an increase of the judgment’to the sum of $250.00 the amount demanded by them in their opposition to ‘the tableau.

About fourteen months prior to her demise, Leontine Briscoe was living at Leontine. Joe Manuel, at her request, took her to the home of his son, Alex Manuel, a tenant on a plantation belonging to Mr. E. Boagni. Four people, including deceased were living in the house occupied by Alex Manuel, Leontine resided there for a period of about fourteen months to the time of her death. Food was furnished to the inmates of the house by Joe Manuel which was purchased by him at the commissary store on the plantation. The victuals furnished amounted to approximately $120.00 during the time the deceased lived there. The court found that she must have consumed one-fourth of the food furnished and estimated at $30.00. The value for the use of the house was fixed by the court at $50.00, and the housing of deceased at $12.50. The facts of the case support this finding of the trial court for this food and shelter.

It is shown by the record that when Leon-tine came to live with Alex Manuel she was then an old woman suffering with rheumatism. It appears that she could “hardly get about,” as one of the witnesses expresses it, was often in bed, had bad eyesight and had to be helped up and down stairs. Obviously, she was not only suffering from rheumatism, but was also handicapped by the infirmities of old age. One of the witnesses, Mr. Dunbar, said his attention was attracted by the old woman because she was constantly standing on the turn row watching a decrepit old horse. Asked by Dunbar why she did that, her answer was because the horse was “old like herself” and needed attention. This answer is pathetic, needs no comment, and leaves no doubt that Leon-tine needed care, attention and assistance in her declining years. It was shown that she was properly nursed and cared for by these opponents during a period of fourteen months up-to the time of her death. It is quite difficult to fix the exact value of such services, which were doubtless demanded at most any hour of the day, considering the age of this old woman and the ailments with which she suffered. The court fixed their value at $150.00 which meets with our entire approval.

The proof shows that the deceased was receiving at the time of her death, and for about two years prior thereto, a pension of $30.00 per month and had also realized $52.00 for the price of a mule a couple of months before she died. It is true, she received these amounts but there is no proof that these funds or portions thereof found their way into the hands of opponents by gift or unauthorized appropriation. The party who was running the commissary department on the Boagni plantation testified that the amount incurred by Joe Manuel for the house where deceased lived during the period under consideration, was paid by Joe Manuel with the money realized from his cotton crop. There is no evidence that this account or any other indebtness incurred by Joe Manuel or his son, Alexandre, in whose house the deceased lived, was ever settled from the pension money in question or from the sum realized from the sale of her mule.

Judges are permitted to draw presumptions from a known fact to a fact unknown. C. C. 2284 — Such presumptions, however, should not be inferred by the court, unless they are weighty, precise and consistent. C. C. 2288. There are no facts in this suit which could authorize the presumption that opponents had received the pension money or price of the mule from deceased during the time she was lodging and boarding at the house of Manuel.

As the evidence sustains the claim of opponents and there is no counter-claim by which it could be affected and destroyed. the judgment appealed from is affirmed with costs. The demand for an increase is ‘refused.


text:
    No. 22,907.
    First Circuit Appeal.
    NORTON-BERGER SHOE COMPANY v. J. B. RIDEAU.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      {Syllabus by the Editor.)

    ,1. Louisiana Digest, Fraudulent Conveyances — Par. 57.
    Where a friend of a merchant purchased a considerable portion of his stock paying the money to one of the creditors of the merchant, the transaction being in good faith and without any intention of defrauding, it will not be considered void and the purchaser will not become a receiver for the creditors of the merchant under Act No. 114 of 1912.
    2. Louisiana Digest, Fraud — Par. 3, 10.
    Even though the sale is prima facie fraudulent under Act No. 114 of 1912, the evidence in this case overcomes the supposed fraud. •
    Appeal from the' 16th Judicial District Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit to have a sale of goods declared void and the purchaser made a receiver for the creditors of the merchant from whom he purchased and to compel the purchaser to pay the plaintiff the sum due them by the merchant.
    There was judgment for 'defendant and plaintiff appealed.
    Judgment affirmed.
    Sandoz & Sandoz, of Opelousas, attorneys for - plaintiff, appellant. " ' ■ '
    W. A. Robertson, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

The Norton-Berger Shoe Company,, alleging that J. B. Rideau had bought out in bulk a stock of merchandise belonging to its debtor G. C. Haydel, with?, out complying with the requirements of the law, Act 114 of 1912, brought suit to compel Rideau to pay the amount due it by said Haydel, alleged to be $149.97 with interest.

The defendant is his answer admits that he bought $331.00 dollars worth of goods from Mr. Haydel at one time' but was informed at the time that the Iberville Wholesale Grocery Co. was Haydel’s only creditor and paid his purchase $276.00 at the time of making it to the agent of said Wholesale Grocery Co., who was present at the time endeavoring to collect an account for said amount from Haydel and that he afterwards paid the balance $54.78 to Mrs. Haydel, wife of G. C. Haydel and had been since informed that she turned it over to other creditors. Alleges in his answer that he acted in good faith and prayed that plaintiffs demand be refused.

It was established on the trial that G. C. Haydel was not at home at the time in question, that he had been absent fox- some time in the state of Texas where- he was employed and that his wife, Mrs. Haydel, was in charge of the store and sold him the goods. According to the evidence Rideau happened to be at the Haydel store and the agent and collector of Iberville Wholesale Grocery Co. came in and demanded of Mrs. Haydel, payment of the account due Iberville Wholesale Grocery Co; she " didn’t have the amount and the collector insisted on being paid the money; whereupon' she requested Rideau to buy enough - gbcids to pay the amount due Wholesale Grocery Co., and he consented to do so for the purpose of obliging her. He then and therefore selected from the stock shoes and various other articles at a price equal to the cost with sufficient added to meet the freight and expenses and paid the collector of Iberville Wholesale Grocery Co., the amount of its account $276.00 cash. He went home and procured a wagon and hauled the goods home in two loads; his family used some of the goods; the balance he placed in his own store; he afterwards paid the balance $54.78 to Mrs Haydel.

The testimony of the defendant Rideau is not contradicted by plaintiff’s witnesses; and his standing in the community and veracity is well vouched for. Mrs. Haydel continued the business; had a general stock left; but in about 3 weeks she closed the store. Plaintiff alleges in his petition that Mr. Haydel is a non-resident; his address unknown to petitioner.

Witnesses asked as to the amount of stock left in Haydel’s store after defendant’s purchase; estimate the stock at from $1000.00 to $2000.00.

. We agree with plaintiff that defendant’s purchase was not in- the usual course of retail trade and in amount, was an important part of Haydel’s stock, but we do not find that it was the intent of Mrs. Haydel or J. B. Rideau to cheat or defraud the creditors of Haydel.

The law, Act 114 of 1912 Sec. 2, provides that “intent to cheat or defraud” is an essential element when the. sale is not made of an entire stock and by Sec. 5, the failure of the vendor to pay over the sum to the creditors is made prima facia evidence of such intent on the part of the seller; but evidence shows that $276.00 was paid over to a creditor there and then Sec. 4 of the Act which makes failure to have made an inventory and to obtain a list of the creditors under oath, etc., when a part of the stock is transferred, prima facia fraudulent and void is satisfied by evidence which overcomes the prima facia fraud and ' establishes ' the contrary to the satisfaction of the court and when done, the sale is not void and the buyer should not be held to have become a receiver for the creditors of the transferor.

The facts in this case make it different in that respect from two cases appealed from the parish of Vernon against Wise & McAlpin.

We are of the opinion that Rideau acted in good faith, without fraud and that the creditors of Haydel have not been injured by his purchase.

We therefore hold that the sale to him by Mrs. Haydel was not void and that he should not become a' receiver for the creditors of Haydel.

The district judge placed his judgment on Art. 3556 of the Code, paragraph 6, and on definitions of the word “bulk” contained in Law Dictionaries.

We find that he arrived at a correct conclusion and the judgment should he affirmed. It is therefore ordered, adjudged and decreed that the judgment - appealed from herein be and the same is hereby affirmed; the plaintiff and appellant to pay the cost of both courts.