text:
    No. 3631
    Second Circuit
    McKNIGHT v. GRANT PARISH POLICE JURY
    (January 31, 1930. Opinion and Decree.)

      Williams & Williams, of Colfax, attorneys for plaintiff, appellee.
    Harry Puller, of Winnfield, attorney for defendant, appellant.
   ODOM, J.

Governor Simpson appointed plaintiff justice of the peace for ward 1 of Grant parish on April 14, 1927, and the appointment was duly confirmed by the Senate. Plaintiff took the oath of office on April 23rd and served a year and one month. The police jury of Grant parish refused to pay his salary, and he brought this suit to recover it. He obtained judgment, as prayed for, in the lower court, and the police jury appealed.

It is admitted that ward 1 of Grant parish is entitled to two magistrates under the law, and that, at the time plaintiff was appointed, there was only one serving in that ward and that there was, therefore, a vacancy.

Plaintiff testified, and his testimony is not disputed, that immediately upon taking oath of office he began to perform the duties of magistrate by taking affidavits and issuing- warrants in criminal cases, trying civil suits, and performing marriage ceremonies, and that he served for 13 consecutive months.

The police jury’s principal defense is that plaintiff’s salary as magistrate was never fixed by it, and that no funds were budgeted to pay him.

Article 128 of the Constitution of 1898 provides that:

“Justices of the Peace and Constables shall receive no fees in criminal matters, including peace bond cases, but in lieu thereof such salaries as may be fixed by the Police Jury and paid by the parish, which salaries shall be graded.”

This provision was written into the Constitutions of 1913 (article 128) and 1921 (see section 50, art. 7, Constitution of 1921).

Following this constitutional mandate, the police jury of Grant parish, by resolution adopted on October 5, 1908, fixed the salaries of all justices of the peace and constables of the parish at $25 per quarter. It seems, however, that previous to the adoption of this resolution the' salary of. the magistrate in one ward had been fixed at $30 per quarter, due to the fact that there was more work in that ward than elsewhere, and the resolution of October 6, 1908, contained the provision that “the salary of any justice or constable in excess of said sum to remain as last fixed, previous to this order and resolution.” The salaries of the magistrates and constables of the parish were therefore graded, but it is conceded that the salary of the justice in ward 1, where plaintiff was appointed to serve, was fixed at $25 per quarter.

As already stated, defendant admitted in its answer that ward 1 of the parish is entitled to two magistrates, but, for some reason not disclosed, only one was serving in that ward in December, 1926, when the police- jury adopted its budget for 1927, so that provision was made in the budget for paying the salary of only one magistrate in that ward; and notwithstanding plaintiff was appointed and qualified in April, 1927, the police jury, in adopting its budget in December, 1927, for the year 1928, made no increase in the item for magistrates and constables for 1928. For this reason, .counsel for the police jury contends that plaintiff’s salary has not been fixed. He is in error for, as shown, the salaries of all justices of the peace, except in one ward, were fixed by resolution of the police jury adopted in 1908, at $25 per quarter, and those salaries, according to Mr. Warner, secretary-treasurer of the police jury, were regularly paid each year from that date down to the present time. As we understand counsel’s argument, both oral and in brief, his point is that, inasmuch as the police jury took no account of plaintiff’s particular office when it adopted a budget, his salary has not been fixed, and the police jury is, for that reason, under no obligation to pay it.

But the admitted fact is ‘that ward 1 of the parish is entitled to two magistrates under the law. The office which plaintiff holds was created and existed prior to the date on which the police jury fixed the salaries of all magistrates. The salary of plaintiff’s office was, therefore, fixed at the time the others were fixed. The fact that no one was elected or appointed to hold or did hold the office for some time did not have the effect of abolishing the office nor relieve the police jury of its obligation to pay the salary when the office was filled. The fixing of an officer’s salary is one thing; providing for the payment of that salary is quite another. The office which plaintiff holds, and in which he served for 13 months, was created by law. It was the mandatory duty of the police jury, not only to fix the salary, but to pay it. It has discharged the first duty by fixing the salary; but has neglected the other duty of paying that salary, from which duty there is no escape.

Counsel for defendant makes the contention that a public officer can demand only such compensation as the law has fixed for the performance of the official duties connected with such office. That point is so well settled that it need not be discussed. See “Officers,” 46 Corpus Juris, p. 1014 et seq.; Bosworth et al. vs. City of New Orleans, 26 La. Ann. 494; Barton vs. City of New Orleans, 16 La. Ann. 317; State ex rel. Gentry vs. Village of Dodson, 123 La. 903, 49 So. 635.

Counsel’s reasoning is sound, but his conclusion is incorrect, because he reasons from a false premise. The compensation which plaintiff demands has been fixed by law, and he has performed the duties required of him. Counsel further argues that plaintiff could not hold office beyond the term of office of the Governor who appointed him. As to that, we express no opinion, because, if well taken, the point is not involved in this suit, as it is shown that plaintiff is claiming salary only up to the time • Governor Simpson went out of office.

The judgment appealed from is correct, and is therefore affirmed, with costs in both courts.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3599
    Second Circuit
    WRIGHT v. MELDER
    (January 31, 1930. Opinion and Decree.)
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.
    F. B. Cappel, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

James N. Wright, the plaintiff in this case, resides in the State of Texas. In January, 1927, Almon B. Melder, defendant in this case, brought suit against him alleging that he was a nonresident of the state and owned property in Rapides Parish, and sought to obtain jurisdiction by attachment proceedings. On February 18, 1927, the court rendered judgment against Wright as prayed for and sustained the writ of attachment, and ordered the property attached sold to pay the debt.

Subsequently, Melder caused a writ of fi. fa. to issue under which the sheriff of Rapides Parish seized Wright’s property and advertised it for sale. Wright then brought the present suit to enjoin the sale of his property on the ground that the judgment against him, rendered in the attachment suit, was an absolute nullity, having been rendered by a court which had no jurisdiction. He specifically alleged that there was no attachment or actual seizure of his property made by the sheriff in the suit against-him; that the writ of attachment issued in said suit and the citation were not served according to law. He (prayed that said judgment be declared null and that the seizure of his property thereunder be set aside.

There was judgment for plaintiff and Melder appealed.

At the time Melder sued Wright, Wright was a non-resident of the state, but owned property in Rapides Parish where the suit was brought. Under proper allegations and affidavit, the court appointed a curator ad hoc to represent the absent defendant and ordered his property attached upon (plaintiff's giving bond. A writ of attachment and citation were issued and placed in the hands of the sheriff to be served.

The curator ad hoc accepted service of the petition and waived citation, as shown by his endorsement on the petition, as follows:

“Service accepted, citation waived; all legal rights and delays reserved.”

A citation addressed to “James N. Wright thru Isaac Wahlder, Curator ad Hoc,” and a copy of the petition were put in the sheriff’s hands, and, according to his returns written thereon, he served the same as follows:

“On the 2nd day of Feb. 1927, I made service of the within (cit and pet) James N. Wright, by tacking a true copy of same on the Court House . door, Alexandria, La., Rapides Parish.”

Nothing is said about the writ of attachment. But we find in the record the certified copy of the writ of attachment which was delivered to the sheriff and which was served, according to his returns written on the reverse side thereof, in the following manner:

“Received the within writ of attachment the 1st day of Feb. 1927. Executed same by seizing and attaching the within described property. This the 2nd day of Feby. 1927.

(signed) C. E. Downs, Dy. Sheriff, Rapides Parish.”

The writ of attachment itself was not affixed “on the door of the room where the Court in which suit is pending is held, or on a bulletin board located near the entrance to the said Court Room,” as required by Article 254 of the Code of Practice as amended by Act 9 of 1926. This omission is fatal. Without a posting of the writ, there is no valid seizure and without a valid seizure of property belonging to an absentee, the Court has no jurisdiction.

“Non-residents can not be brought into Courts of Louisiana on ordinary demands for money by substituted service.”

(See numerous authorities cited under Art. 254, Marr’s Revised Code of Practice, 1927, and especially Pugh et al. vs. Flannery et al., 151 La. 1063, 92 South. 699, 701; Latham et al. vs. Glasscock, 160 La. 1089, 108 South. 100.)

The judgment attacked is an absolute nullity. In the case of Pugh vs. Flannery, supra, the court said:

“It is the established law of this State that a writ of attachment in the case of a non-resident is not merely a conservatory writ, but is the basis and foundation of jurisdiction, which cannot be acquired except under' the very letter of the law allowing process.”

Plaintiff, alternatively, attacked the judgment on another ground, and counsel for both sides seem to want us to pass on the alternative demand. But this Court will not notice a plaintiff’s alternative demand where his main demand is sustained.

The judgment appealed from is correct and is affirmed with costs in both courts.


text:
    No. 3611
    Second Circuit
    JONES v. JAMES ET AL.
    (January 31, 1930. Opinion and Decree.)
    Julius Nachman and Isaac Wahlder, of Alexandria, attorneys for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendants, appellants.
   ODOM, J.

Archie and Malinda Fields, two aged colored persons, were man and wife and owned a tract of land in Rapides Parish which belonged to the community which existed between them. Archie died leaving neither father, mother nor descendants, and without having disposed by last will and testament of his share in the community property. His undisposed of share in the community was therefore inherited by his surviving spouse, Malinda. Civil Code, art. 915.

Malinda died a short time thereafter, leaving neither ascendants nor nor did she leave a last will. A short time prior- to her death, there was executed in Malinda Fields’ name a purported deed conveying her real estate to these defendants, Amos James and his wife, Julia, who went into possession of the property under the deed and were in possession of it at the time this suit was filed.

The plaintiff, Walter Jones, Sr., alleging that he was a brother and sole heir of Malinda Fields, brought this suit to set ■aside the purported transfer from Malinda Fields to the defendants, setting up that the same is null and void for reasons not necessary to mention here, and praying that it he set aside, and further praying for judgment “decreeing and adjudging your petitioner as the sole and only heir of the late Malinda Fields and further decreeing and adjudging your petitioner to be the owner of the property described in Paragraph Four of this petition.”

Defendants in limine filed an exception of no cause and no right of action grounded upon the proposition that as plaintiff claimed the property as a collateral heir of Malinda Fields, it was necessary for him to allege, in order to set out a cause and right of .action, that .he had been judicially recognized as heir of the deceased, which was not done. This exception was overruled. Defendants, reserving their rights under the exception, filed answer specifically denying that plaintiff was a legitimate brother of the deceased and setting up that he had inherited and could inherit nothing from her, not being a lawful heir.

The district judge held that the purported transfer by Malinda Fields to these defendants was null and void and of no effect. He further held and ordered “that plaintiff, Walter Jones, Sr., be recognized an heir (not the sole heir as alleged) of the late Malinda Fields and decreed the owner of the following described property in the proportion odue him as an heir of the late Malinda Fields, and that the heirs at law of the late Malinda Fields be decreed the owners of the following described property and entitled to the possession of same.”

OPINION

We have not found it necessary to pass on the ruling of the lower court overruling defendants’ exception of no cause and no right of action, as we prefer to rest our decision on the merits.

Plaintiff alleged that he was an heir of the deceased and had inherited her succession. The burden was upon him to prove that. This, he failed to do and the judgment recognizing him as such or as “an heir” of deceased, must be reversed.

Plaintiff is a colored man and was born a slave. His father, Robert Jones, and his mother, Mary Argrove, both slaves, were married during slavery with the consent of their master, the marriage ceremony being celebrated by a minister of the gospel. This marriage produced no civil effect until and unless ratified by the parties by continued cohabitation after their emancipation or by acknowledgment, as required by the Act of 1868.

Johnson vs. Raphael, 117 La. 967, 42 So. 470;

Succession of Walker, 121 La. 865, 46 So. 890;

Succession of Blackburn, 154 La. 618, 98 So. 43.

While there is no testimony showing that Robert Jones and Mary Argrove ratified their slave marriage by living together after their emancipation, it seems to be conceded that they did; at any rate, counsel for both plaintiff and defendants refer to Walter Jones, plaintiff, as a legitimate child and we shall so consider him.

Plaintiff claims to be a brother and an heir of Malinda Fields. He testified, however, that he was only a half brother. Aside from plaintiff’s bare statement that he was a half brother of the deceased, the only testimony in the record showing any blood relationship between plaintiff and the deceased, Malinda Fields, was given by Mr. Jefferson Wells, a white man, 95 years old, whose father owned both plaintiff and deceased. Mr. Wells testified that his father owned Robert Jones and Mary Argrove and that plaintiff was born on his father’s plantation and that he had known plaintiff all of his life. He testified further that he had known the deceased, Malinda Fields,, all of her life; that she was also born a slave on his father’s plantation and that “the whole plantation called her ‘Malinda Jones’ and looked upon her as Robert’s daughter.” The “Robert” referred to was Robert Jones, plaintiff’s father. Mr. Wells explained, however, that Malinda was not born of the marriage between Robert Jones and Mary Argrove, but of a union between Robert Jones and a woman named Maria Clark. Robert Jones and Maria Clark, he said, lived together on his father’s plantation with his father’s consent and, while he did not specifically say so, he evidently meant to convey the impression that the deceased, Malinda, was the child of Robert Jones and Maria Clark. He testified that Robert Jones lived with this woman, Maria Clark, before he married Mary Argrove and that they separated “and he married Mary (Argrove) who was my nurse, and she had four children— there was Matilda, Christine, born on Christmas, Dan and this boy (plaintiff) was the last one.” Conceding, therefore, that plaintiff and deceased were the children of a common father, Robert Jones, and it being shown that they had a different mother, plaintiff has proved that he was a half brother of deceased, as he testified. Having made this showing, counsel contend that plaintiff’s right of inheritance has been established. They are in error.

Malinda Fields, the deceased, was born of a union not sanctioned as a slave marriage even by slave custom. Her father and mother lived together, it is true, with the consent of their master, but there was no marriage between them, according to slave custom — they simply “took up together,” and Mr. Wells says that was a common practice among slaves. But deceased’s father left her mother and married another woman, plaintiff’s mother. The deceased was therefore an illegitimate child of plaintiff’s father and was never acknowledged by him. She was, therefore, a bastard. Civil Code, art. 202. So this question is presented: Did plaintiff inherit from his bastard half sister? The answer is, no.

Article 912 of the Civil Code, found under the heading, Of the Succession of Collaterals, provides that:

“If a person dies, leaving no descendants nor father nor mother, his brothers and sisters, or their descendants, inherit the whole succession to the exclusion of the ascendants and other collaterals.”

But this has reference to lawful brothers and sisters, lawful collaterals.

“Illegitimate children generally speaking, belong to no family, and have no relations; accordingly they are not submitted to the paternal authority, even when they have been legally acknowledged.”

Civil Code, art. 238.

In the case of Montegut vs. Bacas, Executor, 42 La. Ann. 158, 7 So. 449, 450, it was held that ‘‘an illegitimate child has no relations in a legal sense in the ascending or collateral line,” and further, that “in Art. 917, Rev. Civil Code, therefore ‘collateral relations’ refer to legal or lawful collaterals.”

Only legitimate and natural brothers and sisters inherit from each other. Even fathers and mothers do not inherit from their illegitimate children, unless they have acknowledged them. Civil Code, art. 922. Legitimate children are those who are born during marriage. Civil Code, art. 179. Natural children are those who, although illegitimate, have been duly acknowledged by their parents. Civil Code, art. 202.

In Succession of Gravier, 125 La. 733, 51 South. 704, it was specifically held that acknowledgment is a prerequisite, a sine qua non, to the inheritance by brothers and sisters of the estate of a sister born out of wedlock. And in the case of Cordill vs. Quaker Realty Company, 130 La. 933, 58 South. 819, it was held that the property of Delphine Gravier claimed by her illegitimate collaterals in the Gravier case, supra, went to the State in default of heirs. The Gravier case, supra, covers the one at bar like a wet blanket. There, as here, the estate of a deceased person was claimed by collaterals. There it was shown that Delphine Gravier was an illegitimate child never acknowledged by her father, and it was held that her brother and sisters, or their descendants, did not inherit her property. Here, Malinda Fields was an illegitimate child never acknowledged by her father, and it must be held that Walter Jones, her half brother, could not inherit from her.

Counsel for plaintiff call our attention to article 923 of the Civil Code, which reads:

“If the father and mother of the natural child died before him, the estate of such natural child shall pass to his natural brothers and sisters, or" to their descendants.”

They speak of Malinda Fields as the natural sister of plaintiff. But she was not such in fact. A natural child is an illegitimate child who has been acknowledged by its parents. There is not one scintilla of evidence in this record to show that Robert Jones ever acknowledged Malinda as his child, or that he reared her as such. Mr. Wells says that she was considered by all those on the plantation as Robert’s child, but there is no evidence that Robert ever said so and none that he treated her as such.

Counsel for plaintiff say in brief, “From the record there seems to be no doubt that Walter Jones is in fact the legitimate half brother of Malinda Fields.” Counsel, we presume, base their statement to this effect upon the testimony that Malinda’s father and mother, as slaves, lived together with their master’s consent. But such living together did not constitute marriage under the slave custom. In the case of Johnson vs. Raphael, supra, it was held that while art. 182 of the Civil Code of 1825 inferentially permitted the marriage of slaves with the consent of their masters, it did not dispense with the celebration of nuptials in such cases. There was no celebration of nuptials wheh Robert Jones and Maria Clark “took up together” nor was there any later. Robert Jones left deceased’s mother during slavery and married another woman.

Plaintiff, not being an heir to the deceased, not having inherited anything from her, has no standing to attack the instrument purporting to transfer the property of deceased to these defendants. The district judge held that the instrument attacked is null and void. Even so, plaintiff has no right to attack it.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be reversed and set aside; and that (plaintiff’s demands be rejected and his suit dismissed at his cost in both courts.


author: HIGGINS, J.

text:
    Nos. 13,092-13,096
    Orleans
    HARRISON, JR., v. LOYOCANO
    (December 16, 1929. Opinion and Decree.)
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellee.
    St. Clair Adams, Jr., of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is an action ex delicto for property damage amounting to $182.80, as a result of an automobile accident at the intersection of Broad Street and Tulane Avenue in the City of New Orleans on February 16, 1929, at 3:15 p. m. The defendant filed an exception of no cause of action which was not urged in the lower court and, therefore, not passed upon and which exception is pressed in this court.

Defendant answered denying liability. There was judgment in favor of plaintiff in the sum of $125 and both plaintiff and defendant have appealed.

The exception of no cause of action is leveled at plaintiff’s failure to allege in his petition that the driver of the defendant’s automobile was the duly authorized agent of the defendant and acting within the scope of his employment. It is unnecessary to say whether the exception was well taken at the time it was filed in the lower court because defendant did not press the exception there and permitted plaintiff to introduce evidence which satisfies us that the automobile was owned by the defendant and operated by his duly authorized agent, acting within the scope of his employment. No effort was made by defendant to rebut this evidence. The pleadings were, therefore, enlarged by this evidence to cover this issue. In any event this court has held that an exception of no cause of action will not be sustained and suit dismissed where it was based upon insufficiency of allegations in the plaintiff’s petition. Widow A. P. Cazeaux vs. New Orleans Public Service, 15th Orl. App. ----------------- íhe exception of no cause of action is overruled.

On the merits of the case the record shows that the accident occurred at the intersection of Broad Street and Tulane Avenue where there is an electric semaphore traffic light which was in operation at the time. Broad Street has a neutral ground in the center and runs in the direction from uptown to downtown. Tulane Avenue also has a neutral ground in the center and runs from the river to the lake. Plaintiff’s wife was driving his Nash sedan on Broad Street downtown and upon reaching the intersection in question, the green light of the traffic signal was in her favor and she proceeded to cross Tulane Avenue. After she had crossed Tulane Avenue and was in Broad Street, the traffic signal changed so that the green light turned in favor of the traffic moving on Tulane Avenue in the direction of the lake. There were two automobiles stopped near the neutral ground and facing in the direction of the lake at the time. The defendant’s truck, operated by its negro chauffeur, passed to the right of these two automobiles and as the traffic signal turned green in his favor, without stopping and at a speed of about fifteen miles per hour as estimated by himself, attempted to turn in Broad Street in a downtown direction and struck the right side of the Nash sedan, driving it upon the neutral ground in Broad Street and causing the damages in question.

Under the circumstances it is clear that the defendant’s agent was guilty of carelessness and recklessness in not permitting plaintiff’s car to proceed, as it had lawfully entered the intersection and had a right to proceed under the traffic ordinance of the City of New Orleans. Article 1, Sec. 1, City Ordinance No. 7490, C.C.S.; Crews vs. Coogan, 7 La. App. 691. We are, therefore, of the opinion that the negligence of the defendant’s agent was the sole and proximate cause of the accident.

As to the quantum of damage, the record shows that the Nash-Mississippi Valley Motor Company, the agent for Nash automobiles in the' city, gave an itemized written estimate covering the damages to plaintiff’s car resulting from the accident. It appears that plaintiff was financially unable to pay this amount at the time and had only the necessary repairs made so that the car could be operated, which repairs cost plaintiff the sum of $67. Defendant offered evidence to show that the repairs in question could be made for the sum of $100. The lower court allowed $125 for the damages.

Plaintiff’s appeal was based upon the iact that he is entitled to recover the full amount of his damage, $182.80. We are unable to agree with counsel for defendant that the estimate of the Nash Motor Company was excessive. In the case of Bianchi vs. Mussachi, 1 La. App. 291, this court held that it is defendant’s obligation to put the plaintiff’s car in the same good running order in which it was prior to the accident and to replace all the parts of the car he damaged. This case was followed in the case of Vila vs. Westfeldt, 7 La. App. 552.

For the reasons assigned, it is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended so as to increase the amount of the judgment from $125 to $182.80, with legal interest from judicial demand until paid and all costs, and as thus amended, it is affirmed at appellant’s cost.


text:
    No. 11,882
    Orleans
    DEMPSEY v. ANGELETTE
    (January 27, 1930. Opinion and Decree.)
    •Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellee.
    Claude Johnson, of New Orleans, - attorney for defendant, appellant.
   HIGGINS, J.

This is a suit for $205, representing professional services 'alleged to have been rendered between the dates of January 2, 19,27, and April 9, 1927.. Defendant admitted an indebtedness of $60, but denied liability for the remaining $145. There was judgment in favor of the plaintiff for the full amount and defendant has appealed.

The record shows that plaintiff is a duly licensed and practicing physician in the city -of New Orleans and had treated defendant and his family for a number of years. Defendant’s wife became ill and defendant engaged plaintiff in his professional capacity to. treat his wife. It appears that she did not respond to the treatment administered, with the result that in the early part of January, 1927, defendant requested plaintiff to obtain the services of another doctor. As the patient was suffering from nausea and vomiting spells, a 'stomach specialist, Dr. Levin, was called in, and after a consultation between the doctors the patient was removed to the Touro Infirmary on January 1, 1927, and discharged on January 18, 1927. The stomach specialist determined that the patient was not suffering from stomach trouble, but from a goiter.

The plaintiff testified that he continued to render services to the patient while she was in the hospital and thereafter. Upon defendant’s request, plaintiff called in Dr. Leman, who, after an examination, recommended Dr. Maes, a surgeon who specialized in operations for goiter. The patient was again admitted to Touro Infirmary on March 18, 1927, and, after an operation for goiter by Dr. Maes, was discharged on April 8, 1927. The plaintiff suggested the name of the doctors who were called in on both occasions.

The plaintiff annexed to his petition an itemized statement showing the dates and places of treatment during the period in question and testified to the correctness of the statement.

Defendant and his wife both denied the accuracy of the statement in some respects and particularly in that plaintiff had not treated the patient during the periods of time that she was in the Touro' Infirmary on both occasions.

Defendant contends that plaintiff did not regularly call at the hospital to visit his wife, and that when plaintiff did call, defendant was under the impression that it was merely a friendly visit; and that, as the specialist in both instances directed and administered all of the treatment that the patient received, defendant was not responsible to plaintiff for any visits that he might have made, especially as defendant considered that plaintiff had turned the case over to the specialist on the occasions in question.

Plaintiff placed two doctors on the stand, one of whom testified that it was the custom for the family physician to continue his services, unless discharged. The other one testified that it was the custom for the family physician to continue his services if the family requested him.

The defendant and his wife admit that they did not discharge Dr. Dempsey, but considered that he had given up the case because, when they first requested that another doctor be called in, the plaintiff left the defendant’s home in an angry mood and slammed the door as he left. But it appears that plaintiff did continue his services and, while he might not have been solely in charge of the case, he cooperated with the specialists in treating the patient. The defendant at no time objected to plaintiff rendering these services, and if he considered that plaintiff was not any longer in the case, it was his duty to so inform him. It is too • late to complain after receiving the benefit of plaintiff’s services.

The judge, a quo, who heard and saw the witnesses, felt that the plaintiff had proved his case by a preponderance of the evidence, and we find nothing in the record which would justify us in saying that he was manifestly in error.

For the reasons assigned the judgment is affirmed.

JANVIER, J., takes no part.


author: WESTERFIELD, J.

text:
    No. 11,716
    Orleans
    FABREGAS v. HAUSMANN
    (January 27, 1930. Opinion and Decree.)

      Henry W. Robinson and Henry M. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Spearing & Mabry, and W. H. McClendon, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This suit grows out of a collision of automobiles. Plaintiff, claiming damages for personal injuries as a result of the collision, asks for $2,759.75. Her demand was rejected by the lower court and her petition dismissed. She has appealed.

Plaintiff, her daughter, Mrs. E. D. Moore, and her six-year-old grandson, Francis Moore, were in a Ford coupe which was driven by Mrs. Moore. They attempted to cross from one side of Carrollton Avenue to the other at the intersection of Hickory street. It is plaintiff’s contention that as the Ford reached the neutral ground which divides Carrollton avenue, it was stopped and the horn was blown in accordance with the requirements of Section 7, paragraph (d) of the traffic ordinance 7490 C. C. S. to indicate to traffic on the roadway that the driver intended to enter the lower side of Carrollton avenue; that as the Ford emerged from the neutral ground it was struck by a Cadillac belonging to the defendant and driven by a negro chauffeur. Plaintiff alleges that the speed of the Cadillac was immoderate, being in excess of thirty-five miles per hour.

Defendant denies that the Cadillac was speeding but on the contrary proceeding slowly because Burl, the negro chauffeur, was instructed not to exceed fifteen miles per hour, because of the presence in che car of an aged lady, the grandmother of Mrs. Hausmann, defendant’s wife.

According to the version'of the accident given by the defendant, the Ford coupe did not stop on the neutral ground, did not blow its horn and gave no indication of its intention to enter the roadway. The accident, it was claimed, was due to the fact that the driver of the Ford lost control, the car starting suddenly, possibly caused by a mistake of the driver in placing her foot on the accelerator instead of the brake, and causing the Ford to strike the Cadillac in the rear when it had almost completed the crossing.

As the Cadillac approached the intersection where the accident occurred, it was followed by an automobile driven by a Mr. Gillen, whose testimony is in the record. Mr. Gillen with exceptional opportunity to observe the collision completely corroborates defendant as to the manner in which the accident happened. He is a wholly disinterested witness and his testimony is most positive "and convincing, sufficient to resolve any doubt we may have had as to the responsibility for the accident.

For the reasons assigned the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 10,945
    Orleans
    TOLMAS v. LOFASO
    (January 27, 1930. Opinion and Decree.)
    Walter P. Marcus, of New Orleans, attorney for plaintiff, appellee.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This matter comes before us on motion to dismiss the appeal on the ground that the appellant has acquiesced in the judgment by voluntarily making a payment on account thereof.

On original hearing, Tolmas vs. Lofaso, 10 La. App. 785, 122 So. 907, we remanded the matter to the district court so that evidence might be submitted on the question of whether or not the judgment had been acquiesced in by payment on account.

In the court below the new evidence which was submitted consisted solely of a statement made by appellant himself to the effect that he had voluntarily paid $500 on account of the judgment.

There can be no question that such a voluntary payment constitutes acquiescence in the judgment and authorizes us to dismiss the appeal. Raines et al. vs. Dunson et al., 143 La. 321, 78 So. 574; Jolley vs. Vivian, 131 La. 937, 60 So. 622; Sims vs. Jeter, 129 La. 262, 55 So. 877.

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


text:
    No. 11,595
    Orleans
    ZIMMERN’S COAL CO. v. REYNOLDS
    (December 16, 1929. Opinion and Decree.)

      Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellant. - '
    R. W. Leche, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff entered suit' against defendant for the sum of $859.35, representing the purchase price of two carloads of coal, alleged to have been delivered on September 2, and September 19, 1922, respectively. Defendant denies liability and by way of a reconventional demand seeks to recover the sum of $310.68, alleged to be due as the result of overpaying plaintiff for other deliveries of coal during the months of August, September, and October, 1922. The judge a quo dismissed both demands, holding that neither the plaintiff nor the intervener had proved his case. Plaintiff has appealed and defendant has answered the appeal, praying that the judgment be affirmed in so far as the main demand is concerned and reversed as to the reconventional demand.

This case presents only issues of fact. The plaintiff bore the burden of proving by a preponderance of the evidence the main demand, and the defendant bore the burden of proving by a preponderance of the evidence the reconventional demand.

Plaintiff undertook to prove that the two cars of coal in question were ordered and delivered on September 2 and 19, 1922, respectively. To prove his case plaintiff produced Mr. Lang, an employee of the Southern Railroad Company, and Mr. Lemp, an employee of the Louisville & Nashville Railroad Company, who both testified that the two cars of coal were handled for the account of Zimmern’s Coal Company, plaintiff, but there was nothing in the record of the railroad companies to show that the two cars of coal in question were delivered to the defendant. Plaintiff admits that the testimony of these two witnesses alone is not sufficient to prove delivery, but contends that the testimony of these two witnesses, together with the testimony of Mr. Bertrand Feist, superintendent of plaintiff, was sufficient evidence to prove plaintiff’s case by a preponderance of the evidence. Mr. Feist, in bis testimony on cross-examination, stated that he was testifying to the “best of his recollection.” His testimony was taken some three years after the coal is alleged to have been delivered. During this interim he admits that he superintended, the delivery of numerous other cars of coal, and we feel that he could not, with that degree of certainty required to prove a matter of this kind, recall that these two particular cars were delivered to the defendant. He admits, in bis testimony, that the plaintiff did not have a bookkeeper at the time, but that the bookkeeping was done by a young lady stenographer who had been in the employ of the company for a period of about six months. This young lady testified that she was not a bookkeeper, and the evidence convinces, us that the records were not accurately kept. For instance, the books showed, that one of the cars was delivered by the Louisville & Nashville tipple, which should have been the Southern Railroad tipple. It appears that plaintiff sent two statements to defendant, completely leaving off of both statements the- two cars of coal, for the price of which this suit was filed, and it was only 2% years after the coal was alleged to have been delivered that plaintiff made demand upon defendant for the payment of the purchase price.

We feel that plaintiff has failed to prove the main demand by a preponderance of the evidence.

With reference to the reconventional demand, counsel for plaintiff contends that as defendant did not take a direct appeal from the judgment, dismissing the reeonventional demand that the question- of whether or not the judgment of the district court is correct in that respect cannot be raised by an answer to the appeal. As we view the pleadings, this is a suit on an open account, and the alleged overpayment, having grown out of the open account, was incidental to the main demand; therefore, the reconventional demand can be considered under defendant’s answer to the appeal.

It appears that defendant paid plaintiff as per plaintiff’s statements and according to the number of tons of coal listed on the statements. In other words, he took plaintiff’s figures. When this suit was filed, defendant had the railroad companies give him the freight bills covering the cars of coal which had been paid for, and there was a discrepancy in the weights as given to defendant by plaintiff and by the railroad companies, which, in dollars and cents, would amount to $310.68. Defendant therefore claims this difference as an overpayment in his reconventional demand. The railroad companies’ bills were properly identified, and the correctness of the weights per car was proven to be correct; however, plaintiff’s witnesses testify that the additional coal was loaded on defendant’s barge from plaintiff’s lighter. Defendant’s witness denies this. Therefore we find defendant has failed to prove by a preponderance of the evidence the reconventional demand.

Both counsel submitted exhaustive briefs to the district judge, substantially the same as filed in this court, and after considering the' testimony and briefs the lower court reached the conclusion that the evidence was insufficient to support the main demand and also the reconventional demand.

After a careful reading of the record, we cannot say that there is any manifest error in the findings of the district judge, and for the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,176
    Orleans
    VUILLEMOT v. AUGUST J. CLAVERIE & CO., INC., ET AL.
    (December 16, 1929. Opinion and Decree.)
    Prowell, McBride & Ray, and Eugene Walet and L. H. Perez, of New Orleans, and Emile Vuillemot, of New Iberia, attorneys for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Plaintiff sues for damages for the death of his daughter, who was killed by an automobile truck.

He alleges that the truck was driven by defendant Cazaubon, while acting within the scope of his employment as an automobile truck driver for August J. Claverie & Co., Inc., the other defendant.

The defense of the corporate defendant is based on two contentions: First, that it was not its truck which struck and killed Miss Vuillemot; and, second, that if it was its truck, the driver was not, at the time, performing services for the owner, but had taken it out for his own purposes and convenience.

The accident occurred at about 7 o’clock in the evening on the viaduct of the Industrial Canal, and a short distance on the down river side of the span of the drawbridge. The young lady was walking near the edge of the viaduct, and there were several automobiles passing her, going in the direction in which she was walking. Defendants were able to produce no evidence as to how the accident took place, as they knew nothing about it until the afternoon of the second day after the accident, when Cazaubon was identified as the driver of the truck by a negro who claimed to have been an eyewitness. That the accident was caused by a truck seems to be fairly well established.

But was the truck negligently operated? The only witness who actually saw the accident from beginning to end was the negro, White, and he testifies that the truck ran into the lady from the rear while she was walking about two feet from the railing, “where all the rest of the people were,” and that “she never was in the way of the truck.” He also says that the only light on the truck was one lantern and that “it was burning dim.” This negro fixes the speed of the truck at “about fifteen or twenty miles an hour.”

Article 5 of Ordinance No. 6554, Commission Council Series, New Orleans, prohibits the operation of motortrucks over bridges at a greater speed than five miles an hour. We are not at all certain that it was intended by the framers of the ordinance to include within the term “bridges” the viaduct approaches of the Industrial Canal, but it seems to us that, whether the speed was violative of the statutory provisions, it was certainly in violation of the dictates of common prudence. ,

Then, too, since the accident was caused by a truck and since no truck stopped, either the driver of the truck which caused it was not keeping a proper lookout, or he drove away in an effort to avoid being caught. If he had been keeping a proper lookout, surely he would have noticed that the truck struck the young lady with its front fender. If he was not keeping a proper lookout, he was negligent. If he did know that he struck the young lady and did not stop, then his action in attempting to escape was tantamount to an admission of guilt. We have therefore come to the conclusion that, although the evidence as to the facts of the accident is very meager, there is sufficient in the record to warrant the finding that the young lady was killed by a truck and that the driver of the truck was at fault.

It next becomes necessary to determine whether there is in the record sufficient evidence to justify the conclusion that the truck which caused the lady’s death belonged to Claverie & Co. and was driven by Cazaubon.

It is admitted that the Claverie truck had crossed the viaduct at about 6:30 or 7 o’clock of the evening in question. This is just about the time at which the accident occurred. In the entire record the only evidence which in any way identifies the Claverie truck as the one responsible is that of the negro, White. His credibility is attacked on various grounds. It is charged that at one time he stated that the truck was brown and then changed his statement and said that the truck was yellow, and also that he first reported the license number to be 23009, where as he later stated that he had reported it as either 23008 or 23009. The Claverie truck, as a matter of fact, bore license No. 23008. It was also charged that he (White) should not be believed, because of certain other inconsistencies in his testimony. For instance, at one time he stated that he was sitting on the rail along the edge of the viaduct, whereas later he said that he was standing near the rail.

We are of the opinion that it would have been too great and too incredible a coincidence for the negro to have given as many facts as he did, if it were not the Claverie truck which was involved in the accident. Unquestionably the negro did report at an entirely unsuspicious time that the license mlmber was 23009, and even if it be conceded that he did not at the same time state that it might be 23008, the last digits of the two numbers are so similar that a mistake might be readily made. Furthermore, it appears that the negro stated that the truck had a name on it, and that the first part of the name was “August J.” and that the last name commenced with the letter “C.” Also, when taken to the Claverie establishment, h& immediately identified Cazaubon as the driver of the truck. That the truck was yellow and not brown, and that it was not closed, but covered with a tarpaulin, are details about which he could have well been mistaken, in view of the darkness and of the speed at which the truck was driven away.

It thus appears as established that the truck which was responsible -belonged to the Claverie Company and was driven by Cazaubon. Cazaubon is therefore liable, since, as it has already been shown, it was his negligence which caused the accident.

But what about the Claverie Company? Does mere ownership of the truck render the owner liable? Certainly not. Anderson vs. Driverless Cars, Inc., (No. 11,344 of the docket of this court) 124 So. 312, .decided October 21, 1929; Bardt vs. Champon, 6 La. App. 763; Lanauze vs. A. Baldwin & Co., Ltd., 2 La. App. 345.

Unless, then, the truck was being operated in the affairs of the Claverie Company or unless, as contended for by plaintiff, the fact that Cazaubon had the permission of the Claverie Company to take the truck out whenever he so desired, rendered it liable for whatever damage the truck might do, the Claverie Company is not liable. The question then arises: Was the truck being operated, at the time, in the affairs of the Claverie Company. The uncontradicted, positive evidence shows that no hauling for the company was done on that day. It was a Sunday, and no meats were delivered on Sunday, as no markets were open. That meat even on Sunday might ' be sent tó the express office, is claimed by plaintiff; but that such was the case is flatly denied by all of defendant’s witnesses. Unless we are prepared to accept the conjecture of plaintiff as more probable and more worthy of belief than the mass of positive evidence of defendant, we must come to the conclusion, which is abundantly justified by the record, that the truck, at the time of- the accident, was being driven by Cazaubon entirely for his own benefit and not in any sense in the affairs and concerns of the Claverie Company.

The sole question remaining, then, is whether or not the fact that Cazaubon had access to the truck at all times and had the general consent of the company to use it made the employer of Cazaubon, the owner of the truck, liable for any damage caused by it, whether he was operating it for the Company, or in his own affairs and for his own pleasure or convenience.

In support of this contention plaintiff cites Black vs. Rock Island R. R. Co., 125 La. 101, 51 So. 82, 26 L. R. A. (N. S.) 166, in which our Supreme Court said:

“Where the agents of a railroad company are placed in charge and control of its depot, locomotives, and tracks in a town, with authority to operate the locomotives over the tracks, for switching and other purposes (connected with the business of the company), and with actual power to operate them when they please, and the agents whilst operating them for their amusement across a street of the town negligently injure a citizen, who is legitimately using the street, such agents will be held to be acting, though improperly, within the scope of authority conferred on them, and the company will be held liable for the injury resulting from such action.”

If the doctrine announced in the Black case be applicable to an automobile or a truck, then the owner of a truck or an automobile is liable for any damage caused by it in the hands of any one using it with his consent. That such is not the law of this state has been many times held. Tinker vs. Hirst, 162 La. 209, 110 So. 324; Atkins vs. Points, 148 La. 958, 88 So. 231.

While it is true that a casual reading of the quotation above set forth seems to indicate that the liability of the defendant was based upon the agency created by the permission to use the locomotive, a reading of the entire decision shows clearly that the liability resulted from the fact that the acceptance by a railroad company of a franchise and the exercise by it of the rights of eminent domain carry the duty of so operating the railroad property as not, by negligence, to injure the public, and that this duty cannot be evaded or avoided, or shifted, so long as the vehicle which caused the damage was in the hands of persons permitted by the railroad to use it, and even though, at the time of the accident, it was on the track entirely in the interests or for the pleasure of employees, and not in the concerns of the company. It thus appears to us that the reasoning of the Black case indicates that the court did not intend to hold that an owner of a vehicle is liable in all cases for injuries caused by that vehicle merely because, at the time of the accident causing the injuries, it is being operated by persons who are in the employ of the owner, if at the time of the accident they are not acting within the scope of the employment and are not performing services for their master, the owner of the vehicle.

That the basis of the decision in the Black case was founded on the reasoning that the duty owed by the acceptor- of a franchise to the general public cannot be shifted or avoided, is clearly indicated by the following language which appears in that decision:

‘‘Summing up our conclusions, upon the law of the case, we are of opinion that:

“1. A corporation exercising a franchise to .operate steam cars on tracks crossing the streets of a town incurs the correlative obligation to use such privilege with due regard to the public safety and to maintain its tracks in a safe condition, and it cannot escape liability for failure to discharge such obligation by transferring, or attempting to transfer, it to an employe or other person. * * *

“4. The right to operate a steam locomotive on, or across a street in a town involves the use of an agency highly dangerous to life, limb, and property, and the responsibility for the exercise of such right cannot be shifted by the corporation in which it is vested to the person, who, by its authority, actually exercises it.”

Any other conclusion than that which we have reached would necessitate a finding that an owner of an automobile, which is perfectly harmless in the hands of a competent and careful driver, is liable for any damage caused by it, whether in his own hands or in the hands of a person to whom he may lend it, regardless of whether or not it is being operated in his concerns.

It therefore follows that the judgment in favor of plaintiff and against defendant Cazaubon is correct, but that the judgment in favor of plaintiff and against defendant August J. Claverie & Company, Inc., is erroneous.

The amount allowed by the trial court was $3,000. It is always difficult to determine, particularly in a death case, just what amount will properly compensate the party who has sustained the loss. In view of the age of the young lady, and in view of the fact that plaintiff was not dependent upon her, we have come to the conclusion that the allowance was as nearly correct as is humanly possible to determine.

It is therefore ordered, adjudged, and decreed that the judgment in favor of plaintiff and against defendant Emile Cazaubon be, and it is, affirmed, at the cost of appellant, Cazaubon; and it is further ordered, adjudged, and decreed that the judgment in favor of plaintiff and against defendant August J. Claverie & Co., Inc., be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of defendant August J. Claverie & Co., Inc., dismissing plaintiff’s suit at his cost.


text:
    No. 11,547
    Orleans
    STATE EX REL. SHILOH v. QUEEN OF THE SOUTH LODGE No. 18, INDEPENDENT ORDER GOOD SAMARITANS AND DAUGHTERS OF SAMARIA, ETC.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)

      Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    E. S. Spiro, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Relator sued out a writ of mandamus against defendant to reinstate him in the lodge as a member in good standing. The defendant, the lodge of which relator was a member, denied that he was entitled to such a writ. There was judgment in favor of relator making the alternative writ of mandamus peremptory commanding the defendant lodge to reinstate relator upon the payment of a fine of $2 and the payment of all accumulated dues, relator to pay the cost of court. From this judgment relator has appealed.

The record shows that relator, at a regular meeting of the defendant lodge held on June 11, 1927, attempted to gain recognition from the Chief, who was the presiding officer of the meeting, and that the Chief ruled that relator was out of order, as he had previously recognized another member; whereupon relator insisted upon being recognized, and, in accordance with the by-laws, after he refused to be seated, the Chief fined him $.50. Relator still persisted on standing and to be recognized, and was again fined $.50, and, when he still persisted in standing and to be recognized and interfering with the orderly procedure of the meeting, he was again fined a $1.

The testimony is conflicting as to just what relator said or did at the time but we are satisfied that he refused to abide by the ruling of the Chief and created a disturbance in the lodge, and, under the constitution and by-laws, the Chief, as presiding officer of the meeting, was within his rights in fining him. Thereafter relator tendered his dues, but did not tender the fine, and the treasurer refused to receive his dues, and he was suspended for nonpayment of dues and the fine. He then filed the present suit to be reinstated.

Judgment in the lower court made the writ of mandamus peremptory upon the condition that relator would pay the fine, the accrued dues, and assessed the costs of court against him. This was done on the theory that the relator was entitled to a writ of mandamus upon the payment of the fine and the accrued dues. It is therefore apparent that the judgment is not unqualifiedly in favor of relator. The defendant was ready and willing to reinstate relator upon the payment of the dues for which he was in arrears and the fine which was assessed against him, and therefore it was unnecessary for him to have filed the suit under the circumstances.

“It is a well-known principle of law that courts are reluctant 'to interfere with the internal rules and regulations of private corporations, particularly benevolent or fraternal associations, and will only do so upon proper showing of unreasonable rules or unfair interpretation thereof.” State ex rel. Gustave Breaux vs. Longshoremen’s Protective Association, Local No. 231, 11 La. App. 43, 123 So. 344, 345.

We, therefore, feel that the judgment of the lower court is correct. In any event this court would have the right to assess the costs of court against relator under the provisions of Act No: 229 of 1910, amending article 908 of the Code of Practice, as we feel that relator should be required to pay them.

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


author: WEBB, J.

text:
    No. 3562
    Second Circuit
    MOAK v. LOUISIANA CENTRAL LBR. COMPANY
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.) .
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, while engaged in cutting timber for defendant, sustained an accidental injury on Dec. 5, 1927, which immediately disabled him. At the time, plaintiff was standing aside waiting for a tree, which he had cut, to fall. He stood astride the end of a pole which was lying on the ground, and when the tree fell it struck the opposite end of the pole, causing the pole to be thrown upward, striking plaintiff between his legs, and throwing him from the ground, and he fell on his head and shoulders, where he lay for some time suffering great pain.

He was carried by some of his co-workers to a physician, who had him undressed and examined him, finding that there was an injury of one of plaintiff’s testicles, for which the physician treated him for five or six weeks, when, the physician states, he had recovered from the injury and was able to resume work'.

Following the accident, defendant began paying plaintiff compensation at the rate of $20 per week, the maximum amount allowed under the statute, which was continued until September 8, 1928, with the exception of a pei’iod from March 28th to April 25, 1928, when defendant ceased paying compensation.

On October 20, 1928, plaintiff instituted the present action to recover additional compensation. He alleged that in addition to the injury of the testicle he had, at the time of the accident, sustained injuries to the head, spine and hip, which had produced permanent total disability to do work of any reasonable character, and that the injuries had also produced serious permanent impairment of certain physical functions and prayed for judgment for compensation for permanent total disability to do work of any reasonable character, under paragraph (d) subsection 1, section 8, Act No. 20 of 1914, as amended, subject to such credit for compensation previously paid as the court should determine.

On trial, in February, 1929, judgment was rendered in favor of plaintiff, awarding him additional compensation at the weekly rate of fifty per cent, of the maximum rate for a period of 50 weeks, beginning on September 15, 1928, with legal interest on the payments from date of maturity; from which judgment defendant' appealed, and plaintiff has answered the appeal, praying that the judgment be amended, and that judgment be rendered in his favor as originally demanded.

The theory of plaintiff’s case is that he had, at the time of the accident, sustained other injuries than that of the testicle, which, together with the injury of the testicle, had produced permanent total disability to do work of any reasonable character, and had also resulted in impairment of certain physical functions; while the theory of the defense is that the injury of the testicle was the only injury sustained at the time of the accident, and that any disability resulting from that injury had ceased prior to the time defendant quit paying compensation.

Plaintiff offered evidence tending to show that he had been rendered unconscious by the accident, and he testified that he was slightly deaf, and that his memory and sexual power was impaired, and that he experienced pain in his testicles, hip and back, which rendered him unable to work, and he also stated that he had suffered with such pains since the date of the accident; while the physician who examined plaintiff shortly after the accident stated that he did not find any indication of other injury than of the testicle, .and that plaintiff had not complained of any other injury during the period that lie treated him, and the evidence established that during the period plaintiff was under treatment for that injury he was able to walk to the physician’s office, a distance of seven miles, and to go scbuirrel hunting, walking a distance of about 15 miles, without any apparent inconvenience, and that he had been engaged for about 21 days in February and March, 1928, in work of a similar character as that he was doing at the time of the accident, and also that in September and October he had been engaged in work of the identical character as that in which he was engaged at the time of the accident.

Plaintiff was examined by physicians selected by the parties and although none of them could find any abnormality or indication of wounds which would account for the pains of which plaintiff complained, they agree that such pains were indicative of a sacro-iliac sprain or injury to the hip, and while the evidence shows that such injury may have resulted from the accident, the evidence also shows that if such injury were sustained at the time of the accident plaintiff would have experienced immediate pain and disability from such injury.

The physician who examined plaintiff within a few hours after the accident was in a better position to determine the nature and extent of plaintiff’s injuries than those who examined him months after the accident, and in view of the fact that plaintiff did not complain to the physician of injuries to. the back or hip or of pain symptomatic of such injuries during the period the physician treated him, and of the fact that there was not any apparent disability which would have resulted from such injuries, we are of the opinion that the evidence failed to establish that plaintiff sustained any injury of the back or hip at the time of the accident, and that the only injury that plaintiff did sustain was the injury of the testicle, and that any disability resulting from that injury had ceased long prior to the time defendant ceased to pay compensation.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that plaintiff’s demands be rejected at his cost.


author: REYNOLDS, J.

text:
    No. 3692
    Second Circuit
    DIGGS v. THE BROWN PAPER MILL CO., INC.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)

      Stubbs & Thompson, of Monroe, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff sued defendant, under the Workmen’s Compensation Act, for $18 a week, for 400 weeks, beginning July 29, 1924, with legal interest on each installment from its maturity, less 123 payments of $18 each, received by him between July 29, 1924, and November 20, 1926, with legal interest on each payment from the time it was made, as compensation for alleged permanent total disability to do work of a reasonable character said to have resulted from an accidental fall by him from a ladder to a concrete floor in the course of his employment by defendant on July 22, 1924, which broke and mangled his left foot and ankle and injured his left hip and his back.

Defendant admitted the employment and accident but denied that plaintiff was injured to the, extent alleged or that he was permanently or totally disabled and denied that he was incapacitated to do work of a reasonable character, and alleged that only his foot was injured and that all the compensation he was entitled to therefor was $18 a week for 125 weeks and that it had paid him such compensation for 123 weeks and had tendered him $36 as the compensation for the two other weeks and he had refused to accept it.

On these issues the case was tried and judgment was rendered in favor of plaintiff against defendant for $18 per week during the period of total disability from July 29, 1924, to November 26, 1926, and in the further sum of $16.38 per week, being 40 per cent of the weekly wages of plaintiff, on the basis of permanent partial disability, for the period beginning November 26, 1926, and continuing for the additional period of 178 weeks thereafter, with interest at the legal rate on the weekly installments, beginning November 27, 1926, and on weekly installments thereafter from the respective dates the same became due theretofore and will become due hereafter, until paid; subject to credits of $18 per week paid by defendant for a period of 125 weeks, beginning July 29, 1924.

From this judgment defendant appealed. Plaintiff did not appeal nor did he answer defendant’s appeal.

OPINION

The cause of action arose while Act No. 43 of 1922 was in force, and defendant earnestly contends that plaintiff was entitled, at most, to 60 per cent of wages during 125 weeks, as for the loss of a foot (section 8, subsection 1, clause (d)), and cites many cases in support of its contention, which, -however, are inapplicable except on that theory.

Plaintiff contended that his hip and back also were injured and that in consequence he was permanently totally disabled to do work of a reasonable character. The lower court awarded him compensation on the basis of temporary total disability from the time of the accident to November 26, 1926, and on the basis of permanent partial disability from the latter date; and the questions for our determination are, were plaintiff’s hip and back also injured in the accident? And was he at the time of the trial permanently partially disabled in consequence to do work of a reasonable character?

Plaintiff frankly admits, in his testimony, that, while he was undergoing treatment for the injury to his foot, he did not complain of an injury to his hip or back; and defendant insists that this proves that neither his back nor hip was injured.

Defendant’s contention is entitled to and has received proper consideration; but we think plaintiff explains this silence, and we think that in the light of it there was nothing inconsistent between the existence of the injury to the hip and back and his failure to complain of it.

He testified:

“Q. At that time you didn’t claim that you sustained any injury other than the loss of the foot, did you: — or the injury to the foot?

“A. I' didn’t know it at the time. I thought the suffering was caused from the foot. * * *

“Q. In your statement to Messrs. Holland & Cousins, you didn’t say anything about any other injuries, other than the loss of the foot?

“A. No, sir; I was suffering pains in my foot all the time, and didn’t know I was hurt anywhere else.

“Q. That was in January, 1927, I believe? After that, you went to see Messrs. Moss & Siess, in Lake Charles?

“A. Yes, sir.

“Q. You employed them to represent you, didn’t you?

“A. Yes, sir; I talked to them about taking the case.

“Q. You didn’t say anything to them about receiving any injury other than the injury to the foot?

“A. I told them I was suffering pain. I thought the pains I was suffering was from the foot. I didn’t know.

“Q. You didn’t know then that you sustained any other injuries other than the injury to the foot?

“A. No, sir.

“Q. And when they told you that you had been paid in full the amount due you for the loss of the foot, why you got some other lawyers to represent you — didn’t you?

“A. Well, I didn’t like the way they talked. I didn’t know whether they represented the insurance company or not, and I got some other lawyers. Got Mr. Stevenson to get Mr. Stubbs.”

In the light of the testimony of the physicians that plaintiff’s back was injured, this explanation of plaintiff’s failure to complain of that injury seems to us perfectly reasonable.

Plaintiff’s testimony about suffering pain from his back is corroborated by that of Dr. Isidore Cohn, who said:

“Q. Now, when you had him to go through what is known in military parlance or language as the setting up exercises, he experienced considerable pain, did he not?

“A. He experienced considerable pain.

“Q. In his back?

“A. In his back; the lower part of his back. * * *

“Q. Now, doctor, the fact that he has suffered pain in his back, and still suffers pain in his back, suggests, of course, that that is due to some cause, does it not?

“A. If it can be proved or disproved that he has or has not pain.

“Q. Well, you had no reason to think that he was not sincere in his statement?

“A. No, sir; I would go so far as to tell you that I wrote in a letter. Shall I quote from my letter?

“A. Yes.

“A. I say: T do not think you are dealing with a case of compensation:itis.’ More than that: I stated in that same letter, that the removal of the hone of the foot, this chief weight bearing bone, results in a disturbance in weight hearing, that is, from that side, and, that being the case, of course you can expect a great many pains to come from it. Any one who has ever had a flat foot knows how much pain an individual can have, and I might say that I speak with a great deal of feeling (exhibiting foot). I wear a built up shoe, because I have pains in the calves of my legs when I don’t.”

Dr. Henry Dasput testified:

“Q. In your examination of the patient, he was perfectly frank with you, as to his symptoms of pain?

“A. Yes; and he stated this: that when he walked, his pain was induced, and that rest relieved the back discomfort. * * *

“Q. You have no reason to doubt that the plaintiff was suffering and is suffering with pains in his back on the left side, and in his left hip?

‘‘A. No reason whatever. * * *

“Q. Have you any reason to believe that the pain that the plaintiff complains of in his left back and hip is not real?

“A. I have already answered that question, that I thought he had the pain.’’

Dr. C. P. Gray testified:

”Q. Will you state, so the stenographer can get it, the result of your examination of the plaintiff?

“A. Mr. Diggs, on questioning, complained to me of pain in the lower part of his back, in the left hip and hip joint, and. the pains at times radiating down the left thigh; upon examination I found the foot that shows that it had been operated upon and presents the appearance of the whole or part of the astragalus bone removed. I noticed a decided diminution of the left leg as compared’ with the right. In other words, there is an atrophy of the left leg. The left leg is smaller by measurement around the — well, for the purpose of plain English, around the calf of the leg; the left leg is one and a half inches smaller than the right. Above the knee, I didn’t measure that, but there is a decided diminution in the size as compared with the right — shows a considerable atrophy of the limb taken as a whole. I find a disturbance of sensation in the left leg as compared with the right. This disturbance of sensation is due both to heat and cold. In other words, the sensation in the right limb is not as acute or as normal as it is in the uninjured limb. That applies, as I say, both as to heat and cold. Now I find a disturbance or abnormality of the reflexes of the left limb. In other words, the reflex is not normal. That I believe, concisely I believe, covers it. * * *

“Q. Now, doctor, from your knowledge and experience as a physician, and surgeon, what is your opinion as to the source of this pain that the plaintiff suffers from? Is it from his foot or elsewhere in the back and hip?

“A. No, sir; in my opinion it is what it termed as a — or comes from a sacro-iliac sprain. That is a sprain of the muscles of the back or the hip joint which has resulted in this traumatic neuritis.

‘‘Q. Now doctor, would an injury to the foot, such as he suffered, cause a pain in his back?

‘A. No, sir; I cannot see how that it could.”

Dr. C. E. Phillips testified:

“Q. If * * * you should say that, about October, 1924, you made a physical examination of plaintiff, William C. Diggs, please state what you found his physical condition to be at that time.

‘A. When I examined Mr; Diggs, in October, 1924, he was suffering pain in his left leg, and was complaining of pain in the back, and I found tenderness following the course of sciatic nerve and nerve trunks down to the ankle; but I did not make a thorough examination of the body. I think that the pain would have been alleviated if the leg had been properly replaced and united.’’

He further stated that he made another physical examination, of the plaintiff about three months after October, 1924, and then found the left leg to be atrophied both at calf and thigh, and the plaintiff was complaining of pain in the back and left leg, and that in his opinion the condition of plaintiff’s leg and thigh could produce the pains he complained of. He further stated 'that, in his opinion, plaintiff was, at the time he gave his testimony, March 29, 1928, suffering from traumatic neuritis, and the ailment was the result of the injuries.

As to how he received his injury, plaintiff testified:

“Q. Now, what happened then?

“A. Well, sir, I was working on a ladder about fourteen feet high, and it slipped out from under me, and dropped me to the concrete floor. It tore this foot up. Seems like it drove the bone up in my hip like.”

We are convinced from the evidence, as the trial judge was, that, in his fall from the ladder, plaintiff received injuries to his back that caused him permanent partial disability to do work of any reasonable character, entitling him, under clause (a) of subsection 1 of section 8, p. 74, of Act No. 43 of 1922, to receive from his employer 60 per centum of his wages during the continuance of his disability, not, however, beyond 300 weeks.

Defendant introduced in evidence two letters written by plaintiff to Dr. Cohn, and insists that they show plaintiff had entirely recovered from his injuries at that time. To our mind the letters do not evidence this. They only evidence a deep sense of gratitude on plaintiff’s part, and gratitude is rarely an attribute of a malingerer.

In one of the letters, dated December 21, 1925, plaintiff says:

“I can walk now without the crutches. I put the crutches away two weeks ago. * * * Mr. Brown was sure tickled when I told him I would have a good foot again. * * * »

And in the other letter, dated May 21, 1926, he says:

“I am getting along fine. At least I hope I am. It will soon be time to take the brace off. * * * About how long should I wait after removing the brace before going to work? * * *”

To us these expressions indicate that he was hopeful that he had recovered rather than that he believed he had.

Plaintiff was injured July 22, 1924, and nearly three years later he was still undergoing treatment for the relief of his foot. This, to our mind, indicates that he sustained other injuries beyond those to the foot.

Our learned brother of the district court gave plaintiff judgment for compensation during disability for the remainder of the 300-week period, but at the reduced rate of $16.38 a week. This reduction clearly was not to the prejudice of the defendant. Plaintiff did not appeal nor answer defendant’s appeal, and therefore the judgment cannot be altered in his favor.

A careful reading of the record convinces us that the judgment appealed from is cor rect, and accordingly it is affirmed.


text:
    No. 3587
    Second Circuit
    JEFFERSON ET AL. v. KING
    (November 18, 1929. Opinion and Decree.)
    (December 3, 1929. Rehearing Refused.)
    (February 3, 1930. Writ of Review Refused by Supreme Court.)
    A. S. Drew, of Minden, attorney for plaintiffs, appellees.
    Wilkinson, Lewis, Wilkinson & Buford, and Roberts & Naff, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On the night of November 9, 1928, Cleveland Jefferson, husband of Mrs. Joanna Jefferson and father of two minor children, was riding on a motortruck belonging to the defendant and driven by his chauffeur, Jim Shine, which truck collided with another truck parked on the side of the road, and, in the collision, Cleveland Jefferson sustained' injuries from which he died.

This suit was brought by the widow, individually, and in her capacity as tutrix of her minor children, to recover damages resulting from the death. As a cause of action, plaintiff alleges that the accident in which deceased was injured was due .solely to the gross fault and negligence of defendant’s chauffeur, and that the negligence of the chauffeur must, as a matter of law, be imputed to his employer, King; that the chauffeur, who was the employee and agent of defendant, while acting within the, course and scope of his employment, invited the deceased, to ride on the truck which invitation placed deceased in the category of an invited guest of the defendant and that as such he was entitled to reasonable and ordinary care for his safety and protection.

The defense is twofold: First, that the deceased was riding on his truck without his knowledge or consent, and that his chauffeur had no authority) express or implied, to invite him to ride, and therefore deceased was not his invitee or guest on the truck, but as to him, was a trespasser; and second, in the alternative, in case the court should hold that deceased was a licensee or a guest on the truck, plaintiff cannot recover because deceased was himself grossly negligent in remaining on the truck after he became aware of the negligent manner in which the chauffeur was handling it, which negligence bars recovery, and therefore, that the deceased assumed all risks.

There, was judgment in the lower court against defendant and he has appealed.

OPINION

Under Art. 2315 of the Civil Code, “Every act whatever of man that causes damage to another obliges him by whose fault it happened, to repair it;” and under article 2320, ‘‘Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed.” It is asserted by plaintiff, and not denied by defendant, that the chauffeur, Jim Shine, was negligent in driving the truck and that the accident was due to his negligence.

This being conceded, the primary question to be determined is whether plaintiffs, under the circumstances of this case, are entitled, to invoke the rule “respond-eat superior,” for it has been held that the ordinary rule of master and servant is to be applied to the relation of chauffeur and owner of an automobile. Valley vs. Clay, 151 La. 710, 92 So. 308. .If it be held that these plaintiffs are not entitled to invoke that rule, their suit falls, of course.

The facts are that defendant is á wholesale merchant, his establishment being at Minden. He uses motortrucks to deliver freight to retailers in neighboring towns. Jim Shine, a colored man, was his chauffeur in charge of one of his trucks, While Shine was in Spring Hill on a mission for his employer, the deceased, Cleveland Jefferson, another colored man, asked the chauffeur’s permission to ride on the truck back to Minden which was granted. On reaching Minden, the chauffeur drove to defendant’s place of business, the deceased riding with him; the chauffeur, with the help of deceased, it seems, reloaded the truck with freight to be delivered at Cotton Valley. When the truck was reloaded and the chauffeur was ready to start on his journey, he suggested to the deceased that he ride with him to Cotton Valley, and deceased thereupon accepted the invitation. The chauffeur says that deceased was then without a home and was looking for a place to live. The invitation was extended as a courtesy and accommodation to deceased, and not for the purpose of getting assistance in hauling the freight. It is not shown whether the chauffeur invited deceased to ride back to Minden, but presumably he did; at any rate, it is conceded that deceased had the chauffeur’s permission to ride. The two started back to Minden on the truck, deceased riding by the chauffeur’s side in the cab. It was about night when they started and was raining. The truck had only one light and it was dim, the windshield became wet and smeared, and the brakes were poor after they got wet. But the accident was not caused by the faulty condition of the lights, brakes, or windshield, but was due to the fact that the chauffeur was tired and sleepy, and, as a result of that physical condition, he temporarily “dozed off,” or lost consciousness between the time he first saw the parked truck ahead of him and the time he reached it. The chauffeur says that he saw the truck on the right-hand side of the road, which was ’ straight, when about 100 yards from it; that he thought at the time it was moving in the direction in which he was going, but it happened to be standing still. He says that he did not notice the parked truck from the time he first saw it until he was within a few feet of it, when he attempted to swerve around it. He testified that he did not know why he did not again notice the truck, but thinks he must have temporarily dozed off and lost consciousness. The road was more than 20 feet wide at that place and there was ample room for the chauffeur to drive around the parked truck.

The inference is that the chauffeur, seeing the tail-light of the truck ahead of him, 100 yards away, and believing the , truck to be moving forward, thought he would not reach it as soon as he did and for a few moments ceased vigilance. When he again looked, he was so close upon the parked vehicle that he could not avoid the collision.

• It is made clear that the defendant was away from home when the accident occurred and knew nothing of it until his return, and that his chauffeur did not have his permission to pick up and carry strangers on the truck, either on this or any other occasion. The chauffeur was asked:

“Q. Did you have any right to pick up this man?

“A. No, sir.

“Q. Was he doing anything in connection With your business?

“A. No, sir.

“Q. You just went out of your way when he asked you to ride — you let him ride?

“A. Yes, sir.”

Counsel for plaintiffs earnestly insists that under these circumstances it must be held that deceased was defendant's guest on the truck, or at least a licensee. We do not think he was either. The defendant did not personally invite him to ride, nor did he license or permit him to do so, and the fact that the chauffeur was employed to operate the truck to deliver freight gave him no right to either invite or permit strangers to ride upon it. He was employed to have charge of and operate the truck for the sole purpose of delivering freight. In all matters pertaining to the use of the truck in the delivering of freight he was, as to the public, the agent and servant of the master, and for any damage done another through his fault, arising as an incident to his duties in connection with the delivery of freight, the master would have been responsible. But, when the chauffeur invited or permitted deceased to ride on his master’s vehicle, which was destined to haul freight and not passengers, he went beyond the scope of his employment. “A servant is acting within the scope of his employment when he is engaged in doing for his master what he has been directed to do.” Any act of a servant which can be reasonably and fairly said to be a natural incident to the employment, or logically and naturally connected therewith, is within the scope of the employment. But when an employee turns aside and does some act in no way incidental to or connected with his employment, such act does not bind the master. By the nature of his employment, the chauffeur was authorized to operate the truck on the streets and highways for the moving of freight and, while so engaged in that business, was, as to the general public, the agent and servant of the master. But, when he extended the invitation or permit to deceased to ride on the truck, he was not pursuing any business of his employer; his act in doing so being an independent private purpose of his own. He was acting as his own master and not as the servant of defendant. Under such circumstances, it has been repeatedly held in other jurisdictions that there is no liability on the part of the master. We quote the following pertinent language from the case of Hughes et al. v. Murdoch Storage & Transfer Co., decided by the Supreme Court of Pennsylvania in 1920, reported in 269 Pa. 222, 112 A. 111:

“The test is, not that, when the invitation was given, he (the chauffeur) was engaged in * * * his master’s business, but was the invitation or its consequence in furtherance of the master’s business, so that it might be said to be impliedly within his authority? The master is bound by the acts of his servant in the course of his employment, but he is not bound by those outside of such employment. The servant (a truck driver) has no right to impose upon his master’s onerous liability by holding him responsible for the safe carriage of any person he may see fit to '¡accept as a passenger. Such persons, so invited, or permitted to ride, should know of this obvious lack of authority from the position the man holds and the character of his employment.”

In the case of O’Leary v. Fash, decided by the Supreme Court of Massachusetts in 1923, reported in 245 Mass 123, 140 N. E. 282, 283, the court said:

“It is an obvious consequence of the principal’s conduct in hiring a man to drive a truck in the delivery of freight that the public have no right to infer and do not understand the principal to confer upon such driver the authority to transport guests. * * *

“The defendant owed no duty to the plaintiff. The latter was not on his truck by his invitation or by the invitation of any one authorized to act for him. * * * The driver from the beginning to the end of his relations with her was acting outside 'the scope of the authority conferred expressly or impliedly upon him by the defendant arising out of the employment. Hence the defendant is not responsible for his conduct. The driver was not the agent of the defendant in that particular. Of course, the driver was in charge of the defendant’s truck, and as to the general public he was the agent of the defendant in driving it.”

The following cases are in point: Tate v. Atlantic Ice & Coal Corporation, 25 Ga. App. 797, 104 S. E. 913; Waller v. Southern Ice & Coal Co., 144 Ga. 695, 87 S. E. 888; McQueen v. People’s Store, 97 Wash. 387, 166 P. 626; Schulwitz v. Delta Lbr. Co., 126 Mich. 559, 85 N. W. 1075; Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn. 688, 91 S. W. 199, 4 L. R. A. (N. S.) 804, 112 Am. St. Rep. 881; Morris v. Fruit Co., 32 Ga. App. 788, 124 S. E. 807; Dougherty v. Chicago, M. & St. P. Ry. Co., 137 Iowa, 257, 114 N. W. 902, 14 L. R. A. (N. S.) 590, 126 Am. St. Rep. 282.

In the case of Valley v. Clay, 151 La. 710, 92 So. 308, 309, the court uses this language: “In order to render the owner liable the chauffeur must have acted within the scope of his employment. Berry on Automobiles, 1032, 1085, 1092; Huddy on Automobiles, p. 809, Sec. 627. The maxim of ‘respondeat superior’ has been considered and applied by us in a number of eases, some of which are as follows: (Citing a long list of authorities).’’

In the same ease, the court said: “If the service be performed in an unlawful, or even a criminal manner, the master is liable, so long as the thing done forms a part of the servant’s duties” — citing Nash v. Longville Lumber Co., 148 La. 943, 88 So. 226. See, also Tinker v. Hirst, 162 La. 209, 110 So. 324.

Counsel for appellee cites a long list of decisions from this and other jurisdictions in support of the proposition that one who invites or allows another to ride on his automobile owes to him the duty of using ordinary and reasonable care for his protection and safety. But those authorities are not in point here because the deceased, as we have shown, had no right to be on the truck, the chauffeur having no right to invite him or make him the defendant’s guest, and therefore as to the defendant, King, was a trespasser on the truck.

In a supplemental brief, counsel says: “But conceding that he was on the truck as a trespasser, it must also be conceded that he was entitled to the rights of a trespasser.”

The rule recognized in this state and elsewhere is that even though one be a trespasser upon the property of another the owner still owes to him the negative duty not to injure him by any willful or wanton act, conduct, or neglect. Whether that rule should be applied and enforced against the owner of a motor vehicle whose chauffeur without authority, express or implied, invites a passenger to ride and while so riding is injured, is questionable. Courts of last resort are not uniform in their holdings on that point. But conceding, without holding, that plaintiffs in this case are entitled to invoke that doctrine, the fact remains that the death of the deceased was not due to any wanton or willful act of the chauffeur. Counsel contends that to constitute willful or wanton negligence it is not necessary to show ill will towards the person injured; and that to make out a case of willful, wanton negligence, it is necessary only to show an entire absence of care for the life, person or property of another — a total and reckless indifference to consequences. Even so, we hold that no such case is made out here.

The chauffeur for the moment ceased to look ahead.' That was due to the fact that he was overcome with fatigue. He thought the vehicle which he had seen on the side of the road ahead of him was moving forward, but was mistaken. When he again looked ahead, he was close upon it. He then did all that he could to avoid the collision, but it was too late. It cannot be said that this conduct •evidences a reckless disregard for the safety of deceased; for the chauffeur was himself exposed to the same danger as was deceased. They were both riding on the same seat, and the fact that Jefferson was killed and not the chauffeur was a mere incident. The chauffeur was injured, but not seriously.

To constitute “wanton negligence,” as that term is used by some of the courts, the party doing the act or failing to act must be conscious of his conduct and, “without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will naturally or probably result in injury.” See Words and Phrases,, First Series, vol. 8, p. 7385, and authorities cited.

Willful negligence has been said to be an “intentional failure to perform a manifest duty which is important to the person injured in preventing the injury.” Words and Phrases, First Series, vol. 8, p. 7484.

For the reasons assigned, the judgment appealed from is reversed and avoided; and it is further ordered that plaintiffs’ demands be rejected and their suit dismissed, at their costs.