text:
    No. 900
    First Circuit
    MILLSPAUGH v. OPELOUSAS COTTON GIN CO., INC.
    (February 8, 1932. Opinion and Decree.)
    E. Y. Boagni, of Opelousas, attorney for defendant, appellant. '
    A. V. Pavy and Robert Harry, of Opelousas, attorneys for plaintiff, appellee.
   LeBLANC, J.

Octave Lewis, a negro employed by the defendant, Opelousas Cotton Gin Company, Inc., was shot by Eastin Nezat, white, a fellow employee, during the afternoon of October 9, 1930, and died as a result thereof on October 11, 1930. His widow, Irene Millspaugh, with whom he was living at the time, contending that he died as a result of an accident and injury which arose out of and in the course of his employment by the defendant, brought this suit for compensation to recover 65 per cent of his alleged weekly average wage of $17 for a period of 300 weeks.

Lewis was the father of two minor children by a prior marriage with one Christine Jones, and the grandmother of these children, Alice Lewis, claiming that they wore entitled to one-half of the amount of compensation which might be due, intervened as their tutrix on their behalf, and making substantially the same allegations in her petition, as did the plaintiff, prayed for one-half of the same amount of compensation.

Prom a judgment in favor of the plaintiffs based on a weekly average. wage of $16, the defendant has appealed.

The contention of the defendant is that the negro Octave Lewis and Easton Nezat who shot and killed him, had engaged in an altercation during the morning which led to the shooting in the afternoon, and that as the negro was the aggressor throughout, it is relieved from liability under paragraph 1 of section 28 of the Workmen’s Compensation Statute of 1914, which provides that “no compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another.” The issue presented then is whether or not Lewis was the aggressor and wilfully intended to injure Nezat, whom the, defendant claims shot in self defense. On that issue it is conceded that the compensation statute places the burden of proof on the employer, the defendant in this case.

Lewis worked at the press in the cotton gin with another man named Ned O’Pry, one of them stationed on each side. In the pursuance of their work, they used a .crow-bar with which to open up the press after the cotton had been pressed into a bale. At the scale right near them, worked a man named Roy Hidalgo who weighed the bale as it came out of the press. The press and scale were on the second floor of the gin. Both O’Pry and Hidalgo testify that Nezat, who it is shown had some authority over Lewis and others, came to Lewis and ordered him to take the crowbar and follow him, whereupon he proceeded at a rather fast walk down the stairs to the first floor. Lewis followed him, carrying the crow-bar as directed to do, and as his head disappeared down the stairs from their view, they heard a noise which they thought was an explosion, but which in reality was the report of the gun shot. Neither heard a word spoken by either Lewis or Nezat before the shot was fired and O’Pry says that immediately following it, he heard a moan or complaint which he understood was uttered by Lewis. Nezat who is the only other witness to testify concerning what took place immediately before and at the time of the shooting, says that Lewis had threatened him during the morning when he had given him some orders, and that afternoon, when he called him to show him a bolt on the packer that had to be unscrewed, he again menaced him, saying, “Yes, I am going to get you now,” and at the same time he “made” for him. He says that he ran downstairs and Lewis grabbed the crowbar and ran toward him ready to strike him; that he warned him three times not to advance further before he shot him.

Nezat’s testimony must, of course, be considered in the light of the circumstances under which he appears as a witness, and really, it is at too great a variance with that given by Hidalgo and O’Pry, who appear to be totally disinterested, to be accepted as the true and correct version of how the shooting occurred. His explanation of how he happened to have brought his shot gun to the gin on that particular day isn’t any more impressive than his account of the shooting. His testimony is all that the defendant offers to show that the deceased employee’s injury and subsequent death was caused by his wilful intention to injure another. On this, the most important issue in the case, the defendant has failed to carry the burden of proof which the statute places on the employer under the section already referred to.

In the case of Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248, the Supreme Court had to deal with the question of the danger of risk incident to the employment of one who may have an enemy among his fellow employees, and by reason of his almost constant contact with such enemy during working hours, being exposed to assault and bodily harm. It was therein held that “obviously, such risk is greater than it would be to a person not engaged in such employment, because such person is not required to be constantly in the presence of an enemy, should he have one.” We believe that the case before us comes under that ruling and that the injury received by the employee, which was an accident within the definition of that term under the statute, arose “out of his employment” and consequently his widow and children should recover compensation.

The amount allowed by the lower court is not questioned, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 942
    First Circuit
    SANDRASS ET UX. v. PICCIOLA BROS. ET AL.
    (February 8, 1932. Opinion and Decree.)
    Harvey Peltier, of Thibodaux, and Daly & Hamlin, of New Orleans, attorneys, for plaintiffs, appellants.
    Howell & Deramee, of Thibodaux, attorneys for defendants, appellees.
   MOUTON, J.

These two cases were consolidated for trial on the same evidence, and will be disposed of in the following decision:

Valence Adam, one of the plaintiffs herein, was, on September 29, 1930, driving a Dodge car from the city of New Orleans towards. Golden Meadows, and Calais was. driving a truck, property of defendants, towards New Orleans, and in the opposite direction.

About a mile below La Rose, a collision occurred at about 8:30 a. m. between the auto and the truck.

Mr. Sandrass and his wife, owners of the Dodge Adam was driving, were seated in the rear with Ethel, a young daughter, and another little child. Mr. Hebert was sitting on the front seat, next to Adam, the driver.

Ethel was killed in the collision, Mr. Sandrass and Mrs. Sandrass were severely injured, also Adam, the driver of the Dodge.

Sandrass and his wife are suing defendants in damages for $20,304.35, and Adam in a separate suit, for $3,041.90.

Hebert, when the collision occurred, was talking to Sandrass, who was on the rear seat. Hebert did not see the accident, and was not called as a witness in the case.

The witnesses are Sandrass, his wife, and Adam, also Calais, who was driving the truck for defendants, Leonard', driver of a bus which was going in the same direction the Dodge was traveling at the time, and Stevens, a passenger on the bus.

Adam was driving the Dodge in the same direction the bus was going, as before stated, turned to his left to go around it to pass ahead, and at about the center of the bus on its left side the collision occurred between Adam’s auto and the truck Calais was. driving in the opposite direction.

The situation thus presented is governed by the provisions of paragraph (a), sec. 15, title 2, Act No. 296 of 1928, which reads as follows:

“The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless, such left side is clearly visible and is free of on-coming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.”

It is shown that immediately or soon before Adam drove to his left to make the turn around the bus, a Ford car, driven by some unknown party, passed ahead of Adam’s Dodge, and succeeded to pass ahead of the bus, and had a hairbreath escape from a collision with the truck, due to the skill of Calais, its driver, in applying his brakes in time to reduce the speed of the truck from thirty to fifteen miles an hour.

In attempting to perform the same feat, Adam unfortunately met the truck about midway of the body of the bus, and the crash occurred.

In his testimony, Adam said, he got close to the bus before he turned to his left, that the road was clear ahead; further says, when he first saw the truck, he was “in the middle of the bus.”

There is nothing to indicate that the roadway was not straight at the point where the collision happened or that there was any obstruction which could have prevented Adam from seeing a good distance ahead of the bus. On the contrary, it appears from the testimony of Stevens, a passenger on the bus, that he saw the truck coming 75 or 100 feet ahead on its right side of the highway. It is therefore evident that, if Adam had looked ahead to see if the roadway was clear, he would unquestionably have seen the truck before getting midway of the body of the bus, where he testified he first saw it. Obviously Adam in going to his left to pass ahead of the bus was proceeding in direct violation of the requirements of the section of the statute, hereinabove referred to, which demands that a driver, situated as. he was, should see that the left side is clearly visible and is free from on-coming traffic for a sufficient distance ahead to permit such passing to be made in safety. To account for not seeing the truck sooner, Adam seems to say that it was coming on its left side of the road, and that he could not see it from the roadway on the left side of the bus. He says, all along his testimony, that the truck was zigzagging, and to that fact more than to any other he ascribes the accident. If it were zigzagging, as claimed by Adam, the zigzagging could not have been only on the left side of the truck, but must have been on both sides, of the highway, and for that reason Adam should have seen it before he reached the “middle of the bus.” This matter is, however, cleared up by Adam in his testimony where he subsequently said that the truck was about ‘TOO feet” from the bus when he saw it zigzagging “from one side of the road to the other.” Hence it must have been zigzagging from one side to the other, as. we have before stated, and the fact is our deduction is confirmed by Adam, who says he saw it zigzagging 100 feet ahead of the bus. Having seen it coming towards him in a zigzagging movement, it was certainly a rash act on the part of Adam to attempt to pass ahead of that bus in front of the on-coming truck which had the right of way. Such an attempt was peculiarly reckless in the instant case, as it appears, that the roadway was only 22 feet 2 inches wide, including the dirt shoulders, each 2 feet in width, thus leaving about 18 feet for the graveled portion. The bus, it is shown, was 7 feet wide, and Adam’s Dodge about 6 feet in width, a combined width of 13 feet between the two, thus leaving about 6 feet of gravel for the passage of another auto or truck on the left side of the bus.

The record shows besides that it had rained and that these shoulders were soft and over which it would have been quite risky for a car or auto to pass on if pressed by two other vehicles. It is shown that the bus was. then going at a speed of about 35 miles, and it is therefore safe to say that, as Adam had overtaken it, his auto was moving at not less than 40 miles an hour. As these two were traveling at that rate, it would have been extremely dangerous for another going either way in an auto to have ventured to pass on the left side of the bus. where the impact occurred.

Leonard, driver of the bus, and Stevens, passenger thereon, both testify, that the truck which they saw ahead was coming on its right-hand side of the road, and was not zigzagging, as was testified to by Adam, and which, from his evidence, he seemed to think had been the cause of the collision.

Considering this case from every possible angle, we cannot reach any other conclusion, after careful analysis of the facts, but that the accident was the result of the fault and inexcusable negligence of Adam, driver of plaintiffs’ car, and that their demand for damages was properly rejected.

RECONVENTION

Defendants are claiming $479.50 in re-convention, $279.50 for repairs, to the truck, and $200 for rental of another truck.

Numa Jeandrone, operating a garage, was called in as a witness by defendants to establish an estimate of the damages to the truck. It was shown by him that the repairs were not made for defendants, but had been made for the auto service station. It seems that the truck was. traded in to Jeandrone or the auto service corporation, and that an allowance of $150 was made on the truck. He could not tell what the cost had been for the repairs, and says he sold it, after it had been repaired, for $350. If the repairs had amounted to $279.50, which defendants are claiming in reconvention, there must not have been much truck involved originally.

With that character of evidence, it would be hard to fix with any approach to legal certainty the sum which defendants would be legitimately entitled for the repairs they are asking.

Even if we thought that defendants were entitled to recover on their reconventional demand on the grounds urged by them, for the reasons above stated no judgment could be rendered on their claim in reconvention, which we find was correctly rejected.


text:
    No. 943
    First Circuit
    ADAM v. PICCIOLA BROS. ET AL.
    (February 8, 1932. Opinion and Decree.)
    Harvey Peltier, of Thibodaux, and Daly & Hamlin, of New Orleans, attorneys for plaintiff, appellant.
    Howell & Deramee, of Thibodaux, attorneys for defendants, appellees.
   MOUTON, J.

For the reasons given in the case of Alexander J. Sandrass and wife v. Picciola Brothers et al., 19 La. App. 80, 139 So. 725, the judgment rejecting plaintiff’s demand herein appealed from, is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,141
    Orleans
    CITIZENS’ BANK & TRUST CO. v. J. D. MAHONEY TRANSFER CO., INC., ET AL.
    (February 15, 1932. Opinion and Decree.)
    Delvaille H. Theard, of New Orleans, attorney for plaintiff, appellee.
    Andrew B. Booth, Jr., of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

Plaintiff bank filed a petition in the civil district court in which it alleged that the J. D. Mahoney Transfer Company, Inc., is a Louisiana corporation, domiciled in New Orleans; that Loker Brothers, Inc., is a Louisiana corporation, domiciled in New Orleans; that David C. Loker is of full age and a resident of the city of New Orleans; that Raymond Loker is of full age and a resident of the city of New Orleans; “that petitioner is the holder of the note hereto annexed; wherefore the premises considered, petitioner prays that the said J. D. Mahoney Transfer Company, Inc., and Loker Bros., Inc., and David C. Loker and Raymond Loker may be duly cited to appear and to answer the present petition, and that, after due proceedings, petitioner may have and recover judgment in its favor and against the said J. D. Mahoney Transfer Company, Inc., and Loker Bros., Inc., and David C. Loker and Raymond Loker, in solido, in the full sum of $1,300.00, with interest at eight per cent thereon from January 24, 1924, together with attorney’s fees of ten per cent on the aggregate of said principal and interest, and for all costs.”

To this petition all parties defendant filed an exception of vagueness and of no cause or right of action. The exceptions were overruled, whereupon the J. D. Ma-honey Transfer Company, Inc., answered, setting up that in view of the fact that the note sued on was not made part of the original petition, but merely annexed thereto, it should not be required to answer, but, in the alternative, pleaded the want of authority of its president, J. L. Mahoney, to borrow the money from the plaintiff bank, and that, in so far ¿s it was concerned, the note was without consideration, none of the money represented by the note having been received by it. The other defendants also answered that they should not be required to plead in view of the fact that the note was not made part of the petition and, in the alternative, set up. want of consideration.

Upon the trial of the case objection was made to the offer of the notes sued on upon the ground that “there are no allegations in the petition which permits the offer, or occasions the basis for the offer.” The objection was referred to the merits and the case submitted on behalf of all parties, no effort being made by defendants to prove their plea of want of consideration, or other defense.

Judgment was entered for plaintiff, as prayed for, and the defendant J. D. Ma-honey Transfer Company, Inc., alone appealed.

The position of appellant is that plaintiff’s petition, having failed to state a cause of action because “there is not one line which would acquaint the defendant, or any other person who may read the nature, kind, date, date of payment or amount, or any kind of description whatsoever which would identify the note alleged to be sued on, nor is the note alleged to be sued on at all described or made part of any allegation in the petition,” its pleadings are defective, and cannot be cured by evidence administered over defendant’s objection. Calumet Baking Powder Company v. Fazende, 3 Orleans App. 282.

The petition, without the note, is almost barren of allegation and certainly inadequate in view of the requirements of Code of Practice, article 172, to the effect that “the petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the title, or the cause of action on which it is founded.”

It is conceded that, if the petition had stated that the note annexed was. made part of the petition, there would have been no question of its amplifying the petition, which would then be unobjectionable, but, it is said, annexing a document and making it a part of the pleadings is a totally different thing. Plaintiff’s counsel, referring to this contention, says that when documents are annexed to a petition they form part of it without the necessity of any allegation to that effect. He cites in this connection articles 174, 175, and 176 of the Code of Practice.

In the early case of Gray v. Commercial Bank of New Orleans, 1 Rob. (La.) 533, which was a suit on bank notes issued by the defendant, which were annexed to the petition, it was held that “although not made a part of the petition, they [the notes] might be referred to, with a view of enabling the defendants to shape their defence.”

In D'Invilliers v. Second Municipality of New Orleans, 5 Rob. (La.) 123, the court said:

“An exception to the sufficiency of the description in the petition of the notes, sued on, will be overruled, where the notes themselves are annexed to the petition for reference.” (Syllabus.)

In Lockhart v. Morey, 41 La. Ann. 1165, 4 So. 581, 582, an account annexed to a petition “for reference” was held sufficient, because it "stands as an amplification of the petition, and justifies the admission of proof in support of the items figuring upon it.”

In J. B. Camors & Co., Inc., v. Crescent Grocery Co. et al., No. 9340 of this court, decided November 12, 1923, Opinion Book No. 65, unreported [see Louisiana and Southern Digest], it was decided that the failure to make certain annexed documents a part of the petition could not be made the subject of an exception of no cause of action since “the note, being annexed to the petition, required no description.”

Guillot v. Wilhelm Moss Co., 5 La. App. 749, was a case holding that:,

“Where a petition contains an allegation of a contract, the contract being attached to the petition * * * an exception no cause of action is properly overruled.”

But, in C. Lee McMillan & Co. v. Mills, 3 La. App. 9, it was held that the filing of a document with the petition, without annexing it, or making it a part, was insufficient.

Also, in Tremont Lumber Co. v. May, 143 La. 394, 78 So. 650, the court held that documents annexed to and made part of a petition are considered as read in the petition, but that documents cafinot be considered as amplifying the petition which are merely made part by reference. In this case the document in question was an assessment roll, which was not filed with the petition, but simply referred to.

In Carr v. Crow, 10 La. App. 237, 120 So. 783, documents “attached” to the petition were considered as a part thereof.

Prom the foregoing it appears that the jurisprudence is not altogether harmonious, but its weight is clearly to the effect that the mere annexing of documents is sufficient to make them part of a petition. In the case at bar the effect of maintaining an exception of no cause of action based upon insufficiency of allegation would be to remand the case to permit additional averments. In view of the fact that the case has been tried upon its merits, with the note in evidence, and an opportunity for defense afforded, we would not be inclined to send it back for further trial. Happily, however, there is, we believe, ample authority for the action of the trial court in overruling the exception of no cause of action, and its judgment to that effect will, for the reasons. herein given, be affirmed.


text:
    No. 13,868
    Orleans
    D. H. HOLMES CO., LTD., v. KRON
    (February 15, 1932. Opinion and Decree.)
    Frymire & Ramos, R. R. Hagen and C. L. Stiffen, of New Orleans, attorneys for plaintiff, appellant.
    Henry J. Rhodes, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff appeals from a judgment dissolving a seizure of defendant’s wages under garnishment process. The lower court held that defendant was a laborer and his earnings exempt from seizure under article 644, Code of Practice, as amended by Act No. 79 of 1876 and Act No. 184 of 1918.

Defendant is employed by the United Shoe Machinery Company at a weekly salary of $19. His duties, as stated by himself, consist of keeping the warehouse “where we ,work at clean” and opening “boxes of stuff that comes in and I stack it upon the shelf.” He also testified that he helped the shipping clerk and, when he is told to, makes out order blanks for the shipping clerk and “slips” for the delivery of packages.

The contention of plaintiff is that, in helping the shipping clerk and in making out orders for delivery of packages, defendant must be considered to be a clerk and not a laborer.

In Commercial Credit Company v. Parrett, 6 La. App. 423, where we held that a motorman was a laborer, the subject is reviewed at length. We said in that case •that the fact that a laborer in the discharge of his duties must exert some mental effort does not affect his status as a laborer and render his wages subject to seizure. In other jurisdictions, it has been held that a shipping clerk, an overseer, a forwarding clerk, a private secretary, a teacher, and a telephone operator are laborers within the meaning of acts exempting the wages of laborers from garnishment. See authorities cited in Commercial Credit Co. v. Parrett, supra.

In the instant case defendant received $19 a week for opening boxes and putting their contents on shelves, and for helping the shipping clerk occasionally. It seems clear to us that the trial court properly held that he was a laborer within the meaning of our laws exempting laborers’ wages from seizure under garnishment process.

For the reasons assigned the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 13,875
    Orleans
    RELIABLE MOTOR CO., INC., v. MARYLAND CASUALTY CO.
    (February 15, 1932. Opinion and Decree.)
    Weiss, Yarrut & Stich,- of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Reliable Motor Car Company, Inc., domiciled in Lake Charles, La., and formerly known as “Nash Sales Company,’’ had in its employ, as a salesman, a' Mr. Brown, who, in attempting to sell automobiles, called on J. J. Beeson, who lived at Pitkin, La., some eighty miles, or so from Lake Charles. He was unable to make a sale to Beeson, but, discovering that Beeson’s automobile needed certain repairs, he prevailed' upon either Beeson or his wife to let him take the car to the shop of his employers at Lake Charles in order that the repairs might be made. While he was driving it from Pitkin to Lake Charles a collision took place with a horse which crossed the road and the automobile was somewhat damaged. Brown brought the car to the place of business of his employers and notified Beeson of the accident.

Beeson carried a policy of collision insurance which had been issued by defendant, Maryland Casualty Company, and he therefore notified that company of the damage to his car. An adjuster of the insurance company, who was in Lake Charles, undertook to adjust the claim and, after an investigation authorized the Reliable Motor Company, Inc., to make the repairs, the cost of which amounted to $330.45.

The insurance company now refuses to pay the bill for the said repairs, claiming that, when its. adjuster authorized the garage company to do the work, he was not aware of the fact that, at the time of the collision, Brown, who was driving the automobile, was an employee of the garage company and was acting within the scope of his employment as its servant, and further contending that the said adjuster was improperly and fraudulently imposed upon by the said Brown who stated that, at the time of the accident, he had been acting as. the agent of Beeson, the owner of the car, instead of disclosing the fact that he was the agent of the garage company.

The insurance company maintains that, had its investigator not been misled in the particular mentioned, and had he known that the driver of the car was an authorized employee of the garage company, he would not have agreed that his company would pay the bill, because he would have taken the position that the garage company was liable for the damage, since it was caused by the negligence of its employee, Brown, while acting within the scope of his authority.

The garage company asserts that, had it known that there was any doubt as to payment by the insurance company, it would not have made the repairs voluntarily, and it avers that the accident was not caused by the negligence of its employee, but resulted from the defective condition of the car, which condition was unknown to the said employee, Brown, and that, since 'the accident was caused otherwise than by the negligence of Brown, it would not have been liable therefor, or, at any rate, would have been able on this ground to defend an action against it.

When the adjuster authorized the garage company to make the repairs and agreed that his company would pay therefor, the garage company’s officials’ were justified in assuming that the adjuster had made an investigation satisfactory to him and they were warranted in believing that there was to be no claim against their company, since surely, if there was any reason for the adjuster to feel that the garage company was liable, or that a claim might be made against them, that was the time at which he should have spoken, because that was the time at which the garage company could itself have made a thorough investigation and could have prepared its defense. By agreeing to pay the damage the adjuster lulled the officials of the garage company into a sense of security and, unless it can be shown that the adjuster was imposed upon by some authorized representative of the garage company, it cannot be said that the garage company was responsible for any .error into which the adjuster may have fallen.

When the adjuster received information that the accident had happened, he was told over the telephone by the owner that the automobile was in Lake Charles and he was requested to make the adjustment there. He (the adjuster) does not state that he was informed by any official of the garage company as to the capacity in which Brown was acting in driving the car. He contented himself with obtaining his information from Brown alone, the garage company’s employee who had driven the ear at the time of the accident. It does not appear that any official of the garage company referred him to Brown or that any official told him that Brown could give him full information. In fact, so far as the testimony of the adjuster shows, and so far as we can ascertain from the copy of his report which, by agreement, we now find in the record, he did nothing except seek out Brown and obtain from him a statement in which he (Brown) said that he was acting as the agent of- Beeson. This was a legal conclusion drawn by Brown, and it would have been a very simple matter for Parnell, the adjuster, to have obtained all the facts by discussing the matter with Beeson and with the officials of the garage company. Instead of doing so, however, he limited himself to a discussion of the matter with Brown, an employee, who, so' far as the garage company was concerned, had been authorized to drive the car, but certainly was not authorized to draw legal conclusions in matters involving possible legal liability of his employers.

We have no doubt that, in authorizing plaintiff to make the repairs, defendant’s adjuster acted on an erroneous, conclusion to which he had come as the result of statements made by Brown, but we do not believe that it can be said that he was imposed upon to such an extent as to prevent plaintiff from recovering for making the repairs, which he (the adjuster) authorized.

His honor below was of the opinion that the defense should prevail, but, in this, we think he was in error.

The amount of the bill was $330.45, but in order to bring the suit in the First city court plaintiff remitted the sum of $30.45, making the total amount of its claim $300.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against defendant in the full sum of $300, with legal interest from judicial demand and for all costs.


text:
    No. 13,892
    Orleans
    FRANZ v. R. P. FARNSWORTH & CO., INC.
    (February 15, 1932. Opinion and Decree.)
    Prowell, McBride & Ray and Welton P. Mouton, of New Orleans, attorneys for plaintiff, appellee.
    Harry M. Mayo, Jr., and Frank T. Doyle, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff is the owner of the premises No. 228 North Rampart street. She brings this suit against R. P. Farnsworth & Company, Inc., a contracting firm, for damages, alleged to have been caused to her property by the defendant as the result of the removal of a party wall between her property and a building known as the Young Men’s Gymnastic Club, which was demolished by defendant in the execution of the contract which it had for the erection of a new building. The amount claimed is $167.30, for which plaintiff obtained judgment, as prayed for below, and defendant has appealed.

It appears that, prior to the destruction of the party wall, plaintiff and defendant entered into an agreement, whereby the defendant undertook to indemnify plaintiff for any damages which might be caused •thereby. Plaintiff’s claim is resisted upon the ground that the damages claimed did not result from the destruction of the wall, but were repairs made necessary by the condition of plaintiff’s property existing before the removal of the wall.

The record is unusually large, considering the amount involved, and the case has been vigorously- prosecuted and defended by able counsel. After a consideration of the conflicting testimony, it is our opinion that the trial court correctly found that the evidence preponderated in favor of the plaintiff. Consequently, and for the reasons herein assigned,

The judgment appealed from is affirmed.


text:
    No. 13,906
    Orleans
    COSEY v. DAN W. FEITEL BAG CO., INC.
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    Samuel J. Tennant, Jr., of New Orleans, attorney for plaintiff, appellant.
    Edward Rightor and W. H. Sellers, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a young negro woman, was injured under circumstances admittedly entitling her to compensation at the rate of $7.80 per week, which was paid to her for two weeks following her injury and thereafter discontinued. In this suit judgment is asked for four hundred weeks beginning May 15, 1926, at the rate of $7.80 per week subject to a credit of two weeks.

There was judgment below in favor of defendant dismissing plaintiff’s suit, and plaintiff has appealed.

Plaintiff was an employee in a bag factory operated by defendant and, on the 14th day of May, 1926, while passing a chute, was struck by a bale of burlap which had been thrown down the chute. Her right arm and shoulder were hurt, with the result, it is claimed, that she suffered paralysis of the extensor muscles. Her physician testified as follows:

“I found her suffering with chest sunken in, a fracture of several ribs at the sternal end, the sternal smashed. She has suffered severe pains 'caused by pressure against thoracic viceries causing difficult breathing and disturbances of heart action, severe pains in the arm and shoulder.”

He states that he saw plaintiff about one hundred forty times over a period of four years, during which this suit was pending, and that she was disabled during this period. Two other physicians testified for plaintiff to the effect that there was a form of paralysis of plaintiff’s extensor muscles affecting her right arm.

On behalf of defendant two physicians' appeared, one of whom, Dr. John T. O’Ferral, was, upon the request of defendant’s counsel, appointed by the court as an expert to examine plaintiff and report upon her condition. His report is in the record and is to the effect that plaintiff suffered no paralysis whatever, giving his reasons for his. findings in this respect. However, he finds that plaintiff undoubtedly suffered a total disability as a result of the accident which he estimates must have continued from six to 'twelve months. Plaintiff’s counsel apparently concedes the correctness of Dr. O’Ferral’s conclusion on the question of actual paralysis, but contends that plaintiff had, nevertheless, and still has, “a post-traumatic neurosis in which the patient will suffer from a hysterical paralysis.” Some of the medical testimony supports the proposition that such conditions sometimes occur, but there is no showing in the record which would justify a conclusion that -this patient was afflicted with hysterical paralysis. Dr. Cessner, the- other physician placed upon the stand by defendant, testified that a patient suffering with hysterical paralysis when submitted -to the electrical test (Fa-radio current) would, under the influence of the consequent electrical stimulation, contract the muscles controlling the limb. Plaintiff when submitted to the Faradic current exhibited normal muscular contraction.

We conclude, therefore, that plaintiff’s arm was not paralyzed as a result of the accident. She was, however, seriously injured, and considering all of the expert testimony we are of the opinion that she should he allowed compensation for a period of fifty-two weeks.

For -the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Mrs. Anna Cosey, wife of Alex Dixson, and against defendant, Dan W. Feitel Bag Company, Inc., for fifty-two weeks beginning May 15, 1926, at the rate of $7.80 per week, together with legal interest on each installment from its due date subject -to a credit of $15.60 covering two installments, and for all costs.


text:
    No. 13,930
    Orleans
    MELDE TILE ROOFING CO. v. MARTINEZ ET AL.
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    W. J. & W. H. Waguespack, of New Orleans, attorneys for plaintiff, appellee.

      Chas. M. Ward and J. A. Morales, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

The Melde Tile Roofing Company, Inc., is engaged in the roofing business in New Orleans. Acting through its president, it entered into a contract under which it agreed, for the sum of $525, to install a red cementile roof on the double residence referred to in the contract as being “owned by J. P. — C. B. — A. B. Martinez.”

The roofing company completed the contract and thereafter discovered that the land on which the said building had been erected was, owned by the Jose Land Company and not by J. P. — C. B. — A. B. Martinez as the contract stated.

The contract was signed on behalf of the owners only by Dr. J. P. Martinez, who, it is admitted, is the “J. P. Martinez” referred to in the contract as one of the owners. The Jose Land Company is shown in the record to be a family corporation, the. stock of which is owned practically exclusively by Dr. J. P. Martinez, his mother, Mrs. J. P. Martinez, and his. sister, Mrs. Angela Martinez McNally.

Plaintiff company made no effort to collect the bill from the corporation shown to be the owner of the property on the conveyance records, but sought a judgment against Dr. Martinez, his mother and his sister, alleging that when Dr. Martinez signed the contract he did so on behalf of himself and his two above-named relatives. It is thus contended that he was, acting as the agent of his mother and his sister and that thus all three were thereby made liable solidarily.

Mr. Melde, the president of the roofing company, states that it is not customary to examine realty titles prior to entering into contracts for placing roofs, on buildings, and we see no reason why a roofing company should do so. When Dr. Martinez made the contract with the Melde Company, the contract itself shows that he represented himself and two other persons to • be the owners of the property, and he thus made himself liable and also rendered liable such other persons as he had authority to represent.

There is no proof in the record as to the authority of Dr. Martinez to represent his sister and but little as to his authority to represent his mother, but we find that Mr. Melde states that Mrs. Martinez, the mother, admitted to him that she was one of the owners; that her son had authority to represent her; and that everything he did was satisfactory to her. Dr. Martinez denies that he had such authority, but in the absence of any denial by the mother that she made such an admission the testimony of Mr. Melde on this point is sufficient to warrant a judgment against her. The record, however, is, entirely barren of any proof as to the authority of Dr. Martinez to represent his sister. The mere fact that he, in signing the contract, inserted her initials as one of the owners, cannot render her liable.

The trial court rendered judgment against all three defendants, but we think the judgment was erroneous in that it included as one of the parties cast, Mrs. Angela Martinez McNally, and to that extent it must be amended.

It is therefore ordered, adjudged, and decreed that the judgment in so far as it is against Mrs. Angela Martinez be and it is annulled, avoided, and reversed and that plaintiff’s suit as against Mrs. McNally be dismissed. In all other respects the judgment is affirmed.


author: HIGGINS, J.

text:
    No. 14,037
    Orleans
    FULLER v. MOORE
    (February 15, 1932. Opinion and Decree.)
    • Thomas Tomeny, of New Orleans, attorney for plaintiff, appellee.
    Henry G. Neyrey, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit to recover damages alleged to have resulted from an intersectional automobile collision at the corner of Washington avenue and Howard street on February 21, 1930.

The petition alleged that, while plaintiff’s car was stopped on the roadway adjacent to the neutral' ground of Howard street, defendant’s car swerved over and ran into it while running in excess of 30 miles per hour.

Defendant denied liability, and pleaded contributory negligence, and, in reconvention, averred that the accident resulted from the negligence of the plaintiff in operating his car at an excessive rate of speed; in failing to stop on the neutral ground and to blow his horn in compliance with the provisions of the traffic Ordinance No. 7490, C. C. S., and in driving on the wrong side of the street.

There was judgment in favor of plaintiff as prayed for and dismissing the reconventional demand. Defendant has appealed.

The record shows that plaintiff was driving his Whippet coupe automobile on Washington avenue, a two-way paved thoroughfare, in the direction of the lake; that defendant was driving a five-passenger Dodge sedan uptown on Howard street, which has a neutral ground in the center, on which are located street car tracks and paved roadways on each side; that these two streets intersect at right angles; that the traffic light had been turned off, as it was 11:30 p. m.; that the weather was clear and the street was dry; that the automobiles collided in the intersection on the lake side of Howard street, the left front wheel and fender of defendant’s car striking the right front side of plaintiff’s car. The Whippet car came to rest in the roadway of Washington avenue adjacent to the uptown lake side of the neutral ground on Howard street. The Dodge sedan stopped 45 feet from the point of collision up Howard street on an angle of twenty-five degrees facing the lake sidewalk curbing of Howard street.

In proof of the allegations of the petition, plaintiff, age 29 years old and a salesman for the Loose-Wiles. Biscuit Company, and the young lady, who was riding as a passenger in' his car, testified that the Whippet car had come to a full stop on the neutral ground roadway of the intersection with its front end about even with the Howard street uptown roadway when defendant’s car, coming up Howard street at a very fast rate of speed, ran into it. Plaintiff says that defendant’s, car stopped about 170 feet from the place of impact, the young lady estimates it at a considerable distance, but the distance is fixed by defendant’s sole witness other than himself as 45 feet. Defendant says he stopped within 20 feet.

Defendant, as. a witness in his own behalf, admits that he approached the intersection at a rate of speed of 25 miles per hour; that he did not see plaintiff’s ear until it had crashed into his car, but says that, as he neared the intersection, he looked to his right and left' 'for traffic, slowed down to about 10 miles per hour. and looked at the traffic light to see if it was working, then accelerated his. car to 15 miles per hour, and at that time the collision occurred.

Nellie Andrews, the only other witness for defendant, testified that she was standing on the uptown lake corner of the intersection; that she noticed the defendant’s car approaching the intersection at about 25 miles per hour; that she did not see the collision, and was first attracted by hearing the crash. Both defendant and this witness admit that, after the accident, plaintiff’s car was in the roadway adjoining the neutral ground in the intersection.

We experience little difficulty in arriving at the conclusion that defendant was guilty of- negligence because he admits that he did not see plaintiff’s car at all until the moment of impact. There was nothing to intercept his view, and the lights on plaintiff’s car were burning; therefore, if defendant had been keeping a proper lookout, he would have seen plaintiff’s car.

It also appears to us that defendant’s car was being operated at an excessive rate of speed, because defendant’s own witness estimates that he stopped his car 45 feet from the point of collision.

As to whether plaintiff was guilty of contributory negligence, it appears to us that the preponderance of the “evidence shows that his automobile came to a full stop on the neutral ground roadway with its front end approximately even with the curbing of the neutral ground towards the lake side. It is true he did not ■ sound his horn, but it was not necessary for him to do so, because he was according defendant the right of way. The provisions of the traffic Ordinance No. 7490 C. C. S., require an automobile leaving the neutral ground to first come- to a full stop, and, secondly, to blow its born for tbe purpose of acquiring tbe right of way. Therefore, since plaintiff was conceding defendant the right of way, the provisions of the traffic ordinance in question are not applicable.

There is no merit in defendant’s contention that plaintiff was driving on the wrong side of the street.

The only circumstances in the case which at first, appeared to us to be contrary to plaintiff’s position are those shown by the photographs of defendant’s car. These pictures show that the left front wheel was damaged, the hub cap knocked off, and the left front fender from about slightly past the middle to its rear was bent back. The defendant contends that this indicates that plaintiff’s car struck his, and therefore it was not stopped at the time of the collision. We believe the explanation of these physical facts is that defendant’s car was traveling very close to the neutral ground curbing; that the bumper of plaintiff’s car extended slightly beyond that point; that the left front hub cap of defendant’s car and the right front portion of the bumper on the Whippet became engaged, causing the cars to be drawn together, with the result that the front wheel, fender, and running board of the Dodge sedan were damaged, as indicated by the photographs.

We have reached the conclusion that plaintiff was free from fault.

In cases involving only questions of fact and conflicting testimony, the burden rests on the appellant -to show affirmatively that the judgment appealed from is manifestly erroneous. Pisciotte v. Indemnity Co., 164 La. 260, 113 So. 840; Livingood v. Planters Oil Mineral Co., Inc., 8 La. App. 37.

The bill covering the damages to plaintiff’s car amounting to $114.85 is admitted by defendant to be correct, but the claim of $25 for rental of a car to be used in his business is disputed. Plaintiff testified that he paid the sum of $25 for the rental of a car to be used in soliciting orders for his employer. There is no evidence in the record to contradict this statement, and, as the trial judge allowed this item, we see no reason to disturb his finding in that respect.

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


author: MO'UTON, J.

text:
    No. 899
    First Circuit
    INTERSTATE ELECTRIC CO. v. SLIMAN
    (February 8, 1932. Opinion and Decree.)
    Sandoz & Sandoz, of Opelousas, attorneys for plaintiff, appellant.
    L. L. Perrault, of Opelousas, attorney for defendant, appellee.
   MO'UTON, J.

Plaintiff company sues defendant on open account for $110.06, with legal interest, for wares and merchandise sold and delivered to him.

The real issue presented for solution herein is as to the proper application of a check sent by defendant to plaintiff company drawn October 15, 1926, for $56.72.

Two ledger statements copied from plaintiff’s original entries were filed by defendant.

The first ledger shows the settlement of an old disputed account before the present controversy arose between the parties in this suit. The second ledger statement shows the present account and on which this suit is brought. This second account began on August 14, 1926, as appears from the first item carried thereon.

The check for $56.72 was drawn on October 15, 1926, and was received by. plaintiff October 19, 1926, more than two months after the second account was opened.

Tugel, auditor for plaintiff company, says that this check for $56.72 was given in settlement of the old account and defendant says it was not, hut should he applied to the present account.

This statement of defendant is corroborated by the fact that the check was received by plaintiff after the opening of the second account.

The lower court evidently accepted the version of the payment given by defendant, and rendered judgment against him for $2.50 admitted to be due, and for costs Which had accrued when that amount was deposited in the registry of the court.

On this finding, which is based on a pure question of fact, we do not find any manifest error to warrant a • reversal.


author: ELLIOTT, J.

text:
    No. 922
    First Circuit
    GOUSOULIN ET AL. v. LAKE CHARLES STEVEDORES, INC.
    (February 8, 1932. Opinion and Decree.)
    Hawkins & Pickrel, of Lake Charles, attorneys for plaintiffs, appellants.
    Moss & Siess, of Lake Charles, attorneys for defendant, appellee.
   ELLIOTT, J.

Albert Gousoulin, a longshoreman employed by Lake Charles Stevedores, Inc., while working for his employer on the Lake Charles docks, received on. . March 27, 1931, an accidental injury, which on April 12, 1931, resulted in his death. Mrs. Anna Gousoulin, his widow, individually and acting for her children, Elaine, Ralph, Leona, Albert, Harry and Murphy Gousoulin, all minors, born of her marriage with the decedent, brought suit against Lake Charles Stevedores, Inc., for compensation. She alleges that his wage was 65 cents an hour; that he worked eight hours per day and seven days a week, and that she should therefore be paid 65 per cent of a weekly wage of $20 per week for a period of 300 weeks, together with funeral and burial expenses.

The only dispute is in regard to the daily rate of pay at which the compensation should be computed, due to the irregularity of the work in which the decedent was engaged and the varying wages to which he was entitled.

Defendant avers that the compensation should be fixed at 65 per cent of an average weekly wage of $16.05, which amounts to $10.29. This amount is offered by defendant for 300 weeks, and funeral and burial expenses, not exceeding $150. The lower court acting on the case fixed the compensation as defendant claims it should be. The plaintiff has appealed.

Albert Gousoulin was employed by the hour, and he was only entitled to pay for the hours that he worked, and according to a scale of wages which was fixed by an agreement between the longshoremen’s union, to which he belonged, and the Lake Charles Stevedores, Inc., by whom he was employed. His work was irregular, in the matter of time. His wage was also dependent on whether the ship which he was loading or unloading was ocean-going or coastwise. The evidence shows that eight hours were considered a day’s work. If he worked more than eight hours, the excess was oyertime. If the work was on an ocean-going vessel, his wages were 65 cents an hour and $1 an hour for overtime. For coastwise vessels he received 60 cents an hour and 90 cents an hour for overtime. Sometimes he served as a foreman, for which service he received an extra 10 cents an hour. Some days he worked only a few hours; some weeks, only a day or two; during other weeks he worked from 3 to 5 days. Occasionally he worked every day in the week and now and then on Sundays.

The following statement in the opinion of the lower court is a correct summary of the evidence on the subject:

“As a member of the longshoremen’s union and under their agreement with the defendant, Gousoulin worked when, and only when, there were ships in port to load or be unloaded. Ships came in at irregular times and Gousoulin had to hold himself in readiness to work 7 days a week and at any time during the day or night. He usually had several hours no,tice of the arrival of a ship and of the fact he was needed to work. Had he not reported for work when called, he would have lost his job, and he was therefore unable to work at any other job, when ships were not in port.”

Act No. 20 of 1914, sec. 8, par. 3 (amended by Act No. 242 of 1928, p. 361) provides:

“The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury. * * * ”

His compensation was dependent on so many contingencies and varied so greatly from day to day, from week to week, and from month to month, that some kind of an average must be adopted. The language in the latter part of the enactment uses the word “daily,” but, in the first part o£ the enactment, the compensation is based on a weekly wage. Por instance, the compensation that a man receives for the loss of a finger, a hand, an arm, a foot, or on account of a partial or temporary or total disability, is fixed by the statute according to his weekly earnings. In this instance the decedent had been working for 56 consecutive weeks; therefore the district judge in fixing the compensation due the plaintiff took her husband’s weekly earnings for 56 weeks, ascertained his average weekly earnings during the total time he had worked and according to which he had earned during said time an average weekly wage of $15,83%, and, 65 per cent of same being $10.29, the court fixed plaintiff’s compensation at this amount for a period of 300 weeks.

The method adopted by the lower court appears to us to be just to the plaintiff and defendant. The plaintiff suggests other ways in which her compensation should be fixed, but such methods of computing compensation would result in giving the plaintiff compensation greater then the amount her husband had ever earned, and therefore would be unreasonable.

The term “daily wage’’ used in the law was taken into account by the court in a number of cases. Dick v. Gravel Logging Co., 152 La. 943, 95 So. 99; Danzy v. Crowell & Spencer Lumber Co., Ltd., 16 La. App. 300, 134 So. 267; Boyett v. Urania Lumber Co., 8 La. App. 132. And a construction similar to the present was adopted. The allowance of $150 on account of funeral and burial expenses is not contested.

The judgment of the lower court is correct.

Defendant appellee to pay the cost in the lower court; plaintiff appellant the cost of appeal.


text:
    No. 896
    First Circuit
    LOUISIANA HIGHWAY COMMISSION v BOUDREAUX
    (February 8, 1932. Opinion and Decree.)

      L. L. Morgan and A. S. Cain, Jr., of New Orleans, D. M. Ellison, of Baton Rouge, L. Austin Fontenot and Leon S. Haas, Jr., of Opelousas, attorneys for plaintiff, appellant.
    George K. Perrault, of Opelousas, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff obtained the expropriation of a small strip of land for a right of way against defendant, in whose favor a jury rendered a verdict of $809 for the value of the land taken and damages.

Plaintiff appeals, claiming that the amount allowed should be reduced. This presents the vital issue in the case.

The farm of defendant over which the roadway has been taken contains 23% acres. The road runs along the southwestern corner of the tract, cutting off on the west side, leaving a small strip measuring 1.32 acres, and, on the east side of the roadway, 20 acres, being the remainder of defendant’s farm. The roadway proper takes 1.69 acres. Defendant claims that his land is worth $100 an acre. A large number of witnesses testified on this proposition, some .testifying it was worth that amount, others that it was not.

In the case of City of Shreveport v. Pedro, 170 La. 351, 127 So. 865, the court said that a jury of freeholders in expropriation proceedings to some extent, are experts, and have authority to rely on their own opinions, as. well as on the testimony adduced • before them. The court said further that their verdicts are entitled to great respect, and should not be interfered with except in case of gross or manifest error, citing a long list of decisions in support of its conclusions.

In view of that ruling, we do not think the evidence warrants a reduction of the amount of $169 allowed by the jury for the 1.69 acres expropriated for the roadway. This item was allowed under article 11 of defendant’s reconventional demand.

The cutting of the land into two parcels necessitates the building of 1,450 feet of fencing. Defendant in article III of his answer is claiming $100 for the material, labor, and upkeep of this fence, and was granted that amount by the jury. The proof, we find, supports this claim.

Another item of $50 is asked by defendant in article IV of his answer for the labor, material, and upkeep of two bridges to be erected over drainage ditches to be constructed on both sides of the highway. The jury allowed defendant $75 for that item, being $25 over the sum demanded •therefor. Obviously, defendant is not entitled to that overplus, not having amended his answer, asking to augment his demand. Code Prac., art. 156; Carre v. Massie, 113 La. 608, 37 So. 530. Besides, the evidence shows that $50 is all that defendant is entitled for that item.

In article V of his answer defendant asked for $50 for the preparation of the soil taken for the roadway, and for the crops of watermelons and corn which were growing there. The verdict allows $25 for that item in which we find no error.

In the case of McMahon and Perrin v. St. Louis, Arkansas & Texas Railroad Co., 41 La. Ann. 827, 6 So. 640, 641, the court rendered an elaborate opinion on the subject of the compensation which should be allowed for property taken and damaged for public purposes in expropriation proceedings. The court said that the measure of compensation for the property taken is its value; and for the damages the measure of compensation is the diminution in the value of the property. Continuing, the court said there is no warrant for extending the liability beyond this. In making itself more explicit, the court said further:

“We are simply to inquire what damage has. been done to the property, i. e., to its value for. rental and sale.”

Mere consequential injuries to the owner whose land is expropriated resulting from discomfort, inconvenience, loss of business, and the like, says the court in that decision, are not rescued from the doctrine of damnum absque injuria. This ruling of the court was later approved in the case of Opelousas, Gulf & N. E. Ry. Co. v. St. Landry Cotton Oil Mill Co., 121 La. 796, 46 So. 810.

Counsel for defendant cites the case of Vicksburg, Shreveport & Pacific Railroad Company v. Henry T. Dillard, and Vicksburg, S. & P. R. Co. v. J. M. Poster et al., 35 La. Ann. 1045. In those cases the two plantations involved were to be cut in the middle by the railroad tracks. The court in those cases, after giving the disastrous consequences to the plantations which would result from the construction of the railway, said that it would not have amounted to a mere inconvenience, but would have meant “ruin” to the owners.

In the above case, it will be noted that, in the concluding part of the opinion, the court said some of the witnesses had adopted the mode of ascertaining the difference between the value of the plantation before the railroad bed was laid and now, “and by some of them the difference was stated at from five to ten thousand dollars less now than before.” This latter quoted statement of the court shows that some of the witnesses had based their estimate of value on the diminution in the price at the time the railway was built.

This harmonizes, the ruling in that case with the decisions in the 41 La. Ann. and 121 La., hereinabove referred to. If that ruling is not in keeping with these later decisions, we must adopt the more recent expressions of the court as establishing the doctrine which now governs in such cases.

The owner, in expropriation under eminent domain, is “entitled to the market value of the property taken, and to such damages as may result to the remainder of the property of which the expropriated property forms a part, and to nothing else. It is not a question of the value of the property to the owner, or its adaptability to the uses of the owner, but of its market value; taking into account, however, all the considerations that would weigh at private sale.” Louisiana Ry. & Navigation Co. v. Jones, 113 La. 29, 36 So. 877.

We shall now proceed to the consideration of the other items allowed by the jury under the ruling in the 41 La. Ann., and 121 La., cases above cited, and the decision in the 113 La. 29, 36 So. 877, which directs the method of fixing the value of the property expropriated, and such damages as may result to the remainder of the property.

In article YI of the reconventional demand, defendant is asking $100 for depreciation in the value of the parcel of 1.32 acres which will be separated from the 20 acres, remainder of the tract, and which will lie west of the proposed highway. The verdict allowed him $65 for this alleged depreciation or diminution in value of that small strip.

Some of the witnesses testified that, detached as it is from the larger tract, it might be used for a filling station or for a store building. The proof shows that the section in which this land is situated is almost entirely used for agricultural or farming purposes. It could hardly be sold or leased for the purposes indicated by the testimony of the witnesses, above referred to. Its market value has been diminished considerably by reason of its insignificant area, and its separation from the main tract. We find that the sum of $65 given for the 1.32 acres of land by the verdict for depreciation is supported by the evidence, and this amount will not be decreased or denied.

In the VII article defendant is demanding $250 incidental inconvenience for the cultivation of the two parcels of land which will result from the passage of the highway, for which he was granted $125. For any such inconvenience or discomfort the law allows no compensation for the reasons hereinabove stated in the decisions referred to.

In article VIII of the answer defendant alleges that the building of the highway will create a long, sharp angle for a distance of approximately 900 feet along the highway, adding to the annoyance and inconvenience in the cultivation of the 20 acres which will remain after the taking of the 1.69 acres for the roadway, and 1.32 for the strip above mentioned.

Under that article defendant asked $400, and was allowed $75. For the reasons above stated, that amount is not recoverable for any annoyance or inconvenience which might result from the passage of the highway.

It is true that in article VIII defendant also alleged that the regularity of shape of the larger tract and its appearance which gave it valuable characteristics would be destroyed by the building of the roadway. There is no evidence to show that a diminution in its value would result from any such cause, and, we know of no legal authority which sanctions compensation for such sesthetic considerations.

In the IX article, which is the last of the reconventional demand, defendant says his land is hedged in on three sides by roads or highways; that lands available and contiguous to his property or in its vicinity could not be purchased except at exorbitant prices as to render them unprofitable for farming. In this respect defendant introduces a new element in his claim for compensation. There is no evidence in the record to show that he would be unable to buy adjoining lands at reasonable prices or that the market value of his small or large tract would be affected by his inability to purchase contiguous property. Such an element of damage, particularly when there is no proof to'support it, cannot enter into the computation of damages in an action of this character.

In article IX defendant also alleges that the expropriation would result in the reduction in the area óf his farm which would cause a lessening in the value of his land as a whole. For that alleged result, taken in connection with the allegation that he would not be able to buy adjoining land, defendant is claiming the sum of $450.

In the foregoing averment, inferentially he brings up the question of depreciation or diminution in the value of his land.

The evidence shows, as we have above stated, that a depreciation in value had resulted for the strip cut off by the highway, and the allowancé of $65 for this diminution remains undisturbed. That strip, including the roadway, lopped off only a small fraction over 3 acres from defendant’s farm, leaving 20 acres. The evidence fails to show that the market value of .this remainder of the farm was affected or diminished, and, if any inference could be drawn from the evidence establishing any diminution, the amount of depreciation could not possibly be fixed under the proof with any approximation to accuracy or legal certainty.

The jury allowed $175 for the claim under article IX, which must be denied.

The following items are therefore disallowed by this court: $25 reduction from allowance on article IV; $125, $75, $175, totaling $400 to be deducted from the sum of $809 allowed below, leaving the sum of $409 which defendant is entitled to recover. The judgment must be amended accordingly.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and is hereby amended by reducing it from the amount of $809 to the sum of, $409; and, as thus amended, it be affirmed; appellee to pay cost of appeal.


text:
    No. 915
    First Circuit
    WALKEAU v. LLANO DEL RIO CO. OF NEVADA
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Woosley & Cavanaugh, of Leesville, attorneys for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff was injured May 31, 1930, while operating a Hobart machine, causing the loss of the little and ring fingers of his right hand, and, for the injury so received, is suing defendant company for compensation under the provisions of the Employers’ Liability Act (Act No. 20-of 1914, as amended).

He recovered judgment, from which defendant company appeals.

It is alleged in the petition that plaintiff was injured while performing services in the course of the business and trade of defendant company, but there is no averment that he was an employee by contract or otherwise. His averment being that his services were worth $5 per day, and that he is entitled to recover sixty-five per cent of a weekly wage, which he fixes at $30 per week.

To .that petition defendant company filed exceptions of no cause and no right of action based on grounds therein specified, annexing thereto a contract bearing the title of Llano Pledge, entered into by plaintiff with defendant company, and signed by him.

The exceptions were overruled by the court, and were tried with the merits.

Though plaintiff failed to make the usual allegation that he was an employee of defendant company, we shall dispose of the defense presented by the exceptions in reference to and in connection with the contract thereto annexed, and .the evidence adduced during the trial of the case.

In the contract which is denominated a Llano Pledge, in capital letters, the preamble begins by a declaration of the inherent right of all mankind to life, liberty, and the pursuit of happiness. The defendant company is therein referred to as the Llano Co-Operative Company.

Plaintiff, in the contract, declares that he knows that the colony is an experiment in human relationship and he promises to assist in its integral co-operative movement; also declares that he has faith in the movement, and that he is determined to use all his powers in making it a success.

After making these declarations of faith and promises of loyalty to the venture, the agreement. in the last paragraph reads as follows:

“I will accept as compensation, food, clothing and shelter and services as the colony is in a position to provide, at no time expecting returns or profits in dollars and cents.”

In the case In re Savant, reported in 160 La. 916, 107 So. 621, Savant and Perkins entered into a contract with Goetz and Lawrence in reference to the operation of a dredge boat. All the expenses and costs of the operations for the contemplated drainage were to be paid by Savant and Perkins before they received any compensation for their services as managers of the undertaking.

In passing on this written contract, the court said it was presumed to express the intention of the parties, and that it was the law between them; that, as it was lawful, neither equity nor usage could be resorted to 'in order to enlarge or restrain the intent expressed in the agreement between the parties, unless the contract violated some prohibitory law or other provision which they could not modify or renounce; citing Civ. Code, arts. 1945, 1963, also several decisions of our courts.

The contract under consideration is not in conflict with any prohibitory law or other provision, and must be taken as written in the solution of this case.

The court found in the Savant case, above cited, that, by ..the mutual stipulations of the parties thereto, the compensation provided for was made entirely contingent, and said it could not substitute therefor a weekly wage under the provisions of the Employers’ Liability Act; and that, if the court so held, it would be making a contract to which the contracting parties had not consented.

In the final clause of the contract above reproduced, plaintiff says he will accept as compensation, food, clothing, shelter and services as the colony is in a position to provide.

This food, clothing and shelter, it will be noted, was such as the colony might be in a position to furnish. Evidently if the colony could not afford that as compensation, plaintiff would receive nothing. That part of .the pledge indicates clearly that defendant company did not bind itself to pay plaintiff any fixed wages for any services he might render. Further, the quoted clause continues and says that plaintiff, “at no time expecting returns or profits in dollars and cents.” If there be anything an employee or wage-earner expects, it is the returns or profits “in dollars and cents” for the labor or services he renders for the benefit of his employer.

In the Savant case, the court said that no profits having been realized by Savant and Perkins in the management of the dredge boat, necessarily .the matter ended there. Here there, is no proof whatsoever that the colony had made any profits, or, if any had been realized by it, that' plaintiff was entitled to any share therein; certainly not as a wage, because it is well established that none were ever paid him during the two years he worked for the company, nor that any wage had ever been offered him, or to any other members of defendant company.

It will be observed in addition to what we said in reference to the clause of the contract, above quoted, that “services” the company might be in a position to provide are classed as “compensation” with food, clothing and shelter. If plaintiff was an employee of defendant company, it would indeed be extremely singular that he would consider services to be rendered by the colony as a part of his compensation. The analysis of .that clause, taken in connection with the generally declared purposes of defendant company, show, as appears in the contract annexed to defendant’s exceptions, termed a Llano pledge, that parties who signed the agreement became members of an association organized to establish, as an experiment, new ideals “in human relationship.” Besides these idealistic purposes, the record shows that the accumulation of property was also one of the objects of the association. The property expected to be thus accumulated the proof indicates was to be acquired from the income resulting from the labor or services rendered by the members of this co-operative colony, in which each member would have a common interest and ownership, in shares represented by stock issued by the company. It is also shown that plaintiff participated in the meetings of the association, and, before he fell out with the manager, made speeches laudatory of the purposes of the association. It appears that he was thereafter expelled from defendant company by a vote taken according to its rules of government. It is therefore evident that plaintiff was one of its members on an equal footing with the others, and in no sense could have been considered as an employee.

The facts are that the object for which the defendant company was organized, its accumulation of property as a common fund, its management or operation, indicate almost beyond question that it was not engaged as an employer in any business, trade, or occupation, and that plaintiff was not its employee.

In Benjamin T. Harville v. Eicher-Woodland Lumber Co., 3 La. App. 406, the court said:

“Where all the evidence fails to show that the relationship of the employer and employee existed at the time of the injury, the injured workman suing for compensation under the Workmen’s Compensation Act No. 20 of 1914 cannot recover.”

See, also, Savant v. Goetz, 160 La. 916, 107 So. 621; Young v. Petty Stave & Lumber Co., 7 La. App. 90, 294; Hunter v. Johns, 4 La. App. 518.

In this case, the relationship of employer and employee was not shown to have existed at the time of the injury, nor before, and plaintiff cannot recover.

The judgment granting him compensation is erroneous, and must be reversed.

It is therefore ordered, adjudged, and decreed, that the judgment appealed from be, and is hereby, annulled, avoided, and reversed, and that plaintiff’s demand be rejected at his cost in both courts.


author: McGREGOR, J.

text:
    No. 3929
    Second Circuit
    DUNKELBERG FARMS, INC., v. MAYS ET AL. (AMERICAN NATL. BANK, Intervener)
    (December 9, 1931. Opinion and Decree.)
    (January 31, 1932. Rehearing Refused.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for intervener, appellant.
    John G. Gibbs, of Shreveport, attorney for defendants, appellants.
   McGREGOR, J.

This is a suit brought by the plaintiff, an Indiana corporation domiciled at Port Wayne, against the defendants, who are residents of Shreveport, La. The object of the suit is the recovery of two diamond ear screws alleged to be wrongfully in the possession of the de-. fendants, Ralph H. Mays and T. E. Madding. The petition alleges simply that plaintiff is the owner of the property, is entitled to its possession, and that a writ of sequestration is necessary to protect its interests. A writ of sequestration was issued as prayed for, and under it the property was seized in the hands of the American National Bank, and the bank then made itself a party to the suit by intervention and third opposition, and asserted its right to the diamonds as pledgee.

The diamonds in controversy were originally the property of Mrs. Anna C. Dunkelberg, who is now the wife of Frank A. Bell. Some time during the latter part of October or the first part of November, 1928, while the Louisiana State Fair was being held, Frank A. Bell and his wife were in the city of Shreveport, stopping at the Creswell Hotel. During that time Bell was in possession of the diamonds and pledged them to one Cal Cross for the sum of $400. Soon thereafter, in the presence of the said Bell, T. E. Madding, one of the defendants, acting for himself and the other defendant, Ralph H. Mays, paid to Cal Cross 'the $400 for Bell and received the diamonds as collateral security. Madding then loaned Bp” an additional $386.-50. No writing of any kind was executed. The entire transaction was oral. Madding then delivered the diamonds to the American National Bank for $800, on November 7, 1928, and signed a note for that sum, in which the ear screws were specially pledged to secure its payment. The proceeds of this $800 was paid to Madding to reimburse him for the $786.50 which he had paid out for Bell. This suit was filed on August 3, 1929.

At the outset the defendants filed an exception of no cause of action and of vagueness, urging that the plaintiff could not introduce evidence of its alleged ownership of the property until it had first alleged the basis of its claim. It is the theory of the defense that the ear screws in question were and are the property of Mrs. Bell; that she permitted her husband, Frank A. Bell, to use them as security for the money secured; and that, while the pledge was not executed in writing, she subsequently ratified it in a letter written by her and agreed personally to. pay whatever was due. On the other hand, at the trial it developed that the plaintiff claimed to have purchased the diamonds from Mrs. Bell and to have paid for them with capital stock of the corporation. It is further claimed that the corporation loaned them back to -Mrs. Bell to be worn by her, and that while she was thus wearing them her husband persuaded her to let him have them for safe-keeping, and that while he thus held them he let Cal Cross have them without the knowledge or consent of his wife, and that, since he had no right or authority to pledge .the property in the first place, the American National Bank could not secure a valid pledge from any one to whom Bell or Cross may have delivered the property. The lower court rendered judgment in favor of the plaintiff as prayed for and rejected the demands of the intervener. From that judgment the defendants and the intervener have appealed.

OPINION

There is only one question at issue in this case, and that is the ownership of the diamond ear screws in controversy. If the plaintiff is the owner, then none of the attempted acts of pledge can prevail against it to deprive it of its property. Dunkelberg Farms, Incorporated, the plaintiff herein, is a corporation organized for the purpose of handling the property belonging to the Dunkelberg family. All the capital stock has always belonged to Mrs. Dunkelberg (now Mrs. Bell), and her..two sons, Ralph C. and Charles A. Dunkelberg. Ralph C. Dunkelberg is the president and general manager, Charles A. ' Dunkelberg is the vice-president, and Mrs. Anna C.’ Dunkelberg Bell is the secretary-treasurer. The corporation was organized in 1923, but it is testified that it acquired the ownership of the ear screws in 1925 in exchange for capital stock. This was the testimony of both Ralph C. and Charles A. Dunkelberg, taken by written depositions. Mrs. Anna C. Dunkelberg Bell was present at the trial but did not testify except on rebuttal and refused to submit herself for cross-examination by the defendants and intervener. All knowledge with reference to the ownership of the ear screws was in possession of the two Dunkelbergs and Mrs. Bell. It was their duty to be frank with the court, but instead we find them evading all efforts of the defendants and intervener to trace the ownership of the diamonds. It is in evidence that at the time of the trial Mrs. Bell was the owner of only one share of the capital stock of the plaintiff, and yet she was the secretary-treasurer and had been acting in that capacity since the organization of the corporation in 1923, at a salary of $3,000 per year. Whether she was ever the owner of more than one share does not appear from the record. Counsel for defendants and intervener tried in vain to find out how much stock was issued in exchange for the jewelry in question. They were met with evasive replies on every hand. On one point there is no controversy, and that is that all the stock in the corporation has been issued and is all owned by the three original stockholders. Both the Dunkelbergs testified that Mrs. Bell owns only one share. Ralph C. Dunkelberg, the president, testifies that he owns only one share. That being true, Charles A. Dunkelberg must own nine hundred ninety-eight shares, for it is undisputed that there are one thousand shares in the corporation and that the three stockholders together owned it all. And yet we find this same Ralph C. Dunkelberg testifying in another place as follows:

“Mrs. Anna C. Dunkelberg Bell owns one share of stock in the corporation; the majority of the balance is owned by myself and my brother, Charles A. Dunkelberg.” (Italics ours.)

Just why he says he and his brother own a majority of the balance, when as a matter of fact they own all of it, we do not know. Charles A. Dunkelberg, vice-president, testifies :

“I do not know exactly how many shares I own, but I do know that I own more than one-third of the shares.”

Why is he so uncertain, when, according to his brother's testimony, he owns all the shares except two, or nine hundred ninety-eight?

If the plaintiff is the owner of the diamonds, the witnesses, who are the only stockholders, should be able to fix at least approximately what the purchase price was. They should not be permitted to come into court and say they were purchased for some unknown price and paid for in some unknown amount of stock of the company. Particularly is this true when Mrs. Bell is shown positively to own only one $10 share and no positive testimony is introduced to show that she ever owned more than one share. It is argued that she may have owned more and may have disposed of it since. That is all true, but it would have been very easy to be frank about it if that were true. Furthermore, under the testimony it is easy to gather the inference that when the corporation was first organized in 1923 all the stock was issued to the three stockholders. If that is true, then there was no stock that could have been issued to Mrs. Bell in 1925 for these diamonds.

Plaintiff’s petition alleges nothing with reference to how it became the owner of the diamonds and its testimony on this point is entirely too vague, evasive, and indefinite. It resisted all efforts of the defendants to have the petition amended so as to allege when and for how much .the diamonds were acquired by it. It ‘ has not discharged the burden of proving that it bought and paid for them.

For the reasons assigned, the judgment appealed from is avoided, annulled, and set aside, and it is hereby ordered, adjudged, and decreed that the plaintiff’s demand be dismissed as of non-suit, and that all costs of both courts be paid by the plaintiff.


author: CULPEPPER, J.

text:
    No. 3962
    Second Circuit (Second Division)
    MURFF v. RATCLIFF
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    (See, also, 171 La. 419, 131 So. 194.)
    Murff & Perkins and Jos. H. Levy, of Shreveport, attorneys for plaintiff, appellee.
    Edward Barnett, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff obtained a judgment against one Ben J. Jamison, who at the time owned certain real property constituting his homestead, but on which Clem V. Ratcliff, defendant herein, held a special conventional mortgage containing a homestead exemption executed by Jami-son and his wife. Ratcliff permitted ten years to elapse from the date of his mortgage without reinscribing same, but he did reinscribe the mortgage something over a year thereafter. Shortly before the expiration of the ten-year period, however, Rat-cliff obtained order of seizure and sale of Jamison’s property under the mortgage. During the time the property was being advertised for sale, Jamison and his wife executed a formal notarial act of sale thereof to Ratcliff for a recited cash consideration, and on the day following this act Ratcliff reconveyed the property to Jamison by a similar act, except that it was for an increased price and on terms of credit. A few days later, which was on the day the public sale was to take place, Ratcliff ordered the sale stopped and the seizure dismissed. A short time thereafter, but before tbe mortgage was rein-scribed, plaintiff in the present suit, proceeding by fieri facias under his judgment, had the property seized in the hands of Jamison, and same was being advertised for sale, when Jamison and his wife brought injunction proceedings against the sale, coupled with a demand to have the sale by them to Ratcliff and Ratcliff’s resale to them reformed and corrected so as to have same decreed to be only a security contract or mortgage, on the alleged ground that the acts were intended as such, and alleging that the execution of the acts in the manner and form they were executed was due to a legal fraud perpetrated upon them (Jamison and his wife) by Ratcliff. Ratcliff for this reason was made party defendant with Murff, the judgment creditor.

Upon a trial the court rendered a preliminary judgment of injunction against the sale, effective until further orders of the court. Pending final hearing in this matter, Ratcliff, who shortly before the preliminary judgment was rendered rein-scribed his original mortgage, issued execution thereon by executiva, had the property reseized, advertised, and he himself bought it in and the proceeds applied on the mortgage debt.

Thereafter, plaintiff herein, after preliminary demands, brought this hypothecary action against Ratcliff, demanding that Ratcliff either pay plaintiff the amount of his judgment or surrender the property that same might be sold for payment thereof. There was judgment for plaintiff, and defendant appealed.

Plaintiff contends: (1) That defendant’s mortgage perempted because it was not re-inscribed within ten years, as required under the Code (Civ. Code, art. 3369); (2) that Jamison lost his homestead exemption as to all creditors by a conventional sale of the property to Ratcliff and resale by Ratcliff to him before Ratcliff foreclosed on the mortgage.

Defendant Ratcliff contends: (1) That his mortgage did not perempt because his suit to foreclose on the mortgage was first instituted before the ten years had elapsed for its reinscription; and that, notwithstanding he released the seizure and later reseized and sold the property under the mortgage, after the ten-year period, his first foreclosure proceeding remained dormant, and prevented peremption from running; (2) that the sale to him by Jamison and the latter’s resale to defendant was intended “as a security contract and did not have the effect of depriving Jamison” of ownership, as he continued to remain, at all times, in the actual possession and occupancy thereof; (3) that the property constituted Jamison’s homestead, that defendant held a waiver from Jamison of said homestead, which entitled defendant to the proceeds of the sale over plaintiff who did not have a waiver.

The district judge rendered an able and exhaustive written opinion in the case. We have studied the opinion with much interest and care, as well as the pleadings and testimony in the record, and we fully concur in his findings.

As to defendant’s contention first outlined above, it seems well settled that the institution and pendency of the suit before prescription is acquired, does not dispense with the reinscription, and the failure to reinscribe within ten years is fatal. Hyatt v. Gallier et al., 6 La. Ann. 321. Especially is this true as affecting third parties.

To have effect against third persons, mortgages must be reinscribed after the lapse of ten years, notwithstanding the pendency of suit. Barrelli v. Delassus, 16 La. Ann. 280.

After the lapse of ten years, without re-inscription before that time, subsequent mortgages are not affected by the first inscription; and neither notice, nor even the pendency of a suit on the mortgage, dispenses with the reinscription. Watson v. Bondurant, 30 La. Ann. 1.

Defendant’s contention first above set out is, we think, therefore untenable.

As to the second contention of defendant regarding the sale and resale, plaintiff contends that these acts were outright sales, and that, as a result, Ratcliff became the owner of’the property, and, being owner of both the property and the mortgage debt, the latter became extinguished by confusion. If it be true that Ratcliff did become owner of both at the same time, plaintiff is clearly correct. These transactions between Ratcliff and Jamison have all the earmarks of a sale. Besides, the judgment of the court in Jamison’s injunction suit against Murff and Ratcliff, referred to above, and in which this same question was at issue in connection with the question of Jamison’s right of homestead exemption, appears fully decisive of the matter. For certainly, if it had been there held that there had been no sale, Jamison’s homestead exemption would never have ceased to exist, and the court would necessarily have had to recognize that fact, if it had been a fact. The fact that the judge in his final judgment in that case rejected Jamison’s contention establishes the fact that the court found that there had been a sale by Jamison to Ratcliff, just as was contended by Murff, and as he now contends in this case. Ratcliff was a party to that suit and so was Murff. No appeal was taken from the judgment. It had become final when the present suit was instituted, and the question here raised, we think, and as contended by plaintiff, has become res adjudieata. The lower court was evidently of the same opinion, and we think correctly so. Plaintiff for that reason pleaded estoppel against defendant’s position on this point, and we think the plea well taken.

As to defendant’s third contention above set out, it would necessarily follow that the fact of the sale of the property by Jamison destroyed his then existing right to claim homestead exemption as against any and all mortgages against the property. This is elementary, and needs no citation of authorities.

It is also true that, where the owner sells his homestead, it passes to the purchaser burdened with any judicial mortgages which might exist against it. ■ In Herbert v. Mayer, 42 La. Ann. 840, 8 So. 590; the court held that;

“The repurchase of the property by the debtor can not revive the homestead. The conditions upon which it was originally granted ceased to exist when he sold it. New conditions must arise in order to entitle him to the homestead exemption.’’ Denis v. Gayle, 40 La. Ann. 286, 4 So. 3; Seal v. Sam, 131 La. 919, 60 So. 616.

This being true, defendant’s claim for benefits of Jamison’s rights of exemptions can avail him nothing in this case.

For the reasons assigned, the judgment of the lower court appealed from is affirmed.


author: BY THE COURT.

text:
    No. 984
    First Circuit
    STATE EX REL. PIERCE v. CARRUTH, JUDGE OF THE EIGHTEENTH JUDICIAL DISTRICT COURT
    (February 8, 1932. Opinion and Decree.)
    M. T. Hewes, of New Roads, attorney for plaintiff, applicant.
    William C. Carruth, of New Roads, pro se.
   BY THE COURT.

William G. Pierce filed suit in the district court sitting in and for the parish of Pointe Coupee, claiming the sum of $970.71 as being due him by the Grand Bay Oil & Gas Co., Inc.

He alleges that he was first employed by Henry G. Moniotte and others, who subsequently organized the Grand Bay Oil & Gas Co., Inc., and then by the said Grand Bay Oil & Gas Co., Inc. He avers that as so employed, he began to render services by working upon the derrick and preparing to commence drilling operations on September 1, 1931, and that he was constantly so employed and actually drilling until November 22, 1931. He alleges that the Grand Bay Oil & Gas Co., Inc., was organized and duly incorporated on October 31, 1931, and that as the contract he had entered into was personal and heritable, the Grand Bay Oil & Gas Co., Inc., is liable to him for the labor and services above alleged from September 1, 1931, to November 22, 1931.

Alleging that he had a privilege on the leases, oil or gas well or wells, and on the rigs, machinery, appurtenances and appliances thereto attached, used by the Grand Bay Oil & Gas Co., Inc., for the drilling of an oil well at Grand Bay on the island of False river in the parish of Pointe Coupee, he applied to the district court sitting in that parish, for the issuance of a writ of provisional seizure to have such leases, wells, rigs, machinery, appurtenances, appliances, etc., seized and sold for the enforcement of his claim.

Honorable William C. Carruth, district judge of said court, refused to issue the writ, whereupon this court, on application properly made, issued an order commanding the district judge to show cause why the writ of provisional seizure should not be granted.

Judge Carruth has filed his answer to the order issued by this court, and a brief in support of his refusal to issue the writ of provisional seizure.

Section 1 of Act No. 171 of 1928 gives a lien or 'privilege on the “oil or gas well or wells, rigs, and machinery, and appurtenances and appliances thereto attached for equipment and operation of the same” to “any person or persons who shall perform any labor or service in the operation of any oil or gas well or wells in this State.” Section 3 of that act gives the right to such person or persons to have the lease, well, or wells, rigs, machinery, appurtenances, etc., provisionally seized upon complying with certain formalities prescribed by the statute, for the enforcement of their lien.

It was on the provisions'of that act that the plaintiff herein asked for the issuance of the writ of provisional seizure which was denied him by the district judge.

Our learned brother of the district court in his brief before this court, says “that this statute has no application whatever to the case at bar, since ‘drilling for oil and gas’ and rendering service ‘by working upon the derrick and preparing to commence drilling operations’ do not constitute ‘labor or services in the operation of an oil or gas well.’

The petition of plaintiff before referred to, shows that he had not only commenced the preparations to drilling on September 1, 1931, but that he was thereafter constantly so employed and actually drilling until November 22, 1931. Putting up the equipment for drilling purposes, and particularly actual drilling for oil or gas, constitute, we think, “labor or service in the operation of any oil or gas well or wells’ as provided for in the statute. We are of the opinion that the word “operation” as used in the act, is not intended to be restricted to an oil or gas well which is a producer. The labor rendered in erecting the derrick, and the services in actual drilling, come within the intent and meaning of the word “operation” as therein used, otherwise laborers engaged in such work, if the drilling proved a failure, would be deprived of the right to a provisional seizure to secure the payment of their services. If the provisions of the act were to apply only to producing wells, the lien would not have been limited to the equipment and appurtenances of the well, but would' have been extended to the minerals as well.

The respondent judge says that plaintiff has failed to allege a cause of action, because it appears from his petition that from September 1, 1931, to October 31, 1931, he was in the employ of Moniotte and others and that during that time, the Grand Bay Oil & Gas Co., Inc., “was nonexistent, not having been organized by the said Moniotte and others until October 31, 1931.”

Respondent, in thus arguing, has ‘overlooked the allegation in the petition of plaintiff that “he was constantly so employed and actually drilling until November 22, 1931’, that Grand Bay Oil & Gas Co., Inc., was duly incorporated October 31, 1931.” This allegation shows on its face that he was actually engaged in drilling for twenty days after the Grand Bay Oil & Gas Co., Inc., was incorporated. Conceding that respondent, before issuing the writ, should have considered the question as to whether or not a cause of action had been alleged, the averments of the petition show that at least for a portion of the claim, a cause of action was set out, and these averments embodied a principal or main demand to support a writ for the provisional seizure asked for by the plaintiff. We are of the opinion, however, that the consideration of issues of that character are properly matters of defense against the demand, and which respondent was not called upon to urge as a ground for his refusal to issue the writ.

The other grounds asserted by respondent in his brief filed to support his position, are of a similar nature or character and do not present legal grounds for his denial of the writ.

Reference is also made in the answer of respondent and in his brief, to Act No. 172 of 192'8. This statute was enacted to amend Act No. 134 of 1880, and is not the .statute on which this case is to be determined, as its solution depends upon a proper interpretation of Act No. 171 of 1928, which was evidently enacted to protect laborers rendering services on oil and gas wells, which of recent years has become an important industry in this state.

Considering the answer of the respondent judge insufficient, it is ordered that a peremptory writ of mandamus issue from this court ordering the Honorable William C. Carruth, judge of the Eighteenth Judicial District Court, in and for the parish of Pointe Coupee, Louisiana, to issue the writ of provisional seizure prayed for by plaintiff William G. Pierce in his petition against the Grand Bay Oil & Gas Co., Inc., copy of which is annexed to his application herein.