author: REYNOLDS,' J.

text:
    No. 2776
    Second Circuit
    ROWLAND v. CADDO TRANSFER AND WAREHOUSE CO.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 8.
    In a suit for damages, by a passenger injured in a collision while riding in a motor bus maintaining a regular schedule between Shreveport and Texarkana, proof by the plaintiff that the accident was caused by the bus being driven into a telephone pole on the side of the road, at a speed of between 30 and 35 miles an hour, just after the motorman had exclaimed “look out”, constitutes a cause of action and renders it necessary for the defendant', in order to escape liability, to overcome the presumption arising from the accident under this state of facts.
    Stokes vs. Saltonstall, 13 Pet. 115.
    Sweeney vs. Erving, 228 U. S. 233.
    2. Louisiana Digest — Automobiles—Par. 8; Negligence — Par. 41.
    Suit by plaintiff, that while a passenger for hire on a motor bus, he was injured in an accident caused by the bus being driven into a telephone pole on the side of the road, at a speed of between 30 and 35 miles an hour, after the motorman had ' exclaimed “look out”, warranted the application of the doctrine res ipsa loquitur to the extent of making • it necessary for the defendant, in order to escape liability, to overcome the presumption of negligence arising from the collision under the circumstances detailed.
    3. Louisiana Digest — Negligence—Par. 41.
    Defendant, who was in better position to know the cause of the accident than plaintiff, must, in order to overcome the prima facie case made for the plaintiff by proof of the accident, show that the accident was not the result of any negligence on its part.
    Lykiardopoulas vs. N. O. C. R. L. & P. Co., 127 La. 309, 53 South. 575.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by James Ei Rowland against Caddo Transfer and Warehouse Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport', attorneys for plaintiff, appellee.
    E. W. and P. N. Browne, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS,' J.

This is a suit to recover $21,025.00 damages for injuries alleged to have been sustained by plaintiff in a motor bus belonging to defendant in which plaintiff was a passenger for hire being driven into a telephone pole on the side of the road at a speed of between 30 and 35 miles an hour just after the motorman had exclaimed “look out”.

Plaintiff’s injuries consisted of a split lip, a cut on the head, a broken jaw bone and other lesser injuries.

Defendant denied liability and especially alleged that plaintiff had not suffered any undue pain and that his injuries had not necessitated any continued or extensive medical treatment.

On these issues the case was tried and there was judgment in favor of the plaintiff for $1500.00 with legal interest thereon from judicial demand, and defendant appealed. Plaintiff has answered the appeal and asks that the judgment be increased to $10,000.00.

OPINION

■ The question for decision in this case is whether proof by the plaintiff that while he was a passenger for hire on a motor bus operated by defendant and maintaining a regular schedule between Shreveport and Texarkana he was injured in a wreck caused by the bus being driven into a telephone pole at a speed of between 30 and 35 miles an hour just' after the motorman had exclaimed “look out” is sufficient evidence of negligence on the part of the defendant to warrant a judgment in favor of the plaintiff in the absence of any explanation by defendant of the cause of the accident tending to show that it was not the result of negligence on' its part.

At the time of the accident plaintiff was riding on a “jump” seat behind the seat on which the motorman was sitting. The motorman, therefore, was in better position to see the cause of the accident than the plaintiff was, and the motorman’s, exclamation ‘.‘look out” indicates that he did see the threatened cause of the accident before the plaintiff or any other occupant of the bus.

In an able and exhaustive brief defendant contends that the fact's of this case do not warrant the application of the doctrine of res ipsa loquitur; plaintiff, claims that the doctrine is applicable, and that it is decisive of this case.

A leading case, in which the doctrine is fully discussed, is that of Stokes vs. Saltonstall, supra, where the court said:

“In an action against the owner of a stagecoach used for carrying passengers, for an injury sustained by one of the passengers by the upsetting of the' coach, the owner is not liable unless the injury of which the plaintiff complains was occasioned by the negligence or want of skill or care in the driver of the carriage, in which he and his wife were passengers; and the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was carelessness or negligence or want of skill on the part of the driver; and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.”

And in Sweeney vs. Erving, supra, the Supreme Court of the United States, in reviewing the above ease, said;

“In Stokes vs. Saltonstall, 13 Pet. 181, 190 (10 L. ed. 115, 121), which was an action against a stagecoach owner to recover damages for an injury sustained by a passenger through the upsetting of the coach, the trial court instructed the jury that ‘the facts that the carriage was upset and the plaintiff’s wife injured are prima facie evidence that there was carelessness or negligence, or want of skill, on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault’; and also that it was incumbent on the defendant to prove that' the driver was a person of competent skill and good habits and that he acted on the occasion in question ‘with reasonable skill, and with the utmost' prudence and caution’. The judgment was sustained by this court against the contention that although the facts of the overturning of the coach and the injury sustained were prima facie evidence of negligence, they did not throw upon the defendant the burden of proving that the overturning and injury were not occasioned by the driver’s default but only that the coachman was a person of competent skill in his business, that the coach 'was properly made, the horses steady, etc. A reading of the report shows that the case turned upon the high degree of care owing by the carrier to passenger, and that the court did not rule that the circumstances of the occurrence shifted the burden of proof upon the main issue. Such is the effect that has uniformly been given to the decision.”

And the court, after citing many decisions, proceeds:

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict; res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions.”

Agreeably to the above authorities, we are cpnvinced that the accident happened because of defendant’s bus being run into a telephone pole on the side of the road immediately after the motorman had exclaimed “look out” at a speed of between 30 and 35 miles an hour, and that proof of these facts warranted the lower court in rendering judgment against the defendant, in the absence of any evidence on the part of the defendant tending to show that the accident happened without its fault. The driver of the bus was in a better position to know the cause of the accident than the plaintiff and his exclamation “look out” indicates that he saw and understood the causes leading up to the accident before any other occupant of the bus.

The accident itself, under the conditions established by the evidence, in the absence of any explanation by the defendant, we think warranted the lower court in giving judgment for the plaintiff.

This brings us to the question of damages.

We have carefully read the evidence, and there is no disputing the fact that plaintiff was seriously and painfully injured. He received cuts on the face, head and lip and his jaw was broken; but all of these injuries have healed.

He contends that his Voice was impaired, but from all the evidence we are unable to trace any injury in his voice to the accident complained of.

After carefully weighing all of the evidence, as to the quantum of damages, we are convinced that the judgment of the lower court has done substantial justice between plaintiff and defendant.

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


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2829
    Second Circuit
    LAWRENCE v. DAVIDSON
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    The written opinion of the trial judge as to a question of fact has great weight with the Court of Appeal and will not be disturbed unless manifestly erroneous.
    Sullivan vs. United Fruit Co., 3 La. App. 783.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by W. Taitón Lawrence et al. against Mai Davidson.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiffs, appellees.
    T. S. Price, of Ruston, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiffs in this case sue to recover $375.00 damages alleged to have been done 'to their Ford automobile in a head-on collision between one of the plaintiffs and the defendant while they were driving Ford cars about midnight on February 20, 1926.

Plaintiff contends that the accident was caused by- the defendant’s negligence in driving his car on his left of the center of the road at the point of collision.

Defendant denied liability and .contended that the accident was caused by plaintiff’s negligence in driving his car on his loft of the center of the road at the point of collision, and asked, in reconvention, for judgment against plaintiffs for $12.35.

On these issues the case was tried 'and there was judgment for plaintiffs for $150.00. Defendant has appealed. Plaintiff has answered the appeal and asks for an increase in the judgment.

OPINION

The only question for decision in this case is as to whose fault caused the accident. Our learned brother of the district court in an able and well-considered opinion said, in part:

. “The testimony of these only eyewitnesses — plaintiff on .one side and defendant and his two companions, on the other — as diametrically and emphatically oppose each other as it is possible for witnesses to testify on the point as to how it happened; and if this was the end of the testimony, and the evidence was carried no further, there would be but little left for the court to do but to decide the case on the preponderance of the testimony, or in favor of the defendant. But the evidence did not stop there. Physical facts, that silent witness that speaks not with a silvery tongue, or in rounded periods, but strikes with a leaden fist, is called to the witness stand'-to testify by plaintiff to .support .plaintiff’s, testimony; and it is upon .this evidence that this case must be determined, provided, of course, it connects up all right and properly.

* * ❖ *

“The . court will have to ‘ rely upon the physical facts testified to by witnesses who visited the scene of the wreck the morning after it occurred, rather than the testimony of the eye-witnesses.”.

The witnesses, who testified to the physical facts showed that the accident occurred on defendant’s left side of the center of the road. They were W. T. Lawrence, Homer McBride, Eugene' Nolan, Floyd Nolan and Jim Wright.' Their testimony is clear and positive to the effect that the accident, as clearly demonstrated by the signs of the wreck left upon the ground, occurred on. defendants left' hand side of the middle of the road. Their testimony convinced the district judge that the accident occurred on defendant’s left hand side of the center of the road.

We have carefully read all of the evidence and are convinced that the findings of the district judge, fixing responsibility for the accident upon defendant, is correct.

QUANTUM OF DAMAGES

Plaintiff contends that the damages allowed by the judgment should be increased, but he cites us to no substantial evidence given' on the trial of the case in support of this contention.

Defendant insists that the repairs on plaintiff’s car only amounted to $129.00 and contends that from this amount should be deducted $2.00, cost of putting pistons in, and the cost of the set of transmission bands. „ '

These items do not amount to a great deal, and the body of plaintiffs .car, according to the evidence introduced on the trial, was warped and considerably damaged, and we think all of the evidence in the case was sufficient to warrant the amount awarded by the judgment.. ■

Under all of the evidence we are convinced that the judgment of the district court is correct.

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


text:
    No. 2713
    Second Circuit
    SNYDER v. TARVER
    (Dec. 11, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of fact by the district judge will not be disturbed on appeal unless manifestly erroneous.
    4 La. App. Index, verbo Appeal.
    Appeal from the Fifth Judicial District Court of Louisiana, parish of Franklin. Hon. John R.' McIntosh, Judge.
    Action by C. L. Snyder against L. W. Tarver;.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    George T. Edwards, of -Winnsboro, attorney for plaintiff, appellee.
    S. R. Holstein, of Winnsboro, attorney for defendant, appellant.
   STATEMENT OF 'THE CASE.

REYNOLDS, J.

This is a suit to recover $1025.00 with 8 per cent per annum interest thereon from'.April 5, 1920, until paid, and 10 per cent on the whole as attorney’s fees on ten promissory notes given by the defendant to the plaintiff in payment for one Cletrac Cleveland Tractor manufactured by the Cleveland Tractor Company and sold by plaintiff to defendant and to foreclose a mortgage given by defendant to plaintiff on the machine to secure the payment of the debt.

Defendant denied liability on the ground that the tractor was sold to him under a guarantee that it was suitable for hauling logs and lumber and that after trial it proved not to be suitable for the purpose, and was returned to the plaintiff and received by him in satisfaction of the promissory notes.

It' is further alleged that there was an accounting between plaintiff and defendant on October 1, 1921, at which time it was found that defendant was only owing plaintiff a balance of $485.19.

On these issues the case was .tried and there was judgment for plaintiff for the amount sued for and defendant appealed.

OPINION.

Plaintiff swears positively that -he did not give the defendant the guarantee' claimed. Defendant swears positively that plaintiff did. But this is not of importance for the reason that the question to be decided is whether or not the .tractor was suitable for hauling logs and' lumber.

Defendant’s evidence tends to show that the tractor did not do the work for which he bought it; but plaintiff was entitled to have the tractor given a fair trial, and the only operator that defendant ever placed in charge of the tractor was himself and he testified, pages 79 and 80:

“Q. Mr. Tarver, have you — did you ever run or operate a tractor in hauling logs and heavy timbers before you undertook to operate this one?

“A. No, sir.

“Q. Have you ever made a study under anybody that knew anything about it at any time, in operating and handling tractors in hauling logs and heavy timbers?

“A. Before this?

“Q. Yes.

“A. No, sir.”

Mr. C. H. Snyder, the only mechanic called to testify as to the capabilities of the tractor, testified, page 95:

“Q. With your knowledge of automobiles and automotive machines are you in position to tell this court just exactly what is the matter with that tractor and why it wouldn’t run?

“A. Yes, sir.

“Q. Will you please state why that tractor wouldn’t run?

“A. Well, I never had any trouble after I fixed it, did that work on the motor; I never had any trouble with the tractor pulling, as far as the pulling part of it was concerned; the trouble was that the transmission was dry, and there is where the tractor steers from, just like a Holt caterpillar tractor or any other caterpillar tractor; it steers through the transmission, and naturally you couldn’t steer it; but as far as the pulling- of it is concerned, right now you could hook it onto two eight-wheel log wagons loaded and pull them anywhere you want to; I wouldn’t hesitate a minute in hooking onto any ordinary load of twelve horse-power drawbar tractor could pull right now and it will pull it; it will pull at least fifteen; the steering was one of the main troubles, and then the bearings under the truck were dry and no grease in them; as far as the pulling of it was concerned, it will pull as much now as it did when it was new.

“Q. Then, according to your knowledge, the defect that had developed in the tractor has been a result of improper operating and improper oiling?

“A. Absolutely. Mostly improper greasing.

“Q. Greasing?

“A. The oil was kept in the motor sufficient, I think.

“Q. Mr. Snyder, did you ever attend a school of engineering?

“A. Yes, sir; Georgia School of Technical Knowledge.”

Scott Frazier testified as to this particular make of tractor, pages 85, 86 and 87:

“Q. Were you formerly employed by Mr. C. L. Snyder?

“A. Yes, sir.

“Q. When you were so employed, did you have occasion to observe the operation of the Cleveland Tractors, called ‘Cletrac’?

“A. Yes, sir. I used one about four months, last fall and winter.

“Q. In what line of work was it used?

“A. Hauling logs; dragging and loading logs.

“Q. Did it operate successfully?

“A. I have never had anything or heard of anything that would beat it. I have loaded logs there that a team would have failed with, ordinary team.

“Q. Did you handle any cypress with it in the cypress brake?

“A. Yes, sir; right in the difficult places, among the cypress knees, everywhere we used it there four or five months successfully.

“Q. Who was driving the tractor?

“A. A darkey.

“Q. Mr. Scott, what size logs were you able to handle? With that tractor?

“A. Well, any size I got hold of in the cypress brake; I loaded one twenty-four foot, thirty-two inches at the top, with it; cypress log. I never hooked onto anything but what we pulled it.

“Q. Did you ever see it pulling wagon loads of lumber?

“A. Yes, sir; I seen Mr. Snyder when he was operating a little mill up there pull two wagon loads of lumber down here to town with it.”

This evidence convinces us that defendant has failed to establish his contention that the tractor would not do the work for which he bought it had its operation been placed in the hands of an experienced tractor operator.

Defendant contends that the tractor was returned to plaintiff and that plaintiff accepted it and agreed to cancel the notes defendant gave him in payment for it.

Plaintiff positively denies that he accepted or agreed to accept the tractor back or that he agreed to cancel the notes and the evidence abundantly shows that the tractor was never returned to plaintiff.

It was delivered to plaintiff’s son, who operated a garage and automobile repair shop, and it was delivered to him not for plaintiff but for the purpose of being repaired, and he did repair it and still holds it as security for the cost of the repairs.

Defendant contends that he had an accounting and settlement with plaintiff on October 1, 1921, and that it only left a balance of $485.19 owing by him to plaintiff.

However the written receipt given by plaintiff to defendant on that occasion on its face shows that the accounting and settlement was only intended to ' embrace defendant’s “cotton account” to plaintiff, and the defendant himself . testified in regard thereto as follows,' page 82:

“Q. .Now, then, the amount of these two notes was the amount that you — he had you charged with an open account?

“A. On account, yes.

“Q. And it did not embrace the amount of the tractor notes which you did not consider you owed him?

“A. Well, he agreed that I when we settle on this; this was the open account; I wasn’t supposed to owe him the tractor notes, because he agreed to give the tractor notes back; if I had owed him the tractor notes I guess he would have' wanted a mortgage for them, which if I owed it, I would have given him a mortgage covering everything to make satisfaction.

“Q. Well, if you will just answer my question that I asked you, to make the position, your position clear, all I want to know is if the amount figured in the face of these two notes embraced the amount of the eleven — of the thousand and twenty-five dollar tractor notes or just the open account?

“A. That was for an open account.”

This testimony makes it perfectly clear that defendant does not contend that at the time the receipt was given him it was intended to include the tractor notes in •the same; his contention is that they had been settled for by the return of the tractor to plaintiff; but, as stated above, we are convinced that plaintiff never received back or agreed to receive back the tractor or to release defendant from his liability on the notes sued on in this case.

The trial judge who heard the witnesses testify and observed their demeanor on the witness stand gave judgment in favor of the plaintiff, and the evidence satisfies us that his finding is correct.

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


text:
    No. 2826
    Second Circuit
    RILEY v. ROGAN
    (Dec. 11, 1926. Opinion and Decree.)

      {Syllabus by the Court.)
    1. Louisiana Digest — Damages—Par. 1..
    Every act whatever of man' that causes damage to another, obliges him by whose fault it happened to repair it.
    C. C. 2315.
    2. Louisiana Digest — Sales—Par. 287.
    In case of eviction, the warrantor must return the price paid for the property.
    C. C. 2506.
    Raymond vs. Froeba, 35 La. Ann. 376.
    3. Louisiana Digest — Specific Performance —Par. 10.
    As to condition that may arise in the future, persons cannot by agreement close the doors of the courts upon themselves.
    C. C. 3130.
    State, ex rel. Watkins vs. North American L. & T. Co., 106 La. 620, 37 South. 172.
    Saint vs. Martel, 127 La. 73, 53 South. ! 432.
    Appeal from the Sixth Judicial District Court of .Louisiana, parish of Madison. Hon. F. X. Ransdell, Judge. •
    Action by Charles V. Riley against Henry A. Rogan.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    R. K. Boney, W. M. Murphy, of Tallulah, attorneys for plaintiff, appellee.
    John B. Stone, of Tallulah, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In this case Charles V. Riley purchased from Henry A. .Rogan the merchantable timber on his Atherton Plantation, except that part previously sold to Percy H. Pierson-

Under this contract plaintiff cut certain timber on the Northwest quarter of Section 14, Township 16 North, Range 13 East and paid the defendant therefor at the contract price of $4.50 per 1000 feet.

La.ter plaintiff was informed by the agent of Mrs. Mary E. Hughes that the timber so cut and paid for belonged to her at the time it was cut and he demanded in her name payment for the same.

Plaintiff notified defendant of Mrs. Hughes’ claim and demand and defendant referred him to his brother, Irby Rogan, who made an engagement to meet plaintiff and Mrs. Hughes’ agent in an effort to adjust the matter but failed to keep his engagement; whereupon plaintiff paid Mrs. Hughes $900.00 in full settlement for the timber cut from her land and filed this attachment suit, against the defendant, an absentee, to recover the amount so paid.

Defendant filed an exception of no cause of action, insufficiency of the attachment bond, estoppel and prescription.

On these pleas being overruled, defendant answered claiming that the timber in question belonged to him when he sold it to plaintiff and not to Mrs. Hughes.

On these issues the case was tried and there • was judgment in favor of plaintiff for $900.00.

Defendant has appealed.

OPINION.

The. exception of no cause of action was properly overruled, for the reason that for the purposes of the exception all the allegations of the petition are taken for true, and under the allegations of the petition plaintiff has clearly set forth a cause of action.

The exception to the sufficiency of the amount of the attachment bond was properly overruled, for the reason that an attachment bond for $250.00 was furnished and this is the amount required for an attachment bond obtained solely ,on the ground that the defendant is an absentee under Act 119 of 1916.

The plea of prescription was properly overruled, for the reason that it is shown by the evidence that ten years had not elapsed since defendant claimed to have held possession of the land from which the timber was cut.

The plea of estoppel was properly overruled, for the reason that parties cannot contract as to matters in the future to close the doors of the courts against themselves.

ON THE MERITS.

The question to be decided in this case is whether or not defendant owned any of the timber cut by plaintiff on the Northwest quarter of Section 14, Township 16 North, Range 13 East, and the quantity of the timber so cut.

This is a question of fact, and our learned brother of the district court appears to have gone into it very thoroughly. After having appointed expert surveyors and expert cruisers and after re-opening the case and admitting further evidence after the case had been closed he rendered an able written opinión, a portion'of which we quote as follows: . ’

"In this suit complainant seeks to recover the sum of nine hundred dollars which he paid to Mrs. Mary E. Hughes; for timber which he cut off of the N"W% Sec. 14, T. 16 R. 13 E., Madison parish, Louisiana, by virtue of a. contract entered into by and between complainant and defendant .for the purchase by complainant of- the - .merchantable timber on certain lands, supposed to be owned by defendant and described in the pleadings, and which were pointed out to the complainant by one I. L. Rogan, agent and representative of the defendant, said I. L. Rogan' indicating ,by the cutting out of a supposedly diagonal line through the NWÍ4 of said Sec.' 14 T. 16 R. 13 E. as the east boundary line of the property from which the timber should be removed. Complainant acting under the provisions of said contract and the instructions of said I. L. Rogan as to boundary lines,' cut the timber on said property paid defendant for it and then under 'claim of Mrs. Hughes paid her for the timber cut off of the NW% of said Sec. 14. The evidence induces the belief that the land from which the timber in question was cut belonged to Mrs. Hughes and that I. L. Rogan was mistaken in claiming same „ for defendant and in selling the timber on it. It further appears to the court that of the several surveys made of the said NWü of said Sec. 14 T. 16 R. 13 E. that that made by D. F. Bull, C. E., is most worthy of credit and should be accepted as correct. The- so-called old diagonal line in my opinion is without merit from the evidence in this case as a boundary line, indicative of the east or any other boundary of the Rogan property, and could not be considered as such except upon the most specific evidence, which is totally lacking. In my opinion, the old blazes indicating the said old diagonal line through said section 14, could only evidence some old woods trail and' in no sense shape the findings in this case. The report of W. M. Razor, expert appointed to measure the timber cut off of the land in question, shows some 10,000 feet more than the amount claimed to have been paid for by complainant and reported by I. B. Beard as the correct footage, i. e„ 105,722, cut from the said NW% of said Section 14, by complainant under his contract with Rogan. Hence I feel quite safe in accepting .the Beard report as correct. Both Beard and Razor are experienced timber men and worthy of belief. The only question in the case seems to be whether or not complainant suffered the injury complained of. If he was misled either intentionally or through honest error, and suffered as a consequence the loss complained of, by the defendant or his ¿g'ent I. L. Rogan, then is' not defendant liable for such loss? That complainant was misinformed and that he suffered a loss resulting from such misinformation I feel that the evidence fully establishes. The owner of property is called upon to know his boundaries and when he goes beyond them and sells other people’s property he should refund the loss occasioned thereby.”

We thoroughly agree with these findings of fact by our brother of the district court. And this brings us to the question of the damages sustained by plaintiff.

Plaintiff purchased from defendant the timber in dispute, amounting to 400,000 feet (really a little more, but for all practical purposes, 100,000 feet) and paid defendant for same at the rate of $4.50 per 1000 feet, or $450.00. On finding that Mrs. Mary E. Hughes owned the timber at the time he cut it he paid her for the 100,000 feet at the rate of $9.00 per 1000, or $900.00. The evidence establishes that the timber so cut was well worth the price of $9.00 per 1000 feet stumpage and plaintiff, when he paid Mrs. Hughes that price for it, was in no way damaged, for he only paid the true owner the real value of the property taken by him. But when he paid the defendant $450.00 for timber that did not belong to deféndant he was thereby damaged to the full amount that he paid him for it.

It is therefore ordered, adjudged and decreed that, the judgment of the lower court be amended by reducing the amount thereof from nine hundred dollars to four hundred and fifty dollars, and that as thus amended the judgment appealed from be affirmed.


author: LECHE; J;

text:
    No. -
    First Circuit
    BATON ROUGE ELECTRICAL & MACHINE WORKS v. ROUMAIN
    (December 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a matter of fact, namely: that the work was satisfactorily performed, being clearly correct, is affirmed.
    Appeal from the Nineteenth Judicial District Court of Louisiana, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action .by the Baton Rouge Electrical & Machine Works against J. K. Roumain.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Charles A. Holcombe, of Baton Rouge, Sachse & Darsey, of Baton Rouge, attorneys for plaintiff, appellee.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellant'. ■
   LECHE; J;

- Plaintiff sues upon an open account for services, rendered to defendant, in the sum of one hundred and eighty-two 75-100 dollars, composed of three items, viz: $101.25 of date December 4, 1922, $12.00 of date March 3, 1925, and1 $69.00 of date April 4, 1925.

Defendant in substance pleads that while the work charged by (plaintiff as of date December 4, 1922, may have been done by plaintiff’s workmen, it proved ineffective for having been done in an unworkmanlike manner and that no bill was rendered for same, and that the work was so faulty and unworkmanlike that the time of the workmen employed on this job was paid or reimbursed to plaintiff by the Electrical Workers’ Local Union No. 995 of Baton Rouge. Respondent further pleaded that he paid to plaintiff all bills which it presented to him and which at that time it was entitled to charge against him.

Respondent further denied owing plaintiff for the items of March 3, and April 4, 1925. Respondent further pleaded that on March 27, 1925, he paid plaintiff by check, the sum of four hundred and fifty-one 40-100 dollars in satisfaction of all claims and demands by plaintiff.

Uipon these issues the case was tried in the District Court and from a judgment in favor of plaintiff, defendant has taken the present appeal.

The evidence shows that defendant owns an office building in the City of Baton Rouge, which is provided with two elevators. That previous to the summer of 1925, plaintiff had, for some time, frequently been engaged to perform work on the electrical equipment of the two elevators. The evidence further leaves no doubt that the services charged for in the three separate items of plaintiff’s account, were in fact rendered. The defense ■of faultiness or- defectiveness of the work,. pleaded by defendant is not shown, and the only circumstance giving rise to a pre-; sumption that the work charged for under, date of December 4, 1923, may have been . defective, is that other services rendered-at a subsequent date, were settled for by defendant and payment accepted by plaintiff.

On March 27, 1925, defendant paid plain- . tiff by check, the sum of four hundred and fifty-one 40-100 dollars. The check was offered and filed in evidence and shows on its margin the following typewritten' words: “Account in full to date”. Plaintiff’s witnesses swear that these words were not on the check when received by it, but defendant and his clerk testify to the contrary. As a matter of fact, the item of December 4, 1922, was not included in the account for which the check was drawn in payment. Hence the presumption which may arise that the labor performed as of date December 4, 1922, was defective and not charged or chargeable to defendant. It matters little whether the typewritten words on the margin of the check, were placed on it before being handed to plaintiff or after being returned by the bank to the defendant, as they would not estop plaintiff from suing for this item, but merely could form the basis for the presumption stated, if placed thereon at the time claimed by defendant. But plaintiff shows that the item of December 4, 1922, was disputed by defendant. There is no doubt that a bill was rendered to ' defendant for its amount, $101.25, notwithstanding defendant’s plea to the contrary, and that plaintiff never was ¡paid this amount, although defendant was well aware of it. The work consisted of temporary repairs in order that one of the elevators could be kept in service and the testimony shows that the work was done, and that it served the purpose for -which it was intended. It is satisfactorily shown that- plaintiff believed .that the disputed item would be. adjusted and- did not insist on its payment when it "received the check for $451.40.

The correctness of items two and three is equally well established. Item two of March 4, 1925, had not yet been reported to plaintiff’s bookkeeper when the account of $451.40 was made up, and the service under item, three was only performed after the payment by check was made on March 27, 1925.

The defenses in this case seem to be somewhat inconsistent. The trial judge must have so considered them and we see no reason to reverse his finding.


author: ELLIOTT, J.

text:
    No. 3100
    First Circuit
    NOEL v. COMMUNITY COMPANY, INC. DUFFEL—Intervenor and Third Opponent
    (October 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62; Prescription — Par. 89.
    Under Article 3214 of the Civil Code, the privilege granted to clerks and managers for their salaries exists only for the last year elapsed and so much as has elapsed of the current year. Therefore, exception no cause of action will be sustained if the petition prays for privilege for salaries due more than the time prescribed by the Civil Code.
    Appeal from the Twenty-seventh Judicial District Court of Louisiana, Parish of Ascension. Sam/ A. LeBlanc',1 Judge.
    Action by R. E. Noel against Community Company, Inc., B. L. -Duffel, intervenor and third opponent.
    There' was judgment in exception no cause of action filed by plaintiff, dismissing the demand of Duffel set forth in his partition of intervention and third opponent. Intervenor, Duffel, appealed.
    Judgment affirmed.
    Walter Lemann, of Donaldsonville, attorney for plaintiff, appellee.
    C. C. Weber, of Donaldsonville, attorney for intervenor, appellant.
   ELLIOTT, J.

Community Company, Inc., owner of a theatre building and the ground on which it was situated with photo player piano, opera chairs, moving picture machines, stage curtain, furniture fixtures and paraphernalia contained in the building was indebted unto R. E. Noel, who held a note secured by mortgage on the ground, theatre building and movable property above mentioned therein. R. E. Noel foreclosed his mortgage and in doing so seized and offered for sale the ground and theatre building thereon and all the movable property contained in the building covered by his act of mortgage.

The theatre building had been used for several years as a moving picture show.

L. V. Duffel intervened in the suit, claiming to have been in the employ of the Community Company, Inc., as manager and clerk in the operation and conduct of said moving picture shows during the months of February, March, April, May, June, July, August and September, 1921, and to be creditor -of Community Company, on said account in the sum of $600.00 with interest, etc. He alleges in his petition that he has in his said capacity of clerk and manager a privilege under the law on the piano, chairs, moving picture machines, stage curtain, furniture fixtures and paraphernalia belonging to Community Company, Inc., situated in said building for the amount due him on account of his said services as clerk and manager for said time. He opposed the payment of the proceeds of said movable property to Noel on the ground that his privilege thereon as clerk and manager was superior to that resulting from the seizure by said Noel in the execution of his act of mortgage.

The plaintiff, Noel, excepted to the petition of said Duffel on the ground that it did not set forth a cause or right of action against him, which was sustained and his intervention dismissed from the suit.

Intervenor appealed, but we do not find in the record any brief in support of the privilege which he claims. The privilege claimed by intervenor is based on the law C. C., Art. 3214 and exists only, “for the last year elapsed and so much as has elaipsed of the current year” counting from the commencement' of the indebtedness and as provided in the law on the subject. The intervention was filed on August 11, 1923. It therefore follows that on the face of the record intervenor had no privilege at the time he intervened, because supposing that one had previously existed in his behalf, it had expired by operation and' limit of the law and did not exist at the time he intervened in the suit. The petition .of intervention therefore alleges no privilege in behalf of the intervenor operating against the property seized by. Noel; therefore, no right or cause of action against plaintiff. The intervenor’s right and cause of .action, without privilege on the property seized by Noel, was reserved as against the Community Company, Inc.

After this case was submitted, intervenor departed this life but Mrs. Bertha Fortier Duffel, administratrix of his succession, was duly made a party hereto.

The judgment appealed from is correct.

Judgment affirnied. • Intervenor to pay the cost of the appeal and the cost of the intervention in the lower court.


text:
    No. 75
    First Circuit
    LEGOE v. M. F. HARLAN, Administrator
    (December 7, 1926. Opinion and Decree.)

      {Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 626.
    The finding of the trial court on matters of fact, namely, that the plaintiff in a possessory action established a disturbance, but proved no damages, being clearly cbrrect, are affirmed.
    Appeal from the Twentieth Judicial District Court of Louisiana, Parish of West Feliciana. Hon. Charles Kilbourne, Judge.
    Action by Marmaduke D. Legoe against M. F. Harlan, Administrator. Possessory action and demand for damages caused by an alleged invasion of private rights.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Charles L. Munson, of St. Francisville, attorney for plaintiff, appellee.
    E. S. Muse, of St. Francisville, attorney for defendant, appellant.
   ELLIOTT, J.

Marmaduke D. Legoe instituted a possessory action, coupled with a demand for damages against M. F. Harlan, administrator of the estate of W. B. Davidson, claiming that said Harlan had in his capacity of administrator within the year, disturbed him in his possession of an acre of ground on which was situated a ginhouse. He prays to be maintained in his possession and for damages caused by the disturbance. The defendant denied that plaintiff had the possession requisite to maintain a possessory action, alleges that he received possession in his capacity of administrator, claims damages on account of loss of tenants, due to the acts of the plaintiff and for attorney’s fees. He prays that plaintiff’s demand be refused and rejected, but does not pray that he be recognized as entitled to the possession of the property in question.

The only question is, therefore, whether plaintiff had possession as alleged by him and if so, whether the defendant disturbed him.

The district judge held that plaintiff was in possession as owner that defendant disturbed him; rendered judgment in favor of the plaintiff on that account but refused his demand for damages. Defendant appealed.

The plaintiff testifies the acre of land With the ginhouse thereon, the possession of which is in dispute is part of a plantation which he acquired by title from L. L.Clack in 1918. That when he went to take possession of his property in 1919, he found W. B. Davidson, who has since departed this life and of whose estate M. F. Harlan is the administrator in possession of the ginhouse and demanded it of him. That Davidson yielded it to him on demand and he has held possession of the same as owner ever since.

Defendant bases his resistance to plaintiff’s demand on a certain act executed by L. L. Clack in favor of E. C. Henderson and E. A. Richardson dated August 11, 1906, and on the fact that Davidson after-wards purchased from Henderson and Richardson their plantation which adjoins that of the plaintiff and made use of the ginhouse for storage purposes without objection so far as known.

The stipulations in the act from Louis L. Clack, plaintiff’s author, to E. C. Henderson and E. A. Richardson, under whom defendant claims, have bearing on the question of possession. The act restricted the use of the acre of ground and the gin-house thereon to E. C. Henderson and E, A. Richardson only, and to no one else unless specially agreed to by vendor L. L. Clack. No special agreement to the contrary appears in the evidence.

The stipulations in the act' and the fact that defendant does not pray in his -answer that the Davidson estate be recognized as the possessor corroborates plaintiff’s testimony that he took possession as owner and has held it ever since.

This disturbance alleged by plaintiff is established.

The judgment appealed from is correct.

The plaintiff filed in this court a prayer for an amendment of the judgment appealed from on the question of damages; but we think the judgment of the lower court also correct in that respect.

Judgment affirmed. Defendant and appellee to pay the cost in both courts.


text:
    No. 3406
    First Circuit
    COTTAM & CO., LTD., v. GONZALES
    (December 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 7, 11.
    Under Arts. 1805 and 1806 of the Civil Code, in order to form a contract the acceptance must be identical with the offer.
    Appeal from the Twenty-third Judicial District Court of Louisiana, Parish of Ascension. Hon Sam A. LeBlanc, Judge.
    Action by H. T. Cottam & Co., Ltd., against Sims H. Gonzales. Suit on an alleged promise by letter to pay the debt of another.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    George R. Blum, of Donaldsonville, attorney for plaintiff, appellant.
    Sidney A. Marchand, of Donaldsonville, attorney for defendant, appellee.
   ELLIOTT, J.

H. T. Cottam & Co., Ltd., brought suit on an alleged promise by Sims H. Gonzales to pay the debt of J. W. Gonzales, as evidence by a letter. J. W. Gonzales owed plaintiff an open- account claimed by plaintiff to amount to $376,00. On August 11, 1925, Sims H. Gonzales wrote plaintiff to the effect that his son J. W. Gonzales wanted him to take his store off his hands and re-open it, saying in the letter “If you will give me time to gather my cotton and cane crop, I will settle his bill for $298.32 by the last of October, no later than the 10th of October. Please let me hear from you at once.”

Plaintiff did not answer the letter until September 16, 1925, which was 35 days later when he wrote defendant that his offer was accepted and enclosed defendant a note for him to sign maturing October 10, 1925. The note had it been signed would have bound the defendant to pay 8 per cent per annum interest after October 10th, while under defendant’s letter, if he had failed to pay as stated, he could not have been held for more than 5 per cent interest. The note would have also bound defendant to pay attorney’s fees which -his letter did not offer to do, would have also been a waiver of legal delays and a confession of judgment, which could not have resulted from defendant’s letter.

Plaintiff contends, however, that its let- _ ter of September 16th amounted to an acceptance of defendant’s offer of August 11th. Such was not the case.

Defendant’s letter had in view the reopening of the store and to that end called for an early reply. It was not timely answered considering the object in view and the stipulations in the note which was enclosed to be signed, amounted to obligations different and beyond the obligation ■which would have resulted from defendant’s letter. Defendant’s offer was therefore not accepted by plaintiff’s- letter of September 16th. The offer of defendant' in his letter of August- 11th and the requirements of the plaintiff as contained in his letter of September 16th were the only communications between plaintiff and defendant on the subject. Civil Code, Arts. 1805, 1806; Elmer vs. Hart, 121 La. 537, 46 South. 619; Worthington Const. Co. vs. Parish, 142 La. 659, 77 South. 492.

The judgment of the lower court rejecting plaintiff’s demand was correct.

Judgment' affirmed. Plaintiff to pay the cost in both courts.


author: LECHE, J.

text:
    No. -
    First Circuit
    DAMON v. RECEIVERS OF THE T. & P. RAILWAY CO. NORTH RIVER INSURANCE CO. v. RECEIVERS OF THE T. P. RAILWAY CO.
    (Consolidated)
    (December 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, unless clearly erroneous, are affirmed.
    Appeal from the Eighteenth Judicial District Court of Louisiana, Parish of Iberville. Hon. H. C. Carruth, Judge.
    - Action by George H. Damon against J. D. Lancaster and C. L. Wallace, Receivers of the T. & P. Ry. Co. And North River Insurance Co. against the same defendants, consolidated.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Laycock, Barron. & Laycock, of Baton Rouge and Plaquemine, attorneys for plaintiff, appellant'.
    Albin Provosty of New Roads, and Jules A. Carville, of Plaquemine, attorneys for defendant, appellee.
   LECHE, J.

These two cases were consolidated for trial and argument. One is for damages for personal injury arising from a collision between the plaintiff’s automobile and a train of the defendant railway company, and the other is for damages to the automobile. The facts alleged to support the liability of defendant are the s.ame.

The Texas & Pacific owns and operates a branch road, connected with its main line at Plaquemine, La., which extends parallel with the public highway and the bayou Plaquemine some ten or twelve miles in a southwesterly direction from the town of Plaquemine. It is called the Bayou Plaquemine or Indian Village Branch and is used exclusively for carrying freight. At a point a few miles out of Plaquemine there is a spur of the Inlian' Village Branch which crosses the public road and extends into the yards of the Louisiana Cooperage Company, along and near the cooper shop, by means of which the products of the Cooperage Company are loaded on cars and shipped to market. Cars are switched in and out of this spur three or four times a week and the engine together with the freight cars for the use of ■ the Cooperage Company, must of necessity cross the public road several times whenever such switching is done.

The plaintiff, Geo. H. Damon, lived at some point beyond the Louisiana Cooperage Company’s plant on Bayou Plaque-mine, frequently drove in automobile from his home or place of business, on the public road which is crossed by defendant’s spur track, to the town of Plaquemine, and it is not disputed that he was familiar with the locality where the accident, the subject of the present litigation, happened.

■ At the time of the collision, Damon was on his way to Plaquemine, and a freight train crew of the railway company was engaged' in switching freight cars across the public highway to and from the Louisiana Cooperage Company’s cooper shop. Damon’s view of the train was partly obstructed by the cooper shop. The train consisting of an engine, tender and three freight cars, was approximately one hundred and fifty feet long; the cooper shop is fifty feet long and is situated parallel to the railroad track at an angle to the public road, one corner of same being five feet and the other corner being about fifteen feet from the road. The locomotive was in front of the freight cars and was moving forward at a speed of three miles an hour and the bell was being rung. According to the testimony of Ryan, the only witness for plaintiff, who saw Damon approaching the crossing of the switch track, Damon was driving his automobile at about ten miles per hour. The automobile struck the step of the pilot of the locomotive, mounted partly over the cowcatcher, by which it was shoved some twelve feet, was turned over and almost completely wrecked. Damon, was pulled out from under the wrecked automobile by the railway engine crew and was painfully injured, though ■ not killed. Such are the. salient facts as disclosed by the record.

Damon filed the present suit, but died of causes unconnected with this accident, before the trial of the case, and the court is therefore deprived of his version of the manner in which the collision took place.

■ It is impossible to reconcile the facts recited, as disclosed by the evidence, ■ with plain ordinary reason, except by attributing to Damon, foolhardiness or senseless recklessness, and that' would be equally unreasonable and unjustifiable. No human being endowed with the natural instinct of life preservation, could thus have acted. An automobile driven at ten miles per hour may be stopped within a space less than its length, and it' is impossible to conceive how it could collide at a crossing on a public road with a locomotive visible five or fifteen feet from the edge of the road which it is about to cross, when moving at a speed of three miles per hour.

It is much more likely and more reasonable to assume that the witness Ryan was much mistaken when he estimated the speed of Damon’s automobile at ten miles per hour. One of defendant’s witnesses who saw Damon approaching the crossing, says Damon was traveling at thirty-five miles per hour. The dent made to the step of the locomotive pilot indicates that Damon ran into the locomotive and our belief from the testimony upon these two facts is that Damon miscalculated the speed of the locomotive, tried to cross ahead of it, and thiis brought about the accident.

There is no doubt that the railway company was negligent in not having a flagman at the crossing, to warn the traveling public, as its locomotive emerged from behind the cooper shop on the public highway. On the other hand, Damon who was familiar with the locality, could, by using the least precaution, have seen the rear part of the moving train, could hear the sound of the bell on the locomotive and was imprudent in attempting to make the crossing ahead of the locomotive. We believe he was also guilty of negligence and thereby contributed to the unfortunate accident. The trial judge so found and we see no reason to disturb his finding.


author: ODOM, J.

text:
    No. 2810
    Second Circuit
    STEARNS v. LOVE DRILLING COMPANY, INC.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Master and Servant —Par. 160 (i).
    Suits under the Workmen’s Compensation Act, No. 20 of 1914, must allege all facts necessary to prove a right to recovery, even though such allegations involve a negative.
    2. Louisiana Digest — Master and Servant —Par. 160 (i), 160 (I).
    Where the plaintiff in a case under the Workmen’s Compensation Act, No. 20 of 1914, fails to allege in his petition sufficient to sustain the action; but filed a motion to amend in the Court of Appeal, the case will be remanded to the District Court for the purpose of allowing the plaintiff to amend.
    ■3. Louisiana Digest- — Master and Servant —Par. 160 (k); Costs and Fees — Par. 51.
    Where the plaintiff files a motion to amend his petition in the Court of Appeal and the case is remanded, the costs of the appeal must be paid by the plaintiff.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926.. Editor’s note.)
    Appeal from the Fourth Judicial District Court of Louisiana, parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Lucinda Stearns against Love Drilling Co., Inc.
    There was judgment for defendant and plaintiff appealed.
    Motion to amend filed in Court of Appeal and case remanded to the District Court for the purpose of allowing the plaintiff to amend petition.
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    Theus, Grisham & Davis, of Monroe, attorneys* for defendant, appellee.
   ODOM, J.

The plaintiff brought this suit under the Workmen’s Compensation Act to recover compensation for the death of her son Clay D. McNeil who was killed while working for the defendant company. Her demands were rejected by the District Court and she appealed.

OPINION.

Plaintiff alleged that the deceased was her son and was killed while at work for defendant and that she was partially dependent on him for support.

But she did not allege that he left no widow or minor child or children at his death.

Defendant, in limine, tendered an exception of no right and no cause of action. The minutes of the court do not show any-ruling on this exception.

At the beginning of the trial of the case, defendant objected to the introduction of any testimony, on the ground that the petition set out' no cause or right of action. This objection was overruled by the lower court and the objection and ruling were made general.

Defendant has filed and now urges in this court the same exception.

The exception is based, upon the ground that plaintiff did not allege that her deceased son did not leave at his death a widow or minor child or children.

Subsection 1 of section 8 of the Workmen’s Compensation Act, as amended by Act 216 of 1924, provides—

“That for injury causing death within one year after the accident, weekly compensation shall be paid under this Act, for a period of three hundred weeks to the following persons:”

Then follow the provisions for the payment to the widow or widower and the child or children of the deceased, in case there be such, and clause (g) of the same section and subsection of the Act, in so far as necessary to quote the same, read as follows:

“If there be neither widow, widower nor child, then to the father or mother of the deceased employee.”

It is perfectly apparent that if the deceased leaves at death either a widow, a widower, or a minor child or children, the father or mother can recover nothing.

As a condition precedent to recovery under the act the father or mother would have to show affirmatively that the deceased child left at death neither of the above named persons; for the survival of either excludes the father or mother from recovery.

Under our system of practice and pleading aU facts which it is necessary to prove in order to maintain an action must be alleged, even though such allegation involves a negative.

Lurie vs. Titcomb, 139 La. 9, 71 South. 200.

Blackburn vs. La. Ry. & N. Co., 128 La. 327, 54 South. 865.

Vinton O. & S. Co. vs. Gray, 135 La. 1050, 66 South. 357.

That principle applies in suits under the Workmen’s Compensation Act as well as in others.

Arthur vs. Alexandria Lumber Co., 143 La. 207, 78 South. 469.

Whittington and wife vs. Louisiana Saw Mill Co., 142 La. 322, 76 South. 754.

Gros vs. Miller’s Indemnity Co., 153 La. 257, 95 South. 709.

In the case of Register and wife vs. Harrell, 131 La. 983, 60 South. 638, it was held, to quote the syllabus written by the court:

“Where a statute gives the parents a right of action for the death of their son only in case he has left no wife and children, the parents in bringing their action must allege thq non-existence of the wife or children, or both, and, where this allegation does not appear, an exception of no cause of action will lie.”

In the case of Blackburn vs. La. Ry. & Nav. Co., supra, it was specifically held that the petition of a mother suing for damages on account of the death of her son, who was alleged to have come to his death through the fault and negligence of the defendant,- should negative the existence of a widow or minor -child of the deceased.

The case of Gros vs. Miller’s- Indemnity Co.,' supra, was a suit -under the Workmen’s Compensation Act', and it -was there held that in such cases the petition must affirmatively show the non-existence of persons entitled to priority of action under section 8, subsection 2, of the Act.

In the case at bar, plaintiff alleged that the deceased was her son, but she did not allege the non-existence of a widow or a child or minor children of the deceased.

The exception of no cause and no right of action is well founded and should have been sustained by the District Court.

The case was tried on its merits in the District Court but no testimony was offered to show that the deceased did not leave a widow or minor child or children.

Counsel for plaintiff made no request of the District Court' for permission to amend the petition, but did file a motion to amend in this court. We think counsel should be permitted to amend the petition.

See Whittington vs. Louisiana Saw Mill Co., 142 La. 327, 76 South. 754.

For the reasons assigned, it is therefore ordered that the judgment of the lower court rejecting plaintiff’s demand be set aside and it is now ordered that the case be remanded to the District Court for the purpose of allowing, plaintiff to amend her petition.

Inasmuch as the motion to amend was filed - in this court and not in the District Court, the plaintiff should pay the costs of the appeal,


text:
    No. 2807
    Second Circuit
    WHITEHEAD v. LOUISIANA PULP & PAPER COMPANY
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)'

    1. Louisiana Digest — Master and Servant —Par. 160 (I); Appeal — Par. 625.
    The finding of the trial court in a Workmen’s Compensation case, under Act 20 of 1914, as to a matter of fact, namely, the disability of the injured employee, unless manifestly erroneous, will be affirmed.
    Appeal from the Fourth Judicial District Court of Louisiana, parish of Morehouse. Hon. Percy Sandel, Judge.
    Action by George A. Whitehead against Louisiana Pulp & Paper Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Todd & Todd, of Bastrop, attorneys for plaintiff, appellee.
    Madison & Madison, of Bastrop, Rudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

This is a suit under the Workmen’s Comipensation Act. There was judgment for plaintiff and defendant appealed.

OPINION.

Plaintiff was employed by defendant as a pipe fitter’s helper at a weekly wage of $21.00. ■ While handling some heavy pipe' he was injured and quit work. He was sent to Dr. Patterson, a local physician, who advised him to go at once to a sanitarium at Monroe and to consult Dr. Johnson. On his arrival at the sanitarium Dr. Johnson was sent for. He made an examination and found that plaintiff was suffering from an inguinal hernia on the right side and advised an operation to which plaintiff agreed to submit. On the following day Dr. Johnson, assisted by Dr. McHenry, performed the operation. They found that the plaintiff had both direct and indirect hernia on the right side and operated for both. The patient remained in the sanitarium for about seventeen days," when he was pronounced cured and sent home. The defendant paid plaintiff compensation for some time and also paid the surgeons’ bills and his expenses while at the sanitarium. The plaintiff claims that he is not now able to do work of a reasonable character. That he is permanently totally disabled on account of the accident. The defendant resists further payment of compensation solely upon the ground that the operation was a success and that plaintiff is completely recovered and is now as whole as ever and able to work.

The question before the court is one of fact, and is this:

Is the plaintiff permanently totally disabled, and if so does his disability result from the accident?

Considering both these .questions together, we find that plaintiff is about 40 years old and up to the time of the accident was strong, able-bodied and accustomed to doing heavy manual labor.

For about three years immediately preceding the accident and injury he had been doing construction work in. the erection of carbon plants, a portion of the time as foreman of the work-gang; but even while foreman he did some heavy manual labor. He showed no signs of physical weakness or disability and' worked regularly. Later he began work for the defendant, doing manual labor, and with the exception of a few days off while disabled on account of minor injuries he worked regularly.

For six years prior to his going to Bastrop to work in the construction of carbon plants, he was engaged as a common laborer in the construction of locks and dams for the government. Since the accident and' the operation which followed he has done practically nothing in the way of work. He says he is not able to work; that he suffers pain in the right1 side of the abdomen, the area of the hernia, and he tries to work, gives out and has to quit.

The testimony shows that after he was sent home from the sanitarium he sought and obtained work as a carpenter and also as a drayman but that he worked for only' a short time when he quit because he was unable to do the work. His employer was unable, df course, to say that he was unable to do the work, but Mr. McKoin says that plaintiff left his employ as a dray-man after working some two or three days saying that he was in pain and could not stand the work.

Finding that he was unable to do such work as he was able to obtain in town, plaintiff moved to the country on land owned by Hiram Wilson — Wilson allowing him to use the house and land in consideration of plaintiff’s paying him $75.00 for the year and looking after Wilson’s stock. Later on plaintiff moved to Henry Bar-ham’s place in the country to grow vegetables and other farm truck. On Bar-ham’s .place, he has done some plowing, distributed some fertilizer and has done some other manual labor about' the place, but just how much work he has done is not' clear.

But the facts are that he had- earned practically nothing from the date of-' the accident and injury in May, 1925, to the date of the trial, in May, 1926.

It is defendant’s theory that plaintiff can work but will not 'do so because if he does he will lose this suit, and in support of that theory it cites the testimony of Hiram Wilson who said that plaintiff told him that he had been offered work at a carbon plant but could not afford to take it because if he1 did he could not get compensation from defendant.

Evidently the district judge did not believe Wilson, and we see no reason why we should under the circumstances.

The defendant quit paying plaintiff compensation in August, 1925. Plaintiff then moved to Wilson’s place in September following and remained there until around March 1, 1926. Wilson says that plaintiff made the statement to him above referred to about the last of February, 1926. But at that time plaintiff was not receiving compensation nor had he filed suit; the suit was not filed until April 5th.

After leaving Wilson’s place plaintiff moved to Barham’s about the 1st of March and tried to farm. There elapsed more than seven months between the date on which his compensation ceased and the date on which suit was filed, during which time plaintiff made repeated efforts to work both in town and in the country. If he had intended to defraud the defendant by feigning disability, there was no reason why he should have put forth so many efforts to work when his - efforts brought practically no remuneration. He could have as easily remained in the house or in bed and with about, as much profit or benefit to himself and family and the effects would have been better from the standpoint of winning a contemplated law-8 suit.

Doctors Johnson and McHenry, who performed the operation, and Doctor Larche who examined plaintiff during the course of the trial, all stated that the operation was a complete success and that plaintiff is in better physical condition now than before the operation and they think he is able to work. We have no doubt that so far as the surgeons are able to determine the operation cured the hernia; they evidently think so.

Doctor Waldsworth takes the opposite view and says plaintiff is not cured.

Doctors Johnson and McHenry say that plaintiff has weak abdominal walls and Doctor Johnson advised him never to do any more heavy manual labor, not because the hernia had not been cured by the operation but because such labor would probably bring on a hernia on the other side.

With due respect to the opinion of the surgeons, the testimony as a whole convinces us .that as a result of the injury which plaintiff received while at work for defendant he is not or was not on the date of the trial able to do any work of a reasonable character. While the surgeons are no doubt honest in their opinion that he has fully recovered from the injury, the testimony as a whole convinces us that he is still suffering disability. He is not able to earn wages and it is impossible to tell when his disability will cease if at all.

Defendant applied for a new trial on the ground that new evidence had been discovered and set forth that one Leary would swear that Doctor Waldsworth tqld him that there was nothing the matter with plaintiff and that he, Waldsworth, had “put one over the court”, and they attach to their motion for a new trial the affidavit of Leary to that effect.

The district judge overruled the motion. We are not disposed to interfere with his ruling, because if Doctor Waldsworth’s testimony were eliminated from the record our conclusion as to plaintiff’s present condition and his disability to labor resulting from the injury would be the same.

We cannot say that the District Court manifestly erred.

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


text:
    No. 2741
    Second Circuit
    BEEBE v. McKEITHEN CONSTRUCTION COMPANY
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1.Louisiana Digest — Master and Servant —Par. 154; Courts — Par. 6, 8.
    Under the Workmen’s Compensation Act, Section 18 of Act 20 of 1914, as amended by Act 234 of 1920, the judge of the District Court of the parish in which the injury was done, or in which the accident occurred, has jurisdiction, regardless of where the defendant .has his domicile.
    2. Louisiana Digest — Partnership — Par. 104.
    Under ’Par. 4, Section 1, of Act 179 of 1918, “Process directed to a commercial partnership, or an ordinary partnership using a firm name, may be made personally upon any member of the partnership wherever found in the parish, or at the office of the partnership upon any member of the partnership.”
    3. Louisiana Digest — Master and Servant —Par. 156. .
    One who is employed to deliver gravel, is directed to haul over certain routes and deliver gravel at certain points, is an employee and not' an independent contractor even though the compensation received by him included payment for the use of the truck.
    4. Louisiana Digest — Master and Servant —Par. 157.
    The hauling of gravel by truck is a hazardous occupation, under section 1, par. 2 (a) and section 1, par. 3, of the Workmen’s Compensation Act, No. 20 of 1914.
    5. Louisiana Digest — Master and Servant . —Par. 159.
    An ' injured employee who was able to work after eighteen days, though it caused him pain, and was fully recov-. ered after two months, is entitled to compensation of 65 per cent of his wages for a period of five weeks under section 8, subsection 1 (a) of the Workmen’s Compensation Act, No. 20 of 1914, as amended by Act 85 of 1926.
    Appeal from the Tenth Judicial District Court of Louisiana, parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Henry T. Beebe against Mc-Keithen Construction Company.
    There was judgment' for defendant and plaintiff appealed.

      Judgment reversed. ■
    James W. J.ones, of Natchitoches, attorney for plaintiff, appellant.
    Breazeale & Breazeale, of Natchitoches, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit under the Workmen’s Compensation Act' (Act 20 of 1914 and amendments) to recover compensation for 100 weeks on account of an injury received by him while working for the defendant. His demands were rejected by the lower court and he appealed.

ON EXCEPTIONS TO THE JURISDICTION AND CITATION.

The defendant is a partnership and was constructing a public road in the parish of Natchitoches. All of the members of the partnership lived and had their domicile in the parish of Caldwell. As stated, they were constructing a public highway in the parish of Natchitoches and the injury of which plaintiff complained' was sustained in that parish.

Defendant' excepted to the jurisdiction of the court of Natchitoches parish, contending that suit should have been brought in Caldwell parish where the partners all reside.

Section 18 of Act 20 of 1914, as finally amended by Act 234 of 1920, page 441, provides that in case suit is brought—

“* * * either party may present a verified complaint to the judge of the district court of the parish in which the injury was done or the accident occurred.”

The accident having occurred' and the injury complained of having been done in Natchitoches parish, the suit was properly brought in that parish.

The citation was addressed to

“McKeithen Const. Co.”

and was served on J. W. McKeithan, one of the partners, in the parish of Natchitoches.

That was sufficient.

Paragraph 4, section 1, of Act 179 of 1918, page 334, reads, in part:

“Process directed to a commercial partnership, or an ordinary partnership using a firm name, may be made personally upon any member of the partnership wherever -found in the parish, or at the office of the partnership upon any member of the partnership."

ON THE MERITS.

Defendant contends that plaintiff was an independent contractor and not a laborer and therefore is not entitled to compensation under the law.

Plaintiff was employed by defendant to haul gravel for the construction of a public road. He owned and used his own truck. He was paid by the cubic yard for hauling the gravel, the price being controlled by the length of the haul, or, 30 cents per cubic yard for the first mile and 10 cents additional for each mile.

He was not employed to haul any specific gravel nor was any quantity stipulated. He did not take the work by the job.

The gravel was carried into the parish by railroad. When the gravel cars were set out at the depot or station on the railroad the plaintiff, along with other haulers, went' there and their trucks were loaded by defendant, when the plaintiff proceeded to carry it to the place on the road as directed by defendant. The hauling was done under the supervision, direction and control of the defendant.

Mr. X X McKeithen, a member of • the firm, testified that his firm had supervision of the entire contract, that some one in charge of the work directed plaintiff where to load the gravel, where to put it, that plaintiff had no specific amount of gravel to haul, that he had a right to quit at any time, and that defendant could have discharged him at any time it saw fit.

Defendant next contends that hauling of gravel by truck is not a hazardous occupation under the law.

These identical points were raised in the case of Dolphus A. Alexander vs. Belton Latimer, No. 2625 on the docket of this court and decided by us at our June session and not yet reported. •

That case on those points is on "all fours” with this one. We there held that under such circumstances the plaintiff was not an independent contractor but a laborer, and our ruling was based upon the holding of the Supreme Court in the cases of Burt vs. Davis-Wood Lumber Co., 157 La. 111, 102 South. 87; and Dick vs. Gravel Lumber Co., 152 La. 994, 95 South. 99.

In that case, as in this, plaintiff was employed to haul gravel by truck at so much per cubic yard. He was injured while driving a truck owned by him.' We held that he was entitled to compensation, and the Supreme Court refused defendant’s application for a writ with the comment that the judgment was correct.

AS TO THE INJURY AND AMOUNT OP COMPENSATION.

It'is not necessary to discuss the injury except the extent and duration of the disability caused thereby, for the reason that it is admitted that plaintiff had his hand injured while in the discharge of his duties.

Doctor C. R. Reed, who dressed plaintiff’s wound, testified that when plaintiff went to him—

“* * * the hand was pretty badly bruised and swollen, and the skin across the hand was knocked loose and turned down; I turned the skin back, and I dressed his hand every day until it did not require it. It' had a cut about 2yz inches long across the thumb, the scar shows for itself; he had a laceration across the knuckle on the back of his hand, on the long finger- — this hand on the back and across it, skin broken and torn and was deeply bruised. * * * He seems to have a slight enlargement on the knuckle of the middle finger on the left hand; it is due to the fact that the cartilaginous pistor was bruised at the time of the accident; that may never get perfectly normal again, as far as size is concerned. That is about the extent of the injuries. I don’t know how much time the man lost.”

He was asked what the effect • of the injury would be, and “what impairment has it made”, and he said—

“The nature of the impairment, we would naturally expect a little more or less stiffness in- the' hand, because as I said he not only had a superficial wound, but he had a deep bruise.”

On being asked if the stiffness and bruising of the tissue inside would affect the griip of . the hand, he said—

“It will as long as it lasts; that condition in the course of time will clear up by use.”

He was not asked and gave no opinion as to how long the condition which he ‘ described would last.

There is nothing in Doctor Reed’s testimony nor in that of the plaintiff to indicate that — “the usefulness - of a member or any physical1 function is seriously, permanently impaired”- and we cannot, therefore, fix compensation under clause (e) of. subjection 1 of. section 8 of the Act.

But plaintiff is entitled to compensation for the period of his disability caused by the accident.

” He says he was “out” eighteen days and that on the eighteenth day he again began to drive the truck and hauled nine loads when the truck broke down. He says, however, that his hand was not well and gave him some pain, and said, further—

“It was something like two months before I could do labor like I should.”

Considering that he was able to drive his truck in eighteen days and that he considered that he had fully recovered in something like two months, we. think it proper to fix the period of disability at five -weeks.

Plaintiff was not employed as a laborer at a fixed wage, and it is impossible to tell just how much he was making. He worked three days and was paid $17.50 for the gravel which he hauled. But that included, of course, the use of the truck which was more or less expensive to operate. The testimony does show, however, that the average daily wage for a truck driver was $3.00 and that they worked six days per week, and we think it proper to adopt that as a basis for his compensation.

. Under clause (a) of subsection 1 of section 8 of the Act he is entitled to compensation at sixty-five per cent of $18.00 or $11.70 per week, for five weeks.

For the reasons assigned, it is therefore ordered and decreed that the judgment appealed from be1 reversed and avoided; and it is now ordered and decreed that plaintiff, Henry T. Beebe, do have judgment against and recover from the defendant McKeithen Construction Company compensation of $11.70 per week for a period of five weeks dating from October 22, 1925, the weekly payments to bear interest at 5 per cent from the dates due, together with all costs of the suit.


author: WEBB, X

text:
    No. 2738
    Second Circuit
    SAULSBERRY v. HEMLER DILL, Intervenor
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of1 fact, where clearly correct', are affirmed.
    Appeal from the Fifth Judicial District Court of Louisiana, parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Tom Saulsberry against John A. Hemler. Bennie Dill, Intervenor.
    There was judgment for intervenor and defendant in intervention appealed.
    Judgment affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellant.

      Warren Hunt, of Rayville, attorney for intervenor, appellee.
   WEBB, X

This action was brought on July 22, 1925, by Tom Saulsberry against J. A. Hemler to obtain judgment decreeing plaintiff to be the .owner and entitled to the possession of a mule alleged to have been in possession of the defendant and obtained a writ of sequestration under which the animal was sequestered.

Hemler answered disclaiming title or possession of the mule, and Ben Dill filed an intervention, alleging that he was the owner of the animal sequestered and entitled to possession of it, and prayed for judgment accordingly.

Trial was had on January 27, 1926, and judgment rendered in favor of intervenor and defendant in intervention appealed.

OPINION.

The issue presented is purely a question of fact, and as may be expected the evidence is very conflicting, the parties themselves and their witnesses identifying the animal sequestered'as being the same which was owned and formerly in possession of the party by whom they were called.

The witnesses based their opinion as to the identity of the sequestered mule with the animal which was at one time owned and possessed by the respective parties, by marks which are more or less common to the species, and the court before whom the witnesses appeared and who had the opportunity of comparing the description of the animal which the parties claimed to have strayed from them with the animal sequestered, and he gave greater weight to the testimony of the witnesses who identified the animal sequestered with an animal which had been in the continuous possession of the intervenor since 1923, until a short time before the suit than to the testimony of witnesses who identified the animal sequestered with an animal which had strayed from plaintiff’s possession in 1923, and which had not been seen since that time either by the plaintiff or his witnesses;' and from our review of the evidence we reach the same, conclusion as did the trial court.


text:
    No. 2708 .
    Second Circuit
    HEARD v. LINDSEY MERCANTILE CO., INC.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Evidence — Par. 351.
    Where the only defense is that there was in fact no transfer of the property and where all the testimony shows that there was and that a valuable and sufficient consideration was given, the plaintiff must be given judgment.
    Appeal from the Third Judicial District Court of Louisiana, parish of Union. Hon. S. D. Pearce, Judge.
    Action by J. P. Heard, Jr., against Lindsey Mercantile Co., Inc.
    There was judgment for the plaintiff and defendant appealed.
    Judgment affirmed.

      H. E. Dawkins, of Farmerville, attorney for plaintiff, appellee.
    S. L. Digby, of Farmerville, attorney for defendant, appellant.
   ODOM, J.

The Lindsey Mercantile Company liad seized under a writ of fi. fa. two mules as the property of J. T. Cole. Subsequent to the seizure, the plaintiff, Heard, enjoined the sale of the mules on the ground that they were his property, he having purchased them from Cole previous to the seizure, paying a valuable consideration therefor.

The Lindsey Mercantile Company, in answer, alleged that the mules were the property of Cole at the time of the seizure, and especially denied that there was a sale of the mules by Cole to Heard.

There was judgment in the District Court in favor of Heard, decreeing him to be the owner of the mules and perpetually enjoining and restraining the Lindsey Mercantile Company from proceeding with the sale.

The defendant has appealed.

OPINION.

The evidence discloses that J. T. Cole was rather heavily involved unto the Lindsey Mercantile Company and in order to secure said indebtedness had executed promissory notes in favor of the company and had made three special mortgages, two on real estate owned by him and one on certain livestock.

On August 17, 1925, the Lindsey Mercantile Company brought suit on all three of the notes and on September 24, 1925, obtained judgment by default against Cole for the full amount sued for, with recognition of its mortgages against the property described in the several acts of mortgage.

On October 9th following it procured the issuance of a writ of fi. fa. under said judgment, causing the two mules in controversy to be seized, and this suit followed.

The two mules seized were not included in the chattel mortgage given by Cole to the company; therefore the company had no privilege on them.

It is alleged in answer of the company that the mules included in the chattel mortgage were traded by Cole for those now in controversy and that therefore the mortgage should be held to . operate against the latter. That point, however, is not pressed by counsel. If it' were, we should hold that the chattel mortgage affected only the property specifically described therein and did not operate against the mules in controversy.

Not only was Cole indebted to the defendant company but he was indebted to Heard, the plaintiff, also. To secure his indebtedness to Heard he mortgaged the two mules in controversy on December 28, 1924, making a chattel mortgage note for $102.00 due on February 1, 1925. This was some eight months prior to the date on which the defendant brought suit against Cole. Cole owed Heard, it seems, additional amounts, his whole indebtedness to Heard totalling approximately $300.00. In the fall of 1925 Heard, it seems, was pressing Cole for a settlement. Having no money with whieh to pay Heard, Cole transferred said mules to him, the consideration being a sum of money, said by some to be $125.00 and by others only $50.00, in cash and the cancellation of the debt. The transfer of the mules by Cole to. Heard was made in the presence of Joe Moore and Earl Moore, who testify that they were called to witness the sale. This was about a week 'before the mules were seized by the defendant.

The defendant does not attack this transfer on the ground that it was made to defraud it or that Cole intended thereby to give an unfair preference to Heard, another creditor. But it grounds its defense solely upon the proposition that there was in fact no transfer by Cole to Heard. This being its only defense, we must hold that the case is with the plaintiff.

Cole testified positively that he sold the mules to Heard, delivered them and that he received as consideration some cash and a release from the debt. His testimony is corroborated by that of Joe and Earl Moore who were present and witnessed the transfer. Defendant offered no testimony.

On cross-examination of (plaintiff’s witnesses counsel for defendant brought out the fact that the mules were in Cole’s possession at the time of the seizure and had never been in Heard’s possession for any length of time.

Cole testified that a day or two after he sold and delivered the mules to Heard he • repossessed them under a lease from Heard, and Gilbert Mabry and E. E. Buckley testified that they were present and heard the agreement between Heard and Cole to the effect that Cole was to be allowed to use the mules during the ginning season for a consideration of $30.00, and there was produced on the trial and filed in evidence a written instrument evidencing such agreement'. The instrument is not signed by Heard but is signed by Cole and bears the signatures of Mabry and Buckley as witnesses.

As the only defense is that there was in fact no transfer of the property and as all the testimony shows that' there was and that a valuable and sufficient consideration was given, the plaintiff must prevail.

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


author: WEBB, J.

text:
    No. 2693
    Second Circuit
    WYLY v. MISSOURI PACIFIC RAILROAD COMPANY
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, namely, the killing of a 'horse and its valué, being clearly correct, is affirmed.
    Appeal from the Sixth Judicial District Court of Louisiana, parish of East Carroll. Hon. F. X. Ransdell, Judge.
    Action by A. J. Wyly against the Missouri Pacific Railroad Company.
    There was judgment for the plaintiff and defendant appealed.
    Judgment affirmed.
    A. J. Wyly, of Lake Providence, attorney for plaintiff, appellee.

      R. P. Kennedy, of Lake Providence, Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

In- this, action, which was filed on March 24, 1925, plaintiff seeks to recover judgment against the defendant for the value of a horse alleged to have been killed on April .4, 1924, by one of the trains operated on defendant’s line.

The answer of the defendant was, in substance, a general denial.

On trial judgment was rendered in favor of the plaintiff for one hundred and fifty dollars, interest and costs, from which judgment defendant appeals.

OPINION.

The defendant urges that the judgment should be reversed upon two grounds.

1st. That plaintiff failed to establish by a preponderance of the evidence that a horse belonging to him was killed by a train operated by defendant on the date alleged.

2nd. That the evidence offered by plaintiff failed to establish the value of the horse.

There were three witnesses who testified that they saw the train strike the animal, and, including the plaintiff, there were four who testified that they saw the animal lying by the side of the track after it had been struck; and there was not any testimony given which directly conflicts with the testimony of the plaintiff’s witnesses, unless it can he said to be that of the section foreman who stated that he had passed along the track where the animal was said to have been struck and that he had not seen it.

■'We do not understand, of course, that it is ’contended this court should disregard the testimony of the- four witnesses for the plaintiff upon the inference which may be drawn from the testimony of the section foreman, but it appears to be contended that the inference to be drawn from the testimony of the section foreman is a link in a chain of circumstances which overcomes the positive testimony of the plaintiff’s witnesses.

The other circumstances in the chain are intimated to be that the plaintiff did not. make any demand on the defendant for payment other than by suit, which was filed just before the expiration of one year from the date of the accident; that the witnesses for plaintiff could not fix the date on which the animal was struck, and that there was a conflict in their testimony; that the defendant had paid a brother of the plaintiff for an animal ■ said to have been killed on the same date as that on which plaintiff alleges the horse belonging to him had been killed; and that plaintiff admitted that in presenting claims against railroads for others it was his custom to exaggerate the claim.

The plaintiff testified that he had made a demand on the defendant, and while the records of defendant do not show any record of the claim it does not follow that the demand was not made.

Two of plaintiff’s witnesses testified that the accident occurred in April, and one, the brother of plaintiff, that it occurred on the 6th or 7th of April (defendant did not plead surprise and ask for the trial to be postponed) and there was also some conflict between the estimates of witnesses as to distances.

The trial was more than a year after the accident and the witnesses 'could not be presumed to be accurate as to the date or distances.

The brother of the plaintiff testified that the animal belonging to him and which was killed, was a black mare, and all the witnesses for the plaintiff testify that the animal belonging to plaintiff was a dark bay horse, and the section foreman says the only animals which had been killed by the train at the approximate ©lace and time were a dark bay horse killed in April and a dark bay mare killed in March.

The fact that plaintiff may have exaggerated the a'mount of the loss in making claims for others, while it may not be the proper method, is not an uncommon practice with those who barter, and we do not think it should be given any weight or considered as a “circumstance”, but even if so considered it' stands alone.

The testimony of the witnesses does not conflict with itself and there is not any irreconcilable conflict in their statements; they do not state any fact which is impossible, improbable or unreasonable, and we are of the opinion the weight of the testimony is with the plaintiff.

The only evidence in the record as to the value of the animal is that given by a witness who formerly bought and sold horses, and the testimony of the plaintiff, both of whom stated that the animal was worth the sum of two hundred dollars.

If we disregard the evidence of the dealer, who is not shown to have had any knowledge of the animal, we cannot disregard that of the plaintiff.

The plaintiff is shown to be an owner of a plantation, the principal business of the community in which he lives is agriculture, or connected therewith, and we cannot say he was incompetent to fix the value of the animal.

The judgment appealed from is affirmed.