text:
    No. 2690
    Second Circuit
    SCHNELZ, ET AL., v. BROWN PAPER MILL CO., INC.
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 160, 160 (a).
    Under the Workmen’s Compensation Law (Section 8, Subsection 2, Clause (g), of Act 20 of 1914, as amended by Act 43 of 1922), where it is proved that the deceased employee, a major son, had been away from his father’s home six months, earning regularly at the time of his death a salary of more than $130.00 a month, and had not contributed anything to the support of his father or minor brother, the father and minor brother will not be entitled to compensation as having been dependent upon the deceased for support to any extent.

      2. Louisiana Digest — Master and Servant —Par. 160, 160 (a).
    Under the Workmen’s Compensation Law (Section 8, Subsection 2, Clause (g), of Act 20 of 1914, as amended by Act 43 of 1922), where the plaintiff, father of the deceased, who was over 21 years of age, is shown to have been, at the time of the death of his son, a merchant owning a stock of goods worth from $700.00 to $800.00, and the building in which he conducts the business, from which business he derives a net profit of at least $1200.00 a year, to own his o,wn residence and two dwelling houses that he rents, and to have -only one child dependent on him for support, he will not be entitled to compensation as having been dependent upon his deceased son for support to any extent.
    (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 Ernest Schnelz et al. against Brown Paper Mill Company, Inc.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Golden & Golden; Madison & Madison, of Bastrop, attorneys for plaintiffs, appellants.
    Randel, Shotwell & Brown, of Monroe; Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Charles Ernest Schnelz sustained an injury in the cause of his employment by the defendant which caused his death. He left neither widow nor children. His father and minor brother brought this suit for compensation under the Employers’ Liability Act, claiming to have been dependent upon the deceased for support to some extent.

Defendant denied that plaintiffs were dependent on the deceased for support to any extent.

On this issue the case was tried and there was judgment rejecting plaintiffs’■ demands and they have appealed.

OPINION

The only question in dispute is whether plaintiffs were actually dependent on the deceased for support to any extent.

This question is one of fact that must be decided from the evidence introduced in the case.

As to the claim of the plaintiff, Leo Schnelz, minor brother of the deceased, the evidence in no way attempts to establish that he was dependent on the deceased for support to any extent or that the deceased had contributed to his support to any extent.

As to this plaintiff, therefore, it is clear that he has no right to compensation as having been dependent upon the deceased for support.

As to the plaintiff, Ernest Schnelz, the father of the deceased, the evidence shows that he was a retail grocer on a small scale at Dermott, Chico county, Arkansas, at the time of his son’s death, and that he did a thirty-day credit business of more than $15,000.00 gross per annum, and from which he derived a net profit of 8 per cent.

Mr. A. N. Heininger, confidential adviser and friend of the plaintiff, Ernest Schnelz, testified, page 36 of the evidence:

“Q. You testified a while ago that a merchant should make about twenty per cent gross profit, average. Do you know what Mr. Schnelz’s net profits ' were, average!

“A. I couldn’t tell you unless you let me refer to the records. His net profits should be around eight per cent after allowing for bad accounts, bad merchandise, expenses, current expenses, of course.

“Q. That would cut his net profits down to about eight per cent?

“A. That would be about right.”

Plaintiff, Ernest Schnelz, owed, in addition to the business in question, the store house in which it was conducted, his own home, two dwelling houses that he rented out, and $2000.00 in the capital stock of a wholesale grocery company, and also a horse and a wagon. He lived very frugally, employing no help except a servant whom he paid $4.00 a week, and a delivery boy, and had only himself and a minor son to support. This minor son worked for his father and attended school, where he had reached the tenth grade.

Under all the evidence we are convinced that plaintiffs were independent of and in no way dependent upon the deceased for support to any extent and that the deceased did not contribute to their support-to any extent.

In their able brief counsel for plaintiffs insist that the plaintiff, Ernest Schnelz, had been losing money since the death of his son, but plaintiff himself testified, page 5 of the evidence:

“Q. Did you owe any debts at the time your son left home?

“A. If I was in debt?

“Q. At the time he left home?

“A. Some, yes.

‘Q. How much'?

“A. Three hundred or four hundred, I don’t know exactly.

“Q.. How much did you owe at the time he was killed?

‘‘A. Well, I guess we were holding about even. Same indebtedness. He promised me he would help me to pay.”

And counsel also contend that the value of all property owned by the plaintiff, Ernest Schnelz, at. the time of his son’s death was less than $5000.00.

Defendant’s counsel, in their brief, contend that the evidence shows that the value of his property was $17,300.00.

We have not found it necessary to verify either of these contentions, for under the evidence of plaintiffs’ own witness, quoted above, we are convinced that plaintiffs were not dependent on the deceased for support to any extent.

Plaintiffs’ counsel cite in support of their contention the eases of:

Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717.

Hamilton vs. The Texas Co., 151 La. 692, 92 South. 301.

Rome vs. Mexican Petroleum Co., 3 La. App. 523.

Cauthorn vs. Cypress Tank Co., 1 La. App. 100.

Heinzelman vs. Board of Commissioners, 149 La. 219, 88 So. 798.

Nelson vs. Henderson Iron Works, 1 La. App. 332.

In each of these cases the deceased was a minor son and the parents of these sons were, under the law, entitled to their wages, and the evidence in each of the cases showed that the parents had been receiving, from time to time, at least a portion of their deceased son’s wages.

In the present case the deceased was a major at the time of his death and his wages belonged to himself, and the evidence does not show that from the time he left home in March, 1924, to his death on August 29, 1924, he had in any way-contributed to the support of the plaintiffs or had paid either of them any sum of money whatever.

Under the authority of Hansen vs. Ohio Oil Co., 2 La. App. 690, we are convinced that plaintiffs were not dependent on the deceased for support to any extent at the time of his death and that the judgment of the district judge, who heard 'and saw the witnesses testify, is correct.

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. 2857
    Second Circuit
    KING v. RAPIDES PACKING COMPANY, INC., ET AL.
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a question of fact will not be disturbed on appeal unless manifestly erroneous.
    Humble Oil & Refg. Co. vs. Michiels, 2 La. App. 337.
    2. Louisiana Digest — Master and Servant
    —Par. 160 (j); Evidence — Par. 351.
    An employee suing for compensation under the ' Employers’ Liability Act must make out his case by a fair preponderance of the evidence.
    DeGruy vs. Cire & Delhoiner, 4 La. App. 558.
    3.Louisiana Digest — Master and Servant —Par. 160 (j); Evidence — Par. , 340, 343, 344.
    The testimony of a reputable oculist that he had examined plaintiff’s eye with the aid of an opthalmoscope and that the examination disclosed that the sight of the eye had been destroyed months before by choroditis is not overcome by the uncorroborated testimony of the plaintiff that he could see by means of the eye until a few days before.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Ned King against Rapides Packing Company, Inc., et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellant.
    Thornton, Gist & Richie, of Alexandria, attorneys for defendants, appellees.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff sues under the Workmen’s Compensation Law of Louisiana to recover damages for the loss of the sight of his left eye alleged to have been caused by a piece of cottonseed hull lodging in the eye.

Defendant denied liability and alleged that plaintiff did not lose the sight of the eye while he was in its employ.

On these issues the case was tried and there was judgment for defendants and plaintiff appealed.

OPINION

In this case plaintiff seeks compensation for the loss of the sight of his left eye. At about four o’clock in tbe afternoon on March 26, 1926, while performing his duties in, defendant’s employ, a piece of cottonseed hull lodged in his left eye; but he continued to work during the remainder of that day. The next morning he complained to his employer ab.out the accident 'and was taken to Doctor E. R. Gandy, a reputable oculist of the city of Alexandria, Louisiana, for treatment.

Doctor Gandy removed the piece of hull from the eye and the inflammation resulting therefrom disappeared in a few days, but plaintiff complained that he could not see out of the eye.

Doctor Gandy thereupon examined plaintiff’s eye with the aid of an opthalmoscope and discovered that the sight had been. destroyed long before by choroditis. He testified, pages 13, 14, 15, 16, 17, 18, 19, 20:

“Q. Just state to the Court what condition you found of his eye?

. “A. * * * I then dilated his pupil and looked into it, and I discovered that he was really blind in that eye, as far as seeing at a distance was concerned; it was due to an old choroditis; that is a condition in which the choroid has been destroyed; and when that is punctured by disease the patient is blind; and I know positively that that is what caused his blindness.

“Q. The choroid, is that inside of the eye?

“A. Yes, sir; the very background of the eye, on the inside.

“Q. Was there any recent injury to that choroid .at all?

“A. None whatever.

“Q. Was this injury from the hull a superficial injury or an internal injury?

“A. A superficial injury.

“Q. Could that slight abrasion that you found on Ned King of the nature to have caused the condition which you found in the choroid which caused his blindness?

“A. No; a foreign body entering the eye might destroy it, and even an abrasion, which is a superficial thing, might have infected it so that it might have involved the whole eye, but in this case it did not. * # * *

“Q. What usually causes choroditis?

“A. I am quite sure that this was syphillis.

“Q. Can you tell by looking into the eye with your scope whether or not this condition of the choroid was of recent happening or of a more earlier date?

“A. Yes, sir; you can.

“Q. With reference to the time that that damage was done to the choroid, please tell when you think it was?

“A. I could not say; it might have happened in childhood. It was back behind this many months, and perhaps years.

“Q. That condition could not have hap pened from January 12th up until the day you discovered the choroditis?

“A. No, sir; not the picture that I saw in his eye; because it was chronic and not recent. Any recent choroditis would have been a very different puncture.

“Q. If this boy says he was not blind before you looked into his eye, he is mistaken?

“A. Yes, sir, he is mistaken about that; he was blind before he got anything into his eye.

“Q. Could he possibly have had normal vision in his eye, in the condition in which you found it, if he had not had the abrasion?

“A. No, sir, he certainly could not.

“Q. Doctor, could this boy read and write?

“A. • I think not; no, sir; he didn’t know his letters.

“Q. From your experience as an oculist, do you ever run across patients who have been practically blind and did not know it?

“A. Yes, sir.

“Q. Does that most frequently occur?

“A. Yes, sir; and you might find it in people of more intelligence than this boy; that often happens.

# # # *

“Q. Can a man have that trouble without knowing it?

“A. Yes, sir, he can; he might have choroditis in which his eye would be violently inflamed and might have it without knowing it. It destroys the vision sometimes before you find the condition. The -eye would be perfectly normal, seemingly, but when you would look in there you would find the' trouble.

“Q. Prom treating this man and examining his eye, it is your opinion that the abrasion from getting the hull in the oye had absolutely nothing to do with the blind condition?

“A. I am definitely sure of that; in fact, I know it.

“Q. Isn’t it possible that this inflammation caused by the lodging of a foreign substance in Ned King’s eye caused this choroditis to take a more progressive form?

“A. It is not; the condition of Ned King’s eye was just like a scar on your hand, and it had been there a long time; we know that; if we don’t know that when we look into the eye, we don’t know anything about the eye.

s¡: >¡s sí«

“Q. .Assuming, Doctor, that Ned King had dormant choroditis at the time of the accident to his eye, would you or would you not say that the injection of this cottonseed hull or a lesion to his eye had a tendency to make it active?

><«>}: si: sfc

“A. It did not in his case; it is chronic, permanent, simple choroditis, and he has had it for years and years and years.

“Q. Did you or did you not tell Mr. Steadman and Ned that his eye would be all right within three or four days, and to come back.

‘A. Yes, sir; I expected it to be, on recount of the mildness of the injury that he had.

$ $ $ $

“Q. Had this man had dormant choroditis would it be possible for it to become active within three or four days and destroy his eye?

“A. No, sir; that would not be possible; an lactive choroditis will run from four to six weeks before it becomes chronic.

‘Q. When you looked into this man’s eye you saw an old scar that had been there for some time?

“A. Yes, sir; it looks like you would take a punch and punch a piece of leather.

“Q. And that old scar was the cause of the blindness and not the recent injury?

“A. It certainly was.”

This testimony of Doctor Gandy that the sight of plaintiff’s left eye had been gone for years is not contradicted by the testimony of any other oculist in a position to • £now the facts; and the testimony of Doctor Gandy that plaintiff for years had not been able to see with his left eye is based on physical facts as to the conditions he found to exist in the plaintiff’s left eye.

The conditions testified to by Doctor Gandy could have been examined into by other oculists and if he was in error this could have been made to appear by the testimony of other oculists; but the plaintiff, upon whom rested the burden of proving that the loss of the sight of his left eye was the result of the piece of cottonseed hull getting into the eye, did not see fit to introduce in evidence the testimony of any other oculist; and we are. convinced that the uncorroborated testi-. mony of plaintiff himself that he could see with his left eye up to a short time before Doctor Gandy examined it does not overcome the testimony of Doctor Gandy that he had lost the sight of the eye long before.

Plaintiff’s testimony that he could seo with the • eye up to the time he. was examined by Doctor Gandy may have been given in perfect good faith. He could easily have been mistaken as to the fact. Doctor Gandy, the oculist, who was in position to know, testified, page 15:

“Q. Prom your experience as an oculist, do you ever run across patients who have been practically blind and did not know it?

“A. Yes, sir.

“Q. Does that most frequently occur?

“A. Yes, sir; and you might find it in people of more intelligence than this hoy; that often happens.”

The trial judge who heard the witnesses testify end observed their demeanor on the witness stand accepted Doctor Gandy’s testimony as decisive of the issue in this case. In our opinion his opinion is well supported by the evidence in the case.

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


text:
    No. 2804
    Second Circuit
    MORRISON v. UNITED STATES FIDELITY & GUARANTY CO.
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par; 625.
    The finding of fact by the judge a qua will not be disturbed on appeal unless manifestly erroneous.
    Smith vs. Crow, 1 La. App. 659.
    2. Louisiana Digest — Master and Servant —Par. 160 (e), .160 (j).
    The fact that, after the accident happening in March, 1922, the injured employee was, in August, 1923, again at work and earning practically the same wages as before the accident, and that after the case had been tried and judgment rendered the judgment was set aside and the case reopened for the admission of further evidence, at which time plaintiff offered no evidence to show that he was unable to retain his employment, warrants the court in finding that at that time plaintiff was able to do work of a reasonable character.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from the Sixth Judicial District Court of .-Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge. •
    Action by Harrison Morrison against United States Fidelity & Guaranty Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dawkins & Dawkins, of Monroe, attorneys for plaintiff, appellant.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover compensation under the Workmen’s Compensation Act.

It is not denied that plaintiff received a serious injury in March, 1922, that incapacitated him from working, and entitled him to compensation from that date to February 22, 1923, to which date the defendant paid him compensation. Defendant contended that on the last named date plaintiff had fully recovered from the injury received and ceased to pay him compensation.

The case was tried on the issue as to whether or not the injury plaintiff received entitled him to compensation as for permanent total disability, or whether, on February 22, 1923, be bad entirely recovered from bis injury.

There was judgment rejecting plaintiff’s demand.

A new trial was granted and judgment was rendered in favor of plaintiff for compensation from February 22, 1923, . to August 28, 1923, the date on which the evidence shows plaintiff obtained employment at a wage equal to that he was receiving before the accident.

Plaintiff perfected an appeal. Defendant answered his appeal and prays that plaintiff’s demand's be rejected.

OPINION

The sole question for decision in this case is whether or not plaintiff was permanently totally disabled by the accident or whether, after February 22, 1923, he was able to do work of a reasonable character.

Plaintiff’s witnesses, Dr. George N. Trezevant an\d Dr. Leo Vandegaer, testified, in effect, that plaintiff was totally disabled to do work of a reasonable character.

Doctors G. W. Wright, J. Q. Graves and J. B. Vaughn, sworn las expert medical witnesses for defendant, gave it as their opinion that at the date of the trial plaintiff had entirely recovered from the injury received in the accident and was entirely able to do work of a reasonable character, and their opinion is strongly corroborated by the testimony of plaintiff himself, who testified that on August 28, 1923, he ' obtained employment from another carbon black company at practically the same wages that he was receiving from the Federal Engineering Company, his employer at the time of the accident.

Our learned brother of the District Court gave plaintiff judgment for compensation from the time defendant ceased to pay him compensation to August 28, 1923, the date on which plaintiff returned to work at practically the same wage he was receiving before the accident. After a careful reading of all 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.

ODOM, J., recused.


text:
    No. 2793
    Second Circuit
    KALISKI MUSIC CO., LTD., v. WALL
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on a question of fact will be sustained by the Court of Appeal unless manifestly erroneous.
    Humble Oil & Refg. Co. vs. Michiels, 2 La. App. 337.
    2. Louisiana Digest — Evidence—Par. 52, 53; Bills and Notes — Par. 216, 231.
    The signer of promissory notes who seeks to escape liability bn the ground that the payee agreed that he would not file suit on the notes carries the burden of proving his contention; and where signer of the notes swears positively that there was such an agreement and the payee swears positively that there was not, the burden resting on the plaintiff has not been discharged.

      DeGruy vs. Cir.e & Delhomer, 4 La. App. 558.
    3. Louisiana! Digest — Bills and Notes — Par. 231; Evidence — Par. 340.
    Where the signer of promissory notes swears that the payee agreed not to sue on the notes and the payee swears that he made no such agreement, the unconditional promise of the signer contained in the notes corroborates the evidence of the payee.
    . Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Kaliski Music Company, Ltd., against S. E. Wall.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    M. C. Redmond, of Monroe, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit on twenty-eight promissory notes signed by defendant. Defendant admits signing the notes ibut alleges that plaintiff agreed not to file suit on them.

Defendant denied that he made such an agreement.

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

OPINION

The question presented for decision is one of fact as to whether or not plaintiff agreed not to file suit on the notes.

Defendant swears positively that plaintiff agreed not to file suit on the notes, and plaintiff swears positively that he made no such agreement.

The burden of proof rested on the plaintiff to establish his special defense; and as his testimony is offset by that of the plaintiff he has failed to discharge the burden resting on him.

The trial judge who heard the witnesses testify and observed their demeanor on the witness stand gave effect to the testimony of the plaintiff. We are convinced that his judgment is correct.

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


text:
    No. 2736
    Second Circuit
    HEMLER v. DUNCAN; J. G. McCORMICK, Intervenor
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Alienation—Par. 21; Bills and Notes — Par. 127.
    “The owner and holder of a series of concurrent mortgage notes who sells one of them, cannot compete with the purchaser thereof in the distribution of the proceeds of a sale of the mortgaged property under executory process provoked by the vendor on the other notes. It would be contrary to good faith that the vendor of a claim, after receiving the price of it from the assignee, should, by his own act, prevent the latter from recovering the sum he has paid.”
    Salzman vs. His Creditors, 2 Rob. 243; In re. Ellington Planting Co., 131 La. 654, 60- South. 25.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by John A. Hemler against Alex Duncan.
    There was judgment' for intervenor, and plaintiff appealed.
    Judgment affirmed.
    George Wesley Smith, of Rayville, attorney for plaintiff, appellant.
    Thompson & Berry, of Winnfield, attorneys for intervenor, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

John A. Hemler sold to Alex Duncan eighty acres of land for the price of $4432.00, of which $400.00 was paid in cash and the balance was represented by ten promissory notes, all signed by the purchaser,- drawn payable to his own order and by him endorsed in blank, all dated November 4, 1918, due respectively, in one, two, three, four, five, six, seven, eight, nine and ten years after their date, all bearing interest at the rate of eight per cent' per annum from maturity until paid and all stipulating payment of ten per cent attorney’s fes if collected by law or placed in the hands of an attorney for collection after maturity, and all secured by vendor’s privilege and special mortgage on the property sold.

The plaintiff, Hemler, sold and delivered the first maturing of the notes to intervenor, J. G. .McCormick, without marking it paid. Subsequently, Hemler sued out executory process against Duncan on the second, third, fourth, fifth and sixth maturing of the notes and asked that, as to them, the. property be sold for cash and, as to the seventh, eighth, ninth and tenth maturing of them that it be sold on a credit, the purchaser to assume the payment of them as part of the price.

But meanwhile the defendant, Duncan, had failed to pay the taxes assessed against the property for the years 1922 and 1924, and McCormick, for the protection of his security, paid the taxes for both years, amounting, those for 1922 to $53.25, and those for 1924 to $68.14, and took from the sheriff and tax collector subrogations of the mortgages of the state and other taxing authorities on the property for the payment of the taxes. These subrogations were duly recorded in the mortgage book.

The property was sold by the sheriff under the order of seizure and sale and bought by the plaintiff Hemler for a price equal to $1,000.00 and the amount .owing on the four unmatured notes, the payment of which notes he assumed.

Before the distribution of the proceeds of sale intervenor McCormick intervened in the executory proceedings, setting up the purchase by him from Hemler of the first maturing of the notes given by Duncan in part payment for the property, and the payment by him for the protection of his security of the taxes assessed against the property for the years 1922 and 1924, and o.f the subrogation of himself to the mortgages of the state and other taxing authorities on the land for the payment of the taxes, and asked that he be paid the amount owing on the note and tax subrogatiqns owned and held by him, in principal, interest and attorney’s fees and the costs of his intervention, by preference and priority over the plaintiff, Hemler.

Plaintiff, Hemler, answered the intervention and denied that intervenor, McCormick, was entitled to be paid the amount represented by the note held by him or the amount of the taxes on the property for the year 1922, in preference to plaintiff; alleging that the note was sold and delivered by him to intervenor under an express agreement that it should not compete with the nine other notes in the distribution of the proceeds of the sale under foreclosure of the mortgaged property, and also alleging that intervenor paid the taxes for 1922 under an agreement between him and plaintiff whereby in consideration of his doing so, plaintiff permitted defendant, Duncan, to move back on the mortgaged property and have the use thereof for the year 1923. As to the taxes for the year 1924, plaintiff admitted that intervenor was entitled to be paid the amount thereof and interest thereon out of the proceeds of the sale by priority over plaintiff’s own olaim.

On these issues the case was tried and there was judgment in. favor of the intervenor and against the defendant for the amount of the principal, interest and attorney’s fees represented by the note held by intervenor, and also for the additional sum of $121.39 with legal interest and penalties represented by the tax subogation held by intevenor, and also judgment in favor of the intervenor and against the plaintiff, decreeing his judgment superior in rank and privilege to the claim of plaintiff and entitled to be paid out of the proceeds of sale in preference and priority to the claim of the plaintiff.

The plaintiff, A. J. Hemler, appealed.

OPINION.

The questions to be decided in this case are issues of fact, namely, whether intervenor purchased the note without condition, or, as contended by plaintiff, under an express agreement that it should not compete with the nine other notes in the distribution of the sale under foreclosore of the mortgaged property; and whether intervenor paid the taxes for the year 1922 under an agreement between him and plaintiff, whereby in consideration thereof plaintiff permitted the defendant, Duncan, to move back on the mortgaged property and have the use thereof during the year 1923.

The plaintiff, Hemler, testified that there were such agreements, and the intervenor, McCormick, testified, equally positively, that there were not. Mr. Hemler’s testimony is not corroborated by that of any other witness. Mr. McCormick’s testimony is corroborated by the fact that the note was turned'over to him without being marked paid and without any limitation or condition being written on it. It is further corroborated by the testimony of Mr. T. J. Mulhern, cashier of the Bank of Alto, to the effect that that bank held the note in question for collection for Mr. Hemler and that Mr. Hemler told him to release the note to Mr. McCormick, but not to mark it paid.

Besides this, the trial judge who saw and heard the witnesses testify and probably know them personally, gave full weight and credit to the testimony of the intervenor, McCormick.

We are convinced that his finding is correct.

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


author: CLAIBORNE, J.

text:
    No. 10,586
    Orleans
    CLESI v. D’ANGELO, Appellant
    (Dec. 13, 1926. Opinion and Decree.)
    (Jan. 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Brokers—Par. 18.
    Where a contract confers upon a real estate agent the exclusive right to sell the property during a specified time, the agent is entitled to- a commission if, during that time, the owner sells the property himself or through an agent.
    2. Louisiana Digest — Master and Servant —Par. 29, 31, 32.
    It is a recognized rule that a party wrongfully discharged from his employment may treat the contract as (performed and recover the contract price as the measure of his damages.
    3. Louisiana Digest — Brokers—Par. 3.
    In the absence of any stipulation in the contract as to the duration of employment, the agent is entitled to a reasonable time within which to procure a purchaser, unless in the meantime the authorization is revoked.
    Appeal from First City Court. Hon. W. Y. Seeber, Judge.
    Action by Nicholas J. Clesi against Salvatore J. D’Angelo.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Prowell and McBride, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff, a real estate broker, claims a commission from the defendant.

He bases his claim upon the following card agreement:

“New Orleans, March 7, 1926.

“N. J. Clesi, Real Estate Agent:

“Dear Sir — I hereby appoint you as my agent and exclusively authorize you to sell the following described property: No. 2842 Laurel Street. The single bungalow, grounds measure 32'xl62'. Price to be $5500, or any other amount agreed upon. Terms, cash. Should you find a buyer or prove instrumental in finding one, or should the above mentioned property be sold by me or any other ' person during the term of this authorization, I will nevertheless pay you 4 per cent commission on the purchase price for your services rendered. The commission being earned and payable when agreement to purchase is signed. I require a cash deposit of 10 per cent to bind the sale, and therefore, authorize you to collect same. This agreement to be in full force and effect for 90 days from above date.

“Signed. S. D’ANGELO,

“634 S. Carrollton.”

Every word in the above contract is printed with the following exceptions only: “March 7-6-2842 Laurel St., Single Bungalow 35x162, $5500, 90 S. D’Angelo, 634 So. Carrollton.” These are written.

The plaintiff alleged that after receiving the above authorization he made attempts to sell the defendant’s property by advertising it and -placing signs upon the property; that on March 8, 1925, the defendant signed an agreement to sell the above property to a party unknown to plaintiff for the price of $5600, through G. L. Deano, real estate agent; that when the defendant signed the above agreement of . sale for $5600 he became indebted to plaintiff, in accordance with the contract with him, for a commission of four iper cent upon the amount of $5600 or $224.00.

The defendant admitted that he had sold the property through Deano; that he was under no obligation to the plaintiff; ‘‘that the card or agreement filed herein bears the signature of the defendant but was given to an agent of the plaintiff, and he signed his name thereto without anything therein except the blank print”; he denied all the other allegations of the petition.

There was judgment for plaintiff and defendant has appealed.

On the trial of the case plaintiff offered in evidence a document dated March 8, 1926. by which S. D’Angelo authorized G. L. Deano .to sell the above property for $5600, and the agreement of M. Louis Miller to buy the same.

The defendant testified that plaintiff’s card was presented to him by M. D’Albora did not write anything upon the card friends; D’Albora said to him: “I am now in the real estate business”; he shoved his hand in his pocket and got a card and said sign here; he said it was an agreement for the sale of his house; this was on March 4th and the card is dated March 7th; the card he signed was in blank and D’Albora said he bould return and fill it out; his son was (present; Clesi did not put signs on his house as far as he knew; he realized he never had a real contract with Clesi; he did not make any agreement relative to the commission; D’Albora did not write anything upon the card in his presence; the card he presented to him was not filled out.

Anthony D’Angelo, defendant’s son, testified that when D’Albora came to his father’s house, his father said to him: “Why don’t you try to sell my house on Laurel Street?” D’Albora then pulled out a card, his father signed it; he does not know whether there was any writing on it; D’Albora did not put any writing on it at the time, he said it was not a contract, just an agreement to show to his office to sell for $5500; this was on Thursday, March14th; on Saturday he called at his office and told him not to sell the house; before his father signed, it was a blank card; his father told D’Albora the lot measured 32x162 feet; D’Albora pulled the card out and his father signed it.

It was admitted that the card was signed on March 4th and not on the 7th.

D’Albora being asked: “Did you present this card to Mr. D’Angelo?” Answered: “Yes.”

“Q. Was it filled out completely?

“A. Yes, from his dictation on the front and back.

“Q. This agreement here, was not completed at the time, was it?

“A. The agreement was as it is. I have not seen the card since.”

In corroboration of this witness the ink and the pen with which the words “S. D’Angelo” are written and the other words, appear to be the same.

But, be that as it may, the printed words of themselves, form the complete contract; the writing expresses only details descriptive of the thing to be sold and the •price; but all the other conditions are in print, and concerning .these the defendant does not say that he did not read them, nor that he did not know them, nor that he was in error concerning them. A party is bound by a written document signed by him, unless he alleges and proves error or fraud. None such is alleged or proven here concerning the printed matter, which is a complete contract by itself, admitted by tbe defendant.

In the case of Viguerie vs. Davis, No. 10,431 Op. Bk. 71, this court said:

“A written offer 'to employ one as agent to sell land signed by the principal and tacitly accepted by the agent constitutes a contract of agency enforcible as to both. Where a contract of agency to sell .real estate is exclusive or is granted for a specified time allowed the agent in which to effect a sale the principal cannot deprive the agent of. his right to commissions by revoking the agency prior to the expiration of the time stipulated and the right of the agent to a commission is not affected by the sale of the property made either by the principal personally or through another agent.”

Admitting that the figures “90” were not upon the card at the time the defendant signed it, to denote the duration of the authorization to sell, still there remains printed words: “I hereby appoint you may agent, and exclusively authorize you to sell” without any fixed time. This would mean that the plaintiff was accorded a reasonable time to perform his contract.

. It has been held that “a broker to sell lands under a contract specifying, no time for performance, is entitled only to a fair and reasonable opportunity to effect a sale”.

“A reasonable time in which to procure a purchaser should be allowed, in the absence of any provisions in the contract of employment, unless the broker’s authorization is in the meantime revoked.” 9 C. X, 606, Note 81 W. Ya. (a).

Plaintiff’s contract was dated Thursday, March 4th, and the defendant sold his property on Monday, March 8th,- five days. The plaintiff was therefore not'' given a reasonable time to perform his contract, and there is no contention that his authorization was revoked.

The defendant argues that the plaintiff did nothing of the things which were required of him to earn his commission. That may be true, but the ancient recognized rule is that a party wrongfully discharged from his employment may treat the contract as performed and recover the contract price as the measure of damages. 12 Orl. App. 385; C. C. 2749; Freeman & Freeman vs. Torre R. & I. Co., 157 La. 1097, 103 South. 334.


author: WESTERFIELD, J.

text:
    No. 9622
    Orleans
    PENNINGTON GROCERY CO. v. SCHMIDT & ZEIGLER, LTD.
    (Jan. 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Carriers—Par. 109; Sales — Par. 58, 112, 116.
    Under a contract stipulating that delivery should be made to the carrier for account of the buyer, the carrier is the agent of the buyer and delivery to it is delivery to the buyer. But the cost of delivery is at the expense of the seller and where the seller of 200 barrels of sugar, packs the- sugar in barrels not suitable for the purpose and the sugar is damaged in transit due to the bursting of the barrels the seller is, responsible.
    Appeal from Civil District Court, Division “C”. Hon. Porter Parker, Judge.
    Action by Pennington Grocery Company against Schmidt & Zeigler, Ltd.

      There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Dart, Kernan & Dart, of New Orleans, attorneys for plaintiff, appellee.
    Dufour, Goldberg & Kammer, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The defendant, Schmidt & Zeigler, Ltd., of New Orleans, sold the Pennington Grocery Co., of Ardmore, Oklahoma, 200 barrels of sugar under a contract which provided, in effect', that delivery should be made to the carrier for account of the buyer.

The sugar was damaged in transit to the extent of $518.11 and the buyer, plaintiff herein, sued the seller, defendant herein, and the carrier, in solido. An exception of non-joinder was filed and plaintiff compelled to elect as to which defendant he would litigate with. He chose the carrier and entered a non-suit as to this defendant. The trial of that suit resulted in a judgment for defendant, it appearing that the carrier was without fault. Thereupon plaintiff brought this suit, in which the foregoing is recited and it is further alleged that the damage to the sugar was entirely due to the “negligent manner in which Schmidt & Zeigler, Ltd., prepared said sugar for shipment and in which it loaded the same in the railroad car”.

. It is also alleged that plaintiff is entitled to recover the cost of the first suit $156.65 as being occasioned by defendant’s negligence.

■ To this petition an exception of no cause of action was filed and maintained. Plaintiff appeals.

‘ The exception was based upon two grounds: First, that the delivery to the railroad company, and' its acceptance of the sugar for transportation, was a delivery and acceptance by the buyer, plaintiff herein, which precluded plaintiff from thereafter complaining of the nature of the containers or the manner of loading the sugar. Second, that the expenses of the first suit are not chargeable against defendant.

Delivery to the carrier is delivery to purchaser under the circumstances obtaining here, but the seller is obliged to deliver the thing sold in proper condition. He cannot excuse his negligence by pointing to the delivery. If as plaintiff alleges the barrels containing the sugar were not properly constructed and not properly packed in the car plaintiff should recover, regardless of the provision in he contract as to the point of delivery. The expense of delivering the thing is chargeable to the buyer. R. C. C. 2483.

“The seller must put' the goods in deliverable condition. The provision of the Sales Act throwing upon the seller the expense of putting the goods in a deliverable state is copied from the English Sales of Goods Act, which in turn seems to .have taken it from the French Civil Code. The provision is declaratory of the law and seems to be a necessary consequence of the duty of the seller to deliver the goods bargained for.” Williston on Sales, p. 785.

It is unnecessary to discuss the second ground urged by defendant since we are of opinion that the petition does disclose a cause of action in other respects.

The judgment appealed from is reversed and it is now ordered that the exception of no cause of action filed herein be overruled and this case remanded for further proceedings consistent with' the views herein expressed.


author: • CLAIBORNE, J.

text:
    No. 9507
    Orleans
    MANSELL HUNT CATTY CO., Appellant, v. ELMER CANDY CO., INC.
    (December 13, 1926. Opinion and Decree.)
    (January 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 239.
    The prescription applicable to the redhibitory action remains suspended during the absence from the state of a seller who is not domiciliated in the state, even in cases where he never resided in the state.
    (Article 2534 of the Civil Code.)
    2. Louisiana Digest — Sales—Par. 236, 237, 240.
    A buyer is entitled to the redhibitory action when the thing sold to him contains a defect which renders it absolutely useless, or its use so imperfect that he would not have purchased it had he known of the defect.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Mansell Hunt Catty Company against Elmer Candy Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellant.
    H. W. Robinson, of New Orleans, attorney for defendant, appellee.
   • CLAIBORNE, J.

This is a suit to recover the price of merchandise sold and delivered.

The plaintiff alleged that it was a corporation organized under the laws of Great Britain with its principal domicile and place of business in the city of London, England; that on November 7, 1919, the --plaintiff received from the defendant an order for 25,000,000 tulips at the price of 16c per 1000, delivery in 1920; that on March 5, 1920, in accordance with said order, the plaintiff shipped to the defendant tulips to the value of $1670.45 which defendant received but refused to pay for.

The defendant by answer filed November 22, 1922, admitted the order for the tulips and the receipt of them.

It further alleged, however, that during January, 1919, defendant had ordered from the plaintiff a large quantity of lace paper strips to be used in decorating boxes of candy under a contract in which it was contemplated that the lace strips would be suitable for use by box makers for assembling candy boxes; that accordingly plaintiff had shipped to defendant lace strips amounting to $1073.30, for which it had paid immediately before it had an opportunity to examine it or to submit it to box manufacturers; that after the defendant had submitted the lace to box manufacturers they reported that the lace was of an inferior quality, that it tore and broke, so that it was impossible to use the same in the lacing machines; that, therefore, defendant is entitled to deduct ■ the amount of said bill of $1073.30 from plaintiff’s claim, $1670.45, leaving a balance of $597.15 due by defendant, which it is willing to pay.

The plaintiff thereupon filed a plea of prescription of one year against defendant’s claim in compensation, and by rule on defendants’ answer asked for judgment for the amount prayed for, $1670.45, or in the alternative for the sum admitted hy the •defendant to be due, $597.15. Upon the rule there was judgment for plaintiff for $590.11. Upon the merits there was judgment for the defendant rejecting plaintiff’s demand.

Plaintiff has appealed.

It was agreed that defendant’s exception should be “regarded technically as a plea in compensation and alternatively a prayer for judgment in 'reconvention”.

Plaintiff’s plea of prescription is based upon Article C. C. '2534 (2512) reading as follows:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale. This limitation does not apply where the seller, had knowledge of the vice and neglected to declare it to the purchaser, nor where the seller, not being domiciliated in the state, shall have absented himself before the expiration of the year following the sale, in which case the prescription remains suspended during his absence.”

We see no reason why the last paragraph of the above article should not apply to a case, as in the one presently discussed, where the seller was not domiciled in the state at the time of the sale and never resided here. The reason is the same arising from the difficulty of making tender of the thing sold, and of suing and citing the seller.

The last section of Article 2534 is a recognition and application of the doctrine, “Contra non valentem agere non currit prescription Whether the seller had been in the state temporarily and had absented himself for a time, or whether he had never resided within the state, the reason is the same.

We therefore conclude that the plaintiff’s-plea of prescription was not well founded.

But the contract of January, 1919, involved a sale of two kinds of strips, one, 2 inches in width and the other 1% inches wide. The price of the former amounted to $739.12, while the price of the latter was only $333.48.

The evidence is that the two-inch strips were too heavily embossed and worthless for the purpose for which they had been purchased. Concerning these there is abundant testimony. But the plaintiff contends that the narrow strips were fit for use. Landsfield and Sequin, both box manufacturers of this city and both of whom attempted to apply the strips, both swear that both sizes were unfit for use. The plaintiffs’ witness himself, Brockelbank, testifies that both strips having been made from the same piece of paper on the same roller would indicate that if there is a defect in one strip the other would also be defective.

Shepley Brown, inspector of finished machines, another witness for plaintiff, who made a test of the lace, said that the narrow strips were found to be satisfactory on test, but the wide strips were unsatisfactory on account of the deep embossing making them weaker at the glue line.

We see no reason to disturb the judgment, and it is therefore affirmed.


author: WEBB, J.

text:
    No. 2745
    Second Circuit
    SIMPKINS, ET AL., v. LOUISIANA RAILROAD & NAVIGATION CO.
    (Dec. 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 62, 67, 80; Negligence — Par. 42.
    The evidence of the trainmen as to -whether signals where given just previous to a collision with an automobile .being more credible, will outweigh that of people living in the town, who had no special reason to observe whether the signals were given.
    2. Louisiana Digest — Railroads—Par. 58, 62, 81.
    It being shown that the signals were properly given by the trainmen and that they used every ¡precaution before crossing the highway at which collision with an automobile happened, there was no negligence of the railroad, and there can be no recovery for damages against the railroad company.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by W. D. Simpkins, et ah, against Louisiana Railway and Navigation Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Breazeale & Breazeale, of Natchitoches, attorneys for plaintiffs, appellants.
    Rusca & Cunningham, of Natchitoches; Wise, Randolph, Rendall & Freyet, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiffs, W. D. Simpkins and Mrs. Ethel Simpkins Swartz, children of Mrs. Alice Marie Simpkins, appeal from a judgment rejecting their demands in an action brought by them against the Louisiana Railway & Navigation Company to recover damages for the death of their mother which they alleged was caused by the negligence of defendant’s employees who were in charge of a train being operated over defendant’s line.

Mrs. Simpkins, on the afternoon of November 4, 1925, was a guest of Mrs. Clara Scopini in an automobile driven by the "latter; and at about 3 o’clock, Mrs. Scopini, while driving along one of the streets in the town of Campti, which leads over the railroad track of defendant, drove the car upon the track in front of an approaching train, where the car stopped and where it was struck by the train and demolished and Mrs. Scopini and Mrs. Simpkins were killed.

On approaching the track, Mrs. Scopini stopped the car at the stop sign, which was about fifty feet from the crossing (from which point to the track there is an unobstructed view of the track to the north, the direction from which the train was approaching, for several hundred yards), and thence Mrs. Scopini drove the car towards and upon the track 'where it stalled and the distance between the train and the car at that time was so short that the collision was inevitable.

The plaintiffs charged the defendants and its employees with many acts of negligence, but only one is pressed here, which is that the signals were not given for the crossing; it being urged that Mrs. Simpkins, being a guest of Mrs. Scopini, whatever may have been the negligence of Mrs. Scopini in going upon the track in front of the approaching train, such negligence cannot be imputed to her guest, and that the evidence not showing that Mrs. Simpkins saw the approaching train, the plea of contributory negligence (set up by defendant in the alternative) has no application and plaintiffs should recover.

The plaintiffs concede that the legal question does not arise unless the evidence establishes that the signals were not given, and they strenuously urge that the preponderance of the evidence shows that the signals were not given.

The train which killed Mrs. Simpkins was a special freight, its speed after arriving in the town of Campti was about ten miles per hour, and before reaching the crossing where the collision, occurred it had passed a crossing referred to by the witnesses as the “Frost-Johnson Lumber Company crossing”, and three crossings similar to the accident crossing, the latter crossings, including the accident crossing, being about four hundred feet apart; and the custom had been to give the signals for the station (which is about seven hundred and fifty feet south of the accident crossing) at the Frost-Johnson crossing and the signals for the street crossings at a distance of about two hundred feet.

The fact as to whether or not 'the signals were given for the accident crossing is very difficult to prove, other than by persons who saw the train at that place and were in position to have heard the signals; and the only persons who were called and who appear to have been in such position as to have been able to testify positively on the question, were the trainmen, engineer, fireman and a brakeman who were on the locomotive and the conductor and two brakemen who were on the rear of the train, and Mr. Pinckard who was standing near the depot, which is about seven hundred and fifty feet from the crossing where the accident occurred.

The trainmen testify that the signals were given, while Mr. Pinckard testified that the whistle was not sounded and that he did not hear the bell. It appears, however, that Mr. Pinckard was slightly deaf and that his vision .was impaired; and it is very easy to reconcile his testimony with that of the trainmen.

The other witnesses who were called were persons who were in the vicinity at the time of the accident, and none of them claimed to have seen the train after it passed the Frost-Johnson crossing until after the. accident occurred, except Clabe Sulinq, who stated that he saw it before it had reached the first crossing above the accident crossing, and that the signal was not sounded for that crossing; the others stating that they had nqt heard the signals for the street crossings, but had heard the signal whistles for the Frost-Johnson crossing, and after the accident had occurred, with the exception of one of these witnesses, none of them had seen the train when it was at the Frost-Johnson crossing, nor had any of them been (present when the signals were given after the accident.

All of the witnesses appear to have been engaged in some work, or bent upon some errand at the time the signals should have been given,' except two, one of whom states that he was, at the time, suffering from pain, and it is not shown that there was any especial reason why they would have noted the signals, if heard, as it does not appear that their occupation was in any manner connected with the signals.

The weight to he given to the testimony ' of the trainmen is dependent entirely upon their individual credibility, while that to be given to the testimony of plaintiffs’ witnesses, conceding that all are credible, is dependent upon the conditions which existed in the town of Campti as to whether or not the signals given by trains is such an occurrence as would be noted, and from our review of the record, we reach the conclusion that considering the tendency of the affairs which the witnesses had in hand to divert their attention from such occurrences, and considering that it is shown to be the usual custom of trains coming into and passing out of the town of Campti- to signal for this crossing, and. that plaintiffs’ 'witnesses, with the exceptions noted, were occupied with other things which attracted their attention, we find that their evidence cannot be said to outweigh that of the trainmen.

Finding that the evidence does not show that the signal for the crossing was not given, it is not necessary to consider whether or not Mrs. Simpkins was guilty of negligence.

The judgment is affirmed.


text:
    No. 2828
    Second Circuit
    HEWITT v. HOLLAND
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    A finding of the trial court on matters of fact, namely, that an attachment was wrongfully issued, and the amount of damages allowed defendant for same being clearly correct is affirmed.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by John J. Hewitt against D. B. Holland.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellant.
    Ellis & Ellis, of Rayville, attorneys for defendant, appellee.
   WEBB, J.

This action arises out of a collision between automobiles belonging to respective parties, which occurred in the day-time on the Dixie-Overland Highway which runs east and west through the parish of Richland, and each of the parties claims the other was in. fault and liable for the damage sustained.

The plaintiff is a resident of the parish of Richland, where the collision occurred, and defendant resides in the state of Texas, and plaintiff, who claimed that his car had been damaged to the extent of one hundred and ninety-eight dollars, filed sut against defendant and prayed for and obtained an attachment under which defendant’s car was seized in the parish of Richland; the defendant bonded the property and appeared through counsel and answered, and under appropriate allegations, recovered judgment against plaintiff for seventy-two and 20-100 dollars damages to his car, thirty-one and 10-100 dollars expense, board and lodging while he was detained by the attachment of his property, fifty dollars loss of time while the car was being repaired, and twenty-five dollars attorney’s fees alleged to have been paid in procuring the release of the property attached.

On trial, judgment was rendered rejecting plaintiff’s demands, dissolving the attachment and awarding plaintiff judgment on his reconventional demand in the sum of seventy-two and 20-100 dollars, the amount of the damage claimed for injury to his car, and otherwise rejecting his demands.

Plaintiff appealed, and defendant has answered the appeal.

It is therefore ordered that the judgment he affirmed.


text:
    No. 2735
    Second Circuit
    GREMILLION, SR., v. COUVILLION
    (Jan. 28, 1927. Opinion and Decree.)

      (Bylabus by the Editor.)
    1. Louisiana Digest — Automobiles — Par. 4 (e), 7.
    Where the evidence clearly shows that a boy pedestrian collided with the running board of an automobile which was driving on the right side of the road at a legal rate of speed, there was no negligence on the part of the driver, but the accident was due to acts of the hoy.
    Appeal from the Twelfth Judicial District of Louisiana, Parish .of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Jerome J. Gremillion, Sr., against C. P. Couvillion.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Bordelon & Norman, of Marksville, attorneys for plaintiff, appellant.
    Porterie & Bordelon, of Marksville, attorneys fqr defendant, appellee.
   WEBB, J.

The plaintiff appeals from a judgment rejecting his demands rendered in an action brought by him individually and as the representative of his minor son against defendant to recover damages alleged to have been sustained as the result of defendant’s negligence while driving an automobile in the town of Moreauville.

The scene o.f the accident was on the public highway (which passes through Moreauville) near a church where many persons had gathered to attend mass, those who came in automobiles parking their cars on each side of the roadway or street, leaving a space in the center for cars to pass “to and fro”, and while defendant, O. P. Couvillion, was driving along that space at an estimated speed of ten or twelve miles per hour, the . car collided with plaintiff’s son, Jerome Gremillion, Jr., a minor past fourteen years of age, who was at the time passing from one side of the roadway to the other.

Neither defendant, O. P. Couvillion, nor Jerome Gremillion, Jr., appear to have noted ' the presence of the other until almost the moment of collision, Couvillion stating that he did not see the boy until he was within a step or two of the car and that the boy ran into the side of the car striking it at a point near the left front door, while Gremillion states that the car struck him as he stepped hack, but that he did not know what part of the car struck him.

The plaintiff contends that he should recover on the ground that defendant was not exercising such care as the situation required, in that he was driving at an excessive rate of speed, having regard to the situation, and in not giving signals of the approach of the car, nor maintaining a proper lookout, and, in any event, had defendant been maintaining such a lookout as the situation required, he would have seen the boy and noted the danger in time to have avoided the accident; while the defendant contends that the 'accident „ was attributable solely to the negligence of the boy in attempting to cross the roadway without regard to the vehicular traffic thereon.

The evidence as to the circumstances of the accident is very conflicting as to the positions ofi. the car and the boy, when the latter started across the road, and as to the part of the car with which he came in contact, as well as the manner in which the boy came upon the roadway and the pace which he maintained in attempting to cross.

We find that the preponderance of the evidence shows the boy collided with the side of the car, his left leg striking the running board at a point near the front door of the car, and as the defendant was driving his car on his right hand side of the street or roadway at a legal rate of speed, we do pot think he can be said to have been guilty of negligence unless the situation was such as to require of him to give signals of the approach of his car or to maintain such a degree of care as would practically insure the safety of persons coming upon the roadway.

The evidence does not show that the roadway had been appropriated by groups or individual pedestrians, or any circumstances which required defendant to give signals of the approach of his car, or to maintain such a degree of care as would insure the safety of persons coming upon the street, as in the case cited by plaintiff (Burvant vs. Wolfe, 126 La. 787, 52 South. 1025); but, on the other hand, it appears that the roadway was being used by vehicles and such traffic was not impeded, and we do not think the situation was such as to require the defendant to anticipate that any one would come upon the roadway without attention to vehicular traffic and without exercising ordinary care.

The fact of the boy having come in contact with the side of the car, we think, precludes any discussion of the doctrine of the last clear chance, as it appears that if the defendant was in any manner negligent, the boy, who was past fourteen years of age, was likewise negligent, and the negligence of the latter continued until the moment of the collision (Harrison vs. La. West. Ry. Co., 132 La. 767, 61 South. 784; also Moran vs. Smith, 95 Atl. 272).

It is therefore ordered that the judgment appealed from he affirmed.


text:
    No. 2791
    Second Circuit
    STATE EX REL. SCOTT v. RATCLIFF
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus by the Gowrt)

    1. Louisiana Digest — Appeal—Par. 475; Courts — Par. 164. 165.
    Act No. 19 of 1912 does not fix the time within which the record in a case transferred from the Court of Appeal to the Supreme Court shall be lodged in that court. Therefore, on motion of appellant that Court of Appeal fix date within which to lodge record in Supreme Court, the record is ordered returned to the district court without prejudice of either party.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by State of Louisiana, on the relation of John Scott, against Clem V. Ratcliff.
    There was judgment for defendant and plaintiff appealed.
    On motion to fix date within which plaintiff, appellant shall lodge the record in this case in the Supreme Court, in default of doing which his appeal shall stand dismissed; judgment ordering record returned to District Court.
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.
    Edward Barnett, of Shreveport, attorney for defendant, appellee.
   REYNOLDS, J.

On November 6, 1926, we ordered this case transferred to ' the Supreme Court', under the authority of Act No. 19 of 1912.

Our judgment did nqt fix any time within which the appellant- should lodge the record in that court, and the appellee has asked that we now fix such time and that in default of appellant complying therewith his appeal be dismissed.

Act No. 19 of 1912 does not fix the time within which the record in a case transferred by this court to the Supreme Court shall be lodged in that court.

In Landry vs. McWilliams, 135 La. 655, 65 South. 875, the Supreme Court said:'

“Act No. 19 of 1912, under the authority of which the transfer was ordered, amends, re-enacts, and supercedes Act 56 of 1904, and does not require that the order of transfer shall fix a return day, or that it shall be predicated uipon an affidavit; and it is silent in regard to method to be adopted in bringing the appeal to this court. Inasmuch, however, as the proper place for the original record, whereby the appeal was taken to the Court of Appeal, is the district court, it appears to us that appellants acted reasonably in having a transcript made to be lodged in this court.

“The motion to dismiss is therefore overruled.”

Under this authority our judgment heretofore rendered is correct, and without passing upon the question as to whether or not we could, before having divested ourselves of jurisdiction of the case, have fixed a time within which the appellant shall lodge the record in the Supreme Court, we are without jurisdiction to do so now, and being without jurisdiction to do so, the clerk of this court is ordered to return the record in the case to First Judicial District Court of Louisiana, in and for the Parish of Caddo, without prejudice to the right of either party, to there take such action in the premises as he may see fit.


text:
    No. 2795
    Second Circuit
    MOBLEY v. HOLDEN
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    The decision of the trial court as to a question of fact will not be disturbed unless clearly erroneous.
    Humble Oil & Rfg. Co. vs. Michiels, 2 La. App. 337.
    2. Louisiana Digest — Evidence—Par. 52, 53; Obligations — Pan 12.
    The burden of proving a contract rests upon a plaintiff who alleges he entered into one with the defendant.
    Civil Code, 2332.
    DeGruy vs. Cire & Delhomer, 4 La. App. 558.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by L. W. Mobley against F. C. Holden.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    O. A. Easterling; McHenry, Montgomery, Lamkin &. Lamkin, of Monroe, attorneys for plaintiff, appellant.
    W. F. Pipes; Robert Layton, of Monroe, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In this case plaintiff alleges that defendant agreed to pay him $1,000.00 commission if he would secure him a purchaser for his property situated in the city of Monroe, Louisiana, at the price of $17,000.00.

Defendant denied entering into any contract whatever witl^ plaintiff.

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

OPINION.

The question for decision in this case is one of fact, as to whether or not defendant employed plaintiff to sell his property and agreed to pay him $1,000.00 commission if he would procure a purchaser for the property at $17,000.00.

Plaintiff swore positively that defendant employed him to find a purchaser for his property at $17,000.00 and agreed to pay him a commission of $1,000.00 for his services and that he. did in fact find a purchaser for the property at the price fixed.

Defendant swears positively that he did not employ plaintiff to find a purchaser for the property on any terms whatever.

The burden of proof rested on the plaintiff, and both he and defendant swearing diametrically opposite to each other, the testimony of the one offset that of the other, and there was nothing proved. Consequently plaintiff failed to discharge the burden of proof resting on him.

Besides this, it is in evidence that plaintiff wrote a letter to defendant demanding a commission of 5 per cent for having found a purchaser for the property at $17,000.00, and this letter, in our opinion, corroborates defendant’s contention that he did not agree to pay plaintiff $1,000.00; for if he had so agreed plaintiff, in this letter would have demanded that amount instead of 5 per cent on $17,000.00.

The trial judge who heard the witnesses testify and observed their demeanor on the witness stand decided the case in favor of the defendant. Under all the .evidence we are convinced that his decision is right.

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


text:
    No. 2737
    Second Circuit
    ALLEN v. BOYETT; FIRST NATIONAL BANK OF WINNFIELD, Intervenor
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    (On Intervention First National Bank of Winnfield.)
    1. Louisiana Digest — Estoppel—Par. 1, 3.
    Parties are not bound by judicial allegations of fact which terminate unsuccessfully.
    Appalachian Corp. Inc., vs. Brooklyn Cooperage Co., Inc., 151 La. 41, 91 South. 539.
    Chaffe vs. Morgan, 30 La. Ann. 1307.
    Appeal from the Eighth Judicial Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Action by J. W. Allen against H. L. Boyett.
    There was judgment for intervenor and plaintiff, defendant in intervention, appealed.
    Judgment affirmed.
    Harry Fuller, of Winnfield, attorney for plaintiff, appellant.
    Moss & Peters, of Winnfield, attorneys for intervenor, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, J. W. Allen, brought suit in the District Court of Winn parish, Louisiana, against defendant, H. L. Boyett, and against the Grigsby Grocery Company, a partnership composed of the defendant, H. L. Boyett, and one Lee J. Grigsby, to obtain a judgment in rem for $251.62 with legal interest thereon from December 31, 1923, until paid, with recognition of a lessor’s lien and privilege therefor on certain furniture and fixtures situated in a building belonging to him in the town of Winnfield, Louisiana.

He alleged that by act dated December 31, 1924, recorded in Book “DD”, at page 535, of the conveyance records of the parish of Winn, he leased the premises referred to to the defendant H. L. Boyett for the years 1922 and 1923 for the price of $100.00 per month; that the lease period had expired by limitation and that there was owing and due to him by the defendant H. L. Boyett for rent of the leased premises, a balance of $251.62.

He further alleged that defendant, H. L. Boyett, had been adjudged a bankrupt and had surrendered all of his property, including the furniture and fixtures in question, to a trustee in bankruptcy, but that the trustee in bankruptcy had abandoned title to and possession of them because they were burdened with privileges and mortgages exceeding their value.

He further alleged that the furniture and fixtures were in the possession of the Grigsby Grocery- Company and in the premises that were subject to the- lease and that under somje groundless claim of the nature of which he was not acquainted -the Grigsby Grocery Company was asserting title to or right to the possession of the furniture and fixtures and that therefore they should be made parties to the suit.

He prayed for service and citation of the defendants, H. L. Boyett and Grigsby Grocery Company, and for judgment in rem, only recognizing his lessor’s privilege on the furniture and fixtures for said sum of $251.62 with legal interest thereon from December 31, 1923, 'until paid, and ordering the furniture and fixtures seized and sold according to law and that he be paid the said sum and interest and costs of suit out of the proceeds of sale in preference to all other persons.

Both H. L. Boyett and Lee J. Grigsby answered, and after trial, judgment was rendered in favor of plaintiff, J. W. Allen, as prayed for. Both defendants appealed.

This court affirmed the judgment of the District Court. J. W. Allen vs. H. L. Boyett, 2 La. App. 643.

Under this judgment the furniture and fixtures were seized and sold according to law, but before distribution of the proceeds the First National Bank of Winnfield filed an intervention and third opposition.

It alleges that, by act before John L. Calhoun, Notary Public, on February 18, 1921, filed for record at 5:00 o’clock p. m., on the same day and duly recorded on February 19, 1921, in Book “A” of Chattel Mortgages, at page 119 of the records of Winn parish, Louisiana, the defendant, H. L. Boyett, had mortgaged to it the furniture and fixtures in question to secure the payment in principal, interest and attorney’s fees, of a certain promissory note, owned and held by it, for the sum of $3200.00,' signed by- H. L. Boyett, dated February 18, 1921, drawn payable to the order of The First National Bank of Winnfield, bearing interest at the rate of 8 per cent per annum from its date until paid and stipulating payment of 10 per cent attorney’s fees in case of suit for collection, and paraphed “Ne Varietur” by said notary to identify it with said act of mortgage. That said note was past due and unpaid and that intervenor was entitled to be paid the amount owing thereon in principal and interest and also 10 per cent on the amount of principal and interest, as attorney’s fes, out of the proceeds of the sale of the furniture and fixtures, in preference to and by priority over all other persons.

It prayed for service on plaintiff and defendants in the main suit and for judgment recognizing its mortgage as a lien on the furniture and fixtures prior in rank to plaintiff’s lessor’s privilege and ordering that it be paid the amount owing to it in principal and interest and attorney’s fees on the said promissory note and the costs of suit out of the proceeds of the sale of the furniture and fixtures by preference and priority over all other persons whomsoever.

The plaintiff, J. W. Allen, answered the intervention, denying that as a matter of law intervenor’s mortgage was superior in rank to his lessor's privilege.

He further alleged—

“* * * that by reason of the fact that the property described in said act (of mortgage) was acquired by the afbresaid bank- (intervenor) during the time in which said bank held the above described mortgage note of $3200.00, ’ the mortgage was extinguished by confusion”.

On these issues the case was tried and judgment was rendered in favor of the intervenor and against plaintiff; that intervenor’s mortgage primed in rank plaintiff’s lessor’s privilege and ordering the proceeds of sale of the furniture and fixtures, amounting to $400.00, less the sum of $25.00 and less, also, the costs of suit on the intervention, to he paid to intervenor by preference over plaintiff.

From this judgment the plaintiff, J. W. Allen, appealed.

OPINION.

Plaintiff, H. L. Boyett, testified:

“Q.- Where were the fixtures that are described in this chattel mortgage here, situated at the time you executed this chattel mortgage?

“A. Where they are now.

“Q. On the. same premises?

“A. Yes, sir; J. W. Allen building; they are now in the same building.

“Q. You were leasing that building at that time, before this mortgage was given?

“A. Yes, sir.

“Q. Mr. Allen and you entered into a lease when you first went into the building?

“A. Yes, sir.

“Q. And that lease was put on record?

“A. .Yes, sir.

“Q. And you were still in the building as a renter when the second lease was executed ?

“A. Yes, sir.

“Q. I will ask you whether or not this first contract was paid up and satisfied when this second lease contract was entered into on December 31st, 1921?

“A. Well, I paid my rent when it was due on the last day of December, 1921.

“Q. When you .entered into the new lease in 1921, did you owe any rent?

“A. No, sir.”

The lease referred to as the “old lease” is declared to have been filed in evidence but we do not find it in the record, nor does the evidence show what_ its terms were and therefore we must presume that it was one by the month. It ceased to exist at midnight on the last day of 1921, and the new lease took effect with the beginning of the year 1922.

Under this condition of facts intervenor’s mortgage on the furniture and fixtures, became, between the ending of the old and the taking effect of the new lease, superior in rank to plaintiff’s lessor’s privilege thereon.

Barnhardt vs. Sandel, 3 La. App. 139.

See also:

Comegys vs. Shreveport Kandy Kitchen, 163 La. 110 South. 104.

Counsel for plaintiff does not seriously contend otherwise, for, in an able and well written brief, he says:

“Since the court has recently held that a chattel mortgage given on property situated in leased premises, but executed prior to a renewal or subsequent lease, primes the lessor’s claim for rent accruing after the execution of said new lease, we-will therefore dispense with discussion of this point. While not abandoning the contention, yet we see no good to be obtained by taking -up the time of your Honors on a proposition already passed upon by you.”

And he adds—

“The only point tó be considered is whether the mortgage executed by Boyett in favor of the hank has been extinguished by confusion?”

He quotes Article 3411 of the Civil Code, providing that:

“Mortgages are extinguished by the creditor acquiring the ownership of the thing mortgaged.”

And he argues that the record in the suit as between J. W. Allen as plaintiff, and H. L. Boyett and the Grigsby Grocery Company as defendants, filed in evidence by (plaintiff in support of his defense to the intervention, shows that it was alleged and testified to that the furniture and fixtures had been sold by intervenor to Lee J. Grigsby.

The defenses there set up by those defendants, failed, and the court rendered judgment against them and in favor of plaintiff, J. W. Allen, ordering the furniture and fixtures sold as the property of the defendant, H. L. Boyett, for the satisfaction of the balance owing by the latter to the former for rent.

The question as to whether a mortgage could bq lost by confusion under such circumstances- is well settled in the negative.

The Supreme Court of Louisiana has said:

“Peremption of a mortgage cannot take place pending the possession of the mortgaged property by the mortgage creditor, who holds under a voidable tax sale; and should such sale be annulled, the mortgage will revive with the rank it held at the date of the sale.”

N. O. Ins. Assn. vs. Labranche, 31 La. Ann. 839.

“The title by which the holder of a mortgage note sought to acquire the mortgaged property, being annulled, confusion and extinguishment cease, and the mortgage still exists.”

Spencer vs. Goodman & Bradfield, 33 La. Ann. 898.

“The eviction of a purchaser under a voidable tax sale, who, at the time of the purchase, held a mortgage. on the property, renews the mortgage and relieves it from all effects, of the extinguishment resulting from the mortgage creditor’s having ing acquired the ownership of the thing mortgaged.”

Dawson vs. Thorpe, 39 La. Ann. 366, 1 South. 686.

“Whilst one cannot be, at the same time, owner' and mortgagee of the same property, if the title which, apparently conveying perfect ownership, is supposed to destroy the mortgage, by confusion, turns out to be no title, or an imperfect title, the mortgage which was suspended and thus apparently destroyed upon the assumption of perfect ownership, revives; the cause of its suspension and supposed destruction no longer existing. ‘The effect cannot have a longer duration than the cause’.”

Pugh vs. Sample, 123 La. 791, 49 South. 526.

“Parties are not bound by judicial allegations of fact which terminate unsuccessfully.”

Appalachian Corp. Inc., vs. Brooklyn Cooperage Co., Inc., 151 La. 41, 91 South. 539.

“Allegations of law unsuccessfully made in a former suit do not estop.”

Farley vs. Frost-Johnson Lumber Co., 133 La. 497, 63 South. 122.

Tircuit vs. Burton-Swartz Cypress Co., 162 La_, 110 South 489.

Under these authorities we are of opinion that intervenor’s mortgage on the furniture and fixtures is still in full force and effect.

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


author: ODOM, J.

text:
    No. 2694
    Second Circuit
    LOWENTRITT v. POSEY
    (Dec. 11, 1927. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus of the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 195, 216; Prescription — Par. 221.
    When suit is brought on a promissory note prescribed on its face and the plaintiff contends that prescription has been interrupted, the burden of proof is upon the plaintiff to establish that fact.
    2. Louisiana Digest — Bills and Notes— Par. 195, 231; Prescription — Par. 223.
    The plaintiff has not proven the interruption of prescription by acknowledgment of the debtor if there were only two witnesses, the plaintiff and defendant, whose evidence was contradictory.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Franklin. Hon. John R. McIntosh, Judge.
    Action by L. Lowentritt against A. O. Posey.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed, plea of prescription sustained and plaintiff’s suit dismissed.
    Thompson & Berry, of Winnsboro, attorneys for plaintiff, aptpellee.
    George T. Edwards, of Winnsboro, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit on a promissory note which is prescribed on its face. Defendant plead prescription of five years, which was overruled by the lower court and judgment was rendered for plaintiff. Defendant appealed.

OPINION. •

The note sued on is prescribed on its face. Defendant interposed a plea of prescription of five years. On the trial of the iplea defendant offered in evidence the note sued on and rested his case. Plaintiff then offered to prove that prescription had been interrupted by defendant’s oral admission of the debt and promises to pay same. Defendant interposed the objection that prescription is not interrupted by oral acknowledgment. This objection was correctly overruled. See Bennett-Brewer Hardware Co. vs. Wakeman, 2 La. App. 376, and the same case 160 La. 407, 107 South. 286.

In order to establish his plea that prescription qn the note had been interrupted, plaintiff called the defendant on cross-examination and interrogated him as to whether he had not on various occasions prior to' the -date on which the. note prescribed on its face, orally acknowledged the debt and promised to pay it. He denied emphatically that he had ever done so. Plaintiff then took the stand as a witness in his own behalf and testified that defendant had acknowledged the debt and promised to pay it. But the testimony is not definite and specific as to dates and places when and where his conversations with defendant took place. He stated that he had numerous conversations with defendant and that in some of them defendant told him that he could not pay then, but would when he was able and that defendant had never denied the debt.

It is very doubtful whether plaintiff’s testimony, standing alone and uncontradieted, is sufficient to show interruption of prescription.

“Acknowledgment, to interrupt prescription, must be direct, specific and absolute.”

Union Bank vs. Evans, 43 La. Ann. 372, 9 South. 44.

Lackey vs. MacMurdo, 9 La. Ann. 17.

Schultz vs. Houghton, 36 La. Ann. 307.

Succession of Jewell, 11 La. Ann. 83.

Ross vs. Adams, 23 La. Ann. 621.

.But it is not necessary to pass upon that question, for the case is with the defendant on another ground.

When suit is brought on an instrument prescribed on its face and the plaintiff contends that prescription has been interrupted, the burden of proof is upon him to establish that fact.

In the case of Bank vs. Evans, 43 La. Ann. 372, 9 South. 44, the court said:

“The note is prescribed on its. face. It devolves upon the plaintiff, to take it out of the rule of prescription by proving previous acknowledgment and interruption.”

See: Utz vs. Peck, 34 La. Ann. 752.

“The burden of proof rests upon the plaintiff to establish with reasonable certainty the facts essential to his recovery.”

Kling vs. Masons’ Fraternal Acci. Assn., 104 La. 763, 29 South. 332.

In order for the plaintiff to recover in the case at bar, it was necessary for him to show that prescription was interrupted. He failed to make that proof by a fair preponderance of the evidence. There were only two witnesses called — the plaintiff and the defendant. Plaintiff’s testimony that there was an acknowledgment of and a promise to pay the debt is flatly and emphatically denied by the defendant. Plaintiff’s testimony is not corroborated by any fact or circumstance. There is no intimation or suggestion that these witnesses are not equally credible. Under such 'circumstances, the question as to whether there was an acknowledgment of the debt is, to say the least, in doubt.

“Where the facts are doubtful, judgment must be given against the party holding the affirmative.”

Walton vs. Grant, 2 Mar. (N. S.) 494.

Bayard vs. Girard Bank, 4 Rob. 262.

Conceding, as we must, in the absence

of any suggestion to the contrary, that the testimony qf the two witnesses is of equal credit,, we must hold that plaintiff failed to make out his case.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and now ordered that the plea of prscription be sustained and ¡plaintiff’s suit dismissed at his cost.


text:
    No. 2096
    Second Circuit
    POLK v. SAUNDERS
    (Dec. 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 68, 73, 89.
    A witness should not be allowed to testify to what he had previously sworn over five years before, in the confirmation of a default, unless it was first ascertained that the witness could recall the facts previously testified.
    2. Louisiana Digest — Appeal—Par. 729.
    A case will be remanded for future trial where it is shown that evidence was introduced at the trial against the objection of the opposing counsel, which should not have been introduced until it was shown that the witness could recall the facts which happened over five years before.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of DeSoto. Hon. John H. Boone, Judge.
    Action by J. E. Polk against D. W. Saunders.
    There was judgment for plaintiff and defendant appealed.
    Judgment annulled and avoided and case remanded for further trial.
    Lee & Bell, of Mansfield, attorneys for plaintiff, appellee.
    Carig & Bolin, of Mansfield, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff filed this action on September 5, 1923, to annul a judgment rendered against him on April 26, 1921, in the cause of D. W. Saunders vs. J. E. Polk, No. 9497, on the docket of the District Court of DeSoto Parish.

He alleged that the judgment was null and void and without legal effect for the reason that defendant was not served with a copy of citation or petition in said cause, and did not take any appearance nor file answer therein.

Defendant answered denying that there had been want of service and alleged that domiciliary service had been made by delivery of copy of the petition and citation to Mrs. J. E. Polk, wife of plaintiff, at his domicile.

On trial, judgment was rendered in favor of plaintiff, annulling the judgment, and defendant appealed.

OPINION.

The judgment attacked was rendered on default and the record of the suit, filed in evidence in this case, does not contain any citation and the plaintiff, J. E. Polk, and his wife, testify that no service of process was made.

At the conclusion of plaintiff’s testimony, the defendant, D. W. Saunders, offered in evidence the notes of evidence taken on confirmation of the default, which were admitted over the objection of (plaintiff, J. E. Polk.

The notes of evidence offered show that C. P. Williams, deputy sheriff, testified on the confirmation of the default, reading in part as follows:

“Q. Mr. Williams, you are a deputy sheriff of DeSoto parish?

“A. Yes, sir.

“Q. You know Mr. J. E. Polk?

“A. Yes, sir.

“Q. Did you, in the suit of D. W. Saunders vs. J. E. Polk, make service on Mr. J. E. Polk?

“A. On his wife, Mrs. J. E. Polk.

“Q. When was that service made?

' “A. It was made a day or two after we got the citation.

“Q. And made at his domicile?

“A. Yes, sir.”

Mr. C. P. Williams was then called by the defendant, D. W. Saunders, and permitted to testify, dver the objection of plaintiff, that the suit had been filed and tried several years before and he had no independent recollection -of having made any service of process therein, but that if lie had testified on confirmation of the default that service was made, that his testimony was correct; and he was further permitted to testify over the objection of plaintiff, in explanation of the testimony given by him on confirmation of the default.

The evidence further shows that4 Mrs. Polk and her husband were living together at the time the suit of D. W. Saunders vs. J. E. Polk was filed, and that she was above the age of fourteen years at that time.

Mr. Williams was not handed the testimony given by him on confirmation of the default in order to refresh his memory; he did not state that he had testified at that time, but the sum and substance of his testimony, given on the trial of this case, was that if he testified on confirmation of the default his testimony was correct, and that if he testified that service was made on Mrs. J. E. Polk, that the service was in fact domiciliary service.

Considering that the testimony given by a witness on confirmation of a default could be admissible in an action to annul the judgment rendered therein, by reason of the fact that the matter was remote and the witness is unable to recall the facts testified to, or that he had testified at all, we do not think such evidence would be admissible unless it was first ascertained that the witness could not recall the facts testified to after being shown the evidence.

The objection to the introduction of the notes of evidence taken on confirmation of the default should have been sustained, which would leave the testimony of J. E. Polk and wife uncontradicted, and thus support the judgment rendered.

However, as we conceive that defendant may have been taken at a disadvantage in permitting the introduction of evidence which does not appear to have been considered, we are of the opinion that it would be best to remand the case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and avoided, and that the cause be remanded for further trial; the cost of appeal to be paid by defendant, appellant.