text:
    No. 2367
    Second Circuit Appeal
    JULIUS PITTMAN v. ROXANA PETROLEUM CORPORATION
    (June 27, 1925, Opinion and Decree.)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 159, 159 (a).
    Where the plaintiff and injured employee suing under the Workmen’s Compensation Act No. 20 of 1914 was suffering ■ disability to do work of any reasonable character at the time of the trial and the end of his disability could not be determined with certainty from the evidence, he should be awarded compensation during disability not to exceed 300 weeks as prescribed by Section 8, Subsection 1 (a) of the Workmen’s Compensation Act.
    2. Louisiana Digest — Master and Servant— Par. 160 (k).
    Under the Workmen’s Compensation Law Act No. 20 of 1914, attorney’s fees should, not exceed 1-3 of the amount recovered; but this amount will not include money paid voluntarily by the employer.
    (The recent amendment of Section 8 of Act 20 of 1914 is Act 216 of 1924.)
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Huey P. Long, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant', appellant.
   REYNOLDS, J.

In this case plaintiff sues for $4,320, compensation at $14.50 per week during disability, not exceeding 300 weeks, for an injury to his left' arm caused by its being struck with a Stillson wrench at or near the elbow on September 5, 1923.

The case was tried on June 7, 1924, and judgment was rendered in favor of plaintiff for $23.14.

Both plaintiff and defendant applied for a new trial and a new trial was granted.

The case was tried a second time on December 17, 1924, and on February 18, 1925, judgment was rendered in favor of the plaintiff for compensation at the rate of $14.40 per week for a period of 100 weeks.

Defendant appealed, and plaintiff has answered the appeal and asks that the judgment be amended so as to allow him compensation during disability for a period of not exceeding 300 weeks.

OPINION

On trial of the case on June 7, 1924, the plaintiff’s injury was admitted to have terminated and there was judgment in his favor for a period of time less than two months.

On 'the second trial of the case — more than six months later — December 17, 1924, plaintiff testifies as to his injuries as follows:

(Page'2):
“Q. Where was this injury?
“A. In the elbow joint.
"Q. I will ask you to please state if your arm has yet recovered from the injury?
“A. No, sir, it has not.”
(Page 3):
“Q. (By the court) When you say in the joint you mean at the point of- the elbow?
“A. Tes, sir. Then when I grab anything in twisting my arm there is a sprain in here like a sprained ankle.
“Q. Causes a sprain in the joint?
“A. Yes, sir.”
“Q: (By tlie court) As I understand you, when you grab anything or turn your wrist it catíses pain in your elbow?
“A. Causes a sprain and there will be three or four days that I cannot use it.
“Q. What do you mean by sprain?
“A. Something like when you sprain your ■ ankle or something.
“Q. In what way does that sprain show itself?
.‘A. Causes this soreness.
“Q. Causes • soreness in the point in the e'boyr?
“A. Yes, sir.”
(Page 4):
“Q. Now, Mr. Pittman, how long have you been working with that arm?
“A. About two months ‘ and a half altogether.
“Q. Two months and a half?
“A. Yes, sir.
“Q. Have you -worked two months and a half straight? ■
“A. No, sir.
“Q. What part of that time have you worked?
“A. About one third.”
(Page 5):
“Q. Now why haven’t you worked more?
“A. I wasn’t able.
“Q. Why weren’t you able?
“A. On account of this arm. When I first went to Arkansas I taken a roustabouting job and the second day I had to quit on account of this arm.”

Doctor E. L. Sanderson testified, page 6:

“Q. I am referring to his left arm only. What did you find from your diagnosis?
“A. There is a very distinct roughening of the ulna extending from the ulna down the arm towards the wrist for about two inches with about a one-eighth-inch elevation and this rough or elevated part of the bone is tender.”
“Q. Did you have the advantage of an x-ray report?
“A. We did.
“Q. What did you determine it to be from that?
“A.- Periostitis.”
(Page 7):
“Q. This injury to the bone is supposed to have occurred on the 5th day- of September, 1923, just one year and three months ago. What is the indication as to 'that periostitis for the future?
“A. Well I would say that it will either finally result in bone disease or it will form an abscess and- come to the surface.”

Doctor G. A. Caldwell testified, page 27:

“I find the condition practically unchanged. There is no swelling about the elbow. There is still a slight inability to fully extend — straighten the arm at the elbow and there is a little so-called joint crepitus in the joint itself — that is a little dry grating that is perceptible when he first makes a movement but not on later movements. Otherwise than that I find nothing but this tenderness which he complains of, tlie tenderness being to the side— on either side of the point of the fracture and extending up the arm. There is no swelling and no tangible external evidence of that injury except the enlargement of the bone and the roughening on the bone which is the result of repair. May I explain that process of repair?”
(Page 29):
“Q. Doctor, just what do you find wrong with this man’s elbow now, to keep him fx'om using the elbow in a perfectly normal way in every day work?
“A. The inability to fully extend the arm is probably accompained by a certain amount of discomfort. In addition to that these joints, where the fracture has occurred in tire joint, do have somewhat more discomfort with changes of weather tlian at any other time but I have seldom seen such a case where one is kept from doing his usual work. Other than that I see no reason for this man not using his joint regularly and freely.”
(Page 34):
“Q. Doctor, you did state that when you caused him to flex the elbow that you heard a grating sound?
“A. Yes, sir.”
(Page 35):
“Q. From your examination of the elbow do you think that the man is stating the truth?
“A. I might qualify that by the truth as he sees it. I think that the patient is absolutely honest with himself about that but it is not infrequent that when one has an injury and has focussed his thought on it for a considerable time that the slighest trouble — the slighest discomfort that results from it — becomes magnified in his mind; and then patients have been taught to fear that they might hurt their injuries or that they might prevent repair in some why and in doing that they become excessively careful; very careful and very sensitive to sensation.”

Doctor C. M. Petty testifies in answer to interrogatory No. 5:

“First he was brought to the Haynesville Sanitarium immediately after the injury. An x-ray picture was made showing the nature and extent of the injury. Fragments of bones were placed in apposition and external wound made aseptic by the free use of tincture of iodine. Arm was immobilized and placed in plaster of paris cast leaving an opening for dressing of the wound. Exterior wound healed without infection. Union of bones cured without any trouble, and he followed my instructions and treatment according to my instructions.”

The diagnosis of Doctor Sanderson is diametrically opposite to that of Doctor Caldwell.

Doctor Sanderson thinks the plaintiff •is suffering from periostitis.

Doctor Caldwell thinks his arm is well and that he could work if he would try.

“Who shall decide when doctors disagree and soundest casuists doubt like you and me?”

Plaintiff testified that his arm was still tender on the day of the last trial and on this point Doctor Sanderson and Doctor Caldwell agree.

Doctor Caldwell testified that the tenderness extended on both sides of the arm and was a matter that could not be “faked”.

The District Judge who tried the case and saw and heard the witnesses, held that plaintiff was still suffering from his injury and that the determination of the effects of the injury had not yet been reached at the time of the second trial. We cannot say that his finding on this point was manifestly erroneous.

This court in the case of T. J. O’Donnell vs. Fortuna Oil Company held that where a plaintiff in a suit for compensation under the Workmen’s Compensation Act was still suffering disability and unable to do work of any reasonable character at the time of the trial and the end of his disability could not be determined with certainty from the evidence, he should be awarded compensation during disability, not exceeding the time prescribed in the Workmen’s Compensation Act.

For the above reasons, it is ordered, adjudged and decreed that the judgment appealed from be amended by changing the time during which plaintiff shall receive compensation from 100 weeks to the duration of his disability, not exceeding 300 weeks, subject to the credit allowed in the judgment appealed from.

And accordingly it is ordered, adjudged and decreed that there be judgment in .favor .of the plaintiff, Julius Pittman, and ■against defendant, Roxana Petroleum Corporation, for compensation at the rate •of $14.40 per week during plaintiff’s disability, not to. exceed '300 weeks, the ' first payment being decreed due September 12, 1923, with legal interest on each weekly payment from its maturity until paid; less the payment made by defendant to plaintiff, amounting to " $306.00 , which payments are to be credited on. the first installments of compensation due under this judgment.

The contract between plaintiff and his attorney for fee is approved for' one third 'of the net amount recovered by 'plaintiff under this judgment but shall not be •deemed to include one third of the amounts voluntarily paid by defendant to plaintiff.

All costs in both courts to be paid by defendant.


source: Caselaw Access Project

author: CARVER, J.

license: Public Domain

text:
    No. 2357
    Second Circuit Appeal
    FRED BELL v. MERCHANTS COTTON OIL COMPANY
    (July 23, 1925, Opinion and Decree.)
    (Oct. 21, 1925, Rehearing Refused.)
    (Judgment Court of Appeal Affirmed. See Supreme Court Docket 27,614.)

      (Syllabus by the Editor.)

      1. Louisiana .Digest — Master and Servant— Par. 154, 159.
    Under Section 8, Subsection 1 (d), of the Workmen’s Compensation Act, No. 20 of 1914 any injury to a member less than that provided for should not be , regarded as serious but as a trifling in- ' jury not entitling the workman to compensation.
    2. Louisiana Digest — Master and Servant— Par. 159, 159 (a).
    Where an injured employee suing under the Workmen’s Compensation Act, No. 20 of 1914, lost one phalanx of a finger he cannot recover under Section 8, Subsection 1 (e), as the loss is not sufficiently serious.
    (The recent amendment of Section 8 of Act No. 20 of 1914 is Act 216 of 1924.)
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit for compensation under the Workmen’s Compensation Act No. 20 of 1914 is judgment for plaintiff and defendant appealed. ' '
    Judgment reversed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    Browne & Browne, of Shreveport, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues for compensation under the Workmen’s Compensation Law (Act 20 of 1914, section 8, as amended by Act 216 of 1924).

The sole injury is the loss of one phalanx of the third finger of plaintiff’s right hand, It is conceded that the injury did not disable plaintiff even partially.

The District Judge allowed compensation at $3 a week for 100 weeks under clause (e) of subsection 1 of section 8 which reads as follows:

“In cases not falling within any of the provisions already made where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in cases of specific disability above named, not , to exceed sixty-five per centum of wages during one hundred weeks.”

Under clause (d) of that sub-section compensation is fixed for various specific injuries amongst which is sixty-five per centum of wages during thirty weeks for the loss of the first finger and the same percentage during twenty weeks for the loss of any other finger. This clause further provides that the loss of the first-phalanx of the thumb or two phalanges of any finger shall be considered equal to the loss of one-half of the member affected and the compensation shall be one-half of the amount specified for the loss of the entire member.

The Supreme Court in Garr vs. Wyatt Lumber Co., 147 La. 690, 85 South. 640, interpreted subsection (e) above mentioned as fixing definitely the period of payment at 100 weeks and giving discretion to the judge only as to the percentage of wages.

Another section of the compensation-law provides that the minimum weekly compensation in any case shall be $3 per week. If plaintiff is entitled to compensation in this case, therefore, the minimum amount' which can be allowed is $500.

If a workman loses two phalanges of any finger except the first, he would be entitled to 65% of wages for ten weeks. Unless his wages were over $46 a week, 65% of which would be $29.96, he- would get less than $30 a week and for only ten weeks or less than $300 in all.

In this case plaintiff’s wages being $13.50 per week 65% of which is $8.77%, he would be entitled, for' the loss of two phalanges, to only $87.75. But if the injury is compensable under clause (e) the allowance must be $300 or more.

if plaintiff’s contention is correct, that the loss of one phalanx not being covered by subsection (d) must necessarily be covered by subsection (e), then for the loss of one phalanx of a finger the compensation would be greater than for the loss of two phalanges.

We do not think the legislature intended any such result as this. We think that clause (e) is intended to cover, not all cases of trifling injury, but only cases resulting in a serious permanent disfigurement about the face or. head or a serious permanent impairment of the usefulness of a member or. a physical function.

As providing as it did in subsection (d) for compensation for specific injuries for the whole and for parts of certain members, we think it intended that any injury to a member less than that provided for should not be regarded as serious ■ but as a trifling injury not entitling the workman to compensation.

For these reasons it is decreed that the judgment of the lower court be set aside and plaintiff’s demands- rejected and his' suit- dismissed at his costs.


author: LECHE, J.

text:
    No. -
    First Circuit Appeal
    MRS. JEANNETTE ROOS HAAS v. GOETZ AND LAWRENCE
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 17 41.
    While walking on a dredge boat, there was a crash due to the breaking of an eye-bolt and two men- were caught by a swinging wire cable and maimed. One man afterwards died of his injuries. Held: That the cause of the accident could riot be traced and consequently no fault of the owners of the dredge boat could be shown.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Thirteenth Judicial District Court, Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit to recover damages for personal injuries and death. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John W. Lewis, of Opelousas; attorney for plaintiff, appellant.
    J. Zach Spearing, of New Orleans, and Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for defendant, appellee.
   LECHE, J.

On September 27, 1922, while plaintiff’s husband was visiting a dredge boat which was being operated in a canal, he was by the breaking of part of the equipment, so severely injured that he died a few days thereafter. The present suit is for damages and is brought against Goetz & Lawrence, alleged to be the owners of the dredge boat and subcontractors engaged in excavating the canal.

This work was being done as part of a drainage system under the authority of the Bayou Boeuf and Waxia Drainage District Board of Commissioners. The board had entered into a contract with the Louisiana Construction Works to excavate a canal for drainage purposes. Dr. Haas, husband of' plaintiff, was a member of the partnership constituting the Louisiana Construction Works. George E. Moore & Co., subcontracted with the Louisiana Construction Works and assigned their subcontract to Goetz & Lawrence, a partnership domiciled in the City of Shreveport and defendant in the present suit.

Goetz & Lawrence entered unto a contract with Savant & Perkins to take charge of and manage the dredge boat. The latter contract plays an important part in the companion suit of Savant against these same defendants and is to be found at page 00 of the transcript. Savant seems to have been the general manager and the man in charge of the dredge boat when the accident happened.

On the 27th of September, Savant, Dr. Haas, Beall and one or two others visited the boat which was then located in a canal in an almost unpenetrable swamp. Savant and Dr. Haas were taken from the bank of the canal to the dredge, in a boat of some kind, and having embarked on the aft of the dredge boat walked along its left side towards the front where the operating machinery was located. Just as they neared a point forward of the middle, on the left side, there was a crash and both men were caught by a swinging wire cable. They were both seriously maimed and injured and Dr. Haas died a few days later from his injuries.

The important and in fact the sole question in the case is whether the accident occurred from the fault, negligence or want of care of the defendants, Goetz & Lawrence.

The cable by which the excavating spoon was controlled was held in place on the movable boom by an eye-bolt and the breaking of this eye-bolt loosened the cable which swung around, caught Dr. Haas and caused the injury from which he died. The concrete question is what caused the eye-bolt to break. Upon that point, testimony has been elicited from six witnesses. No one of these witnesses pretends to account positively for the breaking of the eye-bolt. Most of this testimony is opinion evidence. Some of the witnesses advance theories which might explain the breaking. Crystallization of the metal, whatever that may be, is one theory and another is that the operator of the dredge might have submitted the cable to a sudden and violent jar. An expert engineer says that the lifting capacity of the eye-bolt and rigging was 180,000 pounds and that the ordinary weight of the dipper was from 15,000 'to 20,000 pounds. It further appears that the spoon at the end of the dipper was empty at the time the eye-bolt was broken. The mechanic who was in control, says that in operating the dipper, the cable was not submitted to any unusual strain or jar at the time of the accident. The theory of crystallization is even less supported by the testimony than that of sudden strain or jarring. These theories may or may not be correct but it is not denied or controverted that no one knows the precise cause of the break, that the eye-bolt was of standard manufacture and of such material, size and quality as is used by all dredge-boats operated in similar work. That previous inspection could not have disclosed any fault or weakness in its construction and that it had been inspected two days before the accident.

We do not consider that the testimony thus adduced on the trial of the case, supports the plea of negligence or want of care on the part of the defendants.

Plaintiff contends however, that even if the evidence fails to affirmatively disclose negligence, the same should be presumed under the doctrine of “res ipsa loquitur”. But admitting for the sake of argument that doctrine as appropriate to the facts in this case, the presumption which it establishes, is rebuttable and in point of fact, it is rebutted by the testimony in the record.

Under Art. C. C., 2315, one can only be held liable where he is at fault. Defendants are not shown to have been at fault and are therefore not liable. The unfortunate event which caused the death of plaintiff’s husband, the real cause of which cannot be traced and is not apparent, belongs to that class of occurrences which are designated as purely accidental.

The trial judge so found and his judgment is affirmed.


author: ELLIOTT, J.

text:
    No. --
    First Circuit Appeal
    R. A. DAVIS v. E. B. GILLIS
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    Where an employee’s leg is injured so that he must use crutches to walk, he can recover for temporary total disability under Employers’ Liability Act No. 20 of 1914, Sec. 8, Sub-sec.' 1 (a) notwithstanding the provision in Section 8, Subsection 1 (b) which state that “The permanent total loss of the use of a member, shall be equivalent to \he amputation of the member”.
    Appeal from the Twenty-sixth Judicial District, Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit brought by the father for his minor son for compensation under Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment affirmed.
    E. L. Morgan, of New Orleans, attorney for plaintiff, appellee.
    B. M. Miller, of Bogalusa, attorney for defendant, appellant.
   ELLIOTT, J.

R. A. Davis, acting in behqlf of his son Dan Davis, a minor, and for the use and benefit of his son brought suit for compensation against E. B. Gillis on account of injuries received by his son while in the employ of said Gillis. He claims $4.50 per week for a period of three hundred weeks counting from November 2, 1922; less 47 weeks received, basing his claim on Act No. 20 of 1914 (Amd. Act 43 of 1922), Clause I, Paragraph A, of Section 8, which reads:

“For injury producing temporary total disability to do work of any reasonable character, sixty per cent of wages during the period of disability, not, however, beyond three hundred weeks.”

Defendant claims that the compensation in question should be fixed under Paragraph E, of said Section and if not, then, under Paragraph D, which provides that “the permanent total loss of the use of a member, shall be equivalent to the amputation of the member”, and that Dan Davis having suffered the total loss of the use of his leg his compensation should be fixed at 175 weeks.

The district judge classed the injury under Clause I, Paragraph A, and allowed compensation during the period of disability, not, however, beyond 300 weeks less 47 weeks received.

Defendant appealed.

The testimony shows that Dan Davis received his injury in the employ of defendant, Gillis, on November 2, 1922, and that it consists of a compound fracture of the leg just below the knee; that his leg has been shortened by the injury, crooked 40 or 50 per cent, made stiff at the knee and that his leg cannot be straightened. He can hobble about on one foot a little; that he can just reach the ground with one toe of his foot on his injured leg, and cannot walk without crutches. His father, R. A. Davis, testifies that his condition is worse than if the leg had been taken off, because he could then use an artificial leg that would go to the ground; that he has not been able to secure- employment since his injury, etc. We have considered the evidence. The case was not tried until December 8, 1924, more than two years after the injury. His injury seems to be permanent and total and so far he has not been able to do work of any reasonable character; yet it may not and should not prove a total disability; there are fields of endeavor open to him, but not at present and the evidence does not indicate when his disability to do work of any reasonable character will terminate. He will have to make other arrangements for work and it may take a long time to qualify him for his new employment.

It is not at all clear that it would be better to amputate his leg, it may prove to be of service under future treatment; the only question is whether the injury comes under the class denominated as temporary total disability £o do work of any reasonable character and we find that it does and that the situation has continued and continues as above stated. The cases Mack vs Legeai, 144 La. 1017, 81 South. 694; Garr vs. Wyatt Lumber Co., 147 La. 689, 85 South. 640, appear to be based on similar situations.

The judgment appealed from appears to us to be correct.

Judgment affirmed.

Defendant and appellant to pay the cost in both courts.


text:
    No. 22,956
    First Circuit Appeal
    DARIUS M. FONTENOT v. R. L. BAILEY
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Tjmber—Par. 15.
    When the trespass is not wilful but the result of mere inadvertence, the value of the timber when first cut is the measure of damages. Therefore, where trees are cut the owner is entitled to the stumpage Value.
    2. Louisiana - Digest — Sequestration—Par. 10, 11.
    A writ of sequestration may only issue in aid of ownership or of a privilege. . Therefore where plaintiff cannot identify the logs seized as having been cut from his land, the sequestration will be dissolved.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge. .
    This is ■ a suit for ownership of logs or their value coupled with a writ of sequestration.
    Money judgment reduced and sequestration dissolved.
    There was judgment for plaintiff maintaining the sequestration and a money judgment upon failure to deliver the logs. Defendant appealed.
    R. Lee Garland, of Opelousas, attorney for plaintiff, appellee.
    John W. Lewis, of Opelousas, attorney for defendant, appellant.
   LECHE, J.

Plaintiff obtained the sequestration of sofaie 433 cypress logs situated on the hanks' of a canal in the Parish of St. Landry. His demand is for the ownership of the logs or their value. Judgment was rendered in his favor for such logs as was cut from his land, the number and location therof' not mentioned, and .upon failure of delivery by defendant, for $1455.55. The sequestration of the logs was also maintained by the court. Defendant appealed.

Defendant, who is a resident of Avoyelles, filed a plea to'the jurisdiction of the court rations personae. Personal service of citation was made on defendant in St. Landry Parish in Jan., 1924, and on Feb. 13, 1924, a preliminary default was entered against' him. The exception to the jurisdiction of the court was filed in June, 1924. Such an exception is dilatory, and comes too late when filed after a judgment by default. C. P. 333; West vs. Lehmer, 115 La. 213, 38 South. 969. The lower court properly overruled the plea. Plaintiff claims ownership of these logs by virtue of a written deed from the Anchor Sawmills .Company of the State of New York, dated Dec. 5, 1923. In this deed, all the timber on the land described in the deed is transferred to plaintiff. This transfer was made by Gardener, vice-president of the Anchor Sawmills Company, under authority of a resolution of its Board of Directors. The defendant contends that most of the logs seized had been severed from the land when plaintiff acquired, and that his sale could apply only to the standing timber. If this timber was cut before plaintiff bought, it is not clearly shown that he was aware of the fact. Plaintiff apparently purchased under the honest belief that he was buying all of the timber. Defendant, in his answer it is true claims the ownership of the logs, but it is equally true that according to his testimony, he lays no claim thereto as owner or possessor through any deed of transfer, lease or any other contract whatsoever. 'The fact is that he' admits to have cut the trees, through his employees, without any legal right, and he has therefore no interest in questioning the validity of plaintiff’s title thereto.

The important and much controverted question in the case is whether defendant in cutting these trees acted in good or bad faith. This must be ascertained in order that we may properly fix the amount of damages for which defendant must.be held liable.

The trees in question were cut from swamp lands situated in the Parish of St. Landry. These swamps are owned by various owners. The defendant is a large timber operator who had under his control at the time, several thousand acres of these lands.. He owned the timber on the Whitman tract which adjoins on three sides, the land from which these trees were taken.

McAdams, a witness for plaintiff, who testified that he was familiar with the tract of land in question from which these logs were removed, said that a good deal of confusion as to the lines exists in that .section of St. Landry Parish, and as he' expressed it: “Was the worst place I was ever in”. Testifying further, he said sometimes the timber and lumber men could not help from getting over these lines. He gave an instance where 400,000 feet of timber were taken from lands in which he was interested and through a “mistake”, but said that the line was not plain. This witness also said, it is true, that the boundary lines of plaintiff’s land were well marked, and that he could not see how they could have crossed by mistake, but the foregoing statement taken from his testimony makes it apparent that much confusion existed in these lines and .that an error could have been honestly made in reference thereto. The testimony of the other witnesses which we will hereafter consider makes it still more evident that an error could have been fallen into, and in good faith, by any woodsmen felling timber in these swamps. Kimbal, another witness for plaintiff, testified that there were many lines in that locality, and that he had gotten confused, but “not often”.

Perkins, witness for defendant, an employee of the Lake Swayzee Lumber Company which is running a sawmill not far from where the logs in question were taken, testified that he had been logging for 15 or 16 years, and never a year had passed that he had not cut timber across the lines of some other owner or proprietor, through error. He was asked if he had ever gone across the timber of some one else as the cypress in the instant case had been cut from plaintiff’s land. His answer was' that personally, he had not, but that his laborers had. W. R. Messick, a surveyor who made 9. survey of these lands for defendant, testified in reference to the lines existing in that section. He said in reference thereto that from his experience and observation, the situation existing there would present a confusing one to a layman or woodsman, unless he had been instructed by some engineer. R. Lee Robert made a survey of the land for plaintiff and stated in making the survey he had found the lines well marked on the trees; that they had checked up all right with his survey. It must be observed that this statement is from a surveyor. Marks on trees and other insignia of boundary lines are more easily ascertainable by men versed in that profession, than they are by ordinary laymen or w'oodsmen. His testimony in reference to the existing marks on the trees cannot be given the effect of destroying the evidence of the other surveyor, Messick, that the situation existing in that particular locality in reference to these lines, would be confusing to a layman or woodsman, unless he had been instructed by an engineer, particularly when this statement is taken in connection with the proof of the other witnesses showing the confusion that exists as to these lines. The logs, the record shows, were cut by Chatman, defenda&t’s .employee. It is clearly established by the evidence that defendant directed him to follow certain lines in felling the timber, and cautioned him not to cross over the boundaries of other proprietors. Defendant, it is shown, did not have actual knowledge of the lines, and was guided in his instructions by a map on which appeared the boundaries of the various tracts of land in that vicinity. Chatman says about the 20th of November, he saw that McAdams and Kimball were looking over these lines, and thinking that he was cutting on the wrong tract, he immediately reported to defendant who ordered him to stop, and to go back west where he had been " previously cutting. He stopped as ordered. He says that after that time not a log was cut from plaintiff’s timber. Unquestionably, Chatman had fallen into an error as to the lines of these lands. The record shows defendant did not then know that his employees had been cutting logs on plaintiff’s land, and that a few days thereafter discovered his error. He met plaintiff and made no attempt to avoid responsibility for these, cuttings, but told him it was all the result of a mistake. He then offered to have' an estimate made of the logs his employees had felled, and that he would pay for their stumpage value, or he would give .plaintiff an equal number of trees of the same kind and quality.

In the R. & F. Gardere vs. Blanton, 35 La. Ann. 811, the court said:

“When the trespass is not wilful but the result of mere inadvertence, the value of the timber when first cut is the measure of damages.”

The court had so held in Watterston vs. Jetche, 7 R. 20; Ratliff vs. Ratliff, 7 La. Ann. 117, which were cited, in R. & F. Gardere vs. Blanton, 35 La. Ann. 811, and also in Sibille vs. Eastham, 136 La. 557, 67 South. 364. In J. F. Ball & Bro. Lumber Co. vs. Simon Lumber Co., 121 La. 627, 46 South. 674, where only the value at the stump was allowed, the decisions above referred to are cited, approvingly. In the cases above cited by us the evidence showed that the trespasser honestly believed that he was cutting timber on his own property, and the court held that his acts were the mere result of inadvertence, and were neither wilful nor malicious. In some of the cases above cited it appeared that upon being informed that they were not cutting within the boundaries of their holdings, the parties immediately desisted from any further cuttings, and offered to pay for the stumpage value of the timber. Here, the defendant pursued the same course and as the proof shows, had instructed and cautioned his employees to be careful not to go beyond his lines in cutting the timber. It also appears in the ease at bar, that there were many lines in those swamps which were perplexing to the woodsmen, and which doubtless caused the employees of defendant to fall into an error resulting in the removal of these logs from plaintiff’s land. This was clearly the result of inadvertence, and not wilful. Plaintiff is therefore entitled to the stumpage value of the trees, as is held in the cases above cited. The trial judge found that defendant had cut timber estimated at 72,541 feet. The record sustains this conclusion. The stumpage value, as shown by the evidence, is not in excess of $10.00 per thousand feet. Judgment will be allowed plaintiff on this basis.

As to the writ of sequestration, plaintiff admits in his testimony, that he could not identify the logs which he had seized, as coming from his land and the testimony of other witnesses shows that many of the logs seized came from lands other than plaintiff’s. Sequestration may only issue in aid of ownership or of a privilege, Suc. of Macheca, 147 La. 174, 84 South. 574. The fear that defendant might remove the logs, might have justified an attachment but not a sequestration. The writ must therefore be dissolved.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reduced from fourteen hundred and fifty-five 55/100 dollars to seven hundred and and twenty-five 41/100 dollars, and that the writ of sequestration be set aside and dissolved at the cost of plaintiff, that said judgment as amended be affirmed, costs of appeal to be paid by plaintiff and all other costs, except of the sequestration, be paid by defendant.

ELLIOTT, J., dissents. Opinion may be found herein at p. 804.


author: MOUTON, J. MOUTON, J.

text:
    No. -
    First Circuit Appeal
    STATE EX RELATOR R. LEE GARLAND, DISTRICT ATTORNEY, v. FRANK J. DIETLEIN
    (Dec. 30, 1924, Opinion and Decree.)
    (- 1925, Rehearing Refused.)
    (May 5, 1925, Writ of Certiorari and Review to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Office and Officer— Par. 43, 44, 45.
    In cases under the intrusion law Revised Statutes section 2593, courts cannot go beyond commissions legally issued.
    2. Louisiana Digest — Office and Officer— Par. 26.
    Under Act 236 of 1916 the governor has the power of appointment to fill vacancies occuring in the offices of aldermen in municipalities having a population of less than 5000.
    3. .Louisiana Digest — Municipalities—Par. 5, 6.
    Where under Act 59 of 1902 amending sec-, tion 8 of Act 136 of 1898 the governor issued his proclamation declaring a town to be a city, but failed to publish or record‘his proclamation as required by these acts, the proclamation is not conclusive and the -town is not thereby converted into a city.
    '(See Act 160 of 1918, Editor’s'note.)
    4. Louisiana Digest — Municipalities—Par. 5, 6, 8.
    A census made by an individual acting under a resolution of the town, sworn to be correct by this individual, is not conclusive proof of the population of the town because the requirements of Act 59 of 1902 make it necessary that this census be certified to the governor, that the fact's under which it is taken be investigated by him, that a proclamation be issued by the governor in response to this census and that this proclamation be published and recorded have not been complied with.
    Appeal from the Thirteenth District Court, Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit under the Revised Statutes section 2592 to oust defendant from his office. An- exception no cause of action filed by the defendant was overruled.
    There was judgment on the merits for the plaintiff and ousted defendant from office. Defendant appealed.
    Judgment reversed.
    R. Lee Garland, of Opelousas, attorney for plaintiff, appellee.-
    Sandoz & Sandoz, and M. F. Thompson and John W. Lewis, of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

H. D. Lacarde, Sr., was elected Alderman at Large in a municipal election held in Opelousas, June 10, 1924. He died, June 19, 1924, before qualifying to exercise the duties of the office. July 8, 1924, Governor H. L. Fuqua appointed Dietlein, defendant, Alderman at Large, to fill the vacancy in that office caused by the death of Lacarde.

Relator, R. Lee Garland, District Attorney for the Parish of St. Landry, brings this suit under the intrusion in office aeC Revised Statutes of Louisiana, Sec. 2593^ to oust defendant from said office. Before answering to the merits defendant filed an exception of no cause of action which was overruled.

"Section 2593, R. S., the intrusion in office act, authorizes an action against any person who intrudes into or unlawfully holds or exercises any public office, etc.

In the case of John M. Bruner vs. Lynch, reported in the 25 La. Ann. 267, it appeared the returning board had returned Lynch as elected to the office of Judge, in pursuance of which he was commissioned, as such, by the Acting Governor. The court found there was authority by reason of the action of the board for the issuing of the commission, and held that Lynch could not be ousted under the intrusion in office act. In the case of Collin vs. Knoblock, 25 La. Ann. 263, the court uses this language, quoting: “In cases under the intrusion law courts can not go beyond commissions legally issued.”

Act 112, of 1912, says, that in case of a vacancy in any office in the State, Parish or any subdivision thereof, caused by death or otherwise, the same should be filled by election, “provided that the unexpired term is for ar longer period than one year”. Here, it is alleged by relator that when Lacarde died, his unexpired term of office was to run for a period of more than twelve months from the time of his death. This allegation must, for the purposes of the exception, be taken as true. Grounding himself on this averment, relator avers that the Governor had no right or power, in Law, to appoint Dietlein to the office in question. These allegations are levelled directly against the power of the Governor to appoint. Necessarily, the legality of the commission is questioned here, and the action is permissible, not being in violation of the ruling in 25 La. Ann. 263, where it was held, courts could not, under the intrusion act, go beyond commissions “legally” issued.

Under that Act, actions are authorized against persons unlawfully holding or exercising the functions of a public office. If the Governor had no authority to appoint in the instant case, as alleged, the holding of the office of alderman by defendant was without legal sanction and therefore unlawful, under the terms of the intrusion act.

The exception was properly overruled, although, we think, it should have been referred to the merits as an issue, where it could have been more appropriately disposed of as will hereinafter appear.

MERITS.

Under the provisions of Act 238, 1916, the Governor is given the power of filling vacancies in Boards of Aldermen of municipalities without regard to the unexpired term of service of the decedent as was, prior to the enactment of this statute, provided for in Act 112, 1912, hereinabove mentioned. Act of 1916, No. 236, gave the Governor this authority only, however, in municipalities where the population is less than five thousand. It is under the provisions of this act that the defendant was appointed. In addition to the allegation that the Governor had no right to appoint because Lacarde, the deceased, had more than one year to serve at the time of his demise, as hereinabove stated, relator also averred that long before and at the time of the appointment, and the-filing of his petition, the municipality of Opelousas had a population of over five thousand inhabitants, and 'had been classified as a City under proper proceedings inaugurated for that purpose, and in compliance with the provisions of Act 136, 1898, and the Acts amendatory thereof, particularly Act 59 of 1902. The foregoing allegations of the relator present the real gravamen of the complaint which is as to whether or not the population of Opelousas, at the time of the appointment, exceeded, or was less than five thousand in number. This being the vital issue presented, we think, as we before stated, that the exception should have been tried with the merits which give a fuller appreciation of the real contest between the parties to this suit.

Municipal corporations of this State were by Act 136, 1898 divided into three classes: cities, towns and villag.es. •

Municipalities having five thousand or more inhabitants were classed as cities. This Act also provided that existing municipalities should be classified according to their population at the time of the enactment of this statute as would appear by the United States census of 1890, until the class might be changed as is provided for in that Act, Obviously, Opelousas at the time of the adoption of Act 136, 1898, had a population under five thousand, otherwise no measures would have been taken to have it classified as a City as is alleged by relator.

The record shows that the Board of Aldermen of Opelousas applied to Newton C. Blanchard then Governor of Louisiana, to have it classed as a City. The Governor, after stating that a sworn statement of a census ordered by the Aldermen of the Town of Opelousas, and certified to, according to Act 59, of 1902, showed that said Town contained more than five thousand inhabitants, issued his proclamation declaring that the Town of Opelousas from and after the date thereof, June 20, 1908, should be classed as a City. This proclamation of the Governor was, no doubt, issued in compliance and in accordance with the provisions of Act 59, 1902, amending section 8 of Act 136, 1898. Act 59, 1902, after requiring that a • copy of the proclamation issued by the Governor be transmitted to the Mayor of the City or Town, provides as follows:

“Such proclamation shall be published and recorded by the municipal authorities of the city, town or village, as an ordinance is required to be published and recorded and shall be conclusive from its issuance of the matter determined by it until there be- a new classification under the provisions of this Act.”

This proclamation of Governor Blanchard was not, however, either published or recorded as required by the statute. It will be noticed that under the provisions of that statute it is only after the Governor shall have investigated the facts that he can by his proclamation, properly classify a City or Town as the case may be. The Act also says that after the proclamation is published and recorded, of which there is no proof- whatsoever here, it shall be “conclusive from its issuance of the matter determined by it”. Evidently, in the case of a town being converted by classification into a “city” as was here attempted to be done, the proclamation, if followed by the requirements of publication and recordation, becomes conclusive of the fact that the number of inhabitants exceeds five thousand. In all probabilities the Legislature required that the proclamation should be published and recorded that the public might be notified, and have the right of contesting the proposed classification should any one in interest so desire, before the proclamation became “conclusive” of all matters “determined by it.” In the case of Simar vs. Town of Iota, 149 La. 332, 89 South. 22, the court held that a proclamation by the Governor changing the status of a municipality from that of a town to a city, “did not go into effect until it was recorded and published.” This expression of the court is in line with our views above stated.

We think that the requirement of publishing and recording the proclamation found in the statute, as it fixes conclusively the' number of inhabitants of a municipality, is imperative, and when not shown that it has been complied with as appears herein, there is no legal proof that a town has a population in excess of 5000, entitling it to a change in its status.

It is shown by the record that I. R. Guidry, acting under a resolution of the Town of Opelousas, took a census of its population which was completed by him, Feb. 28, 1923. He swore to the correctness of this census on June 21, 192.4, before E. H. Estorge, Notary Public. The total population of Opelousas under the census so taken by Mr. Guidry amounted to 5918. There is no proof to show that this census was certified to the Governor, that the facts under which it was taken were ever investigated hy him, or that a proclamation was ever issued hy the Governor in response to this census.

Clearly, such a census could not he given the effect of fixing the population of Opelousas as being over five thousand or of classifying it as a City, under Act 59, 1902. The record shows that according to the census taken hy the United States in 11910, the population of Opelousas, at that itime numbered 4,623; and that under the United States census of 1920, the total of the population was 4,437, It is possible .that the Board of Aldermen of Opelousas seeing the result of the census by the U. S. Government, sought to have a new census taken under the authority of the Town hy Mr. Guidry, so as to have it classified as a City. This census could not, however, have this effect as it was taken without the observance of the essential requirements pointed out in Act 59, 1902, as before stated. As no legal proof was made under the proclamation of Governor Blanchard that the Town of Opelousas had a population of 5000 or over, nor under the census taken subsequently by Mr. Guidry, for the reasons hereinabove stated, Opelousas retained the classification to which it was entitled under the United States census of 1890, which was recognized as the criterion for the classification of municipalities existing at the time of the enactment of Act 136 of 1898, See Sec.- 41.

At that time Opelousas, no doubt, had a population of less than 5000, else there would have been no reason for the effort made to have its status changed during the administration of Governor Blanchard arid subsequently under, the Guidry census. The United States census of 1910, and the last one taken in 1920, both show, for those years, that the population of Opelousas was- less then 5000.

It is true that the census for 1910 can not be accepted as the means of ascertaining the population of the municipalities of this State — there .being no statutory authority to that* effect as was held in ■ Mc-Earlan vs. Jennings, 106 La. 542, 31 South. 62, and when the census was recognized because in the exercise of the power lodged in the municipality, no formalities had to he followed, as was required under Act 59, 1902, hut, in view of the fact that the original status of Opelousas had not been changed for the want of the observance of the essential requisites pointed out hy the provisions of Act 59 of T902, it can not be said that the Governor in appointing defendant Alderman at Large, acted without legal right or authority; that the commission to defendant was illegally issued and that defendant is unlawfully exercising the functions of the office in question in violation of the provisions of the intrusion in office act under which this suit is brought.

The judgment rendered below ousting him from office is- erroneous. It is therefore avoided and reversed, and the demand of the plaintiff is rejected with cost.

ON APPLICATION FOR A REHEARING.

MOUTON, J.

In the application, for a .rehearing relator says that the question as to what was the population of Opelousas at the time the vacancy occurred in the Office of Alderman at Large is one of fact to he determined by any species of legal evidence. Applicant then says that in our decision we did not undertake to say that the Federal census is not the exclusive method of ascertaining the population of a municipality or city. In referring to the McFarlain vs. Town of Jennings, 106 La. 541, 31 South. 62, we distinctly stated that the Federal census should not he accepted as the means of ascertaining the population of cities or municipalities of this State. Applicant then refers to McFarlain vs. Town of Jennings, 106 La. 541, 31 South. 62, and from that decision quotes the following: “We think legislation is desirable to provide means for ascertaining the number of persons, but when a power is granted and the law-making power is silent, as in this case, it then becomes a question to be ascertained by a method usually followed in the course of municipal administration”.

In that case the question was as to whether or not the Town of Jennings had a population exceeding two thousand so as to give it authority under section 17, of Act 136, 1898, to regulate or prevent the roaming of cattle at large. A census was first taken by the daughter of the Mayor, and subsequently another one, both showing that the Town had a population in excess of two thousand inhabitants. The court in that case held that the State or United States census should not control in ascertaining the population’ of a town, city or municipality, and said that the Town of Jennings had the authority to establish the number of its inhabitants by the census it had taken. This conclusion of the court, it will be seen by reading page 544 of the opinion, was based on several decisions where it had been held that the Legislature had failed to point out a method to determine the number of persons inhabiting a town or municipality. This is made clear by the following language in which the court refers to these decisions quoting: “In each of these cases it became necessary ’to establish the population of municipal corporations in which the law-making power had failed to make provision for ascertaining the number of persons.” This is certainly not the case here, as Act 59, of 1902, specifically provides for the taking of a .census for the classification of the municipalities of this State. This statute specially requires, however, that after a census is taken for the proper classification of a municipality the municipal author-' ities- shall certify the fact to the Governor, duly sworn to by the person employed by such city, town or village, to take such census, the Governor shall investigate the facts; and if he finds the municipality to be wrongfully classed, he shall issue his proclamation in accordance with the facts, and shall correctly classify it, transmitting a copy of his proclamation to thé mayor of such city, town or village, such proclamation shall be published and recorded by the municipal authorities of the city, town or village, as an ordinance is required to be published and recorded, and shall be conclusive from its issuance of the matter determined by it until there be a new classification under the provisions of this Act.

As we stated in our original opinion the classification of Opelousas as a City was not effected under the Blanchard administration because the proclamation of Governor Blanchard was never “recorded or published”. Simar vs. Town of Iota, 149 La. 332, 89 South. 22. We also held that the census taken by Mr. Guidry was ineffective because he had not followed the requirements of Act 59 of 1902, for the reasons stated in our opinion and which it is unnecessary to repeat in passing on this motion. Evidently, the Town of Opelousas had authorized Mr. Guidry to take the census for the purpose of establishing the fact that it had a population exceeding 5000, and to have it classified as a City, else there would have been no reason for the census. The law specifically authorized such a census, but clearly points out the statutory requirements to be observed. Such being the situation here, it can not be said as was held in 106 La. 542, upon which relator relies “that when a power is granted and the law-making power is silent, as in this case, it then becomes a question to be ascertained by a method usually followed in the course of municipal administration.” In the instant case, the law-making power is not silent, but on the contrary is direct, clear and specific. The Guidry census does not comply with the essential provisions of Act 59 of 1902, and is not proof that the population of Opelousas exceeded 5000 inhabitants at the time the appointment was made or this case was tried. There is no legal proof to take 'it out of its original classification under the Federal census of 1890, as'we have theretofore held.

In Act 136, 1898, it will be noted that municipalities having a population of 5000 or more are classified as cities, those having “less than five thousand” as towns. Act 236, of 1916, which confers on the Governor the power of appointment to fill vacancies occurring in the office of Aider-man, gives this right to municipalities “having a population of less than five thousand.” Evidently, this power was vested in the Chief Executive on the assumption that the various municipalities of the State had changed their status since the adoption of Act 136 of 1898, and had, been properly classified. This is the only guide the Governor can have in exercising this executive function of appointment when a vacancy occurs in a municipality with a population under five thousand. In a situation such as this, with the duty devolving upon him to appoint, it can not be said that in filling a vacancy under the circumstances stated, that he has exceeded his authority, has illegally issued a commission to his appointee, subjecting him to be ousted from office under the intrusion in office act, which, as we construe its provisions, was not enacted to. afford relief in a case of this character.

For the foregoing reasons, and those expressed in our original opinion, a copy of which is hereto annexed, the rehearing applied for is refused.


author: MOUTON, J.

text:
    No. -
    First Circuit Appeal
    BRENARD MANUFACTURING CO. v. M. LEVY, INC.
    (Jan. 21, 1925, Opinion and Decree.)
    (May 5, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 262.
    Under Art. 2276 of the Civil Code evidence to establish an independent or contemporaneous contract in conflict with the provisions of the written agreement is not admissible.
    Appeal from the Twenty-seventh Judicial District, Parish of Assumption, Hon. Sam A. LeBlanc, Judge.
    This is a suit to collect five promissory notes. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Howell & Wortham, of Donaldsonville, attorneys for plaintiff, appellant.
    George S. Guión, of New Orleans, attorney for defendant, appellee.
   MOUTON, J.

Nov. 18, 1919, defendant signed five promissory notes in favor of plaintiff company amounting to a total of $392.14. Plaintiff instituted this suit to obtain judgment on these notes. The demand was rejected below. Plaintiff appeals.

These notes were given for the purchase price of three Claxtonola Phonographs defendant agreed to buy from plaintiff. The purchase was, however, made dependent upon the acceptance by plaintiff company of an agency contract which had been entered into between plaintiff and defendant. This contract was signed by defendant on Nov. 18, 1919, the day the notes were executed, and was accepted by plaintiff a few days thereafter.

The contract is as follows:

“The Brenard Manufacturing Company,
“Iowa City, Iowa.
“Gentlemen:
“Upon your approval of this order and agency contract deliver to me at your earliest convenience P. O. B. factory or distributing point, the articles mentioned below, in payment for which I hereby hand you my notes aggregating $392.14 which you are to cancel and return to me if agreement is not approved by you.” Then follows a description of the phonographs — • which it is unnecessary to describe.

After describing the articles the cqntract says:

“Exclusive Agency Agreement.
“You, the Brenard Mfg. Company, hereby grant me the exclusive agency for your line of ‘Golden-Throated’ Claxtonola Phonographs, in my town, for a period of three years, during which time I am to receive a commission of 30% of each installment paid in cash on Claxtonolas, that I may sell to my customers on installment payments when you carry such installment paper. Discount for cash with order 60%. As fast as I sell Claxtonolas and my customers contracts, notes or the cash is accepted by you, on such sales,. you will ship to me P. O. B. factory point or distributing point, Claxtonolas to replace those sold, in order that my stock remain complete. If my commission from the sale of Claxtonolas, under this contract, does not equal at least $392.14 you will either pay me the difference in cash or repurchase these Claxtonolas and records, if returned to you in good order, and pay me $392.14 for same and will send you bond for $392.14 to protect me in the conditions of this contract.” Immediately after these stipulations a clause follows under which defendant obligates itself to furnish the address of prospective buyers, and to give plaintiff all reasonable information to assist in the sale of Claxtonolas.

After so providing the contract in referring to plaintiff, reads:

“You are to have the right to send a special salesman into my territory at any time to do field work and promote the sale of Claxtonolas.
“Unusual delays from strikes, fires, accidents or other causes beyond our control, shall extend this agreement for a like period. In order to protect you in your special method and places and in your expenditures this order can not be countermanded.” The defendant filed its answer annexing thereto a copy of the contract above mentioned, but averring that the notes and contract were signed upon the following fraudulent representations made by the agent of plaintiff company, viz:
“(a) That the said, The Brenard Mfg. Co., would bill the articles and goods mentioned in said agreement to respondent at a discount of sixty per cent.
“(b) That the said, The Brenard Mfg. Co., would deliver said articles and goods to respondent at least two weeks before Christmas 1919, so that respondent would have the opportunity of disposing of them then and during the Christmas holidays.
“(c) That the said, The Brenard Mfg. Co., would send a man to Napoleonville who would assist respondent in disposing of said articles and goods during said holidays.
“(d) That the said, The Brenard Mfg. Co., would execute its bond with a good and solvent surety for the faithful fulfilment and performance of said conditions, expressed and alleged under this paragraph.”

It may be proper to state here that this last defense has been eliminated from the case.

Respondent alleges that the foregoing representations were fraudulently made by the agent of the company which it alleges induced it to sign the notes and contract, and prays for the avoidance of the obligation.

When defendant offered parol evidence to sustain the defense embodied in the allegation of the answer above reproduced, counsel for plaintiff promptly objected to its admission on the ground that such testimony would have the effect of changing, varying, altering or contradicting the written agreement between the parties to this suit. The objection was overruled, and the testimony was introduced. The admissibility of the parol evidence for the purpose stated, presents the vital issue in the case.

At the beginning of the contracts above reproduced, it will be noted that upon the acceptance of the agreement and the agency contract, the plaintiff company binds itself to deliver the phonographs at its “earliest convenience”. If defendant were allowed to prove that the agent of the company had by verbal agreement or understanding promised to deliver the Claxtonolas two weeks before Christmas, as is alleged by respondent, the obligation which the company had incurred, which was, to deliver at its “earliest convenience,” would be changed or altered into a stipulation to ship at a time prior to the Christmas holidays. Proof by parol that a discount of 60% was promised by the agent of plaintiff company on all bills for the goods, would also effect a material change or modification of the contract as it nowhere provides for such a deduction on the price of the phonographs. Parol evidence to sustain the plea- by defendant that plaintiff had bound itself to send a man to Napoleon-ville to assist in disposing of the' goods during the holidays would also effect a distinct and striking change in the contract which gave the right to plaintiff to send a special salesman in defendant’s territory to promote sale of Claxtonolas.

Such parol proof above referred to, would, if admitted, unquestionably, have the effect of changing, varying, altering or of modifying the contract, and would clearly be “against or beyond what is contained in the act” and whether said before or at the time of making the contract, or since, was not admissible in evidence under C. C. Article 2276.

Counsel for defendant cite Davis vs. William W. Bierce, 114 La. 663, 38 South. 488, in support of their contention that parol proof was properly admitted to sustain the pleas urged in avoidance of the contract. In that case the court recognized the rule that parol proof could not be introduced to vary or alter a written agreement, but said it was admissible to establish a distinct, valid, contemporaneous, collateral contract between the parties. Here, the proof offered was not to establish an independent, distinct or collateral agreement.- If allowed, only a change of the agreement would be the result of such evidence. It will be observed also that in ruling that parol evidence was permissible to establish a distinct, collateral or contemporaneous contract, the court in 114 La. 663 above cited, said: “When the same is not in conflict with the provisions of the written agreement.” In the instant case, if the parol evidence offered by defendant, could be considered as proof showing an independent or contemporaneous contract, it would be equally-inadmissible under the rule cited, because it would be in “conflict with the provisions of the written agreement.”

The purpose of the parol evidence was, undoubtedly, to show that the parties had entered into a contract different from the one contained in the written instrument which they had made the repository of their agreement; and was therefore inadmissible as was held in Hafner Mfg. Co. vs. Lieber Lumber Co., 127 La. 348, 53 South. 646. If such parol testimony could be taken as establishing a distinct, collateral, contemporaneous contract, it would be equally inadmissible as it would come in conflict with the provisions of the written agreement entered into between the parties. Davis vs. William W. Bierce, 114 La. 663, 38 South. 488. The parol proof should have been excluded, and was improperly admitted. The judgment is erroneous. Plaintiff is entitled to recover on the notes.

It is therefore ordered, adjudged and decreed that judgment dismissing plaintiff’s demand be avoided and reversed, and it is further ordered arid decreed that plaintiff have judgment against defendant in the sum of three hundred, ninety-two dollars and foui'teen cents ($392.14), with interest, at the rate of five per cent per annum from March 18, 1920, on. seventy-five dollars thereof; on seventy-five dollars thereof from April 18, 1920; on forty-six dollars and fourteen cents thereof from May 18, 1920; on forty-six dollars thereof from June 18, 1920; and on seventy-five dollars thereof from August 18, 1920, until paid, with all cost of court.


text:
    No. 3719
    First Circuit Appeal
    MRS. EDNA INNIS MONTGOMERY v. NEW ROADS OIL MILL AND MANUFACTURING CO., LTD. BANK OF NEW ROADS, Intervenor and Third Opponent
    (February 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Attachment—Par. 63, 64.
    The plaintiff, in an attachment suit, having filed a new bond within two days after the defendant filed its answer in which objection was made to the first bond has complied with Sec- • tion 3 of Act No. 112 -of 1916.
    2. Louisiana Digest — Fraud—Par. 5.
    Where an oil mill purchased cottonseed, cottonseed cake, meal, etc., clearly intending to pay for same, but its financial affairs were so involved that further pledges had to he made at a later date to a bank in order to secure sufficient credit with which to operate its business, held that, inasmuch as cooperation was necessary between the bank and the oil mill, bad faith and fraudulent intent should not be imputed to these transactions.
    3. Louisiana Digest — Attachment—Par. 95, 97, 162.
    Where, under Article 240, Paragraphs 4, 5, of the Code of Practice, an attachment is made, if the plaintiff creditor cannot prove bad faith and fraudulent intent, the attachment will be dissolved with attorney’s fees as damages.
    Appeal from Twenty-first Judicial District, Parish of Pointe Coupee. Hon. William C. Carruth, Judge.
    This is a suit coupled with a writ of attachment by which the plaintiff ' attempted to enforce the collection of a debt due for cottonseed, etc., sold and delivered. There was intervention filed by a bank, the. owner of a pledge against the material seized in the attachment.
    There was judgment recognizing the debt by dissolving the attachment with attorney’s fees as damages.
    Plaintiff appealed.
    Judgment affirmed.
    M. T. Hewes, of New Roads, attorney for plaintiff, ' appellant.
    Bouanchaud & Kearney, of New Roads, attorneys for defendant, appellee.
    Albin A. Provosty, of New Roads, attorney for intervenor, appellee.
   ELLIOTT, J.

The plaintiff, Mrs. Edna Innis Montgomery, wife of Thomas W. Montgomery, and the said T. W. Montgomery to authorize and assist her, alleges that ihe New Roads Oil Mill and Manufacturing Co., Ltd., is indebted unto her in the sum of $978.19 with interest on account of cottonseed 'which she had sold and delivered to said oil mill; that a statement of account showing the indebtedness was annexed to and made part of her petition.

That said oil mill had made the Bank of New Roads a preferred creditor to her injury and prejudice.

That the cottonseed which she had sold to said mill had been manufactured into cottonseed meal,- oil, and other valuable products and was being sold and the proceeds paid to said bank to her loss and injury.

That said oil mill had mortgaged, assigned or disposed of, or was about to mortgage, assign or dispose of, its property, rights or credits or some part' thereof, with intent to defraud its creditors or give an unfair preference to some of them, and had converted, or was about to convert, its property into money or evidence of debt with intent to place same beyond the reach of its creditors.

She prayed for the issuance of a writ of attachment against the oil mill, which she obtained, and cottonseed, cottonseed cake, meal, oil, hulls, linters, mote and grabot cotton, in value largely in excess of the amount due her was seized.

The Bank of New Roads, alleging itself to be a creditor of the New Roads Oil Mill and Manufacturing Co., Ltd., in a large amount for money loaned to enable said mill to carry on its operations and buy cottonseed and crush and manufacture it into oil, meal, cake, hulls, motes, linters and grabot cotton. That said loans were secured by acts of pledge, whereby the cottonseed and cottonseed products man-' ufactured therefrom were pledged to said bank under agreements to that effect, annexed to and made part of its petition, etc.; that all the 'cottonseed and cottonseed products that had been seized were subject to and covered by its said pledges and agreements, etc. It intervened in the suit, opposed plaintiff’s demand prayed for recognition of its pledges, for the dissolution of the attachment and release of the property, etc.

The defendant oil mill excepted to plaintiff’s petition on the ground that it disclosed no right or cause of action, which was overruled.

It then answered her demand and in its answer denies that the statement of account annexed to her petition evidences indebtedness to her; denies all her allegations on which the attachment was sued out; alleged that the surety on her attachment bond was not a resident of the parish and that the bond was illegal on said account; that the property ' attached had been pledged to the Bank of New Roads, etc.; prayed for the rejection of plaintiff’s demand for the dissolution of the attachment; recognition of the pledges and agreements it had entered into with the Bank of New Roads, that plaintiff be required to pay attorney’s fees, etc.

Defendant does not appear to have answered, the Bank of New Roads, but in answering the demand of the plaintiff all the allegations in the petition of the Bank of New Roads are admitted; therefore none was necessary. The District Judge, after trial, for written reasons, rendered judgment in favor of the plaintiff and against the defendant for the amount claimed in her petition, but against the plaintiff and in favor of the defendant and intervened and third opponent dissolving the attachment with $150 attorney’s fees' and sustaining the intervention, etc.

The plaintiff appealed.

The statement of account annexed to plaintiff’s petition is 'made out in favor of “Latanche Gin Co.”. Plaintiff’s petition does not in express terms say that Latanche Gin Co. is merely the name of her gin and the, business of buying and selling cottonseed which she carried on, but she avers that defendant rendered her the statement in question, that it evidences indebtedness due her on account of seed for which she claims payment; that defendant promised to pay her for same, etc.

These allegations authorized the reception of parol evidence that plaintiff was :in truth and in fact the vendor in the ■matter of selling the seed in question and (defendant the consequent debtor to her on :s^id account. The evidence establishes -:that such was the fact and that she is a •Creditor of the mill for the amount 'Claimed.

The surety on plaintiff’s first attachment bond was not a resident of the parish, so plaintiff gave another bond'as required by the law, Act 112 of 1916. Defendant claims in argument that this new bond was not filed within the time required by Section 3 of said act.

We have not found in the record an objection of this kind; but the record shows that defendant filed its answer in which objection is made to the first bond on March 22, 1924, and on March 24, 1924, the new bond was filed. It was therefore filed in time.

As above stated, the evidence is in favor of the plaintiff as to her demand against the defendant for $978.19 on account of cottonseed.

In regard to the attachment plaintiff alleges and defendant admits in its answer that defendant’s capital stock is $100,000 and fits total assessed value is but $27,485. The evidence shows that uncancelled mortgages appear on record against defendant in amount exceeding $120,000; that defendant is deeply involved in debt and so badly embarrassed financially and so tied up with the Bank of New Roads by means of pledges and agreements that no other bank could be expected to lend it any assistance; that it cannot operate without assistance and therefore cannot operate unless the Bank of New Roads chooses to finance for the purpose; that it is unable to pay its debts at present; that the contracts of pledge and agreements entered into between the oil mill and Bank of New Roads were all, except the two last, entered into while it was paying all demands made on it; but the two last pledges and agreements were entered into after the last sale of seed, which led to the institution of this suit. The above facts are impressive, but after consideration of all the facts and circumstances, we are not satisfied that the pledges and agreements entered . into between defendant and the ■Bank of New Roads were entered into on defendant’s part in bad faith and with intent to defraud the plaintiff, or to give an unfair preference over her, or that same constituted a conversion of defendant’s property or some part thereof, with intent to place same beyond plaintiff’s reach in the sense and meaning of the law, C. P., Article 240, Paragraphs 4 and 5.

It is the intent and bad faith of the debtor in making contracts of the kind we have before us in this case which governs if the creditor attaches. Winter vs. Davis, 48 La. Ann. 260, p. 261, 19 South. 263; Bank vs. Martin, 52 La. Ann. 1628, p. 1629, 28 South. 130. As well as the record permits us to say, it does not appear that the bank’s advances of money to the defendant could have been dispensed with and the defendant’s plant kept going; and the loans were so large that the bank was justified in exacting every possible and available security.

The record shows that the bank loaned defendant money to operate and buy cottonseed for the purpose. It could not operate without buying cottonseed and money could not be obtained for the purpose except, so far as we can gather from the record, by borrowing from the Bank of New Roads and to enable it to borrow security had to be given as required by the bank. The agreements entered into between the bqnk and the defendant, to the effect that defendant was to manufacture the cottonseed into cottonseed products, with authority from the bank, sell the products, the proceeds to be subject to the pledges and applied to the debts for which the seed had stood security, should not have greater effect, as indicating on the part of the oil mill, bad faith and intent to defraud the plaintiff, than should be given to the fact that the oil mill borrowed for the purposes above stated. The amount due the plaintiff is not for a sale of cottonseed in bulk, for which time was not agreed on, but is a balance due on account, which account shows two deliveries of seed, as we understand it, in the month of October, three in November, 1923, and one in January, 1924, and on which payments were made by the oil mill' in nine or ten different payments on account, at different times and in different sums, the $978.19 sued for being the balance due. This dealing on account inclines us away from the idea that in executing pledges after the last delivery of seed that defendant intended thereby to defeat plaintiff of the balance due her on account of the purchase price. It seems more reasonable to believe from all the facts and circumstances that defendant intended at the time the cottonseed was delivered to pay for same, but without connivance or scheme on the part of the oil mill to bring it about the funds which it had arranged for with which to pay for seed had been exhausted at the time demand for payment was made.

In Dreyfous vs. Cade, 138 La. 298, 70 South. 231, the Supreme Court says (we quote part of the syllabus only):

“* * * but when there is no question of insolvency or fraud, a purchaser of movable property on credit may sell it to a third person who knows he has not paid the price and the original vendor loses his privilege.”

And in Pierson vs. Carmouche, Opposition of Max Barnett Furniture Co., 146 La. 798, 84 South. 59, the syllabus reads:

“A purchaser on credit of movable property may validly give it in pledge to a third person who knows that he has not paid the price, but is otherwise in good faith, so as to vest in the pledgee a right superior to that of the vendor whose privilege therefore ceases by reason of the property having passed out of the possession of the vendee.”

These cases are cited as showing that bad faith and fraudulent intent, etc., should not be necessarily imputed to a vendee or pledgor who has sold or pledged movable property that he has not paid for without evidence showing that it was his purpose to defeat the vendor, for the reason that the law authorizes the vendee to sell or pledge, no matter whether he has paid for the property or not. Therefore, the fact that the oil mill executed the two last pledges after receiving the last delivery of" cottonseed from plaintiff cannot be condemned for the act, when it does not appear that it was done for the purpose of defeating the purchase price. Cooperating agreements between pledgor and pledgee, some of them not essentially different from the agreements entered into between the oil mill and the Bank of New Roads, were considered by the Supreme Court of the United States in Casey vs. Cavaroc, 96 U. S. 467. The defeat of an unpaid vendor by the fad faith and fraudulent intent of the vendee was not a question in the case; yet the court recognized co-operation between pledgor and pledgee in certain cases as necessary and proper. Therefore, in those cases where co-operation is necessary and proper, as in the 'case We now have in hand, bad faith and fraudulent intent, etc., should not be imputed to what the law permits as right and proper.

In her answer to the intervention of the bank the plaintiff 'avers that the pledges and agreements entered into between the oil mill and the bank are contrary to law and good morals, etc. We do not think so, except when the purpose is to defeat some right, which they have no right to do.

We concluded for the reason above stated that the pledges and agreements above mentioned do not sustain the attachment sued out by the plaintiff and that the judgment dissolving the attachment must be affirmed.

As for the attorney’s fees, we understand the entry in the note of evidence to mean that .$150 attorney’s fees is to follow the judgment if the attachment is dissolved.

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


text:
    No. -
    First Circuit Appeal
    LOUISIANA STATE RICE MILLING CO., INC., v. JOHN W. HORNSBY, ET AL.
    (May 5, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 128.
    A principal and his sureties have a common interest and, consequently, when they are. co-defendants, the amount in dispute which determines the jurisdiction of the court is the total amount of the demand against the principal and sureties. .
    2. Louisiana Digest — Courts—Par. 164.
    Under the provision of Act 19 of 1912, where a case is lodged in the Court of Appeal which should have been taken to the Supreme Court, the Court of Appeal will transfer the case to the Supreme Court.
    Appeal from the Eighteenth Judicial District Court, Parish of Acadia. Hon. Wm. Campbell, Judge.
    The sole question involved is one of jurisdiction in the Court of Appeal. The case being within the jurisdiction of the Supreme Court was transferred to it.
    W. J.' Carmouche, of Crowley, attorney' for plaintiff.
    Phillip S. Pugh and Percy T. Ogden, of Crowley, attorneys for defendant.
   MOUTON, J.

The appeal in this case was dismissed for the reasons given in our opinion which was rendered March 5, 1923. A rehearing was granted April 10, 1923.

In the brief of counsel for plaintiff company which accompanies the motion for a rehearing, we are referred to the case of Southern Timber and Land Company vs. Martel, 109 La. 453, 33 South. 559. In that case a demand was made against alleged trespassers of a large tract of land, but against each with respect to the subdivision of the tract which he was averred to be trespassing upon, and for the rents and revenues thereof. The court, in that case, said it "does not appear that the defendants trace title to a common author, that there is any privity or common interest between them, or that either will be affected by a judgment against the other”. The court held that its appellate jurisdiction depended upon theamount or value demanded from each defendant, which the record showed fell below its minimum jurisdiction. In the concluding part of our opinion dismissing the appeal for want of jurisdiction we said: “The issue herein, involving Hornsby as principal, Webb and Bergeron as sureties, are so intimately connected that one cannot be solved independently of the other. Having no jurisdiction over the claim against Hornshy, we have none over the demand against’ the sureties.” Here, as a result of our analysis of the case as expressed in our opinion. we found that Hornsby, the principal, and his sureties had a common, if not an identical, interest in the issues presented for solution.

The situation in the present case is quite different from that which appeared in the case above cited, wherein the court held that there was no privity or common interest between the parties defendant. A reexamination of this case has satisfied us that the opinion rendered by us March 5, 1923, is correct, for reasons therein stated, but which we find unnecessary to repeat in support of our conclusions herein.

Counsel in his brief for a rehearing says when a party has taken his appeal in the honest belief that it “was properly taken, and the question of jurisdiction is not without its complexities”, the court where it has been lodged should not dismiss it, but should, under the provisions of Act 19 of 1912, transfer the case to the court where it is thought the appeal properly lies. We believe counsel is correct in this respect and we shall comply with his demand.

It is therefore ordered that our opinion holding that we have no jurisdiction herein be reinstated, but with this modification, that the decree dismissing the appeal be recalled, and that instead of dismissing this appeal that this case be and is hereby transferred to the Supreme Court- of the State of Louisiana, as provided for in Act 19 of 1912, and that the clerk of court of the parish of East Baton Rouge, without delay, transmit the record in this case to the clerk of the Supreme Court.

Appeal taken to Supreme Court under Act No. 19 of 1912, Louisiana State Rice Milling Co. vs. Hornsby.


text:
    No. -
    First Circuit Appeal
    R. R. BARROW v. CALISTE A. DUPLANTIS ET AL.
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 51.
    Under a partnership agreement by which all buildings, repairs and improvements made on or for a certain plantation, etc., were, at the expiration of the partnership to remain the property of the owner- of the plantation; a tram-road entirely off the plantation, used to transport sugar cane to the refinery, was not constructed for the benefit of the plantation and consequently would not belong to the owner of the plantation at the expiration of the partnership agreement.
    Appeal from the Seventeenth Judicial District Court, Parish of Terrebonne, Hon. Robert B. Butler, Judge.
    This is a suit coupled with an injunction brought by the owner of a plantation prohibiting the liquidator of a partnership from selling a lot of rails which had been advertised.
    There was judgment dissolving the injunction and the plaintiff appealed.
    Judgment affirmed.
    Harris Gagne, of Houma, attorney for plaintiff, appellant.
    Caillouet and Caillouet, of Houma, attorneys for defendant, appellee.
   MOUTON, J.

Henry Clay Duplantis, owner of the Myrtle Grove plantation, on the 8th of August, 1916, entered into articles of co-partnership with Barrow, plaintiff, for the cultivation of that plantation in corn, sugar cane and other products.

Douglas M. Kilpatrick in the capacity of Liquidator of the partnership of Barrow and Duplantis, obtained an order of court for the sale of a lot of property belonging to the partnership. The sale was advertised for March 5, 1921.

Plaintiff, formerly a member of said partnership, obtained an injunction prohibiting the Liquidator from selling a lot of rails which had been advertised for sale by the Liquidator.

Counsel for plaintiff says in his brief that the property involved in the dispute, consists of rails used for , a narrow gaged railroad, not on the Myrtle Grove Plantation, but used to haul outside cane for the' partnership to the refinery. Counsel says, the question is: Do these rails, under the articles of co-partnership, belong to Barrow at the termination of the contract?

The foregoing statement by counsel for plaintiff tersely presents the Vital issue submitted for decision in the case. In passing on this question the District-Judge said: “Considering that these rails were entirely off the plantation and were used by the partnership to transport cane to the refinery operated by the partnership, they can not be said to have been used on or for said plantation. They were used by and for the partnership in an enterprise entirely separate and independent of the dbligations of the partnership to operate and pay rent for Myrtle Grove.” Further the court said: “The rails were the property of the partnership, owned and used for profit, or at the risk of loss, -by the partnership; they were neither on the plantation or for the service of the plantation.” Plaintiff relies on Article 11 of the partnership to sustain his claim for the ownership of the rails, and which reads as follows:

“AH buildings, repairs and improvements made on or for said Myrtle Grove Plantation and machinery added during the term of said partnership shall be made at the expense and cost of the partnership, each partner paying one-half and the same to remain the property of the Plantation .at the expiration of the partnership free of cost or expense to said Barrow, unless otherwise agreed in writing.”

Under the admission by plaintiff it. appears that the rails in question had been laid as a tramroad entirely off the Myrtle Grove Plantation and was used by the partnership to transport outside cane to the refinery. Obviously, the cane was carried from the farms or plantations of adjoining farmers to the refinery, and for the benefit of -the co-partnership. The tramway was not constructed for the benefit of Myrtle Grove Plantation as an attachment or improvement for its service and benefit. It therefore did not come within the purview of Article 11 of the partnership which says, that all “improvements made on or for said Myrtle Grove Plantation” shall remain the property of Barrow at the expiration of the partnership. Not having been made for said Plantation, the ownership of the rails used in the construction of this tramway, did not revert to Barrow, lessor, at the termination of the contract under the provisions of Article 11, hereinabove referred to. The rails became an asset of the partnership as was held by the District Judge, who correctly dissolved the injunction which prohibited the sale of the rails by the Liquidator.

Affirmed.