author: ODOM, J.

text:
    No. 3261
    Second Circuit
    BOOTH MOTOR CO., INC., v. GAMBURG
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)
    (October 2, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    C. H. McCain, of Colfax, attorney for plaintiff; appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

On February 25, 1927, E. L. Collins purchased an automobile from plaintiff, which has its place of business in Grant Parish, where the sale was made.

The sale is evidenced by a written instrument signed before a notary and two witnesses, which recites that the sale was made for part cash, the credit portion of the price being $340.14, evidenced by one promissory note for said amount payable in monthly installments of $31.85, which note is secured by mortgage on the car.

On the following day Collins took the car to Alexandria, in Rapides Parish, and sold it to Nathan Gamburg, the defendant, Gamburg took from Collins a bill of sale, under private signature, reciting, among other things:

“The above-mentioned car is fully paid for by me and there is nothing due on same car.”

Subsequent to this sale, Collins, or some one for him, paid several installments on the note, reducing the balance to $222.95. Upon Collins’ failure to make further payments, the plaintiff brought this suit against Gamburg for the balance due, alleging that he had purchased the car from a non-resident of the parish without complying with Act No. 198 of 1918, the chattel mortgage law, which provides, in section 5, that:

“It shall be unlawful for a resident of any parish to purchase the movable property described in section 1 from any nonresident of such parish without first obtaining an affidavit from the non-resident that there is no mortgage on the property, nor any money due for the purchase price thereof; and the purchaser who shall buy the above referred to movable property, without having . obtained said affidavit, shall be liable to the creditor for the debt secured by the property.”

Gamburg did not obtain this affidavit, although he knew that Collins was a nonresident of the parish of Rapides.

There was judgment in the lower court rejecting plaintiff’s demand and it appealed.

OPINION

The sole ground upon which plaintiff seeks to hold defendant for the balance due on the car is that he purchased- it from a non-resident of the parish without obtaining from his vendor an affidavit that there was no mortgage on the car nor anything due on the purchase price.

The plaintiff, Booth Motor Company, Inc., sold the car to Collins in Grant Parish, at least the act of sale and mortgage was passed before a notary in that parish.

Collins lived in the parish of Winn to the knowledge of the plaintiff. The act of sale and mortgage was not filed for record in Grant Parish, but was filed for record in Winn Parish on March 28, 1927, a month and three days after its execution, or one month and two days after Collins sold the car to Gamburg.

Section 4 of Act No. 198 of 1918, the chattel mortgage law, provides:

“that every, mortgage shall be a lien on the property mortgaged from the time the same is filed for recordation, which filing shall be notice to all parties of the execution of such mortgage.”

It is as plain as words can express it that there is no lien under the mortgage until the act is filed for record. The benefits to accrue under the chattel mortgage law do not come into existence unless and until the act of mortgage is filed for record.

In this case, therefore, the plaintiff had no rights under and could derive no benefits from the act of mortgage until March 28th, when the act was filed. Collins sold the car long prior to that date.

Plaintiffs failure to comply with the act by having its mortgage filed for recordation, deprived it of the benefits of the act which it now seeks. Those who invoke the protection of a law enacted for their benefit must themselves, in order to reap such benefit, comply with the law.

That Collins could have, at any time prior to March 28th, made a valid sale of the car to any resident of Winn Parish, where he resided, and that the property would have passed to the purchaser free from any lien, admits of no argument. The document which plaintiff held in its hands would have afforded no protection whatever, because not filed for record. In its hands, unrecorded, it was a dead instrument. It was ineffective not only as against third persons, but, according to the precise wording of the act, plaintiff itself had no lien on the car.

Under the chattel mortgage law, as, interpreted by the Supreme Court in Wilson vs. Lourie, 156 La. 1062, 101 So. 549, and Securities Company vs. Taylor, 160 La. 945, 109 So. 705, a chattel mortgage is ineffective against third persons in any parish where the mortgage is not recorded. Under the act, the mortgage shall be recorded in the parish where the property shall then be situated and also in the parish in which the mortgagor is a resident.

In order that the mortgagee might have some protection under the mortgage, it is made unlawful for any person to purchase such property from a non-resident of the parish without first obtaining an affidavit that there is- no mortgage on the property nor anything due on the purchase price.

As was stated by the Court in the case of Securities Company vs. Taylor, supra, that provision was “evidently made to protect the mortgagee.” The provision could protect him only in so far as he had rights to protect. The chattel mortgage law affords no protection to a mortgagee who chooses to withhold his mortgage from the records.

The plaintiff in this case sold the car to Collins and for the unpaid balance of the price had a privilege on the car, but that privilege was lost when the car went into the hands of Gamburg, the defendant, who purchased from Collins, plaintiff’s vendee. That followed even if it be said that Gamburg knew (and he did not) that the purchase price of the car had not been fully paid.

Robinson vs. Taylor, Moore, intervenor, 7 La. App. 335 (Advance Reports No. 21, page 335, February, 1928), and authorities there cited.

The judgment is correct and is accordingly affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3200
    Second Circuit
    HAMMONS v. EDWARDS
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)
    (October 2, 1928. Writs of Certiorari and Review denied by Supreme Court.)
    Julius T. Long, of Shreveport, and A. L. Allen, of Winnfield, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

The plaintiffs, Columbus J. Hammons and wife, parents of Roy A. Hammons, who died on December 30, 1925, alleging that the death of their son resulted from an injury received by him on December 11, 1925, in an accident arising in the course and out of his employment at a saw mill operated by a partnership doing business under the name of Kinman & Edwards, of which decedent was an employee, and that they were dependent upon their son, within the meaning of the Employers’ Liability Act (Act No. 20 of 1914), brought this action against the partnership and the individual members to recover compensation for the death of their son, and defendants appeal from a judgment rendered against them in favor of plaintiffs for the payment of weekly compensation at the rate of sixty-five per cent of the amount of the wages received by decedent per week, for a period not three hundred weeks.

The cause was formerly before this Court on an appeal taken by defendants from a like judgment, and was remanded for further evidence, and on this appeal the defendants urge the same grounds for the reversal of the judgment as on the •presentation of the former appeal, which are:

First, that the evidence does not establish that plaintiffs were dependent upon their son within the meaning of the statute; and,

Second, that the evidence does not establish that death resulted from an injury received by decedent in an' accident arising in the course and out of his employment with defendants.

(1) This position was considered in the opinion remanding the cause, and as there was not any further evidence offered on the second trial relative to this question, we find, as we did on the first appeal, that the evidence established that plaintiffs were dependent upon decedent within the meaning of the statute, for the reasons stated in that opinion.

(2) When the cause was presented on the former appeal, we found that decedent had an epidemic or infectious type of meningitis, which had caused his death, and that the evidence failed to establish that the disease had resulted from an injury shown to have been sustained by the decedent in an accident in which decedent, while engaged in carrying a piece of lumber from the ground or lower floor to the upper floor of one of the buildings had, in ascending, bumped his head against a rafter, but that the record indicated further evidence could be had which might show the connection between the injury and the disease, and we remanded the case for a new trial.

In this connection we will state that our finding that decedent had an infectious type of meningitis was not conceded by plaintiffs, as evidence was offered tending to show that he did not have meningitis of an infectious or epidemic type, and on retrial of the case additional evidence was offered by plaintiffs tending particularly to show that decedent did not have an infectious type of meningitis, but that the injury had caused a blood clot to form, or the wound received in the accident had become infected, and only incidentally, if at all, to show that if decedent had an infectious or epidemic type of meningitis it had been aroused by the injury, and counsel, while not abandoning the theory that if decedent had an infectious type of meningitis, which caused his death, that it was aroused by the injury, stress the theory that the injury had caused a blood clot to form, etc., thereby bringing about the illness and death.

The testimony of the physicians was voluminous, and as it related to several theories, it is difficult at times to determine as to which of the particular theories their testimony was directed. However, as we gather from the testimony, there are two general types of meningitis, one which may be caused by trauma, as by a blow or injury to the head, causing an injury to the brain or breaking down of tissues, or infection causing inflammation which may spread to or affect the meninges of the brain and spinal column, and the other an infectious type caused by a germ which finds its way into the system through the respiratory organs, and the evidence offered by plaintiffs on the retrial tended toward showing that decedent had the former type of meningitis, which is referred to as traumatic meningitis, and while a stronger case is presented for that theory than on the first trial, but rather refutes the theory that if decedent did have an infectious or epidemic type of meningitis that it was aroused by the injury.

The physicians whose testimony tended to show that the decedent had traumatic meningitis, with the exception of one, had never seen the decedent, and their opinions were based upon facts assumed as to the nature of the injury sustained hy decedent and the symptoms indicated traumatic meningitis, and that any injury to the head sufficient to cause an abrasion of the scalp would he sufficient to bring about that type of the disease, they appear to have concluded that the injury had caused or brought about traumatic meningitis, and death; while the physicians who were of the opinion that decedent had an infectious type of meningitis, were those who had attended and treated him and who, in their treatment, had tests made in which it was found that there were germs of the Infectious type of meningitis in the spinal fluid, and their opinion was based upon grounds clearly shown by the answer given by one of them as to his conclusions, in which he said:

“I based it upon the physical examination of the patient, the appearance of the spinal fluid, the negative reports from the radiologist and the reports of the pathological department.”

The evidence does not indicate that the injury was regarded as serious at the time it occurred, or establish that it caused more than an abrasion of the skin, or that decedent was disábled to any extent immediately thereafter, but, on the contrary, it shows that after humping his head, which occurred in the early morning, decedent continued to work throughout the day and the following two and one-half days until the plant shut down at noon on Saturday, and that decedent did not become ill until the following day, Sunday evening, while he was visiting friends; and the circumstances do not bring the case within that class where disability immediately follows the injury and disease develops in such period, where it might be said that the proof that the illness may have been caused by the injury would be sufficient, and as there is not any presumption which would support the theory that the injury caused the illness, it must be proven hy a preponderance of the evidence.

There was not any evidence offered which could be said to tend to directly establish that any blood clot was formed or infection set in causing traumatic meningitis, and considering that there is in the record testimony of physicians who were equally as well advised of the nature of the injury and of the symptoms of decedent’s illness as the physicans called by plaintiffs supporting the opinion of the attending physicians that decedent had infectious meningitis, we are of the opinion that the preponderance of the evidence establishes that decedent had infectious or epidemic meningitis and that the disease caused his death, and the remaining question is whether or not the evidence establishes that such disease was aroused by the injury.

On the first trial, as previously stated, evidence was offered tending to show that the disease, infectious meningitis, was aroused by the injury, which we did not think was sufficient to establish the contention, and while, as stated, the evidence on the retrial was not particularly directed to that question, yet the only evidence which we find on the second trial relevant to that question supports the defendants’ position that the evidence did not show that the injury aroused the disease of epidemic meningitis, the testimony of one of the physicians called hy plaintiffs as to this reading in part as follows:

“Q. Does a blow of this kind produce an epidemic form of meningitis?
“A. I don’t think it could do that. A man might 'possibly be a carrier of the germs, and a blow might cause them to get started, but it is putting' so many probabilities together that I don’t think that a blow would figure very much in the production of spinal meningitis.”

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that plaintiffs’ demands be rejected at their cost.


author: CLAIBORNE, J.

text:
    No. 11,550
    Orleans
    KOSHLAND v. JONES
    (June 27, 1928. Opinion and Decree.)
    Brittingham and Tiser, of New Orleans, attorneys for relator.
    H. W. Kaiser, of New Orleans, attorney for respondent.
   CLAIBORNE, J.

The decision of the Supreme Court in the case of Trogell vs. King, 46 La. Ann. 421, 15 So. 410, has satisfied us that we erred in our original opinion.

The defendants are the lessees of the plaintiffs; they failed to pay the rent due May 1, 1928; in the suit No. 174,887 of the Civil District Court judgment was rendered May 28, 1928, under Act 55 of 1926, page 68, ordering the said defendants to deliver to the plaintiffs the possession of the leased premises; that the defendants obtained an order for a suspensive appeal from said judgment; that they filed a bond in the ordinary form conditioned “to satisfy whatever judgment may be rendered against them on appeal”; that it was decided by this Court in Wesley vs. Taylor, 3 La. App. 20, and in Doullut vs. Rusch, 142 La. 443, 77 So. 110, that the appellant from a judgment of eviction shall give bond “for all such damages as the appellee may sustain”; that a written application was made to Judge Skinner pointing out that the defendants had no suspensive appeal from said judgment and that the same should be executed; that the Judge dismissed the application; that plaintiffs are entitled to execute the judgment of possession. Wherefore they pray for writs of mandamus, certiorari and prohibition, commanding the said Judge to set aside his order of suspensive appeal and to order the execution of his judgment of eviction.

The Judge answered that the relators 'had mistaken their remedy; that a mandamus would not lie; that relator’s remedy was either hy appeal from the judgment refusing to dismiss the appeal a,nd to execute the judgment, or by motion in this Court to dismiss the appeal; and that the bond ■ furnished is such as described by plaintiff but sufficient under the law. Section R. S. 2157 provides that:

“No appeal from any such judgment shall suspend execution unless ’ the defendant * * * give bond with good and sufficient security, for all such t damages as the appellee may sustain.”

In State ex rel. Werlein vs. Judge, 110 La. 1042, 35 So. 282, the Court decided that Section R. S. 2157 and not Article C. P. 577 governed in the matter of appeal bonds in ejectment judgments. Affirming Lamouraine vs. Judge, 45 La. Ann. 1316, 14 So. 232.

In Audubon Hotel vs. Braunig, 119 La. 1074, 44 So. 891, the Court affirmed that decision and said:

“The requirements of that law are. not complied with by furnishing an ordinary appeal bond. An order of appeal does not divest the trial Court of jurisdiction where no such bond is furnished.”

Affirmed in Doullut vs. Rush, 142 La. 443 (452), 77 So. 110.

These decisions have been followed by this Court in Langa vs. Baradat, 7 Orl. App. 447, and Wesley vs. Taylor, 3 La. App. 21.

It is perfectly evident therefore that the bond furnished by the defendant was not the .one prescribed by law and was tantamount to no bond at all, not even a conventional bond. Doullut vs. Rush, 142 La. 456, 77 So. 110.

To sustain an appeal the bond required by law must be furnished or the appeal must fall and the judgment must be executed.

Our original opinion was based upon our own opinion in State ex rel. Majendie vs. Constable, City Court, 1 La. App. 139, and upon the opinion of the Supreme Court in Riccabona vs. Kearney, 164 La. 844, 114 So. 707.

Our attention had not been directed ' to the case of Troegel vs. King, 46 La. Ann. 421, and Sample vs. Judge, 43 La. Ann. 936. Those decisions meet our own views as to what should 'be the law and we follow them without hesitation. The case of State ex rel. City, 4 Orl. App. 167, presents different facts, and if not, is in conflict with State vs. Murphy, 46 La. Ann. 421, 14 So. 920, and Doullut vs. Rush, 142 La. 443.

It is therefore ordered that our previous decree be revoked and set aside; and it is now ordered that the appeal herein in so far as purports to be suspensive be dismissed and set aside; and that relator herein be permitted to execute the judgment. - of eviction.

Mandamus peremptory.


author: WESTERFIELD, J.

text:
    No. 10,889
    Orleans
    COMEAUX v. MILES
    (July 7, 1928. Opinion and Decree.)
    (September 4, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      Arthur Landry, of New Orleans, attorney for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit against a dentist for damages, alleged to have been sustained, owing to the unskillful and negligent extraction of a tooth. Plaintiff sued for $25,341.15 and was awarded judgment in the sum of $3841.45. Defendant appeals.

The petition charges the defendant, personally, with negligence, but on the trial evidehce was introduced over the objection of defendant’s counsel to show that an employee of defendant extracted the tooth and caused all the trouble, and plaintiff now seeks to hold defendant responsible under the law applicable to master and servant.

It is contended in this Court that this evidence should have been excluded because unresponsive to any allegation in the petition and violative of the fundamental rule concerning the necessity of alleging what is intended to be proven. We concede .the force of this argument and are of opinion that the trial court should have excluded the evidence until the petition had been properly amended, but the rule is different on appeal.

Davis vs. Arkansas Southern R. Co., 117 La. 320, 41 So. 439; LeBlanc vs. United Irrigation & Rice Milling Co., 129 La. 196, 55 So. 761.

Moreover, defendant pleaded surprise, and was granted a delay of twenty-four hours to obtain his witnesses to overcome the evidenc'd thus introduced and the case was fully tried with both sides presenting their testimony on .all points.

Plaintiff, who had been a patient of Dr. Capo, was induced to go to Dr. Miles’ establishment by a friend of hers, Mrs. Kentzel. She was waited on by Dr. Mount, an employee of Dr. Miles. Dr. Mount, after some persuasion, pulled one of plaintiff’s molar teeth. In doing so he broke the tooth, and, left fragments of the roots in her jaw. Both plaintiff and her friend Mrs. Kentzel, who was present, insist that Dr. Mount claimed to have removed all the pieces of tooth. Dr. Mount, testifying, denied this statement and claimed to have told plaintiff to return the next day, when he would remove the broken root. In our opinion, the question of Dr. Mount’s negligence turns upon the issue of veracity as between plaintiff and. her friend, on the one hand, and himself on the other. Because, if he recognized the fact that the tooth was broken, under the evidence, he was guilty of no negligence, for all dentists who testify as experts are agreed that in extracting teeth it is not uncommon for the teeth to break, and without fault on the part of the operator. He testified that he knew the root was not extracted and didn’t remove it at once because of the extreme nervousness of plaintiff, and, that he didn’t remove it the next day because he wished to heal the lacerated gums, administering treatment to that end, and that on the following day plaintiff would not permit him to remove it. Plaintiff testifies that she was told the tooth and its fragments had been entirely removed and asked to return for treatment of her aching and lacerated gums; that she continued to suffer and sought other advice, medical as well as dental, obtaining an x-ray and exhibiting it to Dr. Mount, who, then for the first time, acknowledged the presence of the broken tooth in her jaw and offered to extract it, which offer she indignantly refused. Dr. Miles also offered to remove the root and his offer was also declined. Plaintiff is corroborated by her friend, who may be said to be influenced by her friendship, but we believe that probabilities also support plaintiff.

In the first place the usual practice is to remove the fragments of broken teeth at the same sitting, and if, as Dr. Mount claims, his patient was nervous, she should not have been humored, particularly since the operation was painless (it is testified and not denied that Dr. Mount offered to pay plaintiff $100.00 if in extracting the tooth he hurt her). The root should have been removed the next day even if the gums were not healed because, from the evidence in the record, and as demonstrated by the consequences, there was considerable danger in allowing it to remain for any length of time. Finally, it is not probable that plaintiff would have had an x-ray taken to reveal the presence of the broken root,’ without the knowledge of Dr. Mount, and exhibit it to him, if she had been previously informed of the presence of the broken tooth.

We conclude that Dr. Mount did not advise plaintiff of the remaining root in her jaw, perhaps because he did not know of it, but in any event his failure to take the proper steps to protect plaintiff against the danger incidental to the presence of the broken tooth in her mouth was negligence, for which under the doctrine of respondent superior, defendant is liable. The degree of care which the law exacts of physicians and dentists is that usually exercised by practitioners in good standing. Stern vs. Laurg, 106 La. 738, 31 So. 303.

Plaintiff suffered considerably from her broken tooth. It is testified by Dr. Mermullion, a dentist of high standing in his profession, that pus was being discharged into the blood stream, and that a general anaesthetic was administered and a surgical operation necessary for the dissection of the root from the alveolus, and that x-ray pictures showed lesion or cuts from the attempted extraction. Plaintiff was treated for some time after the operation and experienced much pain. However, the award of the trial judge was excessive and we have concluded to reduce it to $1000.00. As thus amended the judgment appealed from is affirmed.


text:
    No. 10,382
    Orleans
    INTERSTATE TRUST & BANKING CO. v. LICHTENTEG
    (October 15, 1928. Opinion and Decree.)

      Paul A. Sompayrac of New Orleans, attorney for plaintiff, appellant.
    J. H. Weiner apd S. G. Roos, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

The petition recites that plaintiff, “a Louisiana corporation domiciled and doing business at New Orleans, La., represented herein by P. H. Sitges, duly authorized Trust Officer, with respect represents;” “That as agent for the owner and holder of a certain promissory note and for account of said owner, the said banking corporation sues and declares, That defendant is indebted to the owner of the note for the principal and interest and the note is attached to the petition.”

The exception of no cause of action is based upon the alleged incapacity of plaintiff’s Trust Officer to bring suit and upon the failure of plaintiff to set forth in its petition the name of the holder and owner of the note in whose behalf it sues.

As to the first objection, it will be observed that the suit is brought in the name of the Interstate Trust & Banking Company, represented by P. H. Sitges, alleged to be the duly authorized Trust Officer. Perhaps the words “duly authorized” which follow the name P. H. Sitges, might be held to refer to Sitges’ authorization to bring the suit, but we are inclined to the view that this would be a strained construction and we consider the words “duly authorized” as referring to the official position of Sitges with the bank and as amounting to the allegation that he is the duly qualified Trust Officer.

It must be conceded that officers of a corporation as such, have- no power to bring, conduct or defend a suit on behalf of a corporation. Corpus Juris Verbo Corporations, Vol. 14-A, page 470. In this case, the suit is filed in the name of the corporation and if we disregard all reference to Mr. Sitges and consider the suit as one brought in the name of the Interstate Trust & Banking Company alone, having regard only to the fact that P. H. Sitges signs the affidavit accompanying the petition, the case would then be controlled by the principle announced in Lacaze & Reine vs. Their Creditors, 46 La. Ann. 237, 14 So. 601, where it was held that, “an exception that the petition of a corporation does not show that suit was authorized will be overruled if the affidavit accompanying the petition discloses the name of the Vice-President of the Company and affirms the truth of its allegations, the necessary inference therefrom being that the suit was apparently authorized.” (Syllabus.)'

In New Orleans Terminal Company vs. Teller, 113 La. 736, 37 So. 624, the Court refers with approval to the case of Lacaze & Reine vs. Their Creditors, and holds:

“The second exception was founded on the fact that neither the name of the president nor of any other officer of plaintiff corporation was stated in the petition, but only that of the 'corporation was stated.
• “The Court sees no reason why such an appearance by a corporation should not be entirely sufficient.. A corporation is a person, and does not labor under any incapacity, like a minor or an interdict. What good reason could there be, then, why it should not sue in its own name alone? True, it can act only through agents, it being a mere juridical person; but, inasmuch as it has the capacity to stand in judgment for itself, what necessity is there for naming these agents in the petition?”

In Jeanerette Rice & Milling Co. vs. Durocher, 123 La. 160, 48 So. 780, it was held that where a corporation brought a suit through its president claimed to be duly authorized to bring the suit, and it was shown that he had no authority beyond the verbal assent of the majority of the individual directors given seperately, that such assent could not have the force of a resolution adopted by the Board ,of Directors and, consequently, the suit was not • properly brought. ' But the facts in that casé are quite different from the case at bar.

Concerning the second point relied upon to sustain the exception of no cause of action, namely that plaintiff had failed to reveal the name of the holder and owner of the note, we find that the note was attached to the petition and is made payable to the order of Piggly-Wiggly Investment Company at the office of the Interstate Trust & Banking Company, New Orleans, La., and that it bears no endorsement indicating that it had been transferred by the original payee. We think this sufficient -disclosure of ownership of the note.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that this cause be remanded for further proceedings according to law and consistent with the views herein expressed.


text:
    No. 10,405
    Orleans
    THE DAILY STATES PUB. CO. v. WHITE
    (October 15, 1928. Opinion and Decree.)
    Dart and Dart, and Robert Ewing, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Joseph H. Brewer, and W. A. Greene, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The basis of this appeal is the alleged error of the trial Judge in refusing a new trial.

A new trial was asked for upon the ground that counsel erroneously entered a notice of trial in his diary and, upon the further ground, that at the time of the trial, counsel was suffering from a severe cold which had involved his bronchial tubes. It is not claimed that any appearance or request for continuance was made in counsel’s behalf nor any written communication addressed to the Court.

The suit is on open account, which according to the evidence, was admitted to be due by defendant.

The refusal of a new trial under the circumstances, was well within the discretion of the trial Judge, with which we will not interfere. La. Digest, Vol. 5, page 534, Verbo New Trial.

Damages are asked for frivolous aippeal which we think should be allowed. The judgment appealed from will be affirmed with ten per cent damages for frivolous appeal.


text:
    No. 10,796
    Orleans
    MADONIA v. MEYER & WETMORE
    (June 18, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    P. S. Weis, P. P. Burns and Sol Weiss, of New Orleans, attorneys for plaintiff, appellant.
    Theo. Cotonio, of New Orleans, attorney for intervenor; W. O. Hart, of New Orleans, attorney for Civil Sheriff.
    Lazarus, Michel and Lazarus, and M. C. Scharff, of New Orleans, attorneys for defendant, appellee.
   OPINION

WESTERFIELD, J.

Theodore Cotonio, Leopold Welsh, trustee in bankruptcy of Charles Wetmore and U. Koen & Co., Inc., each claim a privilege on a sum of money in the hands of the Civil Sheriff for the Parish of Orleans amounting to $944.15. The claim of Welsh and that of U. Koen & Co., Inc., would absorb the entire fund. Cotonio claims $534.00, $85.00 of which is court costs and the remainder attorneys’ fees. TJ. Koen & Co., Inc., the owner of the premises No. 112 St. Charles Street leased the same to Jos. Madonia, who, with the owners’ permission, sub-leased to the Midget Shirt Shop, operated by Charles Wetmore, though his lease with Madonia was in the name of Meyer & Wetmore. A petition in involuntary bankruptcy was filed against Wetmore in the United States District Court on December 29, 1921, and he was subsequently adjudged a bankrupt and Leopold Welsh appointed trustee. On the same day, Madonia, through his attorney, Theodore Cotonio, obtained a provisional seizure of the contents of the leased premises, claiming $1340.00 as rent, and the Sheriff on January 23, 1922, sold the contents of the Midget Shirt Shop, and realized the sum in contest here.

On May 2nd, U. Koen & Co., Ltd., provisionally seized Madonia, alleging that there was $6750.00 due by Madonia as rent. An attempt was made by Madonia’s trustee, Leopold Welsh, to have the funds in the Sheriff’s hands turned over to him by proceedings in the United States District Court, but he was directed to assert his claim in the State Court and in due time filed an intervention in Madonia vs. Meyer & Wetmore, the original proceeding in which the fund was created. A judgment creditor seized Madonia’s interest in the litigation and by Sheriff’s sale on June 30, 1922, Leopold Welsh, Wetmore’s trustee, being authorized so to do, purchased Madonia’s interest. Madonia thereafter ceases to be a factor. Theodore Cotonio intervenes in Madonia vs. Wetmore and U. Koen & Co., also.

Mr. Cotonio’s claim rests upon Sec. 128 of the Revised Statutes, which gives to attorneys a special privilege “for the amount of their professional fees on all judgments obtained by them to rank as first privilege thereon.” This law protects attorneys in their fees by giving a privilege on “all judgments obtained by them.” There was no judgment obtained by Mr. Cotonio, and consequently no privilege. As to the costs advanced his client it was an unfortunate loan, but we know of no privilege to which it is entitled.

U. Koen & Co. claim the proceeds as landlord and we are referred to a number of authorities holding statutory liens created under state laws entitled to recognition in bankruptcy.

Yeatman vs. Savings Inst., 95 U. S. 764, 24 L. Ed. 589; York Mfg. Co. vs. Cassell, 201 U. S. 352, 26 S. Ct. 481, 50 L. Ed. 782; In re Glenn (C. C. A.) 237 Fed. 808; Collier on Bankruptcy, 11th Ed. 1054.

But there was no lien, or privilege, on the proceeds of the sale of the stock of the Midget Shirt Shop under the laws of Louisiana so far as we are advised. A landlord has a lien on the contents of the leased premises while on the premises and for fifteen days thereafter R. C. C. Arts. 2705, (2675), (2709). He also has a privilege on the movables of the under tenant to the extent of rent owed by the under tenant. Robertson vs. Lebermuth, 132 La. 330. But the property once on the leased premises had been sold and converted into cash months before the landlord provisionally seized for his rent, or Intervened in the proceeding by which its tenant seized the sub-tenant. U. Koen & Co. intervened August 1, 1922, more than three months after Madonia’s interest had been seized, by his judgment creditor, and more than two months after Welsh had acquired Madonia’s interest in the Sheriff’s sale. We know of no lien, or privilege, the landlord enjoyed . in relation to these proceeds under the circumstances.

Madonia’s trustee claims the fund upon the grounds, first, as trustee and secondly, as purchaser of Madonia’s interest in the litigation at the Sheriff’s sale. The Bankruptcy Act provides (Sec. 70 a. 5, 11 U. S. C. A. Sec. 110 (a) 5), that the title to the possessions of the bankrupt passes to the trustee as to “all property which prior to the filing of the petition the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process against him.” The title of the trustee relates back to the filing of the petition. Baily vs. Baker Ice Machine Company, 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275. See, also, Collier, p. 1127 et seq.; In re Larkey (D. C.) 214 F. 867, 32 A. B. R. 287. Of course, the trustee takes only such interest as the bankrupt had subject to all incumbrances. Blank vs. Blank, 124 La. 832, 50 So. 745. The bankruptcy of a debtor does not discharge a pre-fexisting landlord’s lien. Henderson vs. Mayer, 225 U. S. 631, 32 S. Ct. 699, 56 L. Ed. 1233.

At the time of the filing of the bankruptcy proceedings the landlord had not asserted his lien. He made no effort to do so until the merchandise had been sold at the instance of Madonia. If he had acted prior to the removal of the property from the leased premises either before or after bankruptcy, a different case would be presented. But he remained inactive and lost whatever claim he might have had upon the proceeds. ■

The funds in the Sheriff’s hands are therefore either the property of Madonia or of Welsh as trustee for Wetmore’s creditors. Madonia’s interest, though unliquidated by judgment, has been divested by Welsh and he must be recognized as entitled to the money.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that the intervention of Theodore Cotonio and of U. Koen & Co., Inc., be dismissed and that there be judgment directing the Civil Sheriff of the Parish of Orleans to deliver to Leopold Welsh, trustee of the bankrupt, Charles Wetmore, the sum of $944.15, the proceeds of the sale of the stock of goods belonging to the said Charles Wetmore sold under orders of court in these proceedings.


text:
    No. 10,205
    Orleans
    FRERICHS LUMBER CO., LTD., v. MOSES
    (June 18, 1928. Opinion and Decree.)
    (September 4, 1928. Rehearing Refused.)
    Frank Soule, of New Orleans, attorney for plaintiff, appellant.
    Bertrand I. Cahn, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This suit grows out of the sale of a quantity of lumber. Plaintiff sold and defendant bought 1406 feet of “First and Second” Black Walnut Lumber and executed a trade acceptance for $508.40, the agreed price of the lumber, payable in sixty days.

The acceptance was dishonored, and this suit followed. The defendant (pleads a failure of consideration in that the lumber was not “thoroughly seasoned and dry” in accordance with the terms of the contract.

The defendant is a manufacturer of high grade furniture, and plaintiff a dealer in hardwood lumber. Defendant in his testimony asserts that he bought “bone dry lumber” and that, although the lumber delivered by plaintiff was "First and Second Black Walnut,” a designation well understood in the trade, it was not “bone dry” and, consequently, it warped when used as veneer in the manufacture of furniture, due to its moisture content. He exhibited several warped pieces, which he said were cut from the lurqber of plaintiff. He had used something less than one-half of the lumber.'

But defendant did not give the order to plaintiff’s salesman personally. The order was given verbally by someone in his employ and therefore his testimony that the lumber was to be bone dry is not convincing. Moreover, no contention of this nature is made prior to his taking the stand. He called upon plaintiff’s lawyer, and simply asked for time, stating that he would ©ay when he collected a sum of money due him by the West End Country Club. Several letters were written to plaintiff by defendant and no reference made to “bone dry” lumber. His answer does not raise this issue and he testifies that he sometimes uses the grade of lumber delivered. He signed the acceptance three weeks after the lumber was delivered. An officer of plaintiff corporation testified that the warped pieces exhibited by defendant were not sold by plaintiff because wider than any lumber kept in its stock and that the lumber delivered was dry, but not bone or kiln dry. That kiln dry lumber costs $10.00 per thousand feet more than air dry lumber.

The evidence is most persuasive and convincing in plaintiff’s favor, consequently the judgment appealed from is reversed and it is now ordered that plaintiff, Frerichs Lumber Company, Ltd., have judgment against defendant, Harry L. Moses, in the sum of $508.40, with legal interest from judicial demand and all costs.


text:
    No. 11,454
    Orleans
    IN RE APPLICATION BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN TO DEPOSIT FUNDS IN REGISTRY OF THE COURT
    (June 18, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      C. A- Buckler, of Gretna, attorney for plaintiff, appellee.
    Leo W. McCune, of Gretna, and A. H. Thalheim, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit grows out of the conflicting claims to the proceeds .of a “beneficial certificate” (life insurance policy, issued by the Brotherhood of Locomotive Firemen and Enginemen, a frater.nal order, to which we shall hereafter refer As the insurer, to Nicholas Collette, deceased, in the sum of $1500.00, now reduced to $1250.00 by the payment of burial expenses.

The original beneficiary was Collette’s mother, Mrs. R. L. Collette, who died before her son and without his having named another as his beneficiary. The certificate (or policy) provides that in the event of there being no designated beneficiary, the policy is to be paid in accordance with the constitution and by-laws 'of the organization, which are made a part of the policy, to the same effect “as if said constitution and by-laws were entirely written into said certificates.”

The appropriate provision of the constitution reads:

“In the event that there is no legal designated beneficiary, that the proceeds of the policy shall be paid to the parties in the following named order:
“lfet. To the widow.
“2nd. To the mother.
“3rd. To the father.
“4th. To the children, and
“5th. To the brothers and sisters equally.”

The insurer deposited the proceeds of the policy in the registry of the District Court •and Mrs. Eugenie Penniston Collette, claiming to be the widow, and the brothers and sisters of deceased, claiming to be the sole legal heirs, are respectively demanding the proceeds thus deposited.

The argument advanced by the collateral heirs is two-fold.

First: the provision in the constitution preferring the widow is invalid because in conflict with R. C. C. 912, which provides:

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

Second: Mrs. Collette was not the widow of deceased because a judgment of separation of bed and board had been rendered against her and in favor of her husband, who had also obtained a preliminary default in an application for divorce though no final .decree of divorce had been rendered.

• Upon the first point we observe that an insurance policy is “sui generis and governed by rules peculiar to itself” and when “payable otherwise than to the assured or his estate, belong to the beneficiary,” and “form no part of his estate.”

See Tecker vs. Metropolitan Life Insurance Co., XI Orleans App. p. 59, and many authorities there cited.

As to the second point, a judgment of separation does not dissolve the marriage “since the separated husband and wife are not at liberty to marry again.” R. C. C. 136. Such judgment is no bar to a claim for the marital fourth. Gee vs. Thompson, 11 La. Ann. 657; nor the $1000 privilege. Succ. of Liddell, 22 La. Ann. 9.

We conclude that Mrs. Eugenie Penniston Collette was the wife and is now the widow of deceased at the time of his death and as such is entitled to the proceeds of the policy in dispute. Such was the opinion of, the trial Judge and his judgment will be affirmed.


author: WESTERFIELD, J. Per Curiam.

text:
    No. 10,646
    Orleans
    GRAGNON v. CITY OF NEW ORLEANS
    (June 4, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    Eugene Saunders, G. B. Harrison, Jr., of New Orleans, attorneys for plaintifff, appellee.
    W. McL. Fayssoux, McCloskey and Benedict, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, an elderly lady who resided in Algiers, was injured in crossing the tracks of the Public Belt Railroad operated by the City of New Orleans. A jury awarded her $8675.00 as damages for personal injuries and the City of New Orleans, defendant herein, has appealed.'

The accident occurred at the foot of Canal Street at about 5.30 p.m., January 19, 1922. Plaintiff, in company with her daughter, was walking toward the ferry landing intending to cross the river to Algiers. It appears that there is a plank walk crossing the several tracks on the river front for the use of pedestrians and that as plaintiff and her daughter neared the tracks a slowly moving train of the Public Belt was approaching and that plaintiff found herself in a position of peril and either fell down or was knocked down by being struck by the side of the engine, which was pulling the train. It is not clear as to exactly how she was injured, but, it is immaterial, because, if plaintiff’s dilemma was due to the fault of defendant, the responsbility for the consequences of a fall caused by terror and excitement would be as great as if the injury were due to a fall caused by striking the engine.

There is the customary conflict in the evidence. Plaintiff and her daughter testify that there was no warning of the approach of the train and no flagman, where a flagman should have been. The train crew assert that the flagman was at his post and warning bells were ringing continuously.

On one point all are agreed. There was a box car parked on the crossing. Plaintiff says there were three box cars and that their presence obscured her view and caused the accident. Defendant concedes the presence of one box car but denies that it would have caused the accident and insists that it was plaintiff’s duty to peeT around the box car before attempting to cross. Citing Bornhill vs. Texas & Pacific R. R. Co., 109 La. 43, 73 So. 65; Sutton vs. Lee Logging Co., 121 La. 557, 46 So. 649; 33 Cyc. p. 1018.

The cases cited, if they be pertinent in other respects, deal with the question of contributory negligence. We quote from the Bornhill case, a case which is closest in analogy:

“If the box car upon the switch was in close proximity to the crossing it was Barnhill’s duty to have peered around its side cautiously before venturing upon the main track, and had he done this there was nothing to have prevented his observing the approaching train.”
“To have stepped suddenly from behind the box car on the main track was the height of imprudence.”
■ “A plaintiff who has contributed proximately to an injury cannot recover even if he succeeds in proving fault on the part of another.”

But in the case at bar there is no plea of contributory negligence, consequently we are only concerned with defendant’s negligence vel non.

Whether proper signals were given or not, we are unable to determine from the evidence, all of which is given by interested parties. But defendant accepts full responsibility for the presence of the box car where it served to obscure the view of the approaching train. It may be that plaintiff should have exercised greater caution and perhaps she should have “peered around its side cautiously before venturing upon the track” but we are relieved from considering her contribution to the accident, since we are convinced that defendant was negligent in permitting its box car to remain on the crossing while its train was approaching without giving extraordinary warning. We are not satisfied that the flagman functioned properly, for it would be very remarkable for an elderly lady and her daughter to have disregarded his admonitions or signals given verbally or by gestures.

In Mitchell vs. Illinois Central R. R. Co., 110 La. 630, 34 So. 714, it was said:

“It would seem that where a railroad company has stationed a flagman at a public crossing for the purpose of warning persons about to cross the tracks, the public have the right to rely (not absolutetly, perhaps, but reasonably so, upon the flagman to give proper notice and warning of danger.”

In Roby vs. Kansas City Southern, 130 La. 880, 58 So. 701, the Court held:

“Our conclusion is that the chauffeur had the right to expect that, if there was any approaching train, which threatened danger, the flagman would be out in front of the crossing with his red flag to warn him of it (just as, in places where they use ‘gates’ or bars which drop down across a street upon the approach of a train, persons using the street have the right to expect to see the bars in place if a train is approaching), and that the failure of the flagman to be there and give the warning was the negligence to which the accident must be attributed.”

The flagman should have been on the city side of the box car or cars in order that pedestrians might be warned of the coming train under circumstances affording an opportunity to avoid the danger. In other words, the pathway being obstructed and view interfered with by the presence • of the box car more than the customary precaution was necessary and duty of extraordinary care imposed on the carrier. The failure of defendant to exercise such care results in liability.

The amount allowed is plainly excessive. The claim of $6400.00 for damages to her drug business alleged to be due to plaintiff’s inability to conduct the business after the accident if it could be said to be established cannot be considered because too remote. We are referred to no authority in support of the claim and it seems to be abandoned. Plaintiff’s arm was broken and there were contusions and according to the testimony some nervousness due to the accident. But she has recovered practically the normal use of her arm.

We believe $1250.00 a proper award.

The judgment appealed from is amended by reducing the amount awarded plaintiff to $1250.00 and as thus amended it is affirmed.

ON PETITION FOR REHEARING

Per Curiam.

Defendant charges us with error in holding that no plea of contributory negligence was made. We find the following paragraph in its brief:

“Th&re is purposely no plea of contributory negligence on our part; the allegations in the answer are that the train was properly manned, properly equipped and properly operated, and that the defendant maintained at the moment a flagman at the public crossing.”

It is contended that plaintiff is charged with' negligence in its answer, and, that this averment must be given the same effect as a formal plea of contributory negligence. Without discussing this point we interpret the quoted paragraph as an abandonment of any plea or contention of negligence upon plaintiff’s part, particularly since in argument no such defense was made nor is there any qualification or reservation in the quoted paragraph.


author: JONES, J.

text:
    No. 10,172
    Orleans
    MAUGHT v. CASSARD
    (April 9, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    J. C. McGee, of New Orleans, attorney for plaintiff, appellant.
    Miller, Millpr and Fletchenger, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This suit, which is on a promissory note given to Mrs. Cecile Gassard, wife of John A. Maught, by her brother, Ernest J. Cassard, was filed on May 1, 1925. The note offered in evidence is dated October 25, 1901, and made payable on demand. As the defendant, Ernest J. Cassard, was an absentee at the filing of this suit, plaintiff ¡prayed for a curator ad hoc and for the attachment of certain money of defendant in the possession of the American Bank & Trust Co. The court appointed the curator ad hoc and issued the attachment prayed for.

To the above petition the curator ad hoe pleaded the prescription of five years as a bar to the demand.

Before trial, Mrs. Adele DeGruy, wife of the absentee defendant, and Mrs. Lillian Claire Cassard, his daughter, the wife of Lucian J. Moret, filed petition of intervention, also pleading prescription as a bar to the main demand.

The plea of prescription was upheld by judgment rendered on June 1, 1925, and plaintiff’s suit was dismissed at her cost. From this judgment plaintiff appealed.

Subsequent thereto intervenors were allowed to have the property attached released from seizure upon their furnishing bond.

It is admitted by both , sides that the defendant has not been heard of since the year 1904, and that his whereabouts are unknown.

The plaintiff, having identified the note, stated that the consideration therefor was six checks signed by her to the order of defendant, one bearing the same date as the note in question, and the others bearing dates subsequent thereto. She further stated that she had last seen her brother ■ at the St. Louis Exposition in St. Louis, Mo., in the year 1904, and that she did not know where" Le was thereafter.

Upon cross-examination by the curator ad hoc she admitted that she had received a legacy. of twenty-five hundred dollars from the succession of her uncle, Augustin Cassard, in 1911, and thought that her brother was also entitled to money from this succession.

The defense offered in evidence record in the succession of the above mentioned Augustin Cassard, particularly the provisional account filed therein on December 9, 1910, showing the listing of the defendant, Ernest J. Cassard, as the recipient of a money legacy of twenty-five hundred dollars, less one hundred twenty-five dollars inheritance tax, or twenty-three hundred seventy-five dollars, and also the joint petition of the widow, Mrs. A. J. Cassard, and plaintiff and defendant and the other nephews and nieces of the deceased, all legatees under the will.

The judgment to this joint petition of widow and legatees was "signed April 24, 1911, and the defendant, Ernest J. Cassard, was recognized" as owner along with other co-heirs of two undivided thirds of the property situated at the corner of Canal and Carondelet Streets in this city, which property was for many- years popularly known as the “The Louisiana Club” property.

The documents above offered show that plaintiff and defendant, brother and sister, each received a cash legacy of twenty-five hundred dollars from this succession, and that each was recognized as owner by the same judgment of an equal share in the above mentioned Louisiana Club property, namely, 3/96 thereof. This judgment was recorded in thq Conveyance Office in Book 241, folio 211.

Defendant offered in evidence the record in the separation suit of Mrs. Adele De Gruy, wife of Ernest J. Cassard, vs. Ernest J. Cassard, her husband, No. 97,160 on the docket of the Civil District Court.

This record shows that the absentee’s wife sued him for a separation on the ground of abandonment on May 23, 1911. In her petition she alleged as follows: That his uncle, Augustin J. Cassard, had died recently, leaving a last will in which her husband was made legatee for twenty-five hundred dollars, cash, and a large interest in a piece of real estate, subject to the usufruct for life of the widow; that her husband when last heard of was in Ceiba, Honduras; that the net amount of the legacy, twenty-one hundred ninety-four and 88-100 dollars had been paid and was then on deposit in the registry of the Court in her husband’s name.

She prayed that a curator be appointed to represent the absent husband and that he and the Clerk of Court be cited to show cause why she shouldn’t be paid alimony pendente lité at the rate of two hundred dollars per month and attorney’s fees out of the deposit.

To this petition the curator excepted as follows:

(1) Petition disclosed no cause of action;

(2) Alimony could not be legally granted out of defendant’s separate property on a substituted service;

(3) That attorney’s fees were not elements of alimony;

(4) That defendant’s property could not be seized legally in such proceedings.

On June 16th, the exceptions were overruled by Judge George H. Theard of Division “E,” Civil District Court, and judgment was given, condemning defendant to pay alimony at the rate of fifty dollars per month to support his wife and minor child.

Under this judgment seizures were regularly issued every month for fifty dollars up to January 2, 1913, when the fund was exhausted. Each notice of seizure was served on Clerk of Court and is found in succession record.

Defendant also offered in evidence the rule of Newell Tilton, et al. contained in. the succession proceedings. The record shows that Ernest J. Cassard, through a curator ad hoc was ordered to show cause why the Clerk of Court should not be ordered to pay out of the above described deposit in his hands belonging to defendant in rule the sum of twelve hundred thirty-nine dollars, which amount had been seized in the hands of the Clerk as balance due under a judgment in the case of Goldsmith, tutrix, vs. Ernest Cassard, No. 67, 477, Division “C,” Civil District Court.

The rule was tried and made absolute on July 12, 1911, by Judge E. K. Skinner of Division “C.” After this Tilton judgment was paid the balance was seized under the alimony judgment.

The defense also offered in evidence record No. 154,706 of the Civil District Court, in the suit of Mrs. Jeanne Varney Carbonell, et al. vs. Ernest J. Cassard, alleging that they were the owners in indivisión with the said Ernest J. Cassard, of the property previously referred to as the Louisiana Club property, and praying for a partition thereof. This suit was filed October 14, 1924, and among the petitioners was the present plaintiff, Mrs. Cecile Cassard, wife of John A. Maught.

Judgment was rendered in this partition suit on April 28, 1924, the Louisiana Club property was ordered sold and proceeds referred to a notary for distribution. On April 13, 1925, the net portion belonging to defendant herein, fifteen thousand, three hundred seventy-five and 39-100 dollars, was deposited in a bank here and pass book was deposited in vaults of Civil District Court.

This record includes documents showing the sale by Etienne A. Cassard, one of the heirs recognized as part owner, of the Louisiana Club property by the judgment of 1911, of his share therein to David Pokorny, September 1, 1914.

The prescription pleaded is that set out in Art. 3540 of the Revised Civil Code, which reads as follows:

“Action * * * on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning from day when engagements were made payable.”

Plaintiff argues ably that this prescription does not apply because the maxim “contra non valentem agere, praescriptio non currit” is still recognized in this State. Defendant never had any legally seizable property in this State until the judgment in the partition suit was rendered.

It is admitted by all parties that the legacy of the real estate to the nephews and nieces under the will of A. J. Cassard was a conjoint legacy and would have passed to the co-legatees, if, as a matter of fact, defendant died before his uncle.

In his brief, plaintiff sets forth his position on this point, as follows:

“The judgment of putting in possession was in the usual ex parte form. An attorney for absent heirs was a party to it. But there is no law which permits an attorney for absent heirs to accept for an absentee. A succession or a legacy can be accepted only by an heir or legatee who is present, R. C. C. 976, 977, 988, 993, or represented by an agent or attorney in fact with special and express power, R. C. C. 2994, 2995, 2996. In any event acceptance can only spring from the expressed. declaration, or the tacit acceptance resulting from conduct, of an heir present or represented.”

But, in the nature of things, if a succession is vacant, or if an heir is unknown, an inheritance or a legacy cannot be accepted formally or tacitly, because of the lack of that expression of intention which is, in every case, the basis of the acceptance of succession, R. C. C. Art. 990, and of legacies, R. C. C., Art. 976.

On the contrary, the law is that, if a succession devolves on a person whose existence is at that time unknown, the succession does not go to the legatee, or heir, but devolves, ex necessitate, on his co-legatees or on those who would take if the legatee had never existed.

R. C. C. Article 77:

“In case a succession shall be opened in favor of a person whose existence is not known, such inheritance shall devolve exclusively on those who would have had a concurrent right with him to the estate, or on those on whom the inheritance should have devolved if such person had not existed.”

Surely, the Codal Articles apply, without any doubt, to the legacy thus left to Ernest Cassard, absentee, whose existence is unknown.

If Cassard was dead, then the legacy lapsed, and this removed him and his heirs from all connection with it. If, although he was alive, yet his whereabouts and his very existence were unknown, no one could accept the inheritance, for him, and the law has wisely provided that, under such circumstances, the inheritance or legacy shall not devolve on the absentee, but shall to those who would take with him, or to those would take if he had never lived.

In the present case, therefore, this conjoint legacy made to Cassard and the other nephews and nieces could not go to Cassard, even if we presume that he was alive when his uncle died. It devolved on his co-legatees, and certainly his creditors could not validly press their claims against any property to which he, or his estate, did not have legal title. As already stated, if he was dead when this succession was opened, then manifestly the legacy never belonged to him, having lapsed by his death before the testator.

Clearly, therefore, in either contingency, the plaintiff in the present suit could not proceed against either the cash portion or the legacy or the interest in the real estate as belonging to the absentee, for the very good reason that the legacy did not belong to the absentee, or, at least, that no proper showing could be made to show definitely that the legacy had vested absolutely, by legal title, in the designated beneficiary, the absentee.

Reduced to their essentials, we have in the present case the acceptance by an attorney for absent heirs of a legacy made to an absentee whose existence is unknown, and we have a solemn judgment of court sending the legatee into possession as owner. The attorney for absent heirs could not represent a dead man. The dead man could not accept the legacy. The legacy has lapsed, if the legatee was pre-deceased. If we suppose that the legatee was really alive, yet it is a fact that there was no proof of his existence, which brings the case squarely within the terms of Article 77 R. C. C., allocating the legacy under such circumstances to his co-legatees or to those who would take in his default.

Evidently, the consent judgment, which ruthlessly (if kindly and benevolently) operated to place this legacy in the name of this abséntee so as to hold it for his possible eventual re-appearance, accomplished the very thing which the law prohibited.

It is familiar law, that a creditor must warrant the title to the property which he seizes as belonging to the debtor, and, surely, where the alleged title of the debt- or is based on a null judgment entered by consent in contravention of a prohibitory law, it cannot be said that the creditor should be charged with laches for failing to make himself a party to such void proceedings, or for refusing to act under them.

C. P., 711:

“However, if the purchaser has been evicted from the thing adjudged to him, on the ground that it belongs to another person than the party in whose hands it was taken, he shall, in that case, have his recourse for reimbursement against the seized debtor and the seizing creditor; * * * .”

We do not find it necessary to decide the disputed question as to whether the doctrine “contra non valentem, etc.” is still recognized in this State, for in our view, even if it is recognized in this State it ceased to have application in this suit when the judgment sending the widow and legatees into possession on their joint petition was signed on April 24, 1911. Had seizure then been made of the interest in the real estate belonging to defendant, the only possible persons who could have objected were the co-legatees to whom defendant’s portion of the conjoint legacy would have passed and they were forever silenced, because they were estopped from raising any such point.

It is thus seen that defendant’s right to the money legacy of twenty-five hundred dollars had been twice judicially recognized.

As plaintiff knew of her brother’s legacy and as she had taken part in securing for him his interest in the real estate, she could have filed her suit in 1910 or 1911.

See C. C. Art. 2291.

In Walker vs. Walker, 37 La. Ann. 107, the Supreme Court said:

“A party to a suit is not permitted to judicially allege a state of facts so contrary to and inconsistent with those set up in a former suit between the same parties, that if the allegations in the one suit be true those in the other must necessarily be false.”

■ See also Gridley vs. Conner, 4 La. Ann. 416; Denton vs. Erwin, 5 La. Ann. 18; Devall vs. Watterston, 18 La. Ann. 136; Binder vs. Belknap, 23 La. Ann. 764; Webster vs. Smith, 6 La. Ann. 719; McQueen vs. Sandel, 15 La. Ann. 140; Lacey vs. Waples, 28 La. Ann. 158; Compton vs. Sandford, 30 La. Ann. 838; Suc. of Fluker, 32 La. Ann. 292; and Gaudet vs. Gauthreaux, 40 La. Ann. 189, 3 So. 647, where the Supreme Court said:

“It is a well settled rule in the.administration of justice that a party will not be permitted to deny what he has solemnly acknowledged in a judicial "proceeding. The only means of courts to protect the integrity of judicial proceedings are the sanctity which the law throws around them.”

Lowenstein vs. Glass, 48 La. Ann. 1422, 20 So. 890; In re Immanual Church, 113 La. 911, 37 So. 873; Yrle vs. Hezean, 9 Orleans App. 33; Savings Homestead Assn. vs. Chase, Tessier Digest, Orleans App. 129; Gaude vs. Gauthreaux, 40 La. Ann. 186, 3 So. 645; Mulling vs. Jones, Tessier Orl. App. Dig. 129; Mohawk Oil Co. vs. Layne, 147 La. 895, 86 So. 322; Caldwell vs. Nelson Morris & Co., 120 La. 881, 45 So. 927, 15 L. R. A. (N. S.) 423, 124 Am. St. Rep. 446, 14 Ann. Cas. 1043; Farley vs. Frost Johnson Lbr. Co., 133 La. 497, 63 So. 122, L. R. A. 1915A, 200, Ann. Cas. 1915C, 717; Maddox vs. Robert, 158 La. 394, 104 So. 183.

It is now too late for plaintiff to declare that defendant had no property in Louisiana after she had judicially averred to the contrary and others have acted on this averment.

For above reasons the judgment is affirmed.


text:
    No. 11,399
    Orleans
    POLITE v. NATIONAL ACCIDENT & LIFE INS. CO. OF TENN.
    (June 18, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      James J. Landry, of New Orleans, attorney for plaintiff, appellee.
    S. Goldman, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff, beneficiary in a policy of life insurance, sues defendant for the proceeds thereof amounting to the sum of two hundred forty dollars, suit followed.

Defendant answered admitting the issuance of policy sued upon, amicable demand and death of insured, but alleging that they were not liable thereunder because:

“No valid contract of insurance ever existed under the terms of the policy issued to said Adeline Polite (deceased), the assured under the policy was not in sound health,’ but on the contrary was then seriously ill and her health severely impaired and she was then suffering from the disease which caused her death.”

There was judgment for plaintiff and defendant has appealed.

On the trial of the case, defendant sought to introduce evidence to show that plaintiff was not in sound health, when policy was issued. Plaintiff objected on the ground that defendant had waived such defense by issuing the policy without medical examination -and was, therefore, legally estopped to raise that issue. Objection was maintained. *

The ruling of the trial Judge was correct.

See Silver vs. National Life and Accident Insurance Company, 6 La. App. 95, where the identical question was decided.

See also Mrs. James vs. Community Burial Service, No. 10,752, Court of Appeal (Orleans).

The judgment is, therefore, affirmed.


text:
    No. 10,335
    Orleans
    E. R. GODFREY & SONS CO. v. ODENWALD & SON, ET AL.
    (July 2, 1928. Opinion and Decree.)
    (August 13, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    Warren O. Coleman, of New Orleans, attorney for plaintiff, ■ appellee.
    Edgar M. Cahn, of New Orleans, attorney for defendant, appellant.
   OPINION

JONES, J.

This is an appeal from a judgment in favor of plaintiff after a hearing of plaintiff’s case only. Upon being served with the original and supplemental petitions of plaintiff, the defendants excepted to the various petitions, and later filed answer. Though the case was fixed for trial in the usual way, through an oversight on the ¡part of defendant’s counsel, he did not observe the date and was not advised of the judgment until after the judgment was signed.

In original petition plaintiff alleges as follows:

On May 29, 1920, it purchased from Richeimer Brokerage Company, broker for B. & G. Agency of New Orleans, which said agency was selling for defendant a consignment of Creoleans, or pralines, as shown by the original sales ticket annexed to it; said ticket provided that defendant should replace any unsalable merchandise with fresh stock;''shipment was made and petitioner, in accordance with said agreement, paid defendant eleven hundred thirty-nine and 2'5-100 dollars; at the time of purchase plaintiffs were told by Richeimer Brokerage Company that they would be the exclusive wholesale grocery distributors of Creoleans in Milwaukee, were also promised certain advertising and specialty men to work the territory, but these promises were broken and Creoleans were sold to other distributors in Milwaukee; at various times' (plaintiff advised defendants of the failure of their agents to carry out agreement, but complaints were ignored, and as a result of defendants’ breach of contract, plaintiffs have on hand a certain quantity of spoiled Creoleans and are entitled under the terms of their agreement to a partial refund of the price paid for said merchandise, amounting to one thousand, five hundred, five and 14-100 dollars.

Defendants filed exceptions of inconsistency, vagueness and no cause of action, which were apparently referred to the merits.

Two years later, on November 12, 1923, plaintiff filed a supplemental petition, in which it is alleged in detail that the Chicago brokers were agents of the B. & G. Selling Company and that the last mentioned was throughout the agents of defendant.

Defendants excepted to this petition upon the same grounds as before and further urged that it changed the cause of action.

Defendants then answered denying that any of the alleged representations were made by them or by anyone with the authority to do so on their behalf, and further denying that defendants had any dealings whatsoever with plaintiff directly or indirectly in connection with the said sales; denied that anyone had the right to make the representations as set up in plaintiff’s petitions.

Defendants further showed that sales ticket referred to in plaintiff’s petition as “Exhibit A” stipulated and provided that “all disputes arising out of this contract shall be arbitrated in the usual manner,” and that as plaintiff had not sought such arbitration, it was without right to sue.

The only witness was George Tozer, buyer for plaintiff, whose testimony was taken under deposition in Milwaukee. Defendant, though duly served with the direct interrogatories did not cross them.

Tozer testifies in part as follows:

No signed order was given by plaintiff to the representative of the Richeimer Brokerage Company, but plaintiff later received from Chicago brokers an acknowledgment of his order, dated May 29, 1920, attached to the deposition.

Malnick, representing the Richeimer Brokerage Company, called on him and solicited an order for Creoleans, declaring that plaintiff would be the only wholesale grocer in Milwaukee to whom these products would be shipped; defendant would advertise in the newspaper and the factory would send representatives to the Milwaukee territory to assist plaintiff in selling the goods to the retailers.

Such advertising was not done, no salesmen were sent and several other' firms in Milwaukee had this line of goods.

Defendant was notified on June 20th of this failure and on June 30th B. & G. Agency acknowledged this letter and asked details as to condition of merchandise. On July 1, 1920, plaintiff wrote B. & G. Agency, complaining of failure to advertise in Milwaukee papers and failure to send special salesman. In this letter plaintiff says that the candy was in good condition, but was unsalable, as others were selling it there and it was entirely unknown.

On August 19th, plaintiff again wrote defendants detailing specific breaches of the agreement and urging immediate remedial . attention. On September 2nd, plaintiff wrote B. & G. Agency at their head office in New Orleans stating that nothing had 'been done to repair the damage, though Sidney Block, one of the defendant’s representatives, had called and personally promised remedial measures. On September 14th, plaintiff again complained by letter direct to defendants of their gross misrepresentations and demanded attention. As no reply was received, a similar letter was sent on October 19th, but it was met with a like fate. On November 10th, plaintiffs wrote that they had on hand 341 half cases and 20 full cases of spoiled Creoleans and asked instructions as to disposition. On November 17th, defendants’ attorney wrote plaintiffs denying liability. On June 9th, about ten days after sale (which was made on May 29th) Richeimer Brokerage Co. had written plaintiffs that advertising had been placed with a firm to start in Milwaukee papers “as soon as the two leading papers inform them of the proper distribution made by jobbing houses now handling Creoleans in your city.” In this letter they asked for price of advertising in a pamphlet gotten out by plaintiffs for their customers called “The Drummer,” that they might submit matter to manufacturers in New Orleans. They also promise specialty men at once. Either the copies or originals of all these letters are in the record.

First payment of one thousand, one hundred, thirty-nine and 25-100 dollars was made on June 14, 1920, shipment having been completed on June 8th and payment of balance due was made on June 24, 1924, Between these two payments, namely on June 9th, defendant, through its broker, Richeimer, had written plaintiff fully ratifying all representations now allowed by plaintiffs. Again on June 15, 1920, plaintiffs had written defendants, setting forth representations as to advertising and specialty salesmen.

If defendant considered these representations invalid, as it now .claims, it should have repudiated them and called off the deal at once instead of accepting second payment in silent and apparent acquiescence.

Defendant makes two contentions here.

(1) That trial Judge erred in permitting evidence as to oral representations although it was not objected to on the trial, because such evidence varied the written contract sued upon, namely sales ticket.

(2) Evidence does not sustain plaintiff’s allegation as to spoilage.

Neither of these contentions is sustained. The sales ticket referred to in the petition and attached thereto was never signed by either party and was evidently intended merely as a memorandum of the transaction made by defendant’s broker, which was later amplified by letter as shown above.

On this point the Supreme Court in Flash Preston Co. vs. American Glucose Co., 38 La. Ann. 7, uses the following language:

“It is clear to our mfnds that this document amounted to nothing more than a memorandum, intended to facilitate the memory of the contracting parties, but that it by no means evidences the slightest intention of the parties to enter into a written contract. It was not signed by the plaintiff, and unless supported by parol testimony it surely could not have been judicially enforced against them as a contract.
‘ “Hence the district Judge did not err' in admitting parol testimony of the agreement.”

The case of Advance Thresher Co. vs. Rogers, 123 La. 1067, is not applicable. There the contract of purchase was signed by both the buyer and seller and the representations entirely contrary to the stipulations of their signed document were made on a separate sheet of paper, which was never brought to notice of plaintiff and were therefore of no legal effect. On the question as to admissibility of evidence, when basis therefor is alleged and no objection is made, see Yorke & Co. vs. Scott & Co., 23 La. Ann. 54; Brander vs. Goodin, 6 La. Ann. 521; Taylor vs. Harccoch, 14 La. Ann. 693.

Plaintiff supports his second contention by statement in letter of July 1st, reading, “We have no goods in bad condition in our stock,” and also by Tozer’s answer to interrogatory 17, made on December 1, 1924, more than four years after transaction reading: “Creoleans have been in public storage in Milwaukee since 1920 and now, I presume, they are in unsalable condition.” These supports are insufficient.

Bad condition could hardly be expected three weeks after shipment. Further, on November 10, 1920, plaintiffs had written specifically of spoilage and asked instructions, but letter was ignored. Further, the evidence shows that every effort was made to sell this candy without success.

Plaintiffs were not obligated to arbitrate matter. See Saint vs. Martel, 127 La. 71, 53 So. 432.

Sales ticket provides “manufacturer agrees to replace any merchandise becoming stale and unsalablé with fresh stock.” This shows that defendants contemplated that the goods were perishable and probably would not stand long storage.

For above reasons the judgment is affirmed.


text:
    No. 10,852
    Orleans
    ROPER v. R. P. FARNSWORTH & CO. ET AL.
    (July 18, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    D. V. Doussan, of New Orleans, attorney for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   JONES, J.

For an injury to his right wrist, caused by accidentally falling from a low scaffold on July 24, 1925, while employed as a carpenter at wages of seven and 20-100 dollars per day, plaintiff sued defendant for 400 weeks workmen’s compensation, at twenty-five and 74-100 dollars per week, less compensation already paid.

Defendants denied that plaintiff’s disability extended beyond fifteen weeks following the accident, for which period defendants had paid him compensation.

On the issue thus joined, the trial Judge awarded plaintiff compensation of nine and 20-100 dollars per week for a period not exceeding 285 weeks.

At the time of the accident plaintiff was earning thirty-nine and 60-100 dollars per week. His injury consisted of a Colles fracture near the lower end of the right radius and a small chip fracture at the lower end of the right ulna. His wrist was immobolized in the usual surgical splints for eleven weeks, during which period defendants paid him compensation at the maximum rate of twenty dollars per week, two hundred twenty dollars, and, as he then resumed work as a watchman at wages of seventeen and 80-100 dollars per week, defendants paid him compensation of fourteen and 36-100 dollars per week for' the succeeding four weeks, fifty-seven and 44-100 dollars, a total of two hundred seventy-seven and 44-100 dollars; and also paid his medical expenses of two hundred fifty dollars.

Thereupon plaintiff resumed work with defendants as a carpenter’s helper for four days at fifty-five cents per hour, whereupon he and others were laid off.

For several months thereafter, plaintiff unsuccessfully sought employment as a carpenter. He then secured employment as a boiler-maker’s helper at Jahncke Dry Docks, where he worked steadily for three months, at wages of twenty-four dollars per week.

Following thereupon, he did work as a carpenter’s helper, first for American Sheet Metal Works, and second for Brown, a contractor, for fifty cents per hour. Since then he had not attempted to get any more carpentry work, as he was unable to keep up with other carpenters.

At the time of the trial, and for seven or eight months prior thereto, plaintiff had been employed by American Sugar Refinery at “straight time” wages of twenty-five and 44-100 dollars per week.

The Court selected Dr. M. J. Magruder as an expert to fix the extent of plaintiff’s injuries. His report reads as follows:

“July 29th, 1926.
“Hon. M. M. Boatner,
“Judge, Civil Dist. , Court.
“My Dear Sir:
“Examination of Mr. Nelton Roper reveals evidence of an old Colles fracture of right arm, resulting in considerable deformity and impairment of function. Rotation of fore arm is considerably diminished, the wrist is freely flexible, but some stiffness of finger joints, probably resulting from prolonged lack of use.
“X-Ray plate No. 25976 made by Dr. Adolph Henriques April 29th, 1926, shows healed fracture of lower extremity of Radius (Colles fracture) involving wrist joint. Also fracture of styloid process of Ulna; just a small piece of bone chipped off.
“While Mr. Roper has today a fairly useful arm, one that would not be much of a handicap to him in certain occupations or trades, I am of the opinion that he will, as a result of the conditions as above described, never be able to successfully follow his former occupation— that of carpenter.
“As well as I am able to estimate by figures the degree of disability, I would say that there has been an impairment of approximately twenty-five per cent in the usefulness of his arm as a result of the injury.
“Respectfully,
(Signed) “M. J. Magruder, M. D.”

Though defendants’ able attorney sought by a vigorous cross-examination to make Dr. Magruder modify the above conclusion, he did not succeed.

Counsel then read to the doctor the various occupations of plaintiff from the accident up to the trial and asked if he still thought that Roper could not handle small tools, such as a hatchet and a hammer with sufficient skill to keep up with the ordinary run of carpenters.

The doctor replied, “Well, if you will permit me just to explain my interpretation of what I did mean, I do not believe that Mr. Roper, with the present condition of his arm, can go out and do a full day’s carpenter work, such as he did before the injury, and it is doubtful whether a builder would want a carpenter of that kind working for him.' I do not know what arrangement they may make, or whether he would be able to continue his employment as a carpenter, working for builders, but a man of his age would find it very difficult to take up a new occupation that would be nearly so remunerative as that of carpenter.”

Plaintiff testifies that he could not follow the other carpenter during the four days he was employed as a carpenter’s helper by defendants; that he did not know why he was dropped, that he tried in vain to get work as a carpenter without mentioning his hand, that he got only fifty cents per hour as a boiler maker’s helper at Jahncke’s; that in handling rivets he would hold tongs in his right hand and grab the red hot bolt, but would change to his left hand to fiing it every time; that he didn’t and couldn’t use a hand saw or hammer while working as a carpenter's helper for American Sheet Metal Works and Brown, that at time of trial he was covering pipes at American Sugar Refinery with asbestos and canvas, which required the use of both hands, as he sewed covering with a needle, and stood on a ladder, and sometimes used a small saw to sever the asbestos and cut it to right length; that he couldn’t possibly use a hammer or a saw without bruising the wood on account of the stiffness of his hand and the weakness of his wrist; that he gave up carpenter work after he left Brown because he was unable to stand it, and that he did not know whether carpenter work was scarce or not; that before the accident he had worked thirteen months for the Southern Pacific as a carpenter doing car repairing and fourteen years at the Colonial Sugar Refinery Company in St. James Parish under Erwin, five as a carpenter and nine as a boiler tender.

Brown says Roper had been a good house carpenter, but he was obliged to lay him off because he “couldn’t do no nailing and no sawing” and he couldn’t pay him only to carry lumber.

Erwin says that plaintiff worked for him five years as a carpenter at three dollars per day and then in 1915 became a boiler tender at three and 50-100 dollars .per day, that he was a good carpenter.

Farnsworth, one of the defendants, says plaintiff’s work as a carpenter’s helper in making concrete forms for four days was satisfactory, that he was using a hammer but not a saw and he was able to do the work for which he was- then employed and was laid off when work was finished.

Hewitt, former machinist foreman, testifies that boiler makers’ helpers had to be very alert and active, that he never saw one change hands in throwing hot bolts, as plaintiff says he did and that it would be necessary to use a small saw to cut the asbestos to cover pipes.

Defendants’ able attorney argues from above evidence that Roper is just as capable now as he ever was of doing a carpenter’s work; that he was doing pipe covering for smaller wages because the work ^ras steady and he was certain of continuous employment, whereas carpenters rarely had more than three or four days’ work .per week.

Although there is testimony tending to support this contention, we agree with the trial Judge in thinking that the weight of the evidence is in favor of plaintiff.

In fixing plaintiff’s earning capacity at the time of the accident, the trial Judge applied correctly the controlling law, paragraph 3 of Section 8 of Act 216 of 1924. His reasons for judgment are as follows:

“The plaintiff is found to be permanently, partially disabled, and entitled to compensation under sub-paragraph (c) of paragraph 1 of section 8 of the Workmen’s Compensation Act, as amended by Act 216 of 1924, page 446. At the time of the accident his earnings were at the rate of $39.60 a week; a year afterwards and now his earnings are at the rate of $25.44 a week. Considering that the record shows the plaintiff to be a diligent, industrious man, for this case actual earnings are as good a test as any of ability to earn wages. Impairment is thus fixed at $14.16 a week and compensation at $9.20. For the first 15 weeks following the accident compensation has been paid; the period of the compensation now allowed is fixed at 285 weeks succeeding, with legal interest on accrued installments from the due dates of each.”

In these reasons we fully concur.

The judgment is, therefore, affirmed.