text:
    No. 2973
    Second Circuit
    SECURITY TRUST CO. v. ROCKETT
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription—Par. 4, 5.
    As soon as real estate is severed from the public, domain and enters that of private ownership it becomes subject to prescription aeguirencli -causa.

    2. Louisiana Digest — Prescription—Par. 20 35, 37.
    Where one has in good faith and under title translative of property taken possession of land before it was severed from the public domain and remained in actual possession thereof as owner for ten years after it has been severed from the public domain his title to such land becomes good by prescription.
    Civil Code, Art. 3478.
    Handlin vs. Lumber Co., 47 La. Ann. 401, 16 South. 955.
    Haggerty vs. Annison, 133 La. 338, 62 South. 946.
    3. Louisiana Digest — Prescription—Par. 33.
    It is not necessary that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land; provided it be . with the intention of possession all that is included in the boundaries. Civil Code, Art. 3437.
    4. Louisiana Digest — Public Lands — Par. 60.
    A state patent issued in contravention of Act No. 21 of 1886, prohibiting the purchase or entry of. land occupied, possessed or cultivated by another, is absolutely null.
    Albritton vs. Shaw, 148 La. 427, 87 South. 32.
    Albritton vs. Stecro, 153 La. 561, 96 South. 121.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. 5. D. Pearce, Judge.
    Action by Security Trust Company against J. C. Rockett.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. C. Fields, of Farmerville, attorney for plaintiff, appellant.
    H. E. Dawkins, of Farmerville, attorney for defendant, appellee. '
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff acquired the land from Summit Lumber Company in 1915, which acquired it from Union Saw Mill Company in 1909, which acquired it from Tandy T. Webb in 1906, who acquired it from the State of Louisiana by patent-May 21, 1906.

The land was selected by and approved to the state under the swamp land grant (Acts of March 2, 1849, and of September 28, 1850), May 6, 1852.

Defendant purchased the land from G. A. Killgore, Sr., in 1883, who purchased it from P. S. Rabun in 1878, who purchased it from James C. Parish in 1875, who purchased it from David M. Jameson in 1862, who purchased it from George Feazeal in 1857.

George Feazeal entered the land from the United States by cash entry 11385 March 22, 1851.

The sale from G. A. Killgore,- Sr., to defendant is translative of title and defendant claims to have purchased in good faith and immediately to have gone into actual possession of the land and to have maintained such possession continuously ever since; and, besides the acts of sale mentioned, he pleads the prescriptions of ten and thirty years.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and it has appealed.

OPINION

Plaintiff contends:

1. That the “swamp grant” was one in vraes&nti and that on the selection by and ■ approval to the state of the land May 6, 1852, its title related back to the date of the grant, March 2, 1849, and antedated the sale by the United States to defendant’s author, George Feazel, March 22, 1851.
2. That prescription could not run against the state and has not run since the state parted with its title.

I.

Whether the State of Louisiana or George Feazel got the better title from the United States we deem it unnecessary to decide, for the reason that defendant’s title to the land is good by prescription if not by deed, and for the further reason that before plaintiff can question defendant’s title or possession he must show a better right, which he has not done.

II.

Plaintiff’s counsel, in brief, says:

“There is no testimony to show that defendant was in actual and continuous possession for ten years since 1906, and the only testimony referring to a part of said land is from the plaintiff, who produced no corroborative testimony.”

Counsel is in error.

Defendant, J. C. Rockett, testified:

(Testimony, page 1.)

“Q. Are you familiar with the land involved in this suit?
“A. . Yes, sir.
“Q. About how many years, if at all,
have you lived on that land?
“A. I think this is the forty-eighth year.
“Q. During the time that you lived there, what use, if any, have you made of this land?
“A. I farmed it every year, I think; I don’t think I have missed a year.
“Q. Is all of this land in cultivation or open?
“A. Not quite all; very nearly all.
“Q. During the time that you have lived on it and had it in cultivation, has anyone molested you in your possession?
“A. No.
(Testmony, page 2.)
“Q. Is this entire eighty under fence?
“A. No, sir; there is a little that is not.
“Q. Is it not a fact that there is about thirty acres in the north forty that is the part you farm and have under fence?
“A. Rather in the middle of it. A little on the south and a little in the north is not in cultivation.

(Testimony, page 3.)

“Q. How many acres on the north end of this eighty is not under fence?
“A. I do not suppose over three or four acres.
“Q. How many acres on the south end?
“A. Possibly the same number of acres.
“Q. Plow many acres is under cultivation?
“A. We work it nearly all, except some few places.
“Q. How many years have you had the land not in cultivation under fence?
“A. For the whole forty-seven years.

(Testimony, page 2.)

“Q. I notice from your deeds that you secured this land from G. A. Killgore in 1883; how soon after that did you go on the land and take possession?
“A. I was in possession some time before that; I borrowed money from him to pay for it and didn’t get the deed until I paid for it.
“Q. Since just before that time you have been in possession?
“A. Yes, sir. I made my first crop in 1876.”
G. A. Kilgore testified, page 8:
“Q. Do you know J. C. Rockett
“A. Yes, sir.
“Q. How long have you known him?
“A. All my life.
“Q. Do you know where he lives now?
“A. Yes, sir.
“Q. Are you familiar with his farms and fields there about his place?
“A. Pretty familiar with it.
“Q. Do you know about how long he has lived at the place that he now lives?
“A. For forty-nine years, I know.
“Q. During the time he has lived there, do you know what business he has been engaged in?
“A. Farming.
“Q. Are you acquainted with this field and line just south of his house?
“A. Yes, sir.
“Q. That field south of his house, how long, if you know, has that been in cultivation?
“A. He has never let the field rest but very little; practically all the time.”

J. C. Rockett, recalled, testified, page 9:

“Q. This land in controversy is the east half of northeast quarter of Section 33, Township 22 North, Range 2 West;' what direction does that lie from your house?
“A. Nearly due south.
“Q. Have you more than one open field south of your house, or is it all one field?
“A. I have two fields; they are separate. South of my house.
“Q. Which field is this land in controversy in this suit?
“A. One near the house.
“Q. Is that the field that lies immediately south, of your residence there?
“A. Yes, sir.
“Q. When did you move on that land?
“A. The 27th day of December, 1875.
“Q. Have you ever moved away since you went there?
“A. No, sir.
“Q. Was or was not this land in controversy in this suit open and in cultivation when you went there?
“A. Yes, sir.
“Q. What use have you made of it?
“A. Part of it I have worked for thirty years. Of course, there is a corner of it in the swamp, and the bayou runs across a corner, and some is worn out, but I am still working some and made a bale of cotton per acre on some of it this year.
“Q. Is the field you spoke of in one or both forties?
“A. Both.”

O. A. Peppers, called by plaintiff, testified:

(Testimony, page 3.)

“Q. Are you familiar with the land described as the northeast quarter of northeast quarter of Section 33 and the southeast quarter of northeast quarter of Section 33, Township 22 North, Range 2 West, or what might be called the east half of northeast quarter of Section 33, Township 22 North, Range 2 West?
“A. I went over that land four or five years ago for the Security Trust Company.
“Q. Taking the tract by forties, and asking about the northeast quarter of northeast quarter, as the first forty, I will ask you what you found as to the character of this particular forty?
“A. It has been four or five years since I was over that land, but as well as I remember the northeast quarter of northeast quarter had a part of a field on it on the east side.
“Q. You say on the north forty there is land that was in cultivation?
“A. As well as I remember.
“Q. On the east side of the forty?
“A. Yes, sir.
“Q. How far down towards the south forty did this extend?
“A. Might have run on down in it.
“Q. Did you walk 'the west side of that eighty to see?
“A. I did not run that line.
“Q. You would not testify that none of that south forty had ever been in cultivation, would you?
“A. No, I would not. As well as I remember, most of it was in the bottom.
“Q. Whose field was that on the east side of it?
“A. Mr. Rockett’s.
“Q. Could you tell from the condition of the land whether it had been cleared recently or at a remote period?
“A. A long time.
“Q. How long have you known Mr. Rockett?
“A. Eight or ten years.
“Q. Had he been living at the same place during the time of your acquaintance?
"A. Yes, sir.”

This suit was commenced on August •24, 1921.

More than ten years prior thereto defendant had purchased the property in controversy in good faith by title translative of property, had at once taken possession and continuously remained in possession thereafter. His title is good by prescription.

Plaintiff contends, however, that prescription could not run in defendant’s favor for the reason that until the issuance of patent to him by the state, 'March 21, 1906, the title was in the state and prescription does not run against the state.

The answer to that is that at the time of the issuance of the patent defendant was in actual possession of the land under title translative of property as owner and continued in such possession for more than ten years thereafter; so that the prescriptive period ran in his favor after the state parted with its title.

But even were it otherwise, plaintiff’s position would not be bettered for the reason that the patent under which he claims was issued in violation of a prohibitory law and therefore void.

Act No. 21 of 1886 forbids the entry or purchase of lands possessed, improved or cultivated by an adverse claimant.

The patent to plaintiff issued on May 21, 1906.

At that time the land was “possessed, improved” and “cultivated” by defendant and could not legally be entered or purchased from the state by plaintiff’s author.

It was so expressly held in Albritton vs. Shaw, 148 La. 227, 87 South. 32, and Albritton vs. Steere, 153 La. 561, 96 South. 121.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: ELLIOTT, J. LECHE, J.,

license: Public Domain

text:
    No. 3258
    First Circuit
    COUSINS v. CUSACHS
    (March 8, 1927. Opinion and Decree.)
    (May 3, 1927. Rehearing Refused.)

      (Syllabus by The Editor.)

    1. Louisiana Digest — Evidence—Par. 127, 128, 129.
    In view of Article 2291 of the Civil Code admission of fact in the sworn petition and answer of prior suit which left the parties in the same condition in which they were before it was filed, are not like legal conclusions unsuccessfully urge.d, hut admitted facts, the effect of which was not done away with by the result of the former suit.
    2. — Louisiana Digest — Evidence—Par. 333.
    A denial of the signature of their deceased mother based on lack of knowledge of the facts is not equivalent to the express disavowal or allegation that they did not know her hand writing required by Code of Practice, Article 324 and Civil Code, Article 2244.
    3. Louisiana Digest — Public Records — Par. 7. Sales — Par. 205.
    Receipts are acts under private signature and the registry of acts under private signature, indicating contracts in regard to land, that have been made in the conveyance books, can be offered and receipted in evidence against the party said to have executed same, or their heirs claiming under them without proof of signature.
    4. Louisiana Digest — Evidence—Par. 128, 129.
    Where the signature of the defendant’s mother to receipts was admitted in a former suit by the defendants it will be considered an admitted fact.
    5. Louisiana Digest — Estoppel—Par. 33, 46.
    Where, after a former suit is finally determined, several years elapse before another suit is filed during which time the parties were engaged in negotiations looking to amicable agreement, the plaintiff does not lose her rights by her delay.
    6. Louisiana Digest — Timber—Par. 15.
    An heir of a deceased mother who had agreed to sell land and accepted part payment has not the right to cut timber therefrom and will be held responsible in damages for the value of the timber cut.
    7. Louisiana Digest — Judgment—Par. 10, 11.
    Where there is no demand in the petition for the return of the taxes paid on property sold, the only proof admitted being that taxes were paid, is not sufficient evidence to give judgment for the return of taxes paid".
    Appeal from the District Court, Parish of St. Tammany. Hon. Prentice B. Carter, Judge.
    Action by Rosamie Cousin against Lucia Cusachs et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Harvey E. Ellis, of Covington, attorney for plaintiff, appellee.
    Lewis L. Morgan and J. Monroe Simmons, of Covington, attorneys for defendants, appellants.
   ELLIOTT, J.

On October 9, 1915, Mrs. ■ Rosamie Cousin, widow of Lawrence Cousin, instituted suit against Mrs. Lucia Cusachs, wife of J. O. Schmidt; Anna, wife of S. G. Theisin; Walter, Camille, Stella, Maurice, Harry, James and Charles Cusachs. She alleged as her cause of action against them that they were the sole and forced heirs of their mqtlier, Camille Cousin, deceased wife of J. J. Cusachs. That their mother had agreed to sell and the petitioner to buy “A certain tract of land being a portion of Lot 1 of Section 43, T. 8, S. R. 13 E, designated a lot No. 9 on a plat and subdivision made by Joseph Pugh in November, 1908; filed February 19, 1913, in the office of the Clerk of Court of the Parish of St. Tammany, said property being known as part of Mrs. Anatole Cousin’s land.” That on June 6, 1907,. she had paid to their mother $100.00 and on September 9, 1907, $200.00 on account of the purchase price, making $300.00. That their mother had departed this life neglecting to make her a title and was unable to give her a title to said land; that defendants had accepted their mother’s estate and were bound by her obligations. Defendants were given credit in the petition for $18.00 on account of trees which the plaintiff had cut from the land. The object of the suit was to recover the sum paid to their mother as above said. The suit bears the number 2443 on the docket of the late 26th Judicial District Court for the Parish of St. Tammany. Lucia, Anna, Walter and Camille were of age and were sued and defended themselves accordingly, but Stella, Maurice, Harry, James and Charles were at that time minors. Gaspar Cusachs, their tutor was therefore cited and defended them in thecase. The major heirs and the tutor appeared through the same attorney and excepted to plaintiff’s petition on the ground that it disclosed no right' or cause of action against them, which-was overruled by the court. On April 24, 1916, the major heirs and the tutor all appeared by the same attorney and answering plaintiff’s demand, under reserve of their exceptions, denied being indebted unto the plaintiff as alleged. They admitted that their mother had by an agreement entered into with the ¡plaintiff, on or about June 29, 1907, agreed to sell and the plaintiff to. buy, the property described in the petition; that the price of the sale was $700.00 and. on which account the plaintiff had paid and their mother received $300.00 as alleged, in expectation of getting a title, but that no title was to be passed until the price had been paid in full and that $400.00 remained unpaid; that they were ready and willing to execute a title in the execution of the agreement, upon the payment of the balance due. They tendered title, conditioned as above said. They alleged that plaintiff had taken possession of the property. They therefore prayed for the rejection of her demand against them and for judgment in reconvention against the plaintiff for $400.00; balance, due on the purchase price and compelling the plaintiff to comply with the agreement on her part.

The district judge held that the contract between the plaintiff and defendant was nqt enforcable and condemned the defendants to return the $300, as prayed for by the plaintiff.

The defendants appealed to this court. It was held on the appeal that the receipts adduced by the plaintiff against the defendants showed payments amounting to $300.00 on account of the purchase price of land, but that the receipts were not shown to be connected with the land described in thepetition; that parole evidence would have been admissible for that purpose, but that none having been offered there was not alternative, except to affirm the judgment appealed from. A writ of review was obtained from the Supreme Court, and it was held on the review, Cousin vs. Schmidt, 143 La. 843, 844, 845, 79 South. 427, that defendants exception of no cause of action should have been maintained. That plaintiff having alleged an agreement to buy and sell, payments made and received on account of the purchase price, therefore had no right to have returned the (price paid. The judgment of the Court of Appeal and of the District Court was both $et aside and thecase remanded.

The present suit was filed on June 12, 1920. Its object is to compel defendants as heirs of their mother to execute a 'title in plaintiff’s favor for the land in question. Plaintiff’s petition in the present case follows defendant’s averments in suit No. 2443, and in effect calls on defendants to do now what they offered to do in the first suit. The plaintiff alleges, however, that defendants now refuse to execute a title and that they, particularly Mrs. Lucia Schmidt, have entered on the land and cut the timber from same, damaging the plaintiff to the extent of $1,000.00. The plaintiff admitting that therewas $400.00 due o.n account of the purchase price, deposited same in court and prays that defendants be compelled to execute a title in her favor and ipay her the value of the timber cut from the land.

The defendants did not at first appear through the same attorneys, nor urge the same defenses. Lucia, Anna, Camille, Stella, Walter and apparently Maurice and Harry appeared on October 15, 1920, and excepted to the jurisdiction of the court on the ground that they wereresidents of the city of New Orleans. This exception .was overruled and as they did not further appear at that time, a judgment by default was entered up against them and subsequently confirmed as hereinafter stated.

Gaspar Cusachs appeared on January 10, 1921, as tutor for Maurice, Harry, James and Charle sand through another attorney answered, plaintiff’s petition by admitting the agreement to sell and buy for the price and sum of $700.00, the payment of $100.00 and then $200.00 on account of the purchase price, making $300.00, and that $400.00 remained due, all as alleged by the plaintiff. He claims in his answer for said minor heirs, their share of the $400.00 deposited in court and denied that theminors for whom he appeared had cut any timber on the land and denied all liability on that account; averred that he had never refused to execute a ttile, upon being paid the balance due theminors for whom he was tutor and again sendered title for their interest; conditioned that they were first paid for same in full. His prayer is in conformity with his allegations and he further prayed that plaintiff be required to reimburse to the minors the taxes paid on the property.

On February 11, 1921, the court rendered judgmentin favor of the plaintiff and against Gaspar Cusachs, tutor, on the answer filed by him for Maurice, Harry, James and Charles and on confirmation of the default against Lucia, Anna, Camille, Stella and Walter, recognizing the (plaintiff as the owner of the land with right of possession. Against Lucia, Anna, Stella, Camille and Walter for $700.00 in solido on account of timber cut from said land. In favor of Gaspar Cusachs, tutor for Maurice, Harry, James and Charles, for $171.22 as their share of the $400.00 deposited in court and directed the Clerk of Court to pay same to them.

Lucia, Anna, Camille, Stella, Maurice, Harry and Walter prosecuted a devolutive appeal from said judgment to this court. This court on the first hearing affirmed the judgment appealed from, but on rehearing, March 5, 1923, it was held that plaintiff had not made proof of her ownership of the land and on that ground the judgment appealed from was set aside and the case remanded for a new trial.

All the defendants appeared on the remand, including James and Charles, on April 9, 1923, through attorneys different from the one who had represented the tutor in the answer of January 10, 1921, and joined in the same answer. In this answer they all deny plaintiff’s allegation that their mother had promised to sell and the plaintiff to buy the land in question, contending that they had no knowledge of thefact. They also inferentially allege ownership in themselves by claiming that plaintiff had damaged them by cutting timber from the land. They all pray that plaintiff’s demand be rejected and that she be compelled to pay them $500.00 damages on account of timber cut from the land by her. The case was tried anew on this answer and judgment was rendered in favor of the plaintiff on October 15, 1926, recognizing her as the owner of the land, with right of possession; condemning all the defendants in solido to pay her $350.00 damages on account of timber cut from the land; charged all the defendants in solido with $171.22 paid by plaintiff to Maurice, Harry, James and Charles pursuant to the judgment of February 11, 1921, out of the $400.00 • which the plaintiff had deposited in court at the time of filing suit. Also charged to all' the defendants $32.00 paid by plaintiff as cost and the balance of the $400.00 was by the judgment off set against the $350.00 damages which the defendants were required to pay as damages on account of timber ■cut, leaving nothing due the defendants on account of said land. No mention is made of the- taxes which the tutor claimed in his answer of January 10, 1921.

All of the defendants have appealed from this judgment and the case is now before us on their appeal.

Defendants urge in argument and brief that the result of the suit No. 2443 and decision of the Supreme Court, left the parties in the same position in which they were, in the matter of pleading, before that suit was filed. That the former suit was not admissible in evidence in the present case. We differ with defendants about this matter. We think the record of suit No. 2443 admissible in evidence for the purpose for which it was offered and received in the present suit. As for the contention that the result of the first suit left the parties in the same condition in which they were before it was filed, we find that the sworn petition and answer in that suit and title tendered amounts to a judicial confession of the facts therein admitted by defendants and that said confession stands in full force. Civil Code, Art. 2291. The facts admitted by defendants in their answer of April 24, 1916 are not said in their answer of April 9, 1923, to have been due to error of fact, nor is claim of that kind made with reference to the answer of January 10, 1921, by Gaspar Cusachs, tutor for Maurice, Harry, James and Charles, in the present suit. Defendants have therefore admitted that on or about June 29, 1907, their mother, Camille Cousin, entered into an agreement with the plaintiff, whereby their mother agreed to sell and the plaintiff to buy the property in question at the price of $700.00, of which amount $100.00 and then $200.00 was paid, leaving unpaid $400.00; and that their mother executed and signed the two receipts adduced by the plaintiff, showing performance of the agreement on the part of the plaintiff to that extent. These admissions are not like legal conclusions, unsuccessfully urged, but admitted facts, the effect of which was not done away with by the result of the suit. The authorities cited by plaintiff, Smah vs. Harrell, 16 La. Ann. 190; Font vs. McConnell, Jr., 46 La. Ann. 215, 14 South. 522, have reference to questions of estoppel by former pleading which have been overruled, and not to facts solemnly admitted in an answer. Louisiana Digest, Yol. 3, Subject Evidence, Sections 127, 128, pp. 157, 158; Supplement Vol., Subject Evidence, Sections 127 and 128, pp. 367. But suppose these admissions be put aside. The note of evidence in suit No. 2443 shows that plaintiff offered in evidence on the trial of that case the two receipts above mentioned, stating that they were annexed to her petition. The plaintiff has sued the defendants in the present case to compel the execution of a tile in carrying out an agreement to sell land described in their petition, the contract being evidenced by these receipts. It was therefore incumbent on defendants to either expressly disavow their mother’s alleged signature to these receipts, else allege that they did not know her handwriting, Code Practice, Art. 324, Civil Code, Art. 2244. The denial in their answer of April 9, 1923, based on lack of knowledge of the facts is not an equivalent to the express disavowal or allegation that they do not know her handwriting required by the law, but suppose such to be the case. The defendants did not offer any evidence at all, the purpose of which was to question the alleged signature of their mother to these receipts; or the verity of the same. The (plaintiff herself was not directly questioned about the receipts, but she did testify on the trial that she entered into a contract with Camille Cousin tq purcase the land described in her petition for $700.00 and that she paid $300.00 on the contract price, leaving unpaid $400.00. A fragment of one of the receipts is all that remains, the other has disappeared from the record. The fragment remaining commences and thence reads: “The sum of $100.00 onaceount being part payment on a piece of land on the east side of Bayou Lacombe, being portion of Mrs. Anatole Cousin’s land. (Signed) Camille Cousin.” Under the signature appears the declaration of R. G. Hadden, notary public, that Mrs. Cousin appeared before him and after being duly sworn, says that the above deed was signed by Camille Cousin in her presence. On the reverse side appears a certificate of the Clerk of Court of the Parish of St. Tam-for record and recorded February 27, 1909, many, that the instrument had been filed in conveyance book No. 51, pp. 531, of his official records.

The receipts are acts under private signature and the registry of acts under private signature, indicating contracts in regard to land, that have been made in the conveyance books, can be offered and received in evidence against the party said to have executed same, or their heirs claiming under them, without proof of signature. Kittridge vs. Hebert, 9 La. Ann. 154; Stallcup vs. Pyron, 33 La. Ann. 1249; Allen, West & Bush vs. Whetstone, 35 La. Ann. 847; Burns vs. Thompson, 39 La. 377, 386; 1 So. 913. But the signature of defendants’ mother to these receipts is an admitted fact. In defendants’ brief in case No. 2443, filed in this court on April 25, 1917, contains what defendants say in their brief is a reproduction of these receipts.- The first one as reproduced in their brief reads as follows:

“Bayou Lacombe, 6-9-1907
“Received from Mrs. L. Cousin the sum of $100.00 on account, being part payment on the price of land on the east side of Bayou Lacombe, being a portion of Aanatole Cousin’s land.
(Signed) “Camille Cousin.”

Then follows a declaration signed by R. G. Hadden and the certificate of the Clerk of Court as above taken from the fragment of the original. The other receipt is reproduced in the brief as follows:

“Lacombe, 9-4-07
“Received from Mrs. L. Cousin the sum of $200.00 on account of my land, east side of Bayou Lacombe, being a portion of Mrs. Anatole Cousin’s land.
(Signed) “Camille Cousin.”

Then follows a declaration signed by R. G. Hadden, notary public, and a certificate of the Clerk of Court that the document had been recorded, as above taken from the fragment of the original of the first receipt. .

The argument of the defendants that their mother’s signature to the receipts was not proved on the present trial does not take into account the evidence which indicates that she did and the fact that on the trial defendants brought forward nothing indicating that she did not, or questioning the verity of the same. Returning nowto the admissions in defendants’ answer on April 24, 1916, in suit No. 2443, and of January 10, 1921, by Gaspar Cusachs, tutor in the present suit, the signature of defendants’ mother and the verity of the receipts are admitted, proving unqualifiedly the contract to sell and buy as alleged by the plaintiff, leaving no room for doubt about it.

Defendants urge in argument that plaintiff informed Mrs. Lucia Schmidt that she did not want the land and did not intend to finish paying for it. That she had thereby lost her right to have title executed for same. Plaintiff denies the statements imputed to her by Mrs. Schmidt to that effect and her denial is corroborated by her actions. The court accepts the statements of the plaintiff on the subject mentioned.

Defendants also urge that plaintiff lost hqr right, if any she had, by her delay in claiming title; citing Joffrion vs. Gumbel, 123 La. 391, 48 South. 1007. The plaintiff testifies that she sold some land, after the termination of her first suit, in order to raise the $400.00 required to finishe paying for the land in question, tendered same to defendants, that theyrefused to receive it and that she finally brought the present suit. The first suit terminated when the decision of the Supreme Court in Cousin vs. Schmidt, 143 La. 843-4-5, 79 South. 427, became final which was on June 29, 1918. The present suit was filed June 12, 1920, and has been in court ever since. Between the termination o.f the first suit and the filing of the present there is evidence to the effect that the parties were engaged in negotiations looking to an amicable arrangement of their differences. Under such facts the authority cited is not controlling.

The lower court recognizes the plaintiff as the owner of the land in question with the right of possession. This was done by offsetting and extinguishing the $400.00 remaining unpaid qn account of the purchase price, with a judgment against the defendants for damages on account of timber cut and also applying against same the $171.22, paid by plain-ti ffunder the judgment of February 11. 1921, also $32.00 in cost paid by plaintiff, leaving nothing due defendants on account of the purchase price. But that cannot be done for the reasons hereinafter explained. We agree with the plaintiff that defendants are bound to execute. a title in her favor, but only after she has complied with the agreement on her part. That is what plaintiff prays for in her petition. We also agree with the plaintiff that the timber on the land should not have been cut by defendants, nor any of them, for there ason that the standing timber had been contracted to the plaintiff and was part of the thing for which she should receive title. We think plaintiff has been damaged to the extent of $350.00 as fixed by the lower court; but not by the act of all the defendants. The evidence shows clearly that Mrs. Schmidt had the timber cut and is solely responsible on that account; that none of the other defendandts, nor their tutor of the minors, participated in it; consequently none but Mrs. Schmidt can be looked to to make good any damage on that account. It was error ot hold that the other defendants are equally responsible for a wrongful act with which they had nothing to do.

The judgment appealed from also erroneously charges to all the defendants $171.22 paid by plaintiff to A. D. Schwartz, attorney for Gaspart Cusachs, tutor for Maurice, Harry, James and Charles Cusachs. The payment will be recognized as the judgment of February 11, 1921, was only devolutively appealed from, but only as a payment to the tutor and for the account of the heirs for whom he stood. The judgment did not authorize a payment on account ofany of the other defendants. The evidence on the subject shows that the amount was ipaid to Mr. Schwartz for the party he represented in the suit and must be therefore charged to Maurice, Harry, James and Charles and no part ofit to any of the other defendants.

This court in remanding the case on March 5, 1923, directed that the cost in the lower court abide the result of the suit. We therefore find no authority for charging defendants with $32.00 cost paid by virtue of the judgment of February 11, 1921, which was set aside by this court.

We agree with the lower court that defendants demand against the plaintiff on account of timber cut from the land in question by the plaintiff was properly refused. The sanding timber was due the plaintiff and now when she gets title she will take the land, less the timber cut from it by herself. The judgment appealed from says nothing about reimbursing defendants on account of taxes paid by them, or some of them, on the land in question. We feel pretty sure that this land is worth now a good deal more than it was at the time defendants’ mother contracted to sell it to plaintiff. In defendants’ answer of April 9, 1923, there is nodemand against the plaintiff on account of taxes ¡paid by them on the property, but in the answer of Gaspar Cusachs, tutor for Maurice, Harry, James and Charles, on January 10, 1921, there is a demand against the plaintiff on that account. Gaspar Cusachs had ceased to be tutor when the last answer was filed, all the heirs having reached the age of majority; yet his demand for taxes still stood in behalf of those for whom it had been made.

Mrs. Schmidt, testifying as a witness in behalf of all the defendants, stated that she had paid the taxes on the property for many years. This evidence was received without objection and can be considered; but further evidence on the subject was excluded by the court on the objection of the plaintiff that defendants’ answer contained no demand of that kind. That was true as to Mrs. Schmidt and her co-defendants, except Maurice, Harry, James and Charles. As to them there was a demand for reimbursement. Therefore evidence to show that they had contributed to keeping the taxes paid on the property was admissible. There was nothing said on the subject, except what was claimed by Mrs. Schmidt and that is not sufficient to enable us tq properly deal with the matter either way. We think it likely that there was some misunderstanding on the subject in the lower court. Strong equity considerations prompts us toleave that matter open for adjustment in the lower court by further proceedings. The judgment appealed fromis partly correct, but it must be set aside in order that a judgment may be rendered on the whole case, such as we think should be rendered.

The judgment appealed from herein is therefore annulled, avoided and set aside. It is now ordered, adjudged, and decreed that Lucia Cusachs, wife of J. O'. Schmidt; Anna Cusachs, 'wife of S. G. Theisin; Camille Cusachs, wife of Albert J. Davidson; Stella Cusachs, wife of Stephen C. Cassagne; Walter Cusachs, Maurice Cusachs, Harry Cusachs, James Cusachs and Charles Cusachs, each execute and deliver to Rosamine ousin, widow of Lawrence Cousin, a title to that certain tract of land, to wit: “A certain portion of Lot 1, Section 43, T. 8, S. R. 13 E, designated as Lot No. 9, on a plat made by Joseph Pugh in November, 1908, filed in the office of the Clerk of Court on February 19, 1913, and known as part of Mrs. Anatole Cousin’s land, situated in the Parish' of St. aTmmany, with legal warranty of title. The price of the sale is to be $700.00, of which amount $100.00 was paid on June 29, 1907 and $200.00 on September 4, 1907, within thirty days from the time this judgment becomes final, all subject to the conditions that Rosamine Cousin shall first pay to the said Anna, Walter, Stella and Camille each at the time title is tendered, one-ninth of $400.00 with legal interest thereon from June 12, 1920, until paid; and that she shall also at the same time pay to the said Maurice, Harry, James and Charles, each, one-ninth of $400.00 with legal interest thereon from June 12, 1920, until paid, less $171.22 received by them in equal shares from plaintiff on February 11, 1921, all in the execution and performance of the agreement entered into between Camille Cousin and Rosamie Cousin on or about June 29, 1907.

It is further decreed that Rosamie Cousin have judgment against Mrs. Lucia Cusachs Schmidt for $350.00 on account of timber cut and removed by said Mrs. Schmidt from said land, with legal interest thereon from June 12, 1920, until paid, less one-ninth of $400.00 with legal interest thereon from reckoned same date, said one-ninth being the share due Mrs. Schmidt on account of the purchase price of said land. Defendants demand herein against the plaintiff on account of timber cut by the plaintiff from said land is refused.

The above judgment without prejudice to any claim defendants may have for taxes that may have been paid by them on said land.

It is further ordered that the plaintiff and appellee pay the cost of appeal, and one-half of the costs in the lower court; the other half to be paid by defendants and appellants.

LECHE, J.,

dissenting.

A promise of sale is by its nature an indivisible obligation (Art. C. C .2109) and must be executed entirely or not at all. An obligation which is indivisible as to the obligee is also indivisble as to the obligor. Randolph vs. Stark, 51 La. Ann. 1126, 26 South. 59; Barrow & LeBlanc vs. Penick & Ford, 110 La. 572, 34 South. 691; Graham vs. Barnhart, 117 La. 1023, 42 South. 489; Suthon vs. Laws, 127 La. 531, 53 South. 852. In this case the promisor is dead, and by Art. C. Q. 2114, his heirs are ach bound to eexcute the contract in its entirety. The decree in this cas a ojepsses262,..te

The decree in this case passes upon the individual obligations of the heirs, defendants, towards the obligee, the plaintiff, and therefore- attempts to divide an indivisible obligation. The decree further passes upon the rights and obligations of the heirs among themselves, a matter which does not concern the plaintiff and which is not an issue in the case.

I believe the judgment appealed from should simply be affirmed.


author: REYNOLDS, J.

text:
    No. 2166
    Second Circuit
    FULLER & VORDENBAUMEN v. BREWSTER
    (May 13, 127. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)
    (July 16, 1927. Writ of Certiorari and Review Applied For.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    When the issue is one of fact, the appellate court will give much weight to the finding of the trial court and will not disturb its finding unless manifestly erroneous.
    Chaffe vs. Barataría Canning Co., 113 • La. 215, 36 South. 943.
    Dun vs. Springfield Fire & Marine Ins., 109 La. 520, 33 South. 585.
    Brady vs. Jay, 111 La. 1071, 38 South. 132.
    Knotts vs. Midkiff, 114 La. 235, 38 South. 153.
    Smith vs. Minden Lbr. Co., 114 La. 1035, 38 South. 821.
    Rohr vs. Stechman, 11 La. 15, 43 South. 991.
    Martinez vs. Fabacher, 118 La. 954, 43 South. 632.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Fuller & Vordenbaumen against H. C. Brewster.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. C. Chandler, of Shreveport, attorney for plaintiff, appellee.
    Pugh & Boatner, Byron A. Irwin, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

In this suit plaintiff prays for judgment against defendant for $1750.00; $250.00 contracted to be paid to E. H. Vordenbaumen for finding a purchaser for defendant’s rotary drilling rig at the price of $4500.00 and $1500.00 to be paid F. M. Fuller for finding a purchaser for the sme rig at $6000.00.

Defendant denied having employed plaintiff to find a purchaser for his drilling rig at any price or under any conditions.

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

OPINION

In this case the evidence makes it clear that F. M. Fuller secured a purchased for defendant’s drilling rig that defendant had agreed to take $4500.00 for at the price of $6000.00 in the person of F. B. Imboden who came from Dallas, Texas, to Shreveport, Louisiana, on the invitation of Mr. F. M. Fuller and his guarantee that he would pay Mr. Imboden’s expenses both ways if he would come to Shreveport and examine the rig and was not pleased with it.

It is also clear that Imboden came to Shreveport and that Mr. Fuller showed him the rig and that through the efforts of Mr. Fuller he was completely “sold” on the rig.

It is also certain that defendant, who admits that he told Mr. Yordenbaumen he would sell the rig for $4500.00, sold the rig to Imboden for $6000.00.

And the only question for decision is did defendant agree to pay plaintiff the commission alleged.

E. H. Vordenbaumen testified, page 2:

“Q. Now, Mr. Brewster agreed that in case you should obtain a purchaser at this price of four thousand five hundred dollars ($4500.00) for this drilling rig that he would allow you a commission of two hundred and fifty dollars?.
"A. Pie did.
(Page 3):
“Q. All right, go ahead.
“A. So I went down to Mr. Brewster and told him we had got some parties from Dallas and would bring them over and try to sell this rig for him to them and Mr. Brewster said: ‘All right, go ahead and sell it to them’. And I mentioned to him at that time that Mr. Fuller had agreed to sell it or had sold it, his rig for six thousand dollars, and we would substitute this one for the one he had sold if the parties agreed to buy it if Mr. Brewster would protect us for the difference between the forty-five hundred dollars ($4500.00) less two hundred and fifty dollars ($250.00) and the six thousand dollars ($6000.00).
“‘Q. Now, at the time of this conversation between you and Mr. Fuller and Mr. Brewster, did Mr. Brewster agree to allow to you your commission of two hundred and fifty dollars ($250.00) that was mentioned in your first agreement?
“A. I don’t know that that particular line of talk came up at that time, but the understanding was we were to ’he protected for seventeen hundred and fifty dollars ($1750.00), my two hundred and fifty dollars ($250.00) and Fuller’s fifteen hundred dollars ($1500.00) making seventeen hundred and fifty dollars ($1750.00).
“Q. Was the price of forty-five hundred dollars ($4500.00) net to Mr. Brewster?
“A. Yes; less two hundred and fifty dollars commission to me, and Mr. Fuller had sold this, hei was willing to sell this rig to these parties for six thousand dollars and make the difference and Mr. Brewster agreed to it.
(Page 18):
“Q. Well, now, it seems that you and M.r Fuller went down to Mr. Brewster’s office after these people arrived. I believe you stated that.
“A. Yes, sir.
(Page 23):
“Q. Something has been said about two Mr. Fullers. Which Mr. Fuller was it?
“A. The oldest one. The last visit the youngest one came, too. All three of us were there.
“Q. All three of you?
“A. Yes, sir.
“Q. Did all three of you talk to Mr. Brewster, or did you talk to Mr. Brewster and they waited out in the other office?
“A. All three of us talked to Mr. Brewster to some extent, because Brewster was sitting in one corner and we were standing across facing him' and talking to him, and there Mr. Fuller and his son and myself went in and Brewster said he had sold the rig to Palmer and some other man, and as a matter of fact he was right then and there selling it to Imboden.
(Page 30):
“Q. Now, it has been testified to that some few days after that or at some subsequent time, you went with Mr. Fuller to see Mr. Brewster again.
“A. Yes.
“Q. . That is the second agreement?
“A. Yes.
“Q. And at that time Mr. Brewster agreed that he would make the sale for the price of six thousand dollars.
“A. Yes, sir.
“Q. And protect you and Mr. Fuller to the amount of seventeen hundred and fifty dollars.
“A. Yes, sir.
“Q. Then the price of the rig was to be forty-two hundred and fifty dollars net to Mr. Brewster.
“A. That is correct.
“Q. Now, acting under that agreement, Mr. Vordenbaumen, Mr. Fuller brought his parties over from Dallas?
“A. He did.
(Page 32) :
“Q. And that the parties had been taken out by Mr. Fuller to look at the rig? *
“A. Yes, sir.
“Q. And he told you at that time — you told him at that time that they had wired for the funds?
“A. Yes.
“Q. And he stated then that he would wait until the next morning?
‘A. Yes.”
F. A. Fuller testified, pages 40 and 41:
‘Q. Now, Mr. Fuller, I will ask you the question whether or not you and your father and Mr. Vordenbaumen ever called on Mr. Brewster after this trip to the rig?
“A. Yes, sir; we three went down to see Mr. Brewster.
“Q. State who was present?
“A. Why Mr. Vordenbaumen, my father and myself went down to see Mr. Brewster and he was out in the shop and one of the men in the office called him in and we told him we had a party to buy the drilling rig at six thousand dollars, the drilling rig he had located úp on the Belcher road and which Mr. Vordenbaumen was to sell for forty-two hundred and fifty dollars and Mr. Brewster was to give him two hundred and fifty dollars commission. We told him we had brought these parties over from Dallas and they were going to buy the drilling rig from us and pay six thousand dollars that we had rather make the fifteen hundred dollars off of his rig than to let ours go at six thousand dollars and he said that was all right; that he did not want his books to show that he had paid fifteen hundred dolars on a forty two hundred dollar sale and he would make the title to my father or to Mr. Vordenbaumen and we could transfer it for six thousand dollars.”

F. M. Fuller testified, pages 557, et seq.:

“Q. All right, go ahead?
“A. And they were satisfied with the rig and willing to buy it, so we came back to Shreveport with them and Vordenbaumen and myself went to Brewster’s and told him we had been out with them and they were satisfied with the righ and that they had wired their man somewhere to wire thirty-five hundred dollars to my credit at the Exchange National Bank here and stated to Brewster, it was then about two ’clock in the afternoon that possibly we would not get returns on it before the banks closed that day, but if we didn’t we would be down the first thing the following morning and close the deal up.
“Q. What did Brewster say?
“A. He said all right. I stated to him: ‘Now you consider the rig sold,’ because I knew these men would not wire to somebody to send the money here unless they had the money, and he said: ‘All right, I consider the trade closed’.
* * *
“Q. Then, when you got back from your tour of inspection, you went down to see Mr. Brewster.
“A. Yes, sir.
“Q. You and Mr, Vordenbaumen went • down?
“A. Yes, sir; and my son.
“Q. And your son?
“A. Yes, sir.
“Q. Three' of you?
“A. Yes, sir.
“Q. Just what did Mr. Brewster' agree to do with you at that time?
“A. The agreement originaly was, Brewster was to have forty-two hundred and fifty dollars net; that Vordenbaumen was to have the two hundred and fifty dollars commission and I was to have fifteen hundred dollahs. Brewster knew nothing about me going to give Vordenbaumen two hundred and fifty dollars of mine.
“Q. Then how was that money to be paid to you?
“Q. What?
“Q. How was that money to be paid to you? How were you to get it?
“A. At that time, at that conversation, I suppose that Brewster was to accept the six thousand dollars and hand me fifteen hundred dollars and Vordenbaumen two hundred and fifty dollars.
“Q. hat was the agreement?
“A. Yes, that was the agreement, but it wasn’t decided, you understand, as to how it was to be paid, only I was to be allowed to make fifteen hundred dollars profit on his rig in lieu of selling my rig.
“Q. Now did he specifically agree that these folks which he had waiting outside of the door, as you term it, that he would not sell to one of these?
“A. He did; he agreed not to sell it to anybody until I got my parties here.
“Q. Did he say: ‘I am going to hold this and won’t sell it to anybody else’?
. “A. Yes.
“Q. At that meeting Mr. Vordenbaumen and your son were present?
“A. Yes, sir.
‘Q. Then you got a telegram from these people that they were coming over?
“A. Yes.
“Q. Did he see that document?
“A. Yes, sir.
“Q. You are absolutely positive about that?
“A. Yes, sir.
“Giving him the names of these men?
“A. Yes, sir.
“Q. Was any mention made of these names besides the fact that you handed him the telegram? Did you mention who they were?
“A. Yes; Brewster asked me who they were and I told him and told him where they were stopping after they had gone out and looked at it.
“Q. On the morning that this sale took place, I believe you stated a few minutes ago, - you telephoned Mr. Brewster. Will you give the substance of that conversation?
“A. That I told him over the phone?
“Q. Yes.
“A. On the morning of the sale?
“Q. Yes.
“A. Well, I had sent my son down and found out the parties we had brought over were in Brewster’s office. I then went to the telephone booth in the Youree Hotel and called Mr. Brewster, first calling Mr. Vordenbaumen and my son to hear- me talk to Mr. Brewster, and I stated: ‘Brewster, I want to state to you that I know you are selling that rig to my parties who I brought over here from Dallas. You have stated to me that you were selling it to Palmer, that you are dealing with my same parties and it is all right for you to go ahead and close out on it, but I want to notify you here and now that I am going to hold you to my commission of iffteen hundred dollars’, and he stated: ‘That is all right; leave that to me’. T will take care of that.’ hTen, of course, I kept away. I figured there was no way to get around paying these, what I was entitled to, so later in that day or the following day I went down to collect my fifteen hundred dollars and he told me I didn’t have anything coming to me.”

Under this testimony plaintifsf are entitled to a judgment as prayed for.

But defendant swears positively that he never entered into a contract whereby he agreed to pay either of the plaintiffs any commission, and in this he is corroborated in part by the testimony of A. O. Price, who testified that he never saw plaintiffs at defendant’s office. But Mr. Brewster’s testimony is negative, and when the testimony is reduced to its last analysis defendant submits his case to us under the difficulty of having three witnesses swear positively against his contention, and unfortunately for him he is the appellant and has to, overcome the presumption of correctness which attaches to the judgment of the lower court and discharge the burden of proving that the judgment is manifestly erroneous.

Under all the evidence and the settled jurisprudence established by a long list of authorities that where the evidence is conflicting the conclusion of the trial judge is entitled to great weight and will not be disturbed unless manifestly erroneous, we are unable to grant defendant the relief prayed for in his appeal.

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


author: O'DOM, J.

text:
    No. 2888
    Second Circuit
    HUNTER v. LOUISIANA ICE & UTILITIES CO.
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 159.
    In suits under the Workmen’s Compensa-, tion Act, where the employe, as a result of an injury, is disabled over a long period of time and is disabled on the date of the trial, and there is no testimony which enables the court to fix with any degree of certainty the duration of his disability, the court will grant compensation during disability, not exceeding the period. fixed by the statute.
    2. Louisiana Digest — Master and Servant Par. 154, 159.
    Where an employe’s hand is injured so as to cause disability to do manual labor of a reasonable character, he is not entitled to compensation for a period exceeding 150 weeks even though the period of disability exceed that length of time the total loss of the use of the hand being equivalent to the amputation thereof.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Hezekiah against Louisiana Ice & Utiltities Co., Inc.
    There was judgment for plaintiff and defendant appealed. Judgment amended and affirmed.
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellee.

      Thornton, G-ist & Richey, of Alexandria, attorneys for defendant, appellant.
   O'DOM, J.

Plaintiff, was employed to work for defendant and while so employed a co-laborer upset a bucket of hot tar on the back of his hand, inflicting a severe burn. The injury resulting from the burn instantly caused total disability to perform labor of a reasonabe character. He brings this suit to recover compensation .based upon 65 per cent of his wages for the period of his disability, not exceeding four hundred weeks.

The defense is that plaintiff received only slight injuries and had so far recovered at the time of the filing of this suit that he was able to do manual labor such as he was accustomed to do.

It is further alleged by defendant that plaintiff is a malingerer, and that if there was disability at the time of the filing of this suit it was on account of the fact that plaintiff had done- nothing to improve his condition.

The lower court awarded plaintiff compensation at 65 per cent of his wages during a period of fifty weeks and also gave him judgment for the sum of $75.00, medical expenses incurred.

Defendant appealed, and plaintiff, in this court, filed a motion to amend the judgment by granting compensation for 150 weeks.

OPINION

Immediately following the injury, two physicians, Doctors Luckett and Wilson, both furnished by defendant, treated plaintiff’s hand for some time, the exact length of time not being stated, and finally discharged him, not as cured entirely, but apparently, because they had done for him all they thought was necessary, and suggested to him that he get light work and to exercise the hand and manipulate the fingers, as, in their opinion, with proper use and exercise of the hand it would soon be restored to its normal condition.

Plaintiff then applied to defendant for light work, but the manager, Mr. Harding, refused to employ him, because— “due to his being contentious about securing a lawyer, that I would not give him a job.”

Ip the meantime plaintiff had not been paid any compensation, although he had been totally disabled for a period of some three months. The manager, however, told him previously that he would try to get the insurance company to pay him. Subsequently the plaintiff, not having recovered the use of his hand, procured the services of Doctor Cappel, who treated him for a period of about three months. Just what treatment he administered is not stated. His treatment, whatever it was, failed to relieve the hand, as is evidenced by the testimony of all the physicians who were called as witnesses in the case.

Plaintiff is a colored man, 34 years old, uneducated, can neither read nor write, and earns his living by manual labor. It is undisputed that the injury totally incapacitated him to perform labor such as he was capable of doing. He contends that he is still disabled and incapacitated.

Defendant, while not contending that plaintiff had fully recovered on the date of the trial, contends that his failure to recover and retain the use of his hand is due solely to the fact that he has neglected and refused to follow the instructions of the physicians who advised him to do light work and to exercise the injured hand; in other w'ords, that plaintiff is a malingerer and stubbornly refuses to make proper use of the hand in order to prolong the period of disability and thereby get compensation.

We are not impressed with the suggestion that plaintiff has wilfully neglected to use his hand in order to get compensation. All the physicians say, and we, of course, accept their opinion, on that point, that plaintiff’s hand will improve with use and that without use and exercise and ©roper treatment there will be no improvemedt owing to the nature of the injury; and it is probably true that plaintiff has not used and manipulated the injured hand as he should; but according to all the physicians the hand is stiff and weak and the use of it causes pain and more or less swelling.

On the morning of the day of trial plaintiff’s hand was normal in size. During the day Doctor Luckett, in the presence of Doctor Cappel, examined the hand, bent and manipulated the fingers, and later in the day it was found that the hand had swollen, the inference being that the bending of the fingers caused the work he suffers pain and his hand swells, swelling.

Plaintiff says that when he tries to and his statement to that effect is strongly corroborated by the opinions of all the-physicians.

Our opinion is that plaintiff’s failure to use his hand results from the fact that its use causes pain and swelling, from which he shrinks. Of course, the wise course for him to ©ursue under the circumstances would be to use the hand and endure the pain. That would bring about a more speedy recovery; but in dealing with him we must not overlook his lack of intelligence. It takes some courage and resolution for one to use a member of the body when the use of it subjects the individual to pain and suffering. It is no doubt hard for one of plaintiff’s intelligence to understand that the use of the hand would benefit it, whereas a person of more intelligence would readily understand that. People should be judged according to their lights.

Then, too, it is shown that plaintiff was willing to work. When the physicians advised him to secure light work he applied to his former employer who refused him because he had consulted counsel about getting compensation.

Our conclusion, therefore, is, that plaintiff should not be put in the class of a malingerer.

In view of the fact that plaintiff had been totally disabled by the accident and had been paid nothing for several weeks, it was only natural for him to seek advice as to his rights under the law. Defendant should have relieved him of this necessity by paying the compensation which the law prescribed.

As to the. injury and plaintiff’s condition at the time of the- trial, we find that he was burned on the back of the right hand with hot tar which, as before stated, produced total disability to • labor. In the course of a few months the surface of the wound healed. As a result of the burn Doctor Cappel says there is scarred tissue which impairs the function of the tendons and the blood supply; that the blood circulation has not been restored to normal.

Doctor Landrem, who examined plaintiff three weeks before the trial which took place in the month of December, said:

“I find a hand that was slightly enlarged and in a swollen condition, with the loss of motion, loss of function.”
And, again:
“He has an apparent loss of motion, with ankylosis of the bones of the hand, with a swelling also of the back of the hand; in other words, it seems to me that he has a complete loss of function.”

On cross-examination he stated that he did not intend to say that plaintiff! had complete loss of function, but he reiterated that his fingers were stiff and that .to bend them caused pain and swelling.

Doctor Rand, called by defendant, examined plaintiff’s hand on the day of the trial, December 10th, some seven months after the injury. He said he found the posterior part'of the right hand, extending- to the base of the fingers shows multiple areas where the black pigment is missing from the skin, and that the hand is swollen over the extensor tendon of the index finger on the. posterior part of the hand; that he has some limitation of motion, and that the swelling is apparently, caused by fluid “which is probably due to the extravasation of fluid that gets into the tissue from the lymphatis and the blood stream has atrophied.”

He was asked if ordinary mánipulation of the fingers would cause the swelling which he found, and he said:

“If that finger had been at rest for a long time and was flexed up, I think possibly that it' might have been produced in that way; or by a direct blow, or any type of traumatism.”

Pie said he found no suspicion of adhesion or nerve injury and further said:

“His hand at present presents a picture to me of an old injury and lack of use following same.”

He was given the history of the case with its treatment by physicians and was asked his opinion whether plaintiff should have entirely recovered, and he said:

“It is hard to say what will occur with any individual case, but it is reasonable to think that recovery should have taken place by this time * * * I think that the lack of use of the hand is the principal factor in his present disability.”

He further stated that the use of the hand at this time would cause pain and that the hand at present is impaired.

Doctor Luckett, another witness called by defendant, says there is no ankylosis and that with proper usage the hand should have healed. Asked as to the present condition of the hand, he said:

“I think there is loss of power there.” And, being asked if the plaintiff could do manual labor at the time of the trial, he said:
“I don’t think so just now. oNt the same kind of work he has been doing.”

This testimony establishes beyond question that plaintiff at the time of the trial, nearly seven months after the accident, was unable to do manual labor of a reasonable character.

As to the duration of plaintiff’s disability, the experts as usual do not agree.

Doctor Cappel, one of the physicians, says:

“In my opinion it will, require several months before he will be able to do the same work that he did before his burn.”

He further stated that no one could give an approximate time over which the disability would continue.

Doctor Landrem being questioned on the same point, said:

“I would think that by proper manipulation of it, six to eight months would place that hand so that he could use it fairly well to make a living.”

Doctor Rand was asked:

“Some time is going to elapse before he is going to be able to do hard manual labor. Isn’t that a fact?”

And he answered:

“I think that that is true.”

He was aagin asked:

“Doctor, in your opinion, what length of time will elapse before this plaintiff will be in a, position to pursue bis occupation, that is, of manual labor?”

And he said:

“That question cannot be answered.”

Questioned further as to his opinion, he said:

“If the plaintiff is serious in his intent to recover the use of his hand, and is properly directed in his endeavors, in my opinion he should do reasonable work between one and two months at the very limit.”

Doctor Luckett treated plaintiff’s hand a few times in the absence of Doctor Wilson who had charge of the case. He was asked how long it should have been after Doctor Wilson discharged the patient before he should have gained the proximate normal use of the hand, and he said:

“Well, that would be a hard question to answer. 1 can only give you an approximate estimate, and I would say three or four weeks with proper manipulation.”

He stated that he personally did not discharge the patient — that was done by Doctor Wilson.

Doctors Wilson and Luckett discharged plaintiff approximately four months before the trial. Doctor Luckett’s testimony shows that he and Doctor Wilson discharged him before 'he Was cured, because he now says that with proper manipulation and properly directed in his endeavors the hand should have been normal in three or four weeks. They were employed by defendant and understood that plaintiff’s hand needed manipulation under proper direction, and it is somewhat difficult to understand why they did not keep him in charge and properly direct him in his endeavors.

In view of the fact that plaintiff was injured on May 16th 'and that his disability continued on down to the day of the trial on December 10th, and the fact that he had been treated during that time by three physicians, two employed by defendant and one selected by himself, and in view of the further fact of the testimony of the physicians, above referred to, it is impossible for the court to fix with any degree of accuracy the period of disability.

The jurisprudence of this court, established by a long line of decisions, is that in cases where an employee is disabled over a long period of time and the disability is shown to exist at the’time of the trial and there is no testimony which enables the court to fix with any degree of certainty the length of time such disability will continue, the court will not indulge in speculation or prophecy as to how long he should receive compensation but will grant compensation during disability, not exceeding the period fixed by the statute.

O’Donnell vs. Fortuna Oil Co., 2 La. App. 463; Chandler vs. Oil Fields Gas Co., 2 La. App. 778; Price vs. Gilliland Oil Co., 3 La. App. 175; Hutchinson vs. La. Cent. Lumber Co., 3 La. App. 413; Cobb vs. Gilliland Oil Co., 4 La. App. 531.

We have held, on the contrary, that where the injured employee had only slight injuries and had practically recovered on the days of the trial, and where the testimony showed that his disability would cease within a short time, the court should fix the period over which compensation should be paid.

Upshaw vs. Triangle Drilling Co., 5 La. App. 224; Mays vs. Allison Langston Supply Co., 5 La. App. 686.

Under the compensation law as it presently exists (Act No. 85 of 1926) the court may, for an injury producing temporary total or temporary partial disability, fix, in its discretion, the number of weeks over which compensation is to be paid, to be based upon the “probable duration of such disability.”

That act was passed subsequent to the date on which this cause of action arose and is therefore inapplicable. It is cited merely to show the rule by which courts are to be governed in the future.. But if it were applicable to this case, the court could not fix the number 'of weeks in a case like this, because the testimony is not such as to enable the court to fix the probable duration of the disability.

As plaintiff’s injury is to the hand and as compensation for the total loss of the use of a hand is fixed by the statute at 150 weeks, no compensation can be granted plaintiff beyond that period.

James vs. Spence & Goldstein, Inc., 151 La. 1108, 109 South. 917.

As to the allowance of $75.00 for medical service, we think that is correct. Physicians employed by defendant treated plaintiff for some time and discharged him. He was not cured. He then procured the services of Doctor Cappel who treated him for three months and made a charge of $75.00. Under the law plaintiff is entitled to medical services for an amount not exceeding $250.00. It is not shown that defendant expended tiiis amount there is no suggestion that the. amount of $75.00 allowed by the court, iplus that already expended by defendant, will exceed the amount .fixed by the statute.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to award plaintiff compensation during disability, not exceeding one hundred and fifty weeks, and, as thus amended, that the judgment be affirmed with costs.


author: Webb, J.,

text:
    No. 2891
    Second Circuit
    JACKSON v. YOUNG
    (June 2, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 154, 156, 157.
    The operation of a gas pipe line is the putting into operation of the gas well, and, therefore, section 1, sub-section 2(a), of Workmen’s Compensation Act (Act 20 of 1914), having reference to hazardous occupations applies to the operation of the gas pipe line irrespective of who owns the gas well.
    2. Louisiana Digest — Master and Servant —Par. 156.
    The construction of a gas pipe line from the standpoint of money and work is the major portion of the business of transporting gas. Therefore, the principal engaged in such, business is responsible under the Workmen’s Compensation Act (Act 20 of 1914), for compensation to the injured employee regardless of whether the work be for it or someone else.
    3. Louisiana Digest — Master and Servant —Par. 159, 159a.
    Injured employee, suing for compensation under the Workmen’s Compensation Act (Act 20 of 1914), who had received a simple fracture of one of the bones of the leg which resulted in a stiff ankle joint is entitled to recover 60 per cent of the difference of what he can earn and what he actually earned at the time of the accident, during the period of disability, not exceeding 288 weeks where 12 weeks were allowed for total disability during period of recovery, no - allowance being made for reduced earning capacity due to the disease of syphilis.

      4. Louisiana Digest — Master and Servant Par. 154, 160b, 160>h.
    Section 33 of Act No. 20 of 1914, the Workmen’s Compensation Act, requiring a lump sum settlement by reason of defendant’s failure to pay six successive installments as they become due, applies only when such failure occurs after judgment is rendered.
    5. Louisiana Digest — Judgment—Par. 36.
    A judgment cannot be rendered in favor of a defendant and against the warrantor who acknowledged service and waived citation where no preliminary default had been previously entered against the warrantor.
    ON MOTION FOR NEW TRIAL
    6. Louisiana Digest — Pleading—Par. 71, 125.
    Where counsel objects to trial of the case on the merits before an exception no cause of action is disposed of, if he does not object to testimony beyond the petition at the trial of the exception and the case on the merits, this evidence will have the effect of enlarging the petition, thus making it necessary to give judgment for plaintiff although the exception no cause of action would have been sustained.
    7. Louisiana Digest — New Trial — Par. 2, 9. New trial will not be allowed where judgment is in accordance with the evidence adduced and the law governing the case.
    Appealed from the Second Judicial District Court of Louisiana, Parish of Bossier. Hon. T. F. Bell, Judge.
    Action by James Jackson against C. C. Young, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Drew & Wallace, of Minden, attorneys for plaintiff, appellee.
    F. G. Thatcher, of Shreveport, attorney for defendants, appellants.
   Webb, J.,

recused.

ODOM, J. We find in the record the' written opinion of the district judge, in which we concur. We note that the district judge also wrote an opinion on the application for new trial. Both" of which we quote in full:

“This suit arises under the compensation law, and in plaintiff’s petition it is alleged that plaintiff was employed as a driver of teams for the partnership of Young & Whittington, that said Young & Whittington were working for the Palmer Corporation; that plaintiff while in actual .employment of said Young & Whittington and while stringing pipe for said corporation in Bossier parish, was injured while in the course of his employment. Then follows the allegations in regard to the injury and extent of same. Petition was filed on September 5, 1924. On March 18, 1925, plaintiff Palmer Corporation filed an exception of no cause of action and on December 1, 1924, defendant C. C. Young and J. W. Whittington filed an exception of no cause of action. On March 18, 1925, ;all defendants filed answers, and on the same date, March 18, 1925, the case was ■tried without either defendants insisting on a decision of the exception of no cause of action. The defendant, Palmer Corporation, now insists on a decision on the exception of no cause of action without going into the merits of the case, the meaning of the exception being that the plaintiff has nowhere alleged any facts which would bring the defendant Palmer Corporation under the compensation law. This is absolutely cor: rect, and if we had to decide the exception only on the allegations of the petition it would necessarily be sustained, but none of the defendants insisted on a decision of the exceptions prior to a hearing on the merits, and we are unable to find in the record in this case anywere any objection made by any of the defendants to an enlargement of the pleadings by the evidence; so at this time we think it is; proper to decide this exception not on the petition alone, but on this petition as enlarged by other pleadings and; the evidence.
“The defendant Palmer Corporation contends that even under the evidence it is not shown that there is any liability as to the Palmer Corporation, for two reasons, both of which we shall discuss together, they being: first, that there is no allegation or proof that the Palmer Corporation was engaged in a hazardous business, trade or occupation; second, that petitioner was not working for the Palmer Corporation, but was working for an independent contractor, and there is no allegations of the answer of the Palmer of a pipe line was a part of the trade, business or occupation of the Palmer Corporation. The petition merely states that plaintiff was engaged in stringing a pipe but does not show for what purpose that pipe was being strung. The proof shows that the pipe was being hauled and strung along a line that was being constructed for the purpose of transporting gas. The allegedatlons of the answer of the Palmer Corporation show that defendant Palmer Corporation was engaged in the construction of a gas pipe line from the Webster parish gas field to a connection with a gas pipe line belonging to the Palmer Corporation running from the Elm Grove gas field to Shreveport and north; that the Palmer Corporation neither owned • nor operated any gas wells in said Webster parish but bought gas in said field and transported same through the said pipe lines. Then the question presented on this phase of the case is, whether or not the Palmer Corporation comes under the terms of the compensation law.
“Section X, subsection 2, subdivision A, which is the portion of the statute specifying the hazardous occupations, nowhere specifies pipe lines, either gas or oil, and unless this suit falls under, in some way, the cited section of the statute, no recovery can be had. The only part of subdivision A which could possibly cover the present case is as follows:
“ ‘The operation, construction, repair, removal, maintenance and demolition of * * * oil, gas, sulphur, salt or other wells * * * .’
“The case must be judged by the business of the defendant rather than the particular work the plaintiff was doing at the time he was injured. The Palmer Corporation owned no gas wells, was not drilling any, and unless it can be said that it was engaged in the operation of gas wells, by reason of the fact that it was transporting the output of gas wells, then we do not think it comes under the statute. The only case in the Supreme Court that we think has any material bearing on this question is that of Durrett vs. Woods, 155 La. 533. In that case, Woods was the hauling contractor and Durrett was working for him. Woods was doing a general hauling business in the oil fields, hauling pipe, machinery, derrick timbers, etc. He had no direct connection himself with the drilling of wells, but merely was an independent contractor hauling the material that went into 'the drilling of such wells. The court stated:
“ ‘The defendant had nothing to do with the drilling of an oil or gas well, nor with the construction, erection, maintenance, repair, operation, or demolition of oil or gas wells, nor with the placing or laying of pipe, with the erection of the derricks; but his business did include the hauling of logs, timber and lumber, and drill rigs, and the placing of same on the ground, and the hauling of machinery and appliances to be used in connection with the erection and operation of oil and gas wells, and that was his exclusive business in the oil fields. It goes without saying that no oil or gas well could be constructed and operated without the logs and timbers for the derricks and without the machinery and other appliances. Therefore the furnishing of same and the placing of same upon the location for the well was to all intent and purpose the initiation, the beginning, and a part of the construction and erection and putting in operation of an oil well within the meaning of the statute.’
“To use the same wording practically as the court above used, that is:
“ ‘It goes without saying that no gas well could be operated as a commercial proposition without a gas pipe line connecting that well to the point of delivery of the gas.’
“a gas well without a pipe line cannot be operated as a commercial well, for without such pipe line that well must either lay dormant or blow its gas into the open air; we therefore think that the operation of a gas pipe line is the putting in operation a gas well and it comes under the statute irrespective of who owns the gas well.
“It is true, in the case of Durrett vs. Woods, 155 La. 533, 99 South. 430, the court did not limit its reasons to those we have quoted, and it may be said that the quoted portion of that case is somewhat obiter; but the court did give such reasons as one of the bases for its judgment.
“In the case of Jones vs. Louisiana Oil Refining Corporation, Court of Appeals pamphlet No. 6, page 88 (3 La. App. 85) that court cited the case of Durrett vs. Woods as its authority for its judgment.
“We have had numerous cases under the compensation law against pipe line companies. For instance, the Standard Pipe Line Company and the Shreveport Eldorado Pipe Line Company, neither of which owned any oil wells, and in none of those cases has there been any contention but that they fall under the operation of the compensation law. It remained for ingenious counsel in this case to raise the point, but as we think that the transportating of gas through pipe lines is a necessary part of the operation of gas wells, that such business comes under the statute.
“The plaintiff in this case was not working for the Palmer Corporation. The Palmer Corporation employed the Pine Isl- and T'eaming Company as an independent contractor to haul and string the pipe in question. The Pin? Island Teaming Company sublet portions of the work to other parties; the plaintiff was driving for either the partnership of Young & Whittington or for C. C. Young, and the additional question remains as to whether the Palmer Corporation is responsible under the statute.
“In the case of Shipp vs. Bordelon, 152 La. page 795, 94 South. 399, it was said:
“ ‘Hence we see that is not enough that the employee shall be performing work of the character falling within the designated trades, businesses, or occupations, but it must be done “in the course of the employer’s trade,” etc., in certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged' in that line of work as a trade, business or occupation, in order that the act may apply. It is not pretended that the defendant was engaged, as a trade, business or occupation, in the building, repairing, etc., of houses or other structures; but merely found it necessary to repair a certain building on his farm. If it be said that he was engaged in farming as an occupation, and the work was being performed in connection therewith, or was an incident thereto, then reference to the statute discloses that agriculture or farming is not one of the occupations specifically named as hazardous or that it is in its nature hazardous.
“ ‘We agree with counsel that it is not required, under our law, that the business of the employer must be exclusive, for one may have a dozen trades, businesses or occupations; but to become liable for compensation he must be actually so engaged, as a trade, etc., and it is not enough that the work done should be hazardous if it be not also incident to or in the course of the trade, business or occupation of the employer which is within itself hazardous under the statute.’
“If the construction of the pipe line was merely an incident to the transportation of- gas, then it cannot be said that the Palmer Corporation was undertaking ‘to execute any work which is a part of his trade, business or ' occupation.’
“It is admitted in the answer that the Palmer Corporation was engaged in the erection of a gas pipe line to be used for the purpose of transporting gas. In order to hold the prinicpal responsible it is not necessary that such principal be engaged in some particular business for other people, but if the principal is engaged in such work as part of its trade, business or occupation, whether it be for • itself or some one else, it is responsible.
“We do not think that it can be said that the construction of a pipe line is merely an incident to the business of transporting gas. The construction of such a line from the standpoint of money and work is the major portion of such a business.
“The only case in the Supreme Court involving this phase of the question is that of Helton vs. Tall Timber Lumber Co. 148 La. 180, 86 South. 729, in which the court stated:
“ ‘The plaintiff sues under the Workmen’s Compensation Act for the death of her husband, who was killed by a falling branch while he and other men were at work clearing a right of way for a railroad to be constructed by defendant company. Though plaintiff’s husband’s contract was with an independent contractor who had charge of this clearing, the defendant company is liable (under section 6 of said act) if plaintiff’s husband was an employee, and not, as contended by defendant, an independant contractor.’
“There is very little discussion in that case, but the facts showed that the lumber company had undertaken to build a railroad, and let out a part of the work to another. Contrasting that case with the present case, the building of a railroad by a lumber company was nót near as large a portion of its major work as is the building of a pipe line by a pipe line company. If the Palmer Corporation had not been engaged in the construction of the line itself, then the situation would be different; but we think that the evidence and pleadings taken together in this case are sufficient to show that the Palmer Corporation was engaged in the construction of the pipe line as a part of its trade, business and occupation, and is therefore responsible under the statute for injury to an employee of an independent contractor.
“The next question to be determined is whether or not the plaintiff was working for C. C. Young or for the partnership composed of J. W. Whittington and C. C. Young. Without discussing the evidence on this point, to our minds it is plain that no such partnership existed, but that plaintiff was working for C. C. Young.
“The next question is the amount of recovery. Plaintiff received a simple fracture of one of the bones of the leg, some four to six inches above the knee joint, which .fracture, at the time of the trial, had entirely healed and was causing him no trouble whatever, but at the time of the trial, which was more than a year after the date of the accident, plaintiff- was suffering from a stiff ankle joint. Likewise from a general debilitated condition. The general debilitated condition, we think, was plainly brought about by syphilis. We further think from the evidence taken as a whole that he would, at the time of the trial, have been suffering from the effects of syphilis even if he had never received the injury. The stiff joint from which he was suffering, even at the time of the trial, is a result of the accident. The evidence shows that such stiffness, or loss of flexion, practically always follows a fractured bone even where the injury was not to the ankle joint itself, but in the normal person this joint stiffness would have disappeared in practically twelve weeks. The stiffness in the ankle joint was caused by the fracture and not by syphilis, but the stiffness has been aggravated and prolonged by his syphilitic condition. We therefore think that under the jurisprudence in this state the employer is responsible for the disability in the ankle joint, but is not responsible for his general weakened condition brought about by syphilis, a condition which would have existed irrespective of the accident. He is entitled to recover for full disability during the period of twelve weeks, at the end of which time he would have been able to do some work in spite of the stiff ankle joint if it had not been for his general weakened condition brought about by his syphilitic condition. After that time he is entitled to recover for a percentage of the difference in wages between what he was earning at the time of the accident and what he could have earned irrespective of his generally-weakened condition.
“He could work with the stiff joint, but could not make as. much money as he could have made if he did not have the stiff joint. His generally weakened condition prevented him from working steadily from day to day, and we think that the evidence shows that he-could have earned $1.50 a day, taking' into consideration his stiff ankle and. leaving out of consideration his gener-, ally weakened condition. This brings us to the question of the amount of wages he was receiving at the time of the accident. For some time prior to the accident he had been driving a team for the same employer in the oil fields of Arkansas, and had been receiving the sum of $3.50 per day. Just prior to the accident, a few days, these teams left the state of Arkansas and came to Louisiana and the employer "put them to work hauling pipe as heretofor set forth. Plaintiff had not made a pay day since coming to Louisiana,, and he testified that he had not received any notice from his employer of a cut in wages from the amount he had been receiving in Arkansas. Mr. Young, the employer, testified that he told all of his drivers just prior to moving to Louisiana, that if they came to Louisiana their wages would be $2.50 per day instead of $3.50 per day. Mr. Young did not testify that he specially directed this notice to the plaintiff, but directed it to all of the drivers, and that plaintiff was in the crowd at the time and that as a matter of fact he actually paid the other drivers only $2.50 per day for their work after they came to Louisiana. Under this state of facts we cannot see that plaintiff has shown that he was receiving $3.50 per day in the state of Louisiana, and as it was admitted that he was receiving $2.50 per day we must use this as a basis of recovery. The difference between his wages prior to the accident and what he could have earned after the accident was $1.00 per day or $6.00 per week. Under the compensation law as it existed prior to 124 he is entitled to recover sixty (60) per cent, of the difference. Under section 8, subsection C, this plaintiff is entitled to recover the sum of $3.60 per week during disability for a period not exceeding 288 weeks, and likewise entitled to recover the sum of $15.00 per week for a period of 12 weeks, total disability.
“Plaintiff asked that he be paid in a lump sum by reason of the defendant’s failure to pay the six successive installments as they became due. This is evidently based on section 33 of the act, but under this section the failure to so pay applies only when such failure occurs after a judgment rendered.
“Defendant Palmer Corporation asked for a judgment in warranty against the Pine Island Teaming Company and L. W. Boynton and Ike Muslow, composing the partnership of the Pine Island Teaming Company, and likewise against the said Whittington and the said Young. Under the order granted, only L. W. Boynton and Ike Muslow were cited, but as Young and Whittington were already parties defendant, we do not think there was any necessity for citation as to them. As to the Pine Island Teaming Company, service was acknowledged and citation waived by L. W. Boynton, defendant Palmer Corporation thus using the ordinary process of service and citation. Having done this, a preliminary default was necessary in order to take judgment against them. No preliminary default has ever been entered according to the minutes in this case and therefore no judgment can be rendered in favor of the Palmer Corporation and against the Pine Island Teaming Company.
“For the foregoing reasons, the law and the evidence being in favor of the plaintiff, and against the defendants, it is ordered, adjudged and decreed that James Jackson do have judgment against C. C. Young and Palmer Corporation in solido for compensation at the rate of $15.00 per week for a period of twelve weeks with legal interest on each weekly payment, from September 24, 1923, and weekly thereafter, and further compensation at the rate of $3.60 per week during disability, not to excess 288 weeks, with legal interest thereon from the date due of each payment. It is further ordered, adjudged and decreed that defendant Palmer Corporation do have like judgment over and against C. C. Young, reserving its right against the Pine Island 'Teaming Company and Ike Muslow and L. W. Boynton.
“It is further ordered, adjudged and decreed that defendants C. C. Young and the Palmer Corporation pay all costs of this suit. Done, reád and signed in open court on this, the 19th day of June, 1926.
(Signed) “T. F. BELL,
“Judge.”

ON MOTION FOR NEW TRIAL FILED BY DEFENDANT PALMER CORPORATION

“Defendant Palmer Corporation pitches its motion for a new trial on two points: first, that the court erred in overruling the exception of no cause of action, and., second, that the court erred in holding the Palmer Corporation responsible on the facts of this case.
“Taking these up in order:
“Counsel for defendant Palmer Corporation strenuously contends that the court erred in holding as follows:
“ ‘The defendants Palmer Corporation now insist on a decision on the exception of no cause of action without going into the merits of the case, the meaning of the exception being that the plaintiff has nowhere alleged any facts which would bring the defendant Palmer Corporation under the compensation law. This is absolutely correct, and if we had to decide the exception only on the allegations of the petition it would necessarily be sustained, but one of the defendants insisted on a decision of the exceptions prior to a hearing on the merits, and we are unable to find in the record in this case anywhere any objection made by any of the defendants to an enlargement of the pleadings by the evidence, so at this time we think that it is proper to decide this exception not on the petition alone, but on this petition as enlarged by other pleadings and the evidence.’
“It may be possible that the court did err in considering the allegations of the answer along with the allegations of the petition, but if we had the right to consider the" evidence unobjected to, together with the allegations of the petition, we think the same result is obtained.
Counsel seems to think that the court held that defendants waived its rights under the exception of no cause of action by going to trial without insisting on a decision on such exception prior to the hearing on the merits, but we had no intention of making such a ruling, and do not think that we did make such a ruling. If such had been our intention we would have refused to have considered the exception of no cause of action at all, and the opinion in this ease shows that we did consider it.
“If it be true, as contended by counsel for defendant, that the exception of no cause of action must be considered on the allegations of the petition alone, and that court cannot consider the evidence in the case as enlarging such a pleading, then the exception should be sustained.
“Counsel has cited numerous authorities along this line, some of which hold such a doctrine, but all of them are prior to the case of Bell vs. Globe Lumber Company, 17 La. 725, 31 South. 994. Counsel for defendant has very sharply criticised the doctrine announced in the Globe Lumber Company case, and states that it stands alone, and is contrary to the entire jurisprudence of the state from early days to the present time. It is true that it is contrary to some of the jurisprudence of this state prior to the time it was decided, but we know of no case in which it has been overruled, either expressly or impliedly. The cases of Bijou Company vs. Lehmann, 118 La. 956, 43 South. 632; South Louisiana Land Company vs. Riggs Cypress Company, 119 La. 193, 43 South. 1003; State ex rel Barlhe vs. Mayor of New Orleans, 130 La. 195 (all three cases are all that are cited by counsel for defendant decided since they decided the Globe Lumber Company case) so far as we can see has not overruled in any way the doctrine announced in the Globe Lumber Company case.
“Whatever we may personally think of the doctrine announced in the Globe Lumber Company case, it is the law so far as this court is concerned, and we do not feel that we have the power to overrule any decision of the Supreme Court.
“On the trial of the case, counsel made no objection to any testimony as being ultra petitionem, and when counsel for defendant was offering his own testimony he made no reservation whatever, and if we are to give any weight to the doctrine announced in the Globe Lumber Company’ case, we think the exception of no cause of action must be decided upon the petition as enlarged by the evidence without objection or reservation. So if defendant Palmer Corporation is liable at all, we think the exception of no cause of action was properly overruled.
“Coming to the second point raised in the motion for new .trial, we held the Palmer Corporation liable under the doctrine announced in the case of Durrett vs. Woods, 155 La. 533, 99 South. 430. Counsel for defendant Palmer Corporation has very strenuously argued that this decision has no bearing upon, the present case and is very easily distinguished from the present case. We gave our idea along this line in our original opinion, and no good purpose can be served by rehashing what was there said. We merely disagree with counsel and do think that this is governed by the Durrett case.
“For the foregoing reasons, the motion for new trial filed by the Palmer Corporation is overruled.
(Signed) “T. F. BELL,
“Judge.”