text:
    No. 2331
    Second Circuit Appeal
    MRS. MYRTLE R. FINCHER v. MEYER-GREENWALD CONSTRUCTION CO.
    (June 30, 1925, Opinion and Decree.)
    (July 11, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Damages—Par. 103.
    Six hundred dollars is sufficient damage for an injury to the right side which caused a scar but no other serious con sequences.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Second Judicial District Court of Louisiana, Parish of Webster, Hon. -John S. Richardson, Judge.
    This is a suit to recover damages for an injury. The sole question is the amount of damage.
    There was judgment for plaintiff and defendant appealed.
    Judgment reduced and affirmed.
    Drew & Drew, of Minden, attorneys for plaintiff, appellee.
    Stubbs, Theus, Grisham and Thompson of Monroe, attorneys for defendant, appellant.
   CARVER, J.

Defendant, a partnership, appeals from a judgment awarding plaintiff $1,000.00 for personal injuries caused by the felling of a tree by defendant’s employees.

Defendant does not dispute liability, but claims that the judgment is excessive.

Plaintiff was riding in an automobile when the tree fell on it and her.

She received a wound about an inch above the umbilical line on the right side, the wound being about three - fourths of an inch long, about one inch deep and penetrated into the fat tissue but not to the abdominal cavity or to the muscles.

The wound healed up but left a jagged scar.

Her husband says that, in addition to this wound, she was bruised in the 9,rm, shoulder and leg and also a small place in her head.

The doctor was not asked about these bruises.

She suffered considerably from nervousness, and fright, and also bled profusely.

Doctor Crutsinger testifies—

“As I remember Mrs. Fincher was in a state of mild shock due to an apparent accident. She had a slight laceration in the abdomen at about one inch above the umbilical line on the right side; pulse one hundred and two (102); respiration, irregular, shock type — the respiration some times called hysterical respiration apparently due to fright and fear. I believe that I saw her some sixty (60) minutes after the accident.”

On this visit he remained about an hour and a quarter, then visited her again three or four hours later that same night, and again the next morning. After this he did not visit her but called up to inquire of her condition by telephone frequently thereafter.

Plaintiff was expecting motherhood and reared an abortion. Fortunately this did not occur, and at the proper time, a little less than a month after the accident, she gave birth to' a normal child.

She remained constantly in bed about four days, getting up a little on the fifth day but apparently spending most of her time in bed for six or eight days and in the house thereafter u.ntil recovery from the birth of the child.

The doctor found it necessary on his first visit to give her a hypodermic of one quarter of a grain of morphine and one fiftieth of a grain of atropine, and thereafter gave her forty-grain doses of bromide for four days.

The doctor says that at the end of four days he felt no apprehension of serious consequences.

No lasting injury was suffered beyond the scar, which is in a place covered by. the clothing.

Defendant cites the case of Stewart vs. Arkansas Southern Ry. Co., 112 La. 764, 36 South. 676.

Plaintiff’s injury in that case, as described by the court, was as follows:

“Plaintiff as a witness examined under commission testified that she felt a pain in her back immediately after the accident and that on her arrival at Jonesboro, about 15 minutes after the accident, she suffered from sick stomach and internal pains; that she was taken to her home; that the next day she had hemorrhages. She suffered about a week and at the end of the week had an abortion. She was confined after the abortion, about two weeks, and since that time she says she had not enjoyed good health.
“It may as well be stated here that when she testified, she, a second time expected to be a mother, and had been in an interesting condition for some time. This would go far toward showing that the ill effects of the abortion were not as permanent in effect as she thought, as she soon after the abortion was again expected to have a child.”

The court in that case reduced the damages, which tbe jury had fixed at $2,500.00. to $1,000.00.

In the case at bar, the plaintiff received a wound, which the plaintiff in the Stewart case did not; but on the other hand Mrs. Stewart actually suffered an abortion, whereas the plaintiff in this case did not.

On the whole, it seems to us that an allowance of six hundred dollars would be sufficient .compensation in this case.

The judgment of the lower court is amended by reducing the same to six hundred dollars and, as thus amended, it is affirmed.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant applies for a rehearing on the grounds that our decree having reduced the amount of the judgment rendered by the lower court from $1000.00 to $600.00 it should have taxed the costs of the appeal against plaintiffs, appellees.

The error complained of is oen apparent on the face of the papers and can be corrected without granting a rehearing.

For these reasons, it is ordered, adjudged and decreed that our former judgment be amended so as to read as follows:

The judgment of the- lower court is amended by reducing same to six hundred dollars, and as thus amended it is affirmed; the costs of the appeal to be paid by plaintiffs, appellees.

And having thus corrected the error complained of, the rehearing asked for is refused.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2433
    Second Circuit Appeal
    STATE EX REL. ALLEN R. GENTRY v. JOHN F. STEPHENS AS JUDGE, ETC.
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Costs—Par. 22.
    The true intent of the act, dSTo. 156 of 1912, Section 2, is not that “on presentation of such affidavit it shall be the duty of the District Judge * * * to enter an order,” but that on presentation of such affidavit it shall be the duty of the District Judge to make inquiry into the facts of the case, and if, from such examination, he is convinced that the affiant is unable to pay costs or give bond for costs, he shall enter an order permitting the applicant to litigate without the payment of costs previously or as they accrue and without giving bond for such costs.
    • Application of the State on the relation of Allen R. Gentry for writs of mandamus and certiorari directed to Honorable John F. Stephens as Judge of the Tenth Judicial District Couijt of Louisiana in and for the .Parish of Natchitoches.
    This is a suit to compel the District Judge to grant an order permitting relator to file and prosecute a suit in forma pauperis.
    Application denied.
    James W. Jones, Jr., attorney for relator.
    S. R. Thomas, attorney for respondent Judge.
   REYNOLDS, J.

This is a proceeding brought for the purpose of compelling John F. Stephens as Judge of the Tenth Judicial District Court of Louisiana in and for the parish of Natchitoches to grant an order permitting relator to file and prosecute a suit in the District Court of Natchitoches parish in forma pauperis as provided by Act No. 156 of 1912 and amendments thereto.

The respondent Judge filed an answer in which he says in part:

“Further answering said article your respondent shows that after the presentation of said petition, that respondent investigated the liability of the said A. R. Gentry to advance costs and execute whatever bond might be necessary, and that upon such investigation, respondent became convinced that the said A. R. Gentry could advance costs and execute the necessary bond; that in addition to information received from talking with various citizens as to the ability of said Gentry to execute the bond, or advance the costs, respondent learned that said Gentry owned One hundred and twenty acres of land and some personal property, which was of a value in excess of any mortgage indebtedness existing against it; and being convinced from such investigation of the records and from information received from reliable sources and from inquiry into the facts of the case that said plaintiff was' able to pay costs, or to give bond for same, your respondent refused to enter an order permitting the applicánt to institute the suit in forma pauperis. Except as admitted each and every allegation of fact contained in article 6 of relator’s petition is denied.”
“Answering article 7 of relator’s petition, respondent shows that the said relator is an able bodied man, in the full vigor of manhood, can and does work, and earns fair wages; that the said relator goes well dressed and appears prosperous; being the most prosperous appearing and best dressed man in his neighborhood; that before denying the relief requested, respondent had due regard to the nature of the cause of action, the prospective costs and the meansD of the litigant to make payment of costs or provision for the payment of the same.”
“Further answering, respondent avers that he is absolutely convinced that by reason of his refusal to sign the order, the defendant will suffer no injury whatever, but that he can and will advance whatever costs or execute whatever bond may be necessary if he really wants to file such proceeding.”

In support of his finding as to relator’s ability to pay costs or give security for payment thereof respondent Judge attaches to his answer the affidavits. of B. S. Swett, Clerk of the Tenth Judicial District Court of Louisiana in and for the Parish of Natchitoches and A. R. O’Quinn, a deputy sheriff of the Parish of Natchitoches, as follows:

“State of Louisiana,
“Parish of Natchitoches.
“Before me, the undersigned authority, personally came and appeared B. S. Swett, Clerk of Court of Natchitoches parish, Louisiana, and A. R. O’Quinn, deputy Sheriff of Natchitoches parish, Louisiana, each of whom being by me first duly sworn, deposes and says.
“That he is well acquainted with A. R. Gentry, relator in suit against Hon. J. F. Stephens, Judge; that from information received from reliable sources and from the general appearance of said Gentry he is convinced that said Gentry can advance the necessary costs or furnish necessary bond in any suit he might wish to bring.
B. S. Swett.
A. R. O’Quinn.
“Sworn to and subscribed before me this the 22nd day of June, 1925.
J. A. Gannon, Notary Public.”
(seal)

Upon these issues the 'question for this court to decide is whether or not the court has the right to review the finding of fact of the District Judge who has made inquiry into relator’s ability to pay costs or give bond for costs and found from such examination the relator is able to pay costs and give bond for. costs.

Counsel for relator quotes section 2 of Act of 1912 as follows:

“Section 2 of Act 156 of 1912 states that ‘on presentation of such affidavit, it shall be the duty of the District Judge * * * to enter an order’ permitting him to litigate under the terms of this act.”

This quotation from ’ Section 2 of Act 156 of 1912 is like the' play of “Hamlet” with Hamlet left out.

The true intent of the act, No. 156 of 1912, Section 2 is not that “on presentation of such affidavit it shall be the .duty of the District Judge * * * to enter an order,” but that on presentation of such affidavit it shall be the duty of the District Judge to make inquiry into the facts of the case and if from such examination he is convinced that the affiant is unable to pay costs or give bond for costs he shall enter an order permitting the applicant to litigate without the payment of costs previously or a's they accrue and without giving bond for such costs.

The true intent of the act, we think, is that the District Judge shall make inquiry into the applicant’s ability to pay costs or give security for their payment and after he has made such inquiry his discretion in permitting or refusing the application cannot be disturbed in the absence of a showing that he had abused his discretion.

The matter of granting or refusing the order is within the sound legal discretion of the District Judge and in the absence of a showing to the contrary it is impossible for us to decide on what evidence his finding was based; and we cannot say he has abused his discretion for we cannot know on what evidence, disclosed by his investigation, he has based his conclusion that the relator was able to pay costs or give bond for costs.

Counsel for relator cites us to the case of Lofton vs. Frost-Johnson Lumber Co., 133 La. 644, 63 South. 252. That case has no application to the one at bar, for there it was admitted that the plaintiff was a pauper. He had entered into a contract with his attorney whereby his attorney was to receive one-half of any amount recovered in the suit as his fee, and the question presented was whether or not that fact deprived plaintiff of the benefit of Act 156 of 1912.

Counsel for relator also cites us to the case of Beuhler vs, Beuhler Reality Co. Inc., 155 La. 319, 99 South. 276. That case likewise has no bearing on ithe one at bar, for there the question was the right of plaintiff to prosecute an appeal without furnishing bond when she had previously been granted the right to sue in forma pauperis.

We have carefully read the cases of — .

Fils vs. Iberia & St. Martin Ry., 145 La. 554, 82 South. 697.

White vs. Walker, 136 La. 464, 67 South. 332.

Smith vs. Lyon Cypress Co., 140 La. 507, 73 South. 312, cited by counsel for relator; but these cases, in our opinion, like the two first above referred to, are not on a parity with the case at bar and have no application to the question here presented; for here the District Judge made the examination as to the relator’s ability to pay costs or give bond for costs required by the act, and his finding from such examination was that the relator was able to pay costs and give bond for costs.

Relator’s application for writs of mandamus and certiorari must, therefore, be denied.


author: ODOM, J. REYNOLDS, J.

text:
    No. 2332.
    Second Circuit Appeal.
    T. J. O'DONNELL v. FORTUNA OIL COMPANY
    (June 27, 1925, Opinion and Decree.)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 159, 159 (a).
    Under Clause C of Subsection 1 of Section 8 of Act No. 20 of 1914, the Employers’ Liability Act of Louisiana, as amended by Act 43 of 1922, a judgment allowing compensation during the period of disability but not exceeding 300 weeks is correct. The court can not speculate on probabilities and allow compensation for five months where the evidence shows that the plaintiff will probably recover in that time.
    (The recent amendment is Act 216 of 1924. Editox’s note.)
    2. Louisiana Digest — Master and Servant— Par 154, 159.
    More compensation is allowed under Section 8, Subsection 1 (c), of Act 20 of 1914, where a finger, etc., is disabled than under Section 8, Subsection 1 (d), where it is amputated, but this is xxot necessarily axx injustice.
    3. Louisiana Digest — Master and Servant— Par. 154, 160 (a).
    The court has not the right under Act 20 of 1914, the Workmen’s Compensation Act, to say that an injured employee must undergo an operation.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    • This is a suit to recover compensation under the Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      Huey P. Long, attorney for plaintiff and appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, attorneys for defendant and appellant.
   ODOM, J.

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

Plaintiff was employed hy defendant at a weekly wage of $42.00.

On August 13, 1924, while at work, he received injuries to his left hand which, he claims, have permanently partially disabled him to do work of a reasonable character; and he sues for compensation at $20 per week, for 300 weeks.

Defendant answered admitting that plaintiff was employed by it and was injured' by having a splinter stuck through the' middle finger of the left hand, and admitting that it paid plaintiff compensation at $20.00 per week for four weeks and that it declined to make further payments for the reason that plaintiff had recovered from his injuries and had been discharged by his physician.

Defendant especially denied that plaintiff is at this time suffering from any disability on account of said injuries.

There was judgment in the , lower court awarding plaintiff compensation at $19.50 per week during disability, not, however, beyond 300 weeks. Defendant has appealed.

OPINION.

Plaintiff received the injury to his hand August' 13, 1924.

The case was tried in the District Court on December 11, 1924, and the Judge of the District Court found that plaintiff, at the time of the trial, was partially disabled and awarded him compensation during disability, not exceeding 300 weeks. '

We have carefully read the testimony and our conclusion is that his judgment is correct.

Even the physician called by defendant agreed that the plaintiff at the time of the trial was suffering some disability.

But a discussion of the testimony as to plaintiff’s condition at the time of the trial is made altogether unnecessary as we find that there is no disagreement on that point.

Counsel for defendant say, in brief:

"The point is that, according to all experience and the law of probabilities as disclosed by the testimony of the physicians, the injury to the finger was temporary and would pass within five months, at the outside, from the date of the trial, that is, with proper use and care and some mental assistance on the part of the plaintiff. The injury is alleged to have occurred on the 13th day of August, 1924. The trial was on December 11,. 1924, four months after the accident. It is our contention that, according to the overwhelming preponderance of the evidence, .the plaintiff should have been awarded compensation for not exceeding nine months or thirty-six weeks, less, of course, the four weeks compensation paid him on the basis of total disability up to the time he was discharged by the hospital as being able to return to work.”

It will thus be seen that it is not disputed that plaintiff was disabled to some extent on the date of the trial.

But defendant contends that the testimony shows plaintiff’s injuries are only temporary and that the court should have fixed definitely a period over which he should receive compensation.

Able counsel say, in brief, that it is a misinterpretation of clause (c) of Section 8 of the compensation act as to hold that when the testimony shows that an employee has received injuries from which he is paritally disabled to do work of any reasonable character the only judgment ' which may he rendered is one of compensation for an indefinite period, not to exceed the limit fixed by law.

Clause (c) of subsection 1 of section 8 of the Workmen’s Compensation Act as amended by Act No. 43 of 1922, which was the act in force when the plaintiff was injured, reads as follows:

“(c) Por injury producing partial disability to do work of any reasonable character, sixty per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn therafter during the period of disability, not, however, beyond three hundred weeks.”

This language is clear and unambiguous. If the employee is partially disabled he is entitled to compensation “during the period of disability”, not, however, for more than three hundred weeks; but it is perfectly clear that he shall receive compensation during the period of disability.

Counsel, of course, do not contend that the employee should not be awarded compensation during the period of his disability, but it is contended that the court should fix the period of disability, and in the present case they say, in brief, that according to

"all experience and the law of probabilities”

as shown by the testimony of the physicians, the injury to the finger would pass

“within five months, at the outside, from the date of the trial”

and they suggest that the court should have allowed compensation for not more than nine months — for the four months from the date- of the injury up to the trial and for a- period of five months subsequently to the trial.

The admission that plaintiff’s recovery within a certain length of time is only “probable” and the statement that according • to the law of probabilities he will recover the full use of his hand within five months- from the date of the trial, is absolutely fatal to counsel’s contention.

The court must not speculate as to how long a person will be disabled. The greatest experts in the land cannot tell how long it will take a wound to heal. They can no more do that than a surgeon can tell whether an operation will prove fatal or be a success. Any opinion which might be given by a physician as to how long a patient will be disabled from a certain wound or condition of a member of the body would necessarily be speculative. An expert might be able to guess more accurately' than a layman, but his opinion would be a guess after all.

If the court fixed a definite period of disability in a case like this, it would necessarily indulge in. speculation, make a bald guess about a' matter over which expert medical men would probably differ very widely.

It is suggested that plaintiff's disability will not continue at most more than five months from the date of the trial. But who knows?

The lawmaker has provided that in cases of partial or total disability compensation shall be awarded during the period of disability and hag fixed the maximum but not the minimum period.

In all cases where it is shown at the time of the trial that an employee is then disabled on account of an injury and where it is reasonable to suppose from the evidence that the disability from that injury will continue for any length of time thereafter, the proper judgment for the court to render is one for compensation during disability, not beyond the maximum period fixed by the statute.

It is not proper for the court to fix a definite period during which an employee shall .receive compensation, in any case where in order to do so the court would have to conjecture or engage in speculation as to how long the disability will exist.

There may arise cases in which. the court would be warranted in fixing a definite period of disability. That could be doné in any case where the period could be fixed definitely under the testimony. It frequently happens that laborers are disabled, totally or partially, for a few weeks and recover and are able to return to work as sound and whole as ever before the day of trial; in which event it would be possible of course, for the court to determine definitely the period of disability. In a case like that, the court should fix the number of weeks during which compensation shall be paid.

Counsel comment on what they term “a monstrous injustice in the compensation act as construed by the District Judge” and they cite the fact that if this plaintiff had lost his finger entirely, that is, if it had been cut off, the maximum which he could have received under the act is $400.00, whereas .it is possible for him to collect under this judgment $5850.00 while his finger is still on his hand.

There is no “monstrous injustice” in the act as interpreted by the District Judge.

In the case at bar, if the plaintiff had had his finger cut off the wound would probably have healed within a few days and he could have gone back to work. It is possible that he would have suffered very little, if any, inconvenience or disability after the wound healed.

In the condition in which the finger and ■ hand were shown to be at the time of the trial he cannot use the hand in his work. If the finger had been cut off it would have been out of his way altogether but as it is, it is still attached to the hand and is stiff, tender and sore, and is therefore in his way and causes disability.

If a laborer gets his foot cut off he would be entitled to receive compensation under the statute equal to sixty-ñve per centum of his wages for 125 weeks, whereas if he gets his foot crushed it may remain sore and painful during the balance of his lifetime and render him unable to work except on crutches, thereby totally disabling him to do manual labor of any kind. In such a case he would receive compensation during his disability. There is no injustice or inequality in that. If the foot is cut off it is out of the patient’s way and he is left free of pain, and suffering and in position to use a substitute as many men do. It is infinitely better for a man to have his leg or arm removed entirely from his body than for it to be paralysed or injured and have to remain attached to the body as a . constant and perpetual hamper and menace to his activities.

True, the surgeon’s knife might easily relieve the patient of his burden, but who has the right to «ay to him that he must undergo an operation, fraught as operations always are with more or less danger ?

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

ON APPLICATION FOR REHEARING

REYNOLDS, J.

Defendant applies for a rehearing and earnestly insists that under the decision in Rogers vs. Thermatomic Carbon Co., 157 La. 193, 102 South. 304, we should fix. a definite time, less than twelve months, during which plaintiff should receive compensation.

We thoroughly agree, with the authority cited, and when at the time of the trial it can definitely be determined under the evidence that the disability will end in less than twelve months, judgment should be rendered accordingly; but in this case, ■agreeably to the evidence, we are convinced that it is humanly impossible to tell, with any degree of certainty, when plaintiff will recover from his injury.

As held in our former opinion herein, in all cases where at the trial it is shown that an employee has been disabled by an injury received in the course of his employment and that the disability will continue for an indeterminate period of time, the proper judgment is for compensation during the period of disability not beyond the maximum period fixed by the statute.

It is therefore ordered that the the, application for a rehearing be refused.


author: ODOM, J.

text:
    No. 2334.
    Second Circuit Appeal
    BANK OF WINNFIELD v. RED BAYOU OIL COMPANY, INC. ET AL.
    (June 30, Opinion and Decree).

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 109, 110.
    Where a bank writes a letter to each of the endorsers of a note stating that “It has been suggested by some of the endorsers that each endorser liquidate his share of the note and close up the business of the company,” it does not mean 'that the bank consented to a division of the debt, but each endorser is still liable in solido.
    This is a suit by the Bank of Winnfield to collect a balance due on a note.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Winn, Hon. F. E. Jones, Judge.
    Pearce & Fuller, attorneys for plaintiff, appellant.
    A. Leonard Allen; E. E. Kidd; Moss & Peters, attorneys for defendants, appellees.
   ODOM, J.

This is a suit by the Bank of Winnfield to collect a balance due on a note against John L. Calhoun, Liquidator of Red Bayou Oil Company, Inc., and against John L. Calhoun, S. J. Rockhold, L. A. Wilkinson, W. W. Allen, R. H. Fletcher, O. K. Allen W. A. Wright and A. W. Radescich.

John L. Calhoun, Liquidator, was cited but made no appearance, and default was entered against him as Liquidator

John L. Calhoun, individually, and all of the other defendants, filed answers, all denying any indebtedness to the plaintiff for reasons which will be discussed later in this opinion.

There was judgment in the lower court rejecting plaintiff’s demand against John L. Calhoun, individually, W. W. Allen, R. H. Fletcher, O. K. Allen, W. A. Wright and A. W. Radescich, and judgment in plaintiff’s favor against John L. Calhoun, Liquidator, of the Red Bayou Oil Company, Inc., and L. A. Wilkinson, in solido for $717.50, on half of the balance due on said note, and against John L. Calhoun, Liquidator, and S. J. Rockhold, in solido, for the other half of the amount due on this note.

From this 'judgment the plaintiff has appealed.

L. A. Wilkinson also asked for and was granted an appeal, both devolutive and suspensive; but we do not find that he perfected his appeal by giving. the bond required by law.

OPINION

ODOM, J. On January 13, 1919, the Red Bayou Oil' Company, Inc., represented hy John L. Calhoun, its secretary and treasurer, negotiated a loan of $5000.00 from the Bank of Winnfield and executed its note in favor of the Bank for that amount due February 12, 1919, hearing interest at 8% from maturity.

It seems that the Bank was not willing to advance the money to the Red Bayou Oil Company, Inc., without security and in order to enable the company to borrow t.he money, John L. Calhoun, S. J. Rock-hold, L. A. Wilkinson, W. W. Allen, R. H. Fletcher, O. K. Allen, W. A. Wright, and A. W. Radescich, all signed the' note on its face with the company.

The note reads, in part:

“Feby. 12, 1919, after date, without grace, I, we, or either of us, for value received, promise to pay to the order of Bank of Winnfield, Winnfield, La., five thousand dollars.”

In the printed portion qf the note it is provided that all -signers of the note are principals.

This note was not paid when due and another note was given as a renewal of the first one on October 14, 1921, and is made due January 1, 1922, and is for $5,590.00, including the amount originally borrowed and the accrued interest ther.eon.

This latter note is of precisely the same tenor as the first one and is signed by all the parties to the original note except S. J. Rockhold.

The plaintiff did not surrender the original note when the renewal note was given because, as we understand, one of the makers of it did not sign the renewal note; and the original note is attached to and made part of the petition along with the other note.

It seems that when the second note was given the Red Bayou Oil Company, Inc., was undergoing liquidation. At any rate, the second note is signed by “John L. Calhoun, Liquidator”.

The note was not paid at maturity. The Bank became anxious about its payment and there was evidently some negotiations among the individuals who signed the note looking to its payment. At any rate, the bank wrote the following letter and mailed a copy to each of the parties to the note, to wit:

“Winnfield, La,, 1-23-22.
“Mr. J. L. Calhoun.
“M. W. W. Allen.
“M. R. H. Fletcher.
“Mr. W. A. Wright.
“Mr. L. A. Wilkinson.
“Mr. A. W. Radescich.
“Mr. Rockhold.
Gentlemen:
The Red Bayou Oil Co., note has been in past- due since 1-22-22, amounting to $5,590.00.
It has been suggested by some of the endorsers that each endorser liquidate his share of the note and close up the business of the company . This would amount to $698.75 for each of the endorsers. We think this is the proper course to follow, and we will thank each of you' for your early attention to the matter. We have carried the paper a long time, and we welcome the suggestion to liquidate it.
“Yours Truly,
B. W. Bailey, Pres.”

The parties named in the letter are the individual signers of the note.

Three months- later six of these eight individuals went to the bank and collectively paid $4,155.00, and that amount is credited on the back of the note as of date “4 — 27—22”.

Whether these six went to the bank all at the same time or during the same day is not clear, hut the total amount paid by them is credited on the note as a lump sum under date of April 27, 1922.

However that may be, the facts are that each of these six' individuals paid what was figured to be his pro rata or one eighth part of the amount due.

One of the others signed a note and gave a check for his pro rata of the debt, but the note was later returned to him.

After the'payment of the $4,155.00 on the note by the six individuals, there was left a balance of $1435.00 due thereon, which is the amount sued for.

The Bank brings this suit .against the Red Bayou Oil Company, Inc., and against the individual signers of the note, including the six who paid, asking for judgment against them in solido.

The six individuals who made the payment on the note deny liability for the balance, on the ground, as they contend, that the Bank divided said debt into eight shares and that plaintiff accepted' payment from each of those defendants in the sum of $717.40 in full settlement of the amount due by each of them and “that said payment was and is a full payment of the share of said obligation allotted to each' of your defendants and was so accepted by the said Bank, and in consequence of said acceptance and division of the aforesaid acceptance your defendants have been released in law and fact from any further .obligation on the notes sued upon.”

The defendant Rockhold, who signed the first note but not the second one, denies indebtedness on the ground that the first note was liquidated by the giving of the second note and that he was released from the debt.

L. A. Wilkinson defends on the ground that he executed a note and a check to cover his pro rata of the amount due which, he says, was accepted by the bank; and as an alternative plea he sets out that the bank had agreed to a division of the debt by accepting payment from some of the parties, and that the bank, for that reason, cannot hold him and the other signers as solidary obligors for the balance, due.

Defendant, Rockhold, • signed the first note but not the renewal note.

Plaintiff did not surrender or cancel the first note and there is no evidence that it agreed to release this defendant from his obligation thereon.

That note, so far at least as he is concerned, evidences a live obligation from which he cannot escape on the ground that his co-obligors gave a renewal obligation. He is still bound.

It is not disputed that the signers of the note sued on were bound in solido for the payment of the debt evidenced thereby, but they contend that the bank consented to a division of the debt with regard to the six who paid and that it received, separately, the part of the debt due by each of the individuals who paid, without taking a receipt and reserving therein the debt in solido or its right in general, and that, therefore, these defendants are relieved from any obligation to pay the balance of the debt.

The testimony- of Mr. Bailey, President of the bank, and of each of those who paid, is to the effect that at the time those amounts were paid there was no agreement, verbal or otherwise, that the signers of the note who paid should be released.

Mr. Bailey testified that:

“We stated to them that if each of the eight signers would liquidate a one-eighth part we would be satisfied.”

But he says that he, as the representative of the bank, at no time agreed to release any of the parties until all of the ddbt was paid and that it was never intended that they should be released; that the parties themselves, he thinks! so understood it, because they requested no receipt or writing showing a release; and that O. K. Allen and R. H. Fletcher, two of those who paid, and possibly others of them, asked him to have the bank proceed against Wilkinson and Rockhold, the two who did not pay, for the balance; indicating, as he understood, that they were interested in having the balance collected from those who failed to pay.

He says that the bank accepted the money.

“Predicated on the idea that those who paid were responsible for whatever .unpaid balance the note might show.”

While he states that there was no agreement to release any one, he admits that there were no reservations made in the letter which he wrote them nor were there any made at the time of the payment. He said that it was his understanding that each of the obligors was paying a proportionate part or one-eighth of the debt.

“I remember very distinctly that no statement was made that they would be discharged.”

Doctor A. W. Radescich, one of those who paid, testified that he gave his check to the bank to pay his part of the Red Bayou Oil Company, Inc., debt. That he acted^ upon the suggestion contained in the letter; and he was asked if there was any express agreement between him and the bank officers that he should be released and he said:

“No, sir. Nothing except this letter.”
And:
“They did not say they were either holding or releasing us.”-

R. H. Fletcher, another one of those who paid, says there was nothing said “pro or con” about releasing them; that he went by the letter; and he admits that he may have suggested that the bank proceed against Wilkinson and Rockhold for the balance.

O. K. Allen, another defendant, does not recollect that any one said they would be released, but says there was .a general discussion and that it was generally understood by all present that they would be released; but he says there was no express agreement to that effect.

He further says that he made no request that the note be cancelled so far as he was concerned.

Mr. W. A. Wright said there was nothing stated about a release but:

“I just supposed that each fellow was going to pay his part, and I paid mine and left. My understanding was I was to pay my part.”

Mr. John L. Calhoun testified that no reservations were made and that nothing was said about a release. Nothing further than the letter.

To the same effect is the testimony of Mr. W. W. Allen.

L. A. Wilkinson, who gave his note and check for his pro rata of the, debt, says they told him that they would send him a receipt and a release but instead they returned his note.

It is clear, therefore, - from the testimony, that the creditor did not consent to a division of the debt and that whpn it accepted the payment as above detailed it did not specifically reserve its right to proceed against those who paid for the balance.

But it is urged that the letter which the bank wrote to each of the debtors is evidence of its agreement to a division of the debt and is a formal demand on each for his part thereof; and, further, that, under article 2102 of the Civil Code the bank lost its rights against those who paid when it accepted their payment—

“without reserving in the receipt the deb.t in solido or its right in general” * against them.

Articles 2100, 2101, 2102 and 2103 of the Civil Code are found under the general subject. of “Obligations’’, and under paragraph 4 of section 6 of chapter 4 thereof, which treats “Of the rules which govern obligations with respect to debtors in solido”, article 2100 reads:

“The creditor, who consents to the division of the debt with regard to one of the co-debtors, still has an action in solido against the others, but under the deduction of the part of the debtor whom he has discharged from the debt in solido.”

There can be no misunderstanding of this article of the Code.

If the bank in this case agreed to a division of the debt evidenced by the note and accepted from the individuals their part of the debt, it has lost its right to proceed against them for the balance, but still has its actiop. in solido against those who have not paid, but under deduction of the part paid.

Defendants contend that the bank consented to a division of the debt as is evidenced by the letter.

We do not think so.

The letter quoted above cannot, in our opinion, be construed as an agreement to divide the debt.

“It has been suggested by some of the endorsers that each endorser liquidate his share of the note and close up the business of the company.”

That means nothing more than that some of the endorsers of the note had agreed among themselves that the proper way to close this indebtedness is for each endorser to pay his pro rata share thereof.

The bank communicated that suggestion to the debtors, not as its own suggestion but as the suggestion of “some of the endorsers”.

“This would amount to $698.75 for each of the 8 endorsers.”

There is nothing in that sentence except the bare statement of the amount that each would have to pay if the suggestion of “some of the endorsers” is adopted by all of them.

It is. not a division of the debt to merely state that one-eighth of it amounts to a certain sum.

“We think this is the proper course to follow, and we will thank each of you for your early attention to the matter. We have carried the paper a long time and we welcome the suggestion to liquidate it.”

In saying that, the bank did nothing more, we think, than encourage and urge the endorsers, as they are called, to communicate the agreement which they had reached, among themselves, to liquidate the indebtedness.

Article 2103 of the Civil Code provides:

“The obligation contracted in solido toward the creditor is of right divided amongst the debtors, who, amongst themselves, are liable each only for his part and portion.”

While amongst themselves these parties are each liable only for his share yet as to the creditor they are each bound for the whole of the debt.

These parties realized that and had evidently agreed amongst themselves that each should pay his share and communicate their intention to the bank.

The bank makes no demand on each individual for his part of the debt and does not put the proposition as coming from it but' says:

"It has been suggested by some of the endorsers that each endorser liquidate his share of the note and close up the business of the company.”

The letter, read and construed as a whole, states no more than a desire on the part of the creditor that these endorsers carry out the agreement amongst themselves to liquidate the debt.

There is nothing in the letter, as we construe it, which indicates that the bank was willing or intended to release any of the debtors from his in solido obligation to pay its debt.

But article 2101 of the Civil Code provides:

“The creditor, who receives separately, the part of one of the debtors, without reserving in the receipt the debt in solido or his right in general, renounces the debt in solido, only with regard to that debtor.”

Now the defendants who paid say the bank received their part of the debt and did not reserve in the receipt the debt in solido against them.

But they overlook the fact that the debt, insofar as the creditor was concerned, was not divided into “parts”.

The debtors, as amongst themselves, had evidently divided the debt into “parts”, but the creditor did not agree to a division of the debt.

Therefore, when the creditor permitted each of these debtors to go into the bank and pay on the note one eighth of the amount due it, it did not thereby receive separately the part of one of the debtors.

But the creditor could not control the method adopted by these debtors for the liquidation of the debt.

It accepted the amount paid in by each of the debtors and credited on the note the total of the sums paid in a lump sum.

If these debtors, in paying to the bank these amounts, had had it understood that each was paying his part of the debt and had taken a receipt specifying that the amount which he paid was his part of the debt, that would have been a division of the debt and the receipt would have so indicated; in which event they would have been released.

The meaning of that part of the article of the Code is perfectly clear in view of the second part hereof which reads as follows:

“The creditor is not deemed to remit the debt in solido to the debtor when he receives from him a sum equal to the portion due by him, unless the receipt specify that it is for his part.”

The creditor in this case received from each of the debtors a certain sum but gave no receipt specifying that it was for his part.

By the very terms of the Code the bank was. not deemed “to remit the debt in solido” by receiving these amounts.

We find the rule stated in 8 Corpus Curis, page 581, under the head of “Bills and Notes” as follows:

“Each of the joint makers of a note, or joint acceptors or drawers of a bill is liable for the whole amount and the payment by him of a proportionate part of the same will not operate to discharge him as to the' balance in the absence of an agreement to such effect supported by a consideration; and one of the several joint guarantors is not discharged as to the balance of the note by a receipt of his part thereon in full. A fortiori a part payment by a joint maker will not discharge the other makers.. A part payment by one of several joint makers inures to the benefit of all.”

Our Brother of the District Bench wrote a most able opinion both on the facts and the law of the case, and we agree with his conclusions as to both, except his interpretation of the letter written by the bank. He construes that to be a demand on each of the debtors in solido to pay his part of the debt, and a consent to a division thereof. We do not so construe it.

We think each of the signers of the note is bound in solido for the payment of the balance due on the note.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Bank of Winnfield, and against defendants, John L. Calhoun, Liquidator of the Red Bayou Oil Company, Inc., and John L. Calhoun, S. J. Rockhold, L. A. Wilkinson, W. W. Allen, R. H. Fletcher, O. K. Allen, W. A. Wright and A. W. Radescich in solido for the full sum of $1435.00, with 8% per annum interest thereon from January 1, 1922, until paid, and 10% on the amount of principal and interest, as attorney’s fees, and all costs of this suit.

Reynolds, Judge, dissents.


author: ELLIOTT, J.

text:
    No. 7216.
    First Circuit Appeal.
    J. ALEX STOTT v. W. D. TALBERT
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 53, 59.
    The burden of proof is on the plaintiff who alleges to prove his positive allegations and consequently where his allegations are denied by two witnesses, he has not proven his case.
    Appeal from the Twenty-second Judicial District, Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to have judgment annulled under Article 607 of the Code of Practice.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Jas. D.. Womack, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

W. D. Talbert confirmed a judgment by default against J. A. Stott and Amelia Jackson, December 16, 1921, in the Twenty-second Judicial District Court, Parish of East Baton Rouge, No. 6145 and in the suit- entitled W. D. Talbert vs. Amelia Jackson, et al.

The plaintiff Stott alleges that when notified of the suit against him on the note described in the petition, he, in company with Talbert, plaintiff in the suit, took up the matter with Colonel Wall, attorney for Mr. Talbert, before any judgment was rendered in -the case.

That Mr. Talbert instructed Colonel .Wall to discontinue the suit as against Mr. Stott; that it wAs distinctly and well understood and agreed that Mr. Talbert would proceed no further against him; that thereupon he gave the matter no further concern; but Mr. Talbert, instead of dismissing the suit as promised, took and confirmed a default against him.

' Mr. Stott alleging ill practice in the matter, within the meaning of the law— Code Practice Art. 607, brought suit to annul the judgment.

Mr. Talbert in his answer denies that he promised to dismiss the suit against Mr. Stott, and denies the breach of promise alleged against him.

The district judge decided in favor of Talbert. Mr. Stott appealed.

The first feature of the case is Whether Mr. Stott had a defense which he desired to urge against his liability as endorser on the note sued on, and was induced to forego his defense by the promise mentioned.

T'he fact is affirmed by Mr. Stott, but denied by Mr. Talbert.

The facts and circumstances connected with and surrounding the endorsement, as well as the alleged promise to dismiss the suit theron, leaves the matter in doubt.

Mr. Stott speaking of the matter says:

“Q. All right, tell me what took place?
“A. Colonel Wall and Mr. Talbert and myself were in there and I had Mr. Talbert explain to Colonel Wall "how it was with reference to this endorsing, and to request him to dismiss the suit against me, which he did. There was no hesitation about it in any way, and I left them with the assurance of Colonel Wall that there would be no further action taken against me.”

Note testimony p. 37, pp. 55, etc.

Colonel Wall testifying concerning the same matter says:

“I did not promise to discontinue the suit and Mr. Talbert did not instruct me to do so. I did tell Mr. Stott that I would hot take any action against him, if I could make it, and I thought I could, out of any of the other parties, and I held up the matter during all of that time in order to try to make something out of the other parties. But after waiting this length of time Mr. Talbert insisted that I go ahead with the execution. He said he had been out of his money- a long time and wanted it. I then issued the order for the fi. fa.” Note testimony pp. 64, 65, 71, 73, 76. This statement whs repeated by Colonel Wall several times and was his intention to have the court understand that such were the facts in the matter.

Mr. Talbert asserts that Mr. Stott was not to be released from the note sued on, and denies positively that he agreed to discontinue the suit against Mr. Stott, and declares that he did not instruct Colonel Wall to do so.

Colonel Wall was questioned just previous to the institution of the present suit, in the presence of Mr. Stott, about the alleged promise. About two years had elapsed and he could not remember the details, but upon the whole he stood upon the statements above mentioned, as to what he had said to Mr. Stott on the former occasion, in the presence of Mr. Talbert.

Mr. Stott may have drawn an improper deduction from the statements made to him by Colonel Wall, but if he drew an erroneous inference from what was said to him, without any fault on the part of Mr. Talbert or his attorney, and .without any deception practiced on him, we can not release him from his own mistake in that respect.

We have considered the case; have read with interest the briefs of the parties, and noted the authorities cited. It remains that the burden of proof is upon Mr. Stott; not only in the matter of his liability as endorser on the note, but as regards the promise which he alleges was made to him to discontinue the suit. Two witnesses deny his averments.

It is a question of fact. We think the opinion of the district judge should not be disturbed.

Judgment affirmed. The plaintiff and appellant to pay the cost in both courts.


text:
    No. 4033.
    First Circuit Appeal.
    GULF FINANCE SECURITIES CO. v. GEORGE B. TAYLOR Lazard J. Levy, Intervenor and Third Opponent.
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Chattel Mortgages— Par. 4.
    One who purchases an automobile in good faith in a parish where there is no record of a chattel mortgage against it acquires good title, free of mortgage. even though there was a chattel mortgage in another parish at the time of the sale.
    (See Act 198 of 1918, par. 2. Editor’s note.)
    Appeal from the Twenty-Sixth Judicial District, Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit to foreclose a chattel mortgage. The purchaser of the automobile prior to the foreclosure intervened.
    There was judgment for intervenor and plaintiff appealed.
    Judgment affirmed.
    Miller & Miller, of Bogalousa, and Sumter Marks, of New Orleans, attorneys for plaintiff, appellant.
    L. Y. Cooley, of Slidell, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiff, Gulf Finance Securities Co., held a chattel mortgage on a Ford truck owned by defendant, George B. Taylor.

Defendant resided in New Orleans at the time the mortgage was granted and the truck was also situated there at that time. Defendant then moved to the Parish of St. Tammany and removed the truck to his new domicile. The chattel mortgage was recorded in New Orleans but not in St. Tammany parish. The truck was seized by a judgment creditor of defendant in the Parish of St. Tammany, and sold at constable’s sale to L. J. Levy, intervenor.

Plaintiff’s contention is that the mortgage followed the truck to St. Tammany parish. L. J.' Levy was an innocent purchaser at judicial sale in St. Tammany parish and knew nothing of the mortgage. His title to the truck is good. See Wilson vs. Lowrie, 156 La. 1062, 101 South. 549.

The judgment appealed from is correct and must be affirmed.

’ The plaintiff and- appellant to pay the cost in both courts.


text:
    No. 22,831.
    First Circuit Appeal.
    JOHN P. SAVANT v. GOETZ AND LAWRENCE
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 101.
    Where one working under a contract with the owner of a dredge-boat employs a foreman and also another working under the foreman, he cannot recover from the owner for the negligence of his subordinates as he assumes the danger.
    2. Louisiana Digest — Master and Servant Par. 93, 101.
    Where a partnership is under a contract with the owner of a dredge-boat by which their compensation was contingent with the profits and where they had the right to quit after the first 90 days if they so preferred, shows that they were not employees of the owner of the ' boat but vice principals.
    3.Louisiana Digest — Master and Servant Par. 153, 154.
    Under the Employers’ Liability Act No. 20 of 1914, wages cannot be fixed where there is no way under the evidence whereby they can be computed. Therefore, in a case like this no compensation can be allowed.
    Appeal from the Sixteenth Judicial District, Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit for damages for personal injuries to plaintiff while he was on a dredge-boat. There was an alternative demand for compensation under the Employers’ Liability Act No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    R. L. Garland, of Opelousas, attorney for plaintiff, appellant.
    J. Zach Spearing, of New Orleans, and Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for defendant, appellee.
   ELLIOTT, J.

John P. Savant in company with Dr. John A. Haas and some others, on September 8, 1922, went aboard the dredge-boat engaged in digging a drainage canal for Bayou Boeuf and Waxie Drainage District. While he was standing up near the front of the boat, which was working at the time and close to Dr. Haas, the eye bolt broke which connected the boom with the cable, and by which the dipper was operated. This released the cable, which flew back with great force and violence, striking Mr. Savant across the ankles and breaking both his legs; seriously and permanently injuring him. The dredge-boat belonged to Goetz & Lawrence. He brought this suit against Goetz & Lawrence on account of his injuries.

He alleges in his petition that he visited the boat, not only because of business as an officer and member of the firm of Louisiana Construction Works, under whom Goetz & Lawrence were sub-contractors in the matter of digging the canal, but also because Goetz & Lawrence had invited him and Dr. Haas and others ■ to visit the boat and assist in getting it properly equipped for operation, and to the end they might be able to comply with their dredging contract.

That his injuries were due to no fault or negligence on his part, but due to the fault and negligenc of Goetz & Lawrence in operating a machine with defective parts, consisting. of a defective eye bolt connecting the cable around a swinging table and by which the boom was swung; that said eye bolt was defective in construction, had been made of inferior metal, etc.; that the operation of the boat with said defective and inferior material was the immediate and proximate cause of his injuries.

He claims $23,185.00 damages as the result of his injuries.

Defendants for answer deny that plaintiff, Savant, visited the dredge-boat as a member of the firm Louisiana Construction Works, and allege that he did so as the person in charge of said dredge work. They allege that on or about June 12, 1922, they entered into a written agreement with plaintiff, John P. Savant, and J. A. Perkins, whereby said Savant and Perkins, for the convenience of defendants and likewise for the convenience and profit of said Savant and Perkins, took and assumed full charge and control of the dredge-boat and dredging operation in question.

That plaintiff, Savant, took charge of said dredge-work under said agreement, did control same and directed the operations of the dredge-boat and was in full and exclusive charge and control, including its equipment and the employees engaged in operating it, at the time he was injured; that defendants did not have anything to do with or control over the boat, the equipment, the manner of its operation nor of the employees engaged therein, and nothing to do with the condition of the boat nor of the machinery and equipment thereon, nor with the handling of the same; that it was all under the exclusive control of said Savant; that if any of the machinery or equipment was defective, the use of it was due entirely to the fault and neglect of said Savant.

Mr. Savant, in response to this answer, filed an amended and supplemental petition, in which he alleges that if he was an employee of Goetz & Lawrence, as alleged in their answer, that he is entitled, as such to compensation under the law Act No. 20 of 1914, in the sum of $18.00 per week, for a period of three hundred weeks from time he was injuerd, also for the sum of $1016.00 expenses, etc. That Goetz & Lawrence had full knowledge that he had been injured, and had failed to keep posted on the boat, in a conspicious place, the notice required by Sec. 12 of Act No. 20 of 1914.

He prayed, in the case the court held that he was not entitled to damages as prayed for in his petition, that he then in that event have judgment for compensation, at $18.00 per week for three hundred weeks, and for the further sum of $1016.00 expenses, etc.

Defendants in answering plaintiff’s supplemental petition, deny that his employment came within the purview and scope of the law, Act No. 20 of 1914. They aver that they had no knowledge of his injuries, except that based on newspaper reports, and did not know that he claimed compensation of them.

The district judge rejected plaintiff’s demand and he appealed.

The contract of employment between Goetz & Lawrence and Savant and Perkins shows that Goetz & Lawrence employed Savant and Perkins as their managers for the purpose of operating their Bucyrus Steel Dredge-boat for a period of ninety days, under the conditions that Savant and Perkins were to pay all expenses and cost of operating the dredge, out of the earnings of the job, from month to month, etc., under their, management: Pay the past due bills and accounts, as per list attached, after which they were authorized to pay out of the earnings of the job, the amounts due Louisiana Construction Works, and any amounts due Savant and Perkins, under a contract entered into prior to the contract of June 12, 1922.

At the expiration of ninety days from date of contract Savant and Perkins had the right to continue their management of the job, provided all of the expenses of their management, and all of the debts listed had been paid in full and receipts therefor obtained, except the amount due Louisiana Construction Works and D. B. Gore Co., Inc.

After all the stipulations of the contract had been fulfilled and performed, Savant and Perkins were to receive for their services as managers 2/3 of the net profits earned on the job, and a 2/3 interest in the dredge-boat; their said interest in the dredge-boat no to operate until it had been fully paid for.

Goetz & Lawrence had the right under the contract to discharge Savant and Perkins as managers, if they failed to comply with the stipulations of the agreement. Savant and Perkins had the right, at the expiration of ninety days from the date of the contract, to discontinue their services as managers, in which event- they were not to receive any compensation nor make any claim for their services rendered during the ninety days’ period.

The record contains a letter from Goetz & Lawrence to John P. Savant, dated August 1, 1922, which reads: “Dear Sir: Confirming our phone conversation this will be your authority to make whatever changes you may see fit, either in equipment of barge or in crew to operate same. This applies to the Bayou Boeuf and Waxie Drainage District job, which yourself and Mr. Perkins are managing for us.” See also letter from J. A. Perkins to Goetz & Lawrence the day of the accident, September 28, 1922, notifying them of what had happened; that Ross and Claycombe had quit work on the job, and requesting them to come to Opelousas on first train and attend to these matters.

The terms used in the contract, descriptive of the relations of the parties, the compensation to which Savant and Perkins were contingently entitled in the profits and in the dredge-boat, the right of Goetz & Lawrence to' discharge in case the contract w'as not complied with, the right of Savant and Perkins to quit if they saw proper, after the first ninety days shows that Savant and Perkins became, from date of contract, vice-principals under Goetz & Lawrence in the work of dredging the canal.

The evidence shows that Mr. Savant at once took over the superintendance and control of the dredge-boat, its equipment, operation and of the employees therein and managed the job as he saw fit; hired new men and employees and put them to work on the dredge-boat and assigned to them their respective employments.

Mr. Savant hired Mr. Hudson and made him foreman on the dredge-boat. He also hired Mr. Quirk and placed him at work on the dredge under the immediate authority of Mr. Hudson. Mr. Hudson called Mr. Quirk to operate the boom and set him at it temporarily while he started a barge off after wood. It was while Mr. Quirk was operating the boom that the bolt, broke and injured Mr. Savant. As Mr. Quirk was the employee of Mr. Savant and Mr. Savant sustained his injury while standing present looking at Mr. Quirk operate the boom, he cannot under the law recover from Goetz & Lawrence damages sustained by him in the performance of the Work under his own supervision.

In the case Linemueller vs. Arthur, 127 La. 500, 53 South. 732, the second clause of the syllabus reads:

“A foreman is the vice-principal of the subordinate working under his orders and assumes the danger arising out of the negligence of his subordinate, and cannot recover for injuries arising out of this negligence.’’

In McCormack vs. Amer & Co., 131 La. 220, 59 South. 127, cited by defendant, the same doctrine was held. In Gault vs. Pineland Naval Stores Co., 147 La. 501, 85 South. 219, Mr. Gault was the process manager and another party named Lewis was his assistant process manager. Gault was injured through the negligence of Lewis in the work in which they were engaged, and brought suit for damages against Pine-land Naval Stores Co., on account of his injuries. The court says p. 506:

“The defense that Gault was a vice-principal, superior servant and therefore responsible for the faults of those employed under him, so as to preclude his recovery for injuries arising from their negligence, is not pleaded, but being largely a question of law, determinable from the evidence in the record bearing on the question, we are warranted in passing on it, etc.
“Undoubtedly if plaintiff had been injured while performing his duties as process manager, as the result of the negligence of Lewis while in the discharge of his duties as assistant process manager, plaintiff cannot recover, because he was the superior officer of Lewis, who was under plaintiff’s direction and control.”

Citing the above cases. See also Labat, on Master and Servant, Vol. 4, p. 4048, Sec. 1412A, and Ruling Case Law, Yol. 18, p. 756, Sec. 222.

For the above reasons we find that plaintiff cannot recover damages from the defendants on the grounds claimed in his original petition.

As for plaintiff’s alternative demand, the contract entered into between plaintiff and defendants does not contemplate nor provide for the payment of wages. The compensation agreed on was contingent and dependent on the fulfillment of the conditions mentioned.

The evidence shows that during the time that plaintiff was manager, and up until the time of his injury, there was no net profit that he could have claimed.

We cannot fix wages under the law on the subject of compensation Act 20 of 1914, when there is no way under the evidence whereby we can compute same by analogy or otherwise. For these reasons we are compelled to refuse his demand ■ on that account.

We find no error in the judgment appealed from.

• The judgment appealed from is affirmed, the plaintiff and appellant to pay the cost in both courts.


text:
    No. 7914
    First Circuit Appeal
    LEWIS GOTTLIEB v. FRANK M. REX
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Landlord and Tenant Par. 1, 43; Obligations — Par. 76.
    Agreements legally entered into have the effect of laws on those who have formed them. They must be performed with good faith. Therefore, where a lease or agreement especially stipulates that the lessee shall engage in a retail grocery business and no other business shall be allowed, the lessee violates his contract by selling lunch, coffee and cold drinks on the premises.

      2. Louisiana Digest — Customs and Usages ■ — Par. 9.
    There is no custom which includes the sale of lunch, coffee and cold drinks as a part of a retail grocery business.
    Appeal from the Twenty-second Judicial District, Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to enjoin the defendant from violating a lease or agreement and compel him to pay attorney’s fees.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    W. O. Watson and C. A. Holcombe, of Baton Rouge, attorney of defendant, appellant.
   ELLIOTT, J.

The plaintiff, Lewis Gottlieb, leased to defendant, Prank M. Rex, the property described in plaintiff’s petition, by written act of lease, containing, the following agreement:

“It is agreed and understood by the parties hereto, that the business to be carried on by said tenant in said leased premises, is that of the retail grocery business, and that no other business shall be conducted on said leased premises during the term thereof or during the term of the renewal, if there be a renewal; except that of the retail grocery business, except with the written consent of the said Gottlieb.”

He alleges that the defendant has violated this agreement by conducting in said building “lunch, coffee and cold drinks stands”.

That said lunch, coffee and cold drink stands conducted ' in said premises, are in violation of the agreement, and prays that defendant be enjoined from violating the agreement and compelled to pay attorneys’ fees, etc. A certified copy of the lease is annexed to and made part of his petition.

Defendant for answer admits that he is operating in the building lunch, coffee and cold .drink stands, but he claims that the coffee and cold drink stands do not violate the agreement because such stands are, by custom, part of the retail grocery business. As for the lunch stand,. he admits that, technically, same is a violation of the strict letter and terms of the agreement; but contends that plaintiff is estopped from setting up the violation, for reasons set forth in the answer, and claims attorneys fees against the plaintiff.

When the case was called for trial on the merits, November 25, 1924, the plaintiff offered in evidence the lease sued on and rested.

The defendant offered no evidence.

The case was submitted to the court on briefs to be filed in ten days.

On December 15, 1924, defendant, by motion, informed the court that he had not offered evidence in support of the custom and estoppel alleged in his answer, on the ground that his counsel was under the impression that his allegation of fact was admitted by plaintiff; but discovering otherwise, he moved to re-open the case and to be permitted to offer evidence in support of his averments.

The court heard evidence on the subject, overruled the motion and rendered judgment in favor of the plaintiff as prayed for on the merits of the ease.

On January 19, 1925, defendant moved for a new trial on the ground of newly discovered evidence important to the case, which he could not, with due diligence, have obtained before the trial.

The new evidence alleged to exist is set up in the motion and purports to be evidence in support of the estoppel and custom alleged.

The court heard evidence on the motion for new trial and overruled it. Defendant appealed.

We have considered the brief and authorities urged in behalf of same. We find that the defendant has had his day in court; there was no wrongful practice, advantage or just ground for complaint on the part of the defendant.

As for the merits of the case, defendant admits that the lunch stand violates the agreement. There is no evidence to support the estoppel apeged against plaintiff, nor in favor of the custom claimed to exist, according to which coffee and cold drink stands are part of a retail grocery business. We are not willing to assume that such is the case.

“Agreements legally entered into have the effect of laws on those who have formed them.
“They cannot be revoked unless by the mutual consent of the parties or for causes acknowledged by law. They must be performed with good faith.” Civil Code Arts. 1901 and 1945.

The judgment appealed from is correct.

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


author: REYNOLDS, J. CARVER, J.

text:
    No. 2344
    Second Circuit Appeal
    HERMAN B. ELLIS v. OIL FIELDS GAS COMPANY, INC.
    (June 30, 1925, Opinion and Decree.)
    (July 23, 1925, Remanded for new trial.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Master and Servant — Par. 159, 160 (I).
    The finding of the District Judge as to a matter of fact, namely, the injury of plaintiff, who sued under the Employers’ Liability Act No. 20 of 1914, not being manifestly erroneous, is affirmed.
    (ON APPLICATION FOR REHEARING)
    2. Louisiana Digest — Master and Servant —Par. 160 (I), 160 (j).
    Under Section 18, paragraph 4 of Act 20 of 1914, the Workman’s Compensation Act, where there was not sufficient evidence to give a final judgment rejecting the plaintiff’s demand, the Court of Appeal on an application for a rehearing, may remand the case to a new trial.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit for compensation under Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment affirmed.
    Huey P. Long, of Shreveport, attorney for plaintiff, appellant.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

In this case plaintiff, Herman B. Ellis, is seeking to recover from defendant, Oil Fields Gas Company, Inc., compensation under the Workmen’s Compensation Act at the rate of $18 per week during his disability, not exceeding 400 weeks, and the further sum of $250 for medical and hospital expenses incurred, for an injury alleged to have been received by him in the region of and below the left shoulder blade on May 12, 1924, in the course of his employment by defendant.

Defendant denied that plaintiff was injured to the extent alleged and denied liability for compensation.

The ease was tried and there was judgment in favor of plaintiff and against defendant for compensation at the rate of $18 per week for and during a period of five weeks, beginning May 12, 1924, with legal interest on each weekly payment from its maturity until paid. Plaintiff appealed.

OPINION

The question to be determined in this case is was plaintiff injured as alleged in his petition and was his condition the result of the injury sustained by him on May 12, 1924.

Plaintiff complained at the time of the injury that he had been struck and injured on the left side of his back below the left shoulder blade.

Doctor G. G. McKeller who was called in as a physician and administered to plaintiff within thirty minutes after the accident to him, testified, page 32:

“Q. Doctor, where did this joint of pipe, or whatever it was strike Mr. Ellis? Where was his injury?
“A. He was complaining of pain just underneath the left scapula when I saw him, over the ribs.
“Q. Over the ribs on the left side?
“A. Yes, sir.
“Q. That is just beneath the left shoulder blade?
“A. Yes, sir.
“Q. Did his body have any indications on it?
“A. No bruises; some redness over that area.
“Q. Was there any redness over any other area?
“A. I did not notice any.
“Q. Then at that time he was complaining of having been struck by a falling pipe on the left side just below the left shoulder blade?
“A. That is where he was complaining of.
“Q. Did the red area indicate that fact?
“A. Yes, sir, was my idea he was struck —my idea he struck the railroad tie when he fell that caused that, I did not notice anything on the right side in the shape of a red spot • or bruise. I never noticed any.
(Page 33):
“Q. How long did you treat Mr. Ellis, doctor?
“A. I saw Mr. Ellis that day of course and again on the 17th and 25th of the same month.
"Q. Just what was the nature of the treatment you gave him when you first went to see him?
“A. I gave him a sedative and strapped the chest, his back and chest.
“Q. On the 17th where did you see him?
“A. At my office.
“Q. Did you make an examination then?
“A. Yes, sir.
“Q. What did you find at that time?
“A. Well, he still complained -of some soreness over that area on the left side and back.
“Q. Left side?
“A. Yes, sir.
“Q. A slight soreness or considerable?
“A. Nothing marked, but some soreness.
“Q. On the 25th of May did you examine him that day?
“A. Yes, sir.
“Q. What did you find then?
“A. Well he was apparently recovered, it seemed.
“Q. Did you on that occasion advise him with reference to going to work again?
“A. He asked what about going to work and I told him if he felt like it, I thought he was able to go to work, that is about what I told him.
(Page 34):
“Q. When you examined him on the 12th of May, 1924, just after the injury was received, state the nature of the injury from the standpoint of suffering? Were any- bones broken?
“A. I did not think so, my idea of the case was only a temporary condition, simply bruised by the pipe falling and striking him or his striking the railroad tie.
“Q. That was on the left side?
“A. Yes, sir, just below the left shoulder blade.
“Q. Did your examination of him at that time indicate a severe bruise or a slight bruise?
“A. Well I would not say that it was so severe, no blue spot.
“Q. No discoloration other than a slight redness?
“A. That is all.”

Plaintiff is now seeking to recover more compensation than he was allowed by the court under the testimony of Doctors S. C. Barrow and G. H. Cassity as to the condition claimed to exist on the right side of his back.

The testimony of Doctor McKeller is corroborated by that of Doctor Louis Abramson who made a physicial examination of plaintiff and testified, page 43:

“Q. Doctor, just state to the court, the nature of your examination and what you found?
“A. I made a physical examination of him, took off his shirt and examined his back, examined his- heart, lungs, had the urine examined, had the blood examined, had an x-ray made of the lower portion of the back and pelvis, and I could not find anything to' account for the symptoms.
“Q. You found nothing wrong with him?
“A. Not as far as I was able to ascertain.
(Page 44):
“Q. What have you to say with reference to the spinal column, lower portion, third to first lumbar vertebrae, with reference tu being drawn to right side or the left side?
“A. I did not find it so.
' “Q. Did the x-ray taken at your sanitarium show any such condition?
“A. No, sir.
“Q. Doctor, what have you to say With reference to the muscles?
“A. The muscles are normal, as far- as I. know, or was able to find out.
“Q. Did your examination show, that in the area referred to that they were drawn to the right?
“A. No, sir.
“Q. Could you find anything wrong with this plaintiff, from- your examination?
“A. No, sir.

In addition to this testimony, the District Judge who saw the plaintiff stripped and physically examined in open court, says, in a written opinion filed in this case:

“We feel fairly sure that plaintiff is suffering to some extent (just how much ,we do not know), but there is no connection shown in the evidence between the muscle spasm on the right side of the small of the back and a blow received under the left shoulder blade. We would feel inclined to reopen the case if we could place any confidence in plaintiff’s testimony, but we cannot come to the conclusion that he has dealt fairly and honestly in the matter. He has played his cards too strong.”

Under the evidence we cannot say that the finding of the District Judge was manifestly erroneous.

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

ON APPLICATION FOR REHEARING.

CARVER, J.

Our re-examination of the record in this case has convinced us that while the evidence is not sufficient either as to the fact or the extent or the cause of plaintiff's injury and disability, if any, to warrant judgment in his favor, ygt neither is it sufficient' to show that he did not- receive an injury compensable under the workmen’s compensation law, and therefore that a final judgment rejecting his demand should not have been rendered.

We think the purposes of justice will be subserved by ordering another trial in the District Court.

We think that under subsection 4 of section 18 of the workmen’s compensation act, a part of which- reads as follows:

“The judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than is herein provided.”

It will not be necessary to grant a rehearing and hear the case again in this court before making the proper modification but think that -it can be done at once, • It is decreed that the judgment heretofore rendered by this court and that by the District Court be set aside and the case is remanded for a new trial.


author: CARVER, J.

text:
    No. 2361
    Second Circuit Appeal
    THE OUACHITA NATIONAL BANK OF MONROE v. JOHN A. FULLER
    (June 30, 1925, Opinion and Decree.)
    (June 22, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judgment—Par. 243 244. . '
    In a suit to foreclose a mortgage where nothing was seized before judgment, a judgment can be confirmed by default against a curator ad hoc. In this case it is one executory against the mortgaged property only as it is in rem and , not in personam.
    (See Code of Practice, Art. 206.)
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    This is a suit to foreclose a mortgage by citation on a curator ad hoc.
    The trial judge refused to confirm the default and plaintiff appealed.
    Judgment reversed.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff,' appellant.
    A. L. Davenport, of Monroe, curator ad hoc, appellee.
   CARVER, J.

In this case the Judges of this court having certified the case to the Honorable Supreme Court for instructions and having by that court been instructed in the premises, it is decreed, for the reasons given by that court in its decision rendered June 22, 1925, hereby made a part hereof, that the judgment of the lower court be 'reversed; that the judgment by default taken in the District Court be confirmed; and that The Ouachita National Bank of Monroe do have judgment against John A. Juller for the sum of fifteen hundred, twenty-two and 04-100 dollars with eight per. cent per annum interest on fifteen hundred dollars thereof from April 16, 1920, until paid, and ten per cent on the full amount of principal and interest as attorney’s fees,- and all costs of 'suit, with recognition • of • its mortgage on Southeast quarter of Northeast quarter and Northeast quarter of Southeast quarter of Section five Township sixteen North Range one East, and Southeast quarter of Northwest quarter of Section thirty-two Township seventeen North Range one East.

It is further decreed that this judgment be executory only against the above described property.

A. L. Davenport, .curator ad hoc representing defendant, appellee.

Plaintiff, having a mortgage authentic in form, on real estate belonging to defendant, an absentee, and having paid taxes thereon, brought an ordinary suit against him for the amount of the mortgage and taxes so paid, asking that the judgment to be recovered be in rem, only.

A curator ad hoc was appointed to represent defendant and citation directed “To John A. Fuller, A. L. Davenport Curator ad hoe”, was duly served on the curator.

No seizure was asked for in' advance of judgment.

A default having been taken, after the lapse of the legal delays plaintiff moved to confirm it and take judgment as prayed for.

It offered proof, deemed, by the District Judge and also by us, sufficient to prove the demand, but the District Judge refused to permit confirmation of the default because he thought defendant not properly in court. . '

From this judgment plaintiff appealed. '

Under section 25 of article VII of the Constitution of 1921, this court requests instructions from the Supreme Court as follows:

In view of Code Practice, section 206, which reads as follows:

“Citation being the essential ground of all civil actions in ordinary proceeding, the neglect of that formality annuls radically all proceedings had, unless the defendant have voluntarily appeared to the suit and answered the demand.”
“But citation is not necessary in ex-ecutory proceeding, nor when the proceedings aré in rem against the thing as thereafter provided.”

Is it sufficient, in a suit via ordinaria to enforce a mortgage against an absentee •to appoint a curator and serve citation on him?

Or—

Should the plaintiff have proceeded either under Code of Practice, section 240, by attaching the mortgaged property and citing him by posting the attachment and citation on the door of the court room, 254, or under Code of Practice sections 292 to 294, both inclusive, covering proceedings strictly in rem and themeselves requiring preliminary seizure of the property as well as notices published three times in the official paper, if any, or if not, at the usual place of posting?

Respectfully.

Judges of the Court of Appeal of the State of Louisiana, second circuit.