text:
    No. 3894
    Second Circuit
    FESTERVAND v. LASTER
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Richard H. Switzer, of Shreveport, attorney for plaintiff, appellant.
    Julius T. Long, of Shreveport, attorney for defendant, appellee.
   DREW, J.

Plaintiff brought this suit in the district court of Caddo parish against the defendant for the sum of $900, alleged to be due him for room and board and for services rendered in investigating the death of her husband preparatory to the filing of suit for compensation.

He alleges that the defendant is a resident of the state of Texas, and, in order to give the court of Caddo parish jurisdiction, he attached a judgment rendered in the Caddo court in favor of defendant and her dependent child and against the Louisiana Oil Refining Corporation for compensation under the Workmen’s Compensation Act of Louisiana, growing out of the death of her husband, who was killed while in the employ of the Louisiana Oil Refining Corporation.

Defendant filed a plea to the jurisdiction, excepting that the district court of Caddo parish was without jurisdiction for the reason that the property attached is a -suit and judgment for the joint benefit of defendant and her infant child for weekly amounts of compensation based upon and secured under Act No. 20 of 1914 of the state of Louisiana,- and that under said act and law, and particularly section 21 of the act, all claims and payments due under the act are exempt from levy or execution or attachment or garnishment, except under a judgment of court for alimony in favor of a wife or ascendants or descendants.

She prays that the exception to the jurisdiction be sustained, that the attachment be dissolved, and that plaintiff’s suit be dismissed.

Plaintiff answered the exception to the jurisdiction, alleging that the exemption set up in the act does not apply to a judgment; that it does not apply to a nonresident of the state of Louisiana; and that it violates the Fourteenth Amendment to the Constitution of the United States, in that it denies to plaintiff the equal protection of the laws and is class legislation.

He prays that the exception to the jurisdiction be overruled.

The lower court sustained the exception to the jurisdiction, and dissolved the attachment and dismissed plaintiff’s suit; and from that judgment he has appealed to this court.

The suit is one in rem, and, if the attachment falls, the suit necessarily falls also.

The first paragraph of section 21 of Act No. 20 of 1914, as amended by Act No. 85 of 1926 reads as follows:

“That claims or payments due under this act * * * shall not be assignable, and shall be. exempt from all claims of creditors- and from levy or execution or attachment or garnishment, except under a judgment of Court for alimony, in favor of a wife, or ascendant or descendant.’’

- The paragraph quoted above 'is plain and its language clear, and, unless we can sustain one or more of the questions raised by plaintiff in his answer to the exception to the jurisdiction, the exception will have to be sustained and the case dismissed.

We will discuss the different questions raised in the order in which they have been presented.

Plaintiff contends that he is attaching a judgment and not a claim or payments due under the Workmen’s Compensation Act, and that a judgment is an entirely different thing from a claim or payments due under that act. We cannot accept this contention as being correct.

There are many cases where the right to claim and receive money is not derived from or based upon the relation of debtor and creditor between parties, and judgments in such cases, recognizing the right and ordering its enforcement, are not necessarily judgments for debt.

a judgment in a suit under the Workmen’s Compensation Act is not a judgment for debt, but an award by the court, recognizing the right of an employee or his dependents under the law, which fixes the duty of the employer in case of an injury to or the death of an employee in an accident arising out of and incidental to his employment. And while it is true .that the act itself says that a judgment under it shall have the same force and effect as one under any other law, it is clear that such a judgment is. not the same as any other. It is very closely related to. a judgment for alimony, in that it may be extinguished by death of the- one to whom it is awarded, by remarriage in case of a widow, or by the injured employee' recovering fully from the injury he has been awarded judgment for. After - six months from the date of its rendition, it is subject to modification on the application of either the employer or employee on the ground that the- incapacity of the employee has subsequently diminished or increased. Execution, for the collection of the weekly payments under it, when the employer fails to make them, cannot be had by application to the clerk of the court, but must be by. order of the court Itself, fixing the amount of payments in arrear. And penalties are also provided for failure to make the payments as they become due. The judgment of the court does not change the payments fixed by. law, but merely orders them to be made according to law. And whether the payments are collected by or without the aid of a judgment, they still are payments under the Workmen’s Compensation Act, and all payments owing under the law are personal to the person entitled to them.

The second contention of plaintiff is that the exemption in the first paragra of section 21 of the act, as amended, and above quoted, does not apply to a nonresident of the state of Louisiana.

It certainly was not the intention of the lawmaker to say to the widow of a deceased employee that, in order for the compensation awarded her for the death of her husband to be secure from seizure by creditors, she would have to remain a resident of this state. If such was the intention of the Legislature, it failed to so ■state. And the general rule and better view, we think, is that, unless the exemption statute is expressly confined to residents, it also applies to non-residents of the state. 11 R. C. L. 505.

The Workmen’s Compensation Act should be liberally construed in favor of its beneficiaries, and, so construing it, we cannot limit the exemption from seizure of its benefits to those of its beneficiaries who reside in the state' of Louisiana. It is a humane law, founded on public policy, and the result of thoughtful, painstaking, and humane consideration. It was intended as a substitute for the defective and insufficient remedy theretofore existing for the adjustment -of claims of employees or their dependents against employers for injury to or death of employees by accident in the course of their employment, and. as a means whereby compensation might be had for every accidental injury or death coming within the provisions of the act, and the injured employee or. his dependents in case of his death be protected against the delays and the extravagant attorney’s fees incident to the former remedy, and as a method whereby he or they might receive regulated compensation, payable at stated periods, so as most effectually to carry out the purposes of the act, which are to provide the injured employee, or his dependents in case of death, with payments periodically over a fixed space of time with which to meet his or their continuing necessities. We can readily see that the public policy and humane thought behind the act are well defined. It is well known that laboring men travel from place to place in the course of their work, or in search of work, and, if the Legislature had intended the exemption to apply only to such beneficiaries of the act as were residents of the state of Louisiana, it would have said so.

One might reside in the state of Texas and be employed in the state of Louisiana under a contract of employment entered into here, and, if accidentally injured or killed in the course of his employment, he, if living, or his dependents, if dead, would be entitled to receive payments under the Compensation Act. And can it be said that the payments due him or them would not be exempt from seizure, while the payments due fellow workmen of his, or their dependents, residents of the state of Louisiana, for injury or death happening to the fellow workmen at the same time and place and under the same circumstances, would be exempt? We think not. Otherwise, the very purpose of the act would be defeated.

The better, and almost universal, rule is that the exemption statute should receive a liberal construction in favor of the debtor, to advance the humane purpose of preserving to the unfortunate or improvident debtor and his family the means of obtaining a livelihood and thus prevent him from becoming a charge upon the public. 11 Ruling Case Law, 492-493.

The general rule is that, unless the act expressly provides for no extraterritorial effect, the Workmen’s Compensation Act has extraterritorial effect; and if one be employed in Louisiana by a Louisiana concern to perform labor and be sent into another state to perform that labor and is injured or killed accidentally in the course of his employment in that other state, he or his dependents can collect compensation under the Louisiana law, although the work was being performed in another state and the injury or death occurred in such other state. If this he true, we see no reason to limit the exemption from seizure contained in the act to residents of this state only.

In the case of Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P. 491, 495, Ann. Cas, 1917E, 390; 12 A. L. R. 1207 note, the court said:

“If it may reasonably be thought that the best interests of the state, of the employers of labor, and of those employed, as well as of the public generally, are promoted by imposing upon the industry or the public the burden of industrial accident — and some such theory lies at the bottom of all workmen’s compensation statutes * * * the residence and citizenship of the injured workman, or (if he shall have met death) of his dependents, are factors entirely foreign to the discussion. The legislature has determined that the employment of labor in given pursuits entails upon the employer certain responsibilities towards the persons performing the labor and those dependent upon them. There is no constitutional or rational ground for limiting the benefits of this legislative scheme to citizens or residents of this state. If the employment was such as to fall within the state’s lawmaking jurisdiction, the legislature certainly had the power to pass laws operating uniformly upon all persons affected by such employment.”

There is no evidence in the record that defendant has given up her residence in. Louisiana and become a resident of the state of Texas. However, from briefs of both counsel for appellant and counsel for appellee, we presume it was admitted on the trial in the lower court that she had done so, and accordingly we have discussed the case from that viewpoint.

We are convinced that the permanent leaving of the state of Louisiana by defendant did not deprive her of the right of exemption from seizure provided by the act.

The third contention of plaintiff is that section 21 of Act No. 20 of 1914, as amended, is unconstitutional, in that it violates the Fourteenth Amendment to the Constitution of the United States by denying to plaintiff the equal protection of the laws and creating class legislation.

He contends that said section, in excepting from the exemptions therein set out judgments for alimony for the wife and ascendants and descendants, discriminates against him, an ordinary creditor, and gives to those holding such judgment an unfair preference.

There is a strong presumption that the Legislature understands and appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds. Middleton v. Texas Power & Light Co., 249 U. S. 152, 39 S. Ct. 227, 63 Ed. 527; 6 Ruling Case Law, 380, 420, 426; Ward & Gow v. Himan Krinsky, 259 U. S. 503, 42 S. Ct. 529, 536, 66 L. Ed. 1033, 28 A. L. R. 1208.

In the last-cited case the- court said:

“What was it they were aiming at, and how did they seek to accomplish it? We need not be sure of hitting upon a correct,' much less a complete, explanation. Upon the general presumption referred to the questioned group must stand, unless it were demonstrated to a moral certainty, beyond a reasonable doubt, that the grouping could not possibly be explained on reasonable grounds.”

In Ruling Case .Law, .volume 6, page 385, the following rule is laid down:

“In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. The question of classification is primarily for the legislature, and it can never become a judicial ques-ti.on except for the purpose of determining, in any given situation, whether the legislative action is clearly unreasonable. Whenever the power to regulate exists, the details of the legislation and the exceptions proper to be made likewise rest primarily within the discretion of the state legislature. Before a court can interfere with the legislative judgment,, it must be able to say that there is no fair reason for the law that would not require with equal force its extension to others • whom it leaves untouched. When the classification is a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be presumed. The courts cannot require the legislature to specify its reasons for the classification, but they will always presume that the legislature acted on legitimate grounds of distinction, if any such grounds exist. Where there is a reasonable and practical ground of classification for legislative regulations under the police power, the classification should be sustained, even though some other classification or the absence of specific classifications would appear to some minds to be more in accord with the general welfare, since the discretion of selecting the subjects of police regulations is left to the general lawmaking power where there is no undoubted and irreconcilable conflict between the regulations and the provisions and principles of organic law. Accordingly it has been stated that where a classification can be sustained, it rests entirely within the discretion of the legislature to determine and establish its basis, and its determination when expressed in statutory enactment cannot be questioned successfully, unless it is so manifestly arbitrary, unreasonable, inequitable and unjust that it will cause an imposition of burdens on one class to the exclusion of another, without reasonable distinction.”

A provision requiring uniformity of legislation does not mean that all laws must embrace all persons, since a law is said to be general or uniform, not because it operates alike upon every person in the state, but because it operates alike upon every person in the state who is brdught within the conditions and circumstances prescribed by the law. Ruling Case Law, volume 6, page 420.

“Since an inheritance tax is based not on property but on the succession to property, and since the right to take property by devise or descent is the creature of the law, and not a natural right, the state which confers it may impose conditions on it and may discriminate between relatives, and strangers, and it may grant exemptions, without in any way violating the constitutional provisions as to uniformity and equality of taxation or the equal protection of the laws.” Ruling Case Law, volume 6, pages 427-428.

The above rule, as laid down in Ruling Case Law, is very applicable to the case before us. The right to receive payments under the Workmen’s Compensation Law is not a natural right, but is a creature of the law, while the right to receive alimony is a natural right.

In the case of Weyand v. Weyand, 169 La. 392, 125 So. 282, the court said:

“An order of court compelling a man to support his wife during the pendency of a suit for divorce or for separation from bed and board compels him merely to perform a natural obligation, for the neglect of which, even without any such order of court, he would be subject to criminal prosecution.”

■ Furthermore, alimony is only allowed to relatives, wife, ascendants, and descendants, and, if there is any discrimination in section 21 of Act No. 20 of 1914, as amended, it is one between relatives and strangers, a discrimination that is allowed.

The general rule is that claims for alimony are not subject to exemption statutes. 11 Ruling Case Law, page 537.

. It is the natural and legal duty of a father to support, maintain, and educate his children. Gates v. Renfroe, 7 La. Ann. 569; Walker v. Barrow, 43 La. Ann. 863, 9 So. 479.

Illegitimate children, when their filiation is proven, are entitled to alimony from their father’s estate; Civil Code, arts. 230, 231; Collins v. Hallier, 12 La. Ann. 678; Civil Code, arts. 206, 241, 919; Liautaud v. Baptiste, 3 Rob. 441.

An order for alimony, in a divorce suit, is nothing more than the judicial sanction and enforcement, under abnormal conditions, through the judiciary, of the duty of the husband to support his wife. Civil Code, arts. 119, 120; State ex rel. Huber v. King, Judge, 49 La. Ann. 1503, 22 So. 887.

Alimony is not a debt, and one to whom alimony has been awarded, is not a creditor of the defendant in the. alimony proceedings. The father owes alimony to his offspring, and the husband to his wife. It is a natural obligation, not founded on contract.

The section of the act referred to says that claims or payments under the act shall be exempt from all claims of creditors. There cannot be a creditor without a debtor. A judgment for alimony lacks some of the essential attributes of a debt. One such attribute is certainty as to amount and maturity. A judgment for alimony generally provides a monthly allowance. The total and the maturity depend upon how long the wife shall live, when, if at all, she remarries, and how long the minor child shall live. Thus both in amount and maturity it is uncertain. .

It was held in Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084, that a discharge in bankruptcy is no bar to enforcing an agreement of a husband to pay an annuity to his divorced wife during her life, or until she remarries, because there is a substantial impossibility of estimating the valué of the contingency of a remarriage. Unlike most judgments, certainty is lacking, because the alimony order remains in court and is subject to be changed or canceled at any time. Wetmore v. Markoe, 196 U. S. 68, 25 S. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265; Audubon v. Shufeldt, 181 U. S. 576, 21 S. Ct. 735, 45 L. Ed. 1009.

In the Audubon case, the Supreme Court of the United States approved Alexander v. Alexander, 13 App. D. C. 352, 45 L. R. A. 806, in holding that the allowance of alimony is not in the nature of an absolute debt. It is not unconditional and unchangeable. It may be changed in amount even when payments are in arrear on good cause shown ,to the court having jurisdiction.

The Constitution prohibits imprisonment for debt, but in Louisiana, as well as in other states of the Union, one failing to pay the alimony ordered by the court may be sentenced to jail for contempt of court. It is universally held that such a judgment is not a debt within the prohibition against imprisonment for debt.

Such a debt is not a provable debt within the meaning of the Bankruptcy Act. Audubon v. Shufeldt, supra; Dunbar v. Dunbar, supra; Wetmore v. Markoe, supra.

The homestead is not subject to an ordinary debt, yet is subject to an allowance for alimony. Schooley v. Schooley, 184 Iowa, 835, 169 N. W. 56, 11 A. L. R. 116.

Neither is pension money exempt from an alimony judgment.

A number of authorities hold that enforcement of an award for alimony is not the obligation of a debt, but a sequestration, akin to a decree for specific performance or partition. That, by analogy to marriage settlements, alimony is a setting aside of part of the joint estate for the purpose of avoiding the family becoming a public charge.

It was ruled in Ex parte Perkins, 18 Cal. 60, that an allowance of alimony is not technically a debt; that the husband owes the wife no specific amount of money; and that the judgment, instead of evidencing a debt, is the making definite of an imperfect obligation — that of support — a compelling of the husband to perform a duty. Schooley v. Schooley, 184 Iowa, 835, 169 N. W. 56, 11 A. L. R. 119.

Alimony does not arise from any business transaction, but from the relation of marriage and the relation of parent and child. It is not founded on contract, express or implied, but on a natural and legal duty.

In State ex rel. Cook v. Cook, 66 Ohio St. 566, 64 N. E. 567, 568, 58 L. R. A. 625, in reasoning why an award of alimony was not within the prohibition against imprisonment for debt, the court said:

“It seems manifest that, so far as the obligation of the husband enters into the consideration and affords a basis for the court’s action, it is not a debt in the sense of a pecuniary obligation. It arises from a duty which the husband owes as well to the public as to the wife, but it is not upon any specific contract. * * * The liability originates in the wrongful act of the husband, against the consequences of which the public as well as the wife has the right to be protected.”

• The court, by its decree, makes specific a general duty to support created by the marital relation and by public policy. Schooley v. Schooley, 184 Iowa, 835, 169 N. W. 56, 11 A. L. R. 117.

Alimony, as a rule, is an allowance out of a portion of the husband’s earnings or current income. It does not matter from what source his income is derived, it is not exempt from a judgment of alimony. Therefore, the exception made in section 21 of Act No,. 20 of 1914, as amended, was unnecessary and only restated that which was the law before its enactment.

We therefore are of the opinion that section 21 of Act No. 20 of 1914, as amended, is not unconstitutional as class legislation or as denying the equal protection of the law. The exception covers natural obligations only, which are entirely different and distinct from ordinary debts.

The act states that the claims or payments under it are not assignable and are exempt from all claims of creditors, and from attachment, etc.; therefore plaintiff was without right to ■ attach the judgment in favor of the defendant, and therefore the court of Caddo parish was without jurisdiction of his suit.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3882
    Second Circuit
    ST. LOUIS SOUTHWESTERN RY. CO. v. RIVERS ET AL.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued defendants for $169.66, alleging an undercharge of freight on a car of railroad ties from Luliff, Texas, to Alden Bridge, La. The shipment weighed 99,800 pounds, for which plaintiff charged defendants 21% cents per hundred pounds for freight, which amount was paid. The shipment was made on December 22, 1922, and on the 24th of December, 192», the present suit was instituted.

The only question to decide is, what was the correct freight rate on this commodity between Luliff, Texas, and Alden Bridge, La., at that time. Plaintiff contends that it should have been 38% cents per hundred pounds, and defendants contend that the correct rate was 21% cents per hundred pounds, the amount they p^id.

The evidence in the case is short. Plaintiff used its tariff expert, who was of the opinion that the rate of 38% cents per hundred pounds was correct, and 'it also filed five letters from the Interstate Commerce Commission and the Bureau of Traffic of the Interstate Commerce Commission, all in answer to inquiries regarding this particular shipment. Two of the letters state that the correct charge is 20 cents per hundred pounds, two that it is 24% cents per hundred, and the last letter, from the acting secretary, states that 38% cents is correct.

The defendants offered the testimony of two experts on freight tariffs, one the traffic manager of the Shreveport Chamber oi Commerce! who had thirty-one years’ experience with the various railroads, and one the traffic agent of the Chicago & Alton Railroad Company, both of whom testified that the correct rate was 21% cents per hundred pounds.

• We are convinced that the confusion was caused by the difference’ in rates on old rails and new rails, and that plaintiff is attempting to collect a rate that applies to new rails instead of old rails, although all of the letters filed in evidence show that the shipment was one of old rails, that would take a special rate.

The lower court rendered judgment for plaintiff, holding that the rate of 38% cents per hundred applied. He did not file a written opinion, and we do not know what the judgment is based on. He may have had the schedule of railroad tariffs before him. If so, they were not filed in evidence, and we only have the opinions of the three experts and the five letters from the Interstate Commerce Commission and Traffic Bureau of the Interstate Commerce Commission. Two of the experts think a rate of 2\yz .cents should apply and one thinks a rate of 38% cents should apply. There was undoubtedly no certainty about what the correct rate was, as is shown by the five letters, two of which fix 20 cents as the proper rate, two that fix 24% cents as the proper rate, and one that fixes 38% cents as the proper rate.

The plaintiff assumes the burden of proving its _ case with a preponderance of evidence, and in this case we are convinced that the preponderance of testimony is against the plaintiff, and that its demands should be rejected.

It is therefore ordered,' adjudged, and decreed that the judgment of the lower court be reversed, and the demands of the plaintiff rejected at .its cos.t in both courts.


author: WEBB, J.

text:
    No. 3348
    Second Circuit
    GILLON ET AL. v. MILLER
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)

      J. Rush Wimberly and George M. Wallace, of Arcadia, attorneys for plaintiffs, appellants.
    Stewart & Stewart, of Minden, attorneys for defendant, appellee.
   WEBB, J.

Plaintiffs, Ed. B. Gillon and A. B. Rogers & Co., Inc., cotton brokers at Ringgold, Louisiana, sold cotton to J. L. Dupuy and W. H. Gates, buyers, at Min-den, Louisiana, and drew drafts on the Bank of Minden for the purchase price, and the drafts, together with bills of lading for the cotton attached, were delivered by the drawers to the Bank of Ring-gold, of Ringgold, Louisiana, which sent them, with the bills of lading attached, to its correspondent, the First National Bank of Shreveport, at Shreveport, Louisiana, by which the drafts, with the bills of lading attached, were sent to the Bank of Minden. The drawees were unable to pay the drafts on presentation and the Bank of Minden, for some reason, held the drafts for some time before protesting them for non-payment and returning them to the First National Bank of Shreveport. There was a decline in the market price of cotton during the time the drafts were being transmitted to and held by the Bank of Minden, and on their being returned to the First National Bank of Shreveport, W. B. Jacobs, a representative of that bank, and O. G. Thomas, the president of the Bank of Ringgold, called on the Bank of MindeD, at which time some negotiations were had, 'and R. H. Miller, the cashier of the Bank of Minden, gave to O. G. Thomas a check for the sum of $1239, drawn on the Bank of Minden, payable to the order of the Bank of Ringgold, which was subsequently endorsed by the Bank of Ringgold “Pay to the order of E. B. Gillon and A. B. Rogers & Co., Inc., without recourse,” and transferred to the plaintiffs, who brought the present suit against Miller on the check.

Plaintiffs alleged that they had acquired the check for a valuable consideration and in due course; that on presentation of the check payment was refused; and they prayed for judgment for the amount of the check, with legal interest from October 22, 1926, and all costs.

Defendant filed an exception of no cause of action, which was referred to the merits, and an exception of misjoinder, which was overruled, and defendant then, reserving his rights under the exceptions, answered, denying that A. B. Rogers & Co., Inc., was a corporation, and alleged that he had become indebted to the Bank of Ringgold some time prior to the date of the check, October 22, 1926, and that a method of settlement was agreed upon between him and the Bank of Ringgold under which his indebtedness should have been $414.85, but that due to error in calculation the check was drawn for $1239, instead of the correct sum due; that after notifying O. G. Thomas, the president of the Bank of Ringgold, of the error, he stopped páyment on the check; and that plaintiffs were advised of the claim that the amount of the check was erroneous and that payment had been stopped on the check at the time it was endorsed and transferred to them.

Defendant prayed that plaintiffs’ demands be rejected and on trial judgment having been rendered rejecting their demand as in case of non-suit, plaintiffs have appealed.

The evidence conclusively established that plaintiffs were fully aware of the circumstances under which the check had been given by defendant to the Bank of Ringgold and that he had stopped payment on the check on the claim that the amount of the check was erroneous; and we do not understand that it is contended that the defense set up was not available against the plaintiffs, but, as we gather from the brief of appellants, it is contended that the defense was not established, and, if so, that the evide.nce only established a partial want of consideration and that plaintiffs should have had judgment for the amount of $414.85, with interest as demanded; while appellee contends that in any event plaintiffs’ demand should have been dismissed as there was not any proof that A. B. Rogers & Co., Inc., was a corporation, and for the further reason that there was not any evidence showing any community of interest between the plaintiffs in the note.

Considering the defense that the evidence failed to establish that A. B. Rogers & Co., Inc., -was a corporation, it is apparent that such a defense is based upon a want of capacity in A. B. Rogers & Co., Inc., to stand in judgment, and as such defense must be specially pleaded in limine (Art. 333, C. P.; Gaulden v. Kansas City Southern Ry. Co., 106 La. 409, 30 So. 889; Dunlevy Packing Co. v. Juderman, 1 La. App. 476), and as defendant failed to raise the issue in limine the corporate existence of A. B. Rogers & Co., Inc., and its capacity to stand in judgment was admitted; and unless it may be said that E. B. Gillon and A. B. Rogers & Co., Inc., could not join as co-plaintiffs in an action on the check, which was endorsed and transferred to them, there is not any reason why they should not have judgment for the amount shown to be due.

It is not suggested that a judgment rendered jointly in plaintiffs’ favor against defendant would not be res adjudicata, or that such a judgment would not be in accord with the pleadings; but aside from that we are of the opinion that the check having been endorsed by the payee and transferred to plaintiffs they were properly joined as plaintiffs in the action to enforce collection (Cross on Pleading, p. 17, sec. 18; Ailing v. Woodruff, 16 La. Ann. 6).

Considering the merits, while, as indicated above, the answer of defendant was vague, in that it was not alleged w.hat was the source of the obligation, defendant, however, alleged that he became indebted to the Bank of Ringgold, and the parties proceeded to trial apparently on the theory that the plea of defendant was that there was a partial want of consideration for the check, in support of which theory Miller, the defendant, stated that the agreement was that he would pay the Bank of Ringgold the difference between the market value of the cotton on the date the drafts were delivered to and the date the drafts were returned by the Bank of Min-den; and while O. G. Thomas, the other party to the agreement, admitted that the amount of the check was the difference between the invoice price of the cotton and its market price on the date the drafts were returned *by the Bank of Minden, he denied that there was any agreement that Miller would pay the difference between the market price of the cotton on the date the drafts were delivered to and the date they were returned by the Bank of Min-den, and he stated that it was agreed that Miller would pay the protest fees of $14 which was included in the amount of the check.

There was not any evidence introduced to show the details of the agreement between the parties, O. G. Thomas, W. B. Jacobs and R. H. Miller, or what claim they were attempting to settle; but, considering the statement of facts hereinabove stated we assume that the Bank of Ring-gold claimed that the Bank of Minden, having failed to promptly return the drafts, was liable to it for the amount of the drafts (Negotiable Instrument Law, Act No. 64 of 1904, sec. 137; First National Bank v. Citizens Bank, 163 La. 919, 113 So. 147); and Miller having alleged that he became indebted to the Bank of Ring-gold, we assume that the negotiations between the parties, Thomas, Jacobs and Miller, was with reference to a settlement of the liability of the Bank of Minden assumed by Miller; and considering the evidence relative to the alleged error from that point of view, the burden of proof was on defendant to establish error. The preponderance of the evidence does not establish that there was an agreement that defendant would pay only the difference between the market price of the cotton on the date the drafts were delivered to and the date they were returned by the Bank of Minden, and the evidence showing that the parties did agree that the protest fees of $14 should be paid by Miller, which amount was added to the amount represented by the difference between the invoice price and the market price of the cotton on the date that the drafts were returned by the Bank of Minden, plaintiffs should have judgment for the amount of the check, with interest.

The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiffs, E. B. Gillon and A. B. Rogers & Co., Inc., have and recover judgment against defendant, R. H. Miller, in the sum of $1239, with legal interest thereon from October 22, 1926, until paid, and all costs of suit. •

DREW, J., recused.


author: ODOM, J.

text:
    No. 3938
    Second Circuit
    COMEGYS v. LOUISIANA TAX COMMISSION ET AL.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Thomas M. Comegys, Jr., of Shreveport, attorney for plaintiff, appellant.
    Robert J. O’Neal, of Shreveport, attorney for defendants, appellees.
   ODOM, J.

Plaintiff, who owned certain lots in Shreveport, improved by brick buildings erected thereon and used for commercial purposes, brought this • suit to reduce his assessment, and has appealed from a judgment rejecting his' demands.

In the year 1929, plaintiff filed with the tax assessor what he refers to in a sworn list or return of his property for assessment purposes, as follows:

Item 1. Improvements on Lot 44, Tucker Subdivision, less that part taken by Thurmond Street, in Shreveport, La___________________________________$ 2,000
Item 2. Improvements on Lot 12, Block 5, Shreveport, La..................... 4,000
Item 3. Improvements on Lot 8 and half of Lot 7, Block 7, Shreveport, La_____________________________________________________________ 28,500
Item 4. Improvements on that property described as Part of Lot 32, Block 69, Ten-Acre Lot 4 and Lot 15, Block 3, Ten-Acre Lot 5, fronting 25 feet on Texas Avenue, per Jeter’s City Plat 807, Tract 43, ’ Shreveport, La_________________________________ 4,500
The total valuation placed upon the above items being________________$39,000

Plaintiff made no list or return showing the valuation of the lots on which these improvements are situated or the value of the property as a whole. The assessor, it seems, ignored the sworn list or return as made by the property owner, but in the case of each item assessed the lots as improved by the buildings thereon as one piece or item of real estate and placed thereon a value which he says he considered fair and equitable, as compared with other- assessments, and not above the actual cash value.

In conformity with section 17, Act No. 170 of 1898, the assessor, in making out his assessment for the purpose of taxation, made a statement showing “the actual cash value of the lands or lots” and “the actual cash value of the improvements thereon.” His listing or statement of the value of the improvements on these different pieces of property showed the value of the lots and improvements to be as follows:

The lot described in Item No. 1 was valued at $2,000 and the improvements thereon at $3,000, or a,total of $5,000, for the property as a whole; the lot described under Item No. 2 was valued at $20,000 and the improvements thereon at $8,000, or a total of $28,000; in Item No. 3 the lot was listed at $10,000 and the improvements at $40,000, or a total of $50,000; and Item No. 4, lot $5,000, improvements $7,500, or a total valuation of $12,500. So that the assessor’s estimate of, the value of the improvements on all these lots was $58,500, or $19,500 in excess of the. value return made by the property owner.

Plaintiff alleged that the valuation placed hy him on the improvements was the actual cash value thereof at the time and he asks that the valuation of the improvements made by the assessor and approved by the police jury and the tax commission be reduced to the amount fixed by him.

The property owned by plaintiff consists of city lots improved by. the erection thereon of brick buildings used for commercial purposes. There is no assessment of machinery or implements involved. As stated, plaintiff made no return showing the valuation of the lots themselves or of the value of the lots • with the buildings— that is, the enhanced value of the lots arising from the buildings and improvements; and while he alleges that the valuation of the improvements as shown on the rolls made by the assessor is in excess of the actual cash value thereof, he does not allege and does not now contend that the valuation of the' property as a whole, that is, of the lots, as improved by the buildings, fixed by the assessor is in excess of the actual cash value of his real estate.

His theory and contention is that under the law, in cases where lands or lots are improved by buildings erected thereon, there must be two separate ássessments— one of the lands or lots and another of the buildings. We do not think so.

Real estate as defined in section 91, Act No. 170 of 1898, means and includes “not only land, city, town and village lots, but all things thereunto pertaining, and all structures and other things so annexed and attached thereto as to pass to the- vendee by the conveyance of the land or lot.”

The brick buildings or improvements on these lots are immovable by their nature and form part of the real estate. Each lot with the building thereon constitutes an item or a piece of .real estate which for assessment purposes, must be valued as a whole. The statutory method of arriving at the value of improved lands and lots for assessment purposes is to “take into consideration the enhanced value of the same arising from the buildings and improvements thereon.” (Section 17, Act No. 170 of 1898.) Behan v. Board of Assessors, 46 La. Ann. 870, 15 So. 397.

The actual cash value of property is the constitutional basis for taxation, and in the absence of any contention or showing of discrimination or inequality with other assessments, the property owner has no right to have his assessment reduced unless he can show that the value placed upon it by the taxing authorities is in excess of its actual cash value. In the present case there is no suggestion of discrimination or inequality, nor is it- alleged or' contended that plaintiff’s property as a whole, that is, the lots as improved, is assessed above its actual- cash value. In fact, plaintiff’s own testimony shows that the value of the property is in' excess of that placed upon it by the assessor. For instance, the lot and' improvements listed under Item No. 1 are valued as a whole by the assessor at $5,000; that listed under Item No. 2 at $28,000; that listed under Item No. 4 at $12,500. Plaintiff testified that he would not sell at these figures, and in the opinion of prominent realtors of the city, the actual cash value of the property is considerably more. The other item, listed as the Arlington Hotel, is assessed at $50,000. Plaintiff said if he were offered that price he would seriously consider the offer, but did not say that he would accept it.

Plaintiff testified, and there is other testimony to the same effect, that in some instances the valuation placed by him on the buildings themselves is approximately correct and that the assessor’s valuation of them on his rolls is excessive. But if that be true, the fact will avail plaintiff nothing for the reason that the buildings were not and could not be assessed separately from the lots. The assessor’s notation or statement on the rolls, showing his estimate of the value of the improvements was not a separate assessment of them. It may be that in arriving at the value of the lots, as improved by the buildings, the assessor has overstated the value of the buildings. But there was no effort made to show that he did _ not underestimate the value of the lots. The fact that the assessor erred, if he did, in his estimation of the values in this respect is not material since it manifestly appears that his valuation of the property as a whole is not excessive, but, on the contrary, is less than its actual cash value.

Counsel for plaintiff has favored us with an exhaustive brief in which he makes a very able and ingenious argument in support of the theory on which the suit is based. His contention is that the assessor, in listing real estate for purposes of taxation, must make two separate assessments where land or lots are improved — one assessment of the lands or lots themselves, and another of the buildings and improvements. He bases his argument and conclusion on section 10, Act No. 140 of 1916, as amended by Act No. 211 of 1918, sec. 1, which provides in paragraph 3 that it shall be the duty of the board of state affairs “to require the assessors to make up assessment rolls in a formal manner, and according to a method to be prescribed by the Board; to require the separate valuation and assessment of improved and unimproved property and the improvements thereon.”

By adopting the acts of 1916 and 1918, the Legislature did not intend to change the method of making assessments, which method is prescribed in the General Revenue Act of 1898. The act of 1916 created a board of state affairs and gave to that board the power and authority, in addition to others, to require assessors to do what they were directed to do under the General Revenue Act of 1898, that is, to make their assessments show the actual value of lands and “lots, squares or parcels of ground in incorporated or unincorporated cities, towns or villages, with all residences, houses, buildings, or other improvements thereon” and to “make a statement showing the actual cash value of land or lots, the actual cash value of improvements thereon.” Section 17, Act No. 170 of 1898. But the statement which assessors were required to make on their rolls, showing the value of the improvements, was not for assessment purposes, for the act expressly says:

“The true intent and object of this provision being for the purpose of gathering information and not especially for assessment for purposes of taxation.”

This is the general revenue act, and it prescribes the method of making assessments. In assessing lands and lots, assessors are directed to take into consideration “the enhanced value of the same arising from the buildings, and improvements thereon.” In other words, the assessor, in assessing an improved lot, shall assess the lot and the buildings thereon as a whole, that is, as one item or piece of real estate, and shall place a value thereon not exceeding the actual cash value of the lot as improved by the buildings. But the assessor is required to make a statement showing the actual cash value of the lot and the actual cash value of the improvements. But this statement, according to the letter of the act, is “for the purpose of gathering information and not especially for assessment for purposes of taxation,” that is, the statement is made for statistical purposes, as we understand it. It was not intended that, in cases where the lands or lots are improved by the erection of buildings thereon, there should- be two separate assessments, one of the lands or lots and another of the improvements, where, as in this case, the owner of the land or lot is the owner of the buildings also.

By adopting the acts of 1916 and 1918 above referred to, the Legislature did not intend, we think, to amend or repeal that part of the act of 1898 prescribing the method of making assessments. In fact, we see no conflict between the laws. That portion of section 10, Act No. 140 of 1916, as amended by Act No. 211 of 1918, sec. 1, which, counsel argues, authorizes and directs separate assessments of the improvements on lots and lands, means that the board of state affairs has authority and power to direct and, require assessors to furnish information as to the value of improvements on real estate.

Buildings such as those involved in this suit are immovable by their nature and are part of the realty. They would pass to the vendee by conveyance of the lots. The realty or real estate consists of the lots and the buildings and must be assessed as a whole. Where the ownership of lands or lots and the buildings thereon is in one and the same person, the buildings are legally inseparable from the lots for the purposes of assessment and taxation. There can be no split assessment of real estate consisting of lots and improvements thereon, where the ownership of each is in one and the same person.

Counsel cites the case of Tulane Improvement Company v. Board of Assessors, 121 La. 941, 46 So. 928, in which the court held that buildings were properly assessed separately from the land, and the case of Brown v. Hodge-Hunt Lumber Company, 162 La. 635, 110 So. 886, and other cases where it was held that standing timber might and should be assessed separately from the land. The cases are not in point, for the reason that in the Tulane Improvement Company case the owner of the building was not the owner of the land, and, in the other cases, the owners of the land were not the owners of the timber. There were separate estates in each case.

Counsel for the assessor, police jury, and board of state affairs, defendants, did not except to plaintiff’s petition on the ground that it set out no cause of action (and it did not), nor did he plead that the improvements on the lots were not subject to separate assessment from the lots, and counsel for plaintiff argues in effect that his failure to do so should be held to be an admission by defendants that the improvements may be assessed separately from the lots. Conceding that counsel should have excepted to the petition instead of objecting to all testimony, as he did, his failure in that respect does not bind the court to consider and accept as true that which is legally untrue. Plaintiff has proceeded all through upon the theory that under the law there should be two separate assessments — one of the lots and the other of the improvements thereon —arid contends that the assessor, in noting on his rolls separate valuations, has in fact made two assessments. That is not true. Under the view we take, the case must go against plaintiff, even if it be conceded that he proved every allegation he made.

For the reasons assigned, the judgment appealed from is affirmed, with all costs.


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    No. 3903
    Second Circuit
    HOY v. T. S. GRAYSON LUMBER CO., INC.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    John T. Campbell, of Minden, attorney for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Eva Hicks was an employee of the defendant company and while at work in February, 1929, he received an accidental injury to his foot. He died in August following. Plaintiff, the mother of Hicks, brought this suit under section 8, Act No. 20 of 1914, as finally amended by Act No. 242 of 1928, alleging that her son died as the result of the injury; that he left no widow or descendants; and that she was wholly dependent upon him for support. She asks for compensation, as provided in the act.

The suit was filed in the parish of Webster. Defendant excepted to the jurisdiction of that court on the alleged ground that its domicile was in the parish of Cad-do at the time the suit was filed. As there seems to have been no ruling on this exception, and as it is not urged here, we shall not notice it. Defendant also pleaded prescription of one year.’ Reserving its rights under these exceptions and pleas, defendant answered, admitting the employment, injury, and death of the said Hicks, but denied all other allegations, and especially denied that his death was due to the accident or that plaintiff was dependent in whole or in part upon her son. There was judgment for plaintiff overruling the plea of prescription and awarding plaintiff compensation at $5.85 per week for three hundred weeks. Defendant appealed.

ON THE PLEA OF PRESCRIPTION

Section 31, Act No. 20 of 1914, as finally amended by Act No. 85 of 1926, reads as follows:

“That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death of the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident, proceedings have been begun as provided in Sections 17 and 18 of this act. Where, however, such payments have been made in any ease, said limitations shall not take effect until the expiration of one year from the time of making the last payment.”

The employee, Eva Hicks, was injured in February, 1929, and died in August of that year, or within one year from the date of the accident. He and his employers did not agree upon the payments to be made under the act, nor did he begin proceedings to recover such payments pri- or to his death. His mother filed the present suit on February 20, 1930. There is some conflict in the testimony as to the date on which the employee was injured, but our conclusion is that he was injured more than one year prior to the date on which this suit was filed. The suit was filed, however, in less than one year from the date of his death.

Counsel for defendant contends that plaintiff’s action is barred under the letter of the law. His contention is that, in all cases where dependents were entitled to compensation under the act, they must bring their action for such within one year from the-date of the accident, or be forever barred. We do not think so. To hold that, under section 31 of the act, suits by dependents are barred by one year from the date of the accident, would be in effect to hold that in some cases, at least, they could not recover at all. To illustrate: Suppose an employee received an injury in the course of his employment which produced death one hour before the expiration of one year. The act provides that dependents are entitled to compensation where death ensues within one year after the accident. In such eases, the dependent widow for the benefit of herself and minor children, if she had any, or the dependent mother, as the case may be, would have just one hour in which to bring suit or be “forever barred.” Or to reduce the proposition to an absurdity, let us suppose that death occurred five minutes previous to the expiration of the year. In such case, it would be impossible for a widow or a mother to bring suit within one year. They would therefore have a right without a remedy. The act gives dependents a right and a remedy, and their remedy is to bring their action within one year from the date of the death and not from the date of the accident. Their cause of action rises, not from the accident itself, but from death, caused by the accident. They have no cause or right of action unless death ensues and none until then.

The holding as to prescription in the case of Guderian v. Sterling Sugar & Railway Co., Limited, 151 La. 59, 91 So. 546, 547, is applicable here, although the facts were different. There the suit was under the Compensation Acts, and prescription of one year was pleaded. In that ease the plaintiff sued for the loss of an eye, which resulted from a blow which at first produced no injurious effects upon it, but later caused its loss. Plaintiff instituted his suit more than one year after the date on which the blow was struck, but less than a year from the date of the loss of the eye. The court said:

“Plaintiff’s cause of action did not arise until he lost his eye. Tt is self-evident that one cannot sue until his cause of action arises. Concerning the prescription of one year applicable to offenses and quasi offenses, prescribed by article 3536 of the Civil Code, this court, in South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378, said:
“ ‘A person cannot bring suit until his cause of action has accrued, and until a cause of action has accrued, prescription cannot run against it. Jones v. T. & P. R. R. Co., 125 La. 542, 51 So. 582, 136 Am. St. Rep. 339.
“While the above was said in relation to another, though a kindred prescription, yet the fundamental principle involved is equally as applicable here as it was there. To the same effect as the South Arkansas Lumber Co. case is the case of Rady v. Fire Insurance Patrol, 126 La. 273, 52 So. 491, 139 Am. St. Rep. 511.”

The plea of prescription was properly overruled.

ON THE MERITS

The only defenses urged are that the death of the employee was not due to the accident, and that plaintiff was not actually dependent upon her son either wholly or in part.

Deceased was working for defendant as a log cutter and accidentally cut his foot with an ax. The wound was not serious, but soon became infected, and a physician, Dr. Kilgore, employed by defendant, treated him. Dr. Kilgore says the wound was infected when he first saw the patient, hut that the wound healed and the patient was discharged about March 25th. The patient was subsequently treated by other physicians who failed to give him relief and he was sent to the Charity Hospital in Shreveport where he remained about three weeks, without relief, and was sent to his mother’s home, where he died on August 8th.

In support of its contention that death was not due to the accident, defendant relies solely upon the testimony of Dr. Kilgore to the effect that the wound had healed when he discharged the patient on March 25th, and that death was due to causes wholly disconnected with the accident.

It is undisputed that, immediately after the wound became infected, deceased took to his bed and was so seriously ill from that date that he was never able to leave it, except possibly to sit up for short intervals during the early stages, and that prior to the accident he was a strong, healthy man. This leads strongly to the presumption that there was some connection between the accident, from which infection arose, and the death.

The testimony conclusively shows that death was caused by osteomyelitis, or inflammation of the bone marrow or the bones and the marrow, and that this disease was caused by infection. Dr. Kilgore says the wound was infected when he first saw the patient, that pus formed, and that germs got into the foot. But he says the wound had healed from the outside when he discharged him, and that there was no infection at thai time, although he says that even at that time the patient was complaining. “He complained of pain in the head, his eyes and head, and then his chest and side — complained all over.” He says that the patient had influenza, followed by pneumonia, and that, in his opinion, died of tubercular abscesses, although he did not see him between the date he discharged him on March 25th to August 8th, when "he died. But the physicians who treated him later and who were in better position to know stated positively that death was due to osteomyelitis, and we accept that opinion.

Dr. Kilgore’s own testimony, however, shows that in his opinion the osteomyelitis may have been caused by the infection from the wound, even though it had healed from the outside. He said:

“In a certain number of days, it would not have been entirely healed, but his inflammation subsided there, and it could have been taken up by the circulation and deposited in some of the long bones — in the mafrow of some of the long bones — and very likely would have been more apt to be — well, it would have had to be in the long bones where there is bone marrow. That is what myelitis is.”

There is, therefore, no difference between the opinion of Dr. Kilgore and that of other physicians who testified (and the generally accepted theory) on this point; that is, that infection in one part' of the body may be and frequently is taken up by the circulation, carried to and deposited in other parts of the body. Infection from a tooth, for instance, may affect the eyes, the heart, the kidneys, the prostate, and may even cause sciatica. In the present case, the disease, osteomyelitis, manifested itself in the hip and lower vertebrae and, in the opinion of the physicians (except Dr. Kilgore), it was caused by infection carried from the foot to those parts of the body and there deposited.

As against the testimony of Dr. Kilgore that the foot had healed, we have to the contrary that of all the lay witnesses who attended the patient and who say that the foot was always sore. Dr. French, who examined the patient on April 9th, shortly after he was discharged by Dr. Kilgore, said the foot was then very tender and swollen, “externally, it appeared to be healed, but there was some internal involvement.” His opinion was that death resulted from the infection from the wound.

Dr. Benton examined the patient in the latter part of June and found him in the terminal stages of infection, “mostly in the spinal column and sacrum; the bones had broken down and an abscess had formed and he was running temperature. He was emaciated and toxic,” and, after hearing a history of the case, he said:

“Why, I would attribute the osteomyelitis there to the infection as a result of the injury.”

From all this, we are convinced and hold that the disease from which the employee died resulted from infection caused by the injury which he received while at work.

AS TO DEPENDENCY

Plaintiff proved to our entire satisfaction that she was actually dependent, at least in part, upon her son for support, and that up to the time he was injured, and for more than a year prior thereto, he had given to her, not only money, but groceries, and had paid the taxes on the tract of land on which she was living. She and her brother testified that he had contributed about $400 per year. He could not have contributed that much, for that was more than he was making. It may well be said, as contended by counsel for defendant, that this shows she was disposed to exaggerate and misrepresent the facts. We think, however, that their exaggeration as to the total amount contributed should be attributed more to ignorance than to an intent to willfully falsify. Neither plaintiff nor any of her witnesses pretended to itemize the amounts contributed or to state the exact dates of the contributions. But plaintiff, her brother, and three other witnesses testified positively that deceased constantly and regularly contributed to her support in the way of provisions and money, and their testimony is not contradicted, except inferentially. i

Deceased was about forty years old and had never married. For a time prior to his injury he lived in a house to himself, on which he paid no rent, and a woman lived with him and did his cooking. The inference which counsel draws is that it took all he earned to keep up his own establishment. But the fact that he did live for a while to himself and that he had his meals cooked there is not sufficient to overcome the positive testimony that he did actually contribute to his mother’s support all the while.

It is suggested that the mother was not in need of help and not actually dependent upon any one. We think she was. She is a colored woman nearly sixty years of age. She lives on a small farm in which, it seems, she owns a one-fourth interest. She had some cows and some chickens, but there is no testimony that she ever sold milk, butter, or eggs. She farmed with no one to help her, and some years made as much as one bale of cotton, other years less. She had had three husbands, but the last one abandoned her several years ago, and she received no help from any of them. She had one other son, but he had a family and contributed nothing to her support. She washed for her brother, who occasionally gave her as much as a dollar. It is probably true that, without assistance, plaintiff could and would have eked out a bare existence on this farm, but it is clear enough that she needed some help from outside sources. Under the law and jurisprudence, she is entitled to recover. Gregory et al. v. Standard Oil Co., 151 La. 228, 91 So. 717; Zeller v. La. Cypress Lumber Co., 9 La. App. 609, 121 So. 670; Cauthorn v. Cypress Tank Co., 1 La. App. 100; Nelson v. Henderson Iron Works, 1 La. App. 332; Rupp v. Reimann Co., 7 La. App. 635; Hammons v. Edwards, 6 La. App. 752; Grant v. La. Sawmill Co., 8 La. App. 673.

The judgment appealed from is correct, and is accordingly affirmed, with all costs.


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    No. 3876
    Second Circuit
    DEALER’S FINANCE CO., INC., v. FEATHERSTONE, SR.
    (December 23, 1930. Opinion and Decree.)

      Dhu Thompson, of Monroe, attorney for plaintiff, appellee.
    J. W. Elder, of Ruston, attorney for defendant, appellant.
   ODOM, J.

This suit is to recover the balance alleged to be due for repairs to, and accessories for, an automobile owned by defendant. The account was originally owned by the Webster Motor Company, Incorporated, of Minden, La., and was by that company transferred to plaintiff. Defendant’s contention is that the account is for repairs to a car not owned by him but owned by the Webster Motor Company, Incorporated.

The Webster Motor Company was an automobile dealer, and sold Ford cars at Minden. Defendant was in the market for a new model “A” Tudor sedan Ford car and while in Shreveport in December, 1927, called the dealer in Minden over the telephone and told Mr. Menefee, the manager, that he wanted a new car, and that he had an old Ford which he wanted to use in the trade. Menefee told defendant that he would be in Shreveport in two hours to see him, but, instead of going himself, he sent his son. The two met at a hotel, where defendant says he closed the trade for a new car at the price of $648.62 to be paid as follows: Credit for the old car at $348.62, and the balance of $300 in cash, which he paid then and there by check which was accepted and cashed by the dealer.

It is defendant’s contention that, by this' transaction with young Menefee, representing the dealer, the old Ford then and there became the property of the dealer, and that the full price of the new Ford was paid.

The dealer, on the other hand, contends that it did not agree to accept and give credit for the old Ford at $348.62 or at any other price, but that the understanding was that it would take the old car,put it in running condition, sell it at the' best price obtainable, and credit the proceedings on the price of the new car. It finally sold the old car for $200, and gave defendant credit for the amount. Defendant paid an additional $100 on May 6, 1928, and $50 in March, 1929. These amounts, together with the $300 originally paid and the credit of $200 for the old car, overpaid the price of the new car by $1.38.

The principal controversy between the parties is whether the dealer agreed to allow defendant a credit of $348.62 for the old car, in which event the dealer became the owner of it, or whether it agreed to. take it and sell it for the account of defendant, giving him credit for what it would bring. If defendant’s version of the transaction is correct, then he does not owe the account sued on, which is principally for repairs on the old car.

The trial judge, after hearing the witnesses, held that the transaction was as contended by the dealer, that is, that the old car was to be taken, put in running condition, and sold for the best price obtainable, the proceeds to be credited on the price of the new car, which was done. We think he did not err in his conclusions.

If, as defendant contends, the dealer was to take the old ear at $348.62, which, added to the $300 paid in cash, made up the full price of the new Ford, the defendant owed nothing more. But he admits that four months later he paid the dealer an additional sum of $100, and still later $50 more, or $150 more than the price of the new car. The dealer gave defendant a receipt for the $100 paid on May 6, 1928, which reads:

“Received of L. H. Featherstone one hundred dollars ($100.00) to apply on new car.”

Nearly one year later, on March 9, 1929, he paid by check an additional $50, and wrote in the face of the check, “Balance on last Ford, Model 1928.” He therefore paid $150 more for the new Ford than he says he agreed to pay, which seems rather remarkable.

In explanation as to why he paid the $100 on May 6, defendant testified that the dealer could not deliver the new car promptly, and that it let him use the old car which he turned in until the new one came, and that he did not want to be “short” about anything, and thought he should pay something for the use of it. But by saying that, he completely shifted his position, for he alleged in his answer that the dealer was slow about delivering the new car, that he repeatedly called upon it to make delivery, and “they were not yet ready to deliver the said new car but agreed to furnish (defendant with a used car until they could secure from the factory or elsewhere a car of the kind and character sold to defendant and to keep the said used car in repair for defendant without charge until they could make delivery of the new car.” (Italics ours.) If that be true, he owed nothing for the use of the used car.

We note also that defendant testified further that the $100 paid in May was in the nature of a “tip” to the dealer to get it to speed up delivery. Further in defendant’s answer he alleged that the “company agreed that on the payment of $100.00 additional to their former agreement they would then deliver ’'.he car of the kind and character sold.” Mr. Menefee, the manager, and Mr. Holland, the bookkeeper, denied this, and testified that, when defendant became restless about the new car, and they could not make delivery because new cars could not be obtained from the factory, they offered to return the $300 which he had advanced and the old car, and cancel the order, and that defendant refused. Defendant admits this.

On the record as made up and presented to us, we must hold that the dealer’s version of the transaction is correct.

Now, as to the account sued on: It is made up of items for repairs to and parts for the old car which defendant turned in and which he used for something like three months previous to the delivery of a new car in June. When the dealer took possession of it, it would not run, and had to be repaired in Shreveport before it could be carried to Minden. The dealer paid this bill. It made the other repairs, and supplied the parts later, some <3f them while defendant was using it. Some of the items charged are for adjustments and repairs on the new car after it was delivered. Defendant says he should not be charged for this service, for the reason that the dealers were obligated to service the car under its contract of sale. The testimony shows that under the contract the dealer was to service the new car free of charge for ninety days, or until it ran fifteen hundred miles, and that the charges made were for service on the car after it had run twenty-one hundred miles and more. As defendant received all this service on cars which, belonged to him, he must pay for it.

The case was submitted on briefs, and we note that counsel for defendant says the account was not proved. The dealer did not produce the witnesses who made the repairs, but the manager stated that, while he did not make them, he saw that the cars were in the shop being repaired from time to time, and the bookkeeper said the charges were made on the books in the usual course from service records furnished him. Defendant does not deny that the work was done and the parts furnished. He testified that he did not owe the account, but his theory seems to be that the old car belonged to the dealer, and not to him, and that, in so far as the new car is concerned, the repairs should have been made without charge to him. We do not think so.

The judgment appealed from is correct, and is accordingly affirmed, with all costs.


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    No. 3879
    Second Circuit
    HERRINGTON v. MAGEE ET AL.
    (December 23, 1930. Opinion and Decree.)
    McHenry, Montgomery, Lamkin and Lam-kin, of Monroe; and Warren Hunt, of Ray-ville, attorneys for plaintiff, appellee.
    George Wesley Smith, of Rayville, attorney for defendants, appellants.
   ODOM, J.

On August 2, 1928, the defendant John W. Magee shot the plaintiff L. Z. Herrington with a pistol and wounded him severely. Herrington brought this suit for damages against J. W. Magee and his son, alleging that the assault was -provoked by defendant; that the shooting was done willfully, maliciously, and without justification or excuse.

Defendant J. W. Magee, Sr., admitted in answer that he shot plaintiff, but denied generally plaintiff’s other allegations, and especially pleaded that he shot plaintiff in self-defense. The defendant J. W. Ma-gee, Jr., denied any connection” whatever with the shooting.

The law in eases of this kind is so plain that it hardly need be stated. Certainly if defendant made an unprovoked assault upon plaintiff with a deadly weapon and wounded him he must compensate the resulting damage. On the other hand, if plaintiff himself provoked or brought on the difficulty he cannot recover.

Counsel for defendant on behalf of his client invoked the well-established rule that;

“He who is in fault and sues for damages resulting therefrom cannot recover for the injuries inflicted on him, although the perpetrator was not justified in law in his conduct.”

The leading cases in point are cited in the case of Lide v. Parker, 6 La. App. 648, decided by us in 1927. But see Massett v. Keff, 116 La. 1107, 41 So. 330, and Fontenelle v. Waguespack, 150 La. 316, 90 So. 662.

It is contended that the conduct of plaintiff toward defendant on the day previous to the shooting should be considered in connection with the final assault. We do not think so for reasons which we shall presently state. It is also contended that on the day and at the time of the shooting plaintiff made such hostile demonstrations toward defendant as to provoke him into taking the steps he did. We do not agree with, that view either.

Plaintiff and defendant are white men and live in a rural section of Richland parish. Plaintiff lived on defendant’s place and cultivated his land in 1927 and, from some of the testimony we infer, worked under the share system. He left defendant’s place at the end of the year and evidently something occurred to cause hard feelings between the two. At any rate, on August 1, 1928, the two met at or near the Cypress Creek bridge on a logging road which runs from a tie mill west to the main highway leading from Delhi north to Oak Grove. The parties both live in the vicinity and both farm. When they met in the road, defendant opened the conversation by asking plaintiff why it was he passed him without speaking. Whereupon plaintiff replied, “You have accused me of stealing your peas,” or words to that effect. Defendant’s retort was that plaintiff’s daughter had spent the previous night at his house and that she told him plaintiff had picked several hundred pounds of peas and had set aside only two basketsful for defendant and “if this is not stealing, what is it?” or words of similar import. Hot words ensued, plaintiff called defendant a liar, defendant applied an unmentionable epithet toward plaintiff, defendant, so plaintiff says, threatened to beat him to death, plaintiff drew his knife and threatened to carve defendant down to his size, and defendant, seeing plaintiff’s knife, left the scene and walked down the road. This took place in the road near Dritt Bruce’s house. After defendant left, plaintiff went into Dritt Bruce’s house and got a shotgun. He says it belonged to him and it did, and at one time he said he got it for the purpose of carrying it home, and again that he got it to defend himself. But he did not use it, although when he walked out with it he and Mrs. Bruce say defendant was still within range. Prom the testimony .given mainly by the two participants it is difficult to determine which one was in fault in bringing on this first encounter. Defendant admits, however, that he opened the conversation in the road by asking why plaintiff was passing without speaking. Evidently defendant knew the state of plaintiff’s mind. He practically admits that he had accused plaintiff of stealing peas, which accusation he knew plaintiff resented. Defendant did not, we think, approach plaintiff in a pleasant state of mind, and under the circumstances the remark to him was not calculated to bring forth a soft answer, nor did it, but on the contrary brought forth an eruption, insults, and assaults, not resulting, however, in a physical encounter.

But defendant contends that plaintiff was at fault. However, if he was, his conduct on that occasion was no excuse or justification for the assault which defendant made upon him the following dayi This occurred the day before the shooting. The parties separated and went to their respective homes, and neither followed up that wordy and heated encounter until the following, day, after each had time to cool and reflect. Neither party had a legal right to again bring it up or to provoke the other to action on account of it. So far as the record discloses the plaintiff was in no wise disposed to follow it up.

But according to the undisputed testimony defendant did follow it up on the following day, when he made what we hold was an unprovoked and wholly inexcusable attack upon the plaintiff.

The tie mill which we have mentioned is located about one-half mile east' of the main highway and is reached over a logging road which crosses Cypress Creek over a bridge. There is a logging camp located near the bridge on the east side of the creek. The tie mill is one-quarter of a mile from the camp. Ties and logs are hauled from the mill and surrounding woods over the logging road to the main highway and thence to the railroad. The defendant had a contract to haul ties, and a man named Dritt Bruce was hauling logs with a wagon and a four-up mule team. On the morning of August 2, 1928, the day after the first meeting of these parties, the defendant and his sons went out to the tie mill, got a load of ties, and came back to the camp at the bridge preparatory to carrying them on west over the 'logging road to the highway. Just before they got to the camp, Dritt Bruce and his son, Jimmy, drove by with a load of logs’ going in the direction defendant intended to go. About the time or just before defendant and his sons reached the camp with their load, the plaintiff Herrington crossed the bridge and walked west on the road following Bruce. The elder Magee, the defendant who did the shooting, saw Herrington cross the bridge and immediately left his sons with the load of ties and followed plaintiff at a rapid pace. He was then armed with a pistol which he was carrying in his shirt bosom. Plaintiff looked back and saw defendant overtaking him. When plaintiff caught up with the Bruce log wagon, he climbed upon it, taking a place upon the tongue or hounds of the wagon between the mules and the front end of the logs. He was not armed at the time. Then defendant, by walking rapidly over: took the wagon at the top of the hill in front of Bruce’s house. When he did so he walked around the wagon and up to where plaintiff was standing and immediately opened fire upon him. He shot at plaintiff five times, two bullets striking him, one on the upper part of the chest and the other on the arm.

Dritt Bruce was riding one of the wheel mules and his son Jimmy the other. Jimmy says if defendant said anything before beginning to shoot he did not hear it, but Dritt Bruce and plaintiff both say that about the moment defendant opened fire he said to plaintiff, “■ — - damn you, have you got your gun?” All agree that he began to shoot the moment he got to where plaintiff was.

Now 'defendant says he shot plaintiff because he was trying to get hold of an axe which was in a leather scabbard on the wagon tongue and that he was afraid plaintiff would do him bodily harm. That is his defense. Whether plaintiff was trying to get hold of the axe or not is a disputed point, but if he was that does not help defendant’s case one whit because he was the aggressor and brought on the difficulty.

It is an established rule of law that he who provokes and brings on a personal encounter with another thereby forfeits his right of self-defense. Defendant left his sons and his load of ties and followed plaintiff up the road one hundred fifty yards. His attitude was hostile and threatening. Plaintiff saw him following down the road at a rapid pace, and in view of what had happened the day before he had reason to believe that defendant would attack him. Under the circumstances plaintiff was fully warranted in preparing, if he did, for the anticipated attack.

Again, defendant says he did not intend to stop at the wagon, but to pass it and go on to his home, which was further west. We cannot accept as true such statement, because when he had emptied his pistol, instead of proceeding on toward' his home as he said he intended to do, he at once turned and went back east to where he left his sons and his truck. Every indication points to the conclusion that defendant’s purpose in going down the road was to catch up with plaintiff and have it out with him.

The trial judge in his reasons for judgment said:

“The testimony shows the shooting was done by John W. Magee, Senior and that it was done without justification or legal cause or in self defense.”

We fully agree with him.

The suit was brought against both John W. Magee and his son. We also agree with the trial judge that the testimony does not warrant a verdict against the son.

On the quantum of damage:

There was judgment for plaintiff for $2,-756.60. As plaintiff proved that he had expended approximately $256 for hospital and medical bills, we assume that the court fixed the damage for the personal injuries at $2,500. We do not think that amount is adequate.

One bullet entered plaintiff’s body somewhat in front of the shoulder joint and approximately two inches beneath the outer end of the collar bone, ranging down, penetrating the lower intestines in three places and lodging in front of and slightly above the right hip joint, where it still remains.

Immediately after the shooting plaintiff was rushed to a sanitarium in Vicksburg, where Dr. Tiswell performed what he referred to as an exploratory operation and closed the three punctures in the lower intestines; the bullet having been already located by use of the X-ray. Plaintiff remained in the sanitarium eleven days, where the doctors say he suffered excruciating pains. After going to his home he stayed in bed for thirty days, after which he walked on crutches for some time due .to the injury to the hip joint where the bullet lodged. Dr. May and Dr. Tiswell both say that he is a cripple for life. The plaintiff himself says that he has not been able to stand for any length of time or to do work of any character and his testimony is not disputed. He is still under treatment of a physician. Owing to the very serious character of the wound and in view of the unqualified opinion of the physicians who testified that plaintiff is permanently crippled, we think the award should be increased to $4,756.60.

For the reasons assigned it is ordered that the judgment be increased from $2,-756.60 to $4,756.60, and that as thus amended it be affirmed with all costs.


text:
    No. 3824
    Second Circuit
    A. L. HARRINGTON CO., INC., v. BARRON
    (December 23, 1930. Opinion and Decree.)
    O. A. Easterling, of Monroe, attorney for plaintiff, appellee.

      R. L. Williams, of Arcadia, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, A. L. Harrington Company, Inc., instituted this action against J. C. Barron to recover judgment on a promissory note, of date April 1, 1929, drawn by defendant for $781.30, payable to the order . of plaintiff sixty days after date, with 8 per cent per annum interest thereon from date, and stipulating for 20 per cent on the principal sum and interest as attorney’s fees.

The suit was filed and service had on the 9th day of August, 1929, and defendant answered on September 20, 1929, admitting that he signed the note sued upon, but alleged that, long before the note was due, he obtained from plaintiff an extension of the time of payment until September 1, 1929; that before said date he had offered to pay the note, together with accrued interest and cost of suit, and the plaintiff refused to accept same, and advised defendant that it would not be necessary to make a tender as he would not accept payment of the note without attorney’s fees, and defendant alleged that, because of the extension of time of payment, and his offer to pay before the expiration of such time, he does not owe any interest after September 1, 1929, attorney’s fees, or cost of suit.

On January 28, 1930, defendant filed an amended answer in which he set up an alternative defense, in which he alleged thac the due date of the note had been changed from June 15 to June 1, 1929, and that he (defendant) had thereby been released from any liability on the note.

On trial judgment was rendered in favor of plaintiff for the principal sum of the note, together with 8 per cent per annum interest thereon until paid, and 20 per cent on the principal sum and interest as attorney’s fees, and all cost of suit, from which judgment defendant appealed.

Appellant presents here both defenses set up in the trial court, urging first that the evidence established that plaintiff had extended the time for payment of the note until September 1, 1929, and, second that the time of payment as shown on the note had been altered or changed from June 15, to June 1, 1929.

Considering the alternative plea; As stated, the note was dated April 1, 1929, and made payable sixty days after date, but on the left-hand corner of the note there was a memorandum or notation reading, “Due June 1, 1929,” in which it appeared that the figure o“5” which had been originally written after the figure “1,” had been erased. The notation was not any part of the note, and the erasure of the entire notation would not have affected the note, but the evidence conclusively shows that the note and notation were written by the manager of the plaintiff company and sent to defendant for his signature, and at that time the figure “5” had been erased.

Defendant of course carried the burden of proof to show that the extension of the time of payment of the note was made by plaintiff until September 1, 1929, but it is certain, we think, that the preponderance of the evidence is to the contrary.

'The judgment appealed from is therefore affirmed.


text:
    No. 3848
    Second Circuit
    BAKER-LAWHORN & FORD, INC., v. LOUISIANA TAX COMM. ET AL.
    (November 7, 1930. Opinion and Decree.)
    Barnette & Roberts and Chris Barnette, of Shreveport, attorneys for plaintiff, appellee.
    Robert J. O’Neal, of Shreveport, attorney for defendants, appellants.
   WEBB, J.

Plaintiff, Baker-Lawhorn & Ford, Inc., a corporation engaged in the wholesale grocery business in Caddo parish, La., brought this action against the Louisiana tax commission and the taxing authorities of Caddo parish to obtain a reduction on the assessment for the year 1929 on a stock of merchandise from $50,-480 to $41,700, and, on trial the assessment being reduced to $42,064, defendants appeal.

The evidence shows that plaintiff had taken three inventories of the merchandise carried during the preceding year, showing the inventory value as $50,728 on January 1st, $57,047 on, July 1st, and $60,-428 on December 31st; and plaintiff took the mean amount of the inventories, or $56,086, as the inventory value of the average stock of merchandise carried during the year 1928, from which a deduction of $14,386, or 25.64 per cent was made, and it appears from the judgment that the court accepted the amount of $56,086 as the inventory value of the average stock of merchandise carried by the plaintiff during that year, from which a deduction of $14,-042, or 25 per cent was made.

Appellants urge that under the evidence the inventory value of the average stock of' goods carried by plaintiff was $60,428, and that the evidence did not warrant any deduction to be made from that amount, and, the presumption being that the assessment as made was correct, it should stand.

In presenting the cause here appellants state that, in assessing mercantile concerns, the assessment of the merchandise must be based upon the average amount of merchandise carried, which is conceded by appellee; but appellants contend there is not any decision holding that the mean amount of the inventories taken during the preceding year should be accepted as the inventory value of the average amount of merchandise carried during the year for which the assessment is made, and that, where a claim for reduction of assessment is made on the theory that the mean of the inventories taken during the preceding year shows the inventory value of the average amount, of merchandise carried, the burden of proof is on the plaintiff to establish that such mean amount correctly evidences the inventory value of the average stock of merchandise carried, and that, where a deduction is sought to be made from the inventory value, it must be shown that the merchandise will not sell for the inventory value in the ordinary course of business, and further that, where a deduction is made on a percentage basis, it is incumbent on the plaintiff to show with some degree of certainty the percentage of reduction.

It is conceded that the assessment as made is presumed to be correct (Bowman-Hicks Lumber Co. v. Reid, 169 La. 905, 126 So. 232; Mackay Telegraph Co. v. Board of State Affairs, 149 La. 397, 89 So. 249; Industrial Lumber Co. v. Oden, 147 La. 760, 85 So. 901), and, although there is not any decision cited in which it has been expressly held that the mean amount of the inventories taken in the preceding year must be taken as showing the inventory value of the average stock of merchandise carried during the year the assessment is made, there are several cases where the assessment has been based upon the mean amount of such inventories (Swift & Co. v. Board of Assessors, 115 La. 322, 38 So. 1006; Cudahy Packing Co. v. Board of Assessors, 115 La. 326, 38 So. 1008), but we are of the opinion that the mean amount of the inventories is merely evidence* of the inventory value of the average amount of merchandise carried, and that, where the evidence shows such mean amount is more or less than the average amount of merchandise carried, neither the taxing authorities nor the tax debtor is bound thereby (Peden Iron & Steel Co. v. Louisiana Tax Commission, 163 La. 103, 111 So. 614).

In the present instance the evidence shows that the amount of the inventory of date December 31, 1928, or $60,428, was carried on the statement of the assets and liabilities of the plaintiff as of date January 1, 1929, and with reference to that inventory the testimony of the president of the plaintiff company was as follows:

“Q. Is the merchandise on hand on January 1st the normal amount that you carry or lower or higher at that particular time?
“A. It is lower. * * *
“Q. And the amount that you have on hand on January 1st is always less than the average carried during the year?
“A. I believe it is.”

We are of the opinion that the evidence shows the mean amount of the inventories did not correctly show the inventory value of the average amount of merchandise carried by plaintiff, and that the amount as shown by the last inventory, or $60,428, was nearer correct, and should have been taken as the inventory value of the stock to be assessed, and that any deductions to be made must be taken from that amount.

And the further question to be considered is whether or not the evidence establishes that the actual cash value of the merchandise is less than $50,480, the amount at which it was assessed.

It is clear from the evidence that plaintiff, in arriving at the actual cash value of the merchandise, made a deduction of approximately 25 per cent, from the inventory value; and, in support of the correctness of such percentage of reduction, four witnesses were called, one of whom stated that the wholesale grocery business with which he was connected had recently liquidated another similar business, and that there was a loss of 17.3 per cent on the inventory value, that he thought the depreciation in such a stock of merchandise would be about 10 per cent, and that if sold in globo, the loss would be 20 per cent; another said that the depreciation would be about 10 per cent and the loss about 20 per cent if the concern discontinued business and sold the stock in the orderly course of business; while the other two stated the stock was not worth more than 75 per cent of the inventory value, apparently basing their estimate on the depreciation in the merchandise.

The parties conceded that the merchandise must be assessed at its actual cash value, and that the actual cash value is the price at which it would sell for in cash in the ordinary course of business (article 10, sec. 1, Constitution of 1921; section 6, Act No. 170 of 1898; Peavy-Wilson Lumber Co. v. Jackson, 161 La. 669, 109 So. 351), and, considering the provision in section 7, Act No. 170 of 1898 (revenue and taxation statute), which reads: “That in assessing mercantile firms the true intent and purpose of this act shall be held to mean, the placing of such value upon the stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, etc., as will represent in their aggregate a fail; average on the capital, both cash and credit, employed in the business,” with the provision in paragraph 6 of section 91 of the same statute that “the words ‘actual cash value’ * * * shall be held to mean a price that any piece of real estate or personal or movable property would sell for cash in the ordinary course of business,” etc., we are of the opinion that any reduction from the inventory value" of the merchandise should be based upon the value the merchandise would sell for if the business was continued and the merchandise sold to the customers of the business in the ordinary course.

With the exception of one of the witnesses, it does not appear that any of them had ever kept any memoranda of the loss which would be sustained on the inventory value of a given stock of merchandise when sold; and, while he states the loss was 17.3 per cent, it was not shown what was the condition of che merchandise, that is, whether or not the stock had been kept up prior to the time it was taken over by the concern with which the witness was connected, or how long the concern whose business was liquidated had been in business; tjut, conceding that the price received, or 82.7 per cent of the inventory value, was some criterion of the price at which the stock of merchandise would sell, the evidence shows that the taxing authorities assessed the stock of merchandise of plaintiff at 83.5 per cent of its inventory value, and any reduction on a percentage basis being clearly merely an approximation, we do not think that, assuming the taxing authorities based the reduction on a percentage basis, tne evidence was sufficient to overcome the presumption that the assessment as made was correct.

We do not hold that it is impossible for the actual cash value of a stock of merchandise, such as that carried by plaintiff, to be fixed by a deduction of a certain percentage from the inventory value (although it appears that two of the witnesses called by plaintiff were of that opinion), as it may be that persons who have been connected with a business for a long period of time would be able to make an estimate of the percentage of loss on the inventory value of a stock of merchandise where the stock was not kept up and sales made to the customers* in the ordinary course of the business; but, considering that the basis of the assessment is the inventory value of the merchandise, from which a deduction on a percentage basis is to be made, to cover the loss over a period of one year, it is clear, we think, that the principal factor to' be considered is the depreciation in the merchandise, which two of the witnesses said would not exceed 10 per cent, and clearly from that point of view the evidence does not establish that the assessment was excessive.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that plaintiff’s demands be rejected at its cost.