author: McGREGOR, J.

text:
    No. 3285
    Second Circuit
    EBARBO v. STACEY ET AL.
    (April 9, 1931. Opinion and Decree.)
    Boone & Boone, of Many, attorneys for plaintiff, appellee.
    Anna Judge Veters, of New Orleans, attorney for Federal Land Bank of New Orleans, plaintiff, appellee.
    Fraser & Carroll, of Many, attorneys for defendant, appellant.
    R. A. Fraser, of Many, attorney for defendant, H. T. Stacey.
   McGREGOR, J.

This is a possessory action, pure -and simple. The plaintiff alleges 'that he has been in possession of a certain tract of land north of a certain land line for over thirty-five years; that he has maintained his fence practically on this line for that length of time; and that the defendant H. T. Stacey owns the land immediately south of the said line. It is evident that the plaintiff and the defendant disagreed as to the correct location of the line between their respective lands. The defendant was not satisfied with the location of the line where plaintiff contended it was, and when they could not agree he employed the parish surveyor to locate it. The result was the location of the line north of where plaintiff had always, contended it was. Over the objection of the plaintiff the defendant proceeded to build a fence on this new line, the full length thereof, thus depriving the plaintiff of the strip of land between the two fences. The plaintiff protested against, this action of the defendant, and, as soon as the defendant had finished ■ the fence and had taken complete possession of the strip of land between the two fences, the plaintiff filed this suit in the form of a possessory action. He asked, not only to be restored to the possession of the property, but for certain damages which he claimed on account of the disturbance of his possession. The defendant answered and denied each and every allegation of the petition, and then alleged that he had done all in his power to get the plaintiff to join with him in having the boundary line judicially determined. He then asked the court to order a judicial survey, which was done. In accordance with this order the parish surveyor in due time proceeded to make the survey of the line with both plaintiff and defendant present. The result of this survey was the location of the line where the defendant had built his. fence. The surveyor then made a proces verbal and plat of his survey, had it witnessed by the legal number of witnesses, all in accordance with law, and filed the same in the clerk’s office in the record of this case.

Subsequently, the Federal Land Bank of New Orleans foreclosed a mortgage which it held on the property, and at. the sheriff’s sale became the purchaser. The bank then sold the property to J. W. Anderson, present defendant. The' plaintiff then filed a supplemental petition asking that Anderson be substituted as party defendant and asked for the same judgment against him as he had asked against the original defendant, H. T. Stacey. After an exception of no cause or right of action filed by the defendant Anderson was referred to the merits by the court, Anderson answered in about the same manner as Stacey had and called the Federal Land Bank of New Orleans in warranty on the ground that he had bought the property from the bank according to the line on which Stacey had built the fence, and asked that he have judgment against the bank for the loss of whatever land he might lose if the plaintiff should be given possession of the strip in controversy. The bank filed an exception and alleged that it sold to the defendant Anderson land “containing two hundred forty-three (243) acres, more or less”; that only eight or' ten acres of land were involved in the strip in controversy, and that this eight or ten acres is less than one-twentieth of the two hundred forty-three acres, the proportionate deficiency legally required .to support an action in diminution of price or a call in warranty founded thereon. It asked that the exception be sustained and that the call in warranty be dismissed. This exception was overruled, and default was entered against the bank, which made no future appearance in the case.

On trial in the lower court the defendants offered evidence concerning the line surveyed and established in accordance with the order of the court previously granad. All the testimony relative to this line was timely objected to by the plaintiff. It was admitted over this objection but subject to it. The ground of the objection to the introduction of this evidence was that it did in effect convert the possessory action into an action in boundary. The trial judge held that the action was a possessory action, and that it could not be converted into an action in boundary by the defendant, so, after he 'had admitted all the evidence relative to the survey and the establishment of the new line, he practically rejected it for the reason that a possessory action cannot be thus converted into an action in boundary by the defendant in his answer. The judgment of the court was in favor of the plaintiff, ordering the defendant Anderson to restore the possession of the strip of land in controversy to the plaintiff. All demands for damages were rejected, as well as Anderson’s demand in warranty against the Federal Land Bank of New Orleans. From this judgment defendant J. W. Anderson has appealed.

When the defendant H. T. Stacey went over, on the land that was in the actual possession of the plaintiff he was violating the law. If he was dissatisfied with the location of the line as contended for by the plaintiff, there was a legal remedy to which he had a right, an action in boundary, but instead of pursuing this remedy he took the law in his own hands, moved the line north, built his fence on it, and took possession of the strip of iand that at that instant was in the actual possession of the plaintiff. To resist this aggression on the part of the defendant Stacey, [ the plaintiff, had two remedies, to-wit, the possessory action or the action in boundary. He chose the former. In this action he had to allege and prove (1) that at the instant of the disturbance he was in the actual possession of the land, and (2) that he had had this possession for more than a year. He alleged and proved both of these facts.- His counsel appear to be extremely careful in their pleadings to bring and confine them strictly within the legal requirements of the law for the possessory action. Prior to the disturbance the defendant Stacey had a perfect right to bring an action in boundary to have the line established, but after the plaintiff had brought the possessory action the defendant could not convert the action into one of boundary. It is parallel with a case where a defendant holding a perfect title to a piece of land is prohibited from setting up this title in defense of a possessory action filed against him. The plaintiff in the possessory action may win, and, if he does, the defendant must comply with the judgment in the possessory action, even to the extent of paying damages, before he has the right to file a petitory action. In Wortham’s Civil Procedure, on page 51, there is the following significant statement which emphasizes this principle:

“It is permitted to the defendant at no time to change the issue from possessory to petitory without the consent of plaintiff. He must wait until the judgment in the possessory action has become final; and, if he is condemned, he must satisfy the judgment before bringing a petitory action. This rule is so far carried that the defendant in a possessory action, who is the real and legal owner, must pay the plaintiff in possession damages for cutting and removing his own timber from land in plaintiff’s possession before he can bring the petitory action.”

The same principle applies to an action in boundary. In the case at bar the line may rightly be north of where the plaintiff contends it is, but the' matter of the correctness of a boundary cannot be inquired into or determined in a possessory action any more than the question of title. After the plaintiff has been restored to his possession of the strip of land in controversy, the owner of the land will still have a right to bring an action in boundary, 'and it is entirely possible that the line may then be found to be where the defendant Stacey built his fence.

But defendant Anderson contends that he did not create the disturbance on which the possessory action was based, and that, therefore, the suit cannot be conducted against him' in that form, but that as to him it must be treated as an action in boundary. But one cannot be permitted to circumvent the rights of the plaintiff by simply selling the thing in dispute. When1 the Federal Land Bank of New Orleans foreclosed its- mortgage against the defendant Stacey, it did not defeat plaintiff’s possessory action already filed against him. It bought the property in at the sale subject to this suit and is bound by whatever judgment that is rendered. The same thing applies to defendant Anderson, who bought from the bank. He bought the land subject to the outcome of this suit. That being true, he was properly made a party defendant to this suit by supplemental petition. He could not in his answer change the suit into an action in boundary, but had to defend it as a possessory action, pure and simple. If, after the final determination of the suit and if, after he has restored the possession of the disputed strip of land to the plaintiff, he is dissatisfied with the location of the line between his property and that of the plaintiff, he still has the right to bring an action in boundary against the plaintiff to have the line judicially determined. As to his call in warranty and his claim against the Federal Land Bank of New Orleans, the judgment of the lower court is, correct, for the reason that the ’ amount involved is less than one-twentieth of the' amount called for in the deed.

For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 3489
    Second Circuit
    BOLDEN v. LA. RY. & NAV. CO.
    (February 26, 1931. Opinion and Decree.)

      Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   McGREGOR, J.

Plaintiff sues in this case for the value of a mule killed by defendant’s passenger train, as well as for the loss of the use of the mule from the time it was killed until the time judgment should be paid. $175 was claimed fqr the value of the mule and $5 per month was claimed for the loss of the use of the mule, and legal interest was claimed from the date -of the killing of the mule, or Mav 29, 1928.

Upon trial in the lower court there was judgment in favor of the plaintiff for $100 for the value of the mule, with 5 per cent interest from May 29, 1928, the date of the killing of the mule by the defendant and damages for the loss of the use of the mule was rejected.

Defendant appealed and plaintiff has answered the appeal and asks that the judgment be raised to $125 for the value of the mule and that there be judgment also for two months’ loss of the use of the mule, valued at $5 per month. Defendant asks that the judgment be reversed, and that if it be not reversed in its entirety then that interest be allowed from judicial demand instead of from the date of the accident.

We find no manifest error in the findings of fact by the trial judge. Plaintiff urges us to consider his claim for damages for the loss of the use of the mule and for authority cites us to the case of Jones v. T. & P. Ry. Co., 125 La. 542, 51 So. 582, 136 Am. Rep. 339. In that case the mule lived some time after the accident and it was held that in cases of that kind damages can be recovered for the loss of the use of the mule from the date of the accident to the date of the death. But the case practically holds that where an animal is killed outright no recovery can be had for the loss of its use. In that case it is held that the value of the animal at the time of the accident is the measure of damages which may be recovered. • Our attention is also called to the fact that under Act No. 206 of 1916 interest should be allowed from judicial demand instead of from the date of the accident. This act reads as follows:

“Be it enacted, by the General Assembly of the State of Louisiana, that legal interest ■ shall, hereafter attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto,’ which may be rendered by any of the courts in this State.”

For the reasons assigned the judgment appealed from is amended so as to bear interest from judicial demand instead of from May 29, 1928, and as thus amended the judgment is affirmed, the defendant to pay the costs of the lower court and the plaintiff to pay the costs of appeal.


author: WEBB, J.

text:
    No. 3319
    Second Circuit
    HEROLD v. HOLLINGSWORTH ET AL.
    (April 9, 1931. Opinion and Decree.)

      (No Syllabus)

    Lee & Gilmer and Thigpen, Herold & Cousin, of Shreveport, attorneys for plaintiff, appellee.
    Crow & Coleman, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This is a petitory action involving the S% of the NE% of Section 13, Township 15 North, Range 15 West, of Caddo parish, Louisiana. Plaintiff claims title under mesne conveyances from the United States, while defendant claims title by possession for a period of thirty years, and pleads in support of her title the prescription of thirty years.

On trial plaintiff introduced the acts of conveyance relied upon in evidence and defendant introduced parol testimony to show possession in support of the prescription pleaded. Defendant- appeals from a judgment in favor of plaintiff recognizing him as the owner of the property.

Plaintiff having shown title by mesne conveyances from the United States, it is conceded that it was essential that defendant should clearly show possession by her, or another than plaintiff, for a period of thirty years (Ellis v. Prevost, 19 La. 251, and authorities cited); but even construing the evidence most favorably to defendant, we find that she failed to establish that either she or anyone else had possession of the property for a period of thirty years. The judgment appealed from is therefore affirmed.


author: DREW, J.

text:
    No. 3600
    Second Circuit
    DAVIS v. MARYLAND CASUALTY CO. ET AL.
    (February 26, 1931. Opinion and Decree.)

      Cook & Cook, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellees.
   DREW, J.

Plaintiff sued the Maryland Casualty Company, the Hartford Accident & Indemnity Company, and the Standard Accident Insurance Company, for the sum of $1,000, with legal interest thereon from judicial demand until paid, alleging that he took out with the defendant companies policy No. APL-65049, in the sum' of $2,500, insuring him against loss for personal injury to third persons done by his Essex automobile. That in suit No. 40,332 on the docket of the First Judicial District Court, entitled “C. A. Hodges v. R. C. Davis,” a judgment was rendered against the plaintiff. herein in the sum of $3,607.50, with legal interest thereon from May 23, 1925, until paid, and all costs of court. That during the pendency of negotiations with Hodges, his claim could have been settled for $2,504.50, and that plaintiff herein did everything in his power to get the defendant companies to settle for that amount, but that defendants refused to settle unless plaintiff would pay part of the above stated amount.

Plaintiff alleges further that after judgment in the district court, the claim could have been settled for $2,504.50, but that defendants refused to let plaintiff settle it or to settle it themselves, and that he was ultimately required to pay the sum of $1,000 to Hodges in order to settle his liability, after defendants had paid to Hodges $2,500, the amount of the insurance policy.

On trial of the case, plaintiff conceded that the amount paid out by him was $950, instead of $1,000. Plaintiff further alleged that he did not desire to appeal the case from the judgment of the district court, but desired to settle for $2,504.50, which could have been accomplished at that stage of the case, although judgment had been rendered for $3,607.50, but defendants would not permit him to settle and elected to take a devolutive appeal; and that during the pendency of the appeal, the interest accrued at the rate of 5 per cent per annum.

Plaintiff alleges that defendants were in bad faith in refusing to make any settlement in the case, and that their action was prompted by a desire to coerce plaintiff into bearing a part of the loss, which he should not have been required to do; and that he is entitled to recover of defendants the $950 he was forced to pay over and above the amount for which the case could have been settled.

In tlie alternative, he claims $200.40, which is 5 per cent interest upon the Hodges judgment from the date of judgment in the lower court to the date of payment after final judgment in the Court of Appeal, which court affirmed the judgment of the lower court; and likewise, $109.30, court costs in the Hodges case.

Defendants filed an exception of no cause and no right of action, which was overruled and is not urged in this court by answer to the appeal or otherwise. Defendants answered admitting the issuance of the policy of insurance, as set out by plaintiff; that the record and judgment, in the ease of Hodges v. Davis are the best evidence of its content; admit that attorneys representing defendants defended that suit, and alleged that plaintiff Davis was also represented in the suit by his attorneys, Cook & Cook.

Defendants admit that negotiations looking to a compromise of the said suit were several times had, and that at one time plaintiff attempted to persuade defendants to pay the sum of $2,500 as a compromise, before the final determination of the suit, and that defendants declined so to do. They deny that such refusal was in bad faith or that there was any obligation upon them to compromise the claim under the policy or otherwise. They admit that they declined to pay the full sum of liability under the policy before final determination of the suit, and admit that a devolutive appeal was taken from the judgment of the lower court.

Defendants further allege that C. A. Hodges, plaintiff in the suit of Hodges v. Davis, 7 La. App. 327, recovered judgment against them in the sum of $2,500, the same being in full release and acquittance of all liability on the part of defendants under said policy; and further allege that they have been acquitted of all interest charges and cost of litigation, for which they were bound under said policy. All other allegations of plaintiff’s petition are denied.

There was judgment in the lower court rejecting the demands of plaintiff, and from that judgment he has appealed.

There 'is very little dispute over the facts in this case. A policy of insurance for the amount of $2,500 was issued by defendants to plaintiff to recover personal injury to third persons, caused by the Essex automobile of plaintiff. Through a collision with plaintiff’s Essex car, one C. A. Hodges was injured, and filed suit against plaintiff for more than $10,000 in the district court of Caddo parish. In accordance with Clause “H” of said policy, plaintiff, Davis, forwarded to the insurers the summons and other process served upon him, and defendants’ attorneys proceeded to defend the suit in the name and on behalf of the assured, in accordance’ with clause 3 of said policy. The law firm of Cook & Cook also signed the pleadings, it being admitted that they were the attorneys of plaintiff, Davis. However, we think the record shows that they took no further part in the trial of the case and charged no fee for their services.

The answer filed to the Hodges suit, denying liability, was verified and sworn to by Davis,- the plaintiff herein. There is some testimony by Davis that before the trial in the lower court, the Hodges suit could have been settled for $500. However, the preponderance of testimony is to the contrary, and there is no testimony showing that any such offer was ever brought to the knowledge of the insurers.

Judgment was rendered' in the lower court in favor of Hodges and against Davis in the sum of $3,607.50. Hodges, through his attorneys, after judgment .in the lower court, presented a proposition of compromise to Davis, agreeing to settle the suit and claim for $2,504.50,' which Davis was eager to accept, but under clause “H” of said policy, which reads as follows:

“The Assured shall give to the- Insurers or their authorized agent immediate written notice ■ of any accident causing loss covered hereby and shall also give like notice of claims for damages on account of such accident. If any suit is 'brought against the Assured to recover such damages, the Assured shall immediately forward to the Insurers every summons or other process served upon him. The Insurers shall have the exclusive right to contest or settle any of said suits or claims. The Assured shall not interfere in any way respecting any negotiations for the settlement of any claim or suit, nor in the conduct of any legal proceedings, but shall, at all times, at the request of the Insurers, render to them all possible cooperation and assistance. The Assured shall not voluntarily admit or assume any liability for an accident, nor incur any expense other than for immediate surgical relief nor settle any claim, except at the Assured’s own cost,”

could not do so without the written assent of the insurers, under penalty of forfeiting the policy. He attempted to persuade the insurers to make a settlement by paying to Hodges the sum of $2,504.50, an amount within the amount of the policy, which was for $2',500, plus interest and court costs. The insurers refused to settle unless the insured, Davis, would pay part of the money. There is conflict in the testimony as to what part of the $2,504.50 the insurers wanted Davis to pay, but that is of no importance, as the record clearly shows that Davis did not think he should pay any part of the amount agreed upon, as the amount was within the amount' covered by the policy, and that he was so advised by his lawyers.

The insurers took the position that since Davis was liable under the judgment for $1,107.50, above the $2,500 for which they were liable, he should pay some part of the compromise amount. No agreement could be reached and the insurers, in the name of Davis, proceeded to perfect an appeal in the case to 'this court, where the judgment of the lower court was affirmed.

After final determination of the suit, Hodges sued the insurers and there was entered a judgment by agreement of counsel for the insurers and counsel for Hodges, in favor of Hodges and against the insurers, for the sum of $2,500, fully acquitting them of any further liability under the policy, including all interest and court costs. Later, execution was issued against Davis for the remainder of the judgment, the principal of which was then due by Davis, being $1,107.50, and Davis settled same by compromise by paying $950, in full acquittance of all further liability. He then filed suit against the insurers for $950, alleging that they had acted in bad faith by appealing instead of settling the suit, and did so in an attempt to coerce him into paying part of the compromise, which he was not called upon to pay, as the amount was within the amount due under the policy.

There has been much similar litigation in other states of the union, and the decisions are somewhat conflicting in other states- and' some entirely irreconcilable. The Supreme Court of this state has only passed on this question one time, that we can find, and that in a case very similar to the one before us, namely: N. O. & C. R Co. v. Maryland Casualty Co., 114 La. 153, 38 So. 89,. 91 (L.R.A. (N.S.) 562.) In that suit, the railroad company held a policy of insurance with provisions similar to the policy under consideration in this case. A man named Singleterry was killed under conditions covered by the policy. The insurer undertook to compromise the damage with his widow and minor child. The widow accepted $700, and signed a release in behalf of herself and as tutrix for the minor. She was not qualified as tutrix at the time, and thereafter, having been qualified as tutrix, she filed suit in behalf of the minor. The insurer elected to defend the suit. The tutrix offered to compromise the suit in behalf of the minor for $800, and the railroad company insisted that the insurer accept the offer. The insurer declined to compromise and elected to litigate. A judgment was obtained in the Court of Appeal for $1516, including costs. The railroad company sued the insurer for the difference between the $800, which the tutrix offered to accept in compromise, and the $1,300, exclusive of costs, for which she received judgment, and which the railroad company had to pay. The • policy in that case, as in this case, contained the following clause:

_ “The insurers shall have the exclusive right to contest or settle any of said suits or claims.”

The court, in passing on that case, said:

“Plaintiff, the insurer, was formerly informed of an offer of compromise for $800, and the insured urged the insurer to accept. This presents the next ground of contention. Parties must be held bound as they choose to bind themselves. Negotiations and settlements of suits were left to the insurer. It (the insurer) has the right to decide upon the advisability of resisting 'the payment of a claim in suit, and the plaintiff appears to have consented not to interfere. The clause of the policy upon this subject has the appearance of being full and clear enough. It (the insurer) reserved the right absolutely not to he interfered with in settlements of suits. This it exercised.
“With the rights stipulated in the contract of insurance, it had authority to refuse to compromise without apprehension of being held for the difference, if thereafter cast by judgment in a larger amount than that at which compromise was offered.
“Rumford v. Fidelity & Casualty Company, 92 Me. 574, 43 Atl. 503, is persuasive upon the point, and holds that the insurer is not liable in the event the amount of the judgment exceed the amount secured by the policy.
“True, the insured must be held to good faith and intelligent action in the premises. Nothing here indicates to the contrary.
“Where a party insurer declines to pay, as in this case, and it results, as here, in a difference of only $500.00, and it appearing, to use a common expression, that the insurer had a ‘fighting chance’ in defending, we do not think there is ground to charge him with this difference.
“At any rate, in order to be on defending grounds the assured would have to prove not only that it protested against defending the suit, but that it absolutely declined to have anything to do with the defense. This we do not understand is the case, and therefore we must decline to remand in order to enable the assured to prove the character and extent to which it went in order to influence the insurance company to accept the offer to compromise in question. Under the views before expressed, plaintiff’s conduct in the premises bars it from sustaining1 an action for the difference in question.”

In Neuberger v. Preferred Accident Insurance Company, 18 Ala. App. 72, 89 So. 90, certiorari denied in 206 Ala. 700, 89 So. 924, the court held the insurer not liable in a similar case, although the case was much stronger than the case before us. The court held in that case that the fact that the insurer after judgment had been recovered against the assured for $6,500, the policy being for $5,000, refused to consent to a settlement of $5,000 offéred By the claimant, unless the assured contributed $500 to the settlement and Bore the cost of the defense, the insurer threatening to take an appeal (which was alleged by the assured and admitted by the court for the purpcse of argument to have been hopeless of success or nearly so), unless the assured made the contribution, did not render a release executed by the assured to the insurer (to conclude the compromise) invalid on the ground that it was executed under duress. The decision was predicated upon the basis that the terms of settlement offered by the insurer to the assured (which were accepted and constituted the basis of the release executed) were to the advantage of the assured as well as the insurer, especially if, as alleged by the assured, the appeal was not reasonably hopeful of success, since, had it failed, the assured would have been compelled to pay $1,500 expenses, which he assumed in the release compromise. The court said that so far as the record disclosed, neither of the parties was laboring under any disability; they were on equal terms, and no fraud was alleged, save only that species of fraud alleged to have .existed, which it was contended amounted to coercion under the facts in the case, the insured having the right to control the litigation, and the court asked:

“How can it be said then, that with the defendant threatening to exercise its legal right, that of appeal, which right . was given by the plaintiff (assured; right given in the policy), he thereby coerced or compelled plaintiff to release?”

The contention was made by the assured that the right to appeal or not to appeal invested in the insurer by the policy was not an absolute right; that the parties occupied confidential relations and that even though the right was given, it was a fact that there was no chance of reversal; and that the right was not therefore, used in good faith, but as a weapon to force the plaintiff to a settlement. The court said that the reasoning might find favor, but for the one fact in the case that the result of the settlement was to the benefit of the assured. That it equally worked to the benefit of the insurer was said to be no reason within itself that the release was obtained by coercion.

In the case before us, the reasoning in the Alabama case can be well applied, although it is neither admitted nor proved that the appeal taken by the insurers herein was hopeless of success. It is true that this court affirmed the judgment of the lower court, but that does not mean that the appellant did not at least have a fighting chance of reversing the judgment or of reducing the amount of same.

In the case of Henry G. Auerbach et al. v. Maryland Casualty Company, 236 N. Y. 247, 140 N. E. 577, 579, 28 A. L. R. 1294, a leading case on this subject, the insurance company issued to the plaintiff a policy of insurance indemnifying them against loss to the extent of $5,000. One Jane O’Neill was injured under conditions which were covered by the policy. During the pendency of the resulting action, a compromise of $6,500 was proposed. In order to affect the same, the assured offered to contribute $1,500 and insisted that the insurance company should pay the full amount of its probable liability under the policy. The insurance company declined and elected to defend, although it had been willing to contribute $3,500 towards a settlement, provided the assured would pay the balance. Judgment for $20,000 was recovered in the case, and the insured, paid under execution $15,000, and instituted suit to recover $14,000, the difference between what it would have had to pay if the settlement had been made. An exception of no cause of action was interposed, which was sustained by the lower court, and upon appeal, was reversed by the appellate division of the Supreme Court, 2nd department, which ruling was in turn overruled by the New York Court of Appeal in the cited decision. In so doing, the court said:

“There is nothing in the policy by which the insurance company obligated itself to settle, if an opportunity presented itself. It was given the option to settle, if it saw fit to do so, or to try the action, as it preferred. It, however, was under no legal obligation, either express or implied, to compromise or settle the claims prior to the trial. The plaintiffs, when they accepted the policy, did so with full knowledge of the fact, if an action was brought, that they surrendered ■ to the insurance company absolute, full, and complete control of it, including the settlement or trial.: Rumford Falls Paper Co. v. Fidelity & C. Co., 92 Me. 574, 43 A. 503; Schmidt v. Travelers’ Ins. Co., 244 Pa. 286, 52 L. R. A. (N. S.) 126, 90 A. 653. They also knew there was no provision in the policy which obligated the insurance company to pay any amount whatever ‘prior to the rendition of a judgment. The policy was one indemnifying them ‘against loss or liability imposed by law.’ The loss or liability here provided for contemplated the liquidation of a claim, if one were made, by the rendition of a judgment, unless the insurance company saw fit to exercise the option which it had to settle and compromise without a trial.
“It is true the insurance company realized, prior to the trial, that the terms under which a settlement could be had were favorable ones, and that the same ought to be accepted. It so advised the plaintiffs in writing. The advice thus given imposed upon it no legal obligation to make the settlement. It knew that its liability was limited to $5000.00, and while it offered to pay $3500.00 towards a settlement, that did not impose upon it the obligation to pay the full amount of the' policy prior to the trial. The probability’ that judgments’ much larger than $6500.00 would be recovered was as well known to the plaintiffs as to the insurance company. .Each of the parties had full knowledge of all the facts. It is not suggested that the plaintiffs were misled by reason of the suppression of any of the facts by the insurance company, or any fraud practiced upon them by it.
“The case in principle cannot be distinguished from McAleenan v. Massachusetts Bonding & Ins. Co., 173 App. Div. 100, 159 N. Y. S. 401, affirmed 219 N. Y. 563, 114 N. E. 114; Levin v. New England Casualty Co., 101 Misc. Rep. 402, 166 N. Y. S. 1055, affirmed 187 App. Div. 935, 174 N. Y. S. 910, which, in turn, was affirmed by this court, 233 N. Y. 631, 135 N. E. 948.
“The insurance company, in lefusing to settle the actions, did what it had the legal right to do under the terms of the policy.” See, also, Wis. Zinc Co. v. Fidelity & Dep. Co. of Md., 162 Wis. 39, 155. N. W. 1081, Ann. Cas. 1918C, p. 399; Cooley’s Briefs on Insurance, vol. 5, pp. 3927 and 3928; and Cooley’s Briefs on Insurance, vol. 6, p. 5706.

The only allegation of bad faith alleged in plaintiff’s petition is that insurers appealed the case of Hodges v. Davis in an attempt to coerce Davis into paying a part of the amount agreed on as a compromise. The insurers had the right to elect (given them by the policy), to contest the claim or to settle it, and they elected to contest it rather than pay the full amount of the policy. Does that show bad faith? We think not. All that is required of the insurer is good faith in its actions in contesting a claim, and to say that, because they took an appeal they have acted in' bad faith, would be to penalize them for exercising a contractual right. It is not unusual for the appellate courts to reverse a judgment of the lower court even on facts, or to reduce or increase thq amount of the. award in the lower court; and for us to hold that.because defendants did aippeal, they are liable for the difference between the judgment finally rendered and the compromise offered would be to hold that the insurers were obligated to. settle all claims, within the amount of the policy, before final determination, and that whenever it appealed, it did so at its .peril. It would be to read out of the contract between the insurers and the assured the very clause placed therein to protect the insurers from collusion and fraud between the assured and a third person who might be injured.

We think plaintiff has failed to show bad faith on the part of defendants, and the judgment of the lower court rejecting his demands for the difference between the amount of the final judgment and the amount offered to be accepted in compromise, before the final determination of the suit, is correct. It is urged that even after final judgment, the case could have been compromised for $2,504.50. However, the record falis to disclose that any such offer was ever made to either plaintiff' or defendants.

The alternative demand for interest and court costs is without merit. All interest and costs were settled for by defendants when they paid the $2,500. Plaintiff has neither paid any interest nor costs, has been fully acquitted of all liability under •the judgment, and in fact, the testimony of the attorney for Hodges shows without ■contradiction, that no demand for either interest or costs was ever made on plaintiff.

The judgment of the lower court is correct; it is therefore ordered, adjudge^ and decreed that the judgment be affirmed, with costs.


text:
    No. 3800
    Second Circuit
    PORTER v. KINNEY ET AL.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)

      Booth & Grafton, ■ of Shreveport, attorneys for plaintiff, appellee.
    Bryan E. Bush, of Shreveport, attorney for E. J. Cather, defendant, appellant.
   ON MOTION TO DISMISS

DREW, J.

Plaintiff caused this suit to he entered seeking to foreclose a material-man’s lien against lot No. 1485 of the Cedar Grove addition to Shreveport, together with all buildings and improvements thereon, for an amount of indebtedness of $114.40, with interest and costs. The suit was filed under date of July 15, 1926; service of plaintiff’s petition was made on the defendant Charles • Kinney on July 19th; on the defendant Annie E. H. Williamson on July 19th; and on E'. J. Cather on July 15, 1926.

The suit was brought against the three defendants under allegations setting forth that Annie E: H. Williamson was .the owner of the property at the time of the purchase of the materials, and that Charles Kinney was either her agent or the contractor in erecting the improvements on the lot; and that E. J. Cather had become the subsequent purchaser of the property.

The defendant Annie E. H. Williamson appeared under date of July 31, 1926, and filed answer to plaintiff’s, petition. No pleadings were filed by either of the other defendants. On March 21, 1927, plaintiff filed a supplemental and amended petition in which he amended paragraph 2 of his original petition. Service of this amended petition was accepted by the attorneys of record for Annie E. H. Williamson, and service of citation was made on the defendant Cather on March 23, 1927. No answer was filed by any of the defendants to the supplemental petition, and on October 26, 1927, a preliminary default was entered against all of the defendants on the supplemental petition.

The cause was regularly set for trial, for April 25, 1929. However, on date of trial no appearance was made by the defendant Annie E. H. Williamson, the only one who had filed answer. The case was called for trial and due trial had. The evidence adduced was presented orally and was not reduced to writing. • The trial court rendered judgment immediately upon the conclusion of the evidence in favor of plaintiff, and against the defendant Annie E. H. Williamson, only, as prayed for. Judgment was read, signed, and' filed on May 8, 1929. Later, plaintiff caused a writ of fieri facias to issue and caused the lot on which he had a lien and privilege to be seized.

On October 16, 1929, and after judgment had been rendered against the defendant Annie E. H. Williamson recognizing plaintiff’s lien and privilege against the lot, E. J. Cather appeared in court and filed a plea of prescription. The cause was then set for trial on the plea of prescription, and the court rendered judgment refusing to consider such plea, for 'the reason that it came too .late. This judgment was signed on January 11, 1930.

On January 29, 1930, defendant filed a petition for a devolutive appeal from the judgment against Annie E. H. Williamson, and the judgment refusing to consider his plea of prescription, which appeal was granted. It is now 'before this court for consideration.

Appellant was a third person as to the judgment against Annie E. H. Williamson rendered on May 8, 192j), and so considers himself. • He alleges that he is aggrieved by the judgment and therefore has a right of appeal therefrom. This contention is correct, provided he complies with the law in securing said appeal.

Appellee has filed in this court a motion to dismiss the appeal, alleging that defendant Annie E. H. Williamson was not cited nor served with petition for appeal, and that the judgment refusing to consider the plea of prescription is not such a judgment as can be appealed from, being only an interlocutpry judgment.

The judgment against Annie E. H. Williamson was rendered on the 8th day of May, 1929, and on January 11, 1930, judgment was rendered refusing to consider the plea of prescription as coming too late, which judgment was signed on January 11, 1930. On January 27, 1930, the defendant filed a petition for devolutive appeal from both judgments, and only-prayed for citation on the plaintiff. The defendant Annie E. H. Williamson was not cited nor was there any prayer for service or citation on her. Therefore the appeal from the judgment rendered against Annie E. H. Williamson will have to be dismissed. Pratt v. Village of Bastrop, 136 La. 271, 66 So. 969; Levert v. Shirley Planting Co., 135 La. 210, 65 So. 111; State v. Wiekliffe, 21 La. Ann. 755; Escoubas v. Calcasieu Sulphur Mining Company, 33 La. Ann. 484; Canuleffe Shipbuilding Co. v. Monday, 4 La. App. 522.

As to the refusal of the lower court to pass on the plea of prescription, as coming too late, and the interlocutory judgment rendered so holding, the recourse of appellant was not by appeal. Therefore the appeal therefrom' will have to be dismissed.' „

It is therefore ^ordered, adjudged, and decreed that the appeal be dismissed, at appellant’s cost.


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    No. 3840
    Second Circuit
    THE TRIANGLE MACHINE CO., INC., v. GARDNER
    (February 26, 1931. Opinion and Decree.)
    A. S. Drew, of Minden, attorney for plaintiff, appellee.

      Mabry & Carstarphen, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In September, 1928, defendant delivered to plaintiff two secondhand outboard motors to be repaired, and plaintiff returned same to defendant in October, 1928. The bill for repairs of one of the motors amounted to $90.78, and on the other $283.23; defendant had paid $100 ih advance, which was credited on the bill of $283.23, and the present action was brought to recover the balance due on the bills.

In answer, defendant admitted that the work done on one of the motors for which the bill of $90.78 was rendered was satisfactory. He alleged, however, that the payment previously made of $100 should have been applied on that bill, and that the work done on the other motor was unsatisfactory, in that plaintiff had failed to place the motor in running order. Defendant further alleged that he had been forced to employ other mechanics at an expense of $15 to place the motor in running condition, and that plaintiff had kept the motor for an unreasonable time before returning same, with the knowledge that the motor was to be used on a ferryboat operated by defendant, that, due to the delay, defendant had sustained losses amounting to $250 and he was entitled to recover judgment in reconvention against plaintiff for the expense incurred in employing other mechanics, and for the losses alleged to have been sustained; praying that plaintiff’s demands be rejected and for judgment in reconvention for the expenses alleged to have been incurred and losses sustained.

On trial, plaintiff was awarded judgment for the amount claimed, and defendant’s reconventional demand was rejected, from which judgment defendant appeals.

The evidence does not show that there was any agreement between the parties relative to the work which would be done o'n the motor, which defendant asserts was not placed in running order, or that there was any time fixed within which.the work should be completed. Plaintiff introduced evidence showing the correctness of the charges for the work which had been done, and showing further that the advance payment had been applied by plaintiff on the bill of $283.23, to the knowledge of defendant, and that defendant had after that time written plaintiff that he would attend to the bill as soon as he was able.

The claim for damages alleged to have resulted from the delay is clearly an afterthought; it is not supported by the evidence or shown that the parties contemplated plaintiff would be responsible for any losses sustained by defendant by reason of his inability to operate the ferry, and, the evidence showing the correctness of the charges, the acceptance by defendant of the work without any complaint, and that he promised to pay the bill as soon as he was able, plaintiff was entitled to recover the full amount claimed without any deductions, unless for the expense incurred by defendant in having other mechanics work, on the motor.

As stated, there was not any agreement relative to the work which should be done, but there was, we think, an implied obligation that plaintiff would place the motor in good running condition, and, the evidence showing that the motor required some adjustment after it was delivered to defendant to .place it in such condition, the amount expended by defendant for such purpose should have been allowed in reconvention or deducted from the amount of the bill, and the judgment will be amended accordingly.

It is therefore ordered that the judgment appealed from be amended and the amount of the award reduced from $274 to $259,. and, as thus amended, the judgment is affirmed; appellee to pay cost of appeal.

DREW, J., recused.


text:
    No. 3861
    Second Circuit
    ROSS v. LOUISIANA LONG LEAF LBR. CO.
    (February 26, 1931. Opinion and Decree.)
    Fern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Thornton, Gist & Richey,' of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

This action instituted on April 16, 1930, by Ludie Ross, who was appointed tutrix on March 21, 1930, to her minor child, Will Ross, issue of her marriage with Edward Ross, against defendant, Louisiana Long Leaf Lumber Company, to recover judgment for compensation on behalf of the minor who is alleged to be under eighteen years of age, for the death of his father, which is alleged to have resulted from an accidental injury sustained by him while engaged in the service of defendant.

Defendant excepted that the petition failed to state a right or cause of action, and especially pleaded the prescription of one year, under the provisions of the employers’ liability statute (section 31, Act No. 20 of 1914, as amended). The exception and plea being submitted on the face of the pleadings, the plea of prescription was sustained, and judgment rendered dismissing plaintiff’s, suit, from which she appeals.

In presenting the cause here, the parties confine their discussion solely to the plea of prescription, and we have stated only the allegations of the petition which were relevant to that issue, from which it appears, that a period of six years and four months had elapsed since the death of the father of the minor, and it is conceded that, if the provisions of section 31 of the statute, as amended by Act No. 85 of 1926, which read in part 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 * * * 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,” are applicable to minors, the plea was properly sustained and the suit dismissed.

However, in construing the provisions of section 31, with the provisions 16, subd. 1, as amended by Act No. 38 of 1918, which read: “That in case an injured employee is mentally incompetent or a minor or where death results from the injury, in case any dependent is herein defined as mentally incompetent or a. minor, at the time when any right, privilege or election accrues to him under this act, his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of. time, in this act provided for, shall run, so long as such incompetent or minor has no curator or tutor as the case may be,’’ it has been held that prescription did not begin to run against the minor until a tutor had been appointed. Gospel v. Southern Carbon Co., 4 La. App. 272; Wilson v. Lyon Lumber Co., 7 La. App. 169; Wells v. White-Grandin Lumber Co., 13 La. App. 696, 129 So. 171.

Appellee does not attempt to distinguish the cases cited from the present ease; it urges; however, that the provisions of section 8, subsec. 2(G), of the statute, as amended by Act No. 85 of 1926, which provide that, “Where there is a surviving widow, widower, and child or children, entitled to compensation, the compensation * * * shall be paid entirely to the widow or widower, * * * child or children, and the appointment of a tutor shall not be necessary. Where there is no surviving parent, and a child who is entitled to compensation, payment shall-be made to the duly appointed tutor,” when read with thb provisions of sections 31 and 16, show that it was the intention of the Legislature that prescription would run against the minor, where either of its parents were living.

A like contention was made and considered in Gospel v. Southern Carbon Co., supra, and there is not, we think, any reason to depart from the ruling in the cases cited, especially as section 31 is. a. statute of prescription (Norwood v. Oil Co., 145 La. 823, 83 So. 25), and under the general law prescription does not run against minors (articles 3522 and 3554, C. C.).

It is therefore ordered that the judgment appealed from be avoided, that the plea of prescription be overruled, and the cause remanded to the district court for further proceedings, according to law. It is further ordered that defendant pay all cost of appeal.


text:
    No. 3928
    Second Circuit
    LEE v. SOUTHERN SURETY CO.
    (February 26, 1931. Opinion and Decree.)
    See, also, 123 So. 502, 14 La. App. 393, 127 So. 36.
    J. F. Phillips and J. G-. Gibbs, of Shreveport, attorneys for plaintiff, appellant.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellee.
   McGREGOR, J.

This is an action for compensation under the Employers’ Liability Act (Act No. 20 of 1914 and subsequent amendments). The plaintiff alleged that on October 30, 1926, he was working in the employment of F. and M. Schwartz in Caddo parish as a common laborer for $27.50 per week, that, while he was engaged in the regular course of his employment, he attempted to jump from.a heavily loaded wagon, and that in so doing he fell beneath the wagon, and two wheels rolled over both legs, 'with the result that his right leg was broken between the knee and ankle and his left •leg was slightly bruised.

The employers left the state before suit was. filed, and this suit was therefore brought against the defendant for the reason that the employers carried employers’ liability insurance with it.

When the case was first tried in the lower court, an exception of no cause or right of action was sustained, and the plaintiff’s suit was accordingly dismissed. This exception was based on the theory that an employee has no right of action against the employer’s insurer. On appeal to this court, the judgment of the lower court was reversed, and the case was remanded to be tried in accordance with law.

On trial, judgment was rendered in favor of the plaintiff for compensation at the rate of $17.06 per week for a period of 87% weeks, subject to a credit of $647.06 already paid. The judgment appears to be based on the fact that the lower court held that all appreciable injuries caused by the accident were in one leg only, and that under the evidence there was no total loss- of the use of any member.

The compensation allowable herein is governed by Act No. 85 of 1926, sec. 8, sub-sec. 1, clause (d), paT. 15, providing that:

“In all eases involving a permanent partial loss of the use of function of the member mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.”

The plaintiff contends that he is totally disabled, and that this condition is permanent, and that therefore he should receive compensation for the full period of 400 weeks. He has therefore appealed to this court, and asks that we increase the judgment to 400 weeks, or to at least 300 weeks.

The evidence in the lower court is very conflicting, and it would serve no useful purpose to analyze and discuss the. same here. Some of the doctors testifying are positive that the plaintiff is cured and that he is suffering from nothing more than a mere annoyance, while Dr. Caldwell, one of the plaintiff’s witnesses, is sure that the plaintiff is suffering from some real disability in his foot and ankle. The injury received was between the knee and ankle. If the leg had been amputated at that point, the plaintiff would have been entitled to compensation for 125 weeks only. All plaintiff’s trouble at the time of the trial appeared to be confined- to his right foot and ankle. He complained somewhat of a tendon in his left foot, but none of the doctors appears to have taken that seriously. Regardless of his condition, he cannot claim compensation for total disability, as his injury is thus confined to his foot and ankle. The trial judge saw the plaintiff in person, and had a better opportunity to determine the extent of his injury and disability than we have. In his effort to reconcile the conflicting testimony of the witnesses, he awarded judgment to the plaintiff for compensation for a period of 87V2 weeks. As .we-hold that the maximum award - that could be made is 125 weeks, we find that the number of -weeks allowed is ample, and is a fair proportion between the extent of the loss of the use of the foot suffered by plaintiff and its total loss.

For the reasons assigned, the judgment appealed from is affirmed, the cost of the appeal to be paid by appellant.


text:
    No. 3875
    Second Circuit
    DUPUY ET AL. v. PHILLIPS, SHERIFF, ET AL.
    (February 26, 1931. Opinion and Decree.)

      See, also, 130 So. 855.
    L. K. Watkins, of Minden, attorney for plaintiffs, appellants.
    Stewart & Stewart, of Minden, attorneys for E. T. McGovern, defendants, appellees.
   WEBB, J.

E. T. McGovern, a judgment creditor of the United Railway Men’s Oil Association, issued execution on his judgment, under which there was seized in the hands of the sheriff and advertised for sale a bond which was given by plaintiff, under the provisions of articles 681 and 682, Code Prac., in payment of a drilling rig sold by the sheriff in execution of a judgment in favor of D. W. B. Kurtz, Jr., against the Railway Men’s Oil Association, and, in the present action, plaintiffs seek to restrain the sale of the bond.

Plaintiffs, in addition to the facts above stated, alleged that the United Railway Men’s Oil Association had instituted an action against them to recover the drilling rig, the suit being No. 5027, United Railway Men’s Oil Corporation v. Jules L. Dupuy et al., on the docket of the district court of Webster parish, La., in which suit, the association’s demands were rejected, and J. L. Dupuy et al., plaintiffs here, were decreed to be the owners of the drilling rig, from which judgment the association had appealed to the Supreme Court, where the appeal was ‘still pending.

Plaintiffs further alleged that, in order to protect plaintiffs’ rights pending the appeal and to prevent a multiplicity of suits in event the judgment should be reversed, it was necessary that the sale of the bond should be restrained until the suit pending had been' decided. A restraining order and a rule were issued against McGovern and the sheriff, ordering them to show cause why a preliminary injunction- should not issue. They excepted that the petition failed to state a cause of action, which was sustained, and judgment rendered dismissing plaintiffs’ suit, from which judgment plaintiffs prosecute this appeal.

In support of the right to an injunction, appellants refer to the provisions of the Code of Practice relative to when an injunction may issue against persons not parties to the suit (articles. 298, et seq., Code Prac.), and especially article 303, Code of Practice, which reads:

“Besides the cases above mentioned, courts of justice may grant injunctions in all other cases when it is necessary to preserve the property in dispute during the pendency of the action, and to prevent one of the parties, during the continuance of the suit, from dilapidating the same, or from doing some other act injurious to the other party. •
“In addition to the cases mentioned above, the judge may grant an injunction, on the application of any purchaser whose property is seized for the payment of the price of a thing sold to him, whenever a suit (has been instituted against him for the said property”—

and the decisions in Klein v. Coon et al., 10 La. Ann. 522; Craig v. Lambert, 44 La. Ann. 885, 11 So. 464, and Josephson v. Powers, 121 La. 28, 46 So. 44.

In Josephson v. Powers, the plaintiff had instituted an action' to annul a note and mortgage given by him; -and the injunction was issued to restrain defendant from proceeding to foreclose the mortgage by executory process, pending the action to annul; in Klein v. Coon et al. a writ was issued to prevent the wife from executing a judgment against the husband, pending an action by the plaintiff, a creditor of the husband, to annul the judgment; and in Craig v. Lambert the injunction was. merely ancillary to the main demand, to protect plaintiff’s possession during the pendency of a suit involving her right of possession.

The situation presented here is not ana1 logous to the situation presented in the cited cases, as in the present instance neither the sheriff nor McGovern were parties to the suit pending on appeal to the Supreme Court, and we do not think that the provisions of article 303 are applicable, as plaintiffs did not allege that they had any right of ownership in the bond, or that, if the bond should be sold, they would sustain any damage. McAdam v. Rainey, 33 La. Ann. 108. Although it may possibly be that, should the bond be sold, the purchaser would attempt to enforce collection pending the appeal in the Supreme Court, it does, not, we think, follow that plaintiffs would have the right to prevent the sale of the bond, in the absence of any allegation or suggestion that the bond was negotiable, and that the purchaser at sheriff’s sale would acquire any greater right to enforce same than would be the case if the bond was sought to be enforced by the sheriff.

We are therefore of the opinion that the exception of no cause of action was properly sustained, and plaintiffs’ suit dismissed, and the judgment is affirmed, at appellants’ cost.


text:
    No. 3968
    Second Circuit
    CARNAHAN v. RACHAL (SMITH, Intervener)
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    Breazeale & Hughes, of Natchitoches, attorneys for plaintiff, appellee.
    E. S. Prudhomme, of Natchitoches, attorney for intervener, appellant.
   WEBB, J.

Plaintiff, J. C. Carnahan, a judgment creditor of Rum Rachal, issued execution on his judgment, under which the sheriff seized and had advertised for sale a crop, of cotton raised by Rachal, when the intervener, Mrs. R. J. Smith, filed an opposition to the sale.

Intervener alleged, in substance, that Rachal had executed in her favor a crop lien for merchandise and supplies to be furnished to him by intervener to make the crop which had been seized; that she was the owner of the crop, and entitled to the proceeds, and she prayed for judgment decreeing her to be the owner of the crop seized and “for all such further relief as the nature of the case may require.”

In -answer plaintiff admitted Rachal had given intervener a crop lien as alleged, and the seizure of the crop; but denied that intervener was the owner of the crop, and prayed that intervener’s demands be .rejected. On trial judgment -was rendered rejecting intervener’s demands, and she appeals.

As stated, plaintiff admitted that Rachal had given intervener a crop lien as alleged, and on trial an account was offered in evidence showing that intervener had furnished Rachal with supplies amounting to $175.12 to make a crop, which was admitted to be correct; and appellant urges here, as she did on trial of the cause, that the evidence established she was the owner of the crop seized.

While the evidence shows that intervener was entitled to a privilege on the crop seized (article 3217, Civ. Code), the evidence does not establish that she was the owner of the crop, and appellee urges that, as intervener did not pray that the privilege be recognized, but only that she be decreed the owner, the judgment dismissing her demands was correct.

However, in addition to the prayer to be decreed the owner of the property seized, plaintiff, as stated, prayed “for all such further relief as the nature of the case may require,” and in that respect the cause is analogous to the case of Richardson v. Weiner, 5 La. Ann. 646, in which the court said:

“Under the prayer for general relief a judgment may be rendered allowing a privilege upon property which was claimed by the plaintiff as owner, if evidence to establish the privilege has been introduced without objection.”

In the present case, while intervener asserted ownership of the property, she also alleged facts showing that she had a privilege on the property, which was supported by the evidence, and under the prayer “for all such further relief as the nature of the case majr require,’’ the court should have rendered judgment in favor of intervener, recognizing the privilege, and ordering the proceeds of the sale, less the cost, applied by preference and priority to the payment of the judgment.

The judgment appealed from is therefore set.aside, and it is- now ordered, adjudged, and decreed that intervener, Mrs. It. J. Smith, have and recover judgment against plaintiff, J. C. Carnahan, recognizing her privilege on the crop seized, for the sum of $175.12, with legal interest thereon from judicial demand; and that the proceeds of the sale, less all costs incident to the seizure and sale of the property, be applied by preference and priority to the payment of the privilege and judgment. It is further ordered that plaintiff, J. C. Carnahan, pay all cost of suit.


text:
    No. 3953
    Second Circuit
    PERRY v. W. K. HENDERSON IRON WORKS & SUPPLY CO.
    (February 26, 1931. Opinion and Decree.)
    George T. McSween, of Shreveport, attorney for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

McGREGOR, J.

This suit has been brought under Act No. 20 of 1914 (as amended by Act No. 85 of 1926), commonly known as the Employers’ Liability Law. Section 18 of this act, as amended, provides ' a summary method of bringing actions for compensation by the filing of a verified complaint and securing an order from the judge fixing a time and place for the hearing, not less than three weeks after the date of the service of the complaint. It is specially provided that, when this provision of the law is resorted to, “a copy of said complaint and order shall ■be served as a summons in a civil action upon the adverse party within four (4) days after filing the complaint; within ten (10) days after the service of such complaint or petition the adverse party shall file answer to sa-id petition,” etc. Under this special provision of the law it appears that the service of a “copy of said complaint and order” is in lieu of the usual citation required in civil suits. In fact, the service of the usual citation would prevent the application' of the provisions of the summary remedy provided by the statute for the reason that under the usual citation the defendant could not have any judgment rendered against him except by preliminary default and confirmation thereof. Section 18, subdivision 3, of said act provides as follows:

“If the time fixed for filing answer or .delay, granted for filing answer by the ^respondent has elapsed without any answer having been filed, then upon simple request of the petitioner, the Judge of the Court, with whom the complaint or petition 'has been filed, shall immediately enter a preliminary judgment in favor of the petitioner in accord with the facts set forth in the verified complaint filed by the petitioner and the provisions of this act, providing for payment of such compensation as is claimed, to be payable until such time as the hearing of the issues on the merits is fixed by an order of Court at the request of the defendant; such hearing on the merits to be fixed in the same manner as the first hearing is to be fixed under paragraph 2 of this Section, or by the agreement of-the parties.”

The judgment rendered in accordance with this provision of the statute is a “preliminary” judgment only. A similar case was decided by the Supreme Court in Joyce v. Nona Mills Co., Ltd., 142 La. 934, 77 So. 854. In that case the judge of the lower court signed the preliminary judgment as prayed for in the petition and as provided for by the statute. On the next day, on application of the defendant, the judge set aside this preliminary judgment. The plaintiff then proceeded by rule to have the order setting aside the judgment set aside itself. Upon trial the rule was dismissed. The plaintiff- sought to appeal from this action of the court, and the court refused to grant the appeal. The plaintiff then applied to the Supreme Court for writs of mandamus and prohibition to compel the lower court to grant the appeal. The Supreme Court, in refusing to issue the mandamus to the lower court said:

“By setting aside the judgment the judge in effect merely granted a new trial. This he could do within the three days allowed for application for new trial. C. P. arts. 560, 547; [State ex rel.] Shreveport Cotton Oil Co. v. Blackman, Judge, 110 La. 266, 34 So. 438. The granting of a new trial within the legal delays for new trial is simply an interlocutory order, not appealable from. McWillie v. Perkins, 20 La. Ann. 168; Wheeler v. Maillot, 15 La. Ann. 659.”

In the case at bar the preliminary judgment was signed and filed on September 20, 1930, and the motion of counsel for the defendant to havé the same set aside was filed on September 23, 1930, within the three days provided by law. Counsel for defendant has filed a motion herein to dismiss the appeal of plaintiff on the ground that the order of the court appealed from has the effect only of granting a new trial, and that an interlocutory order of that kind cannot be appealed from. We think that the Joyce v. Nona Mills Co., Ltd., case, cited by defendant, is applicable here.

For the reasons assigned the appeal is dismissed at the cost of appellant.


author: STEPHENS, J.

text:
    No. 3001
    Second Circuit (Second Division)
    STEPHENS v. BRACKIN ET AL.
    (May 7, 1931. Opinion and Decree.)

      Stewart & Stewart, of Minden, attorneys for plaintiff, appellant.
    Mclnnis & Campbell, of Minden, attorneys for defendant, appellee.
   STEPHENS, J.

This is a suit against V. A. Brackin and the Webster Motors Company, Inc., as maker and indorser, respectively of a promissory note for the sum of $500.

The defendant Brackin made no appearance. The Webster Motors Company, Inc., answered denying generally liability, and specially denying that the indorsement of the note was authorized by the corporation, or that the transaction inured to its benefit.

■ Judgment was rendered in favor of plaintiff and against Brackin, as prayed for; but plaintiff’s demands were rejected as against the Webster Motors Company, Inc.

The plaintiff prosecutes this appeal from the judgment in favor of the motors company.

The case was tried in the lower court by the Honorable Colqman Lindsey of the Minden Bar as special judge. We find in the record. a well considered and carefully prepared opinion, in which we think the facts are correctly stated and the issues, and jurisprudence applicable thereto, ably discussed. The reasons assigned by the trial judge warrant the conclusion reached. We adopt his opinion as our own:

“From the testimony adduced on the trial of the case I find the facts to be as follows:
“Brackin applied 'to plaintiff for a loan of $500, but plaintiff refused to make the loan without security. Later, J. F. Leake, manager of defendant corporation, by whom Braekin was employed as salesman, came to plaintiff and offered to indorse the note, although it does not appear whether his then intention was to indorse it personally or as manager of defendant corporation. Plaintiff, either having been informed that the indorsement would be that of the corporation, or assuming this to be Leake’s intention, went to the Bank of Minden and inquired of Mr. A. B. Hardeman, cashier, whether he (Hardeman) considered the Webster Motors Company’s indorsement good for $500 by Mr. Leake as manager. Hardeman informed him that was the way they indorsed notes, and that he considered the indorsement good. Later, plaintiff took the note described above and delivered his check for $500, payable to ‘Cash.’ It is not clear as to whether Braekin or Leake received the check, but it appears that Braekin presented it to the bank for payment, although it is not shown which of the two received the money. There is nothing in the testimony to indicate what further disposition was made of these funds except the testimony of Braekin that Leake got all of it. This, however, is contradicted by the testimony of Mr. W. L. Menefee, vice president and director of defendant corporation, to the effect that Braekin told him that he (Braekin) didn’t get all of it.
“Leake was not called as a witness. No explanation as to why he was not called was offered by either party, although there is testimony to the effect that he severed his connection with defendant corporation in July, 1926, and other testimony that the affairs of the corporation were left in a bad condition, as well as of a reference to a shake-up and the Leake trouble. Without considering facts known to me outside the trial of the case, I think it but fair to both parties to assume that Mr. Leake was not available as a witness for' either party.
“These, together with other facts that will be mentioned later, appear to me to be the pertinent facts brought out on the trial when sifted from the numerous objections and rulings of the court appearing in the note of- evidence.
“I have carefully considered the able briefs filed herein, and have made some independent investigations to the best of my ability, being mindful, to quote the words of Chief Justice Eustis in an opinion rendered in a case where the same questions were passed on as in this case, ‘of the responsibility devolving upon the court of determining, the questions involved in it, 'which are among the gravest that can be submitted to a judicial tribunal.’
“Defendant objected to any testimony relative to an indorsement in the name of Webster Motors Company, the suit being brought against Webster Motors Company, Incorporated. However, it appears from the testimony offered that -very frequently on notes and other documents the word ‘Incorporated’ or its abbreviation ‘Inc.’ was omitted, and it is not disputed that defendant corporation is the one for whom Leake made the indorsement. This point is not urged in defendant’s brief, and I assume that it has been abandoned. No authority has been cited on this point, but it appears that ‘where a name, other than the regular corporate name by which the corporation was incorporated, is used in a written contract and no agency to make it is disclosed, it is prima facie not the contract of the corporation, but the presumption may be rebutted by evidence aliunde, and this rule has been held applicable in case of a promissory note given in a name other than the regular corporate name.’ 7 R. C. L., Corporations, sec. 100, p. 130.
“It is further contended that no consideration for the indorsement moved to the defendant corporation, and that therefore it is not liable.
“I am satisfied that the corporation received no part of the $500, but that fact alone would not relieve it from liability, nor does that contention appear not to be seriously urged by defendant.
“ ‘The credit given to the maker is consideration sufficient to bind the indorser.’ Schaffter v. Irwin, 139 I a. 92, 71 So. 241, 242; 3 R. C. L., Bills and Notes, sec. 123, p. 927.
“Considering all the testimony in the case, I am satisfied that defendant is an accommodation indorser and liable as such under the general rule just stated unless it falls within some exception in our jurisprudence.
“Defendant contends that Leake had no authority to bind it as an accommodation indorser, and its charter was introducéd in evidence without objection for the purpose of showing that the corporation itself had no such power.
“The powers enumerated in defendant’s charter are those usually found in charters of corporations engaged in the automobile business, with the right to hold such real estate as may be necessary for the proper conduct of its affairs, and to buy, sell, trade, or exchange commercial paper of any kind whatsoever, especially chattel mortgage notes on automobiles, together with such incidental powers as may be necessary to carry out the business as therein set forth, with -these powers vested in a board of directors.
“The power to borrow money and give certificates of indebtedness therefor is not one of the express .powers granted to the defendant corporation by its charter. But it is a well-recognized fact that, no matter how strong a corporation engaged in the automob.ile sales business may be financially, occasions will arise making it neces- 1 sary for the corporation to borrow money for the successful conduct of its business. Such action is universally recognized as being sound from an economic standpoint, and is also universally recognized from a legal standpoint as being one of the implied powers granted to the corporation. It is one of the incidental powers necessary to a proper conduct of the business for which the corporation was created. l
“Coming, then, to the question before us in this case, does this corporation have the power to bind itself as an accommodation indorser? Certainly that power is not expressly granted defendant by its charter. Is it, then, impliedly granted?
“In the famous Dartmouth College Case, 4 Wheat. 518, 4 L. Ed. 629, Chief Justice Marshall says:
“ ‘A corporation, being a mere creature of the law, possesses only those powers which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.’
• “This doctrine is approved and reaffirmed in the early Louisiana case of Louisiana State Bank v. Orleans Navigation Co., 3 La. Ann. 294.
“ ‘The general rule is that it is ultra vires of a corporation to execute and issue accommodation paper. Unless the corporation is specially authorized to do so, the execution or indorsement of accommodation paper for the benefit of third persons is an act beyond the scope of its corporate authority. The grounds on which this proposition rests are stated elsewhere.’ 7 R. C. L., Corporations, sec. 596, p. 602.
“The section referred to in the last sentence quoted above reads as follows:
“ ‘As to a general rule, corporations may not lend their credit in the form of accommodation indorsements, suretyships, and guaranties. This proposition rests upon the very evident reasons: (1) that the corporate funds belong to its shareholders, and, by the very terms of the law creating it, cannot be devoted to any other purpose than those indicated by its charter and constitution; (2) that to do so would be to exercise a power not conferred by the state, either expressly or impliedly; and (3) that such obligations rest on no consideration, and would not, therefore, be valid, but would amount to a donation of the corporate funds, and therefore an unlawful diversion. To fix such a liability upon a corporation, it is necessary to establish not only authority in the officer or agent to execute the paper, but also power in the corporation to bind itself in that way. In a few cases it has been held that private conporations may issue accommodation paper, provided the directors and stockholders all assent and there are no creditors to object.’ 3 R. C. L., Bills and Notes, sec. 300, pp. 1091, 1092.
“ ‘Unless the corporation be specially authorized to do so, the execution or indorsement of accommodation paper for the benefit of third persons is an act beyond the scope of its corporate authority.’ Daniel on Negotiable Instruments (4th Ed.) sec. 386.
“ ‘Judicial authority is nearly unanimous to the effect that a corporation has no power to make or indorse commercial paper for the mere accommodation of another person or corporation.’ 4 Thom. Corp. sec. 5739.
“ ‘By the overwhelming weight of authority, a corporation has no power to issue or indorse, for the accommodation of others, bills or notes in which it has no interest, unless, as is seldom if ever the case, such power is expressly conferred.’ 7 Am. & Eng. Enc. of Law (2d Ed.) 793.
“Plaintiff cites considerable authority to show that an officer óf a corporation has implied power to borrow money, to execute notes, accept bills, and indorse paper for the Corporation, especially when the directors have held him out as their agent and permitted such transactions in the usual course .of business. I have examined all these authorities that are presently available, and I agree with counsel for plaintiff. But their application is to be limited to the matters therein stated, and the question of indorsing for the accommodation of a third person is not discussed. Then, too, the note here sued on seems to be the first case of an accommodation indorsement by Leake as manager that was brought to the attention of any of the other directors or stockholders of the defendant corporation, and it does not appear to have been known to them until some months after the execution of the note.
“Plaintiff ch.es the case of Gair Co. v. Columbia Rice Packing Company, Limited, 124 La. 193, 50 So. 8, 10, as authority on the point just discussed, but from an examination of the case it will be found that the contract of suretyship was held not binding because it was ultra vires the corporation, even though the court concluded that the guaranty was given with the knowledge and consent of the president and directors of the defendant corporation, and was given for the benefit of a company in which defendant was a stockholder.
, “In its opinion the' court said:
“ ‘It is elementary that a corporation possesses only those powers which its charter confers upon it either expressly or by implication.’
“And, after enumerating the powers of the coi’poration as defined by its charter, continues:
“ ‘There is nothing here that would authorize the company to guarantee, gratuitously or otherwise, the contract of a third person.’
“Plaintiff introduced evidence (over the objection of defendant) in an effort to fix the liability of defendant by estoppel or ratification.
“In the case of Union Pacific Railway Co. v. Chicago, etc., Railway Co., 163 U. S. 564, 16 S. Ct. 1173, 1180, 41 L. Ed. 265, we find the following:
“ ‘A contract made by a corporation beyond the scope of its powers, express or implied, on a proper construction of its charter, cannot be enforced, or rendered enforceable by the application of the doctrine of estoppel.’
“There is authority, however, for a relaxation of this rigid rule in some cases, a distinction being made between contracts foreign in nature to those contemplated by the corporation’s charter and contracts merely in extension of some corporate power. This distinction is of importance when accommodation paper of a corporation is in the hands of an innocent holder for value. It would not be disputed, as has already been noted, that the defendant corporation,, since it is not forbidden in its charter, could borrow money whenever the necessity of its business required, and - issue customary evidence of indebtedness therefor, such power being incidental to those expressed in its charter, because necessary in carrying out the purposes of its incorporation.
“It may then be said that defendant corporation, thus having . power to issue notes, merely exceeded the limit of its right to exercise the power when it issued a note for accommodation. It may also be true, as is held in some cases, that the title of the holder of such paper before maturity can only be defeated by proof that he took it with knowledge that it was accommodation paper, or under such facts and circumstances that he is chargeable with notice of that fact.
“Prom the testimony in this case, as has previously been stated, I am convinced that plaintiff made tbe loan to Mr., Brackin after Mr. Leake offered to indorse the note, having previously refused to make the loan to Brackin without indorsement. It also appears that plaintiff consulted Mr. Hardeman at the Bank of Minden to find out if the -indorsement of the Webster Motors Company by Mr.; Leake was good for $500. Under all the facts and circumstances of the case I am of the opinion that plaintiff is chargeable with notice that the defendant Webster Motors Company, Incorporated, was nothing more than an accommodation indorser, and he is, of course, charged with notice of the powers of the. corporation as granted in its charter, the charter being a matter of public record. Plaintiff, I am sure, thought that he was getting good security on his note, hut he proceeded under the erroneous assumption that the indorsement was valid and binding.
“On these points reference may be made to the case of Johnson v. Johnson Brothers (108 Me. 272, 80 A. 741) Ann. Cas. 1913A, page 1303, where, in an elaborate opinion and in copious notes, these questions are fully discussed, and form, in some measure at least, a basis for the conclusions here reached.
“However, I am Of the opinion that plaintiff failed to make out a case of estoppel. There is no testimony to show that Leake ever executed or indorsed notes for the corporation,- prior to the date of the note here sued on, other than in the usual course of business, that is, for the purpose of borrowing money for the corporation or for the purpose of negotiating notes payable to the order of the corpora-, tion, and in all of these cases the proceeds were credited to the account of the corporation.
“We come then to the question of ratification. Prom the testimony it appears that the officers of the corporation, consistently denied legal liability on the note, but did, from time to time, express a desire and perhaps an intention to pay the note in order to avoid' the embarrassme'nt of - a suit.
“It is further shown that the note was charged to the account of Brackin on the •books of the corporation and that Brackin gave his note for this, with other items charged to him. I am not convinced that any officer of the corporation had a part in charging the note in question to Brackin’s account or in taking from Brackin a note for the total amount charged to him On the books of the corporation, but I am convinced from the testimony that this was done by the auditors employed to check the books of the corporation, with the possible assistance of Miss Gladden, the bookkeeper.
“But, assuming that the officers did have a part in these transactions, even then there would not be a ratification. If Mr. Leake could not bind the corporation by the indorsement in the first instance, then Mr. Wideman as president could not have ratified it and made it binding on the corporation.
“ ‘Ratification cannot give effect to an unauthorized act unless the corporate body or officer making the ratification could in the first instance have authorized the act,’ 7 R. C. L., Corporation, sec. 664, p. 663.
“Granting that the board of directors of the corporation might have authorized the indorsement in the first instance or might have ratified it later, there is nothing whatever to show that the matter was ever considered by the board.
“Plaintiff, in his brief, says: ‘If the corporation can be allowed to repudiate such acts as they see fit the public would be at a great disadvantage in dealing with them.’ We agree with him. It is to be regretted that plaintiff cannot here be given the relief prayed for in view of the fact that he made this loan honestly and sincerely believing that his note bore a valid and binding indorsement. But it must be remembered, as was said in an early Louisiana case, ‘corporations possess only jura minorum and cannot contract for all purposes like persons of full age and sui jur.is.’ When a contract is clearly ultra vires the corporation, it is the plain duty of the court to so hold, in the interest of the public, that the corporation shall not transcend the powers granted; in the interest of the stockholders, that capital shall not be subjected to the risk of enterprises not contemplated by the ' charter, and therefore not authorized hy the stockholders in subscribing for the stock; and because of the obligation of everyone entering into a contract with a corporation to take notice of the legal limit of its powers.
“Other authorities have been cited by counsel for plaintiff in -his able brief, dealing with the law of negotiable instruments, and with the liability of corporations for the acts of their agents, but they are cases in which individuals rather than corporations were involved, or cases in which the power exercised was either expressly granted in the corporation’s charter or necessarily incidental to the powers granted.’’

For the reasons assigned, the judgment appealed from is affirmed.


author: TALIAFERRO, J.

text:
    No. 3357
    Second Circuit (Second Division)
    CARROLL v. CARROLL’S HEIRS
    (May 7, 1931. Opinion and Decree.)
    Allen S. Drew, L. K. and R. D. Watkins, of Minden, attorneys- for plaintiff, appellee.
    John B. Files, of Shreveport, Mclnnis & Campbell, of Minden, and Thomas W. Robertson, of Shreveport, attorneys for defendants, appellants.
   TALIAFERRO, J.

Plaintiff, the surviving widow and third wife of Andy Carroll, deceased, brought this suit against Missoura Bostic, Calidonia Smith, residents of Webster parish, La., and Madge Coplin, resident of the state of Arizona, and Alfred Johnson, resident of the state of Illinois, as the sole surviving heirs and legal representatives of said deceased, to recover judgment for $1,000, alleged to be due her from the succession of her deceased husband, as. his widow in necessitous circumstances, as provided by article 3252 of the Civil Code, as amended by Act No. 242 of 1918.

It is alleged by plaintiff that Andy Carroll died in Webster parish, his residence, July 6, 1926, leaving a small estate, consisting of real and personal property situated in said parish, described in her petition; that defendants, on their own application, had been recognized as the sole heirs and legal representatives of the deceased by the district court of Webster parish and sent into possession unconditionally of the property of his succession, consisting of three lots, one house, and a small amount of personal property described in the judgment sending them into possession; and that Lloyd Taylor, stepson of deceased and sole heir of his mother,' Emma Reams, second wife of Andy Carroll, deceased, had also been recognized by said court as the owner of said property and sent into possession thereof; that said heirs of Andy Carroll, defendants herein, instituted suit' against said Lloyd Taylor in the district court of Webster parish, being No. 5642 on the docket thereof, to test out their respective rights to said real estate, and judgment was rendered therein recognizing Lloyd Taylor as the owner of an undivided half interest therein and the heirs of Andy Carroll as the owners in indivisión of the other undivided half thereof.

Madge Coplin and Alfred Johnson, defendants, being non-residents, a writ of attachment was prayed for and issued against them, under which their one-sixth interest each in said property was. seized by the sheriff.

All of the defendants, through counsel, answered the plaintiff’s demand, thereby submitting themselves to the jurisdiction of the court. They moved that the writ of attachment be dissolved, as there were no legal grounds or necessity therefor, and admitted their heirship to Andy Carroll and possession of a half interest in the property of his succession, as alleged. They deny that plaintiff is in necessitous circumstances, and deny that they owe her any amount or are responsible to her in any way or to any extent.

In the alternative, they further say:

“That shortly after the death of their father, Andy Carroll, that they made a full and complete settlement with the said Emma Carroll by giving her such household furniture as she desired and that she herself initiated said settlement and fully and completely released them as shown by her long silence, and acquiescence, and that she is now estopped to set up any personal claim against the said heirs, defendants herein, and that the property having passed out of and beyond the estate of the said Andy Carroll she cannot now be heard to urge the claim she brings in her suit and that she has no personal action against defendants herein.”

It is further alleged by defendants that plaintiff and Andy Carroll were married only a brief period before his death; that during this time plaintiff assisted in dissipating and squandering his property; that she brought nothing to the marriage and added nothing to it; that she has sons and daughters able to provide for her support; and that she gave away some insurance on the life of the deceased, which she could have collected, Amounting to $175.

Under the issues thus tendered the case was tried, resulting in a ‘ judgment for plaintiff recognizing her claim of $1,000 as widow in necessitous circumstances and the lien and privilege granted by law securing payment thereof against a one-half interest in the real estate and personal property owned by the succession of Andy Carroll, deceased, which is described in the pleadings and in said judgment. There was further judgment against Missoura Bostic and Calidonia Smith, each, for $180 with 5 per cent per annum interest from April 27, 1927, and against Madge Coplin and Alfred Johnson, each, for $90, with like interest, with recognition .of the writs, of attachment sued out against them.

Prom this judgment defendants appealed. They have made no appearance in the case on appeal, nor have they filed any briefs.

On trial of the case in the lower court defendants completely failed to substantiate either of their defenses by proof.

The succession records and other documents filed in evidence by plaintiff fully es-' tablish all her allegations as to the marriage of Andy Carroll, his legal heirs, and the ownership of the property involved herein. The value of the property of the succession of Andy Carroll was fixed at $540; hence the amounts decreed to be due by the several heirs.

These litigants are colored people. Defendants are all majors. Plaintiff was forty-seven years old when she married Carroll and he was many years her senior. He only lived some seven months after their marriage. She brought nothing in the way of material substance into the marriage and carried nothing of value away after its dissolution. At the date of the trial her condition as to worldly ‘goods and possessions was such as to conclusively show her to be in necessitous circumstances, as defined by law, and entitled to the benefits accorded to widows by the Code when in such circumstances.

Defendants urge in answer that as the property of the succession had passed into his heirs’ hands it could not be subjected to the widow’s claim, even though such were found to have a legal existence.

This proposition has been presented to this court heretofore and decided adversely to this contention. The case of Nofmand v. Thompson et al., 2 La. App. 413, is almost identical in facts as. the case under consideration. In that case the universal legatees of the deceased husband accepted his succession unconditionally and went into possession under decree of court. The widow instituted suit against them and succeeded in her demand. Each heir was held personally responsible for his virile share of her claim.

The syllabus of that decision reads:

“Under Articles 1422 and 1424 of the Civilj Code the defendants having unconditionally accepted, the succession of the. deceased as his heirs and haying themselves placed in possession of his property are responsible to his widow, each for his virile share of the $1000.00 accorded the widow in necessitous circumstances under Article 3252 of the Civil Code.”

In the present case the heirs of Andy Carroll accepted his. succession unconditionally and had themselves placed in possession by decree of proper court. Their attitude in this respect rendered them responsible personally for the debts and liabilities of the succession, among which was that due the widow in necessitous circumstances.

The judgment appealed from is affirmed.


author: CAGE, Judge ad hoc.

text:
    No. 13,455
    Orleans
    ROBINSON v. WASHINGTON FIDELITY NATIONAL LIFE INS. CO.
    (April 13, 1931. Opinion and Decree.)

      Charles J. Mundy, of New Orleans, attorney for plaintiff, appellee. ■
    Normann, McMahon & Breekwoldt, of New Orleans, attorneys, for defendant, appellant.
   CAGE, Judge ad hoc.

Plaintiff, Melissy Robinson, the beneficiary named in a policy of life insurance' issued by . defendant on the life of Willie Martin, claims that she is entitled to be paid the amount stipulated in the policy. Defendant refuses payment, and, in alleged justification of this refusal, presents two contentious: That there has never been any liability under the policy because of the fact that plaintiff had no insurable interest in the life of the deceased, Willie Martin; and that, even if there had been any liability under the policy, a full and complete compromise settlement has been effected.

There is no dispute over the fact that plaintiff was in no way related to the deceased when she procured the issuance of the policy sued on, nor is there any denial of the fact that all the premiums thereon were paid by her.

Not being in any way related to the deceased, she had, in the contemplation of law, no interest in the continuance of his life. Having no legal interest in the continuance of his life, the issuance of the policy gave her an interest in his no longer continuing to exist, and the said issuance was thus against public policy.

“The insurable interest in the life of another is a pecuniary interest. A policy of insurance, procured by one for his own benefit upon the life of another, the beneficiary being without interest in the continuance of the life insured, is against public policy and therefore void.” Rombach v. Piedmont & Arlington Life Ins. Co., 35 La. Ann. 233, 48 Am. Rep. 239.

It is argued that contrary views were adopted in four other cases cited, to-wit, New York Life Ins. Co. v. Murtagh et al., 137 La. 760, 69 So. 165; Stuart et al. v. Sutcliffe et al., 46 La. Ann. 240, 14 So. 912; Succession of Hearing, 26 La. Ann. 326; and Dolan v. Metropolitan Life Ins. Co., 11 La. App. 276, 123 So. 379.

These cases are not in conflict with our present view, for in 'each of them the insured himself had procured the issuance of the' policy, and the beneficiary had paid the premiums only after the assured had failed to do so.

If we entertained any doubt as to the soundness of our view, still we could not permit a recovery by plaintiff, because the evidence with regard to the second contention of defendant'—that is, that a settlement has been effected—leaves no room for doubt that plaintiff, of her own free will and with complete understanding of the import of her act, accepted settlement and granted full acquittance and discharge.

Of course, if the beneficiary had no insurable interest in the life of the deceased, then the policy was never of any value, and the insurer would be liable for the return of such premiums as have been paid, since no consideration was received therefor. It appears, however, that the premiums paid amounted to approximately $30, and, under the settlement agreement, the insurer paid the plaintiff $60, so that such obligation as may have existed in defendant to return the premiums paid has been more than complied with.

We gather from the argument of counsel for plaintiff that it is also contended that, since the policy was assigned by the beneficiary to the undertaker, who had charge of the interment of the deceased, the defense of lack of insurable interest should not be permitted to prevail, but we cannot concur in this view of the matter, because it conclusively appears that, at the time the insurer made settlement with the beneficiary, no notice of any such assignment was given to the insurer and none of its officers or employees had actual knowledge thereof.

The trial court rendered judgment of non-suit, and defendant complains of this judgment and maintains that it is entitled to an absolute dismissal. In this we agree with defendant. Since defendant received no notice of the alleged assignment, and since plaintiff cannot recover under a policy the issuance of which was against public policy, and since, even if plaintiff ever had a legal right to claim the proceeds of the policy, she has settled and compromised that right, defendant should receive a judgment finally terminating all obligation under the said policy, and we shall so decree.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of defendant and against plaintiff, dismissing plaintiff’s suit at her cost.

WESTERFIELD, J., absent, takes no part.