author: OD.OM, J.

text:
    No. 2610
    Second Circuit
    TERREL v. FERGUSON
    (June 2, 1926. Opinion and Decree.)

      (Syllabus hy the Editor)

    1. Louisiana Digest — Executory Process— Par. 40.
    An order for executory process signed by the judge is null if a certified copy of the mortgage was not presented to the judge and it was not alleged that the mortgage was duly recorded.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Elijah M. Terrell against R. M. Ferguson. Appealing from an order for executory process.
    Order annulled and executory process dismissed as of non-suit.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    B. R. Dawkins, of Alexandria, attorney for defendant, appellant.
   OD.OM, J.

.This is. an appeal from an order...for executory process, .signed by a judge of the-Ninth Judicial-District Court-of Louisiana in and for the - Parish of Rapides.

The order was signed • by the judge on January 14, 1926. Defendant subsequently appealed from the order, setting up as ground for the appeal that the judge did not have presented to him sufficient evidence on which to 'base' the order.

OPINION

Plaintiff alléged' that he was the holder and owner of a certain promissory note made and signed by defendant for the sum of $300.00, which said note was secured by vendor’s' mortgage on certain property which was described in the petition. He attached the note sued on .to the petition but did not attach thereto or produce a certified copy of the mortgage alleged upon and did not allege that the mortgage was recorded in the mortgage records of Rapides parish.

When this case was presented, it was conceded by counsel for plaintiff that a certified copy of the mortgage should have been presented to the judge and that it should have been alleged and shown that the mortgage was duly recorded as provided by law.

It therefore follows that the order for executory process must be set aside.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the order appealed from be annulled and set aside and that the executory proceeding be dismissed as in case of non-suit.

All . costs to be paid by plaintiff, appellee.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2557
    Second Circuit
    RISER v. SCHREIBER
    (March 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4, ' 4- (a), 4 (d).
    In a collision between automobiles drivingj in opposite directions the party driving on the wrong side of the road and notl maintaining a vigilant lookout is negligent and liable for the' resulting| damage.
    (Civil Code, Art. 2315. Editor’s note.)!
    Appeal from the City Court, City of Alex-I andria, Parish of Rapides.' Hon. J. B| Nachman, Judge.
    Action by Blaze D. Riser against Juliufj Schreiber.
    There was judgment for plaintiff and de| fendant appealed.
    Judgment affirmed.
    Lamar Polk, of Alexandria, attorney foj plaintiff, appellee.
    Geo. J. Ginsberg, of Alexandria, attor§ ney for defendant, appellant.
   STATEMENT

WEBB, J.

This action grows out of collision, occurring on the public highway! of automobiles, one driven by tbe plaintiff and tbe other by defendant.

Tbe plaintiff alleges that tbe collision was due to tbe fault of tbe defendant, in that be was driving in a careless and reckless manner on tbe wrong side of tbe road, at an excessive rate of speed and without maintaining a proper lookout, and damages are claimed in tbe sum of one hundred and fifty-one and 00-100 dollars ($151.00), tbe cost of repairs made necessary by tbe collision.

Tbe defendant denies that tbe collision was attributable to any fault on bis part, and alleges that it was due to the fault of tbe plaintiff, in that plaintiff's car was driven down the center of tbe road, with-out regard to defendant’s rights upon tbe road, and be reconvened for damages, for repairs on tbe automobile driven by him, amounting to thirty-nine and 37-100. dollars ($39.37), loss of use of the car for two days at ten dollars ($10.00) per day, and twenty-five dollars ($25.00) attorney’s fees.

Tbe judgment was in favor of plaintiff for tbe full amount claimed and defendant appeals.

OPINION

Tbe record shows that tbe parties were driving in opposite directions, tbe plaintiff driving a Ford and the defendant a Buick; that the cars bit on tbe left side of each, causing the Ford to be overturned, and tbe Buick to swerve to tbe right of tbe road, tbe latter running a distance of approximately thirty-five or forty yards after tbe collision.

Tbe testimony of tbe plaintiff tends to show that bis car was to bis right of tbe center of tbe road at the time of the collision, while that of tbe defendant tends to show that both cars were, at that time, partially over tbe center of tbe road.

Immediately after tbe accident happened, three young men, who were disinterested, inspected tbe road and noted tbe tracks made by tbe automobiles, and their testimony as to these physical facts corroborates tbe testimony . of tbe plaintiff relative to the situation of the cars at the time of tbe impact.

The preponderance of tbe evidence thus shows that defendant’s car was, partially at least, on tbe wrong side of tbe road, and this fact considered in connection wi.th the plaintiff’s statement, that be bad driven bis car as. far as possible to the right of tbe road, without going into tbe ditch, confirms tbe impression, left from reading tbe defendant’s testimony, that be bad not noted tbe situation of the plaintiff’s car until the moment of collision.

Tbe situation, as reflected by tbe record, is that tbe defendant was driving on the wrong side Jf tbe road and not maintaining a vigilant lookout, and that plaintiff bad noted tbe situation and bad attempted to avoid tbe collision by placing bis car as far as be could to tbe right of tbe road.

Tbe defendant was negligent, and tbe judgment ( appealed from is affirmed.


text:
    No. 1984
    Second Circuit
    O’TOOLE v. EXCHANGE NATIONAL BANK
    (March 11, 1926. Opinion and Decree.)
    (April 10, 1926. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Banks and Banking —Par. 56; Pleading — Par. 23, 62.
    In order for a plaintiff to recover a balance due on a deposit account with a bank it is necessary only that he allege that he had a deposit account with the bank and that a balance was due. If this is alleged an exception no cause of action will be dismissed.
    2. Louisiana Digest — Banks and Banking— Par. 56; Estoppel — Par. 30, 41, 53.
    In order for a depositor to “be estopped from pleading that a bank paid checks drawn on one account with the funds of another account, it is necessary for the bank to show that the depositor not only had knowledge of such action (which would not necessarily flow from the rendition of a statement) but also that he expressly ratified the transaction.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo.
    Action by James J. O’Toole against Exchange National Bank.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. B. Protho, of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny & Wallace, Lyons & Peter, of Shreveport, attorneys for defendant, appellant.
   STATEMENT

WEBB, J.

In this action the plaintiff sought to recover judgment against defendant in the sum of one thousand and thirty dollars ($1,030.00), with legal interest from judicial demand.

Plaintiff alleges that during the years 1920 and 1921 he had a personal deposit account with defendant, which was carried under his name, “James J. O’Toole”, and during a part of the same period he also had with the defendant another account under the name of “James J. O’Toole, Trustee”, in which latter account was carried funds belonging to a “trusteeship” existing between himself, W. T. Funderburk and W. F. Wallace, the latter being an officer of the bank.

That on the 15th of September, 1920, he drew a check on defendant for the sum of thirty dollars ($30.00) under the name, “James J. O’Toole, Trustee”, and on May 9, 1921, he drew a like check for the sum of one hundred dollars ($100.00), which checks were paid by the defendant on September 22, 1920, and May 11, 1921, respectively, and debited against his personal account, James J. O’Toole.

That the defendant had made certain debits, as follows:

Nov. 5, 1920 -............................$100.00

Dec. 2, 1920 .......... 250.00

Dec. 6, 1920 300.00

Dec. 6, 1920 ______________________________ 250.00

against his personal account, “James J. O’Toole”, and had on same dates credited the trustee account, “James J. O’Toole, Trustee”, with the amounts.

That the action of the defendant was without warrant or authority, and that he had made demand upon the defendant to pay him the amount due of one thousand and thirty dollars ($1,030.00).

The defendant filed an exception of no cause of acton which, being overruled, it answered, alleging:

That the debits made against the “James J. O’Toole” account, and credits to the “James J. O’Toole, Trustee”, account had been made on the orders of W. P. Wallace, a member of the “trusteeship”, who was authorized by plaintiff to make same, and that plaintiff had full knowledge of such debits, and acquiesced therein, and that the funds thus placed in the “James J. O’Toole, Trustee”, account had been withdrawn and checked out by plaintiff, and that he was estopped to contest the validity of such debits.

That on the dates when the checks drawn by plaintiff under the name of “James J. O’Toole, Trustee”, for the respective amounts, of thirty and one hundred dollars, there were no funds to the credit of the “James J. O’Toole, Trustee”, account, and that it had paid the checks out of the “James J. O’Toole” account, and had sent him statements showing the payments out of the “James J. O’Toole” account, and that he had not protested ■ against the action of defendant, and was estopped from contesting the validity of such payments.

On trial, judgment was rendered against defendant for the sum of one hundred and thirty dollars ($130.00), and it appealed.

OPINION

The defendant urges that the exception of no cause of action should be sustained, and if not, that the judgment should be reversed on the evidence, which, it is contended, shows that the plaintiff had full knowledge of the action in making the debits to the “James J. O’Toole” account, and acquiesced therein.

The exception of no cause of action is pressed upon the ground that plaintiff did not allege that he had made deposits with the defendant.

The plaintiff alleged that , he had a personal deposit account with defendant; that defendant had made unauthorized- debits against the account, and that it was indebted unto him to the extent of such unauthorized debits, and we think that the necessary deduction from the allegations, if true, was that a balance was due plaintiff on his deposit account.

We do not understand the defendant to contend that it was essential that plaintiff should have alleged each deposit that was made, and checks drawn against the deposits, and thus to have arrived at the amount due; but that it would have been sufficient for him to have alleged that he had a deposit account with the defendant, and that a balance was due, and we are of the opinion that the allegations were substantially to this effect, and, therefore, that the exception was properly overruled.

On the merits, the evidence establishes that W. F. Wallace was authorized to make the debits against the “James J. O’Toole” account, and to credit the “James J. O’Toole, Trustee”, account with such amounts, and that plaintiff drew from the latter account the funds which had been thus transferred.

The evidence does not show that the defendant was authorized to pay the checks drawn by plaintiff against the “James J. O’Toole, Trustee”, account from the funds deposited to the credit of the “James J. O’Toole” account, although it does show that at the date -these checks were presented for payment, there were not any funds deposited to the credit of the “James J. O’Toole, -Trustee”, account.

The evidence shows that the defendant recognized the two accounts as distinct, and that it knew that the funds to the credit of the accounts belonged to distinct persons.

The defendant does not contend that it had the right to pay checks drawn against one of the accounts from the funds credited to the other, but it contends that as there were no funds to the credit of the “James J. O’Toole, Trustee”, account, when the checks were presented for payment, and that plaintiff, being personally liable to the holders of the checks, and having been rendered statement of the “James J. 0'’Toole” account showing the payment of the checks from the funds of that account, he is estopped from contesting the correctness of the account.

The witnesses for defendant did not state that statements were rendered plaintiff, and he said that the first he knew of the checks having been paid from his personal account. was in January, 1921, and that he protested.

However, even should it be conceded that statements were rendered, we do not think plaintiff would be estopped. In order for a plea of estoppel to be sustained where the defendant pays from the funds of one depositor checks drawn against the funds of another, we are of the opinion that it would be necessary for the defendant to show that the depositor, from whose funds the payment was made, not only had knowledge- of such action (which would not necessarily flow from the rendition of a statement) and that he expressly ratified the same.

The judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 2669
    Second Circuit
    BEAUBEAUF v. REED
    (June 2, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Interdiction and Interdicts — Par. 18.
    The curator of an insane person will not be held responsible in damages for the statements of the interdict made to an officer of the law or to a grand jury.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action hy Jervais Beaubeauf against Robert Reed, curator of Matt Reed.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. F. Hunter, of Alexandria, attorney for plaintiff, appellant.

      G. J. Ginsburg, of Alexandria, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit against Robert Reed as curator of Matt Reed, an interdict, asking damages against the curator for malicious prosecution caused by statements made by tbe interdict under which plaintiff was arrested and later indicted by the grand jury.

Plaintiff alleges in his petition that Matt Reed was adjudged insane in suit No. 2148 on the docket of the District Court of Rapides parish and that said judgment declared him insane.

Defendant filed an exception of no cause of action.

The exception was tried and sustained and plaintiff appealed.

OPINION

Plaintiff’s allegation that Matt Reed was insane rendered him in law incapable of malice and in order that plaintiff may maintain an action for malicious prosecution three things must concur:

1. The suit must have terminated after trial on its merits in favor of the accused.

2. The motive of the prosecution must have been malicious.

3. The suit must have been instituted without probable cause.

Brown vs. Vittur, 47 La. Ann. 607, 17 South. 193.

Neither of the first two mentioned conditions are alleged in the plaintiff’s petition.

It therefore follows that the exception of no cause of action was properly sustained.

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


author: ODOM, J.

text:
    No. 2241
    Second Circuit
    HOLMES v. PAYNE, SHERIFF, ETC.
    April 10, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Agriculture—Par. 13, 14, 17.
    A “Cropper’s Contract” is one in which one agrees to work land of another for a share of the crop, without obtaining any interest in the land or ownership in the crop before division.
    2. Louisiana Digest — Agriculture—Par. 14, 20.
    A cropper’s contract gives the cropper no legal possession of the premises or crops further than as an employee.
    3. Louisiana Digest — Agriculture—Par. 2.
    Until a cropper’s part of the crop is specifically set aside to him, the title thereto is in the landlord, but after adjustment of the cropper’s share it belongs to him.
    Appeal from the Eleventh Judicial District Court of, Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Jr., Judge.
    Action by Minor C. Holmes against J. W. Payne, Sheriff,' etc. There was judgment enjoining the sale of the crop seized. Defendants appealed.
    Judgment affirmed.
    Rusea & Cunningham; J. C. Gunter, of , Natchitoches, attorneys for plaintiff..

      Breazeale & Breaz.eale, of Natchitoches, attorneys for defendants.
   ODOM, J.

This is a suit brought by a landlord to enjoin the sale by the sheriff under a writ of fi. fa. of a certain lot of cotton and corn grown by a “sharecropper” on plaintiff’s plantation in the year 1923.

There was judgment for the plaintiff, the landlord, decreeing him to be the owner of the crops seized and restraining the sheriff from proceding with the sale; from which judgment the defendants appealed.

OPINION

Wiley Hall lived on and cultivated á part of plaintiff’s plantation .in the year 1923 under an agreement with, the owner of the land that said land owner should furnish the land, a house for him to live in, the necessary teams, farming implements, etc., and should advance to him the necessary money and supplies with which to make and gather a crop.

Hall, the laborer, was to receive one-half of all crops produced by him, and, out of the proceeds thereof, was to reimburse the landlord for his advances.

Previous to the year 1923, Hall, the laborer, had become indebted to S. & H. Kaffie who had reduced their claim to judgment.

In September, 1923, S. & H. Kaffie procured the issuance of a writ of fi. fa. under said judgment and under said writ the sheriff seized and took, into his possession:

“An undivided one-half interest in all the crop raised by the defendant Wiley Hall, consisting of 10 acres of cotton in field which will make three bales, more or less; three acres of corn which will make 50 bushels more or less; one bale of cot-. ton at gin marked W. H. & M. H., weight 446 pounds.”

The sheriff caused the property to be advertised for sale, the sale to take place on October 13, 1923.

The owner of the plantation, Holmes, enjoined the sale of the property on the ground that he was the owner thereof.

It is alleged in his petition and admitted in defendants’ answer:

“That said Wiley Hall was and is a cropper or laborer employed by your petitioner, working for your petitioner for one-half of the crop. That said crops were seized while hanging -by the roots and during process of harvesting, with the exception of the bale of cotton, which had been ginned and pressed.”

The question to be determined by us is, whether under the circumstances disclosed by the pleadings and the evidence Holmes, the owner of the land, was the owner of the crop produced by Hall?

If he was, the creditors of Hall had no right to seize and sell any part thereof, and the writ of injunction should be maintained.

Hall, the laborer, was not called as a witness and therefore all that we know of the contract between him and Holmes the landlord, is what we got from the pleadings and the testimony of Holmes himself.

Holmes testified, in substance, that Hall was to “crop” for him in 1923 on his plantation and that he—

“* * * called him a man working for me as a laborer”.

Asked what he was to pay him, Holmes said:

“His share of the crop”

which, he testified, was one-half thereof.

He said he was to furnish the land, a house for Hall to live in, the teams and farming utensils, and furnish him With money and necessary plantation supplies to make a crop; that he furnished him money and supplies amounting to $362.00, this being more than the value of one-half of the crop produced; that at the time of the seizure he had had no settlement with Hall, and that he had not set aside any portion of the crop to him.

On cross-examination Holmes was asked:

“You furnished him with the land to work * * * and a house to live in and the team and implements to work?”

And he answered:

“Yes.
“Q. He was to furnish his labor?
“A. Yes, sir.
“Q. And he was to get half of what was made?
“A. Yes, sir.
“Q. And you thought that was your cotton that he made, and could use it to suit yourself?
“A. I was satisfied it was mine.”

On further cross-examination he was asked:

“Q. Could you sell the crop if you were the owner, to me for $10.00 or $100.00, the part of it that belonged to the man while it was growing?
“A. I could sell it with his consent, he could do what he pleased with his.
“Q. You could not sell it without his consent?
“A. No.
“Q. You could sell that much if you were the owner without anybody’s consent except your own?
“A. Yes, sir.”

The above is all the testimony there is in the record as to the contract between these parties.

Under this testimony, we think Hall was only a laborer on Holmes’ plantation and was to receive, in lieu of wages, one-half of the crop which he produced. He was what is commonly called a “cropper”. There was no express agreement between he and the landlord that he should receive one-half of the crop in lieu of wages; the contract was not stipulated in those words, but that is what the contract amounted to. That is the way such contracts are construed and generally understood in' this section. Under such a contract the laborer has no interest in the crop produced by him until and unless the crop is harvested, a division thereof made: between he and the landlord and his part segregated and set apart to him.

In the case of Bres & O’Brien vs. Cowan, Faulk, intervenor, 22 La. Ann. 438, the plantation was owned by the Cowans, the defendants, and the court said:

“The defendants employed certain laborers and agreed to give • them, in lieu of wages, one-third the gross product of cotton. There was plainly no partnership in this. The plantation was the Cowans; the cotton as it grew was theirs; the supplies were furnished to them for the crop; and every fibre of the cotton, as it matured, was affected by the privilege of the ' plaintiffs.”

In the case of Lalanne Brothers vs. McKinney, 28 La. Ann. 642, the laborers were to be paid one-half the proceeds of the cotton and half of the other products, and they Were referred to in that case as “hirelings”.

The case of Jeter vs. Penn, 28 La. Ann. 230, involved the question as to whether the owner of a plantation had a right to discharge the manager. The manager was to receive one-thirteenth of the products of the plantation and claimed that he was a partner with the land owner and could not be discharged; and the court said:

“He was merely to receive a certain portion ’ of whatever crops might be made on the plantation, irrespective of any profits which the crops might result in. He was, therefore, a mere employee, to be paid in a portion of the crops instead of a certain sum of money. Being an employee he could be discharged for cause.”

In the case at bar, Hall, the laborer, was to receive a portion of the crop as compensation for his labor. He was therefore an employee; as much so as if he had been working for a stipulated sum of money each month as wages. He was what is termed in this section and elsewhere as a “cropper”. A “cropper” is one who raises a crop upon land of another under a contract to raise a crop for a particular part of it. A cropper’s contract is “one .in which one agrees to work the land of another for a share of the crop, without obtaining any interest in the land or ownership in the crop before division”.

Gray vs. Robinson, 33 Pac. 712.

As stated by another court, a “cropper” is one hired to work land and to be compensated by a share of the produce.

As to the rights and liabilities of the “cropper”, the law is thus stated in 12 Cyc. 980:

“A cropper’s contract gives the cropper no legal possession of the premises further than as an employee; the legal possession is in the employer, who alone can maintain trespass. Before the division of the crop the whole is the property of the landlord and the cropper has no legal title to any part thereof, which can be subjected to the payment of his debts or which he can assign or convey to a third person. When, however, their respective rights in the crop have been adjusted and the cropper’s part specifically set aside to him the title thereto is in him, and he may mortgage or dispose of the same as he will.”

To the same effect, see 17 Corpus Juris, 382, sec. 11.

These texts are supported by citations from the courts of last resort of eighteen states of the Union.

See also, La. Farm Bureau C. G. Co-op. Assn. vs. Banister, 2 La. App. 620.

In 8 R. C. L. 376, sec. 23, with reference to title to and right to a division of the crops raised on shares, it is said:

“The possession of a cropper is that of a servant and therefore it is in law that of the landlord, and hence the exclusive property in the crops remains in the landowner until he has set apart the employee’s share. This right to divide the crop belongs exclusively to the landowner. Thus a cropper has no such interest in a crop as can be subjected to the payment of his debts while it remains en masse, or as will enable him to sell any part of the crop prior to its division.”

In the case of State vs. Jacobs, 50 La. Ann. 447, 23 South. 608, the defendants were indicted for the larceny of cotton, and the court said:

“The question raised by the other bills is as to the ownership of the property, the subject of the larceny. The testimony offered was that the cotton was raised under the agreement that the accused, a laborer on the plantation, was to share the crops with the owner. The indictment laid the property in the owner. It is contended on behalf of the accused that he could not be convicted of the larceny of cotton, he claims was owned in part by himself, and the proof adduced on the trial did not sup-1 port the indictment. We have considered! the line of argument and the authorities I cited in support of it. The cotton raised onj the plantation on shares must, we think,! be deemed to belong to the owner of the! plantation, while still in his possession,! and before the share of the laborer has! been separated. This is the view, too, of| the text writers.”

Counsel for the seizing creditors point tol the fact that Holmes, the landlord, testi-1 fied that he could not or would not sell thel crop without the consent of Hall, and argue that it follows that Holmes recognized Hall as the owner of a one-half interest in the crop. We do not construe his testimony to mean that. Of course the laborer has an interest in the crop he produces. He is to receive a part of the crop as his wages, and to deprive him of the crop would be to deprive him of his wages. The amount of the wages he receives depends upon the amount of crops he produces and the value thereof. To the end that he may receive just compensation for his services, the laborer has an interest to see that the crop is marketed as conteniplated in the agreement. Recognition by the landlord of this fact is not a confession on his part that the laborer owns an interest therein in the sense that it may be seized by the laborer’s creditors.

We think that, as a matter of law, the plaintiff in injunction was the owner of the crop seized in this case, and that the injunction was properly sued out and maintained.

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


text:
    No. 2604
    Second Circuit
    DUBACH LUMBER CO. v. CARROLL LUMBER CO.
    (May 7, 1926, Opinion and Decree.)
    (June 2, 1926, Rehearing Refused)

      (Syllabus by the Bditor)
    1. Louisiana Digest — Appeal—Par. 614.
    Under Act 228 of 1924 the district judge has the discretion of accepting the verification to the petition as proper, and if he does so, the appellate court will not interfere with his ruling.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    Action by Dubach 'Mill Company Inc., against M. M. Carroll Lumber Company. There was default taken against defendant. Defendant appealed.
    Judgment affirmed.
    I)hu Thompson, of Ruston, attorney for plaintiff, appellee.
    Crow and Coleman, of Shreveport, attorneys for defendant, appellant.
   -, J.

The original verification of the petition in this case was made by plaintiff’s attorney without specifying that the officers of the plaintiff corporation were absent from the parish. He did specifically aver in his affidavit that they were absent and that it was not practicable for them to make the affidavit.

On September 15, 1925, defendants excepted to the petition on the alleged ground that it set out no cause or right of action and that it was improperly verified.

These exceptions, it seems, were filed at. chambers and were not brought to the attention of counsel for plaintiff, and default was entered on September 28th.

Counsel having had his attention called to the exceptions, caused them to be set for trial.

In the meantime, on October 1st, the petition was verified by J. P. Yoss, vice-president and general manager of plaintiff company.

The exceptions were taken up and tried on October 6th, counsel for defendant being present in open court, and the following ruling made, according to the minutes of the court entered on that date:

“Exception of no right or cause of action and of want of proper verification is taken up and tried, and said exception is overruled as to its allegation of no right or cause of action; and, it appearing to the court that the petition has been verified by the affidavit of J. P. Voss, vice-president and general manager of plaintiff corporation, which is considered a compliance with the requirements of law, the exception as to want of proper verification is likewise overruled.”

It does not appear that the court ever entered an order permitting Voss, the vice-president of the company, to verify the petition, but it seems that he went to the clerk’s office, took the petition from the files and subscribed to the affidavit which counsel wrote thereon.

On the trial of these exceptions on October 6th the above order was entered by the court. On the following day counsel for plaintiff had the default entered on September 28th set aside and another default entered. The case was again defaulted on November 3rd and confirmed on November 6th.

A motion for a new trial was filed and on November 30th was overruled.

On appeal, the judgment of the lower court was affirmed.

On application for rehearing in this court, counsel for defendants assign as error the finding of the court that the exception of no cause or right of action and want of proper verification was filed by defendants on October 1st, whereas it was filed on September 14th.

Our finding on that point was error. But whether the exception was filed on September 14th or October 1st was immaterial. The exceptions were tried and overruled on October 6th when counsel for exceptors were present, as we understand, in open court. No answer was filed and the case was defaulted on the following day and again on November 3rd, the default being finally confirmed on November 6th, one month after the exception was overruled.

The point which counsel stress mainly and which they ask that we definitely and specifically pass upon, is whether the verification of the petition by Voss, the vice-president of plaintiff company, was permissible without an order of court.

We find nothing in the statute, Act 228 of 1924, forbidding it and we know of no reason why, a plaintiff cannot reverify his petition or amend the verification previously made as soon as objection is made to the verification, even without an order of court.

The statute provides that when there is an exception of want of verification filed, in limine, as in this case, the court may in its discretion allow the verification supplied or amended. If the plaintiff, in anticipation of the court’s order, supplies or amends the verification, the same results are attained as if the court had ordered it done.

In this case, plaintiff did, in anticipation what the court no doubt would have ordered done. When the exception of want of proper verification came up for trial the court found that the petition had already been properly verified and it accepted the verification.

In its discretion, the court had the right under the act to do that. If the court had found upon trial of the exception that the petition was not properly verified it could have then and there ordered a proper verification without any delay in the proceedings or within its discretion. It makes no difference whether the verification is made or amended in open court when ordered or whether it is made prior to the date on which the exception is tried. In either event, the defendant gets what he asks and what he is entitled to, that is, proper verification.

Counsel say that the taking of the petition out of the files and the writing of the verification thereon by Voss amounted to a mutilation of the record and a change of the issues.

The district judge did not think so and he, in his discretion, accepted the verification as proper. The verification is no part of the petition or the demand. The verification of a petition is merely an affirmation under oath by the party making the pleading that he is prepared to prove the allegations that he has made. The issues are not changed by the addition of the affidavit.

The lower court in its discretion accepted the verification made by Voss and we shall not interfere with its ruling.

See Clark vs. Illinois Central R. R. Co., 134 La. 440, 64 South. 281.

Rehearing refused.


text:
    No. 2689
    Second Circuit
    MINGES v. BONNETTE
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Landlord and Tenant —Par. 5, 96, 105.
    If there is no definite agreement between occupant of property and the owner as to the rental to be paid there is no lease, no privilege, and no writ of provisional seizure can be made.
    2. Louisiana Digest — Landlord and Tenant —Par. 96.
    If the occupant of property had no agreement with the owner as to the rental to be paid a writ of provisional seizure should be dissolved with the reservation to the owner to claim thé value of the occupancy of the property.
    (See Arts. 2669 and 2670 of the Civil Code and Arts. 284 and 285 of the Code of Practice. Editor’s note.)
    3. Louisiana Digest — Landlord and Tenant —Par. 102; Attachment — Par. 162 (by Analogy).
    Attorney’s fees cannot be granted for the dissolution of a wrongful writ of provisional seizure if the attorney does not move for the dissolution of the writ prior to answering on the merits, because it is impossible to determine the amount due the attorney' for dissolution of the writ.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    Action by William Minges against Henry Bonnette. There was judgment for plaintiff and defendant appealed.
    Judgment reversed and defendant’s re-conventional demand rejected.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    J. C. Cappel, of Covington, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, alleging that he had leased to the defendant certain property for the year 1925 at the price of two hundred and fifty dollars, and that same was due and unpaid, brought this suit to recover judgment against the defendant and under proper allegations obtained a writ of provisional seizure under which certain movables on the premises described were seized.

The defendant answered, denying the allegations of plaintiff’s petition and especially pleaded that under the agreement between the plaintiff and himself he was to occupy the property for the year 1925 and was to pay rent for that year only in the event he was able to make a full crop, and that the amount to be paid was left to be fixed by him.

He further alleged that he had placed valuable improvements on the property, and that the writ of provisional seizure had been wrongfully issued, and prayed that the writ be dissolved and plaintiff’s demand rejected and that he have judgment in reconvention for the value of the improvements placed by him on the property, and for damages sustained by h'im from the seizure of his property.

On trial, judgment was rendered in favor of plaintiff in the sum of one hundred dollars, sustaining the writ of provisional seizure and recognizing a privilege on the property seized.

The defendant appealed.

OPINION

The preponderance of the evidence establishes that the agreement between the parties under which defendant took possession of the premises was indefinite, and that the amount of rent to be paid for the year 1925 was not fixed at a certain sum or for a portion of the crop, but was left to be determined at a later period, depending upon the crop which, would be raised by the defendant.

The evidence further shows that the defendant offered to pay the plaintiff one hundred dollars, which offer was not accepted, and which offer, plaintiff states, was made in order to prevent a suit.

In Frigero vs. Stillman, 17 La. Ann. 22, the court said:

“The question is then whether or not the understanding to pay a reasonable rent is a fixed price, a price certain and determinate. * * * We think there was no fixed price as contemplated by law, 'nor was the price left to a third person, named and determined * * * there being no price fixed by the parties or left to the award of a third person * * * the agreement wanted an essential to constitute a contract of lease.”

We are of the opinion that the offer of the defendant to pay the sum of one hundred dollars, was made to prevent the suit and as an offer of compromise, and that it cannot be considered as an admission of indebtedness, and the offer not having been accepted it cannot be considered as having fixed the rental price, conceding that the fixing of the price at that time would have rendered it definite.

We are therefore of the opinion that there was no lease and no privilege and that the writ of provisional seizure should have been dissolved, and plaintiff’s demands rejected. (Jordan vs. Mead, 19 La. Ann. 101; Fisk vs. Moore, 11 Rob. 280; Blanchard vs. Davidson, 7 La. Ann. 654) with reservation to the plaintiff to claim the value of the occupancy .of the property.

The defendant failed to establish his claim for improvements, or to prove any damages for the dissolution of the writ, except, possibly, attorney’s fees. However, he failed to move for the dissolution of the writ, prior to answering on the merits, and it is impossible to determine the amount due for dissolution of the writ.

“Whenever an attachment or other conservatory writ is dissolved after hearing the merits, or'so that it' is impossible to differentiate between tbe attorney’s services for dissolving tbe attachment and those for defending the suit, such attorney’s fees cannot then form an element of the damages to be allowed, for the wrongful issuance of the writ, ‘for to do so would be to allow the fees virtually for defending the suit on the merits, which is not permissible’.”

Fariss vs. Swift, 156 La. 12, 99 South. 893.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, that the writ of provisional seizure be dissolved and plaintiff’s demands rejected at his cost, reserving to him any right which he may have to claim of defendant the value of the use of the property for the year 1925.

It is further ordered, adjudged and decreed that defendant’s reconventional demands be rejected.


text:
    No. 2649
    Second Circuit
    MOORE v. VANCE
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 4 (c).
    A person in the act of backing an automobile across a sidewalk in a city who sees a boy nine years and two months of age walking on the sidewalk near the point' over which He is about to back the automobile, should take' such precautions as that in no event conceivable to an intelligent man- will it back over and injure the boy.
    Albert vs. Munch, 141 La. 686, 75 South. 513.
    Mahan vs. Everett, 50 La. Ann. 1162, 23 South. 883.
    2. Louisiana Digest — Negligence—Par. 29.
    The conduct of a child under ten years of age is not governed by the same rules which apply to adults; the care and caution required of a child of tender years being according to his maturity and capacity and the circumstances of the particular occasion, and he is not to be held to the same degree of care, prudence and caution that an adult is under like circumstances. He may be guilty of contributory negligence, but whether he is or not depends upon the particular circumstances of each case and must be determined in connection with his age and ability to judge of the conditions.
    Westerfield vs. Levis, 43 La. Ann. 63, 9 South. 52.
    Mitchell vs. Illinois Cent. R. R. Co., 110 La. 630, 34 South. 714.
    3. Louisiana Digest — Municipalities—Par. 263; Negligence — Par. 21, 22.
    The general rule is that every person has the right to presume that every other person will perform his duty, in the absence of reasonable ground to think otherwise, and it is not negligence for one to assume that he will not be exposed to a danger which could come to him only from a violation of a duty that another owes to him. Failure of a plaintiff to anticipate the defendant’s negligence does not constitute contributory negligence.
    Rock vs. American Construction Co., 120 La. 831, 45 South. 741.

      4. Louisiana Digest — Municipalities—Par.
    263; Roads, Bridges and Ferries — Par. 20.
    Pedestrians are- entitled to the right of way on the sidewalks or banquettes of a city. Any one backing an automobile over such sidewalk must do it in such a way that everybody may traverse the same in the confidence of safety, and must take such precautions in the driving as that in no event or. situation conceivable to an intelligent man would he run over and injure a child using the sidewalk. Anything short of this constitutes negligence on the part of the driver of the car.
    Mahon vs. Everett, 50 La. Ann. 1162, 23 South. 883.
    Mahnke vs. N. O. etc., R. R. Co., 104 La. 411, 29 South. 52.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. R. C. Culpepper, Judge.
    Action by Bernard W. Moore, individually and for the use and benefit of James Robert Moore against Norwood K. Vance. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    White, Hollman and White, of Alexandria, attorneys for plaintiff, appellee.
    Overton and Hunter, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is ah action, sounding in damages, brought by Bernard W. Moore, individually and for the use and benefit of his minor child, James Robert Moore, against Norwood K. Vance.

The petition alleges that on January 26, 1925, at the hour of between eight and nine o’clock, a. m., James Robert Moore, then nine years and two months of age, was walking along the sidewalk of Jackson street in Alexandria, Louisiana, in the direction of Bolton avenue; that, as he neared the driveway leading out of the private premises of Mrs. J. C. Blackman, he observed defendant backing a car along the driveway; and that he stopped and the car stopped when both were within a few feet of the intersection of the driveway with the sidewalk; that the boy then continued on his way, and that the defendant, without warning, notice or signal backed his car upon the sidewalk, striking the child and knocking him across the sidewalk, causing a fracture of the pelvic bone.

The plantiff claims damages for the boy by reason of physical and mental suffering and contends for twenty-five hundred dollars on this item, and declares he, himself, has suffered the following damages: Doctor’s bills, $200.00; hospital bill, $37.50; nurses’ bills, $110.00; medicines and incidental expenses, $52.50; and loss of time from occupation, $100.00; totalling $500.00.

Defendant denied liability and averred that as he neared the sidewalk he saw plaintiff’s son to his left about six feet from and facing the driveway; that he stopped his car and that then the boy stopped; that he then continued backing his car; and that as he was backing towards and across the sidewalk the boy suddenly and unexpectedly attempted to go around and behind the car and in so doing was struck by the rear left fender when he had reached the intersection of Jackson street with the driveway; that he was unaware of the last movements of the boy until after the accident had happened and that as soon as the accident happened he stopped his car and went to the boy’s assistance. He denies that he failed to give timely warning of the movements of the car and denied that he was negligent, and alleged that plaintiff’s son was negligent and that his negligence was the proximate cause of the accident.

On these issues the case was tried and there was judgment in favor of plaintiff for $950.00 and defendant appealed.

OPINION

After reading all of the evidence in this case and the able briefs of counsel for plaintiff and defendant therein we are satisfied that the case must be decided upon the testimony of James R. Moore, plaintiff’s son, called in the record “Jimmy” Moore, and the defendant, Norwood K. Vance, as to the facts that existed just prior to and at the moment of the accident.

Plaintiff’s son, James R. Moore, testified, page 3:

“I saw Mr. Vance backing out, and I stopped and looked to see if anybody was coming, and he stopped, and I thought that he was waiting for me to pass, and I started, and we bumped into each other, or the car knocked me down and ran over me.”

Norwood K. Vance, the defendant, testified, pages 76, 77, 78, 84:

“I was driving slowly, backing slowly. * * * I stopped before I reached the sidewalk * * my reason for stopping was, I always stop, even at my house; I have to bring ipy car from the garage in the same way, and I stopped and then looked to see if I could continue; I stopped and saw a boy that I afterwards learned was Jimmy approaching the driveway; he stopped, and when he stopped I backed out. * * * As I came out, when I started out again, I faced toward Bolton and blew my horn because the trucks that go in and out of Jackson street have the right of way, and any car that was coming out Jackson street would be apt to be on the right side if they were observing the traffic laws. * * * When I stopped my car I glanced out the car on the left hand side and I saw a little boy— I was afterwards informed that he was Jimmy Moore — approaching the driveway. I stopped, and this child stopped probably five or six feet, I would judge from the driveway on the sidewalk. I then started to back out into the street. I blew my horn and looked in the direction of Bolton avenue to see if there were any cars or any vehicles approaching or going out Jackson street. Well, as I got off the incline of the driveway I heard a child crying. I had no idea that I had hit anything or that I had hit this child, and had I not heard his cry it is probable that I would have come on uptown, but I immediately stopped my car, got out, and Dr. Price and Mr. Katz were there about' the time that I got out. Dr. Price had picked this little child up. I asked him his name and he told me Jimmy Moore. I asked Dr. Price and Mr. Katz if they would take him home.”
“Q. Now are you certain that in backing out, just before you got to the sidewalk, that you stopped your car before Jimmy stopped walking toward the driveway?
“A. Yes, sir, I stopped, little Jimmy stopped; you see, as I came to the middle of the curb I stopped my car, and then he stopped, and I backed on out. If the front wheel went over him, as Dr. Price testified, I never even felt it; I did not feel the motion of the car going over him.
“Q. Then, after seeing that he had stopped, before you undertook to resume your journey and go over the sidewalk, you said that you looked to the right, toward Bolton avenue?
“A. Yes, sir.
“Q. Jimmy was at that time on your left, he had stopped on your left?
“A. Yes, sir. ,
“Q. I will ask you to state again the reason why you looked to the right as you undertook to cross over the sidewalk into the street.
“A. For the reason that the trucks that go in and out of Jackson street have the right of way on the right hand side as this driveway where this accident happened is on the right side of Jackson street, and any car that was coming out of Jackson street would be apt to be on the right hand side, if they were observing the traffic rules.’ ■
* * *
“Q. ■ Did you make any Sign to him out' of that open window with your hand, or any -that you were going to back your car, or any' motion of your hand at all out of that window?
“A. . The only motion that'I made was the blowing’ of my horn.
“Q. You did not give him any signal .with your hand?
“A. No, sir.
.“Q; You did not put your hand out of the window?
“A. No, sir.
‘ “Q. Now, when you last saw Jimmy, before the accident I mean, were, you still or moving?
“A. I was still.
“Q. And he .was still?
“A. Yes, sir; my motor was running, though.
“Q. When you last saw Jimmy your car was still and he was still?
“A. Yes, sii’.”

Prom the above evidence, the first question to be decided is .whether or not the defendant was guilty of negligence. We think it is negligence for the operator of an automobile in backing his car over a sidewalk to stop his car on account of seeing a small boy standing or walking on the sidewalk within five or six feet of the driveway down which he is backing and to then turn his head and look to the right and resume backing over the sidewalk without again looking to make sure that the small boy is not in danger from his backing automobile.

When a small child is involved, the operator of an automobile should be very careful not to back his car over him, and when the operator of an automobile and a small child are both about to make use of the same portion of the sidewalk at the same time- it is negligence on the part of the operator of the automobile to back his car upon the portion of the sidewalk about to be used by the small child without first looking in the direction of the child to be sure that he is not in danger from the backing automobile.

The next question to be decided is whether or not Jimmy Moore was guilty of contributory negligence.

• • As already quoted from his testimony, he testified:

“I saw Mr. Vance backing out, and I stopped and looked to see if anybody was coming, and he stopped, and I thought that he was waiting for me to pass, and I started, and we bumped into each other, or the car knocked me down and ran over me.”

We find no evidence in the record that disproves this statement. The district judge who tried this case and saw and heard Jimmy Moore testify accepted his testimony as true and we also believe it to be true and it is convincing.

At the point on the sidewalk where the accident occurred Jimmy Moore had the right of way and it was not negligence on his part to assume that defendant would not resume backing his car over the sidewalk without first .making sure that he was not backing into some pedestrian for whose benefit the sidewalk was maintained.

Jimmy Moore had the right of way. He! knew that defendant had seen him and! had stopped his car. It was not negligence! on Jimmy Moore’s part not to assume that! defendant would disregard his right of way! and back his car over him. |

This brings us to the question of daml ages, and under the evidence and the aufl thorities cited by defendant’s counsel as tcfl amount of damages allowed in similaiB cases we are convinced that the allowancl of $500.00 for the use and benefit of Jimmy M.oore is neither too low nor too high.

As to the other items of damages, allowed, namely: $450.00 to plaintiff individually, we think the evidence clearly establishes the following items, namely: Doctor’s bills, $200.00; hospital bill, $30.00; and as to these items we understand there is no dispute as to the right of plaintiff to recover them if damages are to be allowed at all. The item of $110.00 paid by plaintiff to Mrs. Moore’s niece for leaving her home in Arkansas and coming to Alexandria and nursing Jimmy Moore during the period of his disability is entirely reasonable we think. The item of $100.00 claimed by plaintiff for himself for one week’s loss of time on account of his staying home ten days, we think is not established as one that should be allowed. Mr. Moore did not get home for two or three days after Jimmy Moore was hurt and at that time x-rays had been made of Jimmy’s injuries and there is no suggestion in the evidence that it was even thought that the boy might not recover from his injuries or that Mr. Moore’s services were necessary in order for the boy to have proper nursing. Besides, Mr. Moore was working entirely on a commission basis and there is no evidence in the record to show what amount of commissions he could have earned during the period he remained at home. This item cannot be allowed. As to the item of $52.50 for medicines and miscellaneous expense, Mr. Moore testified, page 23:

“Q. Now you have also alleged the sum of $52.50 for medicine and incidental expenses. Can you tell the court about those items?
“A. Well, I could not give yot( the exact figures; those figures are most of an estimate. I had absolutely no way in the world of telling just exactly. I arrived at that by taking items like the crutches that I had to buy.
“Q. What did that cost?
“A. Around $2.50 or $3.00, I don’t recall exactly. Dr. Evans had them sent to the house and I paid for them. My wife had a cook that stayed there, and she was in the habit of leaving after dinner; and my wife had her stay there all day long and we had to pay her additional, possibly $1.50 per week, and then she stayed some three or four or five weeks, X don’t know just how long; and besides the help, we had the expense of running the house; with this cook’s additional pay, and we had my niece there, which added increased cost to the household expenses, and Jimmy required different things.”

This testimony is entirely too indefinite as to any amount except the item of $2.50 paid for the crutches, and therefore cannot be allowed for any amount other than the $2.50.

This makes a total of $342.00 damages for which we think plaintiff individually is entitled to judgment.

For the above reasons, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended by decreasing the amount allowed to plaintiff individually from $450.00 to $342.00 and that as thus amended and in all other respects the judgment be affirmed; plaintiff to pay the costs of this appeal.


author: CARVER, J. ODOM, J. ROBERTS, Special J.

text:
    No. 2123
    Second Circuit
    SULLIVAN v. TREMONT & GULF RAILWAY COMPANY
    (December 10, 1925, Opinion and Decree)
    (February 8, 1926, Rehearing Granted)
    (June 2, 1926, Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 515, 520.
    Tf the record does not contain an order of-appeal or even a petition or motion for such order, the appellate court ■will dismiss the appeal on its own motion.
    ON APPLICATION FOR A REHEARING
    2. Louisiana Digest — Appeal—Par. 553, 558.
    Where the order of appeal was granted but was omitted from the transcript due to an oversight of the clerk a rehearing will be given the case in the appellate court to show that the appeal was properly taken and to consider the . case.
    ON REHEARING
    3. Louisiana Digest — Railroads—Par. 60, 62.
    The employees of a railroad are negligent if they fail to have someone at a crossing to assist in preventing an accident during switching operations in which freight cars are backed over the crossing without a lookout.
    4. Louisiana Digest — Railroads—Par. 63, 64.
    It is the duty of a person approaching a railroad to stop before crossing, and after stopping to look and listen, not in a perfunctory manner, but in an effective way in order to accomplish the end intended by the rule.
    5.Louisiana Digest — Automobiles—Par. 7, 7 (b).
    Contributory negligence of the driver of an. automobile at a railroad crossing bars recovery for the damage done by a. collision with a train.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Fifth Judicial District. Court of Louisiana, Parish of Jackson, Hon. J. E. Reynolds, Judge.
    Action by W. A. Sullivan against Tremont & Gulf Railway Company. There was judgment for plaintiff and defendant, appealed.
    Judgment reversed.
    T. S. Price, of Ruston, attorney for plaintiff, appellee.
    Theus, Grisham and Thompson, of Ruston, and J. C. Pearce, of Winnfield, attorneys for defendant, appellant.
   CARVER, J.

The record in this case does not contain any order of appeal or even petition or motion for such order.

Although no motion has been made to dismiss the appeal, on the authority of Gagneaux vs. Desonier, 104 La. 648, 29 South. 282, we feel constrained regretfully to dismiss the appeal on our own motion.

In that case the record showed that the appellant requested the court to fix the amount of the appeal bond and that the court did fix it, but because it did not show the grafting of an order of a formal order, the court dismissed the appeal.

It is true that a motion in that case was made to dismiss, being made, though, more than three days after the return day. The court states that appellant, in support of his contention that such an objection came too late after three days, cited the following cases, namely:

Murray vs. Bacon, 7 N. S. 271.

Temple vs. Marshal, 11 La. Ann. 613.

Kohn vs. Davidson, 23 La. Ann. 467.

Francis vs. Lavine, 26 La. Ann. 312.

Holbrook vs. Holbrook, 32 La. Ann. 14.

Hall vs. Nevill, 32 La. Ann. 326.

Succession of Chamburg, 34 La. Ann. 25.

Webb vs. Keller, 39 La. Ann. 55, 1 South. 423.

Long vs. Key, 44 La. Ann. 309, 10 South. 854.

State vs. Callac, 45 La. Ann. 27, 12 South. 119.

Naghten vs. Naghten, 48 La. Ann. 769, 19 South. 762.

Mutual Life Ins. Co. vs. Houchins, 52 La. Ann. 1139, 27 South. 657.

The court stated that to the above might be added:

O’Reilly vs. McLeod, 2 La. Ann. 138.

Walker vs. Sauvinet, 27 La. Ann. 314.

The court then says:

“We have examined the decisions referred to by appellant. Most of them declare that the defects in orders of appeal, or in bonds of appeal, which if not objected to within three days, are to be abandoned or waived, are irregularities in orders of appeal actually granted or in bonds actually furnished. They do not declare that objections that ‘no order’ of appeal was granted, or that no bond was furnished, have to be made within three days, and if not so made will be considered abandoned or waived. Murray vs. Bacon, 7 N. S. 271; O’Reilly vs. McLeod, 2 La. Ann. 138; Temple vs. Marshall, 11 La. Ann. 613; Walker vs. Sauvinet, 27 La. Ann. 314; State vs. Callac, 45 La. Ann. 27, 12 South. 119, and Webb vs. Keller, 39 La. Ann. 55, 1 South. 423, are, however, cases where expressions to that effect will be found. These cases all refer to Murray vs. Bacon as the original authority for such a declaration. All that the court said in that case was that ‘the appellee had moved to dismiss the appeal for an irregularity in the manner of bringing it up. That this motion came too late. The Code of Practice excluded all the answers except those which pray for a confirmation of a judgment if not put in within three days after the record was filed in the Supreme Court.’
"It will be noted that the court does not state what the objection was which was made, and that it refers to it as directed at an ‘irregularity in the manner of bringing the appeal up’. It does not' pretend to exclude objections of a jurisdictional character which it would be the right or duty of the court to notice ex officio and to dismiss the appeal of its own motion.”

The court then proceeds to discuss many of the cases cited, after which it says:

“We are of the opinion that the granting by the lower court of an order of appeal is a jurisdictional fact, and that the absence of such an order should be noticed ex officio by the appellate court and acted upon of its own motion. The failure of the appellee to urge the objection, even if it had the effect of estopping him from filing a formal ‘motion to dismiss’ as appellant contends it does, would not preclude him from suggesting or bringing the matter to the knowledge of the court. Upon coming to such knowledge, it would be the duty of the court to dismiss the appeal of its own motion. If the decisions quoted by the appellant contain anything contrary to what we here declare to be the law, they must be considered to that extent overruled.”

The Gagneaux case has béen cited only twice by the Supreme Court, so far as we have found, namely: in the cases of Vallee vs. Hunsberry, 108 La. 136, 32 South. 359, and State vs. Simpson, 122 La. 301, 47 South. 622.

The Simpson case is not at all in point, there having been an order of appeal in that case.

In the Yallee case, the court says:

“The transcript in this case was filed in this court November 8, 1901; and upon February 21st of the present year, the defendant and appellee moved to dismiss the appeal upon the grounds: (1) That the transcript failed to show any order of appeal from the only final judgment ‘read and signed’; (2) that the district court had divested itself of jurisdiction by granting an appeal to this court; and, (3) that no notice of the appeal was served on the appellee, or his counsel.
“As to the first ground, the motion comes too late.” Webb vs. Keller, 39 La. Ann. 55, 1 South. 423.

We cannot think that the court intended, in this terse manner, to overrule the Gagneaux case, in which such an exhaustive examination of the authorities was made. Justice Monroe, the organ of the court in the Vallee case, was a member of the court which decided the Gagneaux case and the report shows no dissent on his part.

The appeal is, therefore, dismissed.

ON APPLICATION FOR REHEARING

ODOM, J.

When this case came up for consideration in this court, it was discovered that the transcript did not show that an order of appeal was asked for and granted by the lower court. We held, correctly we think, that this court should dismiss the appeal for that reason, even though no formal motion to dismiss had been filed by the appellee.

Appellant has applied for a rehearing and asks that the case be reinstated on the calendar for the reason that as a matter of fact an order of appeal was granted and that the omission of the order from the transcript was an oversight on the part of the clerk of the district court; and it attaches to its application an extract from the minutes of the court showing the granting of an order of appeal and the clerk’s certificate that the said extract from the minutes is correct.

Obviously an injustice would be done the appellant to thus dispose of its case if as a matter of fact an order of appeal was asked for and granted.

The omission of the order from the transcript seems not to have been noticed by either the appellant or the appellee but was discovered by us.

It is therefore now ordered that a rehearing be granted, that our order dismissing the appeal be set aside and the case reinstated on the calendar in order that the appellant may have the transcript completed according to law.

REYNOLDS, J. Recused.

ROBERTS, Special J.

The plaintiff brings this suit to recover from the defendant railway company the sum of fifteen hundred dollars, alleged to be the value of a Bour-Davis automobile negli-. gently run over and practically destroyed by one of defendant’s freight trains at a public crossing on the main street of the town of Eros.

■ The defendant admits the destruction of the automobile, but denies that same was destroyed as the result of any negligence on its part, and in the alternative, alleges that if the court should find that it was guilty of any fault or negligence, then and in that event, it is contended that the destruction of the car was caused directly by the carelessness of Frank Sullivan, driver of the automobile, and that the driver’s contributory negligence constitutes a bar to plaintiff’s recovery.

There was judgment below for plaintiff, and defendant has appealed to this court.

STATEMENT OF FACTS

The accident by which plaintiff’s automobile was destroyed happened at Eros in Jackson parish, on the twelfth day of August, 1921. This suit was filed on May 29, 1922, and tried on December 10, 1923. Due to some defect in bringing up the appeal, and to changes in the personnel of this court, the final determination of the case has been more than ordinarily delayed.

Eros is a sawmill town with a population of about twelve hundred inhabitants. Most of the business section of the town is on one street popularly called Main street but shown on the plat of the town as Second street. This street runs through the town from northeast to southwest, and defendant’s truck crosses it almost at right angles in a thickly populated part of the town.

On the day of the accident, plaintiff’s son had taken the car from where it was parked in the neighborhood of plaintiff’s store, and had driven out into the country somewhere southwes.t of the town. At the time of his return, the defendant’s train crew were switching, or picking up some box cars which had been placed on what is referred to as the house track, or switch track, in contradistinction to the main track. It appears that the crossing on which the accident occurred is about six car lengths from the station, and that there were four box cars on this track at the time of the aceident. The house or switch track is south or southwest of the main track and runs parallel with the main track from the depot to the crossing; and is separated from the main line track by a distance of about thirty feet.

It appears that the train crew had backed on the house track for the purpose of picking up the four box cars which were strung along it from the depot to the crossing, and that in the operation of picking up these cars, had backed that one of them which was farthest from the depot onto the crossing so that, according to the witnesses, from one-half to two-thirds of the crossing was blocked, by this box car. The crossing, it appears, was about thirty feet wide, from which it follows that from fifteen to twenty feet of the crossing was blocked by the box car when the plaintiff’s son drove up to it from the southwest.

When plaintiff’s son drove up to the crossing he found his passage blocked by the box car and stopped. By looking to the right he would have seen behind the car which obstructed his passage, three more box cars and attached to them the locomotive which was being used in the switching operations. By cutting off the engine of his automobile, he could have heard, if he did not hear, the ringing of the bell on the locomotive, which according to undisputed testimony was ringing at the time. For a distance of several hundred yards before reaching the crossing, the road on which Frank Sullivan, the driver of the tar, approached- the crossing was straight, and as we gather from the testimony afforded an unobstructed view of the crossing as well as of the space to the right of the crossing on which was located the box cars and engine which were doing the switching.

Plaintiff's son says that when he approached the crossing he stopped for at least three-quarters of á minute before attempting to cross the track, and that then hearing no signal nor whistle blown, and not being able to see the engine, and seeing no brakeman nor foreman at the crossing he started across the track and just as he got about halfway across the track the box car struck his automobile.

The testimony taken as a whole shows that when young Sullivan turned to the left and started to detour around the box car, he was struck by it, just as the front wheels of his automobile went upon the track.

The crossing in question is in a populous part of the town and affords the only way of getting from the country southwest of Eros into and away from that portion of the town where plaintiff’s store is located. Under these circumstances there is no doubt that defendant was negligent in failing to have someone at the crossing to assist in preventing accidents during switching operations such as were going on when the accident in question occurred.

The remaining point to be determined is as to whether plaintiff’s Son, who had the automobile in charge was himself free of fault or negligence in attempting to make a crossing of the track under the circumstances which we have described.

If plaintiff’s son was free of fault, the plaintiff is entitled to recover. If, on the other hand, the driver of the car was guilty of some fault for which the accident would not have occurred, the plaintiff is not entitled to recover.

The two principles of law above stated are so well known and established in our jurisprudence that no citation of authority is necessary to sustain them.

When young Sullivan drove up near the track and found his passage blocked by a box car standing on the crossing, that fact itself constituted both a signal to him of danger and a warning to use whatever precautions might be necessary to insure a safe crossing of the track. He did stop. But did he look and listen for the purpose of ascertaining whether it would be dangerous for him to try to drive around the box car and cross the track? It is not necessary in this case to hold the driver of an automobile when approaching a railroad crossing should under all circumstances stop, look and listen before proceeding across the track. Certain it is, however, that these precautions should have been observed under the circumstances shown in this case. Either young Sullivan looked and saw nothing and listened and heard nothing, and then proceeded to try to cross the track, or looked and saw the box cars and listened and heard the bell ringing, but decided he could detour around the box car and cross the track before anything could happen to him, or else after stopping his automobile he failed and neglected to look up and down the track at the same time listening, in order to ascertain whether the danger actually existed which had been suggested to exist by the presence on the crossing in front of him of a box car, which is not shown to have been there when he drove across the track in the other direction a little while before.

Plaintiff’s most favorable witness, Downs, testifies that if young Sullivan had looked, there was nothing to keep him from seeing the three box cars and locomotive which were strung out to his right behind the box car on the crossing. If he looked he saw the danger and negligently took the chance of trying to cross in spite of the danger. If he did not look, he was negligent in failing to investigate before trying to cross in the face of the warning to him which resulted from the presence right in front of his eyes of a box car blocking from one-half to two-thirds of a crossing which under ordinary conditions was open.

The physical facts of this case utterly refute the idea that plaintiff’s son who was driving the car complied with, the “Stop, look and listen” rule any further than merely to stop when he found his passage blocked by the box car. If he did not look, as already stated, he was negligent, and if he did look and listen he disregarded what he is bound to have seen and heard, and that was such contributory negligence as to bar plaintiff’s recovery.

Plaintiff’s able counsel specifies negligence on the part of defendant in that there was no flagman at the crossing, no lookout on the rear end of the train, nor warning of any kind given of the approaching train or car. It is shown that there was no flagman at the crossing, nor lookout on the rear of the train, and that no whistle was blown. There is testimony, however, to the effect that the bell was ringing, and this is not directly disputed. It may be conceded, therefore, that the defendant was guilty of all the negligence complained of, and still, as we understand the law, plaintiff is not entitled to recover on account of his own contributory negligence.

The “Stop, look and listen” rule does not mean that these precautions should be exercised in a perfunctory and ineffective manner. The rule is well stated by the Orleans Court of Appeal in the following language:

“It is the duty of a person approaching a railroad track to stop before crossing, and after stopping, to look and listen, not in a perfunctory manner but in an effective way in order to accomplish the end intended by the rule.” Jefferson Planting & Mfg. Co. vs. Morgan’s Louisiana, Etc., R. Co., Teiss. Orleans App. Dig. 42.

See also the case of Young vs. Louisiana Western Railway Company, 153 La. 129, 95 South. 511, where the court says:

“The duty of stop, look and listen before crossing a railroad must be performed at a time and place where stopping, looking and listening will be effective.
“The contributory negligence of an automobile driver in attempting to cross a railroad without stopping, looking and listening bars recovery even though the trainmen were guilty of concurrent negligence..”'

The rule is not complied with when one merely stops, as the driver did in this case, or where if, as in this case, the driver looked and listened he disregarded what he saw and what he heard and recklessly took a chance by trying to cross.

In the very similar case of De Nux vs. Louisiana Railway & Navigation Company, decided by this court in June, 1922, the following language was used, which is equally applicable here:

“The decisive fact in the case is that the failure by the defendant company to do its duty, if it did fail, was not the proximate cause of the accident of which plaintiff was the victim. If he had not gone blindly upon the crossing without looking or listening, and when the exercise of either of these faculties would have warned him of the danger, the collision could not have occurred.”

The plaintiff De Nux said that he looked and listened before attempting to drive across the track, but the physical facts of that case, as of this, utterly refute such a claim.

“The doctrine that contributory negligence precludes recovery has been consistently adhered to' in this state.” Harrison vs. Railway Company, 125 La. 795.

For reasons given, the judgment of the lower court is hereby avoided and reversed, and it is now ordered and decreed that the plaintiff’s demands be, and they are hereby dismissed at his costs in both courts.


text:
    No. 2603
    Second Circuit
    BENNETT v. BILBERRY
    (June 2, 1926. Opinion and Decree.)
    (June 30, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The decision of the trial judge on a matter of fact will be affirmed when clearly correct and corrected when erroneous.
    Bynum vs. Williams, 2 La. App. 74.
    2. Louisiana Digest — Attachment—Par. 18.
    In an attachment suit under Sections 4 and 5 of Article 240 of the Code of Practice, intention on the part of the defendant to defraud is the basis of the Tight to the writ and must be made to appear by evidence or the writ will be dissolved.
    Abel & Bach vs. Duffy, 106 La.' 260, 30 South. 833.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Q. L. Bennett against T. K. Bilberry.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed in part and reversed as to writ of attachment.
    E. L. Walker and T. S. Price, of Ruston, attorneys for plaintiff, appellee.
    Dhu Thompson and J. B Holstead, of Ruston, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff alleged that defendant was indebted to him in the sum of $5.00 with legal interest from Oetobér, 1921, on open account; and in the sum of $113.00-with 8% per annum interest from March 10, 1922, until paid, and 10% on the amount of principal and interest as attorney’s fees, on a promissory note for that sum, dated March 10, 1922, signed by defendant, drawn payable to the order of plaintiff on October 15, 1922, and stipulating payment of 10% attorney’s fees; and in the sum of $120.00 with 8% per annum interest from December 10, 1923, until paid, and 10% on the amount of principal and interest as attorney’s fees, on a promissory note for that sum, dated December 10, 1923, signed by defendant and by plaintiff as security, drawn payable to the order of J. J. Henry, on January 1, 1924, and stipulating payment of 10% attorney’s fees, and which note, as security, he had to pay.

He also alleged “that defendant has converted, or is about to convert, his property into money or evidence of debt, with the intent to place it beyond the reach of his creditors”, upon which an order for the issuance of a writ of attachment was obtained under which there was seized: “Three-quarters of all the cotton raised on E. O. Johnson place by T. K. Bilberry, consisting of the following: About 50 acres of cotton, more or less, not picked; about 1200 pounds seed cotton, more or less, on wagon picked.”

By a supplemental petition plaintiff alleges'that the note for $113.00 was lost or mislaid and could not be found notwithstanding diligent search therefor, and that its loss had been advertised according to law.

Defendant moved to dissolve the attachment and for $250.00 damages for its illegal issuance, namely: $200.00 damages to the crop seized, $25.00 attorney’s fees for dissolving the writ, and $25.00 for loss of time and injury to feelings, alleging that the grounds on which the writ had issued were untrue.

This motion was tried and overruled by the court.

Defendant filed a plea of prescription of three years as to the item of $5.00 on open account sued for.

Pending hearing on the moton to dissolve the attachment, plaintiff asked for and obtained a default on his original and supplemental petitions over the protest of defendant.

Under protest defendant filed an answer denying that plaintiff was the owner of the $120.00 note and alleging that the consideration for the $113.00 note had failed.

On these issues the case was tried and there was judgment sustaining the plea oi prescription as to the item of $5.00 and judgment in favor of the plaintiff for the principal and interest and attorney’s fees on the two notes sued on and sustaining the writ of attachment and defendant appealed.

OPINION

The serious question presented in this case is as to the plaintiff’s right to recover on the note for $113.00, the consideration of which is alleged to have failed.

This question must be decided from the evidence introduced in the case and depends on whether or not plaintiff pur-' chased from J. E. Napper & Sons defendant’s account with that firm.

As to this fact, Q. L. Bennett, the plaintiff, testified that he paid defendant’s account with J. E. Napper & Sons by having W. A. Napper, a member of that firm, credit defendant’s account with the firm and likewise to enter a credit on plaintiff’s note held against that firm.

This positive testimony of the plaintiff is not denied by W. A. Napper, and it is corroborated -to some extent by the testimony of the defendant, T. K. Bilberry, who testified, page 83:

“Q. Mr. Bilberry, I will ask you to make a statement to the court as to how this note happened to be given and why it was given?
“A. Mr. Bennett wanted to take up the account that I owed Napper & Sons, and I told him it would be all right if it was with the firm, and then later he came to me and told me he had taken up the account and asked me to give him a note, and I did.”

On this question of fact, as to whether or not the plaintiff actually paid defendant’s account, there is a great deal of conflicting testimony; but we think to detail all of the testimony on this point would serve no useful purpose. Our learned and painstaking brother of the District Court, in a well-considered written opinion, said:

“The testimony of the defendant and his witnesses fails to show with anything like reasonable certainty that plaintiff did not purchase the Bilberry account held by Napper & Sons, as alleged by plaintiff, while plaintiff’s testimony is direct and positive that he did purchase the account.
* * * *
“The court gave close attention to the' witnesses as they testified pro and con in this case, noted the manner in which they testified and their apparent temper and mood in testifying; and since taking the case under advisement the court has carefully read and weighed and considered the evidence, and is convinced that the plaintiff has proven his demand and is entitled to a judgment for the amount claimed in his suit.”

A careful reading of all the evidence in the case convinces us that the holding of the trial court is correct as to the note sued on for $113.00.

The note for $120.00 was given by defendant to J. J. Henry and was signed by plaintiff as security. It was not paid by defendant at maturity and plaintiff was compelled to pay it. Under the law plaintiff thereby became subrogated to fhe rights of Henry in the note and he is entitled to judgment thereon against the defendant.

The defendant’s plea of prescription of three years as to the item of $5.00 sued on was sustained by the court and is not before this court for review.

As to the ’ writ of attachment, plaintiff alleged that the defendant “has converted, or is about to convert, his property into money or evidence of debt, with the intent to place it beyond the reach of his creditors”.

The evidence introduced to support this allegation is the testimony of the plaintiff himself, pages 33 and 34:

'“Q. What had Mr. Bilberry done?
“A. He hadn’t done anything.
“Q. What property had he disposed of with the intention of placing his property beyond the reach of his creditors?
“A. He had sold thirteen bales of cotton.
“Q. Do you know who he had sold them to?
“A. I didn’t. He had ginned his fourteenth bale. I presume he had sold it to Mr. Barham.
“Q. You know how much cotton Mr. Bilberry had left on his place at the time?
“A. I don’t know.
“Q. You had an idea?
“A. He told me he thought he would get twenty-five bales of cotton.
“Q. What had he done and what were the particular acts of his?
“A. He refused to pay Mr. Henry anything at all on the note and Mr. Henry came to me and forced me to pay the note.
“Q. What other particular acts made you swear that Mr. Bilberry was converting his property into money .or evidences of. debt with the intent to place it beyond the reach of his creditors?
“A. Because he was having his cotton ginned and sold and he would not pay the note and I had paid the interest on it for four years and he would not pay his debts, and I had no confidence in him anyway.
“Q. Was there anything else between you and him that caused you to get out this writ of attachment?
“A. Not a thing in the world. Mr. Henry told me unless I seized the crop I would never collect it.”

This evidence, in our opinion is not sufficient to warrant us in sustaining the issuance of the writ of attachment. The only cotton that defendant had disposed of went to the merchants who had furnished him necessary plantation supplies with which to make the crop, and the fact that defendant insisted on paying his current account due for these supplies before making payment on back debts cannot be held to show that he was disposing of his property with intent to defraud anyone. The writ of attachment should have been dissolved with damages.

Defendant testified as to damages as follows, pages 54 and 55:

“Q. What effect has this seizure had on you with reference to loss of time in connection with this matter?
“A. Well, it has had .a great deal. I have lost several days in coming here. I have been out the time and it has left the cotton in the patch that could have been out if this hadn’t been placed on it. All the pickers quit on account of it. Just left me and one boy.
“Q. Since this seizure has been on, has it rained on the cotton left in the field?
“A. It has.
“Q. Does that affect the grade of your cotton?
“A. From twenty-two and a half to nineteen cents. That is what they were paying for this storm cotton yesterday.
“Q. I will ask you how else you have been damaged and how much do you figure you have been damaged on account of this seizure over there?
“A. Well, in a way I have been damaged I think a great deal on account of my indebtedness, which I have been held up on, which I possibly could have had squared up which I have yet got to pay, and interest been going on just the same.
"Q. How much in dollars and cents could you say you have been damaged?
“A. Well, I hardly know; a couple of hundred dollars, I expect.”

The evidence establishes that $25.00 is due by defendant for attorney’s fees for dissolving the writ of attachment.

The above evidence is not sufficient to enable us to fix with any degree of certainty any definite amount of damages suffered by plaintiff by reason of the attachment other than the item of $25.00 attorney’s fees.

For these reasons it is ordered, adjudged and decreed that, the judgment appealed from be affirmed, insofar as it awards plaintiff judgment for the principal and interest and ten per cent attorney’s fees on the two notes sued on and insofar as it sustains the plea of prescription to the item of $5.00 on open account sued for; but the judgment appealed from is reversed insofar as it sustains the issuance of the writ of attachment and the writ of attachment is hereby dissolved and defendant is hereby granted judgment against plaintiff in the sum of twenty-five dollars with legal interest thereon from the date hereof as damages for the illegal issuance of the writ.

It is further ordered, adjudged and decreed that defendant pay the costs of the main suit in the lower court and that plaintiff pay the costs of the attachment in the lower court and the costs of this appeal.


text:
    No. 2582
    Second Circuit
    GUILLOTTE v. LEE LUMBER COMPANY
    (June 2, 1926. Opinion and Decree.)
    (June 30, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The decision of the trial court on matter of fact will not be disturbed unless clearly erroneous.
    Jahncke Service Inc. vs. Hewson, 1 La. App. 22.

      Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Adolph D. Guillotte, for the use of Walter A. Guillotte, against Lee Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorney for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit to recover compensation under Clause (d) of Subsection 1 of Section 8 of the Workmen’s Compensation Law, for the breaking of two bones just above- the ankle in the left leg of plaintiff’s son, Walter A. Guillotte, which, it is alleged, rendered him a permanent cripple and unable to do work of any reasonable character.

Defendant denied liability on the ground that it had paid plaintiff’s son full compensation during his disability and that he had completely recovered from his injuries and was now able to do work of any reasonable character.

On these issues the case was tried and there was judgment in, favor of the defendant and plaintiff appealed.

OPINION

Under an order of the District Court, Doctors Simmons, Stafford and Rand were directed to make a physical examination of plaintiff’s son and report their findings to the court. Doctors Simmons and Rand made such examination and reported to the court as follows;

“In compliance with your order . No. 16,996, dated September 28, 1925, the. undersigned have examined Walter A. Guillotte, of Tioga, Louisiana, who claims to have been injured at the plant of the Lee Lumber Company, Limited, on or about November 7, 1924, resulting in fracture of the left leg above the ankle joint.
“Examination of this injured member shows it to be the same length as the opposite leg; there is a tendency to flat foot in both feet which is slightly more marked in the left foot; the ankle joint of the left foot is slightly larger than the right; there is no limitation of motion in this joint; there is no apparent pain when the joint is moved in any direction; there is good union at the old site of fracture and the bone fragments are in good alignment.
“Answering the questions of the court specifically, we believe;
“(1) That there is no serious or permanent injury or impairment to the bones, ligaments and nerves of the ankle joint and foot;
“(2) That he will not be rendered a serious and permanent cripple in said ankle joint and leg;
“(3) That he is able to do work of reasonable character;
“(4) We also beg to report that Walter A. Guillotte is not now a cripple and that his ankle now functions normally and that he can do work now as well as before the accident and injury.”

Doctors M. L. Adair and E. L. Sanderson also made a physical examination of plaintiff’s son and testified as follows as to his condition:

Doctor Adair testified, pages 15 and 16:

“On physical examination the ankle is normal in appearance with slight limitation of motion as compared with the right foot. The X-ray examination taken, both anterior, posterior and lateral, shows what appears to be an old fracture of the internal and external malleoli, with position and union good. On the lateral side of the ankle, in apposition to the shaded surface of the lower end of the fibula, there is roughening of the fibula showing an arthritis, probably chromatic. On the anterior, lower aspect of the tibia, there is a roughening as in arthritis. Otherwise negative. This roughening could readily account for the pain complained of by Mr. Guillotte, which he says comes on when he uses the ankle for any length of time, and subsides with rest.
“Q. What of the probabilities of his injuries or impairments getting better than they are today, taking into consideration the fact that he was injured on November 7, 1924?
“A. Prom the amount of roughening of the bone surface, I believe that the joint disability, even though the arthritis goes no further than at present, will probably be permanent. A slight improvement of a temporary character may occur after rest with exacerbation after use.
“Q. Could such a break, as indicated in the X-ray plate which you were just reading from, and the disabilities you find there — or can you in an ordinary case with such a break or disability reasonably expect a permanent serious disability?
“A. No.
“Q. Is his case out of the ordinary for such a break?
“A. It is.
“Q. In what respect?
“A. This arthritis is unusual. The union is good; the bones are in perfect apposition; and normally you would expect a perfectly good ankle following a fracture with union. With this arthritis present you cannot get a normal ankle.
“Q. Will you say, taking everything into consideration, from what you know or have learned about his case, particularly your X-ray examination, that you think that it is entirely probable that he has a serious, permanent impairment there in that ankle?
“A. I do.”

Doctor Sanderson testified, pages 18 and 19:

“Q. Doctor Sanderson, have you ' had occasion to examine the left ankle and X-rays made thereof by Doctor Adair of one Walter Guillotte on yesterday?
“A. I did.
“Q. Please state your findings under that examination, and the disabilities, if any, that you found?
“A. Well, this young man seemed to be in fairly good health and normal in every respect, except the left ankle. The left ankle shows an enlargement over the lower end of the fibula and there is limited motion about the ankle joint and a slight general enlargement of the whole joint with tenderness on motion and pressure. These are the physical facts.
* * # ifc
“It would appear that he has had an old-fracture of the lower end of the fibula and there appears to be some callous thrown out about this point of fracture which is immediately opposite to the ankle joint. This roughening seems to extend into the ankle joint and there is evidence of arthritis of the ankle joint or inflammation of the ankle joint.
“Q. Is that evidence of arthritis sufficient to cause a serious, permanent impairment of that joint?
“A. It is.
* * * *
“Q. On the whole, would you say that it is a serious, permanent impairment?
“A. It is serious in this respect. The injured bone, right at the joint, and you might say in the joint, has created a place of least resistance and it is my opinion that some infection of the body has located itself about this joint because of this lowered resistance because the X-ray shows an arthritis, and arthritis is due to infection; and this arthritis may progress and become very serious as time goes on, and there is no way to estimate now just how much damage will be done. But at any rate, whatever is done will leave its imprint as long as he lives.”

J. E. Byrne, defendant’s yard foreman and shipping clerk, testified, page 44:

“Q. In what position were yon working?
“A. I was yard foreman and shipping clerk.
* * * *
“Q. Did Walter A. Guillotte work under you after he resumed work?
“A. Yes, sir.
“Q. Please state whether or not he worked as well and efficiently after he resumed work as he did before he broke his ankle?
“A. Well, I could not tell any difference. He worked for me off and on for maybe two or three years, and if there was any difference in his work I could not tell it.
“Q. Did • he work about as regularly after he resumed work as he did before he was hurt?
“A. Yes, sir, as far as I know, he did. I could not see any difference.”

Prom this evidence it is clear that no one has ventured to say that Walter A. Guillotte received injury that prevents him from doing work of a reasonable character.

The district judge who tried the case saw and heard Walter A. Guillotte testify and saw his movements in the court room and rendered judgment in favor of the defendant.

Prom all the evidence in the case we .cannot say that Walter A. Guillotte received such permanent injuries as to prevent him from doing work of a reasonable character. We are therefore of the opinion that the judgment of the District Court is correct and accordingly it is affirmed.


text:
    No. 2624
    Second Circuit
    PEPPER v. SMITH
    (June 2, 1926. Opinion and Decree.)
    (June 30, 1926. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 598.
    In the absence of proof to the contrary, the presumption is that judgment confirmed on default was rendered upon sufficient evidence.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. P. E. Jones, Judge.
    Action by Z. E. Pepper against J. W. Smith.
    There was judgment for plaintiff confirmed on default and defendant appealed.
    Judgment affirmed.
    R. W. Oglesby, of Winnfield, attorney for plaintiff, appellee.
    Moss & Peters, of Winnfield, attorneys for defendant, appellant.
   WEBB, J.

In this action the plaintiff, alleging ownership of a promissory note drawn by W. J. Hatton, indorsed in blank by J. N. Smith, and secured by mortgage and vendor’s lien on certain real estate, prays for judgment against the drawer and endorser in solido, with recognition of the mortgage and lien on his property.

Service was made upon J. N. Smith and a default entered, and after legal delays the default was confirmed, and judgment rendered against J. N. Smith, in accordance with the prayer, for an amount less than the amount of the note, with recognition of the mortgage and vendor’s lien.

J. N. Smith appealed from the judgment.

OPINION

The defendant, Smith, assigns as error that it was not shown in what manner the plaintiff acquired the note, taking the position that the petition shows that the note was at one time pledged as collateral security to another than the plaintiff.

The plaintiff, in addition to the. allegations of ownership of the note, made other allegations which are not clear, but which we do not think can be construed as in conflict with the allegation that plaintiff was the owner of the note, and conceding the note was pledged by defendant Smith to another, we assume, in default of the record showing to the contrary, that the pledgee had, under his right of pledge, foréclosed, and that the note was sold to the plaintiff, or that he acquired it in some other legal manner, which we are of the opinion it would have been permissible for plaintiff to have proven under the allegations of ownership.

“In the absence of proof to the contrary, the presumption is that the judgment was rendered upon proper evidence.”

Succn. Pilcher, 39 Ann. 362, 1 South. 929, and authorities cited.

The appellant complains also that the court had no right to render judgment recognizing the mortgage and vendor’s lien on the property and ordering it sold.

The appellant is not interested in this matter, insofar as the record shows, and conceding that the judgment in this respect was null, Hatten not being cited, we have no authority to notice the judgment in this respect, Hatten not being a party to the appeal.

The judgment is affirmed.