author: Miller, J.

text:
    No. 12,872.
    John Kramer vs. New Orleans, City & Lake Railroad Company.
    Syllabus.
    The plaintiff in a suit for damages against a railroad company for injuries caused by defendant’s car running over him, shown to have been alongside , or in a position close to the track, with his legs across the nearest rail, and in that condition receiving his injuries, must, in order to recover, show with reasonable certainty that notwithstanding his gross imprudence in thus exposing himself to peril, the defendant’s motorman could, by the exercise of ordinary care, have averted the accident. 2nd Thompson on Negligence, 1105, §1, pp. 1157, 1158; Pierce on R. R., p. 330; Patterson’s R. R. Accident Law, pp. 51, 55, 61; 144th U. S., 439 and line of authorities there cited; McGuire vs. R. R., 46th Ann., 1543.
    ON APPEAL from the Oivil District Court for the Parish of Orleans. Bilis, J.

      Benner, Henderson & Fenner, and 0. B. Bansum for the Plaintiff and Appellee.

      Denegre, Blair & Denegre for the Defendant and Appellant.
    Argued and submitted December 7, 1898.
    Opinion handed down January 9, 1899.
    Rehearing refused June 27, 1899.
   The opinion of the court was delivered by

Miller, J.

The defendant company appeals from the judgment condemning it to pay damages for the injuries caused by one of defendant’s electric cars running over plaintiff, he being asleep, or unconscious, lying near the tracks of the defendant, with his feet extended over the rail, the accident resulting in the amputation of his legs below the knees.

The petition alleges that plaintiff, crossing the tracks, stumbled and fell prostrate; that unconscious and helpless, he lay there until run over by defendants’ car, with the result of the loss of his legs below the knees. In the further statement of the case in the petition, it is averred “that plaintiff’s body lay alongside the railway, with both his legs resting on the-nearest rail, plainly visible for one hundred and fifty feet from the platform of the defendants’ car,” to where the plaintiff lay, and the petition charging the accident to be due entirely to the want of the least degree of care and attention “on the part of the motorman in charge of the car, permitting it to continue in motion and to run over the plaintiff’s legs,” claims damages in the sum of fifty thousand dollars. The defendant excepted that the plaintiff had settled and compromised his claim, and plaintiff, by supplemental petition, averred the compromise was obtained by fraud. The defendant answered, pleading the general issue, and alleging plaintiff’s negligence to have caused his injuries. From the judgment based on the verdict of the jury for twelve thousand five hundred dollars, this appeal is taken.

Without detailing the testimony on the point, mainly that of the-plaintiff, we reach the conclusion the plaintiff was helplessly drunk, and in that condition lay on the ground near the track. He was seen by the motorman of a passing car, a short time before the accident, “asleep four feet from the track, face towards the Bayou St. John, his legs towards track.” Taking the allegation in the petition, that he stumbled and fell, lay unconscious and helpless, with the testimony that he had been drinking; and with no other explanation of his stumbling and helpless condition, in our opinion, we have the case of a drunken man lying near a railroad track, throwing his legs across the track, or rather that portion of the leg below the knees, the amputation having been near the ankle joint, and in that condition receiving the injuries from the passing car for which he claims damages in this suit. This part of the case, we think beyond the reach of controversy. The-motorman who first perceived plaintiff, testifies, as soon as he reached' the “barn” of defendants’ company, he notified the foreman that the plaintiff was lying near the track in a dangerous position, and that the foreman then sent one of the conductors to get plaintiff out of the way. It is controverted by plaintiff that the foreman took this action, but we have his testimony that he did, besides that of the conductor bringing the information. This “barn,” as it is called, is about three squares from the place where plaintiff was seen lying, and it is apparent that but a brief period would suffice for the ear to reach the barn after passing the plaintiff. Brief as was that period, and the time-required for the man sent by the foreman to reach the plaintiff, it nevertheless appears that the precaution to which the foreman testifies, was ineffective. The accident occurred within a very short time after the plaintiff was first perceived, the foreman testifying that when the man sent by him was but twenty-five feet away on his mission, the alarm was given that plaintiff had been run over; and on proceeding' to the spot, he was found with his legs crushed. Near the point where the accident occurred, the railway track curves from Esplanade street into Moss street, on the west side of which is the Bayou St. John. The car that ran over the plaintiff, proceeded down Esplanade street, entered this curve, reached the other end, and proceeded on its course-on Moss street to where plaintiff was lying. From the end o£ the curve it is seventy-seven feet to the point the witnesses call the second trolley post; the first standing where the car comes out of the curve. On the Bayou side of the track, when the accident occurred, there was .a wood pile between the first and second trolley post; the pile being close to the track and occupying a space of say four or five feet in length, by a width of four feet. There is some variance in the testimony as to the distance of the wood pile from the second trolley post, and the witnesses differ as to the space between the pile and where plaintiff lay, but there is no question he was lying between the.pile and iho second trolley post, within less than seventy-seven feet of the end of the curve. It is shown that at the place of the accident, there was grass alongside and extending to the rail, and with due allowance for the differences as to the height of the grass, we think it established the grass was about a foot high, sufficient, we think, to affect the discernment of the motorman to discover the plaintiff’s legs on the rail, whether that vision is exerted at the end of the curve or at its beginning. With the best consideration, we cannot resist the conclusion, that the grass, as well as the intervening wood pile, must have appropriate weight in solving the question of the motorman’s diligence in not perceiving, when the car was, say seventy-fivo feet away, the plaintiff, lying in the grass, along side the track, with his legs, or more ■properly, his feet, on the rail. There is no testimony when or how plaintiff fell, beyond his own account that he stumbled, remaining unconscious until run over, hut we have the positive testimony of his position not on the track at all, hut near it, a very short time before the accident, when he was passed by the car preceding the one that ran over him. It is the irresistible conclusion that in the brief period ■or moment, between the time he was first seen and the accident, and while in a condition of utter incapacity to appreciate his danger, the plaintiff changed his position and rolled his legs on the track. If we were at liberty to assume he thus disposed1 of his limbs ait the precise moment of time the ear came within the scope of the vision of the motorman, and if wo adopt the curve end on Moss street, or, if it were allowable, even the beginning of the curve on Esplanade street, as the point the vision of the mortorman should have been exerted, there is in the record the very clear testimony founded on actual observation and ■experiment, with the electric cars on this road, that the car coming ■out of this greased curve could not have been stopped within the distance from tlie curve end to where the plaintiff lay, and it is our conclusion, could not have been stopped, within the distance from the beginning of tlie curve to the plaintiff, even if' we could hold that the motormari could have seen tlie plaintiff before or at the moment the car entered the curve on Esplanade street. That in the stupor incident to drink, the plaintiff placed his foot on the tracks, and that this point of exposure must have been within a distance from the curve,, that an electric car would pass in a few seconds, is established with all reasonable certainty, is with the other testimony of obvious force on the issue, whether the car could have been stopped in time to avert the-accident, and is of equal pertinence on the general proposition asserting the liability of defendant, that is, notwithstanding the plaintiff exposed himself to the peril, the defendants are chargeable with negligence, culpable to -the extent of imposing on the company liability for the accident, because it is charged the motorman should have perceived plaintiff in time to admit of the preventive steps which it is claimed if employed in time, would have averted the accident.

We are met by the preliminary question whether the defendants can ask this court to review the decision based on the verdict of the jury, the defendant not having asked for a new trial. W© cannot hold that the constitutional right of appeal is lost, because the appellant has not sought a new trial in the lower court. Our jurisprudence deservedly attaches weight to verdicts of juries on questions of fact, but- we do not understand that a judgment based on a verdict, not sought to he set aside, is therefore not to he reviewed in this court on the appeal. We presume the argument addresssed to us is designed only to enforce the weight due in this court to jury verdicts on issues of fact. The line of authority in that direction is too familiar to need citation, and in our examination of this case, we have not been unmindful of the influence ascribed to jury verdicts.

The defendant relies on the palpable imprudence of the plaintiff as a bar to any recovery. The general rule that contributory negligence of the plaintiff in a suit for damages for personal injuries will defeat his action, requires only the statement. The plaintiff concedes it, hut claims his case is within the qualification that even if there is contributory negligence of the grossest kind on the part of the plaintiff, his recovery will not he defeated, if there has been a plain disregard of that ordinary care on the part of defendant, that if exerted, would have averted the accident, causing the injuries for which damages are sought. The qualification, variously stated in the text books and affirmed by decisions, is as well settled as the rule itself, of which the qualification may be deemed part. Our courts, like others, have had occasion to apply the qualification, and we have expressed it substantially as it is laid down in decisions and text hooks. 2nd Thompson on Negligence, p. 105, S. 1, p. 1106, S. 11, p. 1157, S. 8. Pierce on Railroads, p. 360; Patterson’s Railway Accident Law, pp. 51, 55, 61. Grand Trunk Railway Co. vs. Ives, 144th U. S., 429; McGuire vs. Railroad, 46th Ann., 1543, and the line of authorities to which our attention has been directed by defendant’s counsel; 104th Ala., 241; 49th Ohio State, p. 230, and similar type. The substantial question in the case is whether the plaintiff has brought himself within the qualification that relieves him from the effect the law and reason attaches to that reckless- imprudence on his part so conspicuous in the record connected with the injuries, for which he claims the defendant should compensate him, and to this part of the case our earnest attention has been directed.

It is charged that defendant is liable, because when the foreman was apprised by the motorman of the car that passed the plaintiff, that he was lying asleep in dangerous proximity to the track, it is claimed the foreman did not take the precautions required to secure the plaintiff from danger. Passing over the question as to the duty or character of the diligence imposed on defendant by the communication of plaintiff’s danger to their foreman, we can find no basis for the conclusion that the foreman did less than humanity suggested, or was required of him, by any test we can apply. His testimony is, he at once instructed one of the conductors within his call, to proceed to the spot and remove the plaintiff, hut before the mission could he executed, the accident occurred. It is true the conductor to whom it is claimed the order was given, testifies he was sent on some other business. Assuming he was the same conductor to whom the foreman spoke, we have against any force of the conductor’s testimony, that of the foreman, confirmed by that of the conductor who communicated the plaintiff’s danger, that the communication was at once acted on by the foreman, and that the conductor charged to remove plaintiff from the position of danger at once, proceeded on his mission, but before he got a few feet away, the alarm came that the plaintiff had been run oyer, verified as soon as the foreman and conductor, with others, reached the scene of the accident. With the closest scrutiny and consideration of the testimony on this part of the case, we can perceive no basis to charge the company with liability for the injuries to which the plaintiff exposed himself.

On the part of the case that is supposed to exhibit the negligence of the motorman, because he did not sooner perceive plaintiff and employ the requisite precaution, we have been unable to appreciate and give ■effect to the argument addresssed to us on behalf of the plaintiff. The distance between the point where the curve ends on Moss street, and the place where plaintiff lay, making all possible allowance for variances in the testimony of witnesses, is certainly less than seventy-seven feet. It is insisted that plaintiff should have been perceived earlier, that is, while the car still on Esplanade street, was entering, or, at least, before it reached the- curve end. If we could hold that the motorman is chargeable with negligence, because entering a curve, •where, too, there was a crossing for pedestrians, and we presume for vehicles, requiring the attention of the motorman to be given to the curved track in his front, he did not look for plaintiff’s legs on the track beyond the curve, and more than seventy-seven feet from the curve end, the plaintiff’s case would still encounter the difficulty presented by the testimony of the time required to stop the car moving through the greased curve and coming1 out of it with the speed usually employed. It is testified with.great distinctness, as based on actual experiment, that the car that ran over plaintiff could not have been stopped within from 100 to 130 feet; that the best result, to use the witness’ expression, obtained in the efforts to stop the car, used to ascertain how soon it could be stopped, gave 150 feet as the distance within which that stop could be effected. Our conclusion puts plaintiff within less than one hundred feet of the beginning of the curve. With an electric car traversing one hundred, or even one hundred and fifty feet in a few seconds, we should encounter serious difficulty in holding the company liable, because the car was not stopped at the curve end, or at the beginning of that curve, and we would experience, perhaps, greater difficulty in holding that negligence is to be attributed to the motorman, because he did not perceive the plaintiff lying in the grass, with his feet on the track, even if we could adopt as the point when the motorman’s vision could or should have been exerted, the beginning of this curve within, we conclude, one hundred feet of the resting place plaintiff had selected, close to the track and with his feet on the rails.

This is not the case of a man prostrate or falling on the track in full view of an approaching ear, and with ample time to arrest th.e car. On the question of the diligence, to be exacted'of the motorman, it must be borne in mind the plaintiff is lying along side of the track in the grass, no part of his body on the rail except the lower parts of his legs, or more properly, his feet, on the rail. In determining the discernment of the motorman, in respect to this position of the plaintiff, we must take into account the grass, the intervening wood pile, besides the distance of the plaintiff from the curve. Are we to hold that the motorman entering the curve on Esplanade street, was required to closely scan the rails beyond the curve to discover the protruding feet of a man in the grass, seventy beet beyond the curve? It would hare been prescience for a motorman to suspect or anticipate or realize at once what was on the track if he had or could have seen, the plaintiff’s feet, on entering or coming out of the curve. The presumption is the track is clear, not that this at all releases the vigilance to be exerted by the motorman, but in estimating that vigilance surely some allowance is to be made if the motorman did not at the moment of time it is claimed his vision should have been exerted, perceive the plaintiff’s feet, in that appearance they exhibited at a distance of seventy feet from the curve end, or that greater distance from where the curve begins. On this part of the case our attention is directed in the argument to a test claimed to furnish conclusive evidence the plaintiff should have been discovered in time to have saved him from injury. A handkerchief brought up with the record, was placed on the track at the place the defendant received his injuries, and the witness who put the handkerchief in position testifies he could see it from a step more distant than the curve. The argument implies that while entering or passing through the curve, the eyes of the motorman should have been cast on the rail beyond the curve to discern the feet on the rail of the man in the grass; or the implication of the argument is that quickly on coming out of the curve, an appearance on the rail at the distance shown by the record, should have been realized as the feet, however extraordinary and unexpected such a position for a man to place limbs or feet, and the test of plaintiff is supposed to support the argument. But it must occur that the quickness and accuracy of perception of the man who put the handkerchief on the track and who then seats himself to look for and perceives the object he had thus placed in position, is not to be expected of the motorman with no cause to suspect, still less, to know the object presented in that appearance claimed to have been within the scope of his discernment at that distance the argument claims his vision should and could have been exerted. In our view to exact any such vigilance as is claimed in the defendant’s argument would be to exceed the bounds of reason.

Again, the plaintiff, to fix on defendants the responsibility for this accident, must show with reasonable certainty that his injured- limbs were on the track, at that point of time when it is claimed, preventive measures should have been employed and would have been effective. On this part of the case his proof fails. But a short time before he-was run over it is in proof no part of his body was on the track. When the movement was made by which -his legs or feet were thrown on the track is left without proof. It may well have been that the plaintiff did not place his feet on the track, until the car was too closa to avert the accident. In that contingency the defendants would certainly have been free from responsibility. To charge the company with liability we must assume the fact on which that liability depends. That assumption we cannot supply.

In all aspects of the case, in our opinion, the defence must prevail.

It is therefore, ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff’s suit be and is hereby dismissed* with costs.

Nicholls, C. J., absent.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,211.
    Frank Watson vs. I. L. Lyons & Co. In re Frank Watson, Applying for Certiorari, or Writ of Review to the Court of Appeals, Parish of Orleans, State of Louisiana.
    Syllabus.
    In a suit by the father of a minor child on two causes of action, one residing in-himself and occasioned by expenses incurred on account of the Illness brought upon the child by the alleged tort of the defendant, and by reason •f the anxiety and mental suffering endured by himself and his wife in consequence of the child’s danger; the other residing in the child and arising in consequence of the suffering inflicted on her — the father suing on this latter for the use and benefit of the child — separate amounts being alleged as to each cause of action, the wife of the plaintiff and mother of the child Is competent to testify in substantiation, of the claim asserted on behalf of the child, but not as to that asserted on behalf of the husband, or the community.

      R. L. Tullís, Bernard Titche, Boatner & Dodds for the Petitioner.
    Respondent Judges pro se.

    Submitted on briefs June 3, 1899.
    Opinion handed down June 19, 1899.
   The .opinion of the court was delivered by

Blanchard, J.

The applicant for the writ of review complains of the action of the Court of Appeals in refusing to consider at all the testimony of his wife, who had been called as a witness to testify and did testify in this cause in the District Court.

Her competency as a witness had been challenged by the defense and a bill of exception taken to the ruling of the trial judge receiving her evidence.

From an adverse verdict of the jury in the District Court and judgment founded thereon, plaintiff prosecuted an appeal to the Court of Appeals. There the case turned entirely upon the admissibility vel non of the wife’s testimony.

Counsel for the defense stated to the court that while they were of the opinion the wife was incompetent to testify in the case, they did not care to press the point in the Court of Appeals, and were willing for her testimony to be considered and the case determined upon its .merits.

But the judges of the Court of Appeals, considering that the prohibition of the law against the wife testifying for or against her husband, is one founded in motives of public policy and can hot be waived, proceeded to an examination of the question touching its applicability to a suit of this nature and in the light of the jurisprudence of the State, and reached the concluson that the objection to the wife’s testimony should have been sustained below.

Since the wife was the only witness to certain salient facts, they further concluded that the exclusion of her testimony left plaintiff’s case without support and that the judgment should have been one of non-suit.

Accordingly, tliey amended the judgment appealed from so as to make it one of non-suit and as thus amended affirmed it.

Whereupon, plaintiff applied to this court for its writ of review and in his application, as reason for the writ, sets forth that the action of the Honorable Court of Appeals in denying all consideration of his wife’s testimony, and holding her absolutely incompetent as a witness in a case like the present one, is in direct conflict with the ruling of this court in Lapleine vs. R. R. Co., 40 La. Ann. 661.

■ On the showing made, and in view of the authority cited, the writ issued and the question upon which the case went off in the Court of Appeals is now before us.

An examination of the petition filed in the District Court show3 that the action is brought by Franke Watson in his own behalf and for the benefit of his minor child. The language of the petition is “appearing herein in his own behalf and for the use and benefit of his minor child, Frances Watson.”

The suit is one for $2000. It is predicated upon an alleged tort, of defendants (a firm of druggists) in selling a certain cough elixir of their own manufacture and advertised as a remedy for colds, a bottle of which was purchased by plaintiff or his wife and a dose there-: of, according- to directions, administered by the wife to their minor child, a little girl about two years of age, who was suffering with a cold, which medicine, it is averred, caused great injury to the child, making her seriously ill, endangering for a long time her life, confining her to bed for weeks, affecting- disastrously her eye-sight, etc. The charge is that the medicine was harmful, that it had been unskillfully and negligently put up, contained a large proportion of morphine, or other noxious drug-, and was especially dangerous to a child of tender years.

The suit is for medical services, medicine, and other expenses of the child’s illness, estimated at $200; for the suffering of the child as set forth in the-petition, $1200; and for his own and his wife’s anxiety, mental suffering, loss of rest, etc., caused by the child’s illness, $600,— aggregating- $2000.

In -his ruling admitting the wife to testify in the case, the District Judge confined her evidence, in its effect, to that part of the claim which is for the use and benefit of the child. He held, in effect, that ¿•he husband brought the suit in two capacities — one as head and master of the community for that part of the claim ($200) representing medical services, medicine, and other expenses of the child’s illness, and for that part of it ($600) representing the compensation demanded for the anxiety of hifnself and wife, loss of rest and mental suffering occasioned by their offspring’s long and serious illness; the other, as father of the child, for that part of the claim ($1200) representing the damages claimed on account of its sufferings.

As to that part of the liability asserted against defendants pertaining to the community — constituting an asset of the community — the judge ruled the wife was incompetent to testify.

As to that part of the liability for which defendants are sought to be held, pertaining to the child and claimed for its use and benefit, he ruled the wife was competent to testify.

The Judges of the Court of Appeals took a different view, holding that, as the action is brought, the petition drawn, it must be considered the suit of Franks Watson individually, and being such, his wife could not, under the prohibition of the law (C. C. 2281), be a witness for or against him.

They admit the force of the authority of Lapleine vs. R. R. Co., supra, but differentiate the way the suit there was brought from the way the one here is brought, and because of this difference, did not think the case cited applied.

They made an examination of the original record in the Lapleine case in order to ascertain how clearly the fact that the suit was the child’s and not the father’s, appeared, and to trace similarity, if possible, between the petition in that case and the one in this. “We find,” they say, “the Lapleine case to be a ‘clear cut’ and well defined suilt of the child and for the child, and for damages inflicted on the child alone.”

“It is not,” they continue, “cumulated with any cause of action-enuring to the benefit solely of some one other than the child, nor is there any misjoinder of plaintiffs — one thereof having a cause of action separate and distinct from the child’s cause of action; though springing from -the same source of .responsibility. In other w*rds, there is in the petition in that case no appearance of the father in his individual capacity; nor is any claim set up as being due him individually, or as head of the community, for any damage due to him 6r to his wife, or for any cause whatever; nor does he claim that he is entitled to any damages by reason of the injuries inflicted on the minor child.”

In the Lapleine case, they further point out, the plaintiff appeared alone in his capacity as father of the child and for her separate use, benefit and advantage, and the allegation of liability was that the defendant railroad company is indebted to the child, who was injured, in the whole sum claimed. Also that the prayer was “that he, for the use and benefit of said minor child, have judgment, etc.”

The case at bar, they say, is solely the suit of Watson in which he alleges he is entitled to recover the different items of damage specified in the petition and for which he prays judgment in his favor, and that the basis of his claim therefor — his cause of action — is the alleged injury inflicted on his minor child through the taking of the cough elixir.

While the judges admit that Watson’s petition begins by declaring he sues in his own behalf and for the use and benefit of his child, they think this is weakened and rendered ineffective by the absence from the body of the petition of any allegation referring to any claim by the child, or for the use and benefit of the child, and they point out that the prayer of the petition is that judgment be rendered in “petitioner’s favor,” for the whole amount claimed.

Holding in high appreciation the ability, learning and thoroughness of our brothers of the Court of Appeals, we are nevertheless constrained to differ from them in the view they take of the question under consideration.

While admitting the force of the reasoning by which their differentiation of the case of Lapleine from the case at bar is sustained, we yet think the claim on behalf of the minor, Frances Watson, for her use and benefit, is set out in the petition with sufficient exactness and precision to warrant the ruling made by the District Judge with regard to the testimony of Mrs. Watson. It suffices, we think, that the plaintiff begins his 'declaration with the statement that he appears in his own behalf and for the use and benefit of his child, and it is a little too technical to hold he should repeat at every convenient opportunity throughout the petition that he sues in part for her.

In the paragraph preceding the prayer, he subdivides the two thousand dollars claimed in such way as to show that $800 of the amount represents the expenses he incurred by reason of the child’s illness, and the anxiety and mental suffering he and his wife endured in consequence thereof, and the other $12.00 represents the suffering inflicted on the child. Construing this paragraph in the light of the declaration at the beginning of the petition. that he sues in his own behalf and for the use and benefit of the child, the conclusion is unavoidable the $800 stands for the cause of action that resides in himself and for which he sues in his individual capacity as representing the community, and the $1200 stands for the cause of action residing in the child and on which he sues as the father and representative of the child for her use and benefit.

Having.made this sufficiently clear in the caption and body of the petition, it serves to interpret the prayer with which the petition concludes and shows its meaning to' be that when the petitioner asks for judgment in the sum of $2000, it is in the dual capacities in which he appears and for the proportionate amount respectively appertaining to .each capacity. State ex rel Levert vs. Lapeyrollerie, 38 La. Ann. 913.

While, therefore, the prohibition of the law hereinbefore referred to prevented Mrs. Watson from appearing as a witness in substantiation of the $800 claimed by the husband in his own hehalf, there is no rule of law or evidence which excludes her as a witness in support of the cause of action residing in her child and represented by the $1200 which the father sues for on its account. Lapleine vs. R. R. Co. 40 La. Ann. 661.

For these reasons, it is ordered that the judgment of the Honorable Court of Appeals herein be set aside, and that the case be remanded to the said court with instructions to proceed with the trial and determination of the same on its merits, giving such consideration and weight to the testimony of Mrs. Franke Watson as it may he entitled to, and not taking into account the objection made to the admissibility thereof, nor the reasons advanced for its exclusion, so far as the claim sued for on hehalf of the minor Frances Watson is concerned.


text:
    No. 13,193.
    Succession of William White, Deceased.
    Syllabus.
    Ok Motion to Dismiss Aitkai.
    A claim .for improvements on land, arising after a succession is opened and in consequence of action taken to recover the land as the property of the succession, and as to which reservation of all right* is made in the Judgment of rovendi cation, is not to be likened to an ordinary debt against the succession incurred by the deceased during his lifetime.
    2 The latter, when denied recognition by the legal representative, must be established by direct action; the former, as to which a privilege is asserted, may be set up by way of opposition to the tableau of debts which omits it, and the test of jurisdiction on appeal is the amount of the fund sought to be distributed by the tableau.
    On the Merits.
    1 A son holding land by donation from his father, but as to which the act of donation is void for want of form, owes no rent for the land to the succession of the father except from the day judicial demand is made for its return.
    2 Such a title, not being one within the prohibitions of the law, is merely voidable, and until avoided he held under it as owner. ’While voidable it was such a title as the heirs of the deceased might have confirmed.
    3 Having gone upon the land in pursuance of the donation and believing himself the owner, the son erected improvements thereon. He is entitled to compensation therefor.
    A PEAL -from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      J. E. Moore,for Administrator, Appellee.

      MeOlendon & Beals for J. F. White, et als., Opponents and Appellees.

      John A. Richardson for T. F. Wrhite, Opponent and Appellant.
    Argued and submitted May 31, 1899.
    Opinion handed down June 22, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The administrator of this succession presented a provisional account and supplemental tableau of debts, for the homologation of which, after legal notices and delays, he prayed, and asked for authority to pay, out of the funds in hand, the balance of privileged debts, shown by his first tableau, relnaining unpaid, as well as the privileged debts shown by the supplemental tableau then presented, and to apply the remainder of the funds left over, as well as that which may subsequently como into his hands, to the payment pro-rata of certain judgment creditors named and other ordinary creditors appearing upon his tableau of debts.

Several oppositions were filed, but this controversy, so far as it is now before us, is narrowed down to one.

T. F. White opposed the tableau and account as presented, on the ground that an is .debtedness he asserted against the succession had been omitted therefrom.

. This claim arose out of the following facts and circumstances: In 1890 William White, father of opponent, deeded to the latter a tract of land, 160 acres. It was intended as a donation, though made in the form of an act of sale under private signature. A nominal consideration was expressed, but nothing was ever paid or intended to he paid. It was proved before the clerk of court by one of the attesting witnesses and recorded. The vendee or donee entered into possession, cleared a portion of the land, erected improvements thereon and lived there.

The father, old man White, died in 1895. He had been twice married and there were two sets of children.

His succession was opened and W. L. White, a son of the second marriage, and brother of opponent, qualified as administrator. The second wife survived as widow. The succession was insolvent. The widow claimed the homestead right. There was dispute between the two sets of heirs. The sons of the first marriage, asserting claims 'against the succession of their father, sued and recovered judgments. Then, as heirs and creditors, they brought an action some two years after the succession was opened, against T. F. White (opponent herein) to annul the title by which he held the 160 acres donated by the common ancestor. They averred its nullity as being a simulation —not intended as a sale and no price paid; that if intended as a donation, it was null for want of form — not having been executed by public, authentic act before a notary and two witnesses.

Their object was to bring the tract of land back into the succession and make the same amenable to its debts.

For answer to this suit, T. F. White admitted he had paid nothing for the land, conoeded there had been no sale, and that the act under which he held could not be sustained as a donation, though intended as such. He denied that there had been any demand made upon him prior to the suit to restore the land to the succession, and announced his willingness to surrender it to the succession. He claimed the value of improvements put upon the land, asking that his rights thereto be reserved in the judgment.

Thereupon, a decree was entered annulling his title to the land and restoring same to the succession, but reserving his rights as to improvements, and the rights of the succession as to rents.

Following this, the administrator applied for an order to sell this 160 acre tract, thus restored to the succession, and other property, to pay debts, and at or about the same time filed the provisional account and tableau of debts now under consideration.

Finding the land he had surrendered to the succession advertised for sale, together with the improvements thereon", to pay the debts of the succession, and finding that the tableau of debts, presented at the same time the order of sale was applied for, omitted any mention •of his claim for the improvements, T. F. White filed an opposition claiming the value of the improvements, which he fixed at $830, and asserting a privilege on the proceeds of the sale of the land and improvements and priority of right to he"paid by preference out of same. He prayed judgment against the succession for the amount claimed and for payment by preference.

He was opposed on the ground that he had permitted a previous tableau of debts to be filed in the succession and had not appeared to demand that the same be amended so as to include his claim. Based on this the pleas of estoppel and res judicata were urged against him.

These pleas are without merit. He waived no right by not opposing the first tableau, and the judgment homologating same by no means concludes him from, later, but seasonably, asserting his claim against the succession. Besides, these matters of defense are not mentioned in appellees’ brief and, presumably, are not insisted on here. It should be mentioned, too, that at the time the first tableau was filed, no question had been raised as to opponent’s title to the 160 acres, of which he was then in possession as owner, and, hence, had no occasion to appear and set up any claim for improvements.

The court a qua rejected the demand of opponent and dismissed his opposition, giving as a reason that his claim for improvements had been compensated by what he owed as rent for the use of the land up to the year 1898. For what years he was charged rent, in this adjustment, does not appear, but from statements in the briefs of counsel we are led to believe he was held accountable for rent from the date of his possession of the land (1890), prior to the death of his father.

Opponent’s appeal here is met by a motion to dismiss for want of jurisdiction roblone materias. It is urged that his opposition is a suit upon an unliquidated claim for $830, and must be asserted in a direct' action.

We hold differently. Appellant opposes the distribution of a fund-exceeding $2000 upon which, or part of which, he claims a privilege, and his right to demand compensation for the improvements upon the land surrendered to the succession was reserved to him by the judgment of the court rendered in a proceeding to which the succession must be held to have been a party, and which judgment awarded the-land, upon which the improvements had been erected, to the succession. When the land with its improvements came to be sold at succession sale to pay debts, opponent, under the reservation aforesaid, could present his claim for the value of the improvements by way of opposition to a tableau and account which denied recognition of the-same. His claim for the improvements arose after the succession was opened and in consequence of action taken to recover the land' as the property of the succession. It is not to be likened to an ordinary debt against a succession, claimed to have been incurred by the-deceased, and which, when denied recognition by the legal representativej must be established by direct action.

The motion to dismiss is denied.

On the Merits.

William White, the father, during his life time delivered possession’ of the land to his son (opponent). He had a right to do this and the-son’s possession was not only in good faith, but under a title which he • and his father thought sufficient to convey ownership.

The father died and the land so occupied by the son was not only not inventoried as belonging to his succession, but the son’s ownership was not disputed nor his possession disturbed until two years after the succession was opened.

Then a suit by creditors, who are likewise heirs, was brought to-bring the land back into the succession and make it amenable to the-succession’s debts.

Certainly, under the circumstances, the son owed no rent for the land up to the time of the death of his father. Nor do we think he should be held for rents except from the day an action was begun for the recovery of the land. McCastle vs. Chaney, 23 La. Ann. 720; Pearce vs. Franklin, 16 La. Ann. 414; 34 La. Ann. 1166.

The title by which he held was not one within the prohibitions of the law. It was simply a title voidable at the instance of parties in interest. Until avoided he held under it as owner; while voidable, it was such a title as the heirs of the deceased might have confirmed and ratified (0. 0. 2274), and until they took steps showing they did not intend to acquiesce in it, nor confirm or ratify it, no rents should be demanded of the one who possessed as owner.

The suit to recover the land as the' property of the succession was not instituted until November 13, 1897. This was, practically, the end of the year 1897, or so near its end that we do not think any rent for that year on this predial estate should be charged.

The record discloses that opponent has paid rent on the land for 1898 — he having continued in the occupancy thereof during that year.

So that, on the whole, no. rent charges are taxable against him.

Having gone upon the land under the circumstances shown and believing himself its owner, opponent cleared part of it and erected improvements. Unquestionably he is entitled to compensation therefor. C. C. 508, 2314; 16 La. Ann. 247; 28 La. Ann. 720; 26 La. Ann. 587; 33 La. Ann. 750; 34 La. Ann. 1163; 16 La. Ann. 414; 28 La. Ann. 31.

The 160 acres which opponent had occupied sold at succession sale, September 26, 1898, for $604. Previous to the sale, and on the day thereof, appraisers were appointed and sworn to appraise.the improvements and constructions placed on the tract by him.

They returned as the aggregate value of such improvements at that time $309.50, presenting a list of the items going to make up that sum.

The evidence satisfies us this was a reasonable estimate. If anything, too low.

Substantial justice will, we think, be done by allowing opponent that sum. And he is entitled to be paid it in full out of the fund in the administrator’s hand. He might have retained possession of the land until paid the value of his improvements. He, however, surrendered its possession to the administrator under reservation of his rights as to the improvements. This was to the advantage of the succession, for it was thereby enabled the sooner to sell the property, and by this sale it was put into possession of funds with which to discharge opponent’s just claim for the improvements.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from so far as it affects the opponent T. F. White be annulled, avoided and reversed, and it is now ordered and decreed that his opposition to the provisional account and supplemental tableau of debts herein filed be sustained, that his claim for improvements, etc., as set up in his said opposition be allowed for the sum of three hundred and nine and 50-100 dollars, and that the same be paid in full by preference out of funds in his hands for distribution under said account and tableau — costs in this behalf in both courts to be paid by the succession of William White, deceased.


text:
    No. 13,027.
    J. A. Fay & Egan Co., vs. Ouachita Excelsior Saw and Planing Mill, Limited. Hirsch & Gathright, Garnishees. L. D. McLain, Intervenor.
    Syllabus.
    1. While the interest of a partner in an existing partnership may not be seizeu under garnishment proceedings, the interest as creditor oí one in a contract oí letting and hiring, as herein explained, may be so seized, and the ultimate indebtedness ascertained by adjustment of accounts and settlement of rights under the contract.
    2. Contract in this instance interpreted, its true meaning pointed out and certain credits claimed by garnishees rejected.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      A. A. Gunby for the Plaintiff and Appellant.

      Stubbs & Bussell for the Garnishees, Appellants.

      Boalner & Dodds for the Intervenor, Appellant.
    Argued and submitted January 30, 1899.
    Opinion handed down June 19, 1899.
    Decree amended, and rehearing refused June 30th, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff company, judgment creditors of defendant company, caused execution to issue and cited ITirsch & Gathright as garnishees, who returned negative replies to the interrogations propounded touching indebtedness to defendant, or possession of property belonging to defendant.

A rule by plaintiff to traverse was filed and from a judgment thereon rejecting the demand to hold the garnishees liable, plaintiff appealed. This appeal was before us in February, 1898, and on March 7,-1898, an opinion and decree was handed down, reversing the judgment of the court a qua and remanding the case to be proceeded with according to the views therein expressed. See 50 La. Ann. 206.

The purpose of the remanding was to ascertain the indebtedness, if' any, of the garnishees to defendant on a final settlement of accounts between the parties under the contract of April 17, 1897, set forth in abbreviated form in our former opinion.

On the return of the case to the trial court, plaintiff moved for the appointment of auditors and experts to examine into the accounts and make report thereon.

This was on April 12, 1898. The contract expired by limitation on April 17, 1898, but owing to unfinished business on hand it was practically extended until May 21, 1898.

The court granted the motion and appointed two parties as experts and auditors, defined their powers and instructed them as to the examination they were to make, with orders to report their findings of facts and figures by the 2nd of May. It was not, however, until June 23, 1898, that they filed a report which was stated to be a partial one owing to lack of time, etc. On the 10th of September following, they filed a second report more in detail. According to this report the indebtedness of the garnishees to defendant on May -21, 1898, was $738.66, which was about fifty dollars less thán the indebtedness' which the garnishees themselves admitted in an account presented by them about the same time.

Plaintiffs filed oppositions to both reports and to the statements of account presented by the garnishees.

They pointed ont and specifically opposed certain items appearing upon tíre reports, which, if disallowed, would materially increase the indebtedness of the garnishees to their-debtor.

Some two months after the appointment #f the experts, and a day •or two before they made their first report, a petition of intervention was filed by L. D. McLain, in which he alleged he had become the purchaser, on the 11th of June, 1898, at sheriffs sale, of all the right, title and interest of defendant company in the contract of partnership which had existed between defendant and Hirsch & Gathright.

The contract intervenor had reference to was the one of April 17, 1897, upon which were predicated the garnishment proceedings taken Out by plaintiff against the said Hirsch & Gathright, and under which this court had held, on the first appeal, that a 'seizure had been effected.

As to this seizure and the proceedings relating thereto, intervenor averred the same to be void for the reason that the interest of a partner in a partnership cannot be seized by garnishment, and that plaintiff (the Fay and Egan Co.) had acquired no right whatever as seizing ■creditors.

He, thereupon, declaring that while the interest of defendant as partner in the contract with Hirsch & Gathright could not be seized as plaintiff company had attempted to do, such interest could he seized in the way he (intervenor) had seized it — that is to say, by the sheriff, under fi. fa., by giving- notice to the judgment debtor and to Hirsch & Gathright that the interest of the former as partner of the latter firm in the contract of April 17,1897, had been seized — and that being the owner of such interest by purchase at public sale after due advertisement, he was entitled to a liquidation of the partnership and to receive Whatever sum may be found due to defendant company on such liquidation.

He prayed to be recognized as the owner of the rights of defendant under “the aforesaid contract of partnership,” for the liquidation of the alleged partnership and for judgment against Hirsch & Gathright for whatever sum may be found to be due defendant as partner.

Plaintiff objected to this intervention oil the ground that it came too late, being filed on the day the case was fixed for trial, and excepted to it on the ground that it disclosed no cause of action.

'The judge sustained this contention of plaintiff and dismissed the intervention. Subsequently, however, he reconsidered his ruling, permitted the intervention to stand and continued the ease until the September term of the court, with further instructions to the experts.

The claim of the intervenor as above set forth had its origin, development -and consummation as follows: In December, 1897, Green B. Haynes recovered a judgment against the Ouachita Saw and Planing Mills, Limited, (defendant herein) for $5810.32, with interest and attorney’s fees. On May 21, 1898, a writ of fieri facias issued on this judgment, and on May 23rd the sheriff, under this writ, seized the • defendant’s interest in t‘he alleged partnership between the mill and Hirsch & Gathright. The same day the seizure was effected, the Haynes judgment, under which made, was transferred to L. D. McLain, intervenor herein.

This was, as we have seen, long after the decision of this court ! holding that plaintiff company had seized under the garnishment pro- . eeedings against Iiirsch & Gathright whatever indebtedness the latter would owe the Mill, under the contract of April 17, 1897, upon á .settlement of accounts.

It was, too, long after the appointment of experts had been made and other steps taken, in carrying out the decree of this court, looking ■ to a settlement of accounts and the ascertainment of the amount of indebtedness due to the Mill. x

Following his seizure of the interest of the Mill as partner in the contract with Iiirsch & Gathright, the sheriff advertised same for sale and on June 11,1898, offered it at public sale — McLain becoming the purchaser for the sum of $666.70, which was two-thirds of the appraised value thereof.

There was judgment in the trial court rejecting the demand of the intervenor in so far as it tended to affect the rights of plaintiffs .acquired under their garnishment proceedings against Hirsch & Gathright, but directing that should any surplus remain over in the hands of the garnishees after satisfying plaintiff’s judgment and other prior seizures, the same was to be paid over to the intervenor.

The District Judge, further, decreed an indebtedness against Hirsch ■'& Gathright in favor of the Ouachita Excelsior Saw & Planing Mill, Limited, for the sum of $1625.82^1^ interest, and adjudged that this indebtedness had been seized by plaintiffs under the garnishment proceedings taken out by them against Hirsch & Gáthright.

Judgment for the amount was entered up in plaintiffs’ favor against -.the garnishees, less the costs of the garnishment proceedings, including the compensation allowed the experts — with the stipulation, however, that the garnishees be allowed to retain in their hands a sufficient sum to cover the prior seizures of the same indebtedness under proceedings in garnishment which had issued on judgments recovered against the common debtor by E. P. Allis & Co. and John E. Dunn, should the seizures of those creditors be maintained and held to prime that of plaintiffs.

Another creditor, Filer, Stowell & Go., who likewise had a judgment against the common debtor, under which, it seems, the same indebtedness had been garnisheed in the hands of Hirsch & Gathright, is mentioned in the opinion of the lower court as standing on the same basis with Allis & Co. and Dunn, but in the judgment as copied in the record no mention is made of them.

It appears that these creditors — Allis & Co., Filer, Stowell & Co. and Dunn — had recovered judgments for amounts under the jurisdiction of this court and had garnisheed M. Hirsch and J. P. Gathright individually, not as the firm of ITirseli & Gathright, a short time prior to the service upon that firm of citation in garnishment by plaintiffs.

In their cases, as in that of plaintiff, the District Court rejected the demand against the garnishees, and they (the creditors) appealed to the Honorable Court of Appeals at or about the same time plaintiffs took their former-appeal here. On the trial in the Court of Appeals that tribunal took the cases under advisement to await the action of this court on the appeal which had -been taken by the Pay & Egan Company, and following the determination of the case here the Judges of the Court of Appeals made the same disposition of the cases before them as was made by this court in the case pending here. They reversed the judgments of the lower court and remanded the causes to be proceeded with in accordance with the views expressed by this court in its opinion handed down herein on the former appeal.

From the judgment of the District Court in the pending controversy, plaintiffs, the garnishees and the intervenor have all appealed.

The intervenor’s pretensions cannot be sustained. Waiving the question of the lateness at which he appeared in the case, and -other questions of serious import affecting the claim he sets up, raised by plaintiffs’ counsel in argument and brief, we have the judgment of this court, deliberately rendered, decreeing that the Ouachita Saw and' Planing Mills, Limited, had a seizable interest in the contract of ‘date April 17, 1897, entered into by and between Hirsch & Gathright and' the said Mills, and that the said interest was seized by plaintiffs in. the hands of Hirsch & Gathright.

Having reached this conclusion, the' case was- remanded for the-adjustment of accounts and ascertainment of tlie extent -of tlie indebtedness, if any, which would bo due the Mills by the garnishees, which indebtedness was the interest in the contract seized.

While the-lower court is proceeding with the work of this adjustment and ascertainment, intervenor, himself a director in the Ouach-ita’Excelsior Saw and Planing Mills and President of the West Monroe Lumber Co., successors of the Saw and Planing Mills, steps in, buys-with stock of the West Monroe Lumber Co., a judgment against the1 Saw and Planing Mills, asserts a seizure under it of the interest as partner of the Mills in the Hirseh & Gathright contract, bids the' supposed interest in at sheriff's sale', and then, assuming to stand not only in the shoes of defendant company (the Saw and Planing- Mills) but to have even greater rights, appears in the controversy, asking,, practically,-for the annulment of the former judgment of this court- and of three judgments in the Court of Appeals, and that he be allowed to take everything in sight adjudged to be clue defendant under the Hirseh & Gathright contract.

We find ourselves unable to concur in the view, which, from the standpoint of the intervenor, makes this a proper, a legal, a reasonable thing to do — all three.

We might well agree with his counsel that the interest of a partner in a partnership cannot be seized by garnishment process against the-co-partner, but differ from them in the "view that makes the relation which existed between the defendant corporation and the garnishees' under the contract of April 17, 1897, a partnership. We did not regard it as such in the consideration given to this case on the former' appeal, and do not so regard it now.

Since it has now become advisable to pass directly on the character' of that.contract w’e will say we look upon it as one of letting and’ hiring, of employment of the Mill by Jlirsch & Gathright to saw their' logs into lumber and dry and load the lumber- in cars for transportation to market.

The logs were the exclusive property of Hirseh & Gathright; the lumber manufactured out of the same was their exclusive property;' it was to be shipped to market in their name and for their account;' and its sale and disposition was exclusively in their hands.

The mill and the people owning and running it were simply hired by them to saw up the logs, dry the lumber and load the same into-ears. The compensation to be paid the mill, how arrived at, and how to be realized, does not serve ,to take the contract out of the category of letting- and hiring- and make it. one of partnership.

This Saw and Planing Mill, a limited corporation, could not form a co-partnership with the commercial firm of Ilirsch & Gathright, but the latter could hire the mill, its outfit and force of hands, t-o saw their logs into lumber and dry and load the same on the cars, for which it was to be paid $3.50 per M feet, lumber measure, and, in addition, to have what the lumber brought, if anything, in market over and above. $6.50 per M feet.

The Mill people were willing to wait for their compensation of $3.50 per M feet until the lumber was sold -and to even agree that the first claim on the in’oceeds of the lumber was to be $3.00 per M feet, representing the value of the timber, and to be retained by the -owners of the timber. This is to be regarded simply as a precaution against .loss by those who owned the logs if the contingency the state of the lumber market did not permit of the sale of the lumber for enough to realize $3.00 per M feet as the value of the timber from which the lumber was sawed and also $3.50 to the Mill for sawing, drying and loading. The Mill wanted employment and secured it, taking its chances, nothing more, on the lumber market being such that the lumber would sell for as much as $6.50 per M feet — thus enabling it to realize $3.50 per M feet for its work. If the lumbef realized less than $6.50 per M, the result would have been, merely, that the Mill would have received less than $3.50 per M. The owners of the timber were to have its value first, $3.00 per M; the Mill got what the lumber sold for over this price up to $6.50 per M. If it sold for $6.50, it received $3.50 per M; if for less, it received less for its work. If the lumber sold for more than $6.50, the Mill got, the benefit of the . surplus. This surplus, if any, is to be regarded as additional compensation earned by-it, and permitted to be paid it by the state of the 'dumber market, for sawing the logs, drying the lumber and loading same into the cars.

The mill got the 'benefit of the excess of the sale of lumber over and above $6.50 per M in this w-ay: Twenty-five per cent of this excess or surplus was -to be retained by Ilirsch & Gathright on an old debt the Mi'll owed them; -the remaining seventy-five per cent was to be paid in cash to it.

Thus were Ilirsch & Gathright finding a sale for their logs at $3.00 Per thousand, and, in addition, providing a probable means of payment of the anterior indebtedness the Mill owed them.

And thus was the Mill enabled to find employment for sawing, drying1 and loading lumber at the remunerative rate of $3.50 per M, with the likelihood of greater compensation by reason of the lumber selling in excess of $6.50 per M, and by the use of part of this excess securing the settlement of .the old debt it owed ITirscli & Gathright.

This arrangement, entirely legitimate and proper, did not make the contracting parties partners in the legal sense, of that term. There was no liability on part of ilirseh & Gathright for the indebtedness of the Mill; there was no liability on part of the Mill for the indebtedness of Ilirseh <k Gatliright as dealers in lumber. Nor, as we read the contract, was there any stipulation for a division of any profits. Whatever eadh of the contracting1 parties was to receive under the arrangement cannot be classed as division of profits.

The evident object of Ilirseh & Gatliright in entering into the arrangement. was to put. themselves in a position to realize.$3.00 per M for their logs — a fixed price — together with the hope of realizing, through part of the contingent compensation to be received by the Mill for its work, payment of the outstanding claim against the Mill, which, it would seem, they were not likely to collect otherwise.

They found that in order to make tlieir timber realize to them $3.00 per M, they were under tlie necessity of having the logs sawed into lumber, the ownership of which they retained until it (the lumber) was sold, and they wisely reserved to themselves the exclusive control of its salo and disposition.

That no “partnership” arrangement was contemplated, is conclusively shown by clause 5 of the contract reading as follows:

“5. It is further distinctly understood and agreed that the parties of the first part do not, by the delivery aforesaid, sell, part with, or transfer to the party of the second part, any property interest in any of the saw logs which may be delivered in accordance with the terms of this contract, nor shall the party of the second part become the owner of- the lumber manufactured therefrom, their interest in the same being confined to the amount herein above stipulated as compensation for the manufacture of said logs info lumber, and drying and delivering- the same on the cars for shipment.”

Whatever there is in the testimony of the witness Kúhn, tending to make out of this arrangement between the Mill and Hirsch & Gathright anything beyond what the plain recitals of the contract purport and warrant is disregarded under the well known rule of evidence that parol testimony is inadmissible to explain, control, vary or contradict a written instrument. Seasonable objection was made to such evidence and bill reserved.

It follows that the intervenor did not seize anything- belonging- to-defendant Mill under attempted execution of the judgment he had acquired from Green B. Haynes, and that he had no actual interest to subserve or protect by appearing- as party litigant in the controversy. His demand must, therefore, be rejected outright.

This brings us to the consideration of the report of the experts and' the judgment of the court a qua thereon.

It is not necessary t<? go into a minute examination and analysis-of the accounts -between the garnishees and the debtor of plaintiffs. The only interest plaintiffs have in the controversy is to show indebtedness enough to cover the judgments under which seizure was effected prior to their seizure, and the balance due on their judgment. Many items claimed as credits by the garnishees might be found, on critical examination, not to be such charges, as under the contract, they were-entitled to make as against the seizing creditors.

It suffices to consider some of the larger charges only, objected to as not within the scope of the contract.

The judgment appealed from decrees against the garnishees $1625.32.

The court arrived at this sum by taking- as a basis what t-he accounts-rendered to the court by the experts and garnishees showed to be due the Saw and Planing- Mill. It then rejected certain items claimed as credits by the garnishees and added their aggregate sum to the amount the statement of account showed to be due. Then, allowing the garnishees to retain one-fourth of this on the old indebtedness of the Mill to them as per the terms of the contract, it decreed the other three-fourths, or $1625.82, due to the Mill by the garnishees under the-contract.

We will accept this as correct as far as it goes. But other items on the account claimed as credits must, under the view we take of thacase, be disallowed for the purpose of this suit.

By reference to clause 6 of the contract we find that account sales of the lumber were to be rendered by Hirseh & Gathright to the Mill on the 10th of each month, and that the amount due to the MilE as compensation for the manufacture and shipment of the lumber so sold should be paid over by Hirseh & Gathright on demand to the Mill, less the amount of advances Hirseh <& Gathright may have made to the Mill to pay the expenses incurred in the manufacture of the lumber.

Observe the words “expenses incurred in the manufacture of the lumber.'’ (Italics ours.)

It is clear the expenses thus contemplated were the ordinary operating expenses of the Mill, and that such was the intention of the parties at the time. This did not include payment of insurance on the mill and its outfit, for .-which a credit of $1139.96 is claimed; nor the payment of Building- Association dues for loans, etc., made the Mill, and for which a credit of $2427.77 is claimed; nor amount $85.00 figuring on the account -as paid O. C. Maddin, for which credit is claimed; nor that of $101.30 paid sundries, nor that-of $112.50 paid J. Chester, for all of which credit is claimed; nor various other items of credit claimed and allowed by the District Judge, not necessary -here to include in the calculation.

The above aggregate $3866.53. Allowing the garnishees to retain oue-fourtli of this sum, as per the contract, on the prior indebtedness due them, there remain $2899.90, which added to the $1625.82 allowed by the trial court gives $4525.72 as the sum'to which the judgment appealed from must be increased.

For the reasons assigned, it is ordered, adjudged and decreed that the demand of the interven-or, L, D. McLain, be rejected at his costs.

It is further ordered, etc., that the garnishees, Hirseh & Gathright, and the individual members of that firm, aro adjudged to owe and be indebted unto the Ouachita Excelsior Saw -and Planing- Mill, Limited, in the sum of four thousand, five hundred and twenty-five and 72-100 dollars, with legal interest thereon from May 21, 1898, and it is further adjudged that- said indebtedness has been seized by the plaintiff's, J. A. Fay and Egan Company, under their judgment herein against the said Ouachita( Excelsior Saw and Planing Mill, Limited, and the said firm of Hirseh & Gathright and the members thereof in solido are hereby decreed to pay to said plaintiffs the amount remaining due on their said judgment against the said mill, not exceeding said sum of $4,525.72 — first deducting and paying- out of said sum the costs of this garnishment proceeding in both courts, including the fees of the experts, lí. B. Newhall and J. L. Jordan, remaining due, a.nd retaining in their hands a sum sufficient to cover prior legal seizures of the said fund under garnishment proceedings on writs of fieri facias issued on judgments obtained by other creditors of the said Mill.

It is further ordered, &c., that the judgment appealed from, as thus amended, be affirmed.

On Application for Rehearing.

The decree heretofore handed down is amended by adding thereto the following: The decree herein being limited, in asserting indebtedness on part of the garnishees to defendant company, to the amount only that 'is necessary to pay and satisfy the balance of plaintiffs’ judgment, with interest and costs, and the seizures of the same fund preceding that of plaintiff company.

Rehearing refused.

Monroe, J., takes no part.


author: Blaxoiiard, J.

text:
    No. 13,014.
    L. R. Sapp vs. Sam. A. Frazier et als.
    Syllabi's.

      1. Plaintiff, having tille to a tract, of land bordering on Lake Bistineau, claims riparian ownership of bed of lake in front of his holding.
    2. To succeed (if at all), it must appear that the land he asserts riparian rights to, has become attached to the original tract either as accretions (alluvion), or dereliction.
    S. If the original bed of the lake, lias undergone no change, if there has been no deposit forming alluvion, and no permanent subsidence of the waters uncovering land to become dei'cliclion, ho takes nothing.
    4. The temporary uncovering of parts of the bed of the lake, by the recurring annual ebb of the waters. 1o become, covered again by their rise or flow at (he appropriate season, does not constitute dereliction.
    APPEAL from the Second Judicial District Court for the Parish-of Webster. Watkins, J.

      Stewart & Stewart for the Plaintiff and Appellant.

      L. K. Watkins for the Defendants and Appellees.

      Argued and submitted January 28, 1899.
    Opinion handed down April 3, 1899.
    Rehearing refused June 27, 1899.
   The opinion of the court was delivered by

Blaxoiiard, J.

Plaintiff, in 1896, acquired by purchase certain tracts of land fronting on Lake Bistineau, aggregating about 220 acres.

The authors of his title had acquired the land from the United States. It is “hill” land, or “uplands.”

When, many years ago, the government surveyors ran the lines of the townships and sectionized the lands of that region of country, the tracts of land in question formed fractional sections, or parts of fractional sections.

What necessitated these fractional sections was the existence of the lake and its omission from the survey. The front, or eastern and northeastern side of these fractional sections was a meander line running around the west bank of the lake. Between the meander line and the other, or straight, lines of the fractional sections, the government computed so many acres -and disposed of the land according to such computation.

Lake Bistineau is a body of water situated in Northwestern Louisiana, forming the boundary line between the Parish of Bienville on the east and the Parish of Bossier on the west, and extending up into the Parish of Webster. The lake is thirty or forty miles long and from a mile to two miles wide. At its northern extremity Bayou Dorcheat. flows into it, and through Logg-y Bayou at its- southern extremity t-lie lake drains into Red River.

The three (Boggy Bayou, Lake- Bistineau and Bayou Dorcheat)’ constitute a navigable waterway of the United States, to improve-which Congress has repeatedly made appropriations of money, and' through which steamboats approach within a few miles of the town of Minden, the county seat of Webster Parish.

Navigation through the lake for steamboats begins in January or February, and extends through the spring months into the early summer.

The lake bed is covered with water for from six to seven months in the year, and for five or six months, beginning in the summer and extending through the autumn season, the greater part of its bed is: .uncovered, the waters receding' and draining off into Red River.

During- the season when the water is down, what is called “the low water channel,” having the appearance of a small bayou, meanders ■through the bed of the lake. Through this drains the surplus water .remaining in the lake and that which comes into it from the summer :and fall rains. Sometimes the water in this channel runs — there is a current — and sometimes there is none.

The bed of the lake has never been looked upon as private property.

Those living on it and near it, and, indeed, the public generally, have regarded it as pertaining either to the United States or the State of Louisiana. All were thought to have an equal right upon the lake bed or bottom when its waters were down, as they had upon the lake itself when its waters were up. Accordingly, during the Civil War people came long distances to the lake, to utilize the water, rising in shallow wells dug bn its bed, for salt making- purposes, and the salt wells of Lake Bistineau became famous and were the chief source of the supply of salt for a large area of country.

So, too, the cattle of all living within convenient distance have had «.he indiscriminate range of the lake and were driven to its bed, when the waters were down, for pasturage purposes.

And hunters, far and near, resorted in numbers to the lake in the fall and winter months to enjoy the sport of shooting the innumerable wild fowl that congregate there.

About twelve or fifteen years ago a new kind of grass began to grow upon the lake bed immediately following the annual subsidence of its waters.

This grass grows to a height of two or more feet, and' so thick that it cholms out and destroys the cocklebur and other weeds and grasses whore it appears. It is an excellent forage grass, cattle graze and fatten upon it, and it was soon discovered that hay made from it was bettor than the best the market afforded.

The result was that the people of that section of country began going upon the bed of the lake at the season when the grass was in icondifion, and cutting and baling' the hay, both .for their own use and for market.

At the point where the land which plaintiff’s titles call for borders the lake, the latter is nearly two miles wide and there this grass, so •much iu demand, seems to grow to the best advantage. Hence, it was .and is a favorite locality of the grass cutters, and before plaintiff acquired his holdings defendants and other persons were in the habit of cutting much hay there. Indeed, plaintiff seems to have been lured to that particular locality of the lake by the advantages' mentioned, and his investment in the uplands, bordering the lake there, induced by the same. lie believed that by acquiring the lands fronting on the lake, he would take as riparian proprietor to the centre of the lake bed, or to the low water channel. He seems to have been the first to assert a right of this kind.

Having purchased and taken possession, he announced his purpose to claim the right of ownership and of dominion to and over the lake bed in front of his holdings.

Defendants, Erazier and Noles, who lived near by and who had been cutting grass there for several years, were preparing to do so again in the summer following the purchase of plaintiff. They were on the ground with baling press, mowers, etc., had cleared away the hushes, erected a small cabin for shelter, and had cut some hay.

Plaintiff appeared, claimed the ground and the grass, forbade further cutting by defendants, caused one of them to be arrested for tresjmss, and then brought the present action to restrain them by writ of injunction from going upon that part of the lake bed, or cutting grass there.

In his petition lie claims the ownership as riparian proprietor, by right of accretion or accession, of all the lake bed to the low water channel in front of his land situated on the hills bordering the lake, and his prayer is that he be decreed the owner thereof and the injunction be perpetuated.

Defendants deny that plaintiff has any right of ownership or possession in and to the lake, lands in front of his tract bordering the lake. They allege the lake, its bottom or bed, to be public property; that the same has never been surveyed and is not subject to private ownership. They assert that neither in the past, nor since plaintiff purchased land on the lake front, lias there been any alluvion or batture formed there, nor has any dereliction occurred by which any of the lake bottom has become uncovered, in the sense of the law, and attached to his holdings. They deny that he is the riparian owner of lands on the lake, and aver that his title calls for a “limited field” and so many acres fixed, the boundary thereof extending on the lake side no further than the natural bank of the lake at ordinary high water, ending at the meander line of the lake. They further contend that if any part of the lake bed in front of plaintiff’s land- is alluvion or reliction, the same had formed years ago, long prior to plaintiff's acquisition, and the same never passed to plaintiff because in no manner expressed or included in his deeds. They reconvene for damages for his unlawful act in driving them from the land and restraining them by injunction, and represent that after service of the injunction upon them he (plaintiff) himself, cut the grass on the - land where defendants had prepared to cut it, and marketed the same, or a portion thereof.

On these issues the case went to trial before a jury whose verdict was favorable to defendants, but without any award as to damages-against plaintiff. The judgment of the court, based on this verdict, recites the rejection of plaintiff’s demand, as well -as that of defendants for damages.

Plaintiff appeals, and defendants ask amendment of the judgment by awarding them the sum they claim for damages.

The first inquiry arising is, do plaintiff’s titles, by their terms,, embrace and include the land in the lake bed where defendants were cutting hay ?

They do not. There is no pretence that they do.

The next inquiry is, has there- been formed in front of his land bordering the lake, other land either by accretion or• dereliction, in the. sense of the law, and' susceptible of ownership, and, if so, when did it form, and if formed prior to his purchase, did his vendors include the same in the sale to him ?

If the lake bed in front of his land comes neither under the denomination of accretion nor dereliction, then i-t would seem that plaintiff has no right to fence defendants off such lake by either injunction, or . rail or wire.

In the view we take of the case, it is not necessary to decide whether or not. plaintiff has riparian rights as owner of the lands bordering the lake, nor whether or not the doctrine of “limited fields” — in a gris limilatis of the Roman law — applies to. the titles by which he holds.

Neither is it necessary, or advisable, for us to inquire into the rights, if airy; in and to the bed of the lake appertaining to the United States, or to the State of Louisiana — whether such bed does or does not attach to the public domain of the oné or the other, whether or not the same is or is not susceptible of disposition under existing laws by the one or the other through tlieir respective land depart-merits, or whether or not Congress, in the ■ one case, or the General Assembly,' in the other, could, otherwise, dispose of same by legislative act.

If vre view plaintiff as owner of lands on the lake to' which riparian rights may attach, does he take the lake bed in dispute as alluvion or reliction ?

From the definition of the word, alluvion is the land formed by sedimentary deposits and added to an ordinary tract by the imperceptible action of the waters bordering the latter. It is a inode of acquiring property by natural law, jure gentium, by those principles or maxims which regulated the conduct of men before the formation of civil society (6 M. 242), and is recognized by the statutory law as a means of the acquisition of property. C. C. 509.

Dereliction, or reliction, is land added to a front tract by the permanent uncovering of the waters; the laying bare of the bottom by the retirement of the waters, as contradistinguished from the building up of the bottom by deposits causing the waters to recede. Dereliction, as used by the English law, meant when the sea shrank back below the usual water mark and remained there. In those cases the law (English) is held to be that, if this be by little and little, it shall go to the owner of the land.adjoining. 0 M. 244.

It is recognized (excluding the sea) by the Louisiana law as a mode of acquiring property. C. 0. 510.

Rut the temporary subsidence of the waters, occasioned by the seasons, coming in the winter and staying through the spring, going in the summer and gone through the autumn, does not constitute dereliction, in the sense of an addition to the contiguous lands, susceptible of private ownership as riparian rights. There is no “increase of the land” in such ease. The reliction must be from the waters in their usual state. Where it periodically rises up over the land and then recedes, there is no reliction. Bouvier, verbo “Reliction”; 12 La. 324; 34 Ann. 839.

The lake bottom, where defendants were preparing to cut grass, can npt be said to be accretions, or alluvion, in the sense of the Oode, for the testimony shows no alluvial or other deposit whatever has been made there for forty years, or as far back as any of the witnesses who testified in the case had knowledge of.,

Tt can not be dereliction, for the same witnesses testify to no change in the bottom of the lake, and no change in the characteristics of the lake for forty years. There has been no dry land formed by “running- water retiring imperceptibly from one of its shores and encroaching on the other.” O. C. 510. '• There has been no change in the shores of the lake. Its banks do not and have not caved. Nothing has bc-en taken from one shore and added to the other. There has been no permanent uncovering- of the waters; no laying bare of the bottom by the retirement of the waters to stay; no shrinking- back of the waters below the usual water mark and the remaining of the same ait the point of shrinkage. It is true its bed, or large part of it, becomes measurably dry and remains so more or less for four or five months in the year. But it becomes covered again with water, which remains over it six or seven months, -and in turn runs off leaving the bed exposed, and this successive recurrence of conditions has been going on without any change from time immemorial. There has been .uo decrease in the depth of the water (from six to ten feet) covering the hay field in dispute, except such as might result from a larger volume of water filling the lake one season and a less volume another season. But this is more or less an accidental fluctuation, depending on the rainfall of one season exceeding that of another, and the water in the Red River being higher one year than file next, or vice versa.

When plaintiff purchased his holdings on the lake, as well as since his purchase, exactly the same annual rise and fall of its waters was and lias been going on, as was the case when his vendors acquired their titles, and during the years they held the land. Indeed, it is clear that the same conditions exist now as to this annual flow and ebb of the waters as existed long prior to the time plaintiff’s vendors acquired title.

If tliei-e be land now in the bed of the lake in front of the plaintiff’s holdings attachable thereto as accretions or as reliction, it existed in the same degree and condition during the time his vendors held the title, there having been no change. And if his vendors acquired as alluvion or dereliction the lake bed to which he now asserts right of ownership, they did not part with title to the same in their act of conveyance to him, for no mention whatever -of its disposition to him is recited in such deeds either in express terms, or appears therefrom by implication.

For them to have intended to include it in their conveyances to him (supposing they then owned it), it was necessary such intention should have beon expressed in the deed. Barry vs. City, 22 La. Ann. 612; Livingston vs. Hoorman, 9 M. 658; 7 N. S. 624; 11 La. 142; 18 La. 229; 23 A. 551; 35 An. 209.

The original grant or patent of the land bordering on the lake, owned by plaintiff, came from the United States. But it is well settled that where the United States has made grants, without reservation or restriction, of public lands bounded on streams or other waters, the question whether the lands forming the beds of the waters belong to the State, or to the owners of riparian lands, is to be determined entirely by the law of the State in which the lands lie.

Hardin vs. Johnson, 140 U. S. 371; 137 U. S. 661; Lamprey vs. State (Minn.) 18 L. R. A. 670.

There has been no increase of land, whether by alluvion or dereliction, between the tract occupied by plaintiff and the lake, since the date of his purchase, and there was none before. Therefore, under the law of Louisiana, there has been nothing for him to take even' giving him the benefit of the pretensions he' asserts as riparian proprietor.

The modes or ways of the acquisition of property are limited to those prescribed by law. 34 La. Ann. 839.

He must be held to have had no greater right to the portion of the lake bed in dispute than defendants had, and no more right than they to cut grass there. '

It follows that no sufficient cause for the injunction “herein sued out existed, and that the same was properly dissolved.

We think the judgment appealed from should be amended by allowing defendants damages as attorneys fees for dissolving the injunction, and further amended by reserving to them the right to claim such further and additional actual damages, if any suffered, to which they may legally be entitled.

Defendants, however’, had no right to the exclusive use of this hay field in the bottom of the lake which they occupied when plaintiff interfered. They had no right to post the same, nor fence the same, nor exclude others from it, nor deny to others the right to cut grass there. They had, of course, no property right in the grass there, and can claim nothing in the way of damages on that score.

We do not think it can be called trespassing on the public domain, whether of the- State or the United States, for individuals to merely cut grass on the lake after the subsidence of the waters. But no one can take suck possession of the lake bed, or any part of it, for suck purpose so as to exclude others from it. No priority of right to any particular spot or place in the lake bed is possessed by any one, and no such spot or place can be held by any one against the entry upon the same by others for grass cutting- purposes.

The lake and lake bed are free to all to enter upon it, or any part of it, for any purpose not unlawful, and no one may claim any privilege there superior to others.

As the situation is, the lake bed is a public place open to the legitimate use of all alike.

For the reasons assigned, it is ordered, adjudged and decreed, that so much of the judgment of the court a qua as rejects plaintiff’s demand, and dissolves his injunction, be and the same is hereby affirmed.

It is further ordered, etc., that so much of the said judgmefft, as rejects defendants’ demand in reconvention, be avoided and reversed and it is now decreed that defendants, Frazier and Noles, do have and recover of the plaintiff the sum of one hundred and twenty-five dollars damages as attorney’s fees for dissolving the injunction, and that on the remainder of their claim for damages there be judgment of dismissal as in case of non-suit, costs of both courts to be paid by plaintiff.

Mr. Justicie Monroe takes no part, as he was not a member of the court when this case was heard.