text:
    No. -
    First Circuit
    WALKER v. WHITE WOODS PRODUCT COMPANY
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159.
    An injured employee whose injury consists of a wound of the right wrist causing partial disability is entitled to compensation at the rate of sixty per cent of the difference between the wages at the time of the injury and the wages which the injured employee is able to earn during the period of disability not beyond three hundred weeks, under Section 8, Subsection X (b), of the Workmen’s Compensation Act No. 20 of 1914.
    2. Louisiana- Digest — Master and Servant —Par. 160 (j), 160 (k).
    Article 442 of the Code of Practice provides the manner in which experts may be appointed and if neither party to the suit objected to the examination of these experts on the trial of the case, it is too late to object to a reasonable bill of costs for their testimony after the case has been appealed.
    Appeal from the Parish of Washington. Hon. Prentiss B. Carter, Judge.
    Action by Thomas Marshall Walker against White Woods Product Company.
    There was judgment for plaintiff.
    Defendant appealed.
    Judgment amended and affirmed.
    Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellee.
    Ott & Rich, of Pranklinton, attorneys for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment condemning it to pay compensation to plaintiff in the sum of sixty per cent of twelve dollars per week for a period of three hundred weeks, beginning May 15, 1924, with legal interest on each weekly installment from the date it is due until paid, subject to a credit of one hundrd and fifty-three dollars, and further condemning it to pay the fees of four physicians who testified as experts, which fees are fixed at twenty-five dollars per day for each physician, for two days, or a total of two hundred dollars.

The main facts in the case are not disputed, viz.: that plaintiff’s injury was inflicted while in the employ of defendant, that it consisted of a contused lacerated wound of 'the right wrist, as a result of which the use of his right hand had been impaired. The amount of impairment is estimated by three of the physicians at seventy-five per cent and by the other two at from fifteen to twenty-five per cent. It is not disputed that plaintiff, at the time he was injured, was earning fifteen dollars per week, and it is conceded that his compensation should be fixed .in accordance with Paragraph C of Section 8 of the compensation law, as amended by Act. 43, p. 74, of 1922.

The cited paragraph provides that compensation shall be fixed at “sixty per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks”.

It is apparent from the nature of the injury that plaintiff is not totally disabled from doing any kind of work. He is only incapacitated from doing such work as requires the active use and full strength of the right hand. The fact that demand for compensation is made under Paragraph C of Section 8 is an admission that plaintiff is only partially disabled. The question in the case, then, is the amount of wages which plaintiff is now able to earn since he has been injured. The trial judge gave plaintiff judgment at the rate of sixty per cent of twelve dollars per week and consequently found that plaintiff could now earn three dollars per week or fifty cents per day.

Plaintiff as a witness says that he can hardly do anything; when asked what use he had of his hand with reference to his ability to eat, he evaded a direct answer and said that he could not cut meat or anything like that in his food, and when asked about his ability to dress, said he was just learning how to tie his shoes with one hand, and that he had previously had to have recourse to his little brother to tie his shoes. Both he and his father testified that he had done some plowing on the farm and the father said this kind of work was worth seventy-five cents per day and board.

We believe from the testimony that plaintiff is able to earn, at a conservative estimate, at least one dollar per day, thus making the difference between his former and his present earning ability amount to nine dollars per week, instead of twelve dollars per week.

There is an apparent anomaly in the compensation law, if we correctly have, as conceded by counsel on both sides, gauged the amount of compensation in this case, under Paragraph C of Section 8/ for by that paragraph, where the use of the hand is partly impaired, the employee gets sixty per cent of the difference betwen his wages at the time of the injury and the wages he is thereafter able to earn, during the period of disability not to exceed 300 weeks, and under the sixth clause of Paragraph D of the same section he is only entitled to sixty per cent of his wages for 150 weeks if he loses his hand and is totally deprived of its use. Under Paragraph C the plaintiff is entitled as we find • the facts, to 60 per cent of nine dollars per week for 300 weeks, and if he had completely lost his hand he would be entitled under the sixth clause of the next paragraph only to sixty per cent of fifteen dollars per week for 150 weeks; in other words, the greater loss would entitle the employee to less compensation. If we have correctly construed the law, this inconsistency may only be rectified by the lawmaker, for we have no right or authority to do so.

Defendant and appellant earnestly complains of that part of the decree which condemns it to pay two hundred dollars for expert witnesses. Plaintiff called three physicians to the witness stand and defendant called one, all four" of whom were examined as to their opinion and were used as experts. They attended court for two days and each was allowed a compensation of twenty-five dollars per day. Defendant argues that plaintiff might in the same manner have summoned and examined an unlimited number of experts, and under the ruling made by the trial judge in this case, these proceedings would have become so expensive that it would have been deprived of its right to contest plaintiff’s demand for fear of being cast for an excessive amount of costs. Plaintiff justifies his action by saying that defendant with its plenteous means was in a position to consult and advise with experts of ability and that he, in his very limited financial condition, could only offset defendant’s advantage in consulting and summoning experts by engaging them as witnesses. Of course, neither of these arguments demand any refutation on the part of this court. Article 442 of the Code of Practice provides the manner in which experts may be appointed and if either of the parties in this suit had objected to the examination of these experts and called the trial judge’s attention to the matter and presented to him the question as they have presented it here, he would have exercised the jurisdiction and discretion vested in him by the cited article of the Code of Practice, and the present complaint by defendant would not have been made. Instead of objecting to this opinion evidence at the time it was elicited, both parties examined these physicians and took advantage of them as witnesses. The compensation allowed to them does not appear to us to be excessive and to deprive them of it, after they had earned it, would be a flagrant injustice.

Believing that the decretal part of the judgment in this case is not in consonance with the terms of the statute, and believing further that our learned brother erred in fixing the amount of compensation due to plaintiff, the judgment appealed from will be recast' in accordance with the views herein expressed.

It is therefore ordered that the judgment appealed from be avoided and set aside, that plaintiff have judgment against and recover of defendant compensation at the rate of five 40-100 dollars per week, or sixty per cent of nine dollars per week, beginning May 15, 1924, with legal interest from the date each payment is due until paid, during the period of plaintiff’s disability not to exceed 300 weeks; that defendant be recognized as entitled to a credit of one hundred and fifty-three dollars on the compensation thus allowed to plaintiff; that plaintiff have further judgment against defendant for twenty-one dollars; that defendant be condemned to pay the costs of the District Court, including fifty dollars' to each of the expert witnesses, Dr. E. E. Lafferty, Dr. J. L. Brock, Dr. D. A. Berwick and Dr. P. E. Bacot, and that plaintiff pay costs of this appeal.


source: Caselaw Access Project

author: ODOM, J. REYNOLDS, J.

license: Public Domain

text:
    No. 2605
    Second Circuit
    QUATTLEBAUM v. TEXAS PIPE LINE COMPANY
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 159.
    Where the evidence shows that the plaintiff an injured employee, was permanently totally disabled the court will grant compensation under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 for compensation not beyond four hundred (400) weeks.
    ON REHEARING
    2. Louisiana Digest — Master and Servant —Par. 159, 160 (e).
    If the plaintiff, an injured employee, suing , for compensation under the Workmen’s Compensation Act No. 20 of 1914 is totally disabled at the time of the trial the court will not inquire as to when he will recover, but will grant judg- , ment for compensation not exceeding , four hundred (400) weeks, under Section 8, Subsection 1 (b) of the Act.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F.. Bell, Judge. 1
    Action by Andrew Quattlebaum against Texas Pipe Line Company. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff was employed by the defendant as a laborer on a pipe line in the oil field at a weekly wage of $24.00. On June 30, 1925, while at work on a pipe line, he was struck by lightning and seriously disabled. He says that his right arm was badly twisted and remained in a disabled condition up to the time of the trial, although, he says, there has been considerable improvement. In addition to his right arm being injured by the shock, it seems that his nervous system was considerably impaired, and from the date of the shock up to the trial of the case in November, 1925, he suffered pain in the right arm and in other portions of his body. He testified that he had not been able to do any work of a reasonable character since the date of the accident but that he is not totally disabled from doing work of any kind. He says that he could do light work, or such work as would not require physical exertion.

The testimony is undisputed that from the date of the accident he had done no work. However he says that he and his grandchildren have gone over the country picking up copper wire and other articles of junk and have sold junk to the value of $30.00. This, according to his testimony, is all that he has earned since the date of the accident*

Just how long he had worked for the defendant at the time he was injured is not disclosed by the evidence.

Plaintiff says • that previous to the date on which he went to work for defendant he had been- a labor foreman. He says that such work as he had been engaged in prior to that time required considerable physical exertion, as it sometimes became necessary for him to climb up on houses and other structures in order properly to direct the work, and he says that in his present physical condition he cannot do that work now.

There were two physicians called, each of whom stated that the plaintiff was not, at the time of the trial, able to do any work requiring physical exertion; but stated, however, that, in their opinion, he was not totally disable.d to do work of any kind. They stated that he should be able to do light work, but they did not suggest what kind of work he would probably be able to do.

The testimony of the plaintiff, which is not disputed, is that up to the time of the accident he was in first-class physical condition, and to illustrate that he was, he stated that on the morning of the day of the accident, previous to going to work, he had scratched the top of his head with his right foot.

Plaintiff was 53 years old at the time of the accident, and stated that up to that time he had never had any physical disorder and, so far as he knew, there was absolutely nothing the matter with him physically.

The district judge awarded plaintiff compensation at 65% of the amount of wages he was receiving at the time of the injury, or $15.60 per week, for a period of 300 weeks.

The fact that he awarded plaintiff compensation at 65% of the amount of his wages at the time of the injury, indicated that he found that plaintiff was totally disabled; b'ecaúse for partial disability the statute' provides for compensation at 65% of the' difference between the amount of wages plaintiff was earning at the time of the injury and the amount he was able to earn thereafter.

On the contrary, the fact that he awarded compensation during disability for three hundred weeks indicates that he found that plaintiff was only partially disabled.

We are inclined, however, to the view that the court held that plaintiff is totally disabled to do work of a reasonable character and that his fixing the period over which the compensation should be paid at not exceeding three hundred weeks was probably a clerical error.

The defendant did not appeal from the judgment of the District Court. However it moved in this court to amend the judgment and asked that the suit be dismissed as in case of non-suit.

We cannot say that the court manifestly erred in • holding that plaintiff is totally disabled to do work of a reasonable character, although it is in evidence that he is able to do light work.

But the fact is that he had been unable to find any work that he could do up to the time of the trial.

However, there seems to- be no serious contention on the part of the defendant that the judge erred in fixing the compensation at $15.60 per week.

. Counsel for defendant in brief argue that the testimony shows that plaintiff is only partially disabled, but in the concluding portion of their brief they state as follows:

“As a practical proposition, whether the plaintiff's contention, or that of the defendant, is correct, the district judge probably reached the correct conclusion, inasmuch as the plaintiff was earning substantially nothing at the time of the trial and his recovery is properly, fixed at 65% of his wages at the time of the accident, and inasmuch as the case can be reopened after a period of twelve months if it should develop on the one hand that plaintiff is able to earn something which would reduce the amount _ of his recovery, or on the other hand, if 'it should develop after that time that he will prabably be permanently and totally disabled to do work of a reasonable character.
“We accordingly feel that the judgment of the lower court should be sustained for that reason.”

We take this to mean that defendant concedes that plaintiff is totally disabled to do work of a reasonable character.

That being true, the district judge erred in fixing the period over which compensation should be paid at not exceeding three hundred weeks, for in cases of total disability the compensation to be paid under the statute is during disability, not exceeding four hundred weeks.

There is, therefore, but one thing for this court to do and that is, to amend the judgment so as to provide that plaintiff shall receive compensation during his disability not exceeding four hundred weeks.

Por the reasons assigned; it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to provide that plaintiff shall receive compensation at sixty-five per cent of .the wages he was receiving at the time, he was injured during his disability, not exceeding four hundred weeks; and, • as thus amended, the judgment is affirmed. Defendant to pay all costs.

ON REHEARING

REYNOLDS, J.

A rehearing was granted in this case for the purpose of further considering the question as to whether or not this court could definitely determine that plaintiff, who was totally disabled at the time of the trial, would recover within three hundred weeks.

In Connell vs. Gilliland Oil Co., 2 La. App. 435, we said:

“We must decline to enter into this inquiry. To do so would be to assume the functions of prophets for which we are neither authorized by law nor qualified by nature. If in any case of still continuing total disability we could, from the testimony of medical experts in the record, form any opinion of our own as to how long disability would last, we could not do so in this case which is totally lacking in suchf evidence.”

And we quoted with approval the following from Moore vs. Poet, 99 Kansas 443 (162 Pac. 295):

“The phrase ‘total incapacity for work’ as used in the Workmen’s Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual task of a workman in such a way as to enable him to procure and retain employment is ordinarily rated as totally incapacitated.”

In Million vs. W. K. Henderson Iron Works & Supply Co., 2 La. App. 539, we said:

“The evidence in the record convinces us that the plaintiff was injured as he says he was, and according due weight to the testimony of the eminent physicians who testified in the case, we are also convinced that the injury sustained by plaintiff, either as a direct cause or by aggravating a malady that lay dormant in him prior to the injury, has produced total disability to do work of any reasonable character, that may continue for a short time or possibly indefinitely.”

In King vs. McClanahan, 3 La. App. 117, we said:

“The evidence satisfied the' district judge that the injury produced total disability to do work of any reasonable character and that this condition of total disability still existed • at the time of the trial on May 12, 1925, nearly ten months after the accident. Under the evidence we cannot say he manifestly erred. Doctor Pirkle expressed the opinion that plaintiff with proper treatment would have a 75% recovery in a year. Evidently adopting this view the district judge allowed compensation for total disability for 96 weeks (evidently 44 up to the time of the trial and 52 therafter) and compensation for partial disability during such disability, not exceeding 300 weeks. We think, though, that where, as in this case, the total disability has lasted so long and where there is no reason to expect it will end in a year, the court should not indulge in prophecy and fix a time in advance when compensation shall be reduced from the basis of total to that of partial disability. The matter, in our opinion, should be left to await the event. If plaintiff does recover partial ability, as Doctor Pirkle expects, the defendants may avail themselves of the right of review granted by the statute.”

In Price vs. Gilliland Oil Co., 3 La. App. 175, we said:

“Where a condition of total disability at the time of the trial is shown, which is likely to continue for a considerable length of time, we think the purposés of justice demand that the matter be left for time to determine. In case the total disability does cease, the defendant can avail itself of the right granted by the statute to review the judgment.”

In Chandler vs. Oil Fields Gas Co., 2 La. App. 778, we said:

“We 'are constrained, though, to differ from our learned brother of the lower court and to hold that inasmuch as the injury has resulted in total disability compensation should be awarded on that basis; as the disability had not ceased at the time of the trial and as it would be purely speculative on our part to indulge in any opinion as to when, if ever, it will cease, and as after a year from the time the judgment becomes operative the defendant will have the right to review the judgment, we think it proper to apply clause (b) of subsection 1 of section 8 quoted above.”

And in Hutchinson vs. La. Cent. Lbr. Co., 3 La. App. 413, we said:

“We have decided in several cases that where the condition of the injured workman at the time of the trial was one of total disability, which was likely to last a long time, we would not venture on prediction as to when his condition would change to one of only partial disability but would leave this to be determined by the event.
“We are satisfied that this view of the law is correct. It cannot injure the • employer because if restoration to ability to work does take place the employer can obtain modification after a year by availing himself of the right of review granted by the statute. If, though, we should indulge in prophecy and determine that the plaintiff was going 'to recover, wholly or partially, within a certain time in the future, and the prophecy should not come true, the effect would be to cut off plaintiff’s right to a 100 weeks’ compensation even though the disability should continue beyond three hundred weeks.”

There is no evidence in the record tending to prove that plaintiff’s disability will either cease altogether or become only partial within any fixed space of time.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered by us in this case be now reinstated and made the judgment of-the court. ■


author: ODOM, J.

text:
    No. 2041
    Second Circuit
    STOCKBRIDGE v. MARTIN
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 124, 330.
    A village which has no municipal assessment of the property to be sold at tax sale has no right to sell the property for taxes as there were no municipal taxes due and the sale thus made is null.
    2. Louisiana Digest — Taxation—Par. 377.
    Where there has been no legal tax sale of property under the constitution of Louisiana the prescription of three years against attacks on such sales has no application.
    3. Louisiana Digest — Taxation—Par. 314, 315, 322.
    The redemption of forfeited property sold at tax sale inures to the benefit of the owner or other person interested personally as heir, legatee, creditor or otherwise, but does not benefit the purchaser of a null and void tax sale.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by M. C. Stockbridge against John W. Martin. There was judgment for defendant and plaintiff appealed.

      Judgment reversed and tax sale declared null.
    Barksdale, Clark and Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, Scheen and Blanchard, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On November 12, 1907, John D. Wilkinson, S. L. Herold and John McW. Ford, as trustees, sold to Justin P. O’Neal lot 5 of block 7 of the Fairfield Heights subdivision in the parish of Caddo, state of Louisiana, as per map recorded in conveyance book 50 page 47 of the records of Caddo parish.

On May 27, 1909, one year, six months and fifteen days later, the same parties, as trustees' for the same individuals, sold the identical property to M. C. Stock-bridge, the plaintiff herein.

Both deeds are notarial and regular in form, and both were recorded in the conveyance records of Caddo parish, the one to O’Neal on November 12, 1907, and the one to Stockbridge, the plaintiff herein, on May 27, 1909.

Subsequent to the date on which Stock-bridge acquired the property, the village of South Highlands was incorporated under Act No. 136 of 1898 and the property in question was included in that village.

According to the rolls filed in evidence, this property was assessed on the assessment rolls of the parish of Caddo to M. C. Stockbridge for the years 1918, 1919, 1920 and 1921 and he paid the taxes thereon.

If the property was ever assessed to him on the assessment rolls for the village of South Highlands for the taxes of that village the record fails to show it.

Nor is it shown that the same property was ever assessed on the parish rolls to Justin P. O’Neal, but in the year 1918 the village of South Highlands assessed the said property on its rolls for that year in the name of Justin P. O’Neal who, as stated, purchased it on November 12, 1907, and held it under recorded title.

O’Neal having failed to pay the village taxes assessed to him on the rolls of that year, the said property was advertised for sale for the delinquent taxes assessed to him for the year 1918, and there being no' bidder for the same the property was adjudicated to the village of South Highlands by W. T. Simpson, treasurer and tax collector, on August 9, 1919, and the proces verbal of the adjudication was duly recorded in the conveyance records of Caddo parish on October 6, 1919.

The proces verbal recites that the property was duly advertised in a newspaper published in Caddo parish and was sold at the front door of the municipal building in the village of South Highlands.

On July 30, 1920, W. T. Simpson, treasurer and tax collector for the village of South Highlands, sold the said property to John W. Martin, the defendant herein, for the taxes of 1919.

The tax deed was recorded in. conveyance book 123 at page 705 of the. records of Caddo parish on September 18, 1920.

On the day the property was adjudicated to Martin there was issued to him a certificate of redemption by W. T. Simpson, tax collector and treasurer of the village of South Highlands, reciting that whereas the said property was adjudicated to the village on August 9, 1919, for the due and unpaid taxes of Justin O’Neal for the year 1918 amounting to $10.10, and whereas Martin had paid the amount of said' village taxes, therefore—

“I, W. T. Simpson,: tax .collector and treasurer of the village of South Highlands, Louisiana, do certify that the aforesaid lot 5 of' block -7 of the Fairfield Heights subdivision in the village of South Highlands, Louisiana, has been redeemed by the said John W. Martin.”,

This certificate of redemption was recorded in conveyance book 154 at page 489 of the records of Caddo parish on September 18, 1920.

On March 8, 1922, Martin brought suit under Act 101 of 1898 to have his tax deed dated July 30, 1920, recorded in conveyance book 123 at page 705 confirmed and his tax title quieted.

This suit was brought against Justin O’Neal, the former owner, who, being an absentee, was represented in the proceeding by a curator ad hoc.

On December 9, 1922, judgment was-rendered confirming Martin’s tax title and he was ordered placed in possession of the property, all as the act provides.

Subsequently Martin sold the property to Mrs. Wilkinson, who was made a party to the suit.

Plaintiff brought this suit to annul the said tax sale and asked to have it can-celled from the records, setting up various irregularities and especially alleging that the tax deed was made in violation of law .as shown by said tax deed itself.

Defendant sets up in answer that said tax deed was regular and conveyed a valid title to him, and he plead prescription in bar of plaintiff’s right, and especially set up that plaintiff has no interest to question the validity of the said tax sale.

OPINION

The defendant’s title, if he has any, rests solely upon the pretended tax sale dated July 30, 1920, whereby W. T. Simpson, tax collector and treasurer of the village of South Highlands conveyed to him the property in dispute.

If that transfer be in fact a tax sale as contemplated by law, then other issues injected into the suit would have to be passed upon; but if as a matter of law that alleged and pretended sale is in fact and in law no sale at all, the other issues raised need not be discussed.

It is that deed which is attacked and which the plaintiff asks the court to cancel.

By reference to that deed, which is in evidence, we note that W. T.. Simpson, tax collector for the village of South Highlands, did, on July 30, 1920—

«* * * sell, convey, and deliver unto John W. Martin the following described property assessed to Justin O’Neal upon the tableau of taxes for said parish of Caddo for the year 1919, to-wit: Lot five (5) of Block seven (7) of the Fairfields Heights subdivision in the village of South Highlands, Louisiana.”

The deed recites that the property was advertised in the Shreveport Caucasian, a newspaper published in Caddo parish, for thirty full days, which advertisement gave notice that the sale would take place at the front door of the Civil District Courthouse in the parish of Caddo on the 24th day of July, 1920; and it further shows that the sale took place at said courthouse door.

In passing, it may be said that the courthouse at which the property was sold is not located within the corporate limits of the village of South Highlands.

The proces verbal of the sale is signed “William T. Simpson, treasurer and tax collector of the village of South Highlands, Louisiana”.

Accepting, as we' must, the recitals of the tax deed .as true, we find that the property sold to John W. Martin, the defendant, by the tax collector of the village of South Highlands, was sold for taxes assessed to Justin O’Neal upon the tableau of taxes for the parish of Caddo for the year 1919.

This tax deed does not show, nor do we find in the record otherwise, that the said property was assessed by the officers of the village of South Highlands to O’Neal for the taxes due said village for the year 1919.

Manifestly the tax collector for the municipality of South Highlands had no right to sell property situated therein for any taxes except those due that municipality, and without a municipal assessment there were no municipal taxes due. There can be no sale of property for taxes not assessed.

In the case of Guillory vs. Elms, 126 La. 560, 52 South. 767, the court said:q

“It is of the essence of such a sale that there should have been an assessement.”

And in that ease it was specifically held that—

“Where there has been no sale Article 233 of the Constitution establishing the prescription of three years against attacks on sales has no application.”

Shelly vs. Friedrichs, 117 La. 679, 42 South. 218.

The tax collector of the village of South Highlands had no warrant for making the sale to Martin and the deed, therefore, which he made to him was and is an absolute nullity. •

Morton vs. Xeter Realty, Ltd., 129 La. 775, 56 South. 883.

37 Cyc. 122.

As already stated, this property was forfeited to the municipality for the taxes due by O’Neal for the year 1918 and on the day that Martin’s deed was recorded he redeemed it from the municipality; but that redemption conferred no title upon him as he was not the owner thereof and had no interest in the property.

The redemption of forfeited property inures to the benefit of the owner or other person interested personally as heir, legatee, creditor or otherwise.

Section 62 of Act 170 of 1898.

Neal vs. Pire, 142 La. 737, 77 South. 582.

The sale is attacked on the further ground that the property was forfeited to the village of South Highlands on August 19, 1919, for taxes due thereon by O’Neal for the year 1918 and that the sale to Martin was made on July 30, 1920, less than one year after the forfeiture and before the redemptive period had expired.

Section 61 of Act 170 of 1898 as amended by Act 315 of 1910 provides that if property is adjudicated to the state the same shall be continued to be assessed in the name of the person to whom it belonged at the date of - the sale until the lapse of one year but the tax collector shall not sell the same under the assessment and no taxes shall be collected thereon while the property remains in a condition of forfeiture.

And Act 228 of 1910 provides that during the period fixed by Article 233 of the Constitution for the redemption of property bid in for and adjudicated to the state for unpaid taxes there shall be no sale of the property.

Section 2 of the latter act provides the method to be pursued in order for the state to sell property adjudicated to it for the non-payment of taxes. (The same rules apply to municipalities; see Section 35 of Act 236 of 1898 under which the village of South Highlands was incorporated.)

Those formalities were not complied with; but, on the contrary, the tax collector for said village proceeded to sell the property as though it had never been forfeited and sold it for taxes alleged to have been assessed to O’Neal for the year 1919 when, as a matter of fact, the property had not been assessed to him for that year at all.

The tax collector of the village of South Highlands therefore proceeded without any warrant whatever for making the sale as there was no assessment to O’Neal, and, more than that, he proceeded in contravention of a prohibitory law.

There was, therefore, no sale to Martin. There being no sale of the property, it follows that the provision of the Constitution, Article 233, to the effect that “no sale of property for taxes shall be set aside for any cause except on proof of dual assessment or previous payment of taxes unless the proceeding to annul is instituted within six months, etc.,” do not apply.

As heretofore stated, the tax deed to Martin recites that the property was sold for the taxes of O’Neal assessed on the tax roll for the parish of Caddo, for the year 1919.

If it be contended that the tax deed made by said tax collector, even though the sale was made for taxes which he had no authority- and no jurisdiction to collect, could not be set aside after six months after notice, etc., under the Constitution, even then the tax deed is a nullity for the reason that the record shows that the property was assessed to Stockbridge, the plaintiff, on the parish and state rolls for the year 1919 and that he paid the taxes on February 19, 1920, several months prior to the sale.

It is next contended by defendant’s counsel that Stockbridge has no standing in court to attack and have cancelled the tax deed to Martin because the record shows that he has no title to the property.

It is true that Stockbridge purchased the property subsequent to the date on which it was sold to O’Neal; but we think that the fact that he purchased the property and paid a cash consideration therefor recorded his deed in the conveyance records and paid the taxes assessed to him on the parish and state rolls and paid the taxes thereon for a number of years gives him a real interest in the property sufficient to warrant his suit to have his title, such as he may have, freed from the cloud cast thereon by the recordation of an illegal tax deed.

He does not ask to be decreed the owner of the property but only to have said tax deed cancelled.

With reference to the proceedings which the defendant Martin instituted under Act 101 of 1898 to have his tax title confirmed, it may be said that inasmuch as there was no sale of the property and Martin acquired no title under his purported tax deed, such proceedings can have no effect whatsoever upon Stockbridge or- any other person who may claim an interest in the property.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that the tax sale made by the tax collector of the village of South Highlands to John W. Martin on July 30, 1920, purporting to convey to him lot 5 of block 7 of the Fairfields Heights subdivision in the village of South Highlands, Louisiana, be annulled and the deed evidencing the same cancelled and erased from the records of the parish of Caddo, Louisiana. Defendant to pay all costs.

WEBB, J. Dissents.


author: HOUTON, J.

text:
    No. -
    First Circuit
    BOUDREAUX v. LEDET
    (May 4, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 1,2.
    One who builds a fire out of trash and rubbish on his own property and negligently leaves it without a guard is responsible to others- for the damage it causes them.
    2. Louisiana Digest — Negligence—Par. 22.
    One who leaves wood stacked in swamps is not contributorily negligent because it happens to be in a place where it can be burned by a possible fire started on nearby land owned by others.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Lafourche. Hon. R. B. Butler, Judge.
    Action by Louis Boudreaux against Louis Ledet.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. L. Knobloch, of Thibodaux, attorney for plaintiff, appellee.
    Howell, Wortham & Bourg, of Thibodaux, attorneys for defendant, appellant.
   HOUTON, J.

Forty cords of wood belonging to plaintiff were destroyed by fire on February 11, 1925, and seven dollars were expended by him for labor to extinguish it. He sues defendant for the value of the cord-wood and the amount spent to suppress the fire, claiming that it was negligently lighted by defendant and was carelessly permitted by defendant to spread to his property with the result stated, and for which he demands damages for $288.50, including attorney’s fees.

Judgment was rendered in his favor for $168.20, from which defendant appeals.

The evidence shows that defendant had lighted or started a fire on his own premises to clear his field of trash and rubbish. This he had a right to do, and he is not therefore charged with negligence as to the origin of the fire. The charge is that he negligently permitted the fire to spread and to be communicated to the cord-wood of the plaintiff which was destroyed by the fire.

The lands of both plaintiff and defendant are located a short distance from each other, fronting on Bayou Lafourche and running in the rear about forty arpents. It is admitted that a narrow tract of about half an arpent wide belonging to Braud is located between these two properties.

Charles Guidry, Jr., witness for .plaintiff, says he saw defendant working around his trash piles on his property at about 11 o’clock of the day of the fire. Plaintiff says he saw when defendant set fire to these trash piles at about that hour. In this, plaintiff is corroborated by the testimony of Charles Guidry, Sr. It appears from the testimony of two or three witnesses that upon plaintiff demanding payment from defendant for the damages he had suffered, defendant said he had started the fire on his place, and damned the rest. It was also shown that the charred remains of burned trash, grass or rubbish, showed that the fire had cut a path across the strip of land belonging to Braud, and could be traced to the premises of the plaintiff which were located west therefrom, and from which direction a strong wind was blowing at the time. The defendant denies that he set the fire on his property. Some of his witnesses, and particularly his father, support him in this statement. Their testimony is unsatisfactory and not at all persuasive. The preponderance of the evidence clearly shows that the fire was started by plaintiff, and the corroborating facts and circumstances show with legal certainty that he was responsible for its origin. The important question, however, is as to whether he carelessly or negligently allowed this fire to escape beyond the boundaries of his land and to spread from there to the cord-wood of the plaintiff.

The proof shows a high wind was blowing at the time from the west, from the property of defendant and in the direction of plaintiff’s land where the wood was corded. The weather was extremely dry, in fact the country was experiencing a drought at that time which was one of the most severe ever experiencd before. No doubt, the ground was parched, and the trash, dry leaves,' stumps and rubbish on the surface of. the fields and swamps were in a very inflammable and combustible condition. Defendant was doubtless aware of that. The proof is that after he had set the fire to the pile of trash in the rear of his field he left for the front part of his farm without placing anyone to watch over or guard the fire he had lit in the rear. He returned there about an hour after, but it was then too late as the fire had developed into a conflagration that could not be stopped or suppressed. Defendant knew or must be held to have known that, as a natural and probable consequence of his act, the fire, under the existing conditions, would have passed beyond the limits of his property, unless controlled or suppressed in time. He made no effort to guard against such consequences, and did not exercise ordinary care and was therefore careless and negligent. In L. R. A., Vol. 8, N. S., p 1963, in the case of Mahaffey vs. Rumbarger Lumber Company, in dealing with a question similar to the one under discussion, the court, in speaking of ordinary care, said:

“What constitutes ordinary care and prudence depends upon the circumstances of the particular case. The greater the danger of communicating fire to the property of others, the more precautions and the greater vigilance will be necessary to constitute such care.”

In Taylor vs. V. S. & P. Ry. Co., 123 La. 768, 49 South. 518, not a case involving the destruction of property by fire, but where an accident had occurred at a railroad crossing, the court took occasion to say that, “as danger increases, so should there be increased precaution”. Considering all the elements of danger which were present when this fire was set by plaintiff in the instant case, ordinary care under the circumstances demanded, at least, that he should have placed someone in charge when he left the rear of his farm where he had ignited the piles of trash or should have exercised some vigilance or provided for some precautionary measures to either control the fire or to suppress it in case it proceeded to invade the fields or premises of his neighbors. He did not do that and must therefore be held for the damages inflicted on plaintiff, unless he can find refuge in his contention that he should be exonerated because of contributory negligence on the part of the plaintiff. The proof shows that after plaintiff had seen the fire set by defendant in the forenoon, he left his home and went to the town of Thibodaux, a few miles away, came back in the afternoon, but the fire had then spread to his property, and it was too late to stop it. This fire had been started by defendant on his own property, and with which plaintiff had no right to interfere. He had a perfect right to expect that defendant would keep a watchful eye over the fire or would adopt means for its control or suppression. He could not be expected to foresee that defendant would fail to exercise ordinary care in handling the situation and that the fire would be negligently permitted to cross over the property of Braud and to then invade his own and to ignite his cord-wood that had been stacked in the swamp. It is impossible from such a state of facts to reach the conclusion that because of plaintiff absenting himself temporarily he was guilty of contributory negligence towards the defendant.

Counsel makes a spirited and vigorous effort to support his contention on this proposition, and cites with confidence on this subject, Haas vs. Director General of Railroads, 150 La. 599, 91 South. 58. In that case a gin house and bales of cotton were destroyed by fire caused by cinders escaping from a locomotive. The fire took in some loose lint cotton which the owner had spread on a platform alongside the railroad track. The court found that the railroad company was at fault in setting the fire, but exonerated it from liability, finding that plaintiff had been guilty of contributory negligence. The court said, in referring to the lint cotton, that the “spreading of this inflammable material so near the railroad when a locomotive might pass at any time and drop a live cinder upon it was highly improvident”. For that reason plaintiff was found to have contributed to the injury, and was denied •recovery. Counsel for defendant contends that plaintiff is likewise responsible for contributory negligence in this case because he had stacked his cord-wood in the swamps, and knew or should have known that tie-makers, hunters and the farmers in clearing their fields might set fire to brush or rubbish which, fanned by strong winds, could' spread to the spot where the wood had been corded. The cases are not at all similar. In the Haas case, the owner placed the lint cotton, a well-known very inflammable material, next to a railroad track where he knew locomotives were passing and had to pass at every moment. He knew that cinders will, at times, escape from the best and most modern spark arresters, and, having placed the lint in such close proximity to the track, such exposure unquestionably constituted contributory negligence. There is nothing of the sort here. The wood was corded in the swamps, a place where wood is usually stacked for future sale or use. There was no exposure here of the wood to ignition by fire as was the case of the lint cotton that had been exposed to the sparks of the engine which might have ignited it at any time. There was no such menace in the instant case to the property of the plaintiff from the possible fires which counsel says might have been started somewhere in the vicinity by tiemakers, hunters and field hands. Such fires might have been possible or probable and by a further probability might have been expected to extend to the swamps, but plaintiff cannot be held for contributory negligence because he had stacked his lot of wood where it was destroyed and where there might have been a probability or possibility of its being consumed by fires originating in the manner contended for bjr counsel for defendant. There i's no merit in this contention.

The court properly rendered judgment for plaintiff.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    JONES v. BOREL
    (May 4, 1926, Opinion and Decree)
    (June 5, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 118, 123.
    One is at fault who refuses to accept a shipment of stoves because parts of a few of them were broken in transit. If he refuses to accept them, although the shipper offers to replace the broken parts, he will be liable to the shipper for the expense of storage and re-shipping the stoves.
    Appeal from the District Court, Parish of Lafayette, Hon. W. W. Bailey, Judge.
    Action by J. Wilton Jones against J. G. Borel. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    P. X. Mouton, of Lafayette, attorney for. plaintiff, appellee.
    Mouton and DeBaillon, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

During the month of April, 1923, J. G. Borel placed an order with J. Wilton Jones for 23 stoves to be shipped to Borel at Carenero via Opelousas on or about July 1, 1923. When the shipment arrived at Carenero, it was found that four of the stoves had been broken in transit; in fact some broken parts were noticed at Opelousas when they arrived there from the factory. Defendant declined to receive the shipment at Carenero on account of the four stoves, parts of which were< broken. Plaintiff’s agent called on defendant as soon as he could with reference to the matter and offered to have shipped from the factory to defendant freight prepaid, new parts, to replace the broken parts and to install them on the stoves, all without cost to defendant. Defendant still refused the shipment.

As defendant would not receive the shipment; to save the accumulating storage; plaintiff paid the storage due the railroad company, amounting to $65.63, took the stoves out of the depot and shipped them to a party at Opelousas. In doing this he was compelled to pay the freight first from Opelousas to Carenero and in the reshipment from Carenero back to Opelousas amounting to $31.40. He also paid $3.00 drayage making a total of $100.03.

This suit is to recover from the defendant, the sum thus expended. Defendant resists plaintiff’s . demand urging that he was not obliged to accept broken stoves, when he was entitled to receive stoves not broken, etc. The district judge rendered judgment in favor of the plaintiff for the storage and freight amounting to $97.03 but did not allow the drayage. Defendant appealed and in plaintiff’s brief he merely requests that the judgment appealed from be affirmed.

We understand from the evidence that the broken parts of the four stoves, did not ruin the. four stoves and that the others were all uninjured. That the broken parts could have been replaced with new parts and the stoves made as good as .they were when shipped from the factory. The plaintiff offered to supply and install these parts without cost to the defendant. If the stoves had been broken in such a way that the broken' parts could not be supplied and the stoves as good and salable as when shipped from the factory, then defendant could not be required to take the broken stoves; but we do not understand that any of the stoves were broken that badly.

It was not plaintiff’s fault that some of the stoves were broken in transit from the factory. Defendant should have received the stoves of which no parts were broken at least, and looked, to the railroad as to those that were broken. Plaintiff could not have required defendant to pay for the stoves with broken parts, until the broken stoves or parts had been made as good as new; but defendant refused the entire shipment.

The cases Alford vs. Tiblier, 1 McGloin 151, and Moses Lobe & Co. vs. Reinache & Co., 2 McGloin 82, cited by defendant, though similar in some respects, yet they did not in fact rest on a situation like the present case. A stove the broken parts of which could have been supplied and installed. and the stove made as good as when it was shipped from the factory is not like a work animal such as described in the case first cited which does not come up to the size and strength required by a purchaser; nor like a garment, such as described in the case last cited, which can not be re-cut, altered and made to satisfy and fit; the cloth may not permit the change. In this case we think the defendant should reimburse the plaintiff on account of the expense to which plaintiff had to undergo on account of defendant’s fault. Plaintiff properly paid the storage and reshipped the stoves to another party when defendant would not receive them.

The judgment appealed from is correct. Judgment affirmed.

Defendant and appellant to pay the cost in both courts.


author: LECHE, J.

text:
    No. -
    First Circuit
    TRIGGS v. GEORGE
    (June 5, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 76, 77, 80, 82.
    Under Code of Practice Art. 172 and Act 157 of 1912 as amended, the plaintiff who alleges that his right arm was broken in two places will, in the interest of justice, on tbe trial of the case, be allowed to amend his petition and prove that his left arm was broken.
    Appeal from the Parish of Lafourche, Hon. R. D. Butler, Judge.
    Action by Conley Triggs against Moses George. There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    Rowland B. Howell, of Thibodaux, attorney for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendant, appellant.
   LECHE, J.

The main and we may say the only error complained of by defendant and appellant on this appeal, is that the trial judge erroneously permitted proof to be adduced of a fact said not to have been , alleged in plaintiff’s petition.

The demand of plaintiff is for damages alleged to have been caused by an assault and battery committed by the defendant upon plaintiff. The petition alleges that Moses George, ¡the defendant, without cause or provocation, maliciously assaulted petitioner “by violently beating and striking him on his right arm with a piece of wood or heavy stick, resulting in the breaking of his right arm in two places, one below the elbow and above the wrist and the other just at the wrist”.

On the trial of the case, plaintiff, having testified that defendant struck him on the arm, was asked on which arm he was struck, and he answered on the left arm. Defendant immediately objected on the ground that the injury was specifically charged to have been inflicted on the right arm. Plaintiff then moved to amend his petition so as to conform to the real fact as testified by plaintiff. Defendant again objected to an amendment as making a material change in the petition and as coming too late. The court however permitted the allegation to be amended and overruled defendant’s objection.

It is elementary that in an action at law, plaintiff’s petition must contain a clear and concise statement of the object of the demand. C. P., Art. 172. Under Act No. 157 of 1912, p. 225, amended in 1914, p. 612, and again amended in 1924, p. 443, plaintiff must state his cause of action articulately, stating each material fact in a separate paragraph. The defendant on his part must in his answer, admit or deny specifically each material allegation of fact contained in plaintiff’s petition. The language hereinabove quoted in our statement of the case, is contained in Article 3 of plaintiff's petition and defendant’s answer denies generally all the allegations of Article 3 of plaintiff’s petition.

It is also an elementary rule of practice, although there is no statutory law to that effect, that a party may only prove such material facts as may have been alleged by him as a basis for his demand. That rule is founded upon reason and to promote justice. The purpose of a written declaration or petition in which must be stated or alleged all the material facts upon which a litigant relies to establish his demand, is to warn the opposite party so that the latter may, on the trial of the case, be prepared to produce and offer evidence to contradict such allegations or show the non-existence of such alleged facts. Were it not for this well recognized rule, a plaintiff might offer proof which would take defendant by surprise, without opportunity to offer counter proof and unprepared to offer evidence in rebuttal.

' The complaint which defendant so earnestly urges on -this appeal, is that the trial judge has contravened the above well recognized rule of practice.

When the defendant first objected to the plaintiff’s proving injury to his left arm, instead of, his right arm as alleged,. and before the trial judge could rule on this objection, plaintiff moved to amend and the ruling complained of on this appeal, is really that by which the amendment was permitted to be made. Of course this ruling, in effect, was to permit plaintiff to prove a fact not alleged in his petition. The question then is narrowed down to whether the amendment was one of substance.

The general rule is that a trial judge may exercise a broad discretion in the interest of justice, as to the timeliness of amendments. Young vs. Guess & Swanson, 115 La. 234, 38 South. 975; Schlater vs. LeBlanc, 121 La. 923, 46 South. 921. The tendency of modern practice is to yield as little as possible to technicalities and to afford aid as far as practicable to the filing of amendments which work no injury and prevent useless delays and costs. Davis vs. Arkansas Southern R. Co., 117 La. 320, 41 South. 587. The plaintiff may with leave of court, amend his petition after issue is joined, provided the amendment does not assert a demand different from the relief first sought, or change the substance of the original demand. Coleman vs. Continental Bank & Trust Co., 139 La. 1078, 72 South. 742.

It is obvious that the amendment permitted to be made in this case does not in the least change the substance of the original demand. It is also apparent that it was permitted to be made in the interest of justice. The time at which it was made, did not in fact work any injury to the defendant, for defendant does not claim that he was deprived of the right to procure evidence to show the non-existence of the fact alleged in the amendment, for if he had at the time, complained that it took him by surprise and that he wished time to summon witnesses to contradict the amended allegation, the trial judge might have acceded to his request. His objection, as shown by the note of evidence, is merely that the ■ “amendment comes too Mte”. No reason is given by him either in the wording of the objection or in his argument why the amendment came too late.

We believe that the trial judge has properly exercised the discretion vested in him by law and that his ruling is correct.

The judgment appealed from is therefore affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    HARGROVE v. O’BANION
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 729.
    Where there was no hearing of the real contest between the parties litigants in the District Court, the appellate court, having no appellate jurisdiction, cannot pass upon the questions raised ' in the pleadings, but will remand the case for a trial oh the merits.
    Appeal from the Parish of Evangeline, Hon. B. H. Pavy, Judge.
    Action by W. R. Hargrove, Jr., against J. D. O’Banion. There was a third opposition signed by Ed. L. Clark who obtained an injunction which was perpetuated by the District Court. Plaintiff appealed.
    Injunction dissolved and case remanded to the District Court for trial on the merits.
    Mark C. Pickerel, of Oakdale, attorney for plaintiff, appellant.
    S. W. Gardner, of Ville Platte, attorney for defendant, appellee.
   MOUTON, J.

January 31, 1921, J. D. O’Banion executed a special mortgáge with the act de non alienando in favor of M. V. Hargrove on the following decribed property to secure the payment of $400.00 represented by four promissory notes, viz: All of the NE% of the NWt4 and the SE%- of the NW?¿ of section 22 containing .80 acres of land. This mortgage was recorded on February 7, 1921. On March 26, 1921, O’Banion gave a mortgage on 40 acres of the land above described, that is on the NE% of the NWi/i thereof in favor of Ed. L. Clark upon which some payments were subsequently made. This mortgage in favor of Clark was recorded on March 26, 1921. It therefore bears on the one-half of the property as a mortgage second in rank to that granted to M. V. Hargrove which covered the whole tract of 80 acres. The four notes executed by O’Banion in favor of M. V. Hargrove were each for one hundred dollars,' and were made payable to his order. They bear the blank endorsement of M. V. Hargrove, original payee, and are sued upon in this case by W. R. Hargrove who alleges that he acquired them for valuable consideration and before maturity. He first obtained the issuance of executory proceedings against the whole tract of 80 acres which were covered by his mortgage as heretofore stated. He thereafter cancelled his mortgage on 40 acres of the tract, released that portion of the land from the seizure, which was confined and restricted to the 40 acres upon which rested the second mortgage of Clark who filed a third opposition in this suit.

In his third opposition Clark contends that the mortgage held by plaintiff is indivisible and that he' should be compelled to sell the 80 acres for the satisfaction of his mortgage; that he had no right to release 40 acres of the land from the operation of his mortgage and seizure, and restrict the sale to the other 40 acres on which Clark had a- second mortgage. The release made by plaintiff was illegal and null, he alleges, and that it would cause him irreparable injury if the sale would be restricted to the 40 acres upon which he has a mortgage. Upon these allegations which embody the substance of his complaint, Clark obtained the issuance of an injunction which was perpetuated by the District Court.

Plaintiff appeals.

The lower court did not pass on the issues thus tendered in the third opposition. The court said that its attention had been directed to the fact that the notes had been transferred by endorsement by M. V. Hargrove to the plaintiff, and that there was no authentic evidence of the genuineness of the transferror’s signature. So finding, the court held that the executory process was imprudently issued by the clerk, and. therefore recalled the order for lack of authentic evidence. to support the transfer nf the notes.

The general rule is that an order of seizure and sale can not be granted by the court without authentic evidence of the assignment of the note or mortgage upon which it issues. Tufts, Fermor & Co. vs. Beard, 9 La. Ann. 310; Commercial Bank of N. O. vs. Polard, 6 La. Ann. 477.

In the Kenner vs. Their Creditors, 8 Mar. (N. S.) 54, the court in recognizing this principle, said that the blank endorsement of a note was a matter in pais, if unsupported by authentic evidence; that the possession of the note was prima facie evidence of property, but that the promissor had the right, however, of disputing the fairness or legality of its acquisition by the transferee. The court found that this doctrine was grounded in justice and equity. In this case, O’Banion, defendant in the executory proceedings, made no appearance, and raised no question affecting the honesty or fairness in the transfer of the notes he executed in favor of M. V. Hargrove, the transferor. He, no doubt, could have raised such objections and could have attacked the legality of the order of seizure and sale for lack of authentic evidence to show the genuineness of the endorsement. Here, although Clark, third opponent, urged no complaint on that issue, the court, upon its own motion, maintained the injunction on that ground.

In one of our earliest cases, Kenner vs. Their Creditors, 8 Mar. (N. S.) 54, a third party, by way of third opposition intervened in attachment proceedings claiming not only that the property seized was his, but attempted also to act the part of the defendant, by undertaking to show that the attachment ought not to have been issued, and that it had been imperfectly executed. The court said the claimant had no right to show any irregularity in the suit in which he was allowed to intervene, and that whether the plaintiff, the court and the sheriff had been acting legally or not, was none of his business. This doctrine has been repeatedly affirmed, notably, in 105 - where the language used in the case above cited has been incorporated in that decision. In the instant case whether the court or the plaintiff acted illegally in obtaining or issuing the order of seizure and sale, Clark, intervenor, can not complain, must take the case as he finds it, and submit his contention for adjudication.

The lower court failed to pass on the merits of the contentions presented by Clark for decision, and based its decision on a side issue not urged in the pleadings.

There was no hearing of the real contest or controversy between the parties litigant so as to settle the differences between them. This being the situation, we would have to exercise original jurisdiction to pass' on the issues raised by the pleadings which we can not do as we are vested with appellate jurisdiction only. The injunction must be dissolved but the ease must be remanded for a trial on the merits.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; that the injunction be dissolved and that this case be and is hereby remanded to the lower court to be tried on the merits, and to be proceeded with according to law. Appellee to pay cost of appeal, those of the lower court to abide the final decision of this case.

ELLIOTT, J. Dissents for reasons given below:

W. R. Hargrove, Jr., held the notes on which he instituted executory process under and by virtue of an endorsement from M.-- V. Hargrove - and the cleric of court signed the order granting executory process without authentic evidence showing that M. V. Hargrove had endorsed the notes to W. R. Hargrove, Jr. The trial judge noticed it and rejected the demand of W. R. Hargrove on that account. He was right and his ruling should be affirmed. The lack of authentic evidence was a lack of power and authority to grant the order. It could not be supplied by consent. C. P., Art. 390; Brown vs. Brown, 9 La. Ann. 310, etc.


text:
    No. -
    First Circuit
    BIAS v. BUCK
    (May 4, 1926, Opinion and Decree)

      (Sylabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159, 160 (j).
    Where the evidence in a workmen’s compensation case clearly shows that the injured employee lost the sight of an eye because of an accident in the course of his employment he will be given compensation under Section 8, Subsection 1 (d) of Act 20 of 1914.
    (The recent amendment of Sec. 8 of Act 20 of 1914 is Act 216 of 1924.)
    Appeal from the Parish of Calcasieu, Hon. Jerry Cline, Judge.
    Action by O’Neil Bias against H. 'B. Buck. There was judgment- for plaintiff and defendant appealed. ■ ;
    Judgment affirmed.
    Cline and Plauche, of Lake Charles, attorneys for plaintiff, appellee.
    Harry Sellers, attorney for defendant, appellant.
   MOUTON, J.

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

Plaintiff claims that on May 23, 1923, while in the service of defendant’s brick manufacturing company he suffered an injury to his left eye which completely destroyed his vision therein, and in fact caused the total loss of that eye as an organ of sight. The defense is substantially that if plaintiff lost the sight of his left eye that it was due to an atrophy of the optic nerve which had been of long standing and was not the result of any accident, while plaintiff was in the employ of defendant. The district judge held that it was, and rendered judgment for plaintiff for the amount claimed.

Defendant appeals.

In describing the way in which the accident occurred, plaintiff said while performing the work he was engaged in, he struck a beam with a brick; that the corner flew off, struck him in the eye, and that a piece got into his eye. The record shows he immediately' complained of the injury, and soon after consulted physicians to obtain relief from his sufferings which resulted therefrom. Prior' to the date of the accident of which plaintiff complains, his left eye was perfectly sound, and of this there can be no question. He was laid in bed for over twelve weeks after the injury, and was during that time under treatment of a physician for his eye. Plaintiff was attended to soon after he received the injury by Dr. liles, an eye specialist of the City of Lake Charles. Dr. liles testifies that he examined plaintiff’s eye on May 24th, which the record shows was the day after the alleged accident. His eye was then swollen and inflamed. Dr. liles says if the inflammation was intense enough to extend into the ball of the eye, atrophy of the optic nerve could result. Further on in his testimony, he said that the ordinary case of eye troubles the blindness of which plaintiff complained could have been caused from the injury for which he treated him.

Plaintiff’s eye was also examined by Dr. Gerard, a noted specialist of the City of Lafayette. He, however, saw plaintiff several months after the accident. He was not in as good a position to ascertain the cause of the loss of sight of the plaintiff as was Dr. liles who saw plaintiff and treated him during a period Of three months, immediately following the injury. This was noted by the district judge, and properly.

Dr. Gerard in the course of his testimony, first stated, that the atrophy of the optic nerve was due mainly to a general physical condition. He thereafter, however, made it very clear that it could be caused by an inflammation of the retina, the choroid or of the axis posterior of the eye ball. Dr. liles said an inflammation of every structure of the eye ball would cause atrophy of the optic nerve. He said he could not say that the inflammation had gone inside of the eye ball, but tha,t plaintiff had “that kind of inflammation”.

We therefore find as did the district judge that there is no material conflict between the testimony of the two' specialists. We are convinced that the injury to plaintiff’s eye was caused solely by the accident, and that as - a result he has completely lost his sight in that eye for which he is justly entitled to the judgment rendered in his favor, and which is therefore affirmed.


text:
    No. 4640
    First Circuit
    C. R. SHORT LUMBER COMPANY v. TATUM
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Privilege—Par. 2, 3, 4.
    One who while having the mules of another in his possession works them for his benefit, or for the benefit of the lumber mill which he owns, has no privilege for the value of the feed and care given the mules during that time.
    2. Louisiana Digest — Privilege—Par. 2.
    Privileges cannot he extended by implication or analogy; they are never allowed except when expressly granted by law, and this only by virtue of an exact compliance with the legal requisites essential to their creation and existence.

      r.. Appeal from the-Twelfth Judicial District, Parish of Vérnoá,’ Htra.'J. H. Boone, Judge. ‘' ''1 ’■
    Action by C. A. Short Lumber Company, Inc., against H. C. Tatum. There was judgment for defendant as of non-suit and plaintiff appealed.
    Judgment set aside and judgment for plaintiff in part.
    P. L. Ferguson, of Leesville, attorney for plaintiff, appellant.
    C. E. Hardin, of Leesville, attorney for defendant, appellee.
   ELLIOTT, J.

It appears that eight mules belonging to J. M. Lewis were about to be sold by the sheriff at the instance of H. G. Tatum, in the enforcement of a mortgage held by' Tatum against them.

C. R. Short Lumber Co., Inc., alleges that it furnished feed necessary for the preservation of the mules and had a privilege on them for the reimbursement of the amount expended on that account, and that H. G. Tatum is liable for the amount. That petitioner feared it will loose its privilege as a result of said sheriff’s sale. It instituted suit against Tatum for $849.05, the amount alleged to be due on account of feed and other matters, and sued out a writ of sequestration, under which $800.00, the proceeds realized at the sale of the mules was seized.

The petitioner prays for judgment against Tatum for' $849.15 with interest and that a privilege in its favor be recognized on the mules or their proceeds if sold. ■

■ Tatum for answer denies being indebted unto plaintiff, and, denies the existence of the privilege claimed- ,Further- avers, that if the account alleged was incurred by him, it was wholly with C. R. Short individually.

That C. R. Short used the name C. R. Short Lumber Company as a trade name; that such a company has no legal or corporate existence, and, if anything is due by defendant, • which is denied, it is due C. R. Short individually. ■

The district judge, for written reasons, rejected plaintiffs demand as in case of non-suit.

Plaintiff appealed.

The evidence shows that the mules in question belonged to James M. Lewis at the time the account sued on commenced; that Lewis bought them previous to that time from the defendant Tatum.

On December 10, 1920, Lewis acknowledged himself to be indebted to H. G. Tatum in the sum of $1750.00, and to secure the debt he granted a mortgage on the mules in Tatum’s favor. It was in the enforcement of this mortgage that Tatum caused the mules to be seized and sold by the sheriff.

Plaintiff’s allegation that the account sued on is due by Tatum, is not as definite as it might be. The allegation is, that Tatum solicited petitioner to furnish feed for the mules, assuring petitioner that the mules would stand good for their feed. That he has refused to pay for the feed which they purchased for said mules and fed to them at his special request.

The word “they” used in referring to the matter, shows that plaintiff does not regard defendant as the party, solely responsible.

C. R. Short was the only witness in the case. As a witness he says, that the nuiles belonged to J. M. Lewis, and were used by him in hauling logs for C. R. Short Lumber Co. That Lewis went away and left mules, owing plaintiff for feed, about $3000.00; which is part of the account claimed of Tatum. This was before Short had the talk with Tatum in which he is said to have told Short that the feed had to be taken care of, and to go ahead and feed the mules, that the bill had to be paid. But there is no positive statement that Tatum bought feed from plaintiff.

It seems reasonably clear, from Short’s testimony, that Lewis, the owner of the mules, was the réal debtor on account of the feed; and that after he left, defendant merely, in a conversation about the matter, suggested to Short that plaintiff feed and care for the mules, and look to the mules for pay.

We agree with the district judge, that the evidence does not satisfactorily show that Tatum is personally liable for the feed claimed in the suit, and for plaintiff’s expense and trouble in looking after the mules.

The plaintiff alleges that it is entitled to a privilege on the mules on account of the feed furnished, and for its trouble and expense in looking after them; and that its privilege on said account is superior in rank to defendant’s mortgage. The privilege claimed is based on C. C., Arts. 3224, 3225, 3226, 3262. This privilege only exists when the claimant is in possession and incurs expense necessary for the preservation of the property in his possession.

There is allegation and proof that Lewis, went away and left them; but it is not alleged nor proved that he left them in charge of the plaintiff. When property has been left in possession of another, such party should not abandon it, but should preserve it, and the privilege created protects him in the expense &o incurred.

The suggestion which Short says defendant made, amounts to very little. Defendant did not have charge ■ of the mules and could not confer any authority on the plaintiff. If the mules had' been in plaintiff’s possession when, the sheriff came and seized them, in the enforcement of defendant’s mortgage, it could have retained them until its claim for preserving them was acted on. C; C., Art. 3225. And the. fact that plaintiff did not advance its claim until the mules were about to be-sold, indicates that it did' not have possession at the time the sheriff came to take: them away, and certainly did not have-them in its possssion afterwards.

If plaintiff had the mules in its possession, it should have either retained them, as provided by C. C., Art. 3225, else made the party from whom it received them, a party to its suit, to establish the privilege in its favor. If it ever had them, it did not retain them and it did not receive them from Tatum nor the sheriff; therefore the privilege claimed for feed and care of the mules before Tatum seized them, in the enforcement of his mortgage, should have been demanded contradictorily with the party by whose authority it 'had them in possession, if its possession was authorized. If its possession was unauthorized it should have retained them until its rights, if any it had, were acted on by the court.

Plaintiff’s right to compete with Tatum for the proceeds of the mules is not clear. Defendant had the mules sold to pay notes endorsed by C. R. Short. At the time Short endorsed these notes, he was president, general manager and chief owner of C. R. Short Lumber Co., Inc.

•' It is so • probable, from the record, that the notes were endorsed by C. R. Short for the benefit of C. R. Short Lumber Co., Inc., 1 and in its behalf and -that the endorsement- enabled C. R. Short Lumber Co., Inc., to obtain the service of these mules in hauling logs to its mill, and that such service was the consideration for the endorsement, that we are satisfied such was the fact.

. C. R. Short was liable to Tatum on his endorsement for the amount due on said notes, and could not compete with defendant for the proceeds of the mules mortgaged to secure the notes, and under the facts and circumstances it is doubtful if C. R. Short Lumber Co., Inc., can do it.

“Privileges cannot be extended by implication or analogy; they are never allowed except when expressly granted by law, and this, only by virtue of an exact compliance with the legal requisites essential to their creation and existence.” Louisiana Digest, vol. 6, p. 220, sec. 2, etc. Subject, Privilege.

In Andrews vs. Crandall, sheriff, 16 La. Ann. 208, the plaintiff kept a livery stable. The sheriff had possession of the mules and authority to place them with the plaintiff to be fed and cared for. In that case the plaintiff received, possession from an officer authorized by law to confer it on her, which is not the situation now. In the case before the court, plaintiff took it on itself to feed and care for the mules. We are not satisfied that plaintiff is entitled to the privilege claimed.

'The judgment appealed from rejecting plaintiff’s demand for privilege, will be affirmed.

There is one item claimed by plaintiff in its petition which is satisfactorily established. The plaintiff on July 6, 1921, advanced defendant by check $150.00 cash. It should have judgment against Tatum for that amount.

The plaintiff further charged to defendant a hotel bill, hire of automobile trip to Pollock, etc.; but the reference to these items by Mr. Short does not prove them definitely. It may be done in another suit.

We agree with the district judge in his conclusions, except as to the $150.00; but in order to formulate the decree which we think should be rendered, the judgment appealed from will be set aside and another judgment rendered.

For the above reasons the judgment appealed from is annulled, avoided and set aside.

It is now ordered, adjudged and decreed that C. R. Short Lumber Co., Inc., have judgment against H. D. Tatum for $150.00 with legal interest thereon from judicial demand until paid, without privilege. Said sum having been advanced by plaintiff to defendant by means of a check described in the account sued on, but the demand of C. R. Short Lumber Co., Inc., against said H. G. Tatum, based on feed furnished to mules, and for care of and looking after mules, and to have recognized a privilege on the proceeds of the eight mules described in its petition herein, is refused and rejected.

That part of plaintiff’s demand described in the account sued on, as a trip to Pollock with car driver, car fare and hotel ■ bill amounting to $40.00, is refused as in case of non-suit.

The defendant Tatum, appellee, to pay the cost of the main demand in both courts, and the cost of appeal.

The plaintiff and appellant, the cost of the sequestration.


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    No. —
    First Circuit
    WEST PUBLISHING COMPANY v. GAGNE
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 113, 118.
    In a suit on an open account a written contract is inadmissible in evidence because it is irrelevant.
    2. Louisiana Digest — Prescription — Par. 129.
    Open accounts are prescribed in three years.
    Appeal from the Seventeenth Judicial District, Parish of Terrebonne, Hon. Robt. B. Butler, Judge.
    Action by West Publishing Company ■ against Harris Gagne. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Charles J. Mundy, of Thibodaux, attorney for plaintiff, appellant.
    Harris Gagne, in person, of Houma, attorney for defendant, appellee.
   ELLIOTT, J.

This suit was filed January 24, 1918. Service was accepted the | following day. Defendant filed and urges as an exception to plaintiff’s right of action the prescription of three years, which the court, with the consent of the parties referred to the merits. Defendant then answered, subject to his exception, denying plaintiff’s demand. The court after trial, sustained defendant’s plea of prescription and dismissed the suit. Plaintiff appealed.

Plaintiff’s demand is bn an account for law books, commencing October 26, 1910, and ending February 20, 1912. The plaintiff does not allege that the account has been acknowledged and the evidence does-not show any; but it is urged in plaintiff’s brief that we ought to notice a contract which the defendant signed at the time he bought the books; but this contract is not sued on, nor referred to in plaintiff’s petition. This contract was not adduced by the plaintiff until December 22, 1925, when it was offered in evidence on the trial of the case. Defendant objected to it as evidence, on the ground that it had not been declared on in the suit, and that plaintiff did not claim in its petition that the account sued on had been acknowledged. The objection is good.

The suit is on an open account; it is not based on this written contract. Plaintiff’s petition does not refer to this contract, nor claim that the account has been acknowledged by the defendant.

The action brought by the plaintiff was barred by the prescription urged against it long before the time this case was tried.

The prescription of three years against the action brought, had already run and become an acquiesced right, before this suit was Instituted.

The judgment appealed from is correct.

Judgment affirmed.


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    No. -
    First Circuit
    FISETTE v. THE MUTUAL LIFE INSURANCE COMPANY
    (June 5, 1926, Opinion and Decree)
    (June 26, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Insurance—Par. 167, 176.
    Under Act 227 of 1916 the provision that no statements not endorsed upon or attached to the insurance policy when issued shall be .used in defense of a claim cannot have effect where the policy was in the possession of the insured at the time that an application for re-establishing it was made and the examination thereto had.
    2. Louisiana Digest — Insurance—Par. 80.
    Where one states in an application for insurance that he had not consulted a physician in the past five years, although he had been very sick and his physician had told him that unless he did something for himself he would die within a year, his statement to the insurance company is sufficient fraud to nullify the policy.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    Action by Mrs. Marie S. Pisette against The Mutual Life Insurance Company. There was ‘ judgment for plaintiff and defendant appealed. .
    Judgment reversed.
    R. L. Garland, of Opelousas, attorney for plaintiff, appellee.
    Sandoz and Sandoz, of Opelousas, attorneys for defendant, appellant.
   LECHE, J.

Pierre S. Pisette applied to the Mutual Life Insurance Company for insurance on his life on April 2, 1924. He was examined as to his physical condition by defendant’s medical examiner on April 5, 1924, and on April 14, 1924, the policy of one thousand dollars, herein sued on, was issued to him. The local agent of defendant delivered the policy to the insured in person, within a few days. The delivery was made for inspection and the policy remained in the possession of Pisette until his death, March 13, 1925. In accordance with the provisions of Act 227 of 1915, p. 492, a photographic copy of the application and of the written medical examination, was annexed to the policy, which was retained by Pisette as stated.

One of the conditions of the policy was that it should not take effect unless and until the first premium should have been paid during the insured’s continued good health, and the insured having failed to pay the first premium within sixty days, applied on the 28th day of July, 1924, for •a re-establishment of the policy. This application for re-establishing the policy was, in accordance with the conditions of the policy requiring the insured to be in good health, accompanied by another medical examination, but was not attached to the policy. So that the insured was examined twice, viz: on April 5, 1924, the result of which examination was attached to the policy, and again on July 28, 1924, which, latter application and examination were not attached to the policy, for the reason that the policy was then already in the hands ■ of the insured and out of the possession of the Insurance Company.

The difficulty that presents itself, and which seems to be the main question of law in the case, is whether under the cited Act of 1916, the application for re-establishing the policy and the medical examination of July 28, .1924, should be ignored as not being attached to the policy and not forming part of the contract between the parties.

The question as to whether the application for re-establishing the policy and the medical report annexed to such application, should be considered as part of the contract, becomes of. paramount importance in this case, because the evidence is not clear as to the falsity of the insured’s answers in his first examination on April 5, 1924, while in the second examination of July 28, 1924, annexed to his application for reestablishing the policy, the evidence seems to bear out the charge of fraud made by defendant.

The plaintiff who is beneficiary under the policy in this case, objected to the admission in evidence of the application for re-establishing the policy and to the testimony by defendant offered to prove the fraudulent action of the insured in the medical examination to which he submitted himself under that application, and although the grounds of objection are not stated in the note of evidence, the objection is presumably based upon the provisions of the Act of 1916. That Act which is a re-enactment of the Act of 1906, says in part:

“No statement or statements not endorsed upon or attached to the policy when issued shall be used in defense of a claim under the policy unless contained . in' a written application and unless a copy of such statment or statements be endorsed upon or attached to the policy when issued.”

Obviously the application for re-establishing the policy and the medical examination made under that application, could not be annexed to the policy when issued, for the plain reason that the policy was issued on April 14, 1924, and the application and examination for re-establishing the policy were only made on July 28, 1924. It was not annexed therafter for the equally evident reason, that the policy was in the possession of the insured and not in the possession of the Insurance Company. If the Legislature by the Act of 1916, intended that every subsequent, amendment or change in the contract should also be copied in the original policy or annexed thereto, the Act should contain some provision to that effect. But there is nothing in the .language of the statute directly or by implication, requiring agreements made subsequent to the issuance of the policy to be incorporated in or attached thereto, and for this reason, the application for re-establishing the policy and the subsequent medical examination should be considered as part of the contract although not thereto actually attached or annexed.

This question is not discussed by the trial judge in his reasons for judgment but he actually so ruled, when he permitted the application and medical certificate to be filed in evidence and when he permitted the admission of testimony to establish the falsity of the insured’s statements contained in that medical examination and considered the same in his reasons for judgment.

The trial judge was of the opinion however, that the insured had committed no fraud, that his answers were npt knowingly false and he therefore rendered judgment in favor of’plaintiff as prayed for.

The learned trial judge, in our opinion, erred in his conclusions of fact. The certificate of death of the insured, shows that he died of chronic dysentery on March 13, 1925.' It appears that the deceased had consulted Dr. F. O. Pavy about the spring 1923, for soreness of the mouth. Df. F. O. Pavy could not say whether this was the result of intestinal troubles because he did not make a careful examination of the patient at the time. His diagnosis was ulceration of the stomach and for this he treated the deceased. He suspected that the insured’s trouble was of syphilitic origin but this was merely a suspicion, as he made no examination to trace the origin of the trouble. He was consulted several times by the deceased and after treatment, discharged him as cured. Dr. F. O. Pavy is not sure of dates but the deceased had consulted him several times and had been treated by him, just before removing from Arnaudville to Opelousas, where deceased lived when he applied for insurance in defendant company. Yet when deceased applied for insurance in April, 1924, he declared in his medical examination, that he had no illness, diseases, injuries and surgical operations since childhood and that no physician or practitioner had prescribed for or treated him, or had been consulted by him in the past five years for any ailment serious or not serious.

Plaintiff belittles the seriousness of the ailment for which the deceased was treated by Dr. F. O. Pavy and considers as unimportant, the answers of the deceased in the medical examination of April 5, 1924. Her counsel cite in support of her position,, the cases of Cunningham vs. Penn. Mutual Life Ins. Co., 152 La. 1024, 95 South. 110; Goff vs. Mutual Life Ins. Co., 131 La. 99, 595 South. 28; and Cole vs. Mutual Life Ins. Co., 129 La. 705, 56 South. 645, where it was held that light and insignificant ailments not disclosed by, an applicant for insurance, do not necessarily constitute fraud on the part of the applicant, and that concealment of immaterial facts do not vitiate the policy. But conceding that the ailment treated by Dr. F. O. Pavy was light and insignificant and that the statements of the insured in the examination of April 5, 1924, were immaterial, the rule adopted by the Supreme Court in the above cited cases cannot be applied' to the examination of July 28, 1924. When that examination was made, insured was reasonably bound to know that his health had been impaired and his life had become in serious danger after the 5th of April, 1924, for it matters not how unconcerned and indifferent he might have been about his physical welfare, he had been told by Dr. Albert B. Pavy that unless he did something for himself he would die within the year. Dr. Albert Pavy was first consulted by the insured on May 3, 1924. Insured knew then that he was sick and Dr. Albert Pavy told him on that occasion, that he was very sick. At that same time insured told Dr. Albert Pavy that he had consulted other physicians. He called on Dr. Albert Pavy on two other occasions, which the doctor places at 8 or 10 days apart, so that his third consultation when he was told that unless he ■ did something for himself, he would die within the year, could not have been later than June, 1924. The doctor could not state the date of this last consultation, but says in another part of his testimony that it was in the late spring or beginning of the summer of 1924.

We find no evidence to justify the theory that Dr. Albert Pavy made an error in his testimony, and that the final warning given by him to the insured, took place after July 28, 1924.

The testimony of Dr. F. O. Pavy and of other physicans who testified on the trial ol the case, indirectly, also support the conclusion which we have reached, that the insured concealed facts which were material in the confection of the contract and that the policy should for that reason, be avoided and plaintiff’s demand rejected.

It is therefore ordered that the judgment appealed from be avoided and reversed at the cost of plaintiff and appellee, and that the premium paid by the insured and deposited by defendant in the registry of the lower court, be recognized as belonging to plaintiff.


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    No. -
    First Circuit
    PLANTERS BANK & TRUST COMPANY v. THE MUTUAL LIFE INSURANCE COMPANY OF N. Y.
    (June 5, 1926, Opinion and Decree)
    (June 26, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Insurance—Par. 167, 176.
    Under Act 227 of 1916 the provision that no statements not endorsed upon or attached to the policy when issued shall be used in defense of a claim cannot have effect where the policy was in the possession of the insured at the time that an application for reestablishing it was made and the examina,tion thereto had.
    2. Louisiana Digest — Insurance—Par. 80.
    Where one states in an application for insurance that he had not consulted a physician in the past five years, although he had been very sick and his physician had told him that unless he did something for himself he would die within a year, his statement to the insurance company is sufficient fraud to nullify the policy.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    Action by Planters Bank & Trust Company against The Mutual Life Insurance Company of New York. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for plaintiff, appellee.
    Sandoz and Sandoz, of Opelousas, attorneys for defendant, appellant.
   LECHE, J.

This suit is upon an insurance policy for one thousand dollars issued by defendant on the life of Pierre S. Fisette, under the same circumstances as a similar policy involved in the suit of Mrs. Marie S. Fisette against the same defendant. Fisette applied for insurance in the sum of two thousand dollars and two policies of one thousand dollars each, were issued, the- one involved in this case and the other in the case of Mrs. Fisette. The issues being the same in both cases, the suits were consolidated for trial and argument, and on appeal in this court they were again consolidated for argument.

Wherefore for the reasons adduced in the case of Mrs. Marie S. Fisette vs. The Mutual Life Ins. Co., of New York, this day decided by this court,

It is ordered that the judgment appealed from be avoided and reversed at the cost of plaintiff and appellee and that the premium paid by the insured and deposited by defendant in the registry of the lower eourt be recognized as belonging to plaintiff.


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    No. -
    First Circuit
    CHAMBERLIN v. OTIS
    (May 4, 1926, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Appeal — Par. 625, 626.
    The finding of the trial judge on matters of fact and as to the credibility of witnesses being eminently correct is affirmed.
    ' Appeal from the District Court, Parish - of Calcasieu, Hon. Jerry Cline, Judge.
    Action by Mrs. Corinne Chamberlin against Charles D. Otis, based on an agreement to pay travelling expenses and wages. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Edwin F. Gayle, of Lake Charles, attorney for plaintiff, appellee.
    Moss and Seiss, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

Mrs. Corinne Chamberlin alleges an agreement with Charles D. Otis to work for him as a florist in his floral establishment at Lake Charles.

That he promised to pay her travelling expenses from Toledo, Ohio, and wages at $25.00 per week.

That her travelling expenses amounted to $64.32.

That she worked two weeks and her services for said time amounts to $50.00.

That he refused to pay her travelling expenses and wages per week.

That after working two weeks she quit and brought suit.

The defendant admits that plaintiff came to his floral establishment as alleged, but denies that she came there under an agreement of employment, and denies liability for her travelling expenses and for two weeks’ wages.

The district judge rendered judgment in favor of the plaintiff for $114.32 with interest.

Defendant appealed.

The decision of the case is dependent on the credibility of conflicting testimony.

The plaintiff testifies that defendant, answering her advertisement in the Florist Review, for a position, wrote her letters promising to pay her as alleged. That she received at about the same time, another offer near .home, which she preferred and accepted; and at the time not expecting to accept defendant’s offer and having no use for his letters, she destroyed them. This explanation is not unreasonable and is her explanation for not having letters to show her engagement.

It does not appear reasonable that a lady would come so far and at a certain expense to work by the week, without some understanding about her expenses in coming such a long journey.

Plaintiff’s letters to defendant indicate that she sought employment as a florist, and printed matter shows that she had been previously engaged in that business; which is some corroboration. The record however, contains a letter from plaintiff to defendant dated July 27, 1925, and a copy of a letter by her from Lake Charles to a certain party, baring date August 5, 1920, which was only 3 or 4 days after her arrival, which taken together, needed explanation, but while the plaintiff was on the stand as a witness in her own behalf defendant showed her the copy and asked her if she had written such a letter, and she admitted having done so. Defendant then offered the letter in evidence, but did not ask plaintiff to explain what she meant by writing such a letter to a party who it appears likely, was the same party to whom she had referred, calling him a name not at all complimentary, so soon after her arrival at Lake Charles. And what she meant in her letter to this party of August 5th, when she says, speaking of defendant, that she will not accept his money, but will never state the fact to him; but if she had to, would put him off from time to time, etc.

This failure indicates that defendant preferred to place the letter in the record without asking plaintiff to explain; and which, for all we know, might have been explained and might not have been inconsistent with the promise to pay, alleged in her petition.

The district judge had the plaintiff and defendant and their witnesses before him. He undoubtedly knew them all except the plaintiff and was therefore, in a better position to pass on the credit due their testimony than we are.

Under all the facts and circumstances of the case we are not satisfied that the lower court erred as a matter of justice, in rendering judgment in favor of the plaintiff for her travelling expenses and for two weeks’ wages as was done.

We think the judgment appealed from is correct and should be affirmed.

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