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court in Bell v. Albert Hanson Lbr. Co., 151 y dependent contractor. The circumstance of La. 824, 92 So. 350; and the case of Dick v. an employee furnishing his own team or Gravel Logging Co., 152 La. 998, 95 So. 99. tools could be of significance or weight at In the first-noted case (Bellv. Albert Han- most, in fixing the average weekly wages. son Lbr. Co.), the court, in discussing the Of course, if the employee had engaged to nature and character of the employment and haul the output of the mill at so much per the duties of the employee, had this to say: thousand, furnishing sufficient teams and

"In the case at bar the most salient feature wagons, and employing assistants and drivis that the decedent was a mere swamp labor- ers to do the hauling, a different case might er, earning his livelihood as one of a gang of be presented. In such a case it might well men constituting part of the logging outfit of be said that the compensation was to cover the defendant company's sawmill. To charac-profit on the investment in the teams and terize such a laborer as an independent con

wagons, and not compensation for personal tractor would be simply to ignore the realities

services, of the situation."

The wage-earners could be the laborers In the Dick Case, supra, the deceased was who were employed by the owner of the employed to cut and saw the logs in the teams to do the hauling. But we have not woods, which were to be placed on log cars such a case presented here. On the contrary, to be delivered to the lumber company's mill. Burt was a mere laborer, driving his own He was paid at the rate of 45 and 50 cents team and loading and unloading his own per thousand feet, board measure, accord- wagon, and his wages could, in no legal ing to whether he furnished his own tools or sense, be regarded as a profit on his investwas supplied by the company with them. ment in the team and wagon. The court held that he was a mere laborer, An examination of the evidence on the and in no sense an independent contractor. question of the amount of the average week

We may here appropriately repeat, and ly wages has not enabled us to say that the we do so with emphasis, what the court said district judge committed an error in fixing in the last above mentioned case.

the amount at $15 per week. The evidence “Under the narrow and restricted construc- certainly would not have justified fixing a tion sought to be placed upon the statute by less sum, It was within the power of the defendant's counsel, every workman employed defendant to show the amount paid to Burt, to do piece work in shop, factory, home, or for his services in hauling, and the average elsewhere would be classed as an independent weekly earnings. However, we think the contractor, although he is not more free from amount allowed is not in excess of the averthe control and direction of his employer than the most ordinary day laborer."

age weekly wages, independent of any sums

that might be allotted for the team and It would be inconsistent and illogical to wagon. say that laborers who cut saw logs and haul [2, 3] The evidence shows that one of the them to a sawmill, to be sawed into lumber minors, John C. Burt, Jr., was 18 years of at so much per thousand feet, come within age, and therefore the judgment awarding the terms of the statute, while those who him compensation was error. This is ad haul the manufactured product away from mitted by counsel for plaintiff in their brief, the mill to the market upon a like scale of The court also committed an error in rejectcompensation are independent contractors, ing the claim of $100 for funeral and burial and not within the provisions of the statute. expenses. The evidence shows that this It would seem as necessary to the successful amount, and even more, was paid by the operation of a sawmill to get its output to plaintiff. The amount is allowable by Act the market as it is to supply the mill with 247 of 1920. logs to be sawed into lumber.

It is therefore ordered and decreed that We think the case of this plaintiff comes the judgment of the Court of Appeal be and within the principles of the two cases noted the same is annulled and set aside, and that above, rather than that of Helton v. Tall the judgment of the district court be amendTimber Lbr. Co., 148 La. 180, 86 So. 729. ed by reducing the payments to the sum of

Nor does the fact that the employee fur- $6 per week, and by allowing the plaintiff nished his wagon and team alter his rela- $100 for burial and funeral expenses, and, ticns with his employer; nor does such fact as thus amended, that the said judgment be put the employee in the character of an in- affirmed, at the costs of the defendant.

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(102 So.) (157 La.)

9. Criminal law www982-Application for susNo. 26658.

pension of sentence for good character after

conviction held too late. STATE V. GARDNER.

Where defendant during trial for felony in(Supreme Court of Louisiana. Nov. 3, 1924.) troduced no evidence as to his general reputa

tion and made no effort to obtain suspension (Syllabus by Editorial Staff.)

of sentence under Act 74 of 1914, an applica

tion for suspension in a motion for new trial 1. Criminal law Om 1065-Ground that verdict after conviction comes too late. is contrary to law and evidence presents no question of law for review..

10. Criminal law Om942(1)-Evidence of pendGround that jury's verdict is contrary to

ing criminal charge against prosecuting wit.

ness held no basis for motion for new trial law and evidence presents no question of law for review.

by defendant.

Evidence that there was pending against 2. Criminal law Ow915—Defendant prosecuted prosecuting witness a criminal charge for atunder wrong name cannot urge objection first tack on defendant's helper is no basis for motime on motion for new trial.

tion for new trial by defendant. Where defendant was arraigned and pleaded to information without objection to name Appeal from Criminal District Court, Parby which he was designated, and he was iden- ish of Orleans; N. E. Humphrey, Judge. tified on trial as party committing the offense, he cannot urge on motion for new trial that Arthur Gardner was convicted of assault, he was prosecuted under wrong name.

and he appeals. Affirmed. 3. Criminal law On942(1)-Verdict not set Thomas G. Moran, of New Orleans (Loys aside to enable defendant to impeach testi- Charbonnet, of New Orleans, of counsel), for mony admitted on trial.

appellant. Verdiet will not be set aside and new trial

Percy Saint, Atty. Gen., and Robert H. granted to enable defendant to impeach testi- Marr, Dist. Atty., of New Orleans (Percy T. mony admitted on trial.

Ogden, of Crowley, and M. M. Irwin, of New 4. Criminal law Ow944–Trial judge held jus- Orleans, of counsel), for the State. tified in disbelieving testimony of newly dis

By the WHOLE COURT. covered witness.

Trial judge was justified in disbelieving testimony of newly discovered witness, where such LAND, J. Defendant was tried and contestimony was suspicious and incredible. victed of the crime of assault by willfully

shooting at Louis Lapuyade, and was sen5. Criminal law Om 1159(5)-Whether difficulty in assault originated in one way or another tenced to imprisonment in the state peniheld immaterial, where both versions as to tentiary at hard labor for a term of not its beginning went to jury.

less than one nor more than three years. In prosecution for assault, it was immate

He relies for the reversal of the convicrial whether difficulty originated as claimed by tion and sentence upon the following grounds defendant or otherwise, where both versions set out in a motion for a new trial: as to its beginning went to jury.

[1] 1. The verdict of the jury is contrary 6. Witnesses 344(2)-Details of evidence in to the law and the evidence.

This ground civil case against prosecuting witness and presents no question of law to be reviewed. son held inadmissible in prosecution for as 2. Defendant was prosecuted under an insault.

formation against Arthur Gardner, when in In prosecution for assault, details of evi- fact defendant's name is Arthur Gordon. dence in civil case prosecuted by defendant's [2] Defendant was arraigned under the helper against prosecuting witness and his son name of Arthur Gardner, and pleaded not were inadmissible; it being immaterial wheth-guilty to the information, without objection er such parties unlawfully assaulted defendant's helper, and purpose of such testimony be to the name by which he was designated. ing to show their bad reputation for peace and He was identified on the trial as the party quiet by proof of a specific act.

committing the offense. It is too late on a

motion for a new trial for a defendant to 7. Witnesses w344(1)-General bad character must be established by testimony as to set up that he was prosecuted under a general reputation.

wrong name, State v. Turner, 25 La. Ann. General bad character must be established 573; State v. Hogs, 126 La. 1053, 53 So. by testimony as to general reputation, not by 225, 29 L. R. A. (N. S.) 830, 21 Ann. Cas. proof of specific acts.

124.

3. That Louis Lapuyade, prosecuting wit8. Criminal law ww 945(2)–Testimony of good character useless against clear evidence of ness, did not give true and impartial testiguilt and is not in itself sufficient basis for mony, as defendant proposed to prove by new trial.

Jules Alexander, the newly discovered witTestimony as to good character is useless ness. as against clear evidence of guilt and is not of

[3] It is well settled that a verdict will itself sufficient basis for new trial.

not be set aside and a new trial granted to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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enable defendant to impeach the testimony | any weapon in his hand, when defendant admitted on the trial, State V. Johnson, fired the first shot. They state that during 149 La. 922, 90 So. 257; State v. Preuett, the first and the second encounters Eugene 142 La. 720, 77 So. 514; State v. Bordelon, Lapuyade, the son, had a cleaver, and that 141 La. 611, 75 So, 429.

after the shot was fired, Eugene went into [4] It is alleged in the motion for the new the butcher shop and returned with a shottrial that the newly discovered witness would gun. The defendant was evidently the agtestify that the prosecuting witness and his gressor in the second difficulty. He had left, father, a state witness, were the aggressors; after the first quarrel, and had returned with that defendant acted in self-defense; that a pistol in his hand, and had stationed himhe was attacked by the Lapuyades, who were self in the street in front of the shop, and then and there armed with heavy meat had fired at Lapuyade, Sr., as soon as he cleavers; and that defendant fired up in the walked out of the butcher shop onto the air and not at Louis Lapuyade.

sidewalk. The testimony of defendant and The testimony of all the state witnesses one witness that he fired the shot in the and of all the witnesses of the defendant air is incredible and suspicious, for these taken on the trial, as well as that of the witnesses testify that the younger Lapuyade, newly discovered witness, is in the record. armed with a cleaver, at the time, was adIt is clear from a review of this testimony, vancing upon defendant, and was within a in connection with the newly discovered evi- few feet of him. The elder Lapuyade testidence, that the testimony of the newly dis- fies that the bullet whizzed by his head, and covered witness is impeaching as to the state the state witnesses also testify that defendwitnesses and cumulative in part as to the ant attempted to fire a second time, but that witnesses of the defendant, as to firing the his pistol snapped. It is also unreasonable shot in the air. As to self-defense, the pros- to believe that any reasonable man would ecuting witness and three state witnesses return to the scene of the conflict with a testify that at the time the defendant fired pistol in his hand, if he did not intend to the shot at Louis Lapuyade, Sr., no hostile provoke a second difficulty, especially after demonstration of any kind was made by the he had been assaulted and beaten, as teslatter. The elder Lapuyade had walked out tified by his witnesses. As testimony to imof his butcher shop on the sidewalk, un- peach the state witnesses, the newly discovarmed, when he was assaulted. The de- ered evidence is not admissible. As cumufendant himself testified on cross-examina- lative evidence, it is not available, for the tion:

reason that the evidence on the trial showed "Me and old man Lapuyade didn't have any

that there was no overt act at all on the trouble; I shot in the air to keep them from part of the party assaulted, and that the dekilling me." Tr. p. 43.

fendant provoked the second difficulty. It

was completely shown by the testimony that The shooting at Lapuyade, Sr., was pre there as no element of self-defense in the ceded by a difficulty between defendant and case. Not a single witness for either the Eugene Lapuyade, the son of Louis La state or the defense testified that Lapuyade, puyade. The defendant on direct examina- Sr., was armed, or had a meat cleaver, at tion had testified as follows:

the time of the shooting. On the contrary, "He (Ernest Lapuyade) then ran in the shop all of the witnesses testified that he did not. and came out and struck me in the back with The testimony of the newly discovered wita cleaver. I caught his arm, and his fatherness that the young man and the old man (Louis Lapuyade) and mother rushed out and came out of the butcher shop, and that each caught me in the back, and I broke loose and had a cleaver, is therefore suspicious and ran around to Millaudon street, where I lived, incredible, and fully justified the trial judge and got a pistol and came back and passed in front of his shop and the old man said, 'You in disbelieving the testimony of the newly

discovered witness. back here again?' and the young man came out with a cleaver again and I shot. Q. How did “The trial judge should consider whether you fire that shot? A. I don't know. I was false swearing has been resorted to to set aside excited. I don't know what became of the the verdict and obtain a new trial. His disgun." Tr. 42.

cretion in that regard is, of course, not un

limited or arbitrary, but refers particularly to After the first difficulty, the defendant re

his determining whether the defendant has used turned in 20 or 30 minutes with the pistol in

due diligence to procure the evidence before his hand, as testified by his own witnesses, the trial, and whether it was in fact newly disand was cautioned by one of his witnesses covered or seems suspicious." State v. Glover, to come away from the vicinity of the butch- | 140 La. 732, 73 So. 845. er shop of the Lapuyades and not to have any trouble. Defendant did not heed this The Lapuyades were sued in the civil disadvice, but remained standing in the street trict court by one Coleman for damages for and fired the shot. Tr. 31.

assault and battery. It seems that Coleman Neither the defendant nor any of his wit was a helper on the truck driven by defendnesses testified that the elder Lapuyade hadant, and, according to the testimony of Ern

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1

La.)
LOQUE v. BAPTIST-GOLDING MOTOR CO.

91
(102 So.)
est Lapuyade, the difficulty arose because, such belated procedure in felony cases. la
the defendant approached the butcher shop section 1 of said act it is declared that-
while driving his truck at a rate of 25 miles

“The court may suspend the sentence when an hour, and tried to run over his son. Tr. the jury shall find in their verdict that the de24. According to the testimony of the defendant has never before been convicted of a fendant, the difficulty originated from Eu- felony in this state or any other state and shall gene Lapuyade's kicking a colored boy, who, recommend that the sentence be suspended." while swinging a white boy around on the sidewalk, struck the little son of Eugene plates that an accused in a felony case shall

This provision of the act clearly contemLapuyade. Defendant interfered and the en

present the evidence justifying a suspension counter ensued. [5-7] It is immaterial whether the diffi- of sentence to the jury at the time of the

trial and before verdict, and not after a conculty originated in the one way or the oth viction in a motion for a new trial. It would er, as both versions as to its beginning went be a proceeding unprecedented if a defendto the jury. Whether the Lapuyades unlaw- ant could take advantage of his own laches fully assaulted Coleman is a matter wholly in felony cases, and then obtain a new trial irrelevant, as far as the present case is con- in a case, where the verdict was sustained cerned. The details of the evidence in the by the evidence, for the sole purpose of precivil case were not admissible in the present case, for the further reason that the clear senting a claim for a suspension of sentence

to a new jury. Such application necessarily purpose of such testimony was to show the

comes too late. bad reputation of the Lapuyades for peace

(10) 5. That there is pending in the crimand quiet by proof of a specific act. This inal district court of the parish of Orleans is not permissible, as general bad character

a charge against Lapuyade for the attack on must be established by testimony as to gen- the said Coleman. eral reputation. State V. Guy et al., 106

The sole purpose of proving such charge La. 8, 30 So. 268; State v. Jackson, 44 would be to discredit the testimony of LaLa. Ann. 160, 10 So. 600; State v. Hobgood, puyade as a state witness. Such evidence 46 La. Ann. 855, 15 So. 406.

cannot be made the basis of a motion for [8] 4. That defendant is of good reputa- new trial. A defendant has ample opportution for peace and quiet, and that he is en- nity on the trial of the case to cross-examine titled to and desires to present to a jury, state witnesses as to charges and convictions in any event, the matter of recommending a against them, and to prove their general repsuspension of sentence.

utation for truth and veracity. The trial judge states that the defendant

The conviction and sentence appealed from had a fair trial and that the evidence sus

are therefore affirmed.
tained the verdict. Aside from the ques-
tion as to whether testimony as to good
character is newly discovered evidence, such
testimony is useless against clear evidence
of guilt, and is not, in itself, sufficient basis

(157 La.)

No. 26634. for a new trial. State v. Nicholls, 50 La. Ann. 707, 23 So. 980; State v. Riculfi, 35 LOQUE v. BAPTIST-GOLDING MOTOR CO. La. Ann. 770; State v. Simon, 131 La. 528, 529, 59 So. 975.

in re DENNIS J. HAYDEL & CO.
[9] The defendant made no effort to ob- (Supreme Court of Louisiana. Nov. 3, 1924.
tain a suspension of sentence during the

Rehearing Denied Dec. 1, 1924.)
trial. He introduced no evidence as to his
general reputation, and made no request

(Syllabus by Editorial Staff.)
that the jury be charged as to their right Landlord and tenant Om 246(3)-Goods placed
to recommend a suspended sentence. If a in leased store of general dealer for sale are
defendant can neglect to take action as to subject to lessor's pledge; “transiently.”
a suspension of sentence in a felony case Goods placed by owner, who is not under-
under Act 74 of 1914, until after conviction, tenant, in leased store of general dealer there.
and can make application thereafter for such in for sale at fixed price for owner's account,
suspension in a motion for a new trial, on

are not “transiently' in dealer's premises, the ground that he desires to introduce be within Rev. Civ. Code, art. 2708, and hence are fore the jury the necessary evidence as to subject to lessor's pledge. his general reputation and nonconviction before of any felony, it is self-evident that he

Certiorari to Court of Appeal, Parish of can obtain a new trial in every case of

Orleans. conviction, by willfully neglecting to pre

Action by Mrs. George A. Loque against sent, on the trial, the proof upon which he the Baptist-Golding Motor Company, in bases his claim to a suspended sentence. which Dennis J. Haydel & Co. intervened. Act 74 of 1914 clearly does not authorize Intervention dismissed by Court of Appeal,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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and intervener applies for certiorari or writ The errors assigned are as follows: of review. Judgment affirmed.

First. In holding that the case at bar is Sol Weiss and Wiener & Yarrut, all of controlled by the decision in Goodrich v. New Orleans, for applicant.

Bodley, 35 La. Ann. 525. Emile Pomes, of New Orleans, for Mrs.

Second. Failure of the court to hold that Geo. A. Loque.

article 2708, R. C. C., is illustrative and not

exclusive, and that an automobile lodged in BRUNOT, J. The defendant was a deal- the store of an automobile dealer is analer in new and second-hand automobiles. Its ogous to the example given in the article of business was conducted in premises held un-effects lodged in the store of an auctioneer der a lease from the plaintiff. Defendant to be sold. defaulted in the payment of three months' Third. Failure of the court to differentiate rent. Plaintiff sued therefor, and provision between the facts found in the Goodrich v. ally seized a second-hand automobile truck Bodley Case and the facts found in the inand other property found on the leased prem- stant case. ises. Dennis J. Haydel & Co., the owner of The controlling facts of this case are that the truck, appeared in the suit as intervener defendant deals in new and second-hand auand third opponent, alleging that the truck tomobiles. Intervener sent its automobile was left on the premises of defendant to be truck to defendant's garage to be sold. Intersold for intervener's account, and therefore vener fixed $1,700 as the price it was to reit was only transiently or accidentally on ceive for the truck, and stipulated that any the leased premises within the meaning and sum in excess of that amount which defendintent of article 2708, R. C. C.

ant might obtain for the truck should be rePlaintiff excepted to the petition of inter- tained by it as commission for making the vention and third opposition as not disclosing sale. Intervener also reserved the right to a cause of action, and, after a hearing there withdraw the truck in the event it found a on, the exception was referred to the merits. purchaser and consummated the sale itself. Plaintiff answered intervener's petition, as Intervener relies upon article 2708, Revised serted a lessor's lien and privilege on the Civil Code. The article is as follows: truck, and prayed for the dismissal of the

"Movables are not subject to this right, when intervention. Defendant answered both

they are only transiently or accidentally in the plaintiff's and intervener's petitions. It de house, store, or shop, such as the baggage of a nied all of the allegations in the former and traveller in an inn, merchandise sent to a workadmitted all of the allegations in the latter. man to be made up or repaired, and effects The case was heard, and, during the trial, lodged in the store of an auctioneer to be sold.” intervener offered testimony to establish the relation of subtenant. Plaintiff objected to There is no pretense that intervener's truck the testimony as being ultra petitionem and was accidentally in the leased premises. The not admissible. The objection was referred contention is that it was transiently there to the merits. Judgment was rendered, as within the meaning and intent of the forebetween plaintiff and defendant, in favor of going article of the Civil Code. the plaintiff and against the defendant, as We will say here that a search of the auprayed for in the petition and, as between thorities has failed to disclose a case whereplaintiff and intervener, in favor of interven- in it is held that goods, placed by the owner, er and against plaintiff, as prayed for in in the store of a general dealer for sale at intervener's petition, except as to the reser a fixed price for the account of the owner, vation of intervener's right to sue the plain are transiently in the premises of such tiff for damages.

dealer. The Court of Appeal amended the judg It has been held that “transient," as an ment of the district court by rejecting inter- adjective, means passing across, as from one vener's demands and dismissing the inter-thing or person to another; passing with vention at intervener's cost. A rehearing time of short duration; not permanent; not was denied, and intervener applied to this lasting. As a noun, one who or that which court for certiorari or writ of review. The is temporary. Com. v. Townley 7 Pa. Dist. writ issued, and the case is now before us. R. 413, 416; Twining v. Elgin, 38 Ill. App.

The Court of Appeal did not pass upon 356, 360. In defining the word "transient,” plaintiff's objection to testimony offered in Mr. Webster gives the following as synonyms: the trial court to prove an agreement for "Transitory, fugitive, fleeting, momentary." the payment, by intervener, of a fixed month-In Waukon v. Fisk, 124 Iowa, 464, 468, 100 ly rental for storage of the truck. We must N. W. 475, 477, the court say: It “is a relative assume that the objection was not considered term, which, in the absence of an inflexible because the testimony offered to establish statutory or legislative definition may be the that fact was reviewed by both courts and source of much vexation and uncertainty." was found to be unsatisfactory. We have There is no statutory or legislative definireached a similar conclusion, and, as this tion of the term in this state, but the genfinding disposes of the attempted enlargement eral rule here is that, if a third person is of the pleadings, no more need be said. not an undertenant, and his goods are placed,

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