Volume 152 — Louisiana Reports

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Suit by Mrs. Sallie Dorsett, administratrix, against L. E. Thomas, State Bank Examiner, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Suit by the New York Life Insurance Company against Mrs. Sallie Dorsett and others. Judgment for plaintiff, and defendants appeal.</p>

Théard, Judge. Action by the Grand Lodge, Benevolent Knights of America, against the Murphy Construction Company and others. From a judgment for certain of the defendants, the defendant, United States Fidelity & Guaranty Company, appeals.

<p> (Syllabus hy the Oourt.) </p> <p>1. Navigable waters <§=333 — Levees established according to law constitute the banks.</p> <p>On the borders of the Mississippi and other navigable streams, where there are levees established according to law, the levees form the banks of the river. . .</p> <p>2. Navigable waters &wkey;>33, 41(1) — Public lias use of bank and of alluvion, but not of land between levee and public road.</p> <p>The public has the use of the river bank— i. e., the levee — and of the' alluvion formed between the levee and the water’s edge, for purr poses of navigation and commerce; but the space between the public road and the levee is private property, to the exclusive use of which the owner is entitled.</p> <p>3. Action <§=334 — Right given by statute limited strictly to provisions of statute.</p> <p>Where a right of action against a public body exists only by virtue of a special statutory grant, such right; of action is limited strictly to the provisions of the statute.</p> <p>4. Levees and flood control <§=ol9 — Right of action only given for value of' property taken for levee purposes.</p> <p>Under article 312 of the Constitution of 1S98, any person whose property, situated between the levee and the public road, was taken for levee purposes by the Orleans levee board, has a right of action against said board only for the value of the property so taken.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law <&wkey;938(l) — Motion for new trial for newly discovered evidence held properly overruled.</p> <p>Where a motion for new trial for alleged newly discovered evidence was not sworn to, and there was no affidavit from the newly discovered witness or proof of any kind that he would testify as claimed, or showing that defendant was not aware of»the testimony before trial, or exercised any diligence, and the newly discovered testimony would only be cumulative, the motion was properly overruled.</p> <p>2. Criminal law <&wkey;1156(1)— Denial of new trial not disturbed unless manifest error shown.</p> <p>Motions for new trial are addressed largely to the discretion of the presiding judge, and his denial of the motion will not be disturbed unless manifest error is shown.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Landlord and tenant <&wkey;-200'(l) — Lessee liable for stipulated rent though by mistake notes not executed for rent for last year.</p> <p>Under a lease for 10 years for $12,000 a year, payable in 40 installments of $3,000, to be evidenced by 40 promissory notes, the lessee was bound to pay the installments for' the last 12 months of the lease, though by mistake no notes were executed for such installments.</p> <p>2. Landlord and tenant &wkey;>231 (8) — Evidence held insufficient to show nonpayment of installments of rent.</p> <p>In an action against a lessee’s heir for unpaid installments of rent under a lease, evidence held insufficient to support a recovery as to installments claimed to have been unpaid at the lessee’s death.</p> <p>3. Landlord and tenant &wkey;>23l(l) — Lessor suing lessee’s heir held bound to show what rent maturing prior to lessee’s death was unpaid.</p> <p>In an action against a lessee’s heir who had adopted the succession for unpaid installments of rent, the burden was on plaintiff to establish, with a reasonable degree of certainty, what particular rent notes and for what year and what portion of the rent due prior to the lessee’s death had not been paid by him.</p>

<p> /¡Syllabus by Editorial Staff.) </p> <p>I.Receivers 128 — Debts assumed in purchasing property held secured by vendor’s privilege and superior to receiver’s certificates.</p> <p>Debts assumed by a corporation as part of the purchase price of a plantation were secured by a vendor’s privilege within Act No. 199 of 1914, subordinating receiver’s certificates to vendor’s privileges.</p> <p>2. Corporations <&wkey;560(5) — Purchase of treasury stock by receiver held a nullity.</p> <p>Under Oiv. Code, arts. 1146, 1790, relative to purchases by fiduciaries, and articles , 1765 and 1798, making the meeting of two minds essential to a contract, a sale of unissued treasury stock to the corporation’s receiver in consideration of his advances of operating expenses was a nullity.</p> <p>3. Corporations <&wkey;560(5) — Sale of treasury stock to receiver not validated by action of board of directors.</p> <p>A resolution of a corporate board of directors pending a receivership authorizing a transfer of treasury stock to -the receiver in consideration of advances to be made by him for operating expenses was a mere formality not validating the' transfer, since the power to dispose of the corporation’s property is in the receiver, and not in the board of directors.</p> <p>4. Corporations &wkey;?560(5) — Receiver must make out strong case to sustain transaction whereby he becomes owner of half of corporate property.</p> <p>In view of Civ. Code, art. 1146, prohibiting fiduciaries from acquiring property intrusted to their administration, a receiver must make out a , strong case to sustain a transaction whereby he becomes the owner of an entire half of the property intrusted to his administration, especially where the prospects of the property becoming valuable had brightened between the time of his taking charge and the time of his acquisition.</p> <p>5. Corporations <&wkey;560(5) — Receiver making advances not limited to legal interest in determining whether equivalent was given for treasury and other stock transferred to him.</p> <p>In determining whether advances made by a corporate receiver for operating expenses constituted a full equivalent for treasury and other stock transferred to him, the full value of the money advanced and the value to the company of the risk he was taking in advancing the money should be considered, though the value of the money was greater than the interest allowed by law, in the absence of express agreement.</p> <p>6. Receivers <&wkey; 196 — Commissions in addition to interest on moneys advanced held usury.</p> <p>A corporate receiver, making advances for operating expenses, could not charge commissions in addition to interest, as such commissions would constitute usury.</p> <p>7. Corporations &wkey;>560(5) — Receiver’s performance of duty not sufficient consideration for transfer of treasury stock to him.</p> <p>A corporate receiver, in obtaining an advantageous contract for the grinding of the corporation’s sugar cane, did no more than his duty, and his performance of his duty in this and other respects, though constituting an extrazealous performance of duty, did not warrant a transfer of treasury stock to him.</p> <p>8. Corporations &wkey;5560(5) — Agreement held not to relieve receiver of obligation to procure advances for operating expenses before requiring transfer of property for advances by him.</p> <p>Though, when a receiver was appointed for a corporation, it was understood between him and the vice principal'and active manager who represented the other stockholders that the receiver was not to be expected to procure advances with which to operate the corporation’s plantation, such agreement did not relieve him of his duty as receiver to use every endeavor to secure such advances' before requiring the transfer to him of one-half of the.property of the receivership in consideration of such advances by him.</p> <p>9. Corporations <&wkey;>560(7) — Suit to set aside transfer of treasury stock to receiver not based on lesion beyond moiety.</p> <p>A suit to set aside a transfer of corporate treasury stock to the corporation’s receiver ip consideration of advances made by him with which to operate the corporation’s plantation is based on the nullity resulting from the relation of 'trust, and not as claimed on mere lesion beyond moiety.</p> <p>On Rehearing.</p> <p>10. Corporations <te>ll( — Stock is property of stockholders, and may be sold as they see fit.</p> <p>Stock in a corporation belonging to individual stockholders is their property as distinguished from the tangible assets of the corporation, and they may sell, transfer, or deal with it as they see fit.</p> <p>11. Corporations &wkey;>560(5) — Sale by stockholders to receiver voidable and not void.</p> <p>Transfer of stock in a corporation to the corporate receiver by the individual stockholders in consideration of advances made by the receiver with which to operate the corporation’s plantation was voidable and not void.</p> <p>12.Corporations <&wkey;560 (5) — Stockholders held estopped to avoid transfer of their stock to receiver.</p> <p>Where stockholders in a corporation transferred stock to its receiver in consideration of his agreement to‘finance the operation of the corporation’s properties and of his valuable services, and continued to receive the benefits arising therefrom for two years, during which the corporation from a condition of practical insolvency was converted into a healthy going concern, though advised of the limitations imposed on the receiver as such, they cannot avoid the contract.</p> <p>Provosty, O. J., dissenting in part;' Land, O’Niell, and St. Paul, JJ., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>On Motion to Dismiss Appeal.</p> <p>1. Courts &wkey;>224( 11) — Supreme Court has jurisdiction of possessory action where possession may be worth more than jurisdictional amount.</p> <p>In a possessory action, -where it may be that, if no one else could show title, defendant’s possession might be equivalent to ownership, and equal in value to the jurisdictional amount, the Supreme Court has jurisdiction.</p> <p>On the Merits.</p> <p>2. Landlord and tenant <&wkey;l8(3) — Evidence' held to show defendant’s possession was by sufferance and later as tenant.</p> <p>In a suit to quiet plaintiffs’ possession of land and enjoin defendant from interfering with plaintiffs’ tenant, evidence held to show that defendant’s possession of the land was by sufferance and later as tenant of plaintiffs.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Suit for separation by Lena G. Pane against Joseph Pane. From a judgment for. plaintiff, defendant appeals.</p>

D. Webb, Judge. Action by T. J. Greening and others against the Natalie Oil Company and dthers. B'rom a judgment for defendants, plaintiffs appeal.

<p> (Syllabus •by Editorial Stq,ff.) </p> <p>I.Corporations &wkey;>400 — Officers of surety company could not confer greater authority by power of attorney than authorized by res- - olution.</p> <p>Where resolution of directors authorized officers of indemnity company to appoint attorneys in fact to execute bonds, etc., required by the laws of the United States, municipal laws, or otherwise, such officers could confer no greater power than was embraced in the authority conferred on them by the resolution. (Per Baker, Land, Leche, and Thompson, JJ.)</p> <p>2. Principal and agent &wkey;>II0(2) — Mandate; “laws of United States” within resolution authorizing execution of powers of attorney to execute bonds defined.</p> <p>Under a resolution of directors of an indemnity company authorizing officers to appoint attorneys in fact to execute bonds required by the “laws of the United States,” municipal laws, or otherwise, etc., the quoted words designated that great body of law deriving its origin, force, and sanction from Congress and from the authority of the United States government, and embraced every law which owes its origin and force to the lawmaking power of the national government. (Per Baker, Land, Leche, and Thompson, JJ.)</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Law of. the United States.]</p> <p>3. Principal and agent <&wkey;l 10(2) — Mandate; resolution, authorizing powers of attorney to execute bonds required by United States laws, “municipal laws,” or otherwise, held to include state laws.</p> <p>Resolution of directors authorizing officers of indemnity company to execute powers of attorney, appointing attorneys in fact to execute bonds required by the laws of the United States, municipal laws, or otherwise, etc., included bonds required by state laws; as “municipal laws” means the law of a nation, state, or community, as distinguished from international law, and could not, under the rule of ejusdem generis, be. restricted to municipal laws of the United States government, since “laws of the United States” completely exhausted the class, nor could they be disregarded as useless and meaningless. (Per Baker,, Land, Leche, and Thompson, JJ.) '</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Municipal Law.] '</p> <p>Provosty, O. J., and Dawkins and Overton, JJ., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Courts &wkey;>224(6) — Raising of constitutional question does not confer jurisdiction on Supreme Court when sentence below jurisdictional limits.</p> <p>Under Const. 1921, art. 7, § 10, where'the fine imposed in a criminal case does not exceed $300 and the imprisonment does not exceed six months, the Supreme Court has no jurisdiction of an appeal, though a constitutional question is raised.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal law <&wkey;1087(i/2) — Appeal dismissed in absence of bill of exceptions, motion for new trial, or in arrest or assignment of error.</p> <p>An appeal from a conviction on a plea of guilty' will be dismissed, where the record contains no bill of exception, motion for new trial, motion in arrest of judgment, or assignment of error.</p>

<p>(Syllabus by Editorial Staff J</p> <p>1. Intoxicating liquors <&wkey;l3l, 137 — Manufacture not an offense unless for beverage purposes or without permit.</p> <p>Under Const. U. S. Amend. 18, §§ 1 and 2, and Act No. 39 of 1921, § 1, the manufacture of intoxicating liquors is not an offense unless it is manufactured for beverage purposes or for nonbeverage purposes without a permit from the proper federal authorities.</p> <p>2. Criminal law &wkey;>970(7) — Intoxicating liquors >3=3202, 221 — Motion in arrest lies when indictment for manufacturing liquor fails to state that it is manufactured for beverage purposes pr without permit.</p> <p>An indictment charging defendant with manufacturing intoxicating liquor, but not charging that it was manufactured for beverage purposes or for nonbeverage purposes without the required permit, charges no offense known to the law, and, the defect being patent on its face, a motion in arrest of judgment should be sustained.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Intoxicating liquors >@=»215 — Indictment charging merely sale of spirituous and intoxicating liquors is bad.</p> <p>An indictment charging merely that defendant willfully and unlawfully sold and retailed spirituous and intoxicating liquors is subject to motion to quash as not charging any offense denounced by the law.</p>

<p> (Syllabus, by Editorial Staff.) </p> <p>1. Appeal and error &wkey;>749 — Judgment not converted into one maintaining exception when plaintiff’s appeal not answered by defendant.</p> <p>Under Code Prae. art. 888, where defendant has filed no answer to plaintiff’s appeal, the Supreme Court cannot review a ruling overruling an exception of no cause of action and amend the judgment appealed from by converting it into one maintaining an exception overruled by the trial judge.</p> <p>2. Railroads &wkey;>l5!/2; New, vol. 6A Key-No. Series-Director General proper defendant.</p> <p>Under General Orders Nos. 50 and 50A of the Director General of Railroads, the Director General is the proper defendant in an action for injuries sustained by plaintiff in a crossing accident which occurred during federal control, and where he was not made a party the case cannot be reviewed on the merits.</p> <p>3. Appeal and error <§=>792 — Dismissed on court’s own motion when record discloses want of proper parties.</p> <p>When the record on appeal discloses a want of proper parties, the Supreme Court will ex officio dismiss the appeal without motio'n.</p>

E. Reynolds, Judge. Clyde Tuggle was convicted of having intoxicating liquor for beverage purposes in his-possession, and he appeals.

Action by Leonard' G-. Lewis against James W. Tooke and others. From a judgment for plaintiff for an insufficient amount, defendants appeal, arid plaintiff files an answer to the appeal complaining of errors against him.

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Action by R. W. Nelson against James P. Allen. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Richard A. Dowling, Judge.</p> <p>Lawrence Montalt was convicted of an offense, and he appeals.</p>

<p> .(Syllabus by the Court.) </p> <p>1. Landlord and tenant i&wkey;55(l) — Lessee not required to employ night watchman for protection against fire, when lessor had not done so while in possession.</p> <p>The lessee of property is not required to take better care of the leased premises than the lessor himself deemed sufficient when in possession of the same.</p> <p>2. Landlord and tenant &wkey;>55(l) — Lessor cannot recover for damage from fire not directly caused by lessee's negligence.</p> <p>Plaintiff cannot recover, where it does not appear that the negligence of the defendant was the direct cause of the damage suffered.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.</p> <p>Clay Willis was convicted of murder, and he appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Robert S. Ellis, Judge.</p> <p>Lem Sibley was indicted for an offense, and from a judgment quashing the indictment the State appeals.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Insurance <&wkey;I30(2)— Under premium receipt insurance held not effective when risk not acceptable on plan and' the premium applied for.</p> <p>Where premium receipt provided insurance should be effective from its date provided the applicant was on that date, in the opinion of the insurer’s authorized officers, an insurable risk, and the application was otherwise acceptable on the plan, for the amount -and at the rate of premium applied for, and for substantial reasons the risk prior to the applicant’s death had not been found so acceptable, the insurance did not become effective, though the company would have given a policy at a considerably increased premium.</p> <p>2. Insurance &wkey;>!4l (I) — Insurer not estopped by unauthorized representation of local agent that policy had been issued.</p> <p>Where an insurance company’s local agent had only limited authority, and had no power to bind it in respect to the ^issuance of the policy, it could not be estopped to deny that it had accepted the application by his, representation that the policy had been issued.</p> <p>3. Insurance <&wkey;I4l(l) — Representation held not to estop insurer to deny acceptance of application when ' applicant could not then have obtained insurance elsewhere.</p> <p>Representation by insurance company’s agent that policy had been issued did not estop the company to deny that it accepted the application, where, if the applicant or the beneficiary saw the letter containing the representation before the applicant’s death, it was after an attack of appendicitis which prevented him from obtaining insurance elsewhere.</p> <p>4. Insurance <&wkey;!30(4) — Delay in passing on application held not to estop insurer to deny consent to issuance of policy.</p> <p>Whatever relief, if any, may be afforded a proposed beneficiary for delay in passing on an application for insurance, such delay cannot estop the insurer from denying that it consented to issue the policy where premium receipt provided for return of premium unless the- applicant should be found an insurable risk, and the application should be otherwise acceptable as made.</p> <p>5. Estoppel <&wkey;52 — Not enforced when against good conscience.</p> <p>Estoppel will not be enforced when it is against good conscience to enforce it.</p> <p>6. Insurance <&wkey;l30(4) — To treat insurer es-topped to deny acceptance of application held contrary to good conscience when applicant not insurable.</p> <p>Where premium receipt provided insurance should take effect as of its date if the applicant in the opinion of the insurer’s authorized officers was an insurable risk on that date, and the application was otherwise acceptable, and the applicant was not an insurable risk on that day on the plan and at the rate proposed, if at all, it would be contrary to good conscience to hold the insurer estopped by its delay in passing on the application to deny its consent to issue the policy.</p>

Suit under the Workman’s Compensation Act by Mary Benjamin, widow of Levi Browder, against the Standard Accident Insurance Company of Detroit for compensation for injuries. Judgment was rendered for plaintiff in the trial court, but for defendant on appeal to the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p> (Syllabus by Editorial Staff.) </p> <p>On Motion to Dismiss.</p> <p>(. Appeal and error &wkey;389(I) — Appeal not dismissed because case consolidated for trial with ease in which pauper áffidavit was insufficient. '</p> <p>Appeals in cases properly tried and appealed in forma pauperis will not be dismissed because they were consolidated for trial with another case in which the affidavit for prosecution of the suit in forma pauperis was insufficient.</p> <p>2. Appeal and error <§=»227 — Objection and exception not mentioning ground insufficient to raise question of sufficiency of pauper affidavit.</p> <p>Objection to motion and orders for prosecution and appeal of case in forma pauperis and bill of exceptions reserved thereto, not mentioning the ground of objection, were insufficient to raise the question of the sufficiency of the affidavit, as the court might have ruled differently, or the necessary affidavit might have been furnished if the ground of objection had been stated.</p> <p> (Syllabus by the Court.) </p> <p>On the Merits.</p> <p>3. Railroads <&wkey;3l6(2) — Speed consistent with safety of train not excessive in country.</p> <p>' In the open country outside of.city limits any speed is legitimate for a railroad train, which is consistent with the safety of such train.</p> <p>4i. Railroads. &wkey;309 — Not required to stop trains at stations.</p> <p>There is no rule of law, or reason in common sense, why a railroad company should be required to stop all or any of its trains at all stations on the line of its road.</p> <p>5. Railroads &wkey;309 — Mistake in emergency not actionable.</p> <p>Where, in an emergency, the engineer of a railroad train promptly takes such measures to avoid an accident as then seem best, it is not a fault oh his part that he might have erred in judgment, and that the accident might have been avoided ha'd some other course been followed.</p>

<p>Appeal from Twenty-Mfth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Comer Rogers was convicted of 'selling intoxicating liquor for beverage purposes, and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law i&wkey;l77 — Defendant not entitled to urge plea of jeopardy when case reassigned for trial on his motion.</p> <p>Where, after the trial had commenced, the case was reassigned for a future day on accused’s motion because of the granting of a bill of particulars, accused is without standing to urge a plea of once in jeopardy based upon the previous attempt at a trial.</p> <p>2. Criminal law <&wkey;394 — Evidence not inadmissible because obtained on search without warrant.</p> <p>On a trial for manufacturing whisky, evidence of the crime found on defendant's premises was not inadmissible because the search of his premises was made without a warrant.</p>

Mandamus by the State, on relation of the Continental Supply Company, against Isaac ' Fontenot, Sheriff, in which Duelen W. Dalby intervened. From a judgment for the relator, the intervener appeals. Rehearing denied by the whole court; Provosty, C. X, and O’Niell, J., dissenting.

<p> (Syllabus by Editorial Staff.) </p> <p>I.Statutes <&wkey;5! — Statute valid so far as it relates to well-known intoxicating liquors notwithstanding reference to federal legislation.</p> <p>Act No. 39 of 1921, in so far as it prohibits the sale, etc., for beverage purposes of whisliy and other well-known intoxicating liquors therein specifically named, does not violate Const. 1921, art. 3, § 18, prohibiting the adoption of any system or code of laws by general reference, because of the reference therein to federal legislation for a definition of intoxicating liquors.</p> <p>2. Constitutional law <&wkey;42 — One selling whisky or alcohol cannot question constitutionality of reference to federal legislation for definition of intoxicating liquors.</p> <p>Where defendant was charged with selling whisky or alcohol, he had no interest in raising the question as to the constitutionality of the reference in Act No. 39 of 1921 to federal legislation to determine what liquors other than those specifically named shall be deemed intoxicating.</p> <p>3. Statutes &wkey;>64(9) — Unconstitutionally of reference to federal legislation in prohibition statute does not invalidate entire act.</p> <p>If the reference to federal legislation by Act No. 39 of 1921, to determine what liquors other than those specifically named therein shall be deemed intoxicating, is unconstitutional, its unconstitutionaiity does not invalidate the entire act.</p> <p>4. Criminal law <@=5l 134(4)— Denial of new trial on ground that judgment is contrary to law and evidence not reviewable.</p> <p>The refusal of a new trial, so far as it was sought on the ground that the judgment convicting accused was contrary to the law and the evidence, is not within the power of the Supreme Court to review.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Richard A. Dowling, Judge.</p> <p>E. J. Rosborough was convicted of an offense, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Names &wkey;> 10 — Debtor cannot claim nullity of contract because of use of assumed name in violation of statute.</p> <p>Where a statute forbids the doing of business under an assumed name except in certain cases, a debtor of such person cannot claim the nullity of his engagement on account of the creditor’s violation of the statute, where the only penalty affixed by the statute is making it a misdemeanor and subjecting the offender to a fine, etc.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Names <©=>10 — Person may transact business under any name he may adopt in absence of statute.</p> <p>It is the general rulé that in the absence of statute to the contrary a person may transact business and execute his contracts under any name he may choose to aclopt, provided no fraud be committed.</p> <p>3. Pleading <&wkey;>228 — Whether fraud committed by doing business (under assumed name is matter of defense and does not arise upon exception.</p> <p>Whether there was any fraud committed by plaintiff in entering into a contract under an assumed name is a matter of defense and does not arise on exception of no cause of action.</p>

Hundley, Judge. Joe Testa was convicted of having possession for sale of intoxicating liquor for beverage purposes, and he appeals.

Suit by Sophie Gastauer against George Gastauer. A judgment on rule against Wood-ville & Woodville was modified by the Court of Appeal, and the defendants in rule apply for certiorari or writ of review.

Andrews, Judge. Suit by Mrs. Annie Myrtle Hicks and others on behalf of herself and her minor children against the Meridian Dumber Company for compensation under the Workmen’s Compensation Act for the death of her husband. Prom a judgment for defendant, plaintiffs appeal.

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>Action by Hugh W. Whatley against Ada M. McMillan and others. From a judgment for defendants, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Insurance &wkey;>292— Untrue answers as ■ to attendance of physician not necessarily fraud, ulent.</p> <p>Answers to questions in life insurance application as to when applicant was last attended by a physician, and the disease for which he was attended, etc., may be knowingly untrue, and yet not fraudulent, as the applicant may, in good faith, have not considered the facts of sufficient importance to report, especially in view of the law that inconsequential illness does not have to be disclosed, though occasioning the attendance of a physician.</p> <p>2. Insurance <&wkey;645(I) — Answer not alleging incorrect answers given with fraudulent purpose insufficient.</p> <p>In action on insurance policy, fraud must be specially pleaded, and answer not averring that incorrect replies to questions in the application as to the attendance of a physician were given with a fraudulent purpose did not raise the question of fraud.</p> <p>3. Pleading <&wkey;427 — Failure to object to evidence does not broaden pleadings where evidence admissible on different theory.</p> <p>Though, in action on life insurance policy, evidence was not objected to on the ground that fraud with respect to answers in the application had not been pleaded, this did not broaden the pleadings; the evidence being admissible on the question of materiality, treating the answers of the applicant as representations under Act No. 52 of 1906.</p> <p>4. Insurance <&wkey;>292 — Presumed that failure to disclose attendance of physician was due to belief that it was unimportant.</p> <p>Where blank application for insurance inquired with respect to many diseases, symptoms, eta., but made no inquiry concerning prostatitis or vesiculitis by those names or otherwise, since bad faith is never presumed, it must be presumed that the applicant, who was himself a physician and life insurance examiner, did not think them of sufficient importance to report in answer to an inquiry as to when and for what disease he was last attended by or consulted a physician.</p> <p>5.Insurance <&wkey;>292 — Failure to disclose consultation of physician respecting diseases not specifically .inquired about held not material to the risk.</p> <p>Where applicant for insurance had consulted physicians who found prostatitis and vesiculitis, but considered his case chiefly psychic or imaginary, and the application, though inquiring with respect to many diseases and symptoms, made no specific inquiry concerning such diseases by those names or otherwise, the failure of the applicant to disclose the fact that he had consulted such physicians, and the result of the consultation, in answer to a question as to when he had last consulted a physician, held not material to the risk under Act No. 52 of 1906.</p>

Suit by Mrs. Irena Crespo against Niek Viola. The court having announced that it would proceed to decide the case without the testimony unless defendant paid the stenographer, defendant applies for writs of certiorari, prohibition, and mandamus.