himself of a defense to which the United | rule, that the amount of compensation to be States Supreme Court has declared him legally entitled.

[2] We understand defendant's complaint in regard to the instructions given to the jury by the trial judge is not made with a view of having the case remanded. It is now well settled that in civil cases the court will apply the law which is pertinent to the facts, and proceed to a proper and final decision of all the issues, regardless of the instructions which may have been given by the trial judge to the jury, but this complaint is made in order to substantiate the charge of serious error on the part of the jury in its appreciation of the evidence and in awarding plaintiff such a large amount of damages.

allowed the beneficiaries of a deceased employé, if any be due them, under the federal Employers' Liability Act, is only the cash value of what the employé might reasonably have contributed to the support of the beneficiaries during the term of his life expectancy. That is because the right of recovery is limited to the pecuniary loss suffered by the beneficiaries. And that loss is to be ascertained or computed by discounting the lost future benefits, at a fair or reasonable rate at which the money could be loaned or invested safely at interest, for each year of the life expectancy, according to the evidence. Chesapeake & Ohio Railway Co. v. Kelly, 241 U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367; Spokane & Inland Railroad Co. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125.

The questions of fact at issue herein were thoroughly investigated by this court on the previous appeal, and a reconsideration [4] We have concluded from the evidence thereof as they are presented in the original taken on the second trial that Jones was 56 record, as well as in the present one, has on-years of age at the time of his death. The ly served to confirm us in the conclusions evidence shows also that the life expectancy which we then reached. Defendant con- of a locomotive engineer, because of his haztends that we erred when we characterized ardous occupation, is taken 8 years beyond the movement of the loaded box car which his age. Accordingly a locomotive engineer came in collision with the passenger train 56 years of age is rated at 64. That rule and caused the death of Jones as resulting has been adopted by the life insurance exfrom a flying switch. Technically speaking, perts, and there is no reason why we should that was error, but in actual effect it is even not avail ourselves of their knowledge and more dangerous, and therefore it was great- experience. In fact, we have this strong er negligence on the part of defendant to equitable reason for considering the danger have permitted the loaded box car to be put of the occupation: That it is presumed that in motion by gravitation on a descending the employé was compensated for the risk, grade, called in railroad parlance "high in the wages he received, and that the benelining," than to have imparted that motion | ficiaries will therefore have the compensaton a level track, by means of a locomotive, ing advantage of a higher rate of future benein order to make a "flying switch." fits, in our calculation, than they would have if the risk had been an ordinary one.

We are firmly of the opinion that the collision which caused the death of Jones was the result of gross negligence on the part of defendant, and that plaintiff is entitled to recover compensation. The amount of that compensation, due regard being had to the purposes of the law, cannot be fixed with any mathematical certainty, and it is left more or less to the discretion of the courts. We are most earnestly asked to establish some fixed rule by which it might be gauged, but that function being more properly legislative than judicial, we are unwilling to assume it, however desirable and beneficial such a rule might be.

The original award of $17,500 made by the jury on the first trial was approved by this court as fair and just, and we see no good reason either to increase or diminish it, and so believing and for the reasons stated

It is ordered that the amount of the judgment appealed from be reduced from $26,500, to $17,500, and, as thus amended, that it be affirmed.

On Rehearing.

O'NIELL, J. [3] The Supreme Court of the

The life expectancy of a locomotive engineer aged 56 years, or of an ordinary risk at 61, according to the expectation table constructed from the American Experience Table of Mortality, and therefore according to the reliable theory of chances, is 11.7 years. That is the presumed term of the future benefits of which the beneficiaries in this case were deprived by the death of Jones.

[5] The amount of the future benefits or contributions that the beneficiaries lost is the difference between the amount that Jones would have earned and the amount he would have spent upon himself if he had lived 11.7 years longer. He was earning $2,100 a year, and, from the evidence of his good habits, we have concluded that $600 a year is a fair allowance to be made for what he would have spent for his own maintenance. Hence we fix the amount of the lost future benefits at $1,500 per annum for 11.7 years; that is, a total sum of $17,550 that would have been equally distributed or contributed in installments during a period of 11.7 years.

The rate of discount to be allowed on the anticipated payments, to reduce them to

(143 La. 315)

No. 22934.
PUYOULET v. GEHRKE.

rate at which the money could be loaned or as amended, it is affirmed; the appellant to invested safely at interest. There is evi- pay the costs of the district court; the apdence that that rate locally is 6 per cent.; pellees the costs of appeal. but we think the evidence refers to loans or investments requiring some financial knowledge or ability, and therefore producing returns that are earned, not altogether by the money invested, but in part by the financial ability of the investor. A person without business ability would have to deal with a savings bank, or invest in bonds or other securities of equal standing, paying something like 4 per cent., to make a safe investment at interest. On the other hand,

In re GEHRKE.

(Supreme Court of Louisiana. April 1, 1918. Rehearing Denied April 29, 1918.)

(Syllabus by the Court.)

as money does not invest itself, or produce 1. ESCHEAT 7-VACANT SUCCESSION-SEI

any revenue without investment, its earning power or value is always due, in some measure, to some financial knowledge or ability on the part of its investor. It would therefore be putting the value of the money too low to adopt the rate of 4 per cent. in discounting the payments to be anticipated in this case. Our opinion is that 5 per cent. is a more appropriate rate, and is fully warranted by the evidence. That is the legal rate of interest-the rate we are constrained to allow when none is stipulated and interest is due. It seems quite equitable that the discount charged to the beneficiaries in computing the present value of deferred payments should be at the rate at which interest would be allowed to the plaintiffs on a pastdue claim of similar character.

We have concluded, therefore, to reduce the amount of the judgment in this case to the present value of 11.7 annual payments of $1,500 each, that is, the net proceeds, or what would be the present or cash value, of $17,550, payable in 11.7 yearly installments, discounted at 5 per cent. The result of our calculation is that the plaintiffs are entitled to a judgment for $13,547.64, viz.: Amount. Divisor. Discount.

Cash Value.
$1,428.57

Years.

1,363.64

[6] The jury was not required by the federal Employers' Liability Act to apportion the award of damages among the beneficiaries of the deceased employé. Central Vermont Railway Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; Chesapeake & Ohio Railway Co. v. Kelly, 241 U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367.

SIN OF STATE.

Where a vacant succession falls to the state, the maxim of "Le mort saisit le vif" does not apply, and the state is not entitled to the seisin sion, nor does the state succeed to the deceased of the property depending upon such succesor become eo instanti vested with the ownership of such property.

2. ESCHEAT 7-VACANT SUCCESSION-SALE -CLAIMS OF HEIRS OR Creditors.

Property depending upon a vacant succession falling to the state remains in such vacant succession until sold, and then the proceeds of sale become the property of the state, subject, however, to the claims of the creditors or heirs of the deceased, if any appear. 3. TAXATION 631-TAX SALE-RIGHTS OF PURCHASER.

Where property of a vacant succession, which had been forfeited and sold to the state for nonpayment of taxes due prior to December 31, 1879, was sold in 1894 by the state under the provisions of Act No. 82 of 1884, the purchaser at such sale who complied with the requirements of said act and paid all taxes since due on said property acquired a good title as against the

state.

Action by Pierre Puyoulet against Mrs. Alfred Gehrke. Plaintiff's demand was refused in the district court; judgment of the court of appeal reversed the judgment below, and defendant applies for certiorari or writ of review. Judgment of Court of Appeal reversed, and judgment of district court reinstated and affirmed.

See, also, 136 La. 402, 67 South. 194; 141 La. 935, 75 South. 998.

Benjamin Ory, of New Orleans, for relatrix. A. D. Danziger and E. J. Meral, both of New Orleans, for respondent.

LECHE, J. On August 15, 1916, defendIant bound and obligated herself in writing to sell to plaintiff three certain lots of ground situated in the city of New Orleans, for a consideration of $3,200, cash, of which amount she acknowledged to have received $320. Plaintiff accepted the above proposal of sale subject to an examination of defendant's title to the property.

The Louisiana Abstract & Title Guarantee Company was employed by plaintiff, and that company, after examining the said title, disapproved the same. The present suit was The judgment appealed from is amended then instituted by plaintiff to recover double by reducing the amount to $13,547.64, and, the amount deposited by him with defend

ant as part of the purchase price, on the ground that defendant's title was suggestive of future litigation and neither clear nor unincumbered.

The district court, being of the opinion that the title tendered by defendant was good and valid, refused plaintiff's demand, but on appeal to the Court of Appeal that judgment was reversed. The findings of the Court of Appeal are now before us for review, and we are asked to reverse the ruling of that court and to reinstate the judgment of the district court.

presented to us in another form in this controversy. It is too plain to admit of discussion that if at the death of Warbeck in June, 1836, the full and perfect ownership of the property became by effect of law vested in the state of Louisiana, all the assessments and sales for taxes subsequently made by the tax-collecting department of the state were absolute nullities, and that the pleas of estoppel and prescription advanced by the defendant can be of no avail. It is not pretended that any part of the public domain could be divested from the state in any such manner. It is only as against titles acquired by the state in proceeding to enforce the payment of taxes that estoppels and pleas of prescription have ever been held to apply.

The admitted facts are as follows: The property was acquired on June 1, 1833, by Isaac Warbeck, who died June 11, 1836; Warbeck's succession was opened, but never was finally closed; Joseph Bres bought the property at tax sale June 25, 1894, for the unpaid taxes of 1876, 1877, and 1878, under an assessment in the name of Isaac Warbeck, the tax collector, acting under Act 82 of 1884; defendant acquired the property at sheriff's sale on December 27, 1900, under an execution issued on a judgment against Bres; the only claim made to the property on behalf of the state of Louisiana was by Flanagan, administrator, as appears in the decision of this court in the case of Flanagan v. Gehrke, 136 La. 402, 67 South. 194; de-natural children, is, according to articles fendant has paid all taxes assessed against said property since her acquisition of the

same.

The record further shows that defendant has been in the quiet, open, and undisturbed possession of said lots ever since she bought them. It seems also to be undisputed that Warbeck left no heirs and that his succession is vacant.

Defendant maintains that her title is valid and pleads in support thereof estoppel, and the prescriptions of 3, 5, 10, and 30 years against the state of Louisiana, the only apparent adverse claimant.

Opinion.

It ap

The law provides in C. C. art. 485, that the successions of persons who die without heirs, or which are not claimed by those having a right to them, belong to the state. Article 929 is to the same effect. Strictly speaking, the state acquires, not as heir, but in default of lawful relations, or of a surviving husband or wife, or acknowledged natural children. But even if the state be considered an heir, that heirship, like that of the surviving husband or wife, or his or her

878 and 917, irregular. The doctrine of "Le mort saisit le vif" does not apply to irregular heirs. Succession of Allen, 44 La. Ann. 801, 11 South. 42; Succession of Barber, 52 La. Ann. 963, 27 South. 363. The only persons who succeed eo instanti to the deceased are, under the terms of article 940, his legal or testamentary heirs and universal legatees.

From these provisions of our law it is apparent that the seisin which is effected by the operation of law in favor of the legal or testamentary heir or the universal legatee does not attach in favor of the state. In other words, the state is not considered as succeeding to the deceased from the instant of his death. Other provisions of the Code di

Plaintiff refuses to accept the title ten-rect the manner in which irregular heirs, dered by defendant on the ground that at the death of Warbeck the property devolved upon the state of Louisiana, and that the ownership of the state has never been divested. He rests his contention on the case of Cordill v. Quaker Realty Co., reported in 130 La. at page 933, 58 South. 819. pears that a suit was brought by Peter J. Flanagan, acting as public administrator for the parish of Orleans, in order to recover the property in dispute and to have the ownership thereof declared to be in the state. That action was petitory in character, and we held that the public administrator had no authority to institute petitory actions in behalf of the state of Louisiana, and dismissed the suit for want of capacity on the part of plaintiff. See 136 La. 402, 67 South. 194.

[1] The nature of the title which the state

who are not invested with the seisin, must demand the possession of the property of the succession before they can obtain the same. But these provisions make no mention of the state. The articles of our Code (925 and 930) provide for the manner in which natural children and the surviving husband or wife shall be put in possession of the effects of successions falling to them, but there is no similar provision in the Code in favor of the state. The corresponding article (724) of the Code Napoléon, on the other hand, recognizes the right of the state to be plac ed in possession of the effects of a succession which devolves upon it. Considering that the framers of our Code were guided in their labors by the provisions of the Code Napoléon, it must then be inferred that they purposely refrained from giving such right

(143 La. 321)

No. 22840.

RAINES et al. v. DUNSON et al. (Supreme Court of Louisiana. Oct. 29, 1917, and April 1, 1918. Rehearing Denied April 29, 1918.)

(Syllabus by Editorial Staff.)

On Motion to Dismiss Appeals.

1. APPEAL AND ERROR ~801(1)—MOTION TO DISMISS-QUESTION OF FACT,

On motion to dismiss appeals on the ground that the judgment appealed from had been acquiesced in by plaintiffs by partial execution thereof, presenting a question of fact on the letters annexed to the motion and the denial of their effect, the cause will be remanded to the court below to take testimony on the question, and the consideration of the case would be continued until such evidence was taken and filed.

(Syllabus by the Court.)

On Motion to Dismiss Appeals.
162(1)—“AcqUIES-

2. APPEAL AND ERROR
CENCE IN JUDGMENT."

The receipt by the appellant of a portion of the amount decreed to him by a judgment is acquiescence in the judgment and defeats an appeal.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Acquiescence in Judgment.]

and they annex to their motion copies of letters, addressed by the plaintiffs to the defendants, which authorize a dismissal of the appeal. Plaintiffs have answered the motion to dismiss, and set up that the letters referred to by plaintiffs have been recalled, and allege that there has been no acquiescence, in whole or in part, in the judgment appealed from by them.

There is thus presented a question of fact upon which evidence will have to be taken

before a proper disposition of the case may be made.

It is therefore ordered that this case be remanded to the First judicial district court for the parish of Caddo for the purpose of taking testimony upon the alleged acquiescence by plaintiffs in the judgment appealed from, and consideration of the case is continued until such evidence is taken and filed.

On Motion to Dismiss Appeals. The motion to dismiss the appeals in these consolidated cases is based on the alleged partial acquiescence by plaintiffs in the two judgments appealed from by them, as evidenced by copies of letters addressed

3. APPEAL AND ERROR-162(1)—AcquIES- by each plaintiff to C. E. Dunson and S. P. CENCE IN JUDGMENT-RESERVATION.

The acquiescence is not affected because the appellant, receiving part of the amount of the judgment, undertakes to reserve his appeal. The reservation cannot avoid the effect the law attaches to the acquiescence in the judgment. O'Niell, J., dissenting.

Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.

Separate actions by D. H. Raines and by Joe Herndon against C. E. Dunson and others. Judgment for defendants, dismissing the two actions, and plaintiffs in each action appeal, and R. T. Layne, styling himself an "intervener," seeks general relief. Appeals dismissed, and intervener denied any relief.

Barret & Files, of Shreveport, for appellants. Alexander & Wilkinson, of Shreveport, for appellees. Barret & Files, of Shreveport, and Blanchard & Smith, of Shreveport, for R. T. Layne.

On Motion to Dismiss Appeals. SOMMERVILLE, J. The two plaintiffs, in separate actions, sued the defendants for the cancellation of two certain mineral leases of ground located in the parish of Caddo. These two cases were subsequently consolidated, and tried together. There was judgment in favor of the defendants, dismissing the two suits of the plaintiffs; and plaintiffs have appealed.

Harrel, two of the defendants, of date September 12, 1917, stating that:

"In consideration of your promise of immediate development I have this day written to my attorneys, Messrs. Barret & Files, authorizing and instructing them to 'dismiss the appeal' in the aforesaid case as soon as the same is lodged in the Supreme Court in so far as same affects the following described land, to wit: [Describing portions of the land involved in these suits and covered in both of the leases from plaintiffs to defendants.] If Messrs. Barret & Files, my attorneys, should through any oversight fail to 'dismiss the said appeal' in so far as the aforesaid described lands are concerned, why then this shall be your authority to file in the Supreme Court and have said appeal dismissed, reserving, however, my right to prosecute said appeal in so far as the balance of the said land is concerned; and the release of the aforesaid described land is in no way to be considered or ment of the lower court." construed as being an acquiescence in the judg

The two letters were similar in all re

spects, except as to the descriptions of the lands, and they were signed by the plaintiffs respectively.

Defendants moved to dismiss the appeals of both plaintiffs, and that motion was opposed by plaintiffs, who alleged that their signatures to the two letters had been "obtained through the misrepresentation that it was satisfactory to" their attorneys; "that said letters were recalled and canceled as soon as the facts were presented to said J. H. Herndon and D. H. Raines [plaintiffs], and letters were immediately signed, [1] The defendants now move to dismiss directed to the attorneys herein, to continue the appeals on the ground that the judgment the appeals and to prosecute same to final appealed from has been acquiesced in by judgment;" and they attached copies of the plaintiffs, by a partial execution thereof, said letters of date September 26, 1917.