author: By John 3t.P0.nl, Juago.

text:
    NO. 7570.
    RICHARD BURKE VS ALFRED S. AMER CO. LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION

By John 3t.P0.nl, Juago.

The petition charges that defendant, la an Innkeeper; that in oonneotion with its hotel it runs a public hath house; that IHiüat plaintiff was in said hath house as a guest and patron, -two of defendant'8 servants engaged in an altercation; that in the course thereof one of said servants threw a glass at the other, which struck the wall and broke, and plaintiff was injured by the flying pieces.

The defendant filed an exception of no oanse of action on the ground that the aot complained of was not within the scope of the servant's employment; which exception the court maintained and plaintiff now appeals.

II.

She soundness of the law relied upon by defendant is not questioned, but plaintiff denies its application to the case at bar. He contends that the principle applicable hern is that by which carriers, Inkeepers, and others who cater to the public, owe a special duty to their guests and patrons, towit, that of protecting them whilst on the premises against the unlawful act even of a third person, if it be in the power of the master or his servants to prevent it; and a fortiori against the unlawful aots of the very servants themselves (See 22 Cyc 1080 1081 notes 2 and 3)

III.

That there is such a.rule applicable to Carriers, was established by the overwhelming weight of authority more than 80 years ago (See note to Ware vs Barataria Co, 35 Am. Dec. 189, 201) and it was applied to carriers by our own Supreme Court repeatedly. See, Williams vs Pulman Car Co, 40 An 417; Block vs Bannerman 10 An 1; Lafitte vs N. O. City & Lake R. R. Co 43 An 34.

IV.

Thera is however some conflict of authority as to whether the rule is striotly applicable to inkeepers and others who cater to the publio.

In Rahmel vs Lehndorff, 142 Calif 681, 65 L. R. A 88, the rule was held inapplicable to an lnkkeeper where a waiter had# assaulted and beaten a guest seated at a dining table. And in Curtis vs Dinneen, 4 N. Dakota 245, 30 N. W. Rep 148, the rule was heldAapplloable where a guest was maltreated by the husband of a woman innkeeper.

In Clancy vs Barker, 66 C. C. A. 469, 69 L R A 653, the U. S. Circuit Court of Appeals held that the rule did not apply to an inkeeper where a child, stopping at a hotel with its parents, was accidently shot and injured in the hotel by two bell boys who wore then off duty.

But in the very same case the Supreme Court of Hebraska, both on first hearing and on rehearing, held that the rule did apply to inkeepers and others of that sort. (See 98 N. W. 440; 1307 69 L. R. A. 642 & 648).

Also in Bommel vs Sohambaoher, 120 Penn state 579, 6 Am. State Hep 782, the rule was held applicable to the proprietor of a saloon who permitted one intoxicated guest to set fire to the olothing of another.

Likewise in Curran vs Olson, 88 Minn 307, 60 L. R. A 788, the rule was held applicable to the proprietor of a saloon whose bar-keeper permitted a practical joker to pour alcohol in the foot of a sleeping patron and set ########## it afire.

Again in Dickson vs Waldron, 135 Indiana 507, 24 L. R. A 483, the rule was held applicable to a Theatre Manager, where a patron was maltreated by a tioket seller and a watchman in a quarrel over ohange.

T.

m the three first mentioned opinions the doctrine contended for by da fondant was applied; towit, that the aot of the servant was beyond the scope o-f his employment and henos the master was not answerable•

In the fonr last mentioned opinions the rule applied was that the ttíéitté innkeeper or other oaterer to the publio, owed protection to his guests, and patrons even against the unlawful aots of third persons, when preventable, and a fortiori against the aots of his own servants*

71.

a From the foregoing it la manifest that there is a oonfllot to of authority as ###whether or not a rule, admittedly applicable to common carriers, extends to'innkeepers and others who aster to the publlo. And we have but to ohooae between these oonfliota and give our reasons for. so doing.

We think that rule followed by the Supreme Courtfof Indiana, Minnesota, Pennsylvania and Nebraska preferable to that followed by the Supreme CourtJof Horth Dafcatah and California, and the United states Court of Appeal.

We think so for these reasons;

1. Because the rule is not an unreasonable one; it does not require the innkeeper or caterer to insure his guests and patrons against all injury whatkwwr but simply against suoh as the master and. hie serrante oatt prevent; and some enoh rule la neoessary for the protection of guests and patrons of suoh establishments.

May 1919.

2. Beoause this rule aooorda with the prlneiples of Civil law, of Ooramon law, and of our on Civil Code, all of which hold the master responsible for the polloe of his own premises* Digest Lib 9, Tit 3; Blackstone Vol 1 p. 431; La Civil Code Art 177.

3. Beoause the mile is admittedly applioable to Carriers, and under the Civil Lawr as well as under our Code, the liability of Hi Innkeepers and carriers is exaetly the same. Digest Lib 4, fit 9; La Civil Code Art 2751. And under the French law this similarity extends to keepers of restaurants, ctffee houses, public baths etc. Sourdat de la Responsability Vol 2 p. 170 Section 939; Merlin, Questions de Droit, Vol 5 p. 187, Verbo Depot Necessaire; Troplong, du Depot, No. 229.

4. Beoause the modern tendency is undoubtedly towards thds rule, which we find approved in the following cases amongst others, though not strictly necessary for the decision thereof, towit, Lehnen vs Hines, 88 Kans 58, 42 L. R. A. N. S 830, DeWolf vs Ford, 193 N. Y. 397, 21 L R A N S 860.

The judgment appealed from is therefore reversed, and it is now ordered that the exception of no oause of action be overruled and the oase remanded to the court a qua for further proceedings according to law; defendant to pay coats of this appeal, and the other oosts to await final judgment.

. New Orleans, La,


source: Caselaw Access Project

author: Max DlaholBplol. Jado.

license: Public Domain

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    GEORGE SCHWARTZ versus W. S. McCRAW
    No. 7574.
   o ii s i o ir

Max DlaholBplol. Jado.

' This Is an aviation suit. MaCraw, the defendant, occupied ti» premisas 19££ Poniste» Street, under a laasa fro» tha Liberty Homestead, am agent far as unknown pr Inai pal, datad Sep- \ tambar 6, 1918, far ana year fro* Oatabor 1st., at a monthly ramtal af ‡40.00, payabla am tha lst.af as ah month, "ha laasa contains, amongst other previsions, tha folldwing:

"Should lassos booome owner of thin property, this laasa ta be null and raid."

Tha praparty la quastlam was put up for sale at anatlon In tha fettar part af Saptambar ar early part af Oataber. MaCraw, tha dafandant, and Sahwartz, the plaintiff, were competitive bidders at tha sala. One Harris B, Radmann became the adjndleatea. Tha deed ta him was made am Oatabar 19, 1918, and he In turn transferred tha property ta Sahwartz, tha plaintiff, two days -thereafter, ar Oatabar £1, 1918.

On tha 11th af Oatabar, 1918, whlah was aven befara tho data af tha deed ta Radmann, the attorneys far Sahwartz, acting under lnstraetienB from him, notified MaCraw ta vacate tha premises by the 1st af November. The rent far November and December was paid by defendant ta tha Liberty Homestead. Under date af December 14,1918, the attorneys far Schwartz wrote MaCraw that Sahwartz had fcntherlzad them to sallaet tha rents ah tha property, that tha lease which was made with tha Liberty Homestead had bean transferred ta Sahwartz, and that payments should be made to the attorneys at thalr afflaa promptly at the aenelusien of each month. lisCraw, after consulting with his attorney, who was Mr. J. Zaeh Spearing, advised the attorneys af Mr. Sahwartz th»t certain injuries t® the roof ana the water-pipes were causing considerable damage, and ended the letter by stating that he would be glad to take the Matter up with a view of amicably and satisfactorily adjusting the question, and expressing the hope that he and the attorneys for plaintiff would succeed in doing sc.

Be reply was received to that letter. It was daring the Christass week and also the second Visitation of the "flu", which was at its height then, therefore conditions genevally were very mush confused and unsettled. The rents prior, .'or October and Hevember, had been paid, as stated, to the Liberty Homestead Association, and under the advice cf Mr. Spearing Mr. MoCraw, the defendant, did not pay the rent due, because he was advised that Sohwartz had not yet become the owner of the property and there might be some trouble.

The rent due January 1st, 1919, not having been paid January 7, 1919, and there being no agreement, no acquiescence in delay, no waiver, no admission, and no equitable estoppel en the part cf plaintiff, the lessor, through his attorneys, insisted that payme.nt should be made promptly at maturity and tbet all terras of the lease should be strietly complied with, and on the 24th cf January, 1919, the present suit was instituted, alleging, amongst other things, that in violation of said lease the said W. S. MoCraw failed to pay the rent to petitioner due January the 1st, 1919; that owing to said failure on the part cf said MeCraw to pay said rent petitioner had notified him on January the 7th, 1919, to vacate the premises in question, and attached to. the petition a eopy of the notifioation, dated January the 7th, 1919, which notification was received by said MeCraw ten days previous to the institution of this suit; end the prayer was that defendant, MeCraw, be cited summarily by rule to show cause on a day and hour to be fixed by the court why Judgment should not be rendered herein in favor of petitioner, ana «gainst MoCraw, eondeming hi») to vacate said premisos Do. 1922 on Penisten Stroet, between Dryades and Ranpart Streets, in thiB oity, and to deliver possossion of tho sano to potitioner, and decreeing that upon his failure to oenply with sala Judgment Within twenty-four hours after its rendition a writ ef possession issue heroin, oammandlng the Civil Sheriff of the Parish of Orleans to eject hi* fro* said premises and put. petitioner in full possession thereof.

On the 7th of February, 1919, exceptions to the petition and rule were filed, setting up: (l) That the saae discloses no cause ef.action; (2) that plaintiff is not a proper party and has no standing in this suit; (3) that the same is too vague, general ?nd indefinite to permit exceptar to properly answer theroto; (4) the pre»)aturity of the suit. And in accordance with the order of oourt the defendant, through his ecuisel, on the saae day answered, reserving the benefit of exceptions, setting up:

1st: Admitting that by .?n agreement in writing the liberty Homestead icased to respondent the premises 1922 Penioton Street for a tern, of twelve months frop. the 1st of Oeteher, 1938, to 'September the 30th, 1919, at a monthly rental of $40.00, payable on the 1st day of eaoh month, and respondent alleges that said contract of leas* is the beat evidence oi its contents; further alleging that, though it is stated in the lease that the liberty Homestead leased the preperty to respondent, there in nothing to indicate the person for whoa tho homestead pretended to act as agent, and therefore the lease was entirely ano solely with tne liberty Homestead.
2nd: Denying that tho homestead had trsnsforred or assigned the loase to the plaintiff, and if this was done it was done witheut the knowledge of the defendant.
3rd: That tha allegations In tha patltlan being rngue, general and indafinita, and nat specifying whether tha natiae therein required naa giran verbally ar in writing, ar when giran, daniaa that faet, hat adulta that he raeeirad fren the attorneys af tha plaintiff a lettar dated tha 14th af Decantar, 1918, infcrn-ing hi» that the plaintiff was then tha awnar af tha preparty and requesting that paynenta- aheuld ha nada at tha affica af tha sttarneya for tha plaintiff, which letter was annexed ta and made part af the anawar; that when this occurred there was na rent due, and defendant did nat eenaant nor a «¡quiesce in the transfer af tha lease from the liberty Homestead ta plaintiff, ar any athar person; that there were defeats in said hailding which should he repaired, and which respondent, as ha was adrised and helierea, was not liable for, it being heeessary to repair the roof to one part af tha building and to repair a leak in one of the pipas orar the pantry, whieh was eausing considerable damage, net only ta defendant’s awn effeets, but to the building *taelf; that under the adrice af counsel there was written, an December 18, 1918, a latter to the attorneys af plaintiff, calling their attention ta tha neeesBity af asking the repairs, and avoiding any dlsausslon af tha effect of the transfer of the lease, hut nat aequieoeing therein, suggesting the desire to take tha natter up so that it could be amieably and satisfactorily adjusted, and a aepy af the letter in question is annoxod and nada part of tha anwor; that na reply was reoeired ta said letter, hut that defendant was ready, willing, able and prepared to pay the rent whan due, but that no demabd was nade upon hin either direotly or inaireotly far sane.
And further answering, respondent says he did net pay the rant te the plaintiff ea January the 1st, 1919, but denies that his failure te de ae was, under the faeta and clreuaBtaneea ef this ease, a Tlelatlen ef the lease, but ea the eentrary, claims and aliajes that he was well withim hie rights and was justified in acting as he did. He alleges further and denies that either the plaintiff or the liberty Hemestead made any demand, upen him fer the payment ef the rent due an January 1, 1919, either at that time or any ether time, and therefere, that he was in any manner in deafult. He denies, further, that he ever received from plaintiff any netlee te vacate the premises, as required, in the manner presided by law. Ho alleges that en er about January 9, 1919, he paid the rent fer the month ef December te the liberty Hemestead, from when he had rented said promisee, end the hemestead aecepted said rent, therefere he wap absolved from any fault or default er penalty fren any delay which night have existed in the payment ef said rent, the manner of the payment ef said rent being the same whleh had been fellewed by him during his oeeupaney ef the premises.. Further, respendent denias that the letter dated January the 7th, 191», « a eepy of whioh is also annexed to the petition, • is a notification to.vacate the premises as required and pravlded by law, and denlas that the said letter was served in the manner required hy law, or that the said letter in any manner complies with the law or is sufficient te base this suit upen. He admits that he is still in possession of the premises, and denies that plaintiff is entitled to the summary process ef the court or to any process whatever. He denies that he has in any manner violated the law or infringed the rights, if any, af the plaintiff. He does not admit that plaintiff has any of the rights asserted ty hi* in his petition ánd attempted to he anforeed in this suit. ' '.Therefore he prays the suit he dismissed, for eosts and general relief.

The only testimony in this reeerd are the letters alluded te and the testimony of V.'lUim J. Guate, one of the attorneys of plaintiff, of <7. Saeh Spearing, the attorney for the defendant, and of Hyman ISithsff, who v»as in the employ of the liberty Homestead Association; and from it all, together with the lease, we gather the faots to he as stated in the answer of the defendant in this cause. It is apparent, from an inspection of the lease, from the letters of plaintiff's attorneys and from the nets of plaintiff, that there was an attempt, from the beginning, to dispossess the defendant, and the very first ooport.unity that seemed to he available plaintiff endeavored to take advantage of. The defendant was ever ready and willing, and had always paid his rent promptly to the Liberty Homestead. He was a biddor at the sale of this property, but unsuccessfully so, and even prior to the title being made te plaintiff, or to his agent Redmann, there Was an attempt made to obtain possession by giving notice to the defendant to vacate, whlah was recalled.

It is evident, from the record in this case, that the defendant was not served with notiso to vacate in the proper way under the law. A eapy of this noties is in the record, showing that it was sent te defendant through registered mall, and there was nothing te shew that he had ever received it. On the trial of the ease, when the eeunsel's attention was called to this fact, he was given until the next day to prednee the letter. He failed to do se, but offered the testimony of Mr. Spearing in order to prove service on his client. He utterly failed in this.

The Civil Cede, Article 8157, speaking of the Manner in which obligations may be extinguished, under the head "Plaeo #f Payment" prewldes:

"The payment must be pade in the place spílfied la the agreement. If the place he act.thus specified, the payment, la ease.ef a eertala aa& deterainate substance,. nit he aade In the place, «here wan, at the tlae ef the agreement, the thing which la the fhjeet .ef It.
"These tne caaes excepted, the p&yaent Bust he aade at the dwelling ef the dehter." (Citing eutheritiea).

Article 2712 C. C. prcridea:

"Ica-Bajmcnt ef Heat. The leaaee aay he expelled fren the preperty if he falle te pay the rent when It heeeaes due."

These articles hare been construed by our Supreme Court in the 121 La. Reports, in the case of the Standard Brewing Company v. Andersen, at page 935. At page 941 of the sane ease, the eeart gees en te say:

"She punctuality required ef the lessee la the pay» seat ef his rent has heea designed selely fer the pre-teetiea ef the lesser, end eaunet he aliened te he eea-rerted In his hands Inte a means ef entrapping and ep-presaing the lessee."

In the case of Bacca v. Mandet. 3 Court of Appeal, 824, this ceurt held:

"Whena leaser, aeath after'’aeath, has, wltheut ehjeetlen er pretest, accepted the rental a few days after the maturity ef the aetes, he eanaet, wltheut prerleas aetlee te hla tenant, elala the ferfeltare ef the lease."

She ceurt gees en te say:

"She punctuality required ef the lessee in the pay» awat ef his reat has been designed selely .fer the pre-teetlea ef the lesser, and eanaet he allewwd te be eea-rerted in his hands Inte a Beans ef entrapping and ep> pressing the lessee."

Shis was fellewed by ether deelsleas, and we quete frea Ceurt ef Appeal Reports, Tel. 10, 105, Lafayette Realty Company v. Joseph Puglia. She syllabus reads:

"In the absence ef a stlpulatlea In the lease te the eentrary,. the rent Is payable at the dwelling ef the lessee.”

And In the bedy ef the deelslen, we fiad:

"She plaintiff, as laadlerd, sues te eaneel the lease existing with defendant-, ea the greuad.that the latter failed te pay preaptly the Installment ef rent fer Hay when It aatured an the last dayef that aeath. Ter the purpese ef shewing' that defendant was placed lm mera. plaintiff ralles solely npaa proof ta tha eifeet that defendant fallad ta comply with'the written natías servad upan him dbmandlng that ha.pay this la* stallnent of-rent at plaintiff*» pise» sf business promptly at aaturlty. Sha lasso* was within his .right* when he ignored this demand, for where, as In this ease, there Is ne spaelflaatlan la the lease as te the place where the rent should he paid, tha law prescribed that ’payment must be sad* at the dwelling ef the debtor' (K.C.C.2157). By formally tendering the rent, after aaturlty but prior te default and te filing ef this action, the defendant effectively stripped the landlord ef his right te cancel his lease on the ground alleged."

May _, 1919.

Act Hey 46 legislature ef 1918 dees net in any Banner aid thy&fandany iai this opuso. On the contrary. In ear opinion, it strenghtens defendant's rights.

ITe have thoroughly examined the deouments, particularly the lease, the notloe to vaeate, and everything'else pertaining to this cause, and we have ooae te the conclusion that tha only finding that Is possible in the oase, In eur opinion, Is that the Judgment ef the eeurt a one, dismissing plaintiff’s snit, was absolutely eerreet; and It Is therefore afflrned, with costs In both eeurts.

Hew Orleans,


author: Max Dlnheleplel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    STATE ex rel J. T. PROWELL, Curator ad hoc, versus VAL J. STENTZ, Judge of First City Court, Division on "B".
    No. 7577.
   OPIUIOlf

Max Dlnheleplel. Judge.

Ihls is an application for writs of certiorari and prohibition directed against the Honorable Judge of the Hirst City Court, Division "B". The proceedings oommeneed by writ of ^attachment, seizing the property of one P. 1. Short, which was bended, and Jones I. Prowell, surety, was subsequently appointed curator ad hoo.

Belator ayera that on March 6, 1919, he filed a motion to dissolve the said writ of attachment, as curator ad hoo, whloh motion was fixed tVYtrial by said eurator ad hoe for Monday, Mareh 10, 1919, and on that date the attorney for the plaintiff endeavored to go Into the merits of the case and try the exceptions and answer, and on the curator's objection to same the judge of the court continued the case to March 15, 1919, and on that date plaintiff endeavored to try the said ease on the exceptions and answer and relator protested and objected, on the ground that said oase had never been fixed for trial In aooordanee with the rules of the City Court and relator notified of fixing, and that curator ad hoo cannot waive any rights, as this Is a proceeding In rem. He states further that there had never been a fixing of this case for trial In accordance with the rules of the First City Court by being notified, in aooordsnoe with Buie 6, Section 1, - which rules were adopted by the First City Court December 8, 1904. He avers further that Buie 6 reads: "dll rules, motions and summary cases will be fixed after two days notice to the adverse party or hlB attorney; In all other cases two judicial days shall Intervene between servloe of the notice of trial and the day of trial. which notice of trial shall he serrad on the adrerse party or on his attorney of record." He farther arers that to he forced to trial of this case without being duly notified of same is a violation of defendant's right to hare a fair trial in accordance with law and the jurisprudence of this state.

On this application this court, through his Honor, John St. Paul, Issued the order nisi, directing the Judge of the First City Court to send up the record - whloh has been done - and that all matters he stayed until final disposition is made in this cause before this court.

The answer of the judge admits that on the 6th of March, 1919, defendant, through the curator ad hoc, filed a motion to dissolve the writ of attachment issued in the matter of Misick vs. P. I. Short, No. 88,321 of the docket of the First City Court. This motion to dissolve was properly fixed by the ourator ad hoc to be tried on Monday, March 10, 1919, at 10 O'olook A.M. On the latter date said rule, in due course, was called for trial, present: the curator ad hoc, J. J. Prowell, and Joseph A. Casey, attorney for the plaintiff. In the oourse of the proceedings oounsel for plaintiff placed on the witness stand his client, Mislok, to testify to the merits of this cause, and the curator ad hoc objected to plaintiff’s going to trial on the merits, as same was before' the court on the rule only. This objection was sustained by the court. Whilst on the witness stand, the plaintiff stated that he was about to leave the olty, to do business elsewhere, and could not possibly be present in the near future; thereupon the court, on its own motion, in the presence of the parties, set the case for trial, both on the rule to dissolve and on its merits, for Friday, March 14, 1919, at 10 A.M., without further notice. At the time of the court's ruling setting a date for the trial, no objection was made thereto by relator, but on the date set for trial the objection, at stated in relator'» petition for a writ of prohibition, was urged, and it was at once overruled by the court and the parties ordered to go to trial on the merit». Respondent judge shows that notice given in open court by the presiding judge therof, in the presence of the parties, is a substantial compliance with Rule 6, Seotion 1, of the First City Court, particularly when read in conjunction with Rule 9, which read» as follows: All pleadings by way of answer and exception must be filed within legal delay», at one and the same time."

We are satisfied that relator is not entitled to the writ» prayed for by him. The fixing of the case for trial by the court, in the presence of the relator, was an actual and substantial compliance with the rule» of the FirBt City Court. Rule 6, Section 2, provide»; "All injunctions, sequestration, attachment, provisional seizure and possession suits shall be tried as summary oases." This being a suit by attachment, therefore a summary oaae, the only notice necessary is the notice required by the first sehtence, and not the last sentence, of Seotion 1, Rule 6, which sentence provides that "All rule», motion» and summary oases will be fixed after two days notice to the adverse party or his attorney."

It is our opinion that it was the duty of the relator to have made his objection at the time the court fixed the case for trial for March 14, 1919. On Maroh 10, 1919, relator knew that the plaintiff, Misick, would leave the city about the 14th of March, 1919, and could not testify after that date, and he would be placing the plaintiff at a disadvantage if his untimely objection was maintained. And not having made the objection in time, he was estopped from subsequently, on the 14th of Maroh, 1919, making it, when he should have made it-on Maroh 10, 1919; and therefore his objection oame too late.

April _, 1919.

Besides, it ia wall established In our jurisprudence, amongst other things, that; "She supervisory Jurisdiction of the Supreme Court under a certiorari must he restricted to an examination into the validity of the proceedings held in the lower court- It cannot he exercised to review the judgment, either as to its correctness on the law or on the facts of the not case. The supervisory powers of this court must/he confounded with its appellate jurisdiction." (Citing 38 An., 968, State on the relation of Gooch, v. Justice).

"Application for a prohibition ashed to issue to a court which is charged with usurpation of jurisdiction, or exceeding its powers, will not he entertained unless an exception has been made to its Jurisdiction and overruled.” (State on the relation of Shakespeare v. Judge, 48 A., 607).

Article 867 of the Code of Practice, referring to the writ of certiorari, reads: "This mandate is only granted in cases where the suit is to he decided in the last resort, and whers there lies no appeal, by means of which proceedings absolutely void might he set aside, as when the Inferior judge has refnsed to hear the party or his witnesses, or has pronounoed sentenoe without having cited them to appear."

Por the reasons assigned, the rule nisi, issued March 20, 1919, is recalled, and it is further ordered that the writs of certiorari and prohibition are now refused, at the cost of relator.

Hew Orleans,


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    Lothman Cypress Co. vs. A. T. Dusenbury.
    No. 7578.
    June 19, 1919.
   CHARLES P. CLAIBORNE, JUDGE.

This is an action of jactitation.

~ By act dated January 12th, 1907, 1. W. Warrick sold to the L. W. Warrick Lumber Company:

A certain tract of land situated in the Parish of bt. Charles, known as the x-iorth half of section 32 in Township 11 Hast of the Mississippi River of Range 8 Sast containing 206.80 acres.

The assessment for the year 1908 for the purpose of taxation was made in the manner following:

L. W. Warrick Lumber Co:
A tract known as fractional 1/2 of sec. 32 in T. 11, Hast Bank of the Mississippi River - Range 8 E, containing 206.80 acres.
Value of Lands.$ 1500
" Horses. 1«0
” " ii/agons. 50
” " Stock in trade. 100
" " All other property . . ♦ 10.000
Total $ 11,830

By act dated April 26th, 1911, the L. W. Warrick Lumber Company sold the same tract of land to the plaintiff herein, the Lothman Cypress Company, for the price of $500.

At the time of this last sale the parties believed that all the taxes upon this land had been paid, and that they held the tax receipts. They were correct as to all the years except as to 1909. Concerning this year, this is what had happened.

On March 13th, 1908, the following document had been recorded in the Parish of St. Charles:

"Know all men by these presents: That, I, Alfred Jackson, of Hew Orleans, do hereby sell, transfer, convey, 3et over, and assign unto Joseph Becker also of Hew Orleans with all legal warranties and with full substitution and subrogation in and to all my rights and actions m warranty which j. may have against all former owners and vendors the following described property, to-wit:
All of Section 34
All of Section 33
S. S. 1/4 of Section 32
S 1/2 of N. E. 1/4 of Section 32
N. S. 1/4 of H. S. 1/4 of Section 32
S. 1/2 of S. W. 1/4 Section 32
N. E. 1/4 of S. B. 1/4 Section 32, and
lots 1. 2, 3 and 4 in uection 32 and
not 6 in section 31
All in Township 11 S. of Hange 8 E, S. 3. D. of La &c."

• This description included and embraced not only the fcorth half of Section 32 sold by Warrick to the Warrick Lumber Co. as above stated, but it also embraced lands owned by, and assessed to, W. L. Burton.

In the year 1909 an assessment wa3 made in the name of Joseph seeker corresponding in description to the lands mentioned in the pretended sale by Jackson to Becker. There was no assessment made on the name of Warrick for the Uorth half of Section 32; but instead the following assessment had been carried on the rolls for that year 1909:

"L. W. Warrick Lumber Co.
1 saw-mill plant, 1 million feet of lumber in yards,
3 mules, 1 buggy, 2 wagons
Kules.$ 165.00
Wagons. 45.00
Other property. 14,500.00
Total $14,710.00

The Warrick Lumber Co. paid the tax of 1909 upon the above assessment, believing that they were paying upon all their property including their lands as usual and not noticing the absence of any assessment of their "lands". Indeed, while the tax receipts for the years 1907, 1908, 1910 up to 1918,contain on the top left hand corner almost a copy of the different objects assessed such as lands, horses, vehicles and other property, and the valuation set upon each, it is strange that nothing of the kind appears on the tax receipt for the year 1909 - signed by the Deputy Tax Collector.

But the tax for the year 1909 as assessed against Joseph Becker for the Sections 32, 33, and 34 and others owned by War-rick and Burton was not paid. They were advertised for sale by the Sheriff; and on June 14th, 1910 they were adjudicated to the defendant.

On April 10th, 1912, W. L. Burton filed in the Parish of St. Charles suit Hp. 399 against Joseph Becker and A. T. Du-senbury ^In his petition he alleged that he was the owner of a portion of Section 32 purchased by Dusenbury in the above tax sale; "that Alfred Jackson had no title to the lands which he purported to sell, and had no deeds under private signature or otherwise transferring said lands to him, and that the sale from Jackson to Becker was a conspiracy to defraud him of his property, and an attempt by unlawful, fraudulent^ and corrupt means to acquire title to valuable real estate rightfully belonging to him; tiat the Sheriff of the Parish' of St. Charles illegally sold the lands described as contained in Section 32 and others; that the assessment^ upon which the said tax sale was made to Dusenbufy was illegal, null,and void, and that petitioner was entitled to have the sale based on said assessment annulled and the inscription thereof erased from the records of the Parish; that Dusen-bury was well aware of petitioner's ownership of said lands and of the error made by the assessor in describing them; that -for the last twenty years he had paid all taxes on said lands; he prayed for citation on Joseph Becker and A. T. Dusenbury, and for judgment declaring the assessments in the nans of Joseph Becker for the years 1908 and 1909 null and void and the tax sales made thereunder on June 14th, 1910 to A. T. Dusenbury to be null and void, and ordering the oanoellation of the sales above mentioned from the records of the Parish of St. Charles. Becker was cited at his domicile No. 2720 Marengo Street in the City of New Orleans. He filed no answer, and as to him there was a judgment by default. Dusenbury filed a general denial. There was judgment on July 5th, 1912 annulling the tax sales of the properties of W. L. Burton made June 14th, 1910, annulling the inscriptions thereof, and recognizing Burton as the owner of the lands claimed by him. No appeal was taken from said judgment.

Notwithstanding this judgment, Dusenbury continued to assert title under his tax sale to that portion of Section 32 owned by the plaintiff. Thereupon the plaintiff filed this suit in March 1914. It alleged that it had purchased the property from the Y/arrick Lumber Company on April 26th, 1911 - duly registered, and gave the chain of its title tracing it back by mesus conveyances to the United States in 1849; it alleged that neither Joseph Becker nor his author, nor Dusenbury had any title to said property;it recited all the facts hereinabove stated and prayed for judgment ordering the cancellation of the tax title of Dusenbury with $300 damages, as attorney's fees.

Dusenbury denied plaintiff's ownership, ard admitted that he claimed to be the owner of the property by virtue of his tax title which vra.s neither fraudulent^or null and void; he denied that plaintiff had ever at any time acquired any title to the property or that its title was registered, and he averred that by deed executed by Hon. A. Madere, Sheriff and Ex-officio Tax Collector of the Parish of St. Charles dated the 14th. d.ay of June, 1910, registered on June 29th, 1910 in the Parish of St. Charles, Conveyance Book "0" folio 727, he acquired all the portion of section 32 described in the act of sale by Jackson to Joseph Becker for the unpaid taxes of said property for tbe^yeg^ 1909, assessed in the name of Joseph Becker; and he pleaded fahcfe-prescription of three years.

There was judgment on February 10th, 1919 in favor of plaintiff and against Dusenbury cancelling the tax title asserted by Dusenbury and for $300 damages as attorney's fees.

From this judgment Dusenbury lies appealed.

The judgment, annulling the tax title of plaintiff's property assessed in the name of Joseph Becker was undoubtedly correct. The plaintiff and its authors had continuously for years past paid their taxes upon proper assessments. The assessment of their property for the year 1909 in the name of Joseph Becker, and the omission to place opposite their names upon the assessments rolls any "lands" as had been done in all prior years, and the act of increasing the assessment on personal property to take the place of the lands not assessed, was an error or a fraud, which cannot prejudice the time owner. When the Warrick Company paid all the taxes assessed against it in 1909 it was equivalent to a payment upon all the property owned by itl^This Court has decided upon the authority of repeated decisions of the Supreme Court, that a payment of taxes under an assessment made in the tax payer's name operates as a payment of the taxes due upon the property belonging to him. Purcell vs. Seeger, 10 Ct. App., 308 - even though the assessment upon which the taxes were paid did not properly describe his property, but on'the contrary more aptly fitted some other property. 11 Ct. App., 17; Page vs. Kidd, 121 La., 2; Bernstine vs. Leeper, 118 La., 1099; Kellogg vs. Mc Fatter, 111 La., 1037, 1046, 1047; Lefebre vs. Negrotto, 44 A., 792.

The sale for taxes of property upon which the taxes have been paid is an absolute nullity. 44 A., 792; 115 La., 351, 357.

Such a sale is specially excepted from the prescription of three years.by Article 233 of the Constitution of 1898.

As we have come to the conclusion that plaintiff had paid the tax of 1909, it follows that plaintiff is not bound to reimburse to the defendant the price paid by him at tax sale. 44 A., 792.

It is true that attorney's fees, as such, are not allowed as costs to parties to a suit. 17 La., 263; 19 La., 357; 13 A., 193, 502; 14 A., 759, 311, 826; 48 A., 992; 52 A., 1071; C. P., 552; 125 La., 529; Sedgwick Damages Marginal pages 37, 95.

Nor are damages allowed when the parties have reasonable grounds to believe that they^jjave a good cause of action which they ate honflstly'preniiatiwgI/% 14 La., 48; 19 La., 360; 12 A., 873 (878); 14 A., 192 (193); 25 A., 230; 35 A., 698, 466; 36 A., 333, 377; 15 Wall, 230; 48 A., 992; 52 A., 1535; 130 La., 658; 3 Am. & E. E. Law, 446.

But when either party is acting dishonestly or maliciously,he is liable in damages-. Thus it has been said that "if it appeared that the defendant had no color of title when he instituted his petitory action, malice might perhaps be inferred from that circumstance". 14 La., 50; 2 R., 331, 336; 32 A., 697.

Attorney's fees were also allowed as an element of damage when the action of the defendant vías wrongful and the services of an attorney became necessary to rectify the wrong. 106 La., 304, 307.

In 130 La., 657 (661) which was an action in the nature of slander of title and for damages against deféndant for recording an adverse title the Court said: "Defendant acted without malice and in good faith, and hence owes no damages". The converse of this proposition must be true, that defendant owes damages if he acted with malice and in bad faith. As we have seen heretofore malice might be inferred from the time defendant-knew he had no title.

The defendant may have been in good faith at the time he purchased at the tax sale against Becker in July, 1910. We do not find it necessary to decide this point. But after the suit filed by Burton against him in April 1912, and after the trial and judgment against him shortly thereafter, in which he acquiesced, knowledge was brought home to him that Jackson had no title whatever to those lands he pretended to sell to Becker, and that therefore Becker had no title either, for no one can transfer a greater right than he has himself, He must have understood and realized therefore that Jackson had. perpetrated a fraud upon the real owners of the land, and upon Becker if he was innocent; and that inasmuch as Becker bad no tile to those lands, defendant could have acquired no title at a tax sale against Becker, and that by persisting in asserting title under such a tax sale he was assisting in giving continued effect to the fraud and was therefore in bad faith. Becker had made no d.efense to the Burton suit, which was a tacit admission of all the allegations of the petition. In tbe present suit, tbe defendant did not produce Becker as a witness to deny all the allegations of fraud and conspiracy, or to maintain bis good faith or tbe validity of his title. Nor V/S.S any attempt made to produce Jackson also of Hew Orleans.

We are therefore of opinion that when Dusenbury continued to assert title to the plaintiff's land after the judgment in the Burton case and after the institution of this suit ir. Karch 1514, he was not in good faith and that in legal intendment he acted maliciously. He denied plaintiff's title and asserted his own. He is therefore liable in damages. The only element of damage is the plaintiff's attorney's fees. The value of the lands has been fixed in plaintiff's title of $500. We think $300 rather excessive and wil] reduce the amount.to $150.

It is not essential that plaintiff should have had actual physical corporeal possession of the lands claimed. Defendant himself only claimed civil possession, In such a case the Supreme Court has said in Atchafalaya Land Co. vs. Brownell Co., 130 La., 657:

"A party claiming ownership by title duly recorded, but who is not in actual possession, may sue another, also out of possession, for slander of title, caused by his recording a title".

Biit the name of the action is immaterial. Suffice it to say that plaintiff had a cause of action when he alleged that he was owner of certain lands, and that defendant claimed ownership thereof by virtue of a recorded title, which was a cloud upon plaintiff's title which he wished to have removed. Act 58 of 1908 page 38 covers this case, '

H That in all cases where two or more persons lay claim to land by recorded title and where neither of said claimants are in edtual possession of the land so claimed, either of the claimants may bring suit against one or all the adverse claimants in tbe same suit as defendants, to have the titles to the land adjudicated upon by tbe Court having jurisdiction of the property, and it shall not be necessary for the plaintiff to allege or prove possession in himself or the defendants,and this action shall be known as the action to establish title to real estate, and the judge shall decide which of the claimants are the owners of the


author: By his Honor John 8t. Paul.

text:
    NO. 7583
    SUTHERLIN CONSTRUCTION CO VS CITY OF GRETNA.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By his Honor John 8t. Paul.

z IThis is an action by a contractor for a balones allegad to be dne^fe* for constructing its waterworks system.

J Phe petition alleges, the answer admits, and the evidence shows, that the contract was let for the lump sum of $46830. with a provision that any surplus or shortage of material furnished should be adjusted at certain prices fired in the contract. Phare was an agreed deduction of $2840, for a pump not furnished, and the contractor admits a# deduction of $114.70 for some 12 inch pipe also not furnished; thus . 8 leaving a net contract price of §4375.20.

In the same way it is admitted, and proved, that there was extra work done amounting to §4423.51; thus making the total gross amount due the contractor §48298.81.

It is also admitted, and proved, that payments were made to the contractor amounting to §47966.48.

So that if we elimínatelesrtain deductions which the defendant claims there is still due the contractor a balance of §332.33 above other clAims which he makes herein; all of whioh will more clearly appear by reference to Item A of the memorandum annexed hereto.

II.

As the defendant olalms that the payments wiped out the account in full, and as the deductions to whioh we have refsread* amount to only §193.86 (as per Item B of the memprandnm annexed) there is a difference of §138.47 between the defendant and ourselves.

But we have not attempted to analyse the details of that difference, as we are satisfied that defendant has followed an erroneous method in its accounting,

Ehd contract very dearly provides for a lump sum for the work, subjaot to additions or deductions at oortaln fixed prioea. But the oity engineer prooeeded in his estimates as If the contract provided for "unit prioea»"

Of oouraa If the unit prioes (whioh may hare served aa a hasis for reaohing the lump sum) were exactly the sane as the prides fixed * hy the oontraot for additions and deductions, then the result wpuld neoesaarily he the same; hnt a oomparision of the prices fixed in the oontraot with the unit prices used hy the engineer, shows that the prices were not the same (See first 9 items of Defendant's Exhibit B, Document £8, and compare with same items on page 2 of original oontraot, Dooument 19). And as the engineer used higher prloet than allowed hy the oontraot, of oourae his deductions would always he greater; whioh aoeounts for the difference aforesaid.

III.

She deductions whioh the defendant olalms the right to make, amounting to $193.86 as detailed in Item B. of the memorandum annexed, are arrived at hy snhtracting^from the total length of pipe measured "overall/ ^ the apaoe¿oeoupied hy erosaes, tees and valves; on the theory that these spaces are not oooupled hy pipe, hut hy these special eastings, which hawe been paid for separately.

She uhoontradioted evidence of a number of reputable and this disinterested engineers, familiar with class of work, shows that it is the universal custom to measure pipe laid in trenches "overall", without deduotion for spaoes occupied hy tees, crosses and valves; that the wotk at and around the special oastings is greater and more oostly than the laying of straight pipe; that the presence of these speoials in a line la an added expense and not a saving to the oontraotor#;#feiS# that all contractors make their bids on the basis of overall measurements; and the evidence is that the bid in this case was made with regard to that otatom.

under the ciroumstances the deductions cannot be allowed; sinoe well known customs enter into all contracts and form part thereof unless clearly meant to be excluded. C. C. 1903, 1964, 1966.

IT.

The contractor claims additionally the sum of $514.19 as detailed in Item 0 of the memorandum annexed.

Of this amount the sum of $240.24 is for 364 feat of 6 inch pipe at 66 cents for foot. This elaim grows of th- extra work fof ’•/kich plaintiff was allowed payment. On defendant's Efchibit E, Document, 28, Sheet 1, it appears that by overall measurements plaintiff laid 3733. 8 feet of 6 inoh pipe for this extra work;; but the engineer allowed him pay for only 3369.8 feet, deducting 364 feet for the 3paoaa occupied by specials.

Eortthe reasons whioh we have Just given (in the seotion whioh preoedes this) we think the deductions should not have been made, and that plaintiff is also entitled to recover this amount viz $240.24

Plaintiff olaims also the sum of $129.75, on what is oalled Force Accounts Hos 1 and 2 ($26.75 plus $103.-)

The claim is for §##§## alleged extra work. To support it we hare only the testimony of plaintiff's superintendent who says that the work for whioh the claim is mads was not covered by the contract and should be paid for as extra. Opposed to this is the testimony of the City engineer who holds that the work was within the contract and was not extra.

this It is therefore simply a matter of opinion whether #f##work was, or was not, covered by the contract.

ft The witness seem to differ honestly, and we are unable to determine whioh one of them is right. But as the plaintiff must make the claim oertain and has failed to do so, we are bound to rejeot it.

Plaintiff also olaims that the defendant kept oertain lengths of left-over pipe, or Junk, as detailed in Item I) of the annexed memorandum, for whioh pliintiff should be paid.

But from a oareful consideration of the evidence as a whole and of the different exhibits herein filed, we are of opinion that all these left over pieces of pipe were included in and formed part of the overall measurements for which plaintiff contended and whioh we have allowed. This claim must therefore be disallowed.

V.

In re convention defendant claims $75 which, it paid to a party ■who had been ohosen to act as arbitrator J.n this matter whan at one time it waa proposed to submit thia controveray to that method of settlement.

The evidence shows that plaintiff's superintendent agreed to such a submission, but that he had no authority to do so, and his principal did not approve of his act. It further shows that the arbitrator’s fee had been fixed at $150, of which each party was to oay half; and that whan plaintiff refused to approve the submission, the defendant had already submitted to the arbitrator its contentions and proofs; wherefore defendant thought that the arbitrator ifeító was entitled ex aequo at bono to some compensation, and so paid him its portion of the fee which he was to have received.

As defendant paid only its own portion of the agreed fee, which it would have had to pay even if wholly discharged by the award, (and perhaps paid even that without any strict legal obligation to do so under the circumstances!, we are at a loss to understand why plaintiff must reimburse it. But however that may be, the fact that defendant's superintendent was not authorized to make the submission ends the matter, as there was no reason to presume that he had such authority, whioh must always be express and special. C. C. 2997, 3101.

The judgment appealed from is therefore reversed, and it is now ordered that there he judgment in favor of plaintiff the Sutherlin Construction Co, and against the defendant the City of Gretna, for the full sum of Five hundred and Seventy-two 57/100 Dollars (#572.57) with legal interest from June 15th 1916 until paid and the costs of both courts; and it is further ordered that the reoonventional demand of the defendant be rejected at its cost.


author: Max P1 nk e 1G p 1 c 1 . Judge.

text:
    PARISH OP OBIEAHS COURT OF APPEAL
    ROZELL McWILLIAMS versus MISS AGNES J. FLANAGAN
    No. 7586
   O P I H X O II

Max P1 nk e 1G p 1 c 1 . Judge.

This suit is based on the following stipulations:

"Aiay 21st, 1917.
"R. MoWilliams,
"Real Estate Agent, City.
"Dear Sir:
"I hereby offer through you, to purchase the following property, to-wit:
"The property known as number 1525 St. Andrew Street with all grounds and improvements appertaining thereto, including all mantels and . for the sum of Thirty-five Hundred Dollars ($5500.00).I will pay the tares due and exigible in 1917 over and above the price of my offer. Act of sale to be taken on or before July 20th, 1917. Dr. Howard King to pay rent for promises from August 1st to September 30th, 1917, at the rate of $25.00 per month .....
"If this offer is accepted I will deposit (5yo) five per cent of the amount of above offer, act of sale at my expense and before F. Puig or any notary at my choice, notary public, which I bind myself .'to sign and pay to vendor purchase price provided the title is found on examination to be good, otherwise the sale is off, and the deposit made by me shall be returned.
"In case I fail to comply with above offer, if accepted, I agree to pay all loss and damage the said R. L'c"illiams may sustain by my failure to comply with my part of this agreement and also attorneys1 fees which the said R. Kcf/illiams may incur in suit to recover suid lots and damage.
(Signed) "Agnes J. Flanagan".
"I hereby accept the offer and terms made, and will pay R. McV/ill-iams a commission of Three (3) per cent for making sale.
(Signed) Howard D. King, K. D.,
acting for lira. Howard D. King."
(Signed) "Era. Howard D. King.

Appellant appeared in the suit and filed an exception of no cause of action. This exception being overruled, and no answer being filed, plaintiff took judgment against defendant by default. From that judgment defendant takes this appeal.

Article 1890, R.C.C., provides:

"Stipulations for Benefit of Third Persons. A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in-his favor, the contract oan not he revoked, (Citing numerous authorities).

Article 1902 of the Revised Civil Code provides:

"Stipulations for the Benefit of Third Persons. But a contract in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, can not be revoked as tb the advantage stipulated in his favor without his consent."

Article 1901, R.C.C., provides:

"Effect of Contracts. Agreements legally entered into have the effect of laws on those who have formed them.
"Ihey cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
"Ehey must be performed with good faith."

In the case of White v. Hart, 13 Wallace, 652, we quote from the syllabus:

"Agreements cannot be impaired by a constitution any more than by a legislative act."
"Contracts must be kept to the letter." 115 U.S. 108, Norrington v. Wright.
"A not required to demand performance of him who halgewressly refused to patona his obligation.” 15 An., 247, Abels v. Glover.

The case of Stockton v. Hyde, 5 An. 300, is to the same effect.

She defendant, in his brief, cites, amongst other authorities, the ease of Escoubas, et als. v. La. Petroleum Co., 22 An., 283, and also the case of Denis, Danziger & Tessier v. Tilton, 120 La., 226. She first of these cases has no application whatsoever to this case. In the last case, the court held that Mrs. Silton authorized the real estate firm of Denis, Danziger & Tessier to sell for her property on Canal and University Place for |126,000.00, on terms. Amongst others was the following - that no sale was expected to be made of.the property under the action by the plaintiff. Defendant insisted that before any sale should take place under the agreement the purchaser, Fornaris, and herself should come to an expressed specific agreement as to what kind of a hotel he would erect on the property, or when he should erect one, and that the terms of the agreement should be inserted in the act of sale. Fornaris declined to enter into an agreement on those subjects. Failing to agree, the 6ale fell through, therefore plaintiff , the real estate firm, sued for their commissions, and defendant under the circumstances was held not hound, because Fornaris accepted in these words: "April 13, 1905. Sold to S. V. Fornaris as per written authority."

June _ 1919.

Che stipulation in the present litigation was fulfilled by the real estate agent, KcWilliams, and there was no fault on his part in any wise, hence we consider that he is entitled to the amount of his claim, together with attorneys' fees; and, for the reasons stated, the judgment is affirmed.

Hew Orleans,


author: CHARLES F. CLAIBORHE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    GEO H. MAGNER VS. FAIRCHILD MOTOR CAR CO., INC.
    No. 7587.
    June 12th, 1919.
   CHARLES F. CLAIBORHE, JUDGE.

This la a damage suit baaed on the failure of the vendor to deliver the thing sold. The plaintiff alleges that one Emile A. Rainold purchased from the defendant a new automobile, and in part payment thereof gave a number 42 Five passenger second hand ''Oldsmobile; that knowing the value of the automobile ao given in payment by Rainold ho authorized him to offer the defendant Company $500 for the same; that the defendant Company accepted the offer and advised Rainold that the car would be delivered on March 31; that on April 2 the defendant Company notified Rainold that the car had been sold and delivered to some one else and could not be delivered to him; that petitioner could not buy another second hand car of same grade and value unless he had had previous experience with it and that dealers refuse to guarantee them; that a new car of the .same size and make is worth $1250, and that therefore defendant owes him $750; that he had spoken of his purchase to a number of his friends and even made engagements to take some of them out on a ride; but that the failure of the defendant to deliver the car to him had caused theso friends "to joke, annoy and ridicule" him, and that he was not only "bitterly disappointed" in not receiving the car, but "was in addition likewise humiliated" to the extent of $750; wherefore he prayed for $1500 damages.

The defendant admitted the sale to Rainold; admitted failure to deliver the car to him for the reason that toe oar had been sold to another in ignorance of the previous sale to Rainold -; but denied that the plaintiff could not have bought another second hand car.

There was judgment for defendant and plaintiff has appealed.

Mr. Rainold testifies that, through Mr. Miller King, acting for the defendant Company, he purchasd^Bf defendant a car for the price of $1250, in payment of which he gave a car he owned at a valuation of $600 and cash for the difference; King offered to sell to plaintiff the car he had given in payment, hut they could not agree about the price; at the request of plaintiff he rang up the defendant and offered $500 for the car; Mr. King answered him that Mr. Hardie, the president of the Company accepted the offer; this was on Friday March 30th; on Manday, April 2d, Mr. King informed him and the plaintiff that through a mistake Mr. Hardie had sold the car to another party; Mr. Hardie told him over the phone that he was sorry, but that he had made a mistake in selling this car; Hardie added: "We all sometimes make mistakes"; witness replied to him, that that was true, but that they were both over 21 and when he made a mistake he was responsible for it and he presumed that he (Hardie) would have to be responsible for this one”; on the same day he tendered Mr. Hardie a check which was declined and also wrote him a letter; Mr. Hardie told him he would try and get the car back from the oarty who had purchased it; the plaintiff did not buy any other car, nor did he try to buy one through witness.

Mr. King corroborates Mr. Rainold. He adds that Mr. Har-die was in good faith in the matter, and that he tried to get other second hand cars for Mr. Magner; Mr. Hardie sent 'him out to see the man who had bought the car with a view of getting him to return it, but the man refused; then Mr. Hardie went to Zilbermann and got two cars second hand Oldsmobile.

The plaintiff testified that he knew Mr. Rainold's old car and had ridden in it often and no accident had happened; that Rainold had refused to take less than $600 for it; that he had business in Westwego, Jefferson Parish, and that is why he wanted a car; that he saw a car that suited him but tne owner wanted $800 or $900 for it; it was second or third hand; he did not buy any other car; the whole Sugar Exchange knew about his buying this car; after the deal fell through "they all started to guy and kid him and even up to this day they still joke him right in front of everybody".

C. F. Hardie, president of defendant Company testifies that after making the sale to Mr. Rainold Mr. King said to him one day that Mr. Rainold would like to huy his car for $500; he told him it was allright and to let him have it; some days after, one of the salesman in his store told him that he had a sale for the Oldsmobile; he asked his bookkeeper if he had a contract with' Mr. Rainold, and, being answered in the negative he told the salesman to sell it; he afterwards learned the facts; ■he suggested to Mr. Rainold to allow him to buy another car of the same model and type; he had called on Mr. Zilbermann and told •Rainold he had two cars like his old car; Mr. Rainold refused and said that be intended to teach him a lesson in regard to such transactions; he spoke to Mr. Rainold’s brother and tried to prevail upon, him to talk to his brother and ask him to call at their place of business with a view of making other arrangements to purchase a used car; he could have secured other Mrs. for Mr. Rainold easily if he had been given an opportunity;-fee-said he wanted this specifio car and no other.

The letter addressed by Mr. Rainold to the defendant on April 2d is in the following words:

"Fairchild Motor Car Co., Inc.
Dear Sirs,
Confirming phone conversation held with your Mr. Ear die this morning, I was very much surprised to lean: that you made the mistake of reselling the model 42 five passenger second hand Oldsmobile, formerly belonging to me, and which you resold to me through your agent, Mr. Miller King, on Friday March 30th for $500 which amount I now tender to you according to agreement and am ready to pay on delivery of the car. I have been ready to take and pay for the car ever since I bought it but at Mr. King's request I waited until to-day to call for the car,as he claimed it was necessary to make some repairs on same and he could not deliver the car before to-day. I now make formal demand on you for my car and if you do not deliver same at once, I beg to notify you that I will hold you responsible to fullest extent that the law allows".
On April 14th, 1917, plaintiff’s attorney addressed the following letter to the defendant:
"Fairchild Rotor Car Company.
Gentlemen;
Since my conversation with your Mr. Hardy, X have seen Mr. Bnile A. Rainold, and he declines to make any other proposition than the one covered in my letter of April 3dj that is, that he considers himself damaged to the extent of $1600.00. Mr. Rainold tells me that Mr. Mysing phoned him twice in your behalf, and that he told Mr. Mysing that if you would make a proposition, he would take it up with his friend to whom he had agreed to sell the car, and would see whether the matter could be adjusted. Mr. Rainold does not consider that your offer to keep him advised regarding bargains in second hand cars is worthy of serious consideration. Unless the matter can be settled amicably, I am instructed to file suit".
Yours truly,
William C. McLeod".

The theory of an action in damages is to grant compensation or indemnity to the plaintiff for the injury suffered by him resulting from an offense or from the breach of an obligation, and to restore him as much as possible to the same situation he occupied prior to the injury. The rule by which this object is attained differs with the causes which gave rise to it. ^hus by his failure to perform an obligation to pay money the debtor owes interest; this fixed and immutable. C.C.,1935 (1929). When the object of the contract is anything but tha payment of money, and the damages suffered from its violation are pecuniary and are susceptible of definite estimate by a pecuniary standard, then the damage consists in a pecuniary compensation for the pecuniary loss sustained or for the pecuniary loss suffered, and as to these the Courts have no discretion. These are compensatory damages. C.C.,1934 (1928). But when the injury suffered is not susceptible of pecuniary measurement of reparatiim and does not admit of definite ascertainment in dollars and cents as where the contract has for its object some physical or intellectual enjoyment, not appreciable in money, damages are due for its breach, but are left to the discretion of the judge. C. C., 1934 (1928) § 3. These are nominal damages which are allowed only to recognize,vindicate^or determine the right violated. These damages are unknown to the Code Napoleon. There the damages, it seems, must be pecuniary. 24 Demol § 565; 2 Dalloz Codes Ann. Art. 1149 p. 1048 § 28.29.

In every contract of sale when the object sold is not unique of its kind and. is not connected with any manner of sentiment, but may be duplicated upon the market, the damage sustained by the vendee resulting from the failure of the vendor to deliver consists in the loss he has sustained. That loss is the sum he would have to pay for another article of the same kind. 6 M., 553; 1 Pothier Oblig. p. 102 § 161; 24 Damol § 583; 2 Delvincourt p. 532 (4); 13 La., 225; 4 A., 24; 14 A., 45; 788; 20 A., 291; 24 A., 344; 36 A., 425; 11 La., 729; 29 A., 286; 108 La., 247; 109 La., 1023; 111 La., 394, 395; 124 La., 590; 127 La., 350; 128 La., 121; 130 La., 388 (400); 35 Cyc 615 (b), 633 (c), 640 (VII).

But plaintiff made no effort to buy another car, and refused defendant's offer to procure another for him of like make and in equal condition. Pis ultimatum was a new car plus $750 damages. As far as the demand for the new car is concerned, it was not justified by law. Article C. C. 1934 and the common lav; upon the subject merely-undertake to secure a full indemnity to the disappointed purchaser, but does not contemplate giving him an opportunity to speculate to his advantage at the expense of the vendor. 6 A., 491; 4 Colo. 7. He had bought for $500 a second hand car which had seen two years service, and .there was neither lav/ nor equity in his demand for a new oar costing $1250. By failing to buy a second hand car and by refusing to allow the defendant to procure one he put it out of his power to ascertain the amount of damage he had sustained. There is no contention that there were no other second hand numb er 42 five passenger Oldsmobile on the market; on the contrary, the defendant testifies that he knew of two such, and his testimony is corroborated by King.

The case of O'Meallie vs. Morean, 116 La., 1020, is distinguishable from the one under consideration. That was a case when a contract for physical enjoyment end gratification was breached and was governed by § 3 of C. C., 1934; the object of the contract was designated as the Lake Breeze Park and no other} and there was no other Park identically alike, * either on the market or elsewhere. That ie not the case with an automobile which has its duplicate upon the market. Upon the same line is Lewis vs. Holmes, 109 La., 1030.

The case of Burdette vs. Steward, 107 La., 258, did not arise from a contract. It was based upon a violation of a legal right claimed by plaintiff under the Constitution and Jaws of the State to insepot the books of the Corporation as a stockholder thereof. It was an offense.

Inasmuch as the plaintiff's action was for the increased price of an automobile, he cannot have, in addition, an action for disappointment and vexation. We know of no decision granting such right. The failure of the defendant to deliver the machine could not be a source of humiliation to plaintiff. The fact that the plaintiff's friends "all started to guy and kid him and joke him-* upon the subject caused him no pecuniary damage for which the defendant is liable.

The judgment was for the defendant and it is affirmed.

June 12th, 1919.


author: Max Dirikelspiel, Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    MRS. MARGARET O'HARA, Widow of Thomas J. Burke versus AMALGAMATED ASSOCIATION OF STREET AND ELECTRIC RAILWAY EMPLOYEES OF AMERICA.
    No. 7589.
   opinion

(On Motion to Dismiss)

Max Dirikelspiel, Judge.

The motion to dismiss this appeal is filed upon two grounds:

1. That under Act of the legislature of 1916, Do. 112, Section 4, "Ho officer of any court shall accept any bond, unless each surety thereon shall have made oath that he is worth, over and above all his debts and obligations, in assets that can be subjected to levy under execution the amount for which said surety has bound himself in said bond, and unless the parpy furnishing such bond shall have made oath that he is informed and believes that each surety on said bond is worth, over and above said surety's debts and obligations, in assets that can be subjected to levy under execution, the f-amount for whioh said surety has bound himself in said bond, provided that the provisions of this section shall not apply to Surety Companies author" ized under the laws of this state to do business in this state."

It is admitted that the surety on this bond is not a surety company authorized under the laws of this state to do business in this state. Do affidavit of the prinoipal on the bond has been furnished, and it is claimed, therefore, that under the terms of the not, particularly Section 10, the suspen-sive and devolutive appeal herein taken should be dismissed.

2, The second ground of the ir.otion to diSB.iss is that the appeal was r.ot perfected by the filing of a bond within ten days.

Under Article 575 of the Code of Practice, "If the appeal has been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, when such notice is required by law to be given, it shall stay execution and all further proceedings, until definitive judgment be rendered on the appeal; provided, the appellant giveB his obligation, with good and solvent security ....... "

In our opinion, neither ground for the dismissal of this appeal is valid.

•Taking up the question of dismissing the appeal because the bond was not given within ten days, the judgment was final on Karch 3, 1919, and, excluding Sunday, the last day given under the law, - without questioning whether or not the first day counts, although it is admitted that it does, - appellant was within the time, under the article of the Code heretofore cited.

The other ground has been passed upon by'this court in the ease of Delia Coleman, Wife of Stephen Hamilton, v. Bureau of Endowment of District Grand Lodge No. 21, C.U.C. of O.N. (Court of Appeal, No. 7415), where it was held, amongst other things, (His Honor Judge Claiborne being the organ of the Court) that no appeal shall be dismissed on account of any error in the amount of the bond, and that any litigant shall have the right to correct such insufficiency in amount in the court of original jurisdiction.

Again, it has been held in White v. Maison Blanche, 142 La. 265, that "An appeal will not be dismissed on the ground that the appeal bond is not sworn to as required by Section 4 of Aot 112 of 1916, when it is not alleged that the appellant was given any notice “by appellee of the insufficiency of the bond". (See also authorities cited in said opinion).

1919.

We are therefore of the opinion that the motion to dismiss must be denied, and it is so ordered.

Hew Orleans,


author: Uto Dlnkelsplel. Judge.

text:
    S? i! S OF LOUISIANA PARIS" OF ORLEANS COURT OF APPEAR.
    MRS. MARGARET O'HARA, Widow of Thomas J. Burke versus AMALGAMATED ASSOCIATION OF STREET AND ELECTRIC RAILWAY EMPLOYEES OF AMERICA.
    No. 7589
   O P I tí I O tí

Uto Dlnkelsplel. Judge.

Míe facts in this case are -virtually undisputed. She deceased, Miomas J. Burke, was a member of the Amalgamated Association of Street & Electric Bailway Employees of America, and had been suoh member for nine years. Amongst other provisions of defendant's ^by-laws and general laws, oertain benefits were conferred on members, under olroumstances as stated in Bald by-laws. Section 89 of the constitution specifically forbids the payment of the funeral benefit to any one v/hose death has been caused while on duty as a policeman, and it is admitted that the plaintiff's 1M»* eyNf met his death by drowning, while on duty as a policeman, and his death was caused by the performance of his duty as such. The local association of this order, at the time of the death, under its peculiar provisions, paid to the plaintiff, lira. Margaret O’Eara. the*%í*hHt of the deceased the sum of $200.00. j\ The amount involve'd in this suit, arising from defendant's loss total was $800.00; there was left, therefore, the sum of $600.00¿ which benefit, if payment was to be made, and if the deceased had obeyed the laws of the order, his heirs would have received.

The local association is controlled by the by-laws of Division tío. 194 of the order, which is called the Rational Association, and that is the only party that can be looked to, if to any one, for the payment of the remainder, to-wit, $600.00.

The national Association's charter shows that it has three benefits, towit: She Funerl Benefit, , the Disability Benefit and the Old Age Benefit, and Section 89 specifically forbids the payment of the funeral or disability benefit if death occurs while on duty in one of the forbidden occupations. Its language is, that on the death of a beneficiary member the funeral benefit shall be paid as follows; "Ho death or disability claim shall be allowed or paid to members whoso death or disability has been caused while on duty as a volunteer miliatiaman, policeman, or paid city fireman, or any other hazardous or prohibitive occupations as defined by insurance companies. Ueither he nor any person for him shall have any claim on the funds of this society."

June _, 1919.

The deceased aMaMealw^wr bound diluacelTeiy in conformity US^the laws of the order to comply therewith, knowing that if in the performance of his duty as policeman death oecurred^re-sults followed debarring him or his heirs from participation in the funds of the Rational Association. Hence, it follows that there must be judgment in favor of the defendant company.

It is therefore ordered, adjudged and decreed that the judgment of the court a quo be annulled, avoided and reversed, and that there be judgment now in favor of the defendant company, with costs.

Judgment Reversed.

Hew Orleans,


author: CHARLES P. CLAIBORHE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    GEORGE W. REINE VS. PONTCHARTRAIN RAILROAD CO., Appellant.
    No. 7596.
    June 19th, 1919.
   CHARLES P. CLAIBORHE, JUDGE.

The plaintiff wasmlking on a wharf leading to defendant's train; he stumbled, fell, and received injuries for which he sues the defendant in damages.

The plaintiff alleged that on September 12th, 1915 at about 7 or 8 O’clock P. tí. on the arrival of the Steamer Hanover at the wharf of the Pontchartrain Railroad Company at Lake Pont-cbaxtrain, he was a passenger on the boat; that while walking on the wharf' for the purpose of taking defendant?train to come to the City, he met with an unseen obstruction placed in the path of the passengers, was knocked down, and striking on a bench, had his scalp severly cut, from which he suffered great pain for nearly a month and from which he is still suffering; that said wharf was under the care and control of said Railroad Company and that .it was through its negligence that said accident happened; that the Railroad Companyusjae vided no lights to guide the passengers and that it was by reason of the darkness, which prevented petitioner from seeing the obstruction,that he was knocked down; that he was treated at the Charity Hospital from September the 12th. to the 22d; that he estimates his damages at $2500 for the suffering and pain, not including the time lost by him during his treatment; that he is a cotton weigher.

He prayed for $2500 damages.

For answer, the defendant denied any indebtedness; it admitted that the plaintiff was a passenger on the boat and that he fell over an objeot while talking on the v/harf, but denies that said objeot was unseen^ and avers on the contrary that it oould and should have been seen by any one exeroising proper oare, it denies that said object was an obstruction in the path of passengers(and avers that on the contrary it was behind a line of benches and separated thereby from the proper and usual path of passengers which was itself free from obstructions; defendant admits that plaintiff stumbled and fell, but denies that his scalp was cut by striking a bench; and avers that he struck his forehead on the wharf causirg only a slight wound; it denied that it had been guilty of ary negligence or that the accident happened through its negligence; it denied that it had provided no.lights to guide the passengers, but avers that on the contrary they were amply guided by three arc lights which were then burning along the path from the boat to the train, the nearest light being a few feet from the place where the accident occurred; it denied that it was by reason of any darkness due to failure to light the path of passengers that caused the plaintiff to fall; it averred on the contrary that such route was lighted sufficiently well to have enable the plaintiff .to avoid the aoddent by the use of reasonable care which he failed to exercise; it further averred that plaintiff’s injury, if he suffered any, was caused by his negligence in taking a route not provided for passengers thereby exposing himself to danger, and in failing to use his eyes to see the obstruction which was easily visible and he was therefore guilty of contributory negligence.

There was judgment for plaintiff for $250 and the defendant has appealed.

The place where the accident occurred is described as follows on a sketch made by 'F. A. Vienne, master of trains of defendant. The defendant runs a steam railroad from the head of Elysian Fields near the River to Kilwoburg on the shore of Lake Pnntchartrain; this road is a connecting link to a line of stBa» - boats running upon Lake Pontchartrain from Milneburg to Mande-vil le and other points. At the end of the railroad tracks at Milneburg and to reach the boats the Railroad controls a wharf for the use of its passengers; the wharf extends 300 feet over the waters of the Lake and is 22 feet wide; and is covered with a roof along its whole length and breath; along this wharf are three electric lights, one at the beginning of the wharf near the shore line, another in the centre, and a third at about 25 feet from the extremity of the wharf; along the left hand side going out or West side of the wharf and ten feet from the western edge runs a continuous bench up to about 40 feet of the end of the wharf; the distance between the bench and the western or left edge of the wharf is about ten feet, and the distance between the bench and the right or East side of edge of the wharf is about eleven feet; on the left or Western side of the wharf are two slips used as landings for steamboats; the slip used by the Hanover on the night of this accident is No. 1 and is about 25 feet from the end of the wharf, the other is about 125 feet apart; one of the three lights stands immediately m front of this slip; and the second 62 feet away; the bench stops at a distance of about ten feet from this slip; the passengers land ■wt-from the boat over this slip No. 1 and walk eat upon the wharf to meet the PontOhartrain railroad cars in waiting on shore for the arrival of the boats to take the passengers to the city,’ as the passengers leave the boat they can walk along one of two routes to reach the train; one on the Eastern side of the benches which we may call the ^ast route, and the other on the West side of the benches which we may call the West route; it is usual and customary for the passengers to walk upon the East route, though there is no direction as to where they shall walk nor any impediment to prevent their walking upon thes Western route; nor is there any employee of the railroad to indicate to passengers the route upon the wharf from the boat to the train. Upon the evening of the accident^ and for may years prior/there was lying upon the wharf a little to the left or west side of the bench and near the end thereof and about 25 feet from the slip ko. 1 an obstruction in the shape of a cattle nm about ten feet long and between 3 and 4 feet high, used by the Hanover in unloading stock to the cars over the slip.

The plaintiff testifies that on the night of September 12th, 1915, after seven o'clock, he was coming from Kandevilie cn the boat ¡-anover; in walking from the Hanover to the train, the lights on the wharf were not all lit, and he struck himself agaiast an obstruction and fell and hurt his forehead; Mr. Shiell held him by the arm and helped him to the car; when he got off the train be went to the Drug Store,; he then want with his son to the hospital to have his wound dressed; it took about one hour; he afterwards went to the hospital for ten days every two days; the wound in his forehead has left a scar; it took about a month to heal; he was among the first passengers to get off of the boat; it was so dark he could not see; there was a light burning where the boat landed and another at the end of the wharf; his accident occurred about 150 feet from the boat; there was no light there; the line of benches was to his right and upon his left was the edge of the wharf; thinks he fell over a stage plank, that was what he saw the day after he went out to look at it,‘ they had pulled it under the bench.

The plaintiff files two photograps of himself taken on Séptenber 20 and 29 showing the nature and extent of his injury.

’Silliam Shiell was one of the passengers on the Hanover on the night of the accident; he did not see lír. Reine fall; he was 20 or 30 feet behind him; but he saw the commotion in front; it was very dark; black dark; dark as Egyjot; he stated at the time that it was an outrage to land people at such a dark place; that anybody was liable to walk over the wharf; the plaintiff tripped over an abstraction sticking over the wharf; Mr. Reine was being assisted by two men, one on either side, and he told him about his falling on the wharf; he was bleeding; he had a handkerchief over his head; he fell over an obstacle himself; it looked to him like a gang plank sticking out over the wharf; that was about the second slip, nearer to the boat than to the train; the benches were on his right 3ide; he could see better away from the shed than under it; passengers get off near the head of the boat; the lights of the boat do not extend to the head of the boat; they extShd about as far as the cabin. The witness here stated that he "would like to say that one of the railroad employees approached him and wanted him to do him a personal favor". The defendant's counsel objected to the statement, in which he was sustained by the Court. We do not see how the interests of the defendant, or the ends of justice, were subserved by the objection or by the ruling.

"J. Holmes Í3 a Deputy Sheriff and crier of the Court-of the Judge of the District Court; he was on the boat Hanover on the night of the accident; it was very dark on the wharf as he came out of the boat; he stumbled and fell over the same obstacle as the plaintiff and struck his knee; he did not know the plaintiff until he saw him on the train, and then he was bleeding; the obstacle looked to him like these planks that are put from the car to load up things and unload; he is not sure whether there were two or three; they wen put together; the line of benches was on 1Ú3 right; the track was on his left going towards the City; the obstruction was 30 or 50 feet from the boat.

The defendant's witnesses were all its employees. The testimony of these, the Supreme Court has said, must he received with some allowance as their inclination is "to excuse their masters and themselves".Bond vs. Frost, 8 A., 297.

F. A. Vienne was master of trains for defendant for the last 33 years; he made the sketch alluded to in the beginning of this opinion; all the three lights were burning on that night and gave sufficient light to see clearly; there were no obstructions in the way of the passengers on either side of the benches; there was a cattle run about ten feet long and three or four feet high used by the Hanover to unload stock at the slip; it was on the west side of the benches; it has been there for years; and is visible by light Ho. 1; thatrun is not in the usual path of passengers; they walk on the east side of the benches; the lights on the boat were burning that night; the Hanover has one thousand electric lights all lighted when it landed on that night; about 150 passengers came off of the boat; he saw the plaintiff after the accident; he did not think he was hurt; he inspected the wharf up and down, on both passage ways, before and after the accident, and saw no obstruction, and the lights on the wharf were burning and also the incandescent lights on the boat.

Dr. Denegre Martin is employed by the railroad company to pass on cases of accidents; examined the plaintiff on May 2d, the scar he saw on plaintiff's forehead could not have been cause! by the injury as shown upon the two photographs of plaintiff tak® some days after the accident.

John Roemer is the son of the man employed to turn on the lights on the wharf; his father was sick and he was taking his place on the night of the accident; he turned on the lights that night; he did not get paid by the railroad and does not know whether his father was; he replaced his father during the whole season as his father was sick; he works as a carpenter during winter, and fishes during the suraner; when they are not using the feang planks, they generally put them on the west side.

L. Garric is bookkeeper and purser on the Hanover, the wharf was lighted on the night of the accident, and the incandescent lights were burning on the boat; h8 merely walked out on the slip and went back upon the boat.

M. McCarthy was Garric's assistant on the boat; when the boat landed he went to the head of the slip; the wharf was lighted at the slip; and the incandescent lights were buying on the boat; the only obstruction on the wharf was the gang plank used to unload freight cars; that was on the right hand side of the benches going to the train; the left side Í3 the regular passage way.

Eugene Meunier was steward on the boat; the usual lights were on the wharf.

Colin Baker^conductdr of the Pontchartrain Railroad; when the boat came in a little after seven, he went out unon the wharf; the three lights were burning as usual; he walked along the same route the. passengers travelled in going from the boat to the train; there was no obstruction on the regular passage way; there were some on the other side of the benches; that was not the regular passage way; after the accident he returned and examined the wharf and saw no obstruction in the regular pathway; the obstructions were upon the west side; the arc lights throw their light on the whole wharf, so that one can read the paper out there;

Q. Did you use any of these gang planks to unload the cars?

A. Only in case they unload stock.

Q. Did you see any gang plank when you went to investigate on the wharf?

A. wo, air; they were out of the way; they were on the side.

Q. Well, how far were these gang planks from the benches?

A. You mean how far were the gang planks from the benches?

Q. Yes. A. On the other side; they are between that railing there and the benches.

Q. How thick are those gang planks? A. About one inch, thick.

Q. How long were they? A. About ten feet long.

Q. How many planks in all together? A. There were three, ten feet long, and then there is one about four feet across - three of those.

Q. Now, how many planks of that nature were on the wharf?

A. Just those two cattle guards.

Q. There were only those two cattle guards. A. Yes, sir.

xxxxxxxxxxxxx

Q. How, one more question: These planks which I understood you to say you saw on the west side of the line of benches, were they on top of each other, or were they some distance apart?

A. They were laying right together.

Q. On top of each other or side by side? A. They were on top of one another.

There is much confusion in the testimony, and it is difficult to ascertain whether the cattle run was the same as the gang planks.We have reached the conclusion that there were some of both. Mr. Vienne says that the runs were ten feet long and three feet high; he could not have referred to the gang planks which Baker Bays were one inch thick or high and piled on top of one another; again the runs were used by the Hanover to load cattle, and the gang planks were used by the railroad to unload the cars. While it was natural for the run to be kept on the west side of the benches nearest the boat for use there, it was quite convenient for the gang planks to be thrown upon the east side of the benches nearest the cars to be lifted upon the cars ,fbr use there. There is absolutely no force in the defendant's theory that plaintiff was hurt by some obstacle which he encountered while walking upon thewest side of the benches, where he had no business to be. Whether he had a right to walk upon that side or not, does not arise, because the plaintiff says he was erooeeding along the right or east side of the benches where defendant admits it was customary to walk. In this statement he is corroborated by two witnesses, and there is absolutely no testimony to the contrary from any witness. But defendant's witnesses say that they saw no obstruction on the Bast route either. Theirs is negative testimony. The positive testimony of the plaintiff is that the obstacle consisted in a gang plank; in this he is corroborated by two witnesses who themselves stumbled upon the same plank. But the material fact that plaintiff stumbled and fell speaks more convincingly than the language of witnesses. The judge of the District Court who saw and heard the witnesses believed the witnesses for the plaintiff, and we believe with him.

But the defendant says that there was plenty of light upen the wharf and that if the plaintiff bad used his sense of sight that he would have seen the obstacle, if any was there. Admitting yftXoL. Zoo that there was such light as^electric lamps throw out^ a passenger leading a boat to reach a train in the midst of a crowd of 100 or 150 passengers looks up and ahead of him - and is not required to look down for an impediment which he has no reason to apprehend. But the question of light or no light is itself in doubt, with the balance in favor of no light. Besides, the movirg crowd cast a shadow upon their feet, and a membeir of it might not, under such circumstances, see an impediment which might appear clearly under other circumstances.

We have therefore come to the conclusion that there was an obstacle in the regular pathway of the passengers and that it consisted in a gang plank.

"It is well established in jurisprudence that railway companies are under the legal obligation to furnish safe and proper means of ingress and egress to and from trains, platforms, station approaches, etc., and it is well settled that any person injured, without fault on his part, by any dereliction of its duty in the premises by a railway company can recover damages against the corporation for injuries thus received". Peniston vs. RRd., 34 A., 777 (780); 27 A., 377 (378); 37 A., 707; 144 S. W., 922; 10 C. J., 916 § 1341; 37 N. W., 717.
It made no difference to whom the wharf belonged or who had the control of it. It was the one furnished to passengers by the defendant, and it was its duty to keep it clear of obstructions. 144 S. W., 922; 10 C. J., 912 1337, 1341.
In Brown vs. Ohio Ry., 37 N. E., 717 the defendant was condemned to pay $L0,00Q damages tó ah employee of the company who had stumbled upon a plank rising two inches above the floor which the defendant had nailed upon its platform in such a manner as to form an obstruction. Also 53 Barb.629.

Judgment affirmed.

June 19th,1919.