author: Dinkelspiel; J

text:
    NO. 8494
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. LELLEAN HART, widow of JOSEPH HARRIS and Natural Tutrix of the minor Harris versus L. FEIBLEMAN & COMPANY INC.
   Dinkelspiel; J

This litigation was brought under the Employers Liability Act, being Act No. 30 of 1914, for injuries received. while in the.employ of defendant oompany, as a truck drive*, and the alleg-ilons of the petition ohtrges that' the deoe-sed was in the employ of the defendant for the past several years and was so employed on the 37th day of July, 1921, when without fault upon his part and without warning he Vías suddenly shot to death by a party of Italians, near the corner of South Rampart and Calliope Streets, within the City of Hew Orleans, end that deceased was thus foully murdered 'while discharging his duty to his said employers, the defendant oompany, by driving a motor truck which he was hired to drive and was holding the wheel of ssid truck at the time he was shot.

The further allegations axe that plaintiff and •her child were dependent on th? deceased for their support and that deceased was employed ax at the rate of $31.00 per week and judgment is prayed for s period of three hundred weeks at $9.45 per week or a total of $2835.00.

To this petition there wa.s filed exception to the following effect:

"That the petition does not recite, set out or disclose a right or cause of action;
And only in -the event that the foregoing exception is not maintained, th£>t the petition is too vague and insufficient to admit of exceptor safely answering.*

tie are thus presented with whether under the Employers Liability Aot, as quoted, there has been stated in .the pvtision, sufficient matter compelling a trial of this cin the usual manner or whether the exceptions prevail.

In the case of Myers vs. La. Ry. & Navigation Co., 140 La. p. 939, the Court goes on to say:

"The injuries for whioh recovery may be had under the said Employers' Liability Act must have arisen "out of and in the course of" the employment; and the first contention of defendant is that; while the injury in this case euro se "in the course of" the employment, it did not arise "out of" it.

This phrase, "out of end in the course of the employment", whioh in itself appears to be olear enough has given occasion in its interpretation to & great many decisions, both in this country and in'England; for it ooours in ■che workmen's compensation statute of England, whioh is the prototype of our American statutes upon the same subjeot, inoluding our said Aot No. 30 of 1914. The Courts have had no difficulty in agreeing that "out of" does not mean the same thing as"in the course of", but means something more; that an injury may have been received "in the course of" the employment, and yet not "out of" it. Nor has any difficulty been experienced in ascertaining when an injury is to be considered as having arisen "in the course of" the employment; the difficulty has come in applying to concrete cases the phrase "out of".thsxamsluynBKii The Court goes on quoting from L. R. A. 1916A, p. 41, the following:

"It may be stated generally ths-t the phrase "out of and in the oourse of the employment" embraces only those áooidente whioh happen to a servant while he is- engaged in the discharge of some function or duty whioh he is authorized to-undertake, and whioh is o&loula.ted to further, direotly or indireotly, the'master's business.

The risk must be one peculiarly inbident to the employment, and not one incurred by every one, whether in the employment or not. Where an injury ooours upon a street from causes to whioh all persons upon the street are exposed. , it cannot be said to arise out of the employment of the injured -workman. But it has been said that the oriterion is not th^t other persons ere exposed to the 3i-me danger; but, rather, that the employment renders the workman peculiarly eubjeot to the conger.

In order that the injury ma.y be one arising out of the employment, the -workman must be acting within the scope of tís his employment at the time of'his injury."

Citing from Labatt on Master and Servant, the Court quotes the case of Briant vs. Fissell, 84 N. J. Law, 73, 86, and citing the Supreme Court of Massachusetts in the case of McNicol et al. vs. Employers' Liability Ass'n. Corp. 315 Mass. 497, the Court there held:

"It is sufficient to pay tVt an injury is received "in the course of" the employment when it comes while the workman is doing the duty -which he is employed to perform. It. arises "out of" the employment, when there is apparent to the r-tional mind upon consideration of :.,11 the circumstances, o causal connection between the conditions under whioh the work is required to be performed end the resulting injury. Ondsr this test, if the injury can be seen to have followed e-s a n-tural incident of the work and to heve been contemplated by & re>-sonable person fa'mlli-r with the whole situation s.s *i result of the exposure occasioned hy the nature of the employment. i'"'*** But it exoludes an injury whioh cannot fairly be trs.oed to the employment as a contributing proximate cause end which comes .from a hazard to which the workman would .have been equally exposed *.p“rt from the employment. The oauss-tive danger must oe peaulior to the work end not common to the neighborhood. 'It must be incidental to ths phs-rso-ter of the business and not independent of the relation of master and serve,nt. It need not have been foreseen or expeoted,- but after the event it must appear to have had -its origin in e risk oonneoted with the employment, and to have flowed from that source as a rational consequenoe.1'

And in Fitzgerald vs. Clarke, 99 L. T. N. S. 101, 1 B. W. C. C. 197, the Court said:

"The words "out of" point to the origin or cause of the .aooident; the v/ords "in the course of" to the time, plaoe and oiroumstanoes under whioh the aooident takes plaoe. The former words are descriptive of the character or quality of the aooident. The latter words relate to the circumstances under whioh an aooident of that character or quality takes plaoe. The character or quality of the aooident as oonveyed by the words "out of" involves the idea that the aooident is in some sense due to the employment. It must be an aooident resulting from a risk reasonably inoident to the employment,"

And the Court in the same'case quotes numbers of authorities to maintain and illustrate its position.

In the case of Piske vs. Brooklyn Cooperage Co. 143 La. p. 455, virtually the same doctrine was employed.

In Cyc. Corpus Juris, page 1384, under the head of Master and Servant:

"(a) Declaration, Petition, or Complaint, The declaration, petition, or complaint in an aotion by a servant against his master to recover' for personal injuries is governed by the general rules of law respecting pleading. While no express form of words is necessary the deolara/tica or oomplaint must set out with certainty and definiteness all faots neoessary to constitute a cause of aotion, and, • in’ particular, it must show the existence of the relation of master and servant at the time of the injury, the nature and oiroumstanoes of the injury oomplained of,- the right of the servant to be where he was when injured, and-that-he was,-; in’ the performance of the duties of his service, .-and-.the performance of any condition pfeoedeM: ’to' thb- right of;action»!!

Th; ,y ;.lv'intif f ~ counsel dc not in Mi1' i.. j.' o/a1' y th - 3 herein eot out; th-.y -.-rs b :'i\ ■ uii l - nt theories; ■ -nd. tu-ve no ..--_.plic ;is..'„ ... -\e : .ísti:r. .* in involved.

Ibx ;V. rs . . igned, it it ordered., '¡.¿judged .1 or . the j.i ...e.nt of the Ccu"t ».tjua be end. the irii . ■ .'flrr.cdi

-Judgment affirmed-


source: Caselaw Access Project

author: BY: WILLIAM A. BELL, JUDGE:

license: Public Domain

text:
    THEODORE SCHMIDT, JR. versus E. B. VASQUEZ
    NO. 8497
    COURT OF APPEAL PARISH OF ORLEANS
   BY: WILLIAM A. BELL, JUDGE:

Copy of a motion to dismiss this appeal having been served upon appellant, and duly' set for trial before this Court, and the appellant, or defendant in rule, having failed to appear; on showing to the Court that the grounds for dismissal are failure to furnish good and solvent surety upon the second appeal bond, found insufficient by the Trial Court, the motion to dismiss will be granted at appellant's cost.


author: WILLIAM A. BELL, JUDGE.

text:
    WHITE BROTHERS CO. PLAINTIFF, VS. JULIUS FRANK & MRS. JULIUS FRANK, DEFENDANT.
    NO. 8498
    COURT OF APPEAL FOR PARISH OF ORLEANS.
    WILLIAM A. BELL, JUDGE.
    January 22, 1923.
   WILLIAM A. BELL, JUDGE.

Plaintiff sues the defendants herein wno are man and xwife for the balance of an open account amounting to $100.75. There was Judgment in the Trial Court in favor of plaintiff for . 76¡¿ the only amount admitted by défendants to be due. Issues of fact are alone involved in this ease and all the evidenoe taken is in relation to the controversy over the prioe of a diamond ring sold for $100.00. We find in the record a document signed by the wife in whioh it was agreed between her and-the plaintiff that all goods purchased under the open aooount might be paid for by instalment, and that in default of payment when due the entire unpaid balance would become due with 25$ attorney's .fees, in the event that account should be placed with an attorney for collection, Jhls document is dated June 8, 1920, In connection with- this agreement a duplicate pass book was issued by plaintiff to the wife. In this book on the first page thereof, appears the total items of goods purchased, and, on subsequent pages appear^ credits for part payments and for two certain baby bracelet-; returned. The last entry in this book is in handwriting entirely different from any other entries, and reads as follows: "4-21-21- Dia.rg.r'tí, 1.00"

The defendants have filed a written but unverified answer to this suit, signed by their attorney, in which they deny liability for the amount sueó _pon, or for 26$ attorney's fees as claimed. They admit having dealt with the plaintiff, hut especially deny that they owe utyliTbrig for a diamond ring bought on or about February-14, 1921, and value *100.00, averring that said’ ring was returned to plaintiff and c:;¿ ’ - giv=n therefor as shown by the pass book in théir possession.

Although defendants contend that said ring was returned and ite pris. credited on April 21, 1921, the- record shows that on subsequent ñatea to-wit: June 8 and July 12, 1921 plaintiff wrote letters of dem-.. - i defendant ’ wife calling her attention to* the-fact that she was aelix.. u-?'?t in pass due payments on the account^ then shown to be the sum of $100.75, as now dued upon, jfo the trial of this oaBe, the wife admits having received these two letters. Hot-withstanding the receipt of these letters, and the fact that she claimed the pass book to contain a credit entry of $100.00 for the return of the diamond, there is no evidence that she replied in any manner to said letters or protested against the claims made upon her for payment until her visit to the plaintiff's store on June 28, 1921, at whioh time she then stated to the oredit manager and his assistant that she had long ago returned the ring. The testimony of the oredit manager and his assistant shows that upon advice from the wife that she had returned the diamond,she was told by th.ejft.and others in the store as well as through a letter written by plaintiff on June 29, 1921 that no record whatever, in the store of plaintiff,was found,to justify her statement. When calling at the store June 28 she was asked to point out the clerk or employee in plaintiff's store to whom she olaimed to have made return of the ring. It appears that the party pointed out by her was a olerk named Owen, and the testimony of the oredit manager is to the effeot that this clerk stated to the credit manager personally that he had never received the return of any ring from the wife. The method of crediting returned goods is shown, by the testimony to be suoh as to produce four different records retum when goods are taken back and credit given therefor. The passbook, the stook ledger book, a oertain stock card and the account card are all records by whioh said returned transactions are recorded. In suoh oases it was shown that the account-card always contains red-ink credit for returned goods. The particular account-card representing the transactions had with the defendant wife, in this oase, shows red ink oredit entries for the return of two certain baby bracelets, but no other red ink oredit entries appear on said card filed in evidence.

The credit return appearing in the pass book is plainly shown to be for only yl,though the abbreviations as to the article, implies a return of one diamond ring on Apr-il 21, 1921. It is hardly to be presumed that any clerk in the store could have been so incompetent as to make such an erroneous error by which only a $1 credit should have been given instead of a credit for -t-100.00. The evidence of the credit manager is to the further effect that said entry in the pass book was not made by any clerk in plaintiff's store, and no testimony or other evidence has been offered by the defendants who have pled the special defence in this case, to contradict the statement of the credit manager. Though the defendant wife claims to have pointed out the employee Owen, it is admitted by her that no effort has ever been made by her or her husband, defendants herein, to find or to call or produce this party as a witness, and no explanation has been made by them as to their failure to produce this witness. Vie are convinced that the defendants have not carried the burden imposed upon them to prove with reasonable certainty the special defence which has been pie: ed by them, but on the contrary we are of the opinion that the presumptions of law are all in favor of the plaintiff, end that there should have been judgment accordingly.

It is therefore ordered, adjudged, end decreed that the judgment herein appealed from be, and the same hereby is amended so as to increase the amount allowed from seventy-five cents (. 75jC to One Hundred Dollars and Seventy-five Cent3 (-¡;100.75) with legal interest thereon from date of judicial’ demand together with 25$ attorney's fees and for all costs in both Courts.

JUDGMENT AMENDED AND AFFIRMED.

January 22, 1923.


author: BY: WILLIAM A. BELL, JUDGE.

text:
    ROBERT H. BELDEN versus HERBERT F. JONES, ET ALS.
    NO. 8,499
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
   BY: WILLIAM A. BELL, JUDGE.

This is a suit brought by plaintiff against two one of the defendants being the proprietor of t 'T^Hotel Astor, in New Orleans, and the other defendant being the defendants, one of the defendants being the proprietor of the clerk of this hotel. The Court below rendered Judgment for defendant,-dismissing plaintiff’s petition, and from the facts found in the record after oareful reading of the testimony, we are of the opinion that the trial judge was correot in dismissing this- suit.

It is not neoessary to discuss the evidence in this oase exhaustively. It is sufficient to note that the Hotel Astor, like other well-conducted hotels, operated under an important rule, to the effect that rooms oooupied by men on the' one hand, or women on the other hand, could not be visited by those of the opposite sex.

On January 4, 1921, the plaintiff-was engaged in a vaudeville act at the Orpheum Theatre, in New Orleans, during the week beginning January 3, 1921. In this vaudeville act, two young ladies were acting with the plaintiff. All claim to have known each other for several years, and were.good friends. The young ladies were stopping at the Astor Hotel in Eoyal St. When they applied for a room in this Hotel, the proprietor, .Jones, informed them of the rule above referred to, and cautioned them against its violation. On January 4, 1921, plaintiff called at the Astor Hotel, where the young ladies were stopping, at about the hour of six o'olook p. m., for the purpose of taking them to dinner at the Elks' Club in this city. He applied at the clerk's de3k, to Mr. Eichardson, asking- if the young ladies were in. The clerk requested him to.be seated in the lobby, or first floor of the Hotel, and advised the young ladies that plaintiff awaited them down stairs. They requested the clerk to inform plaintiff that they would be down in a short while. It appears, however, that in a few monents one of the young ladies, caned from the fifth floor, where their room was located, down the stairwiy to the plaintiff, inviting him to r- a stairs, saying they were writing a letter, and asked him to, come up and wait for them in their room. This invitation was neoepted b the plaintiff, and as soon as the clerk, Mr. Richardson learrud of it, he made immediate demand over the telephone, upon one of the young ladies answering it, saying that the rule of the Hotel was being violated, and that plaintiff must return to the Hotel lobby at once. He was advised that they were leaving in a few moments, and would be down, and the clerk on failing to get results from the peremptory orders made in compliance with the rule, immediately called at the room occupied by the ladies, and upon knocking, the door was opened, and he advised all of them that plaintiff would have to leave the room at once. It appears -that they were all dressed, ready to leave the room, one of the ladies having her hat off while she was writing a letter. Mr. Richardson, the olerk, remonstrated with plaintiff, saying he had given him two or three opportunities to leave the room, and plaintiff in Jiis own testimony says that he did not comply with the olerk's request, but tried to reason with him that he was doing nothing wrong.

It appears that upon refusal of the plaintiff to leave the room, Richardson undertook with physical effort to eject him from the room, and an.altercation arose between them, in which the plaintiff claims to have been struck by the clerk, Richardson. The elevator boy, who conducted the plaintiff to the ladies' room and who was called upon by Richardson to assist in ejecting the plaintiff from the room, clearly states that he heard the clerk give instructions to the parties answering the phone in the ladies’ room, directing that the plaintiff should return to the lower floor, and that this demand was made two or three times, that he took Richardson finally to the room, and that he heard him knock 01. the door, and enter, and afterwards heard the altercation between plaintiff and the clerk. The proprietor of the Hotel is not eontiadioted in any way concerning the notice of the rule which.was given to the occupants of the room, as well as to the plaintiff by the ilerk, and it is plain from the evidence that there was decided refusal on the part of the plaintiff or his friends, who were guests of the Hotel, to comply with the rule. It appears that the clerk, Richardson, finally called in police officers to forcibly eject plaintiff from the Hotel, and that in stating to the officer the cause of the complaint, again there was a heated discussion between plaintiff and the clerk, resulting in a fight betv/een these parties, and causing disturbance to other occupants of the Hotel. Both the plaintiff and the clerk were arrested for disturbing the peace., and tried before the Right Court for this offence, with the result, that plaintiff was released and the clerk fined five dollars. This fact does not, however, in the light of the circumstances, give plaintiff any cause of action against the defendants, for he was wholly to blame in violating the rule of the Hotel, and particularly in persisting in this violation after repeated requests to conqily with the rule. There i-3 nothing in this case that justifies the relief sought for by the plaintiff.

February 13, 1922.

JUDGMENT AFFIRMED.


author: Dinkelspiel; J.

text:
    NO. 8510
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. DOMINICK TRENTECOSTE versus FRENCH MARKET ICE COMPANY.
   Dinkelspiel; J.

This is a damage suit.

Plaintiff avers that on the 37th of April, 1930, at about half past eleven o'clock A. M. while she was crossing Decatur Street at the oorner of St. Ann Street, proceeding from the Lake Side of the street to the KtXBxStils River Side, an loe wagon of the defendant struok her, knooked her down and spun her around so that the wheel ran over her foot; that she was sent to Charity Hospital and there treated for "orushed injury of both feet and kKSKHXxkul lasoeration of toes"; that the orushed tissue and loose nails were removed and she was then taken to her home where she remained in bed for two weeks under a dootor's treatment and was then sent baok to the Charity Hospital, where she remained from May 13th, 1930 to June 8th, 1930; and that she still suffers great pain, for which she olaims defendant is liable in damages.

An exception of vagueness was filed and exxx overruled.

The answer of the defendant is virtually a general denial, together with the allegation that the accident resulted through the contributory negligence of plaintiff in running out in front of the wagon and that she aggravated her injuries in refusing to submit to an injection of tetanus antitoxin.

a judgment for plaintiff in the sum of 11075.00, from which judgment defendant appeals. The trial of this matter before a jury resulted in

A short resume of the testimony in this case, without endeavoring to quote the whole thereof, but only such portions as in our opinion are pertinent to this case, show that plaintiff, in company with a Mrs. Collins, on the day mentioned in the petition, was going to the French Market and when these ladies got to St. Ann Street and were about to oross Decatur Street at the corner of these streets and when they got to the middle of the oar-traok they had to stop to let several automobiles pass on the car-traok nearest from the River and when they started to. go across, the witness Mrs. Collins testifies she heard a soream a,nd looking around saw plaintiff under the ioe wagon, she testified further that they were standing and waiting for some automobiles to pass along and that plaintiff was standing right baok of witness and the next time she saw her, turning around, she was under the ioe wagon; that the wagon was about a half blook off and coming as hard as it oould go, there was nothing in the way to obstruot the view of the wagon, plaintiff and the witness were standing perfectly still when the ice wagón struok her, the animals were restless and when witness saw the baok wheel was going over plaintiff's feet she tried to move$ did not succeed, could not succeed, could not budge, and subsequently after being picked up plaintiff was sent to the Charity Hospital for treatment.

On oross examination si this witness did not •in material points alter or ohange her testimony in chief.

The plaintiff testifies in her own behalf, virtually confirming what Mrs. Collins, the prior witness iSK had sworn to and giving at length her great sufferings from this accident, charging in her testimony substantially that she did everything it was pos- * sible for her'to do to avoid the accident, which oould have only been avoided by the driver of the wagon; her treatment at the Charity Hospital, the result of injuries subsequently, at her home, and her doctor Meroux further testified of the injuries to the toes this woman had suffered, describing virtually the loss of the big toe and the orushing of the others, treatment he gave plaintiff.

The defendant's main witness, the driver of this wagon, Pendergrast, describing the accident in question, substantially states that plaintiff in crossing over the street, coming by his mules, frightened them, that he did everything that he could to stop 'the animals, that he was going at a very slow rate of speed and that it was entirely tne fault of plaintiff in endeavoring the cross the street, that this accident occurred.

Daniel Mendel, swears substantially that he saw this entire affair and in his testimony says, amongst other things, that plaintiff was on the sidewalk at the time, he desoribes just where the wagon was and the wagon was about the doorway of a grooery store near the aooident and plaintiff and Mrs, Oollins took a step to run across the street from Deoatur to North Peters Street, when Mrs. Collins ran baok and plaintiff ran away, running into the shaft of the wagon, blinding the mules and she was knocked down, the wagon was loaded with ice; he described when he pioked up the plaintiff and from his testimony plaintiff was entirely at fault.

George Plummer testifies in substance as follows:

"I was sitting on the side of the wagon and looking-, heard the driver holler look out and when he hollered I looked where the two men were sitting, the place where they put the umbrella and I saw an old lady standing in front of the pole with one hand on the pole and one hand up like she was trying to hit the mules or stop them.

Mrs. Collins was reoalled and testified in this oase, but with the same result as in her dlreot iaKttmxajcx examination.

This case was tried before a Jury, who after hearing the testimony and the able oharge of the Judge aqua, whioh we have carefully read and considered, and whioh in our opinion gave a full and oomplete analasys of the law. found a verdlot in favor of plaintiff in the sum of $1075.00.

And on motion for a new trial the Judge says:

"There was sharp oonfliot between the testimony for plaintiff and defendant end the jury has accepted the testimony of plaintiff's witnesses; I find no grave error and the motion is therefore refused."

It has been deoided in numerous oases by our Supreme Court that in negllgenoe oases the Court will not overturn unanimous verdiots for defendant rendered on oonfliotlng evl denoe.

Mequet vs. Algiers Manufacturing Company, 147 La. 364.

"When defendant has the last olear ohanoe to avoid the aooident and fails to do so, he is liable, notwithstanding that plaintiff may himself been at fault."

Cusache vs. N. O. Ry. & Light Co. 9 Court of Appeal 351,

"Even gross contributory negligence on the part of plaintiff will not defeat his right to recover damages if by the exerois'e of ordinary core the defendant might have avoided the aooident."
Vaughn vs. N. O. Ry. & Light Co. 13 Court of Appeal 116.
McClanahan vs. Railway Co. 111 La. 781.
Harvey vs. La. Western Ry. Co. 114 La. 1065.
"The findings of the jury in questions of fact will not be disturbed unless it is olearly erroneous."

Fuge vs. N. O. Ry. & Light Co. 140 La. 582.

Numerous authorities have been olted by counsel both for appellee and appellant, which have reoeived our attention, particularly on the question of the last clear ohanoe and we are of opinion that the oases quoted in this opinion, together with the authorities oited, particularly in the 13th Court of Appeal, and the fact that this case was tried before a jury who found their verdiot in favor of plaintiff for a moderate sum,- under the oiroumstanoes, thus in our opinion, showing neither bias, sympathy nor prejudice and the further faot that the Judge gave his reasons whioh we have quoted, on motion for a new trial, overruling same, Satisfies us that substantial justioe has been done in this oase.

Plaintiff in this case has pr." it. an increase in the amount of the jury's verdict, to the au.-i tional amount prayed for in' her petition. This is denied for the reason given, that the jury's verdiot, with the approval of the Judge, has in our opinion rendered justice between the parties.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgment of the lower Court be and is hereby affirmed, oosts of both Courts to be paid by defendant and appellant.

-Judgment affirmed-


author: CHARLES F.CLAIBORNE,Judge.

text:
    CHARLES DENNERY,Appellant Vs. Rene Solomon
    No.8514
    November 13th 1922
    CHARLES F.CLAIBORNE,Judge
   CHARLES F.CLAIBORNE,Judge.

The defendant .driving an automobile,ran into a tesan ' J of mules' driven by plaintiffs chauffeur and killed one of them; henos this suit.

The plaintiff alleges that on November 16th 1920 at about half past five oolook P.H. while his ohauffeur was driving a large spring wagon drawn by a double team of mules on Polymnia Street crossing St.Charles Avenue,the defendant,operating a Sedan automobile,ran into the mules and so injured oné of them that it died;that his ohauffeur had orossed the neutral ground of St.Charles Avenue going towards the river and had already reaohed the pavement side of the Avenue towards the river when the mules were struck by* defendants automobile; that said accident was oaused by the defendant not stopping or controlling his automobile coming down St.Charles Avenue ^ as he should have done,after petitioners driver had already crossed the neutral ground and was in the'street going towards the river,and therefore had the right of way,and had defendant stopped or controlled his oar,said aooident would not have happenad;XXX that petitioners driver did everything.'he,could to avoid the accident,nhd was without any fault,but said accident was due solely to the reokless and careless driving of-said defendant,and to his failure to control hlB said oar on¿the avenue,and give, petitioners driver the right of way-,as he should have -done;and plaintiff claims $426 as the value of the mules and $31.50 expenses.

Defendant denied all the-allegations of fact in said-petition contained and averred that the aooident was caused solely by plaintiff's fault.

The learned Judge of the Distriot Court rendered Judgment in favor of the defendant aooompanied by lengthy written reasons.

The plaintiff had appealed.

There is not much conflict in the testimony/only three witnesses testified.The plaintiff’s driver,and another witness for him,and the defendant.

The accident ocourred at about half past five on the evening of November the 15th; it was raining and dark,the pavement was wet and slippery;the street lamps were burning ^ and the lights in the street cars^ also,the lights on the automobile were burning;on plaintiffSwagon there wave one light, on the left or downtown Bide;the plaintiff's wagon was open, no top to it^nor oover,and the driver's seat was high;he was seated on the seat,and he could see all around;the defendant's oar was a closed sedan,weighing about 2200 pounds ; the plaintiff crossed the neutral ground at a walk; the defendant was driving,according to the plaintiff,20 or 25 miles an hour,and according to the defendant 16 miles;when the’ plaintiff's mules reached the» middle of the street nearest the river,the right hand mule was struck on the shoulder by the defendant's oar and the left hand mule injured;.defendant's oar continued in its course lffrto 15 feet when it ran into an iron post and broke it into three pieces;when the plaintiff's drive^ffirst saw the automobile he was"coming off the neutral ground"the wagon had already struck the pavement;wnen the defendant Saé first saw the plaintiff's wagon it was 30 or 40 feet away" coming across the neutral ground the defendant struck the mules While they were in the middle of the street;he struok the shoulder of the right-hand mule. j _ ,

The plaintiff's efcaseWeur testified that he first saw the defendant's automobile"Just as I were crossing down the neutral ground"and at that* time the automobile was"about three // quarters of a block away.

The law of this case is contained in artlole I seotion 8 of traffic ordinance Ho.5181 adopted by the commission council on August 6th 1918 which reads as follows ;

"2-"Right of way ! Vehioles traveling on the following A' ■streets have the right of way over vehioles approaching on intersecting streets,namely;St.Charles Avenue^a'Si'alBo all other streets with street oar traoks.All other streets and at intersections of above streets and avenues,all vehioles shall have right of way over other vehioles approaching on intersecting streets from the left^ar$ shall give right of way ' / to those approaching from the right «¡The error of the plaintiff is in believing that he had the right of way,on the contrary according to the ordinance^

¿defendant clearly had the right of way,for two reasons 2 . f 1st. Because he was traveling on St. harles Avenue, and Snd Because plaintiff's wagon was approaching him from the left and it was plaintiff's duty to give him the right of way to the defendant who was appraoching him from the right.

The right of way means that when two vehicles are approaching a common point where they will meet,one must yield to the other and give way,and ^if necessary^stop^in accordance with traffio ordinances on the subject/in case of a collision the one which violates the ordinance must pay for the resulting damages,as we have often decided,unles the other by reasonable diligence could have avoided the collision.

In crossing the street as he did the plaintiff violated both provisions of the ordinanoe.lt was his duty before he passed the neutral ground,to have stopped and allowed the auto to pass.

The auto with its twin head lights,glaring in the darkness of night,was in full view of the driver of the wagon, and we must assume that he am It,or could have seen it,if he had looked.In trying to cross,ahead of the auto he took the chance of failing to do so,and he failed.He thUB suddenly put himself across the path of the auto.Inasmuch as the auto had the rigiht of wai^it was the wagon's duty to have yielded It and to have stopped.The driver is certainly mistaken when he states the distance the auto was from him when he first sa<rt It.He says that' he first saw the autol'when he was coming down the neutral ground^ and that he it was then three quarters of a block sway from himjwe will say 225-feet.If that had been true,he would have been justified m crossing and the auto would never have struok him,because he would^orossed the street, about twenty feet wide,long before the auto would have reached him.But he was mistaken,and the best proof that he was,is that the auto struok him,and struck the forepart of the mule.The distance from the edge of the neutral ground a? the middle of the street,the point where his mules were struck^could not have exceeded fifteen feet.As the muies were walking.we will assume- that their sf&as was five miles an hour.In order that the ,auto^225 feet distant^ should have reached the point of contact at the same time as the wagon,it would have been necessary that it should have been running fifteen times faster then the mules^or 75 miles an hour^ which is impossible.Besides, * the driver himself testifies that the auto was naming 20 or 25 miles an hour,which is reasonable.The truth seems to us to be that according to the above figures the auto must have been^iot more than 75 feet from the wagon when the latter began to cross.If the plaintiff had stppped on the neutral ground^ as he should have done,the accident would not have happened, and there is no .evidenoe that the defendant could have avoided ■it by the use of reasonable diligence.The plaintiff had a light on his wagón but it was on the left.

Judgment affirmed.

November 13th 1922,


author: Charles F.Claiborne,Judge.

text:
    DR CHAS E. VERDIER VS NELSON GOREAU
    NO.8520
    CHARLES F.CLAIBORNE,Judge.
    December 11th 1922
   Charles F.Claiborne,Judge.

The plaintiff herein p^yed for judgment for professional services rendered-

He avverred that from December 14th 1920 to 'March 22nd 1921 he treated the defendant^for which he makes the following charges.

Examination fee $10.00

Operation 10.00

88 office treatments 264.00

Value of instrument loaned 3.00

$287.00

Less payment on account Feb 28th 1921 100.00

Balance due §187,00

Defendant pleaded a general denial,and averred that the plaintiff inserted in his olaims items of treatment^ of diseases of which he never suffered and that others were brought on through the mal-treatment^ of the plaintiff;and "that after the payment of February 28"1921 it was understood rT that the plaintiff herein was to charge the ‘p^spondent nothing further for any of his alleged servloes-"

There was judgment for plaintiff,and the defendant gas appealed-

The first defense that will oocupy our attention is the one last set ups-was the payment of $100 a payment oryii aseuni- aooount or a payment in full?

.1st Defendant is the only¿witness wJjo t^ptifiedtts: stsCT'QSlGPLd &— ■f~Z'Z-Z_ that.There is no «fther-^ritness nor any written evidence of the agreement.The plaintiff denies the existence of such an agreement-The burdon of proving the agreement,was upon the defendant,and he has failed- , Q ^ ^

2nd The defendant charges that the plaintiff made an incorrect diagnosis of his ailment^and treated him for a disease from Which he was not suffering.The facts are that the defendant had been subject on several previous aocasions to the disease for whioh the plaintiff treated him: he remained under his treatment for about four months and submitted to his medication} the plaintiff swears he told him wafcafc what jp&a his trouble, the defendant says: he did not . At the aetil uP filmn ■ J'Wr, discontinued the defendant dissevered his visits'to plaintiff and consulted another Doctor.This Doctor did not find that the defendant was suffering from the cause for which the plaintiff was treating him} he changed the medication and at the end of a few weeks put the defendant upbn his feet-A Doctor of large experience says that the defendant liad some of the symptoms of the disease for which the plaintiff treated hlnyand that if the defendant had been thus aflicted the treatment administered to him would have been the proper one.The error of the plaintiff was therefore in his diagnosis.A physician is responsible -only for evident negligence or want of skill.Stern vs Lanng 106 La. 738-He 1b not liable because he has Committed an error,but because he haB been guilty of a fault 39 Dalloz 314 S 188.-2s/ A 53'2 —

We cannot say that the trial judge erred in his judgment.

Judgment affirmed.

December 11th 1922


text:
    NO. 8521
    COURT OF APPEAL PARISH OF ORLEANS.
    ELLIS A. FITLER versus DENNIS SHEEN TRANSFER INC.
    Hon. J. Porter Parker, Judge.
   Dinkelspiel; J.

Plaintiff fil ., this suit aga-inst the defend nt in a twofold oapi-oi ;y, in his behalf and for the use end benefit of his minor ü -oj’.o.-r, Warreen, and represents -oh- t he in his own beh-.l-' f-r injury to his automobile is entitled to the sum of $341.00 . in behalf of his minor daughter for injuries suet-.-ins i oy her, in the sum of $5000.00, for this to wit*.

That on the 33rd of Ootober, 1930 his wife driving down in her o~r on Ch ties Avenue when at the intersection of St. Cirri-. = Avenue snd Thalia Street, a mule team drawing a wagon cv flo.t belonging to the defendant and driven by a negro driver ran into and collided with the automobile in which plaintiff's wife and daughter were seated; alleging further th?t s-id collision occurred and said injuries -.nd damages were caused by no fault or negligence on tbs part of the ohild or of the driver of the automobile or of any person or persons save that of the driver of the wagon and his employers; and was solely end entirely caused by che gross negligenoe, carelessness vnd vant of skill on che part of said defendant's driver; alleging further that the child Warreen between the t-ge of two and three y=.-rs, seated on the baok seat on the lei; h.;.ni side of the oar .vas injured by the pole of the w gon or float. It is further alleged that Mrs. F'itler was driving her c r very slowly and was prcoseding to cross Thtli; Street but before she oould cleor said str-et the driver of the wagon or float started again and the accident resulted; the injuries inflicted on the chill 'Jarreen >.rs e.-.ii-minuted fracture of the second ihsl'.nx of fch” leí; chu..b end the third phalanx of the left for-finger sr.d oontusion of the left elbow and several laeoerated wounds of the aoalp. Alleging further th->t under the City Ordinances petitioner's wife had the right of way.

The preyer was for the sum of $5349.00, $349.00 being for injuries to the automobile snd the rest for injuries to his daughter Farreen.

The answer is a general denial and a plea of contributory negligenoe.

This oese was tried before e jury and there was e. verdict end judgment in f;,vor of plaintiff in his own behalf for the sum of $349.00 and for the use or his minor child V/arreen, in the sum of $3750.00, with leg Interest from date of judgment end for costs and from this judgment defendant hes appealed.

Plaintiff in answer to appeal prays that judgment in fovor of Farreen Fitlor be increased to the sum of Five ThousEnd Rollers.

Plaintiff's witnesses were Mrs. Hall, the grandmother of the child who testifies substantially that the Car Ms going down St. Charles Avenue on the 33rd of October and just as they got to the corner of sj. Charles Avenue end Thalia Streets traffic was somewhat crowded, end defendant's wagon was believed to have stopped on the trsck and as the driver of the wugcn »M«á to v-cross ihsxxxxak my daughter ble.’; her horn, he did not notice it, the w-gon was coming and just as it get there the next thing the tongue in the wsgca pushed the child between the brae • of the cor; her scresms and my screams caused by daughter to lee.. V- ck to see what happened, she stopped the car; in the m=-utime the men pulled the tongue of the wagon out of the car and ran off so th-t I never saw what color he w-o and several gentlemen pulled the br:oes off of the child, one of them whs Mr. Aitkt....; s'":- t. "s on to testify to what ccurred. at the time, child was rushed to the Hospital, how she was <■■ ■ a, -cm the braces and she described th«t the ohild raí sit with her and wae holding the braoss when the wau. jT c ngue oama in the oar and whioh caught her hand and her a. between the braces, the braces were the post whioh held up the top 6f the oar, the ohild suffered considerably, her little finger was oru3hsd, the little finger on the left hand, together with the thumb on the same hand, were almost completely off -»nl were hanging baok on the hand; she further says thj't her daughter was e competent driver, had been driving the car for about a year, always careful.

On cross examination she in no manner altered or changed her testimony in chief.

Villliam Aitken, & witness on behalf of plaintiff, who wes present at the time of the .'■.ocldent referred to, goes on to testify, "I \'t> s ooming down St. Ch-.rlas Avenue ml there were just two cars ahead of me ani I saw a Dennis Sheen float crossing St. Ch-rlas Avenue snd Thalia Street, it was up to the street oar track, there is an incline there and the float went up -nd stopped on the incline end an electric oar was ayproaching, there was an auto coming out Thalia Street to St. Cherles end if hh-»d no; turned down his auto would have run into the fleet.

Q. Was th-r* n accident there?
A. Tes sir, the coligue of the float ran into the br-.ce si,, . rting the toe of the automobile end there was c. chili in the o=.ck of the vuto who h=.d her hand around one of the .r;c-s, h~r hand was crushed against the brace i :.d it leo., i v»ry b 1 nd I got out of my «xfasoñc£3c automobile and took bar to the Presbyterian Hospital; he goes on to testify that there was a lady driving the auto and also that there was another lady in the back seat, two children, one on each side; the driver of the wagon was a colored man; had his license in my memory Ijut I have forgotten and when Stasdsiis the driver got dpwn Thalia Street, he lashed his mules and turned into Pr-ytania Street going uptown, he was going fast.
0. Did you see any name on the float?
A. Yes sir, Dennis Sheen, it wag a read float with white letters.

Testifying further in reference to the float, he says he had notified the defendants, who were friends -of his but they admitted nothing, he desoribed the oondltion of the ohild and when asked what occurred when he first s-'W the wagon, he answers, "X saw the position of the wagon and it looked as though there would be an aooident, he was in the way, blooking the traffic and it looked like he was trying to get in the way of everyone and he slackened up feeling that he would driver through.

Q. What part of the Sheen wagon ooliided with the Fitler oar?
A. The tongue of the float.

On oros8 examination, giving an account of the float, the driver and the way the aooident happened, describing the float, the name of defendant on same, that he '.7ss convinced it was the property of defendant, drivent by a colored driver; amongst other parts of his testimony in referenoe to the handling of the float and hie conversations with the defendant in reference thereto, testifies thet the defendant said that no lioense number was given and th?t they did not have the name of the driver.

Being asked, q. Did jihey deny it \r- a their wagon when you told them it was?
A. I do noS think they did.

Dr. Cols who .Vcs the physician ./ho attended this ohilitestified that ths child h-id e I-soer-.ted wound of ths scelp, compound comminuted fracture of ths second phr-l-nx of the left thumb and two fingers of the left hf-nd, and when asked wlrt s. oor/....inuted fracture was, answers that the 3kin is broken ?ni the bones protuude outside of the skin, he treated the chilci for several months, 3he res suffering sprite a good deal, the wounded fingers looked bad, ■ was obliged to U3e ’nesthetio3 on several oooassions, th!nks th-t neither of the fingers will be able to p'-rform their natural functions; trie child would never be ’.ble to use the left hand os she formerly lid, his bill for services revidered •/-■s «vioO.OO, paid to him.

L. F. Uartin Jr. another witness for plaintiff saw the accident at the corner of St. Charles Avenue end Thalia Street, heard : ori',3h, then about forty feat from the. coiner, saw a vvvj.gor, Thinks it w.s single two horse wagon, .. nd there wes ;¡, oar cn his right -bout the center of the street, there w. s cn '..utcmobile in front of him shout thirty feet ahead of him and when he heard the crash, looking up saw an automobile uni wgon jammed together, that is the front of the v/egon had out somewhere into the automobile and by the t time the c r he v;s s driving got to the corner, the o?r struck by the •.;»gon kept on going ’nd the wagon kept going end I kept going myself, and then heard s. sor.eam end ran alongside of this o:-r v-nd jumped on the running board, the c=r going very slow, I pulled the oar out of neutral, brought ths car to ?. stop, looked in the rear *-nd .there iv=s little child with her • rm caught in the brsoe of the auto and I jammed it baok end took the child's arm out,

Q,. Iho do you mean never stopped?
A. The driver of the wagon did not stop, he kept on going, and I walked to the corner and asked some one to go and see who it was and he was not exactly out of sight, could not see the wagon at the next corner.

He describes the condition of 'the child, the injury to her fingers which were out snd fractured} the skin wa3 torn off some of them.

On oross examination this witness says when he saw the float and the rate of speed at which it was going, believed that an aocident would happen, otherwise he did not alter his testimony in chief.

The next witness was Mrs. S. A. Fitler, wife of plaintiff, mother of the injured child. She goes on to say she had been driving her automobile for about a year all over the City, throughout the prinoipal thoroughfares and had never met with an accident prior to this one and describing the aocident says that she was driving a car about nine o’clock in the morning, in company with her mother and two of her children, 3eated on the front seat at the wheel on the left hand side, her mother end the children were seated in the rear; she goes ,on to testify ■that happened on the morning in question snd she says: We were going down St. Charles Avenue at a very slow rate of spaed, and when we got to the corner of Thalia Street' the traffic was rather congested and I slowed down. This wagon was oomlng aoross St. Oh'-rles Avenue, aoross Thalia Street and as I approached the corner of Thalia X slowed and this wagon stopped on the oar track as he was going aoross, and as I was approaching down the avenue he oame down in the end of the car mashing the two bows together where my little daughter had her hand, and as soon as he struok her he pulled loose and whipped his mules and started to run out Thalia.Street) the baby screamed for help, I stopped my car and when I stopped Sy I jumped out to go to my baby's assistance, it took three men to ’pull this bow loose from her hand, and in the meantime these men oame up to assist us and oarried her to the Presbyterian Hospital; she was bleeding very muoh, we were -all oovered with blood, and the gentleman that oarried her to the hospital took his handkerchief and wrapped her hand to keep it from b'eing exposed until' we got there.

She testified that the moment she heard -soreams of her baby she put on the breaks and jumped out, when she first saw the vehiole it was approaching the St. ■ Charles Avenue oar traoks, she oould not desoribe whether it-was a wagon or a float and she went- on to testify: "As I crossed the wagon was on the oar traok and stopped and as I proceeded down St. Charles Avenue he had. stopped on the oar traok, and when I got nearly aoross Thalia ■Street he oame down on the back of the oar.

Q. Could you have avoided that accident in any way?
A. Ho sir, I oould not as the traffic was very bad and there were oars in front of me, and a oar oame out Thalia Street right in front of me.

She also testifies that she was going very slow, did not think- more than about five miles and hour; the wagon, struok the oar,-the driver whipped up his mules and ran out Thalia Street to-Prytania Street very fast.

On cross examination, whilst in portions of her testimony there evidently were some parts thereof, particularly in reference to what speed she was going and. possibly in some other minor particulars, this witness may not have been possibly as accur- te she was in her main testimony, nevertheless under the ciroumstsnoes, the difference in our opinioh is not matv-rial ^nd not worthy of quoting; she maintained her originsl statements in reference to where her car was and where the driver of the wa.gon had plaoed his team and insisted as she did in her original testimony that the driver was entirely at fault and that there was no other wagon or float save and ex-oept the one in question.

Plaintiff himself, Mr. Fitler, did not see the aooident but knew that his wife was a competent driver and testified to the accident which occurred to his child, tlBe bills he paid, the one to Dr. Danna, ten dollars, to the Presbyterian Hospital, $9.50,to Dr. Cole, 1350.00, and further testified as to the aooident and the cost of .repair to his automobile, which he paid.

All the bills paid by plaintiff were offered in evidence, together with the Ordinance of the City of New Orleans, Nos. 5338 and 5381, known as the Traffic Ordinance, and especially paragraph 1 of Article 1 and paragraph 8 of Artiole 1 and paragraph 8 of Art. 3.

Defendant's testimony, commences with that of Lafayette Sheen, and the point of his testimony was to show that at the time of this accident, the defendant was only operating one float whioh had two mules; they had other vehiales operated by four mules and spring wagons and the two mule wagon was drivdn by only one man who had been in their employ for many years, he describes the wagon in question, together with how they were loaded.

Q. State whether your floats have ever came to your yard in the evening with someone elee's sideboards on them?
A. Yes sir.

He also testifies that frequently the sideboards on their float have been lost, he identifies the letters in this record, written to him by counsel for plaintiff, ¡ir. Titche, together .vith his answers, and to question propounded by juror admits that his wagons are painted red with Dennis Sheen Transfer Company on them in White and that wss the standard color.

Joseph Polite, testified that he was the driver for the Dennis Sheen Transfer Company and that he had been suoh for twenty years; driving s two mule float and that the defendant had only one of these flouts rnd denies that he had an aooi lent on October 33rd, 1930 or that he ran into an automobile at St. Ch-rles and Thalia Street, never had an acoident, he had never crossed Thalia Street and St. Charles Avenue when he drives out to the Texas & Pacific; he goes out Canal Street to Camp, then to Thalia and then to the Tex?.s & pacific.

It would be futile and uesless to discuss thi3 testimony. It is evident to our minds, that the jury who saw and heard him did not believe his testimony, nor do wa. It is so full of contradictions and so utterly unreliable that it is not to be belived under any oirovuust---noes.

Joseph Simpson another witness for the defendant testifies to the same effect in reference to frequently losing sides of defendant's flo?.ts, without paying -ny attention to it; but knows nothing of this accident whatever.

Lawrence Jenkins, another witness for the defendant, the driver of one of their four mule floet3, only testifies to having lost sides of the float, knows nothing at all about accident in question end did not participate therein.

F. M. Sheen is Vice-President of defendant Company; he testifies that the Company has only one two mule sugnr float end only h-d one --t the time of the accident, which flc-'t was driven by a, oolored driver, who has testified in this case, by the name of Polite; he testifies how the wagdns s.re leaded, and unloaded, and th-t the sideboardá, describing them, «re frequently lost, and he has frequently seen sideboards of defendant, used by other transfer companies, but knows nothing of the accident in question save and except the letters offered in this reoord, between counsel for plaintiff and the defendant company.

He was asked the following question:

Q. In this interview with Mr. Aitksns — he is an soquaintance of yours?
A. Yes sir.
Q. You have known him for sometime?
A. Yes sir.
Q. Your relations are friendly with him?
A. Yes sir.
Q. When you calked to him about the accident, when he told you about the accident, did you not tell him that they eould not prove anything?
A. Ho sir, I told him rhat I did not have any record of the accident.
0. Did you not state to him that they could not prove anything?
A-. Ho sir, I =m positive that I did not.
Q. Did you not tell Mr. Aitkens that they did not have the number of your license?
A. Ho sir, Iasked him if he knew the number of the license.
Q. He told you no.
A. yes sir.

This virtually doses testimony of both plaintiff and defendant and the letters referred to in the testimony are made part of the record in this case.

These letters all and every one of them gave notice to the defendant company, of the time this aooident ooourred, the place where it ooourred, the circumstances under which it ooourred, the fa.ot that the negro driver had charge of the wagon, and ran into plaintiff's automobile, end gave ■ all the circumstances connected with the aooident, together with the injuries to the oar, and the child.

The reply simply advises that it is essenti&l- that the information asked for in the first letter be furnished; all subsequent ^letters ar'e to the same effect and- no’information of any kind was furnished by the gatkinitff gptnSiiSirr to/íefendagff; save and except that above referred to.

In the very able brief furnished by counsel for defendant, there are several important points which counsel states are essential in the determination of this case.

The answer simply acknowledged the reoeipt Of the letter in question, and requested that the name of the driver, and the lioense number of the vehicle, which caused the injuries be furnished, and the answer to that letter states the inability to obtain the name of the driver and gives the reason \yhy.

Amongst them is, first, whether or naxkfck not the float which caused the aooident, was operated by, or belonged to the defendant, and our answer to this question under the testimony, leaves no room for doubt, but tnau the float in question did belong.to the defendant, was. their property, was driven recklessly, carelessly, and negligently' by the driver, a oolored man, who when this aooident ooourred, drove his mules rapidly from the scene without paying the slightest attention even to the ocoupants of the oar, notwithstanding he must have heard the ' sorearns of the child who was injured, the soreams of the grandmother; .he drove his team away from the place of the aocldent, evidently knowing that he was the sole cause thereof *.nd wanting to esoape responsibility; doubtless thought this was the best method of his doing so.

The second question wss whether or net the accident w-s c:used by the negligence on the part of .the driver of the float, and we answer this in th.e affirmative. He oould e-sily hsve avoided this accident, from the testimony in this reoord end he failed to do so. The testimony of Mrs. Fitler, Hr. Aitkens end Mr. Martin leaves no room for doubt but whHt so fer as plaintiff is concerned there •as no negligence on the part of Mrs. Fitler, and oonvinc-'s us that the driver of the float as has been stated was solely and wholly at fault.

The third question of complaint was whether or not if there was any negligence on the part of the driver of the float, plaintiff's wife wee not also negligent in the handling of her car so as to constitute contributory negligence.

The answer to this is Identical and in line with the com.uen.ts made by us to question Ho. 3 and requires no further statement on our part.

The lest and final oomoleint is whether or not áxBoigEsiüSBSEi damages allowed are excessive.

In an examination of the authorities referred us by counsel for defendant, the esse of Blume against the City, 104 La. 345, was a case where there was a suit against the City for ten thousand dollars, caused by .an obstruction, in which plaintiff stumbled, fell and in the fall freotured and broke her right arm and the Court there held that notwithstanding the injuries reoeived the sum awarded, $3500.00, was amply sufficient and gave judgment for that amount.

Another case. Daly vs. Kiel, 106 La. 170, the amount of damages sued for was ten thousand dollars and the claim there was he suffered-greatly and was crippled for life, and had lost his means of support, the Court awarded a judgment in the sum of Fifteen Hundred Dollars although the Court m its opinion said -plaintiff might be limping or laming for the balance of his life.

In iklxxaxxa the case of Collins against Lewis and Company,111 La. 741, plaintiff met with an s.cciient and as e result of which he wss unoonsoious for several de.ys snd had to wear a. -oles-ss-r cast upon his head and neck for four or five months longer, and suffers from permanent dislocation of the fifth oervloal verterbrae and complete paralysis of one arm. The Court there rendered judgment in the sum of Fifteen Hundred Dollars.

And in Rossey vs. Lawrence & Hamilton, 123 La. 1053, where the Court for the total loss of the thumb and fcrsginger and partial loss of two other fingers and which rendered s left hand almost useless for practical purposes, a boy of thirteen was allowed Twenty Five Hundred Dollars.

There ere numerous oases cited in defendant's brief and others in our Suprams Court Reports which ;ould simply multiply authorities on questions of ‘.-images, particularly the amount thereof, without in <-ny way adding anything which would tender to throw further light or. this subject. If, 93 has been stated by-Courts of this end other St9tss, we were simply to follow our syitpethi.es instead of our judgment, we would be inolinéd to do that which we have no right to do.

A careful consideration of the questions involved, particularly in sc far as the 'mount of damage is concerned leads us to the conclusion that in so far es the judgment condemning defendant to pay plaintiff for his own use, for injuries to his iutcmobile, the sum of $349.00, same should be reduced by the sum of $35.00, leaving the amount of judgment, $334.00, so which plaintiff is entitled with legal interest from the date of judgment, and the judgment in favor of plaintiff, Ellis A. Fitler, in behalf of his minor child, Warreen Fitler, against the defendant should be reduced to the sum of Ttíc Thousand Dollars, with legal interest from date of judgment, costs of appeal to be psdd by Plaintiff and costs of the lower Court to be psdd by the defendant.

Judgment amended and affirmed*


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charlas F. Claiborne, Judge.
    ■ SUCCESSION OF OTTO EMILE SHARP
    No. 8522
    April 24th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

Otto Emile Sharp died in New'Orleans; his sister Annie Sharp, wife of B. V. Redmond opened his succession; she alleged that he left another sister; that he left a testament made in Mobile, Alabama, dated April 12th, 1920, by which he changed his beneficiary under his life insurance Policy from his estate to Mary Glaser Garrott Sharp; she annexed the will to her petition^ and alleged that it was made in accordance with the laws of Alabama and is valid in this State under Act 176 of 1912 p 320/ that the testator did not name any execütpr to his will. She prayed for the probate of the testament and its execution, and to be appointed dative testamentary executrix.

Widow Otto Emile Sharp opposed the probate of the alleged testament alleging that it was not made in accordance with the laws of Louisiana iftfir of Alabama which required that the testament should be in the handwriting of the testator himself; she further ¿SllegBd that she was a widow in necessitous circumstances, arduas ^ suehyentitled to $1000 from her husband's succession. She prayed that the probate of the will be denied and for $1000.

The petitioner for probats of the will excepted to the widow's demand on the ground that it disclosed no right or cause of action; that the heirs had not been made parties; that opponent was no heir; that her claim should be amerted against the succession; and that she could only proceed by direct action.

Upon the trial of the. opposition and of the exceptions therS was judgment rendered December 12th overruling the exception and maintaining the opposition of Widow Sharp and that upon her

"producing to the court her marriage and financial condition, and upon her so doing, she be adjudged to be entitled to the sum of $1000 under Policy No. 8418 of the Independent Life Insurance Company of Nashville, Tenn. as widow in necessitous circumstances, and the Probate of the Will herein filed be and the same is hereby denied".

On December 20th. following on motion of the widow and on suggesting that she had conformed to the judgnent^establishH^r her marriage.and necessitous circumstances, it was ordered that she be recognized as widow of the deceased

" and entitled to the sum of $1000, the proceeds of Policy No. 8418 of the Independent Life Insurance Company of Nashville, Tennessee".

1'rom the judgment rendered December 12th. and signed December 19th, Mrs. Bedmond has appealed.

The exception of want of proper parties should have been sustained-.

Widow Sharp can demand to be paid $1000 only from the Suece ssion, and from property of the Succession, of her husband. C. C. 3252 (3219)S5.

If the will was valid, the insurance money formed no part of the Succession of her husband; it belonged to the beneficiary, and*not to the Succession, and it might be claimed that the widow could not claim to be paid out of it. Succession of Kugler, 23 A. 455; 135 La. 49; 147 La. 977.

If the will and change of beneficiary W&a invalid, then the insurance money belonged to the Succession .of the deceased or to his heirs, and^it might be argued^was exempt from all liability for any debt of the assured or of his Succession. See Act 88 of 1916 amendingAct 189 of 1914 p 356. It reads as follows:

■That the proceeds or avails or dividends of all life, including fraternal and co-operative, health, and accident insurance shall be exempt from all liability for any debt, except for a debt secured by a pledge of policy, or any rights under such policy that may have been assigned; or any advance payments made on or against such policy".

In 142 La. 27, on page 40, the Court said:

"Our conclusion is that the fund of $6226.73 being the proceeds or avails of the life insurance collected by the administrators, is exempt from all liability for any debts of the insured, Adonis Le Blanc, or of his succession, and must be paia to his heirs at law". 146 La. 385; 147 La. 437, 977 (981).

It is evident that before a judgnent could be validly rendered against the Succession, it should have been yepreséntpd, and thatj at the time the judgnent herein was rendered, the Succession was not represented. It is also evident that at the time the judgment was renderéd making a final disposition of the proceeds of the life insurance policy, all the beneficiaries o.f the policy under the original policy and under the alleged will had not been made parties. The judgnent is therefore invalid and must be reversed.

It is therexore ordered that the judgnent appealed from be annulled and reversed, and that the Case be remanded to make ' proper parties and for a new trial of all the issues involved. Appellees to pay costar of this appeal.

Judgnent reversed and case remanded for new trial.

April 24th, 1922.


text:
    NO. 8523
    COURT OF APPEAL PARISH OF ORLEANS
    SUCCESSION OF THOMAS MOYNACH
   Dinkelspiel; J.

The issue presented in this oase is whether or not the Judge aqua correctly ruled as to whether the Suooession of the deoedant under the inheritance tax law could or coui not be held for the value of sixteen shares of the capital stook of the Jefferson Distilling and Denaturing Company, whioh had been listed by the heirs of the deoedant at the par value of One Hundred Dollars per share, and when the list of this stook was presented to the Inheritance Tax Collector, he disapproved of the above par value, maintaining that the book value of said stook whioh was $370.00 per share, at the date of the death of deoedant, should prevail.

This question has definitely been determined in our opinion, in the case of the Succession of Coleman, 147th La. p. 367, where the Court goes on:

"By the value of these shares of stook is meant the amount which they might be sold for at private sale for oash."

And in that oase none of the stock of said corporation had ever been sold and the question, how was this value to be determined is an open one.

In the instant case, counsel for the Inheritance Tax Collector endeavored to get the corporation to produce a statement for the month of April, 1931, particularly calculate the value of the shares of the oapital stook of the Jefferson Distilling and Denaturing Company, taking into particular consideration the surplus or undivided profits of said corporation.

To which counsel for the Succession objected, on the ground that the value by the auditor of the Company would not represent a true value of the stock as contemplated by the law, the true value of the stock is the market value; the law does not require us to pay inheritance tax on prospective values. This exception was maintained. Subsequently an excerpt from the inventory of the Company dated April 15th, 1931, showing that L. H. Marrero, died February 36th, 1931, owned stook of the same kind-in the same corporation, which was appra-ised at the sum of $175.00 per share. On objection the objection was maintained.

The witness Gersen testified that the stock of said company had never been listed on the Stock Exohange and that very little had been sold and none at all within the last, twelve months.

The Judge finally ruled that the rule taken by the Inheritance Tax Collector be dissolved and- denied; the judgment of the Court is that the market value or cash value at the date of death of decedant has not been proven at this trial.

Section 7 Act 109 of 1906 gives the law under which this proceeding was instituted and it is tnere stated that within six months after the date of the death of deoedant, or should there be a will, within the same time after the disoovery of same, there shall be presented to the Court a detailed, descriptive list, sworn to and subscribed by him, of all items and property oonfcaSned in and composing the estate of the deceased and therein shall set the aotual value of eaoh suoh item at the time of the death of deoedant and service thereof shall be made on the Tax Collector who shall have the right to traverse the same.

It is contended by the Appellee that the Court’s ruling in reference to the testimony given in this oase whioh fixed the value of the stook, was oorreot and they having so fixed it and there being no market value, that that ruling must prevail.

We do not so interpret the Aot nor the decision quoted in the Coleman case, but we prefer to remand this case in order that the Judge oan have the benefit of’ all the testimony to be produced both by the Inheritance Tax Collector ae well ae by the representatives of the Succession.

me judgment apneáisd from, therefore, is sot aside and this oase is remanded to be prooeeded with in aooordanoe with the. views expressed herein, oosts to await final deoision of this oase.

-Judgment reeeeeed and remanded-


text:
    E. F. WENDEL versus JAMES F. MIAZZA
    NO. 8532
    COURT OF APPEAL PARISH OF ORLEANS
    William L. Vell, Judge:
    December 11, 1922.
   BY: WILLIAM A. BELL, JUDGE:

Plaintiff sues defendant for damages suffered to plaintiff's automobile, growing out of the collision between iiis and defendant's automobile on Sunday, August 88, 1921, about three o'clock in the afternoon of said day. -The accident is shown to have occurred on South Carrollton Avenue between 1'anola and Sycamore Sts., about 100 feet, or a third of a block, from the corner of South Carrollton Ave. and Panola St., and.on the lower, or east side of Carrollton Ave. Both automobiles seem to have been damaged, the plaintiff suing for damages in the sum of ¡F00.00 and the defendant suing in reconvention for damages in the sum of ■.'■58.00. 'i'here was judgment in che trial court for plaintiff, in the stun of v-269.00, dismissing the reconventional demand, and firom said judgment defendant appeals.

South Carrollton Ave. is a neutral ground street, upon which traffic on the east side thereof, goes in the. direction of south to north, while that on the west side is in the direction of north to south, i'he evidence shows that on the day of the accident, the traffic on the upper, or west, side of Carrollton Ave., that is, the north-south direction of traffic, was closed for repairs several blocks north of the point of accident, a fact which temporarily made the east side of South Carrollton Ave., for several blocks, and at least up to the corner of Panola and South Carrollton Ave., a two-way traffic street. For the above reason, just stated, we find that the plaintiff, while travelling in á north to south direction on the upper, or western side of South Carrollton Ave., was compelled to cross over to the east, or lower side of South Carrollton Ave., while going in the direction of, or towards, St. Charles Ave., and that he had followed a motorcycle policeman, going ahead of him, and that he, plaintiff, had properly taken the upper side of the then two-way traffic street, nearest the neutral ground thereof.

We find that the speed, of plaintiff's automobile was not an excessive one et any tine, and that while travelling nearest the neutral ground at a point about two thirds of the block beyond the corner of Sycamore and South Carrollton Ave., he was suddenly confronted with the on-coming car of the defendant; that he promptly blew his horn and came to a full stop in order to avoid the accident, and that he and another oooupcnt of his oar shouted to the driver of the defendant's car, who failed to heed the warning given him.

A disinterested witness, testifying on behalf of plaintiff, states that he was standing at the corner of Sanóla and Carrollton Ave. when he heard the continuous blowing of a horn, and looked in the direction of the sound, and saw that plaintiff's oar had stopped and that its occupants were shouting to another oar coming down upon plaintiff's ear at the rate of about 25 or 20 miles yer hour.

A police officer, sent to the scene of the accident, testifies that when he asked the driver of the defendant's oar how the accident happened, the said driver told him that when he noticed plaintiff's ear, he became confused and did not have time to swerve his oar to the right, and that when he looked and saw plaintiff's oar in front of him, he hit the oar before he could stop. It is shown by this policeman that the invariable rule or order, received from police headquarters, was to compel those travelling on a neutral ground street to take the opposite side to that on which they were travelling when their side was blocked or obstfusted for repairs, and that thi3 order was only countermanded at police headquarters long after the accident in this case occurred, and just about a week before trial, the rule now being to direct the drivel', under similar circumstances, to turn into the next cross street, that is to go around the next block.

The occupant of defendant's oar was his son, a young man attending High School. He was driving the oar while accompanied by a young lady acquaintance. She young man testifies that he was looking on the other side of the street (meaning in 'the direction of the upper, or western side of South Carrollton Avenue) and that he did not see plaintiff's oar until he got right upon it, thus admitting that he was not looking in the direction in which he was driving, and when pressed as to this, replied in-explanation: "You cannot look ahead all the time."

Plaintiff testifies that defendant's son wa^ talking to a lady friend in the car, and was driving with one hand on the wheel and the other on the back of the seat, both the young man and the young lady being seated together in the front of the car, and that-he noticed the young lady pointed down to Sanóla St. where there was some attraction, the young mpn thereby not paying anv attention to where he was going, although plaintiff kept on blowing his horn, and although both plaintiff and the 'other occupant of his car shouted a warning to him.

We finally note from the evidence that the officer verifies the fact that the upper side of Carrollton Avenue was dosed for repairs, and that he did not arrest plaintiff for this reason, he being on the side of the temporary two-way traffic street nearest the neutral ground, where we find he had a- right to be.

There is no .controversy as. tt> the extent of the damages on either of the automobiles in this collision, anu. aupellee has not moved here for an amendment of the judgment as allowed.

The defendant, in tils answer, pleads negligence %ainT l'iabiiitv on the wart-of the nlaintiff, because of the latter's violation of the city ordinance, but hh± no such ordinance was offered su me trial of this cause, and therefore, the court can take no cognizance thereof. Kerner v. Hartman. 8396 Orl, App.; State v. Judge, 105 La., 758; State v. New Orleans, 102 La.,195; Rudison v. Glover, 135 La., 381, and numerous other authorities to this effect..

Our conclusions are that the plaintiff in this ease was in no manner negligent; that he observed the rule of the road in keeping to the right of the particular side of the neutral ground.Upon which he was forced to go under conditions above noted,

In Berry on "Automobiles", third edition, par. 238, the rule is discussed in which it is shown 'that a traveller may be justifies in driving on what might otherwise be the wrong side of the road. This text writer comments on this subject as follows:

"A motorist may justify driving on the wrong side of the highway; but the conditions by which he attempts to justify such a course must result from causes beyond his control.
Allegations of the complaint that defendants were travelling along their left hand side of the highway do not make a case of negligence per se. because there are certain circumstances under which the law permits one to use that portion of the highway. Hagenah v. Bidwell, 189 Pac. 799.
One may justify his driving on the wrong side of the road by showing that the road on the other side was practically impassable or appeared to be unsafe." Quinn v. O'Keefe, 9 App. Div. 68 (41 N.Y. Suppl. 116.)

The defendant was wholly liable in this case, and we find that the judgment of the lower court is without error; and should be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from awarding plaintiff damages and rejecting defendant's claim in reconvention, be, and the same hereby is, affirmed, at defendant's cost in both courts.

JUDGMENT AFFIRMED.

December 11, 1922.


author: By: WILLIAM A. BELL, JUDGE:

text:
    PERCY S. MANN, versus SALI B. HOLLANDER
    NO. 8535
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    December 11th, 1922.
   By: WILLIAM A. BELL, JUDGE:

Plaintiff sues defendant for labor and material furnished defendant in installing certain electric wirirg in a building owned by the latter. The contract was a written one, as shown by a written bid annexed to the petition, and accepted by One alleged to have been the authorized agent of the defendant. There is also a bill attached showing the items for services and material rendered, in the total sum of ¿215.75, upon which a credit appears pf cash payment, in the sum of ¿25.00, leaving a balance of 4190.75, the amount sued for. There was judgment in favor of plaintiff for the sum of ¿190.00, with interest from judicial demand, and oosts. Prom this judgment defendant has appealed.

Defendant answers by pleading exceptions of vagueness and indefiniteness, and also that petition discloses no right or cause of action, and further answering, defendant specially copies that the party accepting the written bid for the Al i- i • work was^.jin authorized agent of the defendant; further answering, defendant pleads in effect that the only contract had with the plaintiff was a verbal contract for ¿212.00, in which amount there was to be included a certain large iron box, or cabinet, to hold twelve electric meters, and that said cabinet was not furnished nor installed by the plaintiff, snd^Éfe¡a«^g|^fc.t he failed, as. verbally agreed, to secure the usual certificate from the Louisiana Pire Prevention 3ureaU, showing the work to be in accordance with said Bureau's rules and regulations.

We find no merit in the exceptions herein filed, and the same are hereby overruled, for the reason that we find plaintiff's petition in no manner vague or indefinite, and that the same alleges a tortra-mm compliance with all the terms of the Written contract made part of the petition. This contract specifically provides that thb installation is to be in accordance with rale and regulations of the Louisiana Pire Prevention Bureau, and that a certificate to that effect is to be furnished by the plaintiff upon the completion of work. The allegation that plaintiff complied With all the terms of the contract is sufficient to support the cause of action.

Issues of fact are alone involved, in this case, and from the testimony taken in the Trial Court, we find that the acceptance of a written bid and contract was made by one fully authorised to act for the defendant. A part payment of the bill is rendered, which was made by defendant only íive days after the submission of the bill, and this precludes the contention that the party acting for the defendant was not authorised. There was an attempt, at the trial of this cause, to introduce evidence of a verbal contract made subsequent to the written contract. The offer of this evidence was a dear' attempt to vary by verbal testimony the contract sued' upon, and was rightly excluded on objeetion,by the trial judge. The evidence of plaintiff is satisfactory, to the effect that the certificate of the Louisiana Pire Prevention Bureau vías -ultimately and properly procured, and the verbal and written testimony in the record showing the just causes for delay in procuring said certificate are reasonable and uncontradicted. There is a preponderance of evidence that the work was completed according to the written contract sued upon, and the defense offered to this suit is, in our opinion, untenable.

At the hearing before this Court, counsel for plaintiff admitted all liability for the amount sued upon ex-u§]?t the sum of -^45.00 for a cabinet which he claims vías to have been furnished under the verbal contract which has been excluded. V/e find no error in the judgment of the trial court.

It is therefore ordered, adjudged and decreed that the judgment herein appealed from be, and the same hereby is, affirmed, at plaintiff's cost in both courts.

JUDGMENT AFFIRMED.

December 11, 1922.


text:
    NO. 8536
    COURT OF APPEAL PARISH OF ORLEANS
    DANIEL CARTER versus NEW ORLEANS RAILWAY & LIGHT CO. and NATIONAL SURETY COMPANY.
   Dinkelspiel; J.

Plaintiff institutes this suit against the defendants, alleging that he was a passenger on a Louisiana Avenue oar, end having paid his fare to his destination, he was entitled to be carefully carried and set down at the place where he Intended to alight; he alleges -further that when said oar reaohed Canal end St. Charles Streets and oame to a stop he oame on the rear platform of said oar and was about to step down when the oar started off, throwing his hip against the steps of the oar, from which he sustained a óoáminuted fracture of the hip bone, and the defendant company violated its contract of xslxL transportation.

The answer of the Railway Company admitted that plaintiff was á passenger, as o-llegeA by.him in his petition; but plaintiff avers that whatever injuries the/«»i£xp**wx» may have reoelved, be brought setae upon himself by his oarelessness, negligence.. and imprudent oonduot in alighting from the moving oar under oiroumsta: then existing end if injured he Is without right to reoover for the injuries by .him sustained, because -of his own fault and therefore prays for a judgment in its favor.

The Rational Surety Company, made one of the defend- ■ a.nts in this case, denies all the allegations of plaintiff s ' petition; admits th’.-t it was a surety for the sum of ISOOO.OO, • but affirms and adopts for ito further answer, the facts as alleged by the Railway Company, in its proper defense and aslcs for judgment.

There was a trial in this case by jury, nine. of. whoa found a- verdict in favor of plaintiff, -in the sum of Jive Thous-' ’and Dollars; henos -this appeal.

A careful examination of all the testimoay in this • case satisfies us that plaintiff was a passenger on a Louisiana Avenue oar on the date mentioned in hi? ..petition, October 26th^-:" 1920, when the oar reached, as he-thought^ StV' Gharles and .Canal' Stréets, át which piaos hewanted. -to,;allght»’■

He testifies that the oar stopped there and as he r- ..is out of the oor and before he got a ohanoe to rea.oh the ground sufficiently, the oar started off and he lost hie balones end fell; he further testifies that when he asme out of the i or th t the conductor was on the inside writing in a book,and as plaintiff was about to step on the steps, the oar took a sudden lurch and threw him on his hip and orushed it, and he further testifies that the oar had stoppedj-end he esme out of the o?r, passing right by the oondnotor, and the oonduotor he was about to step down on the steps wheiyi® rang the bell and that the starting of the oar threw him out and he fell on his hip and hit his hip on the steps, not giving him a oh-, nee to reach the ground before the bell rang; he described his injuries, his sufferings, the attentions paid to him by his-plr'sicians, rhe time tlv:t he lost from his work, the amount of wages he was earning per week,and at the time of the trial of this case he was still suffering and unable to work.

The testimony of Chris Bates, after describing the crowd of people, th-1 he sow, he saw a men on the floor, just " s the c-.r was fixing to cross and the osr had stopped and he s■■it the oar o rein pull off and that somebody fell and he would h’-ve gone to plaintiff's rescue if he hsd recognized him, he fell from the back platform and after the o?r had pulled off and stopped age in; this was right across the crossing, at St. Charles Street and just '13 the osr pulled a-cross the treok it stopped, he testifies further that at the time he did not know that plaintiff was Injured or that he knew who he was; subsequently met his wife -whom he had known for a long time acmdsta and when she informed him the.táhe was going to the hospital and he inquired why, she said that her husband got hurt by a fall from a oar at St. Charles and Ce-nal' .Street^end after some other conversation, he informed the women that he was standing at the oar the time the accident happened, hut he did not knoYt th:.t his friend Carter hud been hurt ,-nd th:t he knew .otherwise all e,bout the affair.

Q. How just describe how the accident happened?
A. Well it hadbeen drizzling rain^nd it was awful sloppy, when the oar-neared St. Charles StreetTwe were going very slow ^and the man stepped off the. oar, and when he did^ he looked like he made a step and fell on the ground on one leg, and then of course we went to the corner, about thirty feet, end stopped, and he did not get up and I went back and picked him up, and he said: nI must have broke my leg” and then the motorman came out and helped me carry him on the oar, and we took him on the hack of the oar and subsequently me ambulance came and carried him, doubtless to the hospital.
Q. Had you given the signal for the oar to stop at that corner or is it customary for it to stop without a signal?
A. It is customary to stop without signals on the near aide of the crossing.
Q. When did you give the signal for the car to go ahead?
A. After we got him on.
Q.. Did you give any signal for the oar to go ahead as he was getting off?
A. Ho sir.
Q. And was the oar moving or stopped when he got off?
A. The oar was moving.
Edward Suhring, a witness for the defendant, fifty two years of age, head foreman for the Algiers Saw Mill.
Q. On October 38th, 1930, somewhere around six o'clock in the morning, an scoident ocourred at Oanal and St. Charles Streets, when a oolo’red man. getting-off & Louisiana Avenue oar fell and got injured; were you there?
A. I was standing at the'corner waiting for that Sar.-
Q. Did you see the accident happen?

In behalf of the defendant, the oonductor, of the oar, who had been in the service for thirteen years p-nd who was conductor at the time this accident occurred, which was on the 36th of October, 1930, was asked the question:

' Á. I saw him fall, yes'sir. 'I was standing by the ■post just where tlie oex makes the usual stop, and this man got off the oar about twenty feet before the oar came to a stop X would judge, what "I mean four lines of pavement and that measures'about five feet, the car was rolling when'he jumped off the car, arid he'fell and his. leg went'under him,, and the conductor helped him, on the' car and went tp Canal and the river - and I, went on., . Witness goes o.n to testify that he was on the same-oar-th»t the, man was taken .out of.
Q. .Do you know how long the cs,r was deta-inéd there until ' the conductor gave the bell to "go ahead again?
A.' I do not remember, I do not think it would be longer, then sever, ór .eight Minute's.;

Louis Mason, forty three years of age, working for the GOrona- Coal .-Company for twentyyears:.-,

Q. In 1930, on October 66th, there was an accident that happened-at the oomer of Canal and St... Charlee. Strests, when a colored man fell while gettingyoffa car and was hurt.-Were you there?
A. I was... I was .'standingvwaiting. 'for .a Louisiana Avenue car and. when. it got. within, twenty- feet of the. corner-I eaw the man jump" off the easy' it was, a colored man and that' happened about-'in front .of the'Stevens' Store. . ,

I. was right there ..at ..the time, a little from the stop-ping .point end ss-th.e oaf-stopped I jumped on the oar*--

Q. Did you .go. back- t.o where the .men- had fallen*
A. Wo sir. - I did not know'that he was hurt, ;! saw him - on the pavement. .
Q. How many stops did that ogw make?
.. , A..-Thetas nver oame-to 'sny.arfcop'but one'that-I know of.'-

J. A. Knight, forty four-years of age, was employed by the defendant, the Hew Orleans Railway & Light Company and has been so employed, as a motormau, since December, 1899.

Q. On October 26th, 1920, sometime in the early morning, at the corner of St. Charles and Canal, a Colored man. fell from a Louisiana Avenue Car when.getting down?
A. Yes sir.
Q. Were you the motorman of that car?
A. Yes sir.
Q. Who was the conductor?
A. Noonan.
Q. I believe that you turn into-Canal Street at Rampart?
A. Yes sir.
Q. And coming from Rampart to St. Charles Street your car uses what track?
A. The outside track, the same track as the St. Charles and Tulane Belts.
Q. As you approached St. Charles Street on that morning how were you running?
A. Setting up to the corner we stopped as usual, it is the regular stopping place.
Q. Where did you atop your car?
A. At the usual stop at St. Charles and Canal.
Q.How long did you stop there?
A. I stopped and I thought it was an unusual length of time and I said what is the matter and I looked out end I saw the conductor back a few feet, I do not know, how far it. was -behind the oar picking a man up-and I jumped off and-went -to heip.'hlm■ pi.ok up t£e man end we put him on the oar and bar-ried-him to'the. river.'

He did not sees the accident, it happened on the back end of the car and he was on the front end, got no signal to stop, didn't require any for it was the regular stopping place, got no signal to go ahead and got no signal at all until they had picked up the man and put him on the car.

A review of .the. testimony in this case firmly impresses the facts’ on our mind, -s.'s -testified to both by disinterested witnesses, portions of -whose! testimony we have put in this reoord, also-the testimony of .the. motorman 'and conductor, that plaintiff in alighting from'.the moving bar at the time’he. did on-a wet morning, the oar not having come to a,stop,-but still in motion, fell and received the serious injury, of whioh he complains. Had’he-waited until the car would have obme: to a stop, he opuld hs,ve avoided'the accident, -dohbtless, and henoe cannot reoover from the .'defendantf,■ damages'’as claimed by hip, he being-wholly and'solely at ffeult".

The burden of- proof rests with plaintiff to make . his case oertain and -this has been so frequently decided that it rdquires.-no citation of authorities' in support of this proposition, end whilst it is true, as stated in brief of plaintiff’’s,.cour¡sel-, "A common carrier'is bound to exercise the strictest diligence-in receiving’a passenger, conveying him to his. destination, and’-setting-hi.m down-safely, and the .’ burden of proof 1h on the oarrier to show by a-preponderanoe „. Of evidence, whst negligence, and whose, .prevented the fula ■, fillment of the contract. ”■ Referring to. LeBlano vs. Sweet, 10? ’La. 355} Y/e.sxe convinced that .both propositions are well . stated end the law oorrect,'but.we are.also further satisfied that defendant has ms,intained.,-.bbth the fact that it exercised diligtoce in conveying the.passenger to-his destination and carried: him safely to that. placei biit that plaintiff himself in. his haste .to get,- AxtádcÍBuac ,to hds'work, took-upon himself, ’.the'risk’-whilst the osx’wñe in' motion, to jump from the moving es.r and ’fjéll, .'receiving the-'’injuries that he complains of, for -'whioh ’under no clroumstsnoe’s, defendant .oan'bb!held responsible;

Mumphrey vs. Planters Ferterlizer Co. 6 Or. App, 131,

A person cannot reccv-.r for v.n injury to ¿hi ah hs hr: a contributed by hia own ;<■ nfr cf rri-iu-ry err?.

110 La. p. 19 p. 23, ''.cliicb cl - X. 0. R. Also S'-s 5th 1- . Eiv:-;t g- = 53X-33 ' :il nu,..'rcuv o-s-; there oitsi.

In this c-’-se, on motion for new bri'1 • nd r-fu>?l thereof by the Is rne-i Juiga of tbs C;ort 'quo, hia .r ■ a'ns .for rsfus:l of í- nsw tri 1 re .iv?n in full:

"?1 intiff -lleg? i th t vx he ■/ s ■'•■nt tc -'light from o -r, She c¡ ."nductcr :ign. 11--.1 th-. u.,.-t..-r.... n, -.-ho suddenly bt.rtsd th:. c r, "nd he ■./ s Slur ohro.vn to ths ground vicienbly ni sust-in-si j..ri.u. n;-. riys.
"Eif sni nt si i::.£ -;h t .1 inciff •; samp tad tc jut. ■ from the o-r before it c us t, ni raooiv X his -. licgsd injurias in th-t m-nn-sp. Th-t he .■• - .-.ri: ..-.j.y ■ nd , infully injured -. nd ori .• led ir, undis_,utsl,
"PI; intiff vnd v-nother c"lored n, -/ho w a stv-nllng acide -.Hat nee y, re the only v/itne-• o ■■ t •.tXfying to the f-'-vts illsgs-d in this petition. They .-re fl tly oentr dieted by the testimony of two men who were w. iting t the orcs-sing to bo-rd the o- r n-1 who testified tint ul: intif? jump ad from, th- moving w^r -t - dist'-r.os cf some '-hirty f'-sb frem th'?- „<oint f.t vhioh ths o-r'stopped, being ths usu 1 /to ¿ping plies, “nd in so jumping fell.
"These two witnarass v/srs ra-'ub bl; buai:8-.-a ...en of Hew Orl«;• ns, entirely without intar-.-st in ths outcome cf the suit ■ nd unimps;.ch?d. They corrc-bcr ■ ta ths an tament of the conductor end the './ic-tcr/.. n is to the f at- of ths cacurrónos, r.d giving their -caatimony the weight to ./hieh I think it 1/ rntitl-sd, in my opinion the wf-.-ponsUr nqs cf evidence is with defend- nt.
"H-d ths o.íí bXs-jn tried before me without - jury X should hc.ve rejected ¡l> intiff .v dsn-nd, but in ord.-r th-t litig-tion Kay be finally terminated, the motion for a new trial will be refused.
"(Signed) C. Reid, Judge."

we oonour in the reasons given by the Judge in refusing the new tri:1 end the ame now before us, being on sp19' 1, the qus'-’ticn z.t issue lus been finally, settled in favor of the def3r.cl-nt3.

Fox the reasons áiíigned, it i3 ordered, adjudged nd decreed, Sh t the judgment be reversed «-nd that there now be judgment in f• ver cf the defendants, plaintiff's suit dismissed -t his costs in both courts.

-Judgment reversed and suit dismissed-


author: Charles F.Claiborne,Judge

text:
    TIM DWYER VS F.C.DOREDANT
    NO.8545
    CHARLES F.CLAIBORNE,Judge
    December 11th 1922
   Charles F.Claiborne,Judge

This is a suit upon a promissory note for $250 made by defendantydated June 10"1921^and payable one hundred and eighty days after date.The defense is that by authentio aot dated June 10th 1921,the plaintiff herein Tim Dwyer sold to the defendant herein F.C.Doredant,an undivided half interest of ÍThe Southern Garage Company " including the toolá and materials belonging to said Company and one Studebaker Automobile add everything belonging to and used in connection with said business;of all of which the purchaser,Dorédant, acknowledged delivery and possession;that said business was owned by the plaintiff and the defendant,and bu this sale the defendant became the sole owner of all thff artioles herein-which price Doredant ythe defendant,made two promissory notes,each for the sum of $250 dated June 10th 1921,the first payable ninety days>and the second one- hundred and eighty days,from date with interest and etcs that the note in this suit is the second maturing note hereinabove mentioned;that the automobile sold by the above act has been in the possession of Tim Dwyer,plaintiff since June 10th 1921 and IS in his possession at the present time,and that he refuses to deliver possession of it to the defendant;that said automobile has a value of $750,which defendant pleads in Compensation and reeonvention. above giehtioned; that said, sale?was made for $1000 .of v $500 was paid cash and yn*¿3s«r balance of the purchase

There was judgment in favor of plaintiff,and against the defendant rejecting Ms reconventional demsncyand defendant has appealed.

The only question in the case therefore is,was the car delivered to defendant,and in whose possession is it now?

The testimony on behalf of the plaintiff is,that at the time of the sale,the oar was in the garage sold,and that the defendant,shortly after,delivered it to Emile J.Partmentel^ a former employee of the Southern Garage- Company,for repairs y and that he still detains the same on a claim of repairs.

The defendant admitted that the oar was in the garage at the time of the sale.That| in itself^amounted to^ delivery under the law-C.0.2478 (2463).

After the sale he saw Partmentel take the oar out in oompany with Dwyer.Partmentel was driving and defendant knew that Dwyer did not know how to drive.

He denied that he had authorized Partmentel to take the oar out or to make repairs to it.

The. real contest in this oase therefore seams to us to be between Doredant and Partmentel,and to turn upon the question whether Partmentel was authorized to take the oar and make repairs to it.But far from proving that plaintiff was in possession of the car"it shows that Partmentel had it.

Plaintiff saw and knew that^after the sale,Partmentel had taken the ear out of the garage along with his uncle, Tim Dwyer;

When the oar did not return^it us* easy for defendant to have ascertained who had the car.He made no proper efforts co recover it.This’ would corroborate Fartmentel's testimony that he held the car,with aerendant's consent,to make renairs to it.While this suit is upon the second note at 180 days the presumption is that defendant paid the first note at ninety days.The defense that he sets up to the payment of this second note existed at the time of the maturity of the first note .Why should he have paid thezyand not nowfune thing is certain,and that is,that defendant has failed to make out either of his defenses,either that the car had not been delivered to him,or that the plaintiff had the car in his possession.

The evidence is unoontradioted that Fartmentel has liad the car in his possession ever since he took it out after the sal®.0.0.8832 (2229).

The judgment of the trial Court is therefore affirmed.

December 11th 1922.