author: Charles F.Claiborne,Judge.

text:
    JOHN JORDAN,Appellant VS TOURO INFIRMARY AND HEBREW BENEVOLENT ASSN.
    No.8840
    CHARLES F.CLAIBORNE,Judge.
    November 13th 1922.

   JOHN JORDAN,Appellant Vs TOURO INFIRMARY AND HEBREW BENEVOLENT ASSN.

No.8840

Charles F.Claiborne,Judge.

This is a damage suit for injury suffered by the plaintiff at the hands of one of the nurses while he was undergoing an operation at the defendant Infirmary.

The petition alleges that in August 1920 he entered the Touro Infirmary for the purpose of undergoing an operation k to be performed ubn him by Dr Rudolph Matas,a surgeon of said Infirmary^employad by him;that he was a pay_patient and had engaged a room for which he stipulated to pay a fixed price, and In addition thereto agreed to pay for the use of the operating room,and for the services of an employee of the infirmary to administer the anesthetis;that during the operation one of the muiaea employed by the Infirmary in attendance upon him negligently inflicted upon him painful and permanent injuries by placing at his feet certain heating appliances which burned and blistered his feet as as to partially disable him for llfe^ the whole while he was undsr the influence of aneathetie^and helpless.For all of which he claims $28,000.00

The defendant first filed an exception of no cause of action which was overruled.

For answer the defendant admitted that the plaintiff had entered the lnflmary as a pay-patient paying a fixed price per day for the use of his room and for the use of the operating room,but denied all the other allegations of the petition.. Further answering defendant averred :

^ And for further answer defendant avers that it- is a charitable association,organised for charitable purposes under1 and as authorised by tie laws of this State by act before Felix J.Dreyfoua,Notary Public^on March 6th 1893 as per certified It •epy oí oaarter annexed hereto}that aald defendant 1b a benevolent or charitable association or corporation,and is not incorporated for profit,nor does it operate any bunlness for profit, but that all its revenues,including the dues of its members and .patrons,donations and legacies,contributions by the City of Hew Orleans, and all receipts from pay-r-patients,and from all other sources whatever,are devoted'exclusively to charitable and benevolent purposes and to the care and treatment of Charity patients and inmates,and that no part of its revenues is paid out to its members or patrons for profit or otherwise} that the finds reoeived from said donors and all other Bourses,constitute trust funds devoted to charitable purposes,and which cannot be diverted from the uses and purposes to which the same have been dedicated}that defendant used all due diligence and reasonable care in the seleotion ofa its employees}and that this defendant is not liable for the'alleged injuries described in plaintiff’s petition,even if they were suffered by him,which is denied,"

There was judgment for defendant and plaintiff has appealed.

The above answer contains three propositions of legal defence}

First: That the nurse was not the servant of the defendant within the meaning of Article C.0.2320

Seoond: That even if she was.the defendant was not liable for ' O-her negligence, inasmuch as it had exercised due ^fars in the selection azffet of this nurse,and that she was oonpetent to fulfill the duties of her employment}

Third: That there was no negligence on the part of -cue nurse.

He shall consider the third point in discussing the first and seoond,inasmuch as under the jurisprudence adopted by us,as we shall see below,the defendant is.-not liable even if the nurse was negligent in the discharge of her duties.

The defendant baa established tha character of the infirmar» bv its charter and by testimony.By Artiale IX * The object of thia Association and the purposes for which it has beam crea/ted are deolared to be the giving of relief and protection and the affording of needful surgical and medical aid and comfort to destitute and deser»ing persons "

Article III of the By Laws .provides that " all funds derived from the payment of duos by members and patron's,aswell as by life members.and all donations,bequests or legacies to the association-and all fonda derived from any of the privileges •heretofore provided for or from any other source,shall^ except as hereing otherwise provided.be paid over to the Treasurer of the Association,for such disposition and use as the Board of Managers shall direct."

There is no other, provision either in the Charter or in the By-Laws relative to the receipt or disposition of. the money of the Association.

Fmanual 7.Benjamin testified that he had been President of the Touro infirmary,tne defendant herein for the last twelve yearsj.that it depended for its receipts on the money collected c/i-i . from the pay-patients $a the hospital,from contributions, bequests,and money it got from the Oity^and gifts jthat it liad no stockholders, and deolared no dividends 5 that it paid nothing to its patrons or members or supporters,and that the officers drew ad Salary nor any other oompo^sation;the receipts derived from patients are spent for the hospital and upon charity patients,the Oity of lew Orleans contributes $13,000 to- their, work;that all colors axui creeds are received and treated in the hospital),not only/» the Oity by from the surrounding country

The Infirmary was started about the year 1868 by JOdah Tour® for the purpose of treating the sick and indigent and was made a part of hie will; in IS'/c the Infirmary amalgamated with.the * Gentlemen’s Society * organised to take care of Yellow fever sufferers;it had then a membership of 600 which It has preserved for the last 36 or 40 years;from the By-Laws •" it appears that the annual dues of members are $12 and of natrons^ $26 and that donors of suma of money varying from $100 'asm are distinguished by having thefefc names Inscribed upon tablets of honor.Continuing hr Benjamin testifies that the institution treats within^ the hospital proper,about 7000 patients a year and in the ollnlos about 18,000 and in the outdoor ollnie about 90,000/all of whom only about two per cent Jewish, the number of Oharity patients is greater than the number of pay-patients/ the doors are open night and day in thm clinics and in the free wards .they have a staff of doctors , Jewish and non-Jewish who give their services free;the reoeipts of the institution are' about $300,000 a year from all souroes;the defioit between what the institution reoeives fpom pay-patients and from the Olty and what it costs to carry on the work of the institution varies from $26,000 to $40,000 a year;that is made up by contributions and bequests from their frimnds;the institution has never owned a dollar in the fifty years of its ezlstenoe,and has .never been without debt,and this day owes $200,000 and has no ainring fund nor securities whatsoever;the property of the institution is exempt from taxation because of its charitable character;there are ladies connected with the institution who are called welfare workers who visit the poor sections of the Olty and take care of the siek and maternity oases,and the lnterst ,of a' Certain trust fund of $10,000ythe revenues of the pay department are used to help carry on the Oharity department.

Consenting the nurses Hr Benjamin says; They have a training school with a eapioity of about(so) eldhtv women; a . i^young woman to besóme a nurse must first fill out a blank qualifying as to education and reputation,mental capacity and health^wnder the. signature of'a doctor.clergyman^or rep:t.able .person^in order to be .eligible this, must be approved not only by the superintendent of the institution and by its directo;:?, but also by the Louisiana State Board of Examiners for Kurses} the applicant ÍEen enters the school as a probatlonal student} for the first six or eight months she does only certain woriy suoh as cleaning up^ carrying buckets and vessels}and helping to make up beds,and she takes no part in the medicinal serrices of the institutions she gradually develops^as her training continues,into the first year period,and into the second year period,and in the third year she graduates,if she accomplishes what is expected of her,and receiTes her diploma}she is paid $10 or $12 a month to meet her ordinary expenses,and she is furnished with meals and lodging and training and teaching} they get hospital and bedside instructions.and attend lectures^ demonstrations^ and everything that is necessary to qualify them for what their purpose is.}Dr Matas is one of the staff of teachers¡among the duties performed by the nurses are waiting on patients and attending on surgeons during operations¡she is finally aocepted into the- school of nurses^'she is assigned to duty the same way in the operating room.

Dr John Spelman superintendent of the Infirmary says that there are three classes admitted to the Touro}

1st Pay-patients who pay an amount ^qual or greater then their cost to the institution.
2nd Part-pay patients who payan' amount inferior to their cost,and
3rd Charity patients who pay nothing}

Mr Jordan paid $4 a day¡the entire personnel of the operating room is under the direction of the surgeon operating^* no one but him oan gire orders to any person,neither the President nor the superintendent has any authority there}he repeats the testimony of Mr Benjamin as to the education and qualifications necasary to be á nurse}the course is three years and three months it is only after they have had instruction in bedside nursing that they pase on to the operating room where they are in charge of a graduate in nursing;the plaintiff paid $10, for the use of the operating room,including the oeryase of the nursesjail patients in the operating room recive the same attentions, wnether they pay or not;the average cost per day of a patient to the institution is §4.25^' the operating expenses Tor the year 1920 were 5326,969.60 and the income derived from hospital services rendered was $303,064.14 leaving a loss of $23,906.36 not including payment of interest on money due amounting to $8,344.91 making a total loss of $32,260.27/this loss was covered by $13,000 from the Oity and by private contributions;the aim of the hospital is to make the pay patients support the entire institution^Oharity and pay as far as possiblejfrequently patients contract for services and do not pay for them.

Miss Bose,Directress or HurseB at the Touro for the last five years^and a graduate of that institution for eight years^ corroborates tne testimony of Mr. Benjamin and of Mr Spelmanj nurses are never admitted into the operating room-during the first yearjsometimes the latter part of the second year,add generally during the third yearjaxi tne nurses admitted in the operation room in the Jordon case were third year nurses,except ' three graduate nurses;there were 14 school nurses and 3 graduate nurses;the operating rooms are on the third floor;they are four in numuarja nailway separates them from the instrument and supply rooms,and all nurses go in and out of the operating room as instruments sm and supplies are sailed for by the. surgeon;the Burgeon gives orders to the nurses as to what he wants and every body in the room obeys himja tli^ough^ investigation was made to find out how the accident to the plaintiff happened;in ner own language she says;

" We knew that a thing like that could very easily happen where a patient wae^or they thought^dying.There was- so mfcch being done for the patient,it would be almost impossible to hold any one person responsible,where there were so many people doing for somebody that was that ill.In hospitals you always have some one responsible for what you are doing,but In a ease like that,you cannot hold any one person responsible where there are so many people doing it xxx but you can’t find out who is responsible for filling may be half a dozen bagsj and going and coming in the room,where there are so many people ! ^ busy xx we dont know who filled the hot water bags which burned Mr Jordan xxx we suppose it was a nurse,it may have been 7 w-one of the doctors that was in the ’■’oom.We dont know.They often fill hot water bags in the operating room or one of the intern^^ / -an. Is a graduate registered doctor who goes there for the experience that the hospital affordsxx ne gets no salary; there were two internes assisting Dr Ifatas and Dr Landry xxx in severe cases you have to have hot water bags very very hot.

Dr Matas testifies:

" TeSj as we were approaching the most critical part of the operation his condition changed and became very, grave and we had to halt the operation so as to restore him,because he was in such a, state of profound shock and for that reason we wanted to get all restoratives.We wanted to apply hot bags and we called for them at once.The change was, rather unexpected,A sudden, fall in blood pressure.The anesthetist called attention at once to the fact that his pulse was falling very fast,in fact practically destroyed entirely at the wrist.So we had to stop everything,and immediately we applied restoratives and among them heat.Other things were done .He was Infused injí the veins with a solutipn,and hyperdermih^ were imposed of digitalis and strychnine and heat was.applied.The call was immediate for heat in the shape of bags.It looked as though he might die on the spot unles we did someunmg promptly.We had to halt everything, it was a moment of great concern and great anxiety to every one.I think it ms only the fact that he had this pronpt attention right on the spot that really carried him through. There vas no tine to teat.We must have hot hags at onoe,imme-diately .A peremptory order like this must he obeyed.But we did not have time to find out whether the temperature was so much or so much or whether it would seald or not scald him.The nurses had to obey orders and act.Life was in danger,and we ha^l to disregard every other consideration because every other const-ar"' deration was a minn consideration.*
Q What is the nurses duty in a case of that kindt
A. To obey orders.The order was for hot water bags at once^ have it at once.
'^Whether they applied any of the regulation tests which, are recommended in training schools,and nursing schools under these ciroumstanoes I do not know.That part X do not know very well.I was not concerned with that.All X know was I saldt “Bring hot water bags at onoe : * There waB no time to he testing with thermometers,or anything of that kind.They brought hot water bags,and I suppose they brought them as quickly as they could In my opinion it was unavoidable absolutely.*

I -■ Plaintiffs action is based upon the theory that the nurse who applied the hot bags to plaintiff's feet was the defendant^ servant for whose negligence or tort it is liable He relies upon Article C,C.2330.It reads as follows s

* Masters and employers are ansuerable for the damage occasioned by their servants and overseers in the exercise of the runotions in which they are employed ".

Where the Supreme Court has spoken upon any question it is our duty to follow them in their reasoning, and in their conclusions,In the case of Congdon vs La Sawmill 143 La, SOW (314) the Court adopted the language in Quinn vs HRD.94 Tens 713 (30 S.W. 1036 ) which saldt

“Plaintiff in error insists that the defendant in errolf is liable for the mistakes or inalpraotloe of the surgeons in question;that their employment by the railroad created the relation of master and servant and that the ordinary rule which makes the master liable for the negligent acts of his servant within the scope of his employment is to be applied in this case.If he be correot in his contention that the relation between the railroad and these surgeons was that of master and servant,then his conclusión would properly follow. But was that the relationship?We do not think so.The tern" "Servant * as it is used in connection with the rule invoked has a well defined meaning.lt iB applicable^says Mr Thompson in his work on Negligence (Vol S P.89S )^ to any .relation in which with reference to the matter out of which an alleged wrong has sprung,the person sought to be charged had the right to control the action of the person doing the alleged wrong; and this right to control appears to be the conclusive test by which to determine whether the relation exists.For the relation to exist,so as to make the master responsible,he must not only have the power to select the servant,but to direct the mode of executing and to so control him in his aots in the oourse of his employment as to prevent injury to others"Autho-ritles")

The term " Master is equally well defined in the law. A"master in the sense of the rule is" one who has the superior? choice,oontrol,and direction; whose will is represented not merely in the ultimate result in hand,but in all its details; one who is the responsible head of a given industry;one who has the power to discharge;one who not only prescribed the duty,but directs,and may at any time direot the means and methods of doing the work"14 A and E.E. of law 746 -20 id ( 2 Ed. ) P.12

The definition is the same in Canada.

34 Ontario Lair Reporte P.704 Mersey Docks Trustees vs Gibbs;

il / 1 The plaintiff a paying patient in the defendants hospital was injured by reason of the carelessness of some one in attendance upon her after an operation.

Held ^that the contract was that the defendants should in good faith use due care and skill in selecting the medical staff and in employing and permitting nurses in trianing and other asssitants to work for and attend to patients in the institution and that was the extent of the defendants duty and responsibility; that the relationship of master and servant did not exist between the defendants and the physician,surgeons,nurses,and other attendants assisting at the operation,whether these were paid by the defendants or not;that the defendants were not guilty of any negligence in the selection of their staff and nurses and attendant)!;and therefore,the plaintiff's action to recover damages for the injuries failed".authorities,also Lavere vs Smith Hospital Ontario 216,Hillger vs Governors 2 K.B. (1909) 880 so-Also in France: in 15 Bandry- LaCantinerie ( Third Edition ) P,617 S 2912 we read:" But according to jurisprudence another condition is necessary.An individual has , / / , the oaraoter of employee ( prepose ) only when the person who has selected him for certain functions may give him,relatively to them,orders and instructions:"Considering,says the Supreme Court ( D.P.87-1-225)that the responsibility which Artiole 1384 O.H.imposes upon employers ( commettants ) does not suppose /asy^that,they have selected their employees,but also that the employers have the right to give to the employees orders and instructions concerning the manner of fulfilling the functions in which the latter are employed;that it is this right which is the foundation of the authority and subordination // without which there is no real employer-authorities.

^ Thus the owner of/a vsag*^l ( amateur ) who haw leased ypCL' to a navigation company ship with its crew,could not be held civilly responsible for damages caused by the fault of the captain of the ship,if during the time of the lease,the ©reír and the ship were placed under the authority of the leasing company and that the owner had neither orderjnor instructions to give the captain,She latter in fact at the moment he eomm&tted the damaging act was not the employee of the ownerrepother example borrowed from Jurisprudence:Physicianfend stargeghB in hospitals, being designated in the onatoBt ( ooncours ) and being submitted^ as far as the practioe of their art is concerned^neither to the authority nor to the control of the public asssitanee, ara not the employees of that administration.The latter consequently must be dismissed from Court when it has been sued as oirilly responsible for the oowsequenoes of an deration practioed in a hospital.Likewise,physicians which railroad companies employ to treat their servants^ wounded or sick ^re not the employees of said companies.They can in faet give them neither orders nor instructions fen that which concerns the practice of their art.It follows that they incur no responsibility by reason of the consequences of the treatments prescribed by them,treatments of which they have neither the direction nor the control ( surveillance ), flooording to Jurisprudence the condition of which we speak is essential.Thus a master is not responsible for the damages caused by the one who is habitually hie employee,when the latter,although still in the exeroise of htls functions and using the things belonging to his master,aots in the premises,under the orders of the third party".

In line with this, opinion is what was said by the Supreme Court in Toca vs Rojas 93 so.108: Birth gives rise to paternal control and.authority over a child^and paternal responsibility for torts is the consequences and offspring of the paternal authority." Jn other words without authority there is ho responsibllity.ünlesSthe relatione of master and servant,authority and subordination,exist there is no responsibility,and as this liability of the master for the negligence of his servant is matter of arbitrary law,it must be strictly construed,and should not be extended to cases which are not olearly within the purview of the law.Doubt is fatdS^fco liability » 16 Bandry-Lac.3rd ED.) S 2895 P.594.

Is we have seen from the testimony that the nurses are absolutely under the orders of the surgeons in the operation room^and in no manner controlled by the officers of the defendant jit has no responsibility for the aots of the nurses.

See also Schoendorf vs H.Y.Hospital 221 N.Y. 125-106 N.E.92-52 L.R.A.N.S.506— 160 H.W. ( Wisc) 175 -106 N.E.(WY)92.

The ease of Stanley vs Schumpert 117 La 266 quoted by the plaintiff is not in conflict with the above authorities. In that ease there was no evidence that the nurse was competent or graduatedjuor' that the defendant did not have the direction and control of the nurse at the time she inflioted the injury. This ease would, be in line with Nations vs Ludington 143 La.209 and 48 L.R.A.N.S. 551-71 W.Va. 708-77 S.E.324-48 L.R.A.N.S. 538-4 L.R.A.N.S. 66.In the case of Clero vs R.R.D. 107 La 370 entirely different issues wmre decided.

The eases relied on by the plaintiff 106 S.E. 355, 59 S.E,945,159,Pac 436,135 N.W.800 and 148 N.W.582 may be differentiated from the psesent onej and we prefer to follow the authorities adopted by our own court.

II In the' case of Nations vs Ludington 133 La 657 (664) the. Court saidThe Supreme Court of Missouri,in the ease of * TfcilipS' ye ’St.Louie RRD.Co.111 S.W.109 has held that the Company iX much a ease must go beyond employing a competent physician; tJS*t H must go further and competently treat the patient." SUt Sfei Weight of authority eeems to be that:

*lh»re eh employer derives no benefit from the retention of the Hospital fiund from its employees,it Is liable only for failure to exercise ordinary care to select,employ and retain a competent physician.Approved in Congdon vs La.Sawmill 143La.212 also 153 S.W.595,Ann Cas 1916 B.471-27 L.R.A.840.

In the oase of Congdon vs La.Samnill 143 La 209 the syllabus reads :

Where an employer engages a physioian or surgeon of ordinary skill and ability to attend to his employees,and pays the physioian from a fund collected from the employees,and from which fund the employer derives no profit,he is not responsible in damages to an employee for mistakes of^or malpractice by^such physician;particularly where it is not charged and proved that the employer was negligent in the seleotion of the physician.*
^ A petition for damages.in such case should contain allegations of neglect on the part of the employer in employing a competent physician,and that he derived some profit from the fund contributed by the employees to pay the physician, in the absence of suoh allegations,the petition disoloses no cause of action^quoting a long list of authorities.
* A master who employs a physician to treat'his employees and oolloots small monthly fees from the wages,all of which he turns over to the physician as his compensation,is not liable for the physicians malpraotiee,unless he is negligent in selecting or retaining him.48 L.R.A.N.S. 536 (538) W.Va.79 S.E.941-124 Pac 505 -143 La 210 -27 LR.A. 840 (842) -4 L.R.A. N.S.66-63 H.W.872.
"Those who furnish hospital accommodations and medical attendance not for the purpose of making profit thereby,but out of 0harity,or in the course of the administration of a charitable enterprise,are not liable for.the malpractice of the physician or the negligence of the attendants they employ,but are responsible only .for their oto want of ordinary care in selecting them" 4 L.R.A.N.S.68

"The test which determines whether suoh an enterprise is charitable or otherwise is its purpose.If its purpose is to hake profit,it is not a charitable enterprise..If it is to heal the sick and to relieve the suffering,without hope or purpose of getting gain from its operation^it is charitable." 4 L.R.A.N.S.68

The answer to the argument advanced by plaintiff that the hospital fees received by the Touro from pay-patients produce a profit and thereby destroy the character of the Topro as a charitable institution,at least,in so far as pay patients are concerned,is found in Pearson vs RRD.153 S.W.596-The Court saidt

tl The fact that there is a surplus on hand,which could be put out at interest,does not constitute such benefit as would change the character of the defendant^ delation to its employees in the operation of the hospital.In accumulating the fund-and also in oaring for the surplus,the RRD.Oo.is marely aoting as trustee for its employees,and it is» its duty to keep the fund unles it beoomes advisable to invest the surplus in saome way*Sea also 2 Cooley on Forts P.1011-1013-33 Atl. Conn) 596 -78 Atl. ( Me ) 898-16 All (Pa ) 558-236 S.W. (KY)577 173 Pac.1008-120 Mass 438-60 H.W.(Mich ) 42 - 90 N.W. ( Mich ) 278-137 N.W. (Neb) 1120-119 N.Y. 1034-99 S.W. ( Mo.) 463-96 N.E. ( Ohio ) 1989-76 Atl.(Pa.)1087-160 PaC & WYO ) 385-169 Pac. (Wash ) 828-109 Fed.294 Writ refused.183 U.S.695.

In opposition to these oases the plaintiff quotes the cases in 159 Pac (Cal)436-12 R.I. 411 -176 Pac(Cal ) 46-175 N.W. ( Minn)699 and especially the case of Sucker vs Mobile Infirmary 68 So.4 -But as said by our own Suprema Court;we find the great weight of autnorlty opposed to the Tiewe expressed In the Tucker ease.by the Alabama Court.

we perceive no diffirenoe in principle,in the responsibility of a hospital in the employment ©f a physician and of a nurse.

If it is.not liable for the malpractice committed by a licensed registered physician of good reputation employed by it,by a parity of reasoning it cannot be responsible for the errors or negligence of a graduated nurse,and the aut¡aorl'IÉi#B are to that effect.

It is therefore ordered that the. Judgment herein be affirmed.

November 13th 1928.


source: Caselaw Access Project

author: CHARLES P.CLAIBORNE,Judge.

license: Public Domain

text:
    JUNG AND SONS VS SEWERAGE AND WATER BOARD
    No. 8844
    OHARLES E.CLAIBORNE .Judge
    December 11th 1922.

   JUNG AND SONS CO.Appellant. VS. SEWERAGE AND WATER BOARD AND HAMPTON REYNOLDS.

NO.8844

CHARLES P.CLAIBORNE,Judge.

This is damage suit resulting from excavations alleged /N to have been made in front of plaintiff's property by the Sewerage and Water Board to improve a pumping station.

Plaintiff Alleged that for a number of years he had been engaged in the eoal business and for that purpose operated a eoal yard on St.Louis Street near the comer of Broad in the square bounded by Dorgenois and Toulouse ( Conti )y'that said yard served as a substation from which it delivered coal to its customers;that he had golhs to considerable expense in building said yard,by placing in it a wagon scale,laying of plank floor over the ground,fortifying the fences around it by driving pil0B sixteen feet deep to bear the weight of the coal, and building an incline over the sidewalk to facilitate driving into ^and out of the yard;that about the first day of September 1915 the Sewerage and Water Board and Hampton Reynolds began to excavate in front of the pump/ing station of the Sewerage and Water Board on St.Louis and Broad Streets and piled the spoils from said excavations in front of petitioner^ coal yard in such quantity as to prevent all ingress and egress to and from said yard,and to completely hide it from view,notwithstanding petitioners protest;that in order to minimize damages and to prevent a complete suspension of petitioner's business he removed from said yard,the pilings,the scale^and the coal; *■'' that petitioner had to pay the rent of said yard after he had bees deprived of the use of it;that about the 15 th of September all ingress to oiCfrom said yard had been effectually shut off -«fc: by the accumulation of the spoils,and the defendants destroyed his signs in front of his yard;that in order not to lose his identity as a coal dealer and not to discontinue his business petitioner leased' and equipped another coal yard at great expense)that the defendants could have piled their spoils elsewhere and could have carried them away while they were being excavated without injury to petitloner;that the spoils remained piled in front of his yard several monthsjthat in consequmee of those obstruction he has suffered a loss of Seven hundred, and fifty dollars which he claims from both defendants.

The Sewerage and Water Board filed a general denial and futher averred that all excavations were done by virtue of a contract dated Hay 15th 1916 with Hampton Reynolds who was .an independent contractor and for whose aots in executing his contract the Board is not llablejand it annexed the contract to the answer.

For answer 't&s Hampton Reynolds aUmgmkaUmHh, denied all the allegations in plaint if f-Spetition contained . r ' and futher answering averred:" That during September 1915 under oontraot with the Sewerage and Water Board,and under the directions of its engineers,he began an excavation in front of the pumping station of the Sewerage and Water Board at St.Louis and Broad Streets,and piled the spoils from the said excavation on the sides of said excavation and denies the allegations i // contained in the remainder of this paragraph.

*'Further^defei^dant avers that 1^ at no time did he keep on the side of aiti exoavation.more spoils than was absolutely < // necessary to refill the said exoavatlon.

^Further answering defendant avers that whatever work was done by him in the area of drainage pumping station Ho.2 was exeouted under a oontraot with the Hew Orleans Sewerage and Water Board dated May 15th 1915,and under the actual direction of the engineers of that Board j that your defendant is not in any way responsible for any negligence on the part of said/ engineers or of the said Hew Orleans Sewerage and Water Board/ that neither he nor any of his employees have been guilty of.

There was Judgment for -one defendants and the plaintiff has appealed.

In this Court the defendants have rested their defense upon two grounds:

First: That it was not the interferenoe with his bisinesa that Caused the plaintiff to move away from his yard on St. Louis,hut the faot that,prior to any interference^th» plaintiff had intended to move and had leased another yard before any Interiórense,and

Second : that there had been no sufficient interference with his business a*. Justified his moving away^and that the wort had been done with all“proper care and deligenoe. 1st. The conclusions which we have reaohed upon the second point render it unnecessary for us to consider the first point.

It Is a general 4*«b4i44y rule ini' law that no legal liability results from the exercise of a legal right,unless that right has been exercised in a negligent manner or through malice.11 A 711-35A 646-28 A 424-15 A 559-27-A 442-15 A 618 38 A 753 ( brief ) 46 A 521-146 La 818- Cooley onjéorts.P 81 39 Dalloy P 293.

Thus, a ooproprietor of a wall may demolish it and build a higher and whicker wall to support a- heavier building.In the case of Levy vs Fenner 48 A 1389 the Supreme Court, said on Page 1404 : "

*In demolishing the old and building the new party wall, under the conditions .fully proved in this oase,the plaintiff exercised an absolute right conferred upon him by the law. Under the maxim: Ifaminem laedit qui Jure suo utitur" they were not.bound to indemnify their neighbor for any inconvenience or. injury necessarily o'ocasioned by the exercise of the right » i^uch a-work must necessarily incommode the'neighbor.lt cannot be -prosecuted without an entry upon^ and partial occupation of his premises.lt must disturb his enjoyment and that of his tenants.lt may give ground for the annulment of his leases, of for'a diminution of the rente;It may prevent the renting of his property.lt may injure him in many ways.But so long and in so far aB these injuries are lnseperahle from the exercise of the rights,the neighbor is bound to submit to them and oan olaim no indemnity therefor" see also 30 A 30. So an owner may build a fence as high as he pleases between his property and that of Ms neighbor,if his .necessities require it,even through he injures his neighbor’s property 28 A 424.

In Reynolds vs Shreveport 13 A 426 the Court said that the plaintiff had no cause of action against the Oity"for digging down several feet in front of Ms lots,thus leaving his building Mgh above the level of the street,causing the sidewalk inv front of them to crumble away,thus rendering them difficult of aooess,destroying or impairing Ms rents, and making it neoessary for him to go to great expense in excavating Ms lots and lowering Ms buildings" The reason of the ¡decision was that the City had the right,in the exercise of its authority,to lower the grade of the streets and any damage suffered by any citizen was " damnum absque injurie*!-".

In Hamilton vs EBD. 84 A 9S!0 the Court said s

■" A railway company having authority to build or rebuild a bridge across a navigable stream is not responsible ine damagce for the temporary obstructions of the stream by scaffolding or by the construction of a temporary stationary bridge,and for unavoidable, delay in the completion of the bridge."

In Vidalat vs City 43 A 1130 the Court said s

"This olaim of $16,000 damages because access to the Pilie Market on the Foydras Street side was temporarily obstruo- • ted,on-aocount of the banquette adjaoent to the market house being torn up during some two or three months,while the street-WAsr.Uadergoing.repalrSjia wholly without any foundation.
^ UMle it is true that 'tMs. condition of things was suffered to continue much longer than seemed necessary flor a speedy tod-energetic, accomplishment of. the work,yet we cannot detect anything in . the '’evidence that would justify ús in the belief .that teither .the City .pr the..paling company were grossly negligent of their Obligations,or willfully did the plaintiff an injury and it is well established by authority,that such inconveniences as may fairly and legimately result from the making of needed public Improvements,must be submitted to by all citizens of incorporate towns and cities-without compensation; each individual citizen^ being supposed to be recompensed by the enhancement of the general welfare of the community 2 Dillon Mun.Corp.4th Ed.Sec 990 .xxxx This is clearly a case of " damnum Absque injuriáS-” in this respect ".

See also 28 Cyo.1065 ( D ) P.1074 " Unless negligent in the proseoution of the work,a municipality will not be liable for injury to property resulting from the construction of the- a seifter." p.1096 S 11-1315 P 1078 : nor for injury -to business or for the temporary loss of the use of the property during the construction of a public improvement^1 if the work is prosecuted with reasonable diligenoe. *

P.1086 " If the contractor keeps within the terns of his contract and performs the work with proper care and skill he is not liable for damages resulting to contiguous property See P.1316.1340 S 19\\fl But when the subject matter is within the scope of the corporate powers and duties of municipal o'” L. corporations the presumption is even, in favor of the propriety and good faith of their conduct,and the complainant must make out a cleaisfcase of willful oppression to obtain relief from the Counts.See Police Jury of West Baton Rouge vs Bogman 11 A 94 Dubose vs Levee Couirs 11 A 166-167 Avery vs Police Jury 12 A 554 "

The defendants were engaged in. constructing a public improvement,in digging out an excavation-for installing a Bewerage pump.The only question therefore is,did they use proper care and exercise reasonable diligenoe in the performance of their work?

Mr Jung,who was President and manager of the Plaintiff Company which waB in the hands of a reoeiver at the time of the trial of tMa oaaa is the only witness for plaintiff .At the time a that the plaintiff wasAgoing concern they had a dark and also wagons and drivers.Neither the Clerk nor any one of the drivers was called as a witness.We are not satisfied that Mr Jung makes it clear that ingress and egress to and from his ooal yard was at any time necessary for the purpose of his business,or was made impassible while the defendants were at work.Kor do the photographs oonvinoe us that the gate was made impassable.But ifi it was^lt was such temporary inoomrenience as he was compelled to endure.While on the other hand three witnesses testify for the defendants.¡they are s 1.Hyman Rabino-wita^an^ engineer,who was the resident engineer for the Sewerage and Water Board,while the exoavations complained of were going on.He was at the time of the trial working'for Lockett and Co.} 2. Henry F.Webb,an engineer who was,at the time of the excavations ,assistant engineer of the Board^Ln charge.Of the oonstrue-tionj S.Uarcel, Saraaud,an engineer subcontract*» ,who was superintendent for Hampton Reynolds,contractor,for doing the excavating work.They all three testify that there were oarts and men to remove the surplus earth that was excavated and was not needed to refill^and that suoh earth was continuously removed and that,at no time was the gate obstructed for any length of time^and that in the spaoe of one hour they could have removed the mud shown in'photograph P.S^and that Mr Jung never complained to them of obstructions}that the obstructions, if any were all of a temporary character.

In the language of Major Sarsaud:* What I did was what I was required to do,and that was to oxoavate the dirt and placo it on St.Louis Street as it was being excavated,and at the same time have the necessary óarts,eaoh and every day that the dredge'was working,in order to remove the dirt which would, not be later-on necessary to back fill around the completed station^"

The trial judge thought defendants were entitled-to'd-judgment and we think so also.


text:
    Mrs N.W.Granberry vs J.Emile Jarrau

    No. 8845
    Charles' ¡^Claiborne; Judge.

      October 30th 1922

   NANCY W.GRANBERRY VS J.EMILE JARREAU,Appellant.

No.8845

Charles F.Claiborne,Judge.

■This a a damage suit for personal injuries.The plaintiff alleges that while she was crossing common Street,she was ¡mocked down and injured by an automobile driven by the defendant;that she suffered the following injuries! 1st Two bones of the right foot broken;2nd the left ankle severely sprained! 3rd. her hips bruised; 4th her caen: wrencned;and 5th a nervous shook from which she has not yetó'receovered;that at the time of the accident she was employed as a file clerk at a salary of $80.uo P®r month; that she has not been able tb do.any kind of work since! the accident four months before the filing of her petition.She Claims tha following damages;

1st Loss of four months salary at $80 $320.00
2nd Loss of her earning capacity 5000.00
3rd rain and anguish,present and future 3000.00 •
4th Humiliation of having to limp-the balance of her life. 5000.00
Making a total of $ 13320.00

Defendant denied all of plaintiff's allegations and averred that the accident and injury to the plaintiff resulted, from Kto negligence.

There was judgment for the plaintiff for $5000 and defendant has appealed.

The raots of the accident are as follows:

on January- 17th 1922 between four and five o'clock in the evening,the plaintiff was walking on the sidewalls of Carondelet' Street nearest the Lake going towards Canal Street;' she was in company with two other ladiesjHiss Murphy was on the right,plaintiff was in the center,and Miss Moran was on the left; when they reached Common Street,they proceeded to cross it;just about that moment the defendant driving a Ford car,was proceeding down Oarondelet in the same direction in which the plaintiff was walking";when he. reached Common Street,he turned to his left towards the Lake in order to drive down Common Street;in doing so he ran down plaintiff and one of her companions and a third lady who was stepping on the down town sidewalk or Common omreet.

There is not much confliot in the testimony concerning the manner in whioh the accident happened.

Miss Moran testifies;

Q.What happened while you were orossing Common Street?
A.We first started over;it was time for the pedestrians to pass people were in front of us,and we got more than three quarters over when an automobile came down very quickly and it knocked down Mrs Oranberry and Miss Murphy;it didn't toucxi me,and the machine turned and'went on the.sidewalk.
Q. What warning or notice did you have that an automoDlle was coming there ?
A. We didn't have any notioesdidn’t have to think-
91. What I want to find out is,was your faoe back or.side,to the automobile ?
A. My back was to the automobile.

Miss Ethel Murphy says;

* That when they reached the comer of Common and Oarondelet ■■■hey proceeded to cross Common Street;while in the middle of the Street Mr Jarrau'f automobile came in from Oarondelet Street, coming from uptown going in the same direction as us and hit me on the wrist and threw me back,and then I saw it run over Mrs Cranberry's foot,the auto ran over her foot."they had no warning at all,that the automobile was going to turn into Common Street,no horn was blown;there were other pedestrians passing in front of them;after' the accident the auto ran up on the sidewalk into the empty lot and stopped;six or eight feet from there, the- left hand fender going to the lake hit her right arm;the auto stopped six or eight feet from the point it struck her.

Miss Freuil testifies that she was coming down Carondelet street ,and'- that she had almost orodsed Common Street when the accident occurred;that she heard no sound of an automobile horn positively none,that.if any had been sounded she would have heard it;there were other-pedestrians crossing the street;the auto hit the heel of her shoe when she was about stepping upon the sidewalk of Common'street,and nearly, threw her down;is positive she heard no horn;would have heard it if sounded,oannot be mistaken.

the plaintiff testifies;

She had no notice or warning that tne auto was going to hit her, positively none;the automobile came from behind her,on Carondelet going towards Canal Street.

On behalf of the defendant,the traffic officer says he did not see the aocident;his attention was attracted by a woman's soream;he turned around and saw the plaintiff lying in the streetdefendant's auto was on the siddwalk at an angle of forty-five degrees.

.The defendant testifies that he is a dealer in automobiles; that on the day of the accident he was driving a Ford Sedan; that he was driving down Carondelet Street;when he reached Common Street the traffic was going from the River to the Lake so'he came to a dead stop for possibly twenty seconds until he received the signal from the traffic officer to proceed;there were a great many pedestrians at that time going down Carondelet towards Oanal Street on the Lake side and on account of the crowd he drove very slowly and biew his horn;as he was proceeding in the direction of the lake there were two or three ladies in front of his car hesitating to cross;they steped backwards and forward until his machine got so close, to them,and seeing them in front of him.,and in order to avoid an .accident he swerved his car to the "right and made his way on the sidewalk.on Common Street;then he got out of his car and walked back six or seven feet and saw the plaintiff supported.by.two menjwhen the plaintiff was crossing Common Street she was looking down Canal Street5 there were three ladies talking togetherjhe does not know that his car came in contact with the plaintiff;he had no knowledge of it then or now; he immediately went to the plaintiff and took her. in His- auto up to. the•Hibernia. Bank Building;while traveling at six or eight miles an hour he could stop his auto within a foot.

There is no other testimony explaining “the accident.

To our satisraotion,it establishes that while three ladies were-quietly crossing the intersection of.Common Street unaware of any danger,the defendant,approaching them from the rear or at best from the.-side,and with full knowledge of' their presence, drove his car against them,struck the wrist-of one of them.knocking down another;, and ran over her and such was the rapidity, of his course hit the heel of a third,and'Jumped upon the sidewalk leaving the plaintiff lying upon the ground six feet behind his oar.But the defendant urges that, the plaintiff was negligent* and contributed.'to. the accident;that she. threw herself in the way of his oar,and that before crossing Common. .Street,she should have looked-up ^.Carondelet-Street to s.eé whether any car was coming .down and turning into Common...Street.We 'think not.The plaintiff, had satisfied the law when she looked up 'Common Street which'is a .one way street running towaites.'^Ko'Lhlisq, If' she bad looked up Carondelet Street and seen a oar coming down,nothinh would have indicated to her,nor.would she have had any reason.to believe that' the *ar would turn into Common Street.She would have been •Justified in assuming that the car- would have continued is course down Carondelet Street;and in that manner, she would have had no m reason to try and avoid it 8 Ct°App;341 ..

It was plainly defendants duty .in turning from. Oarond.el.et into Common Street to see that no pedestrians on Common Strefet at the customary oroseing.

Pedestrians have equal rights of way with vehicles on Streets-18 Am.and Eng.Enc Law 2d Ed 585 1 st Ed.964-Elliott on Roads 622 - 37 Cyc.273.275-28 Cyc 912 - 113 N.Y. App.Div 808-99 N.Y Supp 1091 -42 Me.332-104 N.E.457-50 A 1164.

A greater degree of care must he 'exercised by one using a dangerous instrument 125 La 944 .

One using upon a public street a death dealing machine like an automobile,must be duly observant 126 La 790-141 La 686 (605 ) Ct.App.No.6769.

But assuming that the plaintiff and her two companions were negligent and contributed to the accident,that alone does not constitute a defence.There are two elements essential to such a defence} 1st that plaintiff was negligent and 2nd that the accident was unavoidable on the part of the defendant by the exercise of reasonable care.Defendant saw those three ladies,as he says,hesitating to cross,backing and filling ^and -he apprehended an accident.He could have prevented the accident by stopping or at least checking.The last clear chance was with him.

Hegligence of a plaintiff will not exonerate a defendant who by the exercise of reasonable care could ha*e avoidded the accident.The leading oase upon the questipn in our Jurisprudence is perhaps Me. Clanahan vs R.R.D.111 La 781.

" While plaintiff was negligent in attempting to cross the defendants' track at a sharp curve without stopping to look and listen at the proper time and place,the Company will be held liable when the evidence shows that the engineer, saw the danger in time to avoid the accident by sounding the whistle or applying the brakes"' Ross Vs Sibly 116 La 789 .

To/tae same effect are the common law authorities Held,that the defendant had no ground uf exception to the following instructions:

sS>- That contributory negligence of the plaintiff would not prevent him from recovering if the defendant might,by the exercise of reasonable care and prddence,have avoided the consequences of the plaintiff's negligence." 139 U.S. 551 (558) and authorities 13 How.101-109-144 U.S.429-43 N.Y.75.82-5 Gray 64.72-29 Md.420-156 Pac.51-L.R.A.1916 E.58-898-7 A and E.E.Law 2 ED.P.387-2 Supp id 63 Shearman and R. on Neg.p.99- 1 Thompson on NeG. S 239-242 29 Cyc p.641 F 652 (d) 655 F.

The English authorities are the same."Though a plaintiff may have been guilty of negligence and although that negligence may in fact have contributed to the accident which is the subject of the action,yet if the defendant could in the result^by the exercise of ordinary care and ddligence^have avoided the mischief which happened,the plaintiff's negligence will not excuse him. Radley vs RED.Appeal cases 754-18 English Reports ( Moaks notes ) 37 (41)

II The further defence is made that the plaintiff cannot recover because immediately after the accident,while driving in defendants' car to Dr Yfebb's office,the plaintiff declared in the presence of the defendant and of the traffic officer and of the Misses Murphy and Evans " that the accident was not his fault,"

The defendant swears that, she said so;the plaintiff denies it.The traffic officer answers: Tes she said then,that she didn't think that mr Jarreau ran into her purposely,and that •it was not his fault something to that effect."

Miss Evans,a witness for defendant,whom she calls’1 Emile^ testifies that the plaintiff said:Why it was not your fault at an wr jarrau I lost mv head and Zigzagged across the street.

Miss Murphy denies that plaintiff said so.

Defendant and his wife also testify that a few days after the accident they called on the plaintiff who repeated that "it was not Mr Jarrau's fault;that she was getting along allright not to worry,the accident was unavoidable."

The plaintiff denies this statement and she is corroborated by Mrs Koehle who was present during the visit páid by the defendant and his wife to the plaintiff and who heard all the conversation between them.

She says that she did not hear plaintiff tell Jcr ana Mrs Jarrau that the accident was not due to Mr Jarrau's fault;that she told him that she knew he didn't do it intentionally."

In the presence of the conflict of testimony we cannot hold that defendant has established this branch of his defence.

Such a defenoe must be established with absolute certainty. 48 A 832-1 Woods 306 savin vs Juno-50 A 468

III There remains the question of' amount of damages.The law does not pretend to allow to a plaintiff such an amount as will compensate him for the damage done to him by the defendant.As was / well said by plaintiffs counsel in argument,no amount will compensate one for the loss of a foot or of a head hand,or of an eye, for it is an irreparable injui>y;or if any attempt is made at compensation,the amount might ruin the defendant,which is not the object of the law.

In the case of Vincent vs Morgan Railroad 140 La 1027 decided in 1917 the Court said a Neither the person originally injured nor those who sucoees to his rights with respect to the injury,and who acquire rights of thir own with respect to the injury inflicted upon them by his death,are entitled tp recover anything more in the way of damages than adequate indemnity for the injury and loss inflicted upon him and them in mind,body or estate,there being no provision in our system of laws which authorizes the cumulation in such oases of a civil action for the redress or a private wrong with a quasi,criminal prosecution e-for the assu*eBenefit of the public,but the solS* purpose and .principal objeot of which is to Increase the adequate indemnity recovered toy une plaintiff as actual and compensatory damages toy tile addition of a pecuniary penalty in the form or exemplary primitivej.or vindictive damages Also Dunson vs Baker 144 La. 167 -428 -586-146 La 678-10 A 33.

Prior to the atoove decisions Courts were in the hatoit of awarding exemplary or punitive damages.

For that reason,in examining those decisions,we must eliminate those damages in fixing the amount to toe allowed toy us. •While not ignoring plaintiff's testimony,we must give greater weight to the opinion of Dr O'Ferrall as to the extent and eewse-consequences of plaintiffs' injury.He was employed toy the plaintiff to treat her in juries,he is. an or thop odi súr geón, he treats diseases of the hones and jointsjhe is a graduate of Tulane University;was an interne in the Bellevne Hospital of New Yorky Massachusetts^ueneral Hospital in Boston,Senior Orthopedio Surgeon at Touro Infirmary,Chief, of the Orthopedio. service at the Charity Hospital and the New Orleans Dispendary.for women y, was a year in charge of the orthopedio service in' Europe¿is a member of the Amerioan college of ’’Burgeons of. the- Louisiana. State Medical Society and of the Orleans Parish Medical Societyjhe treated plaintiff for six .weeks or two months;saw her between two weeks and a month ago;he treated her exclusively for her right footjwas not asked to treat her toack^made no complaint of her hip,nor of nervous shockjhe saw her seven pr eight weeks after the injuiyjat that, time her right foot was 'swollen and-there was some pain over the top of the foot on pressure;he'took an ex-ray of her foot whloh showed a small.fraotufe of a bone and a slight dislocation- of another bone; he strapped-hep foot.-,Up, and put a pad for support and upon her return to, his. office ane seemed to think it was ¡better,and In' the1 course of- three or four visits to his office the swelling had. largely disappeared- and she was able to put pa her normal shocya-t first she', WAS wearing-a shoe that was out,her condition has progressed towards a normal foot; the-JLast time he saw her,’she .was having comparatively little pa-in,tout waa.„$||fti limping;she-parné in.aftér an absence of several weeks and. he tolfi^her foot was progressing satisfactorily and he thought it would eventually be entirely welljthe pad was to relive plaintiff's foot;she has a slight "pronation * Known by the laity as a Hat foot which necessarily gave pain before the acoident and greater pain after the accidenty be thinks she should in the ordinary course of events make a rapid recovery;and her foot would be the same as before the accident; he thinks she will be perfectly well in six months,it is not a permanent injury. Dr Levy says " That this lady's particular flat foot was not caused by the accident bgtt was due to other oauses over.which we have no control ".The plaintiff testifies that, in July last she went to the coast;she went in bathing and could not.walk in the sand;her feet became so painful and sore that she had to orawl on her knees and. hands;she has worked all her life;she can fill other employments than file clerk;she is a book keeperj'she taught school for twelve years;she was three ^ years in high school.

The accident oocurred in January; Dr O’Perrall testified in July he said plaintiff's foot would be well in .six months.

The plaintiff has i»ot established to our satisfaction that she injured her left foot,nor her hip,nor her back,nor that she suffered a nervous shock.Bor do we think that the accident has deprived her of her ability to work in other lines than as a file clerkj or that it has destroyed her earning capacity in other spheres^or that the injuries received by her are permanent.

With a view of being in line with the Supreme Court on the question of the amount of damages allowed for injuries of the same extent as those suffered by the plaintiff we have examined the following authorities and from them we gather that a sum not exceeding two thousand dollars isusually granted a plaintiff even 'whan in similar oases.the injury is permanent.5 A 703-10 A 88 A 15 A 703-17 A 166-19 La.414 20 A 25-35 A 13-751 - 36 A 966-37 A 27 38 A 111-39 A 649-40 A 467- 43 A 983-47 A 1107 -1440 -49 A 1466 52 A 1133-1155-1599-104 La 345 -634-105 La 451-106 La 170-409 108 La 423 -109 La 396-525-110 La 399-534-741-113 La 1040-114 La 802-1035-115 La 249-116 La 789-926-1033-117 La 1094-118 La 530 119 La 336-344-537-121 La 909-122 La 441-606-128 La 933-111 La. 467-126 La 634-145 La 323-435-734-139 La 788 -139 La 616 -140 La 529-1019-143 La 269-148 La 88 -134 La 863.

More especially the following 43 A 295-50 A 280-441-1163 51 A 178-52 A 1109-2153-41 A 624-104 La 411-106 La 271-111 La 467 114 La 1035-117 La 911 -119 La 537-121 La 231-242-126 La 568 128 La 933-130 La 39-139 La 616-92 So.Rep,58-142 La 403.

In Jones vs Tremont 139 La 631 the Court said" While the» is no standard for the measurement of damages in a case like this ■{.here should he some regard for uniformity" also 126 La.1088 (1099 )

In the three cases quoted by the plaintiff where heavy damages were awarded^the first was for the amputation of a child’s right arm^the seoond for permanent injury to both hands rendering them useless,fracture of the Jaw and loss of all tegthftarupture of the arum of one ear with loss of hearing and the injuries; the third^'150 La 6l'^the plaintiff suffered a curvature of the spine,is crippled for life and permantly incapacitated to earn a livelihood;suffered much pain and her power of locomotion is greatly impaired".

It was only in oases of ezcispAve- inJmry and pain with reduced capacity to earn a living,or where the plaintiff had lost a leg^ or an arm ov his eighty or hearing that a larger sum than two thousand dollars was allowed,as was decided in the cases quoted by the plaintiff.

Dpon the argument of the case plaintiff offered to file her affidavit statting that her condition had not improved and was becoming worse and praying that the case be remanded to take testimony on the question.

Ihe code of practice provides Art*804 * The Supreme Court shall receive no'new evidence even through it may hate been discovered since the Judgment below except in the oases hereafter expressed."

in the case of Sumer vs RRD. 37 A 648 (650) the. Court said:"Courts must be very oautlous in dealing with, elements of prospective damages,which should never be allowed.but in blear eases,supported by tangible proof,and in :a measure independent of expert testimony."

The above article 894.must be interpreted in conjunction with-article C.P.906 which authorizes the appellate Court to ^remand e; c^ise^n jOlogsee when the ends of Justice require it. But such relief is'gwMjteu only in extreme oases,and where otherwise it is evident that either party would fail to receive What he was entitled to,if all the facts had been properly presented and the law fairly applied.But in this case we feel 'able to grant the plaintiff all the relief she is entitled to according to- the ^record before us.In 119 La 340 the Supreme Court said*

"We have noted that defendant moved for an order remanding! the case on the ground of newly discovered évidenbe.It has had its day in oourt.lt is its misforture if it did not discover the evidence in time.There must be an and to litigation.A remanding order at this time in this os.se would find support in none of the boohs. *"**

It is therefore ordered that ;.the Judgment herein be reauoed-from Five Thousand dollars to Two thousand dollars,ana that as thus amended,it be affirmed,.the plaintiff to .pay the costs of appeal

October 30th 19SS


author: Charles F,Claiborne,Judge.

text:
    C.F.Peterson,Appellant vs Mrs E.Mc Cluskey
    No.8853
    Charles F.Claiborne,Judge *

   C.F.Peterson,Appellant. vs Mrs E.Mc Cluskey and husband.

No.8853

Charles F,Claiborne,Judge.

This is a suit for $292.10 claimed as balance due on a building contract.

The plaintiff alleged that on December 30th 1919 .he agreed with defendants to build for them according to plans and specifications,two houses bearing Nos.4421 and 4621'South Johnson Street}that said buildings were completed and accepted in June 1920} that on July 3rd 1920 and^dlfferent dates anterior

thereto,petitioner received on account 87,707.90
leaving a balance due of 292.10
$8,000.00

which‘balance was retained as a security against a threated claim of one Jones,a subcontractor'that although Jones has made no claim and the time for recording same .has elapsed, defendant refuses to pay petitioner.

For answer,the defendants alleged that shortly after bney had accepted the buildings they discovered the following defects in them:

1st The weather boards split and improperly Joined}
2nd The roof leaked}
3rd. The house sank on acoount.of defective, and. improper foundations and,
4th. Repainting and glazing the building}
That Mrs Mo Oloskey notified plaintiff of theao

defects and he promised to correct them,and authorized her té do so}that accordingly she had the repairs made-at the following expense:

1st. Repairs.to weather boards. $124.40
2nd. Repairs to roof 173.26
3rd. Raising building 100.66
4th Repainting building and glazing 382.76
making a total of $720.95

Defendants paray that plaintiff’s suit he dismissed and for judgment in reconvention for $720.95 .

There Tías judgment in favor of defendants dismissing plaintiff's suit,and dismissing the reoonventional demand for want of jurisdiction.

The plaintiff has appealed.

The defendants have not appealed,nor have they asked in this Court for an amendment of the judgment.

The sole question for determination therefore is, is plaintiff entitled to judgment?

The rule of law is that a contractor is obligated to construct a building in a workmanlike manner both as to material and workmanship,and fitted for the purpose foe which it is built .14 CT.App.7

If he fails to do so.it is 'an active violation of contract. ' hisAand he need not be put- in default .6 N.S.200 - 3 La 331-9 La 174-6 A 293-14 A -81-34 A 209-37 A 468-47 A 1235-39 A 587-110 La 750-124 -126 La 190-17 A 203 .

The owner may dot the work which the contractor has failed to do,or repair that which he has done Imperfectly,at the expense of the contractor and deduct the cost from the contract price.C.C.2769-9 La 174-50 A 351-6 A 202-2-H.D.p.1025 No.4-6 A 202-12 Ct.App.126 .

An owner who receives and pays for buildings and uses them not completed or defectively constructed is not there* by deprived of his right to complete them or repair them at the expense of the contractor or claim damages.4 N.S.105-17 A 203 25 A 518-30 A 897-34 A 214-36 A 332-110 La 124-766-111 La 284 .

A purchaser may not sue for the redhibition of a sale after he has sold the thing purchased hy himjhut he nay sue for a reduction of the orlos.1 N.S.312-10 A 188-189-48 A 445 446-114 La 503 .

In.sales of real estate defects of construction e*>fc or want of repairs are .considered as apparent defects for which the purchaser has no recourse against the vendor-6 A 386 .

Weather Boards!

The testimony of a ’disinterested witness,a contractor and builder,is that the weather hoards were split bf nailing them, that the ram went through them} that he was employed hy the defendant to make the necessary repairs}that he changed 660 hoards,touched up all the windows and doors and the sleeping porch and arch}the settling of a house does not cause weather hoards to split unless the settling is six or eight inches}his hill was |134.40 which the defendant paid him.

ii Repairs to roof.

The repairs to the roof were made only after the defendant had Bold the house.The defendant's purchaspr discovered the leaks only after the sale}they therefore had no influence upon the price of the sale .At that time the defendant was under no legal obligation to repair-the roof} 6 A 386' .

Therefore she cannot recover against her vendor.

Ill Raising the building .

The specifications were prepared hy the plaintiff and he is responsible for.their defects.We do not agree with him that he prepared the specifications from the plan furnished to him hy the defendant.The defendant's explanation,which we believe correct is thus stated hy hers " X had the plan which X saw Mr Duhourg have a few minutes ago.I brought that plan up .to Mr- Peterson and asked him to build a house similar -to that -planj and there w«r®- about .a dozen' changes made on that plan and X'asked him. If X should Save án Architect -draw a bew plan with tHe.se changes on .It and .He said no,He would fix it -allrigH.t,He would -do .We believe. tHat this plan was given by the defendant.to tHe plaintiff merely to serve as a .model for tHe''general distribution of tHe House,but tHat tHe method. and material's for- building tHe same were fixed by tHe -plaintiff in-Hi's' specifications .As-a contractor and builder He was bound to warrant that foundatidn^Laid by Him would be Sufficient to support tHe,building,The defendant paid One Hundred dollars for raising the building and reinforcing the foundations.She is entitled to deduct that amount from what She owes -to plaintiff.

IV Repainting building.

The painting done by the plaintiff is thus described by a witness*

f The exterior, of-the House looked as if a lot of // school .Hoys..Had tried to paint it.
^TH© -nutty was falling out of. the windows and the panes were falling out also.Somehad no brads in it at all.The whole house had to ho reglazed.The weather hoards,some looked as. if they had one coat and some others looked as If they tried to paint it with paint- and others looked as if they tried to' put oreosote on it " ^

Besides^ the yip ne.w weather■ bos-rfl <= bad to be pai-rift-4ed anew.

The painting .cost $218 which defendant may aieo deduct from the contract price.

We think' it is .shown that plaintiff was notified of the -defects in the buildings and was called iipof to rapai* them,and that .he failed.to.do it.

These three- items-make a total larger, than-,the balance said by-plaintiff to-be dú©.-to -him. by the-'defendant.The-plaintiff la therefor» not entitled to. recover anything from the defendant She 'Judge of the City Court so ordered and his judgment is affirmed.

Judgment affirmed.

liapeh- April 2nd 1923 .


author: By WILLIAJf A. BSLL, Judge

text:
    MRS. THEOPHILE GAUTHREAUX, FOR HERSELF AND HER MINOR SON VS T. D. O'KEEFE, RECEIVER NEW ORLEANS RAILWAY & LIGHT COMPANY.
    NO. 8856
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. SELL, JUDGE.

    MARCH 19, 1923.
   By WILLIAJf A. BSLL, Judge

The plaintiff herein, am har own Behalf as widow and ^or ner minor son, has obtained Judgment against defendant in the tfull amount aooorded her under Section 8, Paragraph 2 (h) of tho Employers' Liability Act of Louisiana. Defendant as appellant oen-oedes before this court the facts of this oase and also agrees as to the correct basis of tho computed liability, if there be any liability. It may be said that the sole contention on appeal is, therefore, upon tho qucstien of law as to whether the accidental Injury causing the death of the plaintiff's husband according to the admitted facts was one arising out of and in the course, of his employment.

The deceased was a conductor e$ the Tiller# line in the employ of the defendant company. His duties required him to leave his heme early every morning in time enough to get his oar out of the Canal Street barn at 4:45 o'clock a.a. His run onded daily at 5:12 p.m. at or near tho corner of Canal and Dauphino Sts., and each evening ho was allowed, under his contract with tho company, an additional time of ton minutes to got to the Canal Street bam and turn in his cash and transfers. .In other words, his time of actual work for whioh ho was aotually paid onded each day at 5:22 p.m. On Juno 14, 1921, the deceased reached tho bam at about 6:50 p.m., made his returns at enoe and proceeding across the switch tracks immediately in front of the barn, ho wont towards the lower side of Canal Street at about 5:50 p.m., far the purpose of catching a Canal Street car going towards his homo. In tho act of boarding this homoward-bound ear of his employer's company he fell beneath ito wheels and was almost instantly killed, about 5:40 p.m. Thus it may be seen from the facts of this ease, that the border lino between tho cones' of employment or non-employment, ef eervioe er non-sOrvioo, is measured by no more than five minntcs of time and ia of such restricted preportiens an may be hardly diaeemible. She sole' defense in this case, however, is predicated upon the contention of law that the five minutes which ticked away fatally for the deceased and propitiously for his employer has precluded the widow and the son from all right of compensation under the Act invoked hy them. The contract of employment between the company and its conductors provides as follows:

"Whenever conductors are required to take their oars at a distance from the harn, or are required to leave their oars at a point other than the barn, they shall be entitled to charge at the regular rate per hour for suoh time as is consumed by the conductor in going to or coming from the barn; it being the sense of this article that where conductors are required to report at the barn at the beginning or conclusion of their runs they shall be paid for all time aotually engaged in the service of the company regardless of where they are required to take or leave their cars.
"All motormen or conductors in regular uniform shall be allowed free transportation on all lines."

There is, of course, no issue in this case involving the question of negligence. We are impelled to the viewpoint ef our learned brother, then a judge of the district court, who, in his able written opinion or reasons for judgment, has said,in part, as follows:

"The contract with the defendant company provides for free transportation for motormen and conductors while in uniform. This .provision is not a mere permission or license, as contended for by counsel for defendant. It is a part of the consideration of the contract. If it was not so provided, and the motormen and conductors employed by the oompany were required to pay when going to and returning from work the usual fare expected of passengers, their compensation under the contract would be increased at least uro tanto to meet .this requirement. This is the inesoapable oonolusion from the mere reading of the contract itself."

We gather from the evidence of this case the particular fact that the work or employment of the deceased required his presence not only at the barn when reporting for work but also at the barn on retiring or withdrawing from work. Had the accident befallen him as he descended from the morning oar depositing him at the barn and before he had mounted his own oar which was to leave the barn at the early morning hour above specified, we cannot see that the situation would have been in any way different from that which presents itself under the facts of this case and upon which defendant relies in establishing its contention that the accident happened at a time when the injured employe was not performing services arising out of and incidental to his employment.

The pertinent clauses of the Act which should he considered in connection with the facts of this case are as follows:

"Every person performing services arising out of and incidental to his employment in the course of his employer's trade, business or occupation in the following hazardous trades, business and occupations: * * *.
"Section 2. * * * Receives personal injury by accident arising out of and in the course of such employment, his .employer shall pay compensation in the amounts and to the person or persons hereinafter specified."

The last clause of the defendant's answer to this suit is framed in the exact language of the first above paragraphs tafeen from the Act and reads as follows:

"That at the time he was killed said Gau-threaux was not performing'any services arising out of and incidental to his employment in the course of his employer's trade, business or occupation."

The clean-cut and sole issue therefore made clear by the pleadings in this case iS/Whether the deceased was at the time of his death performing any services "arising out of and incidental to his employment."

There cannot be found in our jurisprudence more thorough or exhaustive study of the interpretations already given to the above clauses in similar Employer's liability Acts of America and England than that set forth by our learned and recently retired Chie: Justice in the case of Myers v. Louisiana Railway and Navigation Co. 140 La., 937 (74 South., 256). In this cited case,it was the contention of the defendant that while the injury in that case arose "in the course of" the employment, it did not arise "out of" it. In the present case the contention is that the injury at. the time.it ocourri befell the deceased while he was not performing any service either arising out of or incidental to Ms emuleyment. It may be aaia in this case as was said hy Chiar Justice Provosty in the ease of Myers v. L. R. & N. Company as follows:

"However, after vain attempts at formulating some verbal test for determining when the injury has or not arisen’ out of the employment, the courts have oome to the eon-olusion that each case must he determined from its own facts; that the question cannot he solved hy phrases."

In the Myers case it was contended that the accident did not arise out of the employment of the plaintiff for the reason that the injury sustained was of a nature not at all connected with those duties assigned to and being in their nature otherwise performed hy the plaintiff. The oourt found, however, that placing such a narrow construction upon the statute was contrary to the purpose of the lawmaker, and said:

"It ought to he sufficient that the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person #ot engaged in the employment. This is certainly the view that has been taken in street accidents where relief ha3 been allowed in certain cases and not in others."

The deceased in the case before us.under the cireumstanoes surrounding ms departure from the Darn and his attempt to mount the conveyance upon which he had a right to ride, was doing, in eur opinion those things incident to the nature of his employment suob involved a risk that was greater, in its daily necessity for repitition than for persons not engaged in the employment in question. It la to he noted, of course, that in this case the question of negligenoe cannot arise and, therefore, the fact of the deceased having te he daily in and about a place more or less dangerous to anyone, cannot relieve the defendant of a liability which naturally results from a injury befalling one who was immediately doing that act which was reasonably contemplated between the parties to the employment, no matter how negligent the deceased may have been in performing that act involving his retirement from his daily work. The defendant was actually employed when the accident occurred and the full intention •f Rath tho deceased and his employer that the former should daily-report to and withdraw from the almost exact spot in whioh ho was injured, indicates a contemplation on the part of both parties that the employment, if not the actual engagement in work, should have been continuous.

We have examined with oars the authorities specially cited in defendant's brief and stressed by defendant’s oounsel, the oase of McNicol v. Employers' liability Corporation (Mass.), 108 H.E., 697. We findthat the facts in this case show that the plaintiff, MoITioel, was killed as the result of blows received from an intoxicated fellow-employe, while'both were supposed to be engaged in the work of the employer, the bad and dangerous habits of the assaulting follow-worker having been known" to the foreman and other agents of the employer. This case was decided in favor of plaintiff. We find the doctrine enunciated in this case to be quite in accord with and most applicable to the important faots of the case now under our consideration. It was said by the court in this case:

"An injury may be said 'to arise out of' the employment when there is apparent to the rational mind, upon consideration of all the ciroumstances, a casual connection between the conditions under whioh tho work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural inoident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment; But it excludes an injury whioh cannot fairly be traced to the employment as a contributing proximate cause, and whioh comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master ahd servant. It need not have been foreseen, or expected; but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence

The doctrine as above expressed is given approval by the Supreme Court of this State, as shown by the fact that Jn the case of Myers v. L. R. & N. Company, the quotation just made by us is fully citei by the learned Chief Justice in the opinion.

We are af the opinion that tha danger ta which tha dar ceased was exposed was moidental to ene oneractor or tha work in which ha was engaged and that it had its origin in a risk connected with his employment and flowed from his employment as a rational consequence, irrespective of tha fact that ha may or may not have bean negligent in his attempt to aeard tup ear which he intended snoald taka him te his heme., after his day’s work. . Anether authority cited hy counsel for defendant is round iu Williamson v. Ind Aco. Cen., 16 E.C.C.A., 884, (171 Pacific, 797), In this oase « woman undertook to do work whlon she was neither directed nor expected te de and which was peculiarly hazardous and involved the cleaning ef a light snaft ovnneoted with a building, w while employed the woman fell tnreugn a window to her death. The Court in this ease said;

”It has been said .u&t if the m> ef workman whioh resulted in the aooident is one whioh tl' employee would net be expeoted to undertake, or one whioh the employer would net reasonably command, or • expeot, the employee te do, the aooident dees net ’arise tut of*'the employment."

•* cannot see. the application of this oast te the instanoe one, for surely tb- deceased was i»»t expected *e undertake nor did he undertake te do anything outside ef nor contrary te the soepe ef his employment , .

We find tne authorities cited by the judge a aua 4»i*pSr-tiouiarly stressed hy plaintiff's counsel te be peculiarly applicable to une tacos el Obis case, and while chayare authorities fren other “--+.es fcb»~ -”r own. they give forceful endorsement te the ruling of this ssurt in the oase ox carls tins Davis, widow of Prank Whitfield, v. the City of New Orleans. No. 8110, Court of Appeal, as wall as to --»« most recent declamen of our Supreme Court in the esse of Rashel Prevess v. Gheens Realty Ce., 151 La., 508 192 South. 38. in the case of Prevest v. the Realty Co., the rssuo was not made on the point that the aooident had arisen out ex fcha m the course ef tne employer's business. We find from a reading of tilia oasa and particularly from the examination of the pleadinga and the hriefa therein filed that thia contention ia erroneous. In discussing the case the court said:

"There are only two questions in the case, one is a question of fact — whether the death resulted from an accident. The other is « fuestion of law — whether the man was, according to the facts which are admitted, in the employ of the defendant company.at the time of the alleged accident, within the meaninsr of the statute."

In the brief filed by defendants in the case from which we have Just quoted, we findthe fallowing: "The defease set up by the pleadings is that the injured man was not injured during the course of his employment," and this statement is borne out by a review of the answer in the suit, particularly paragraph 4, where the defendant alleges as follows: "Respondent admits that (deceased) had completed his work and left the place of his employment and was on his way to his lodging house, but respondent denies that after leaving his place of employment anything that happened to’ him was in the course it such employment. " HO issues could be plainer nor more similar to each other'' thairpin the cited case and the' case new befere us. In the cited ease, the deceased, working on a sugar plantation, left the sugar house between the hours of 11 and 12 o'clock at night and while walking from the sugar house to Ms lodging mw he was injured by a fall resulting in his death. The next meming all laborers on the planta-tien were t# have been paid eff, it being the end of their season's - work, and heneo it might bo stated that the cited case is not as strong as the one befere us, for the reason that the plantatien hand was injured after his work had permanently ceased, a fact i&ieh did not exist in the instant case. He was going to a bunk where he had the privilege •f sleeping, Just as the deceased in this case was geing te a car which he had the privilege of riding upon. In the cited case, tjif court concluding that the deceased was yet in the employ of the defendant company at tho time of tho aooidont, proceeds to say:

"She manager for the defendant oompany testified, that tho month for which they wars paid had ended at six o' clock that morning, that is, about six hours after the accident had occurred. Prevost was, therefore, not only rightfully on the prémises, hut actually in the employ ef the defendant company when the accident occurred. When an employe is going from his work to his lodging house, on tho premises where he works, he is, within the meaning ef paragraph 2 ef Section 1 of the Employers' liability Act, 'performing services arising out of and incidental to his employment in th course of his employer’s trade, business or occupation.' See authorities cited in Myers v. L. R. & N. Co., 140 La., 938, 74 South., 256."

We are ef the opinion that both the law and the facts in the oase before us Justify a Judgment for the plaintiff and that the conclusions of the, trial court are in every manner correct.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREES that the Judgnent herein appealed from be and the same hereby is affirmed at defendant's costs.in both courts.

JTJDGMEHT AFFIRMED

MARCH 19, 1922


author: By WILLIAM A. BEID,Judge.

text:
    WILLIAM H. ELDER VS WILLIAM S. FLYNT AND WIFE
    NO. 8862
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL. JUDGE
    MARCH 5, 1923.

   By WILLIAM A. BEID,Judge.

Plaintiff sues the defendants, who, as man and wife, re shown to have sold, in 1920, to plaintiff, through the usual homestead sale and re-sale, certain real estate described in the petition and which, at the time of the sale, appears to have been nacumbered with a paving lien. The lien in question was duly recorded in the Mortgage Office in December, 1916, at which time the defendants wore the then owners of said real estate, they having aoquired same from one Dennery in September, 1916. Plaintiff prays for judgment in the sum of #190.27 against defendants, jointly and in solido, upon the allegations that he has already been compelled to pay portions of the aforesaid lien and will ultimately have to satisfy the entire unpaid balance of said lien(i the existence of which he was wholly ignorant at the time of his purchase from defendants. It is further alleged that plaintiff knew nothing of the unpaid paving lien until January, 1921, when he attempted to pay the City Taxes for 1920 on the said property. Prom tax receipts offered in evidence it appears that plaintiff has paid the annual installments due on said paving lien for the years 1920 and 1921, amounting to $63.82, and leaving a balanoe of $126.46 still unpaid. It also appears from the record that the usual clauses of warranty and subrogation form part of the deeds by which defendants conveyed and under which plaintiff's rights, if any, have arisen. The mortgage certificate in the name of the defendants herein and annexed to their deed of conveyance, declare, and are warranted by the act^to show no encumbrances on said property in their names.

Defendants have answered this suit with the special averment that they sold the property to the plaintiff with the understanding he would continue to make the annual payments on account of said paving lien along with the payment of the taxes, as they, defendants, have tm prior to miking tho sale ot said property-'*» plaintiff, or, in othor words, that tho plaintiff assune* thé'.pnsaaf hill ani relieved defendants of.any liahility beoius# of it. Já support of this aofonoo, toatlnony of hath dofondantO herein was offorod and was admitted hy the trial oeurt orar plaint iff !o Strew*-eus ohjeotion.

Vo aro of tho opinion that oneh ovidoneo. nhoúld k**t hoen ozoludod, no ioeuoo of fraud nor.error haring arisen in this oaao. (Artiols £276 B.O.O.). it is not noeoosary, to oito tho in--nuaorahla authorities in support of this aoadonio rulo of .evi donee; ♦- She warranty oontainod in defendants’ deed of convoyaros and the alausas of suhrogation available to plaintiff through hath dsod» hy «hioh he toqulrad, fully support a right and oauso of aotion i» favor op plaintiff whorehy ho oan invoke the law in protection fren any tjfiifMJve'of warranty arising fremtho transaction* hors i# volved.. Shore la a raoord admission,in defendants’ answer that they know of tho enlátenos of this lisn long prior to tho sale; and hohof( under tho law, they were warrantors against suoh ohargos unless »a*e wore declared, at the time of tho sale, in suoh positive and uaamfcifW* ous terms as to prooludo all doubt ooncoming tho purohasor's eis$<* tlon to assume the samo. Vo find no merit in tho argument Of counsel, for defendants that tho testimony erroneously admitted was not It contradiction of tho declarations oontainod in the aot or in the mortgage oortifleats, hut was simply supplemental thereto,

She plea of estoppel heroin urged and whloh is. hesod upon tho foot of plaintiff's subsequent payment ox two inotalláoste due on tho paving bill, after plaintiff's aoquisltlon, is nst well, founded, beoause suoh sets of -payment are not alleged nor shown to have in any manner operated to defendants' proJudies* nor «an It 7ft* oonoluded from the faets of this oaso ftnat tho plaintiff in ány.nen; nor intended, in making suoh payments, to thereby ..release dOfOhlwif under their warranty to him. It nay also he netod'thht theta i;« ytg prescription pleaded: or which could have been plead at the time of the institution of this action.

For these reasons, we are of the opinion that the defendants must respond under their warranty to plaintiff to the extent only that plaintiff at the time of this suit had suffered because of his having paid the aoorued installments on the said paving lien. There is no ether basis upon whloh a moneyed judgment can be predicated.non constat that the installment^ yet to accrue may, for /ií&cúXusC some unforseen reason, be cancelled, remedied or annulled and the property now burdened therewith be ultimately relieved of said en-cúmbranos, at least to the extent of the balance yet to accrue. Plaintiff should, therefore, be reserved the right to bring suoh action in the future against these defendants as may be necessary to protest him in the event of his having to pay any future installments arising under the' lien.

IT IS, THEREFORE, ORDERED that the Judgment herein appealed from be and the same is hereby reversed, and IT IS HOW ORDERED, ADJUDGED AHD DECREED.that there be Judgment in favor of plaintiff and against defendants, jointly and in solido, in the full sum of SIXTY THREE and 9S/l00 DOLLARS ($63.92), with interest on #32.51 thereof at the rate of five per cent, per annum from January 14, 1921, and for like interest on #31.41 from January 19, 1922.

IT IS FURTHER ORDERED, ADJUDSED AHD DECREED that plaintiffs rights be and the same are hereby reserven xo him to recover by due process of law against defendants herein any future installments. of the paving lien which he may hereafter discharge and whloh is now recorded in the Mortgage Offioe for the Parish of Orleans, in P.B. 21, pages 119 and 120, under date of December 26, 1916, and bearing on the following described property, to-wit;

"A certain lot of ground, situated in the 6th Distriot of this City, designated by the letter 'A,1 of Square Ho. 364, bounded by Prytania, Pitt, Valance and Bordeaux Streets, and measuring 45 feet front on Prytania Street by a depth of 100 feet between parallel lines.”

II IS KTRTHER ORDERED, ADJUDGED AND DECREED that all oosta of this suit in both oourts bo born* by dafendanta herein.

JUDGMENT REVERSED

MARCH 6, 1923.


text:
    Loveman,Joseph, and Loeb vs George D.Davis
    No.8864
    February 19th 1923

   Loveman,Joseph and Loeb vs George D.Davis,Appellant.

No.8864

Charles F.Claiborne,Judge.

Shis is a.suit for balanoe of merchandise sold and,delivered from March 8th 1920 to April 30th 1921 for $182.37

The. answer is a general denial.

There was Judgment for plaintiff for $67.57 and defendant has appealed.

The bill was originally contracted by Miss Eunice Gilder she was-married to the defendant on January 3rd 1921,but the account remained in the same name.

The amount of merchandise purchased by Eunice Gilder wife of George Davis from January 3rd 1921 to April 30th 1921 was $82.07 ; but the amount paijt during that time was f107.50 . The presumption is that .the husband made those payments,which A eiceed the amount purohased.lt must also be presumed that he paid for what,had been purchased during marriage,and for that for which he might he might have been held liable,and not for that which had been purchased by Miss Eunice Gilder,prior to her marriage,and for which he was not responsible.By this calculation the defendant paid all for which he might have been held,and therefore owes plaintiff nothing,and the Judgment in plaintiff's favor is therefore an error.

Judgment reversed and annulled at plaintiff's oost.

Judgment reversed.

February 19th’1923.