text:
    NO. 8651
    COURT OF APPEAL PARISH OF ORLEANS
    ANNIE PERKINS versus ROY M. STRECKFUS
   Dinkelspiel; J.

Plaintiff in this suit alleges thot she was employed upon the steamboat Oopitol, as a meld, end thi-t on September 38th, 1930, wt-e engaged by her employer, Rey Streckfus, Oeptsin of the steamvbcit Capitol tc proceed tc his residence where petitioner wes to ido \oiiie domestic work under order of defendant's wife.

The petition overs further th"t she was told by defendant that she would be taken to defendant's home in his automobile truok, and th';t while on her way to defendant's residence under defendant's orders, she w.-s riding in defendsnt's truok, and while surasiKRitiKxg proceeding with the chauffeur,in the employ of defendant, the said chauffeur of defendant operating his automobile on North Peters Street ,;,t the intsr.reotion of Bienville, at about nine thirty in the morning on September 38th, 1930, collided with a, float at e ••id intersection of North Peters end Bienville Streets. She alleges 'Iso (h't she sustained injuries due to the negligence of le'■-rd’-nc' " emolo y-e, which consisted of a sprained baok and hip jcint And intern;.'1 abdominal injuries and that she wcs confín a u to her home from September 33th, J920, until November 10th 1?<20 under 3= re of i physician, and that she is still suffering from thaKffaak the effects cf sc3d injuries :nd that said inns injuries were brought -"bout solely due to the negligence of defendant's employee who h^d ”mpls time to eve id colliding with the scl! movini vehicle which wee crossing the street in front of defendant's cutomcbile truck, but said chauffeur was bent upon crossing in front of the ether vehicle, which h'-d the right of way Alleging further th«t she suffered excruciating pain and agony from the effects of said injuries and was forced to employ and have the attention of a physician during the time she w's confined so her room, and due to said injuries she was totally incapacitated from performing her employment as maid md that her "edio&l bill amounted, together with her drug bill, to fifty dolíase, and for th? loss of employment from the dates heretofore mentioned, amounted to one hundred dollars, and for the ps.ln :>ni suffering' she incurred she asks for the sum of Twenty Nine hundred dollars, end preyed for e judgment for #3050.00.

To this petition there were .filed, exceptions, that the petition was vague and indefinite, and disclosed no right or cause of --aotion.

Subsequently there was filed by plaintiff, a supplemental petition, which enters at length and sets forth more speoifiefe&ly the allegetion3 of her original petition, giving the name of the owner of the truck and the float, going into dets.il as to the nature of her injuries.

The answer of the defendant denies the allegations of plaintiff’s petition, denies that plaintiff was employed by him 8,s maid on board the steamboat Sydney, but admits thet he was captain of said steamboat, but denies that he was plaintiff's employer. Denies thet on the 38th day of September, 1930 or any other date, he directed plaintiff to go to his residenoe to perform domestic or any other, work for defendant's wife, .and asserts the facts to be that the plaintiff was employed in the capacity of a lunch counter girl on the steembo-t Sydney, whose home port is St. Louis, Missouri, and is owned end operated by the Streokfus Steamboat Line, an Illinois corporation; that defendant was an employee of said steamboat line and the captain of said steamboat Sydneyj that neither at the time alleged in the plaintiff's petition nor at any other time, was plaintiff employed personally by defendant, but at all times while working on said steamboat Sydney she was in the employ of the corporation whioh owned and operated said steamboat. Defendant alleges,that on the date of the- said aooident he resided with his family at Ho-. 3330 Eeolen£.de Avenue in the city of l¡rew Orleans and was then about to move from said residenoe to 3935 Ooli.seum Street, and that on the day preceding the aooident, defendant's wife visited the steamboat Sydney and that while aboard, the boat, plaintiff learned that he and his wife were going to move and asked defendant's wife if she might come ou$; to the house and assist her in getting ready to move, and hie wife.oame to defendant asking him if it would be alrigjit. if plaifetiff qarne to defendant's residenoe the following day and assisted her ia her prep rations to move; defendant made no. objection, but said to let pic intiff clearly know that it wes not compulsory upon her to go,end subsequently gave plaintiff the number .of defendant's residence, and directed her to take the Esplanade Belt osar, gét out at the 0300 block, to which plaintiff agreed; and alleging that defendant violated the indtruotlons so given by induoing the ohauffeur of the truck, whose duty it was simply to oarry -dvertising matter ror the steamboat Sydney, to drive plaintiff to defendant's residenoe, which he did without any authority; thst said oheufffiur was not authorized to use said truok for any purpose except the business of the steamboat, he had no authority to drive plaintiff to defendant's residence or anywhere else, denies that he ever htd eny conversation with.plaintiff in reference to the sutomoblle, and avers that the aooident r -. due entirely to the contributory negligence, heedlessness md need of care on the part of plaintiff; end prays for dismiss"! of plaintiffs action.

The testimony, of the plaintiff substantially asserts, amongst other things, thst Mrs. Streokfus, defendant's wife’ askdd her if it would be alright to go to her house the next morning, giving her the number of her home and the street, and giving her f Iso the. directions for getting there; said there would be a lord oar driven by one Abe Lyons, who would take her out there; she testifies she w s not femilisr with the streets of the city of Bew Orleans, end also goes on to testify the nature of the accident in question end the date thereof, the time that she was in bed, attended by a physiolaa, giving his neme; she describes the truok and says it wes used to~»oarry advertising matter and', ether things to and from the steamboat, it was not a passenger fmtomobile; she positively swears that she was not'instrdoted • by- either the captain or his wife to take the street bar, and that that fact was not mentioned to her at all; she svrears to her injuries and the effect thereof.

The first witness- introduced by plaintiff, a Mr. Mangel'; describes the accident '-'nd hew it occurred, he knows nothing ’'-boWt the employment of plaintiff nor the orders -she rsoeived from defendant.

A Ms. Hammond, -nother witness for 'oV intiff "-Iso witnessed the accident from f blacksmith shop, and goes on to describe it; knows nothing of plaintiff' i-jur: ■; c nor j nvthing further ebout the c:,se one v;£.y or «nether.

Mrs. Ethel Young, -noth'r witness for -V intiff in her ex> .Mination in chief nmongst other s r- tevents mode, s«ys th t defendant's wife «ske-d pi---intiff to call -t her house to do some work aud told her wh't o- r to o -teh so 3he oculd get to the house, for nine o'clock in th® morning, c-nd th! t pi'inti if sti ted in reply that she oculd not find th? place, -.nd then it \r s that she further ss.id i-fter asking her husband, th't pi; intiff oculd oome in the truck with Abe, end rlr t ill th' t she knew shout Shis P'rtioul-r oirouias 'f-noee; the next time th't she smv pleintiff she found her in b---d; nt the time in que-tion she r-- a working for defendant's company, a-e orshier.

On orces er-¿in1 tion:

Q. You stated rf-ther 'csitivelv in your directex! min- tion th't M-a. Streokfus did tell this women how no .get to h-;r Es_;.;.-.:'cle Avenue home, and told her to t-ke the str-et c*r? A. Ye-3 sir, she did tell h-:r to take the street o?r.
Q. And you testify that Mrs.. Streokfus insisted ucon h r t-.king the street o'-.r? A. I thin-, she did, yes 3ir.

And several ,answer- to questions of like effect were identical v/ith whs-t we hs.ve heretofore quoted. Toting her entire testimony, she swe*rs th-'t >1: intiff vs ordered tc take the street or-r end not the auto.

The first witness in bsheIf of defendant is ■> brother, and he ts'-tifies that the Streokfus Steamboat Line, a oerpox; tion ooer; ting steamboats,operated the boat in question, a'nd Sh'-t his brother wfs the captain of the boat; th-t the oerpor tion was organised under the laws of the State of Illinois, vnd that all of the employees, amongst whom was the defendant, were paid hy the corporation. In this conneotlon this witness further testifies that Abe Lyons wos also employed by the oorportion, that his salary was paid along with the other employees,, by the company.

He was asked:

Q. NoüAt the time they refer to, September, 1S20, w-.s there any automobile being used by the srs'-mbcat Sydney, in the city of Mew Orleans? A. We have a c»r here, & Ford make, it war. on advertising truck, the steerabost Sydney wot operated by defendant's corporation in the afternoon, sightseeing on the harbor, and night trips about the harbor for dancing, and the truck was used for carrying billboards and things of tlv-t sort, ■- dvertising; end Lyons wps'th- chauffeur of thi-t truck; defendant h d no interest in the truck.

Mrs. E. E. Streckfus, wife of the defendant, testified as to where she lived in Seotembsr, 1930 , 2330 Esplanade Avenue, and after.vords moving to Coliseum Street. She »> s a sked:

Q. In moving, did you hive eny oocession tr sprek to a •.-ornan by the name of Annie Perkins, this woman here, ‘bout assisting you in any way in the moving? A. Yes sir.
Q. State all that took place between you and this woman?
A. Every time that I would go to the steamboat Sydney, Annie Perkins would went to oome and help me, and v/he she knew that I w s going to move she wented to oome and help ms, and finally I s&id if she wanted to she cculd oome, if it did not interfere with heir work c-n the bo’-t, end. she should be there between seven thirty end eight o'clock, and she --.'anted to know where the place w> s ‘nd I told her it w. s Esplanade Avenue, end I wrote it on 6 piece of aí-per for her, to tf-ks the Eta-lan* de Eelt car and get off * t the 3200 block, I described cue house end everything, and instead of th&t she got on the truck sgainst the wishes of the chauffeur.
Q. Now Mrs. Streckfus, did you at any time- on the stesmboat^Sydnijy tell this women in Mrs. Young's presenos or anyone slss's presence to take the truok 1 n the morning end. go out to your Esplanade Avenue home? A. I certainly did not.
Q. You did tell her to go cut and take the street oar? A. Yes sir, and I wrote the street for her to get off at and the name of the street oar line; I never thought anything about taking the truok, I told her to take the Esplanade Belt o«i and get off at She SSOu block.

She knew nothing of the injury to plaintiff, except what she was told. Shb swears that Abe Lyons, the chauffeur was in the employ of the steamboat company end not that of her husband.

Yhe defendant himself, R. M. Streokfus, testifies that he was oaptain of the steamboat Sydney at the time this accident o.courred, and that the steamboats 'Oapitol and Sydney were the property of the Streokfus Steamboat Line, and the domicile of the company was in St. Louis, Missouri, and it was incorporated under the laws of the State of íllinois; that the company wos operating on the rive'r oarrylng passengers, harbor excursions, in. the city of Hew Orleans, making afternoon and night trips; these trips were advertised in the newspapers, also by handbills an'd further by an auto truok with three signs, one on each side and one on the back, it was a covered truok, had one sect, and defendant says he had no ownership in the truok; Ahe Lyons wwas the ohn-uffeur, had been such four of five months before the accident. In oonneotion with his wife having asked plaintiff to go to her house to do some work he was asked:

Q. What was that conversation? A. My wife said that she h»d been requested by plaintiff if she could come out to the house to do some work for her, and she wanted to know if th-t would be alright, if it did not confliot with the company's affairs, I did not have any right to tell her that she could get off and do any work for me personally, but if she wanted to go of hex own volition, th-'t she oould do it, and I insisted on my wife giving her the address, but not to use the truok, I never authorised my wife or plain**' to wxii ride on the truck.

On cross examination he testifies th“t the truck in question w 3 bought in St. Louis, and being shown s certified copy from the Secretary of State, that the license w--'s issued end he was declared to be the owner of the o-"r in questions, his answer ws.s: "I deny that I vw>s the owner of the car," and the question again being asked him, he replied "Yes sir, this oar was paid for by the steamer Sydney, the bfnkbcok will show that.

Q. You claim that you did not Bake this si.pplios.tion? A, Xtas I ax* olalm th-t I msde the application for the license, but so far-'as the ownership of the car is ooncemed, I dBny that.

He knows nothing of the injuries to plaintiff except whet he had heard.

There is in evidenoe in this cese, a ocoy of the application for registration of s Ford touring o!'r, giving the place where the oe.r w»e purchased, the number of cylinders, also the number of the car, and that the oer was to be left at 3330 Esplanade Avenue; Rey H. Streoífus w- s the owner, residence address 3330 Esplanade Avenue, business address, Steamer Sydney, canal Street, in the City of New Orleans. And in this connection the testimony of the witness who had entered the same, certified that he issued same as his official dorickaa« duty.

The evidenoe in this case satisfies us that defendant was the captain of the steamboat Sydney at the time this aooident occurred, that the steamboat was the property of the Streckfus Steamboat Line, an Illinois corporation, end that the registration of the truok in the office of the Secretary of Stele simply raised the presumption of ownership which could be- rebutted by proof.

In order that one claiming to have been injured by an automobile driven by an employee of the owner, may recover therefor¿ she must show the relation of master end servant existed between the owner and the person .in charge of the oar, at the time of the aooident, and that the servant was engaged in his master'? business and vr-s a.cting within the scope of hie employment.

Brenner et al vs. Ford, 115 La. 550.
Civil Code, Art. 2330.
Atkins vs. Points, 148 La. 958.

"An owner of ?n automobile is not liable for damwo-ss resulting from the negligence of someone else in the operation of ?. oar .without proof or re‘-sonable presumption that the person who operated the c-.-r was ths employed or authorized by the owner to opt-r^te the O'-r.

Rushs vs. W. G. Coyle Co. et als, 149 La. 31.

It h"s frequently been decided by this Court, siso by the Supreme Court of thi3 St'.te, when ce-aes ‘involving issues of fact, conflicting testimony, and the credibility of witnesses, the verdict of the jury will not be disturbed, unless manifestly erroneous, because the jury saw End heard the witnesses, and therefore were in v■ better position to judge of their credibility than is an appellate oourt.

Black vs. Liquidators, Henry Block Co. Ltd. 139 Court of Appeal, 78.
Levy vs. R. R. Co. 123 La. 198.
Williams vs. R. R. Co. 121 La. 138.

The evidence 3ntisfies us further that plaintiff was Instructed by th«= wife of the defendant ?nd given the directions sfxhx to her home on Esplanade Avenue, find ordered to take the street car to re»ch her rjsidenoe; this w-'-s confirmed by the defendant and the f-ot that pl-intiff nevertheless undertook and did go in the --uto. truck, driven .by another employee of ■ defendant’s company, End not of defendant, without any authority from defendant, and without his knowledge, ?-nd did attempt to prooeed to defendant's home, does not for th‘-t reason make the defendant liable in iJE.se of an accident such • s this.

In disobeying the instructions of defendant and his wife, which the" record amply demonstrates plaintiff did, she took her own risks, add no matter what the nature of the ac cident, and the injuries she received, were produced through her own fault, end defendant oan not be held liable therefor.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court a,quo be and the same Is hereby affirmed, plaintiff to pay costs of both Courts.

-Judgment affirmed-


source: Caselaw Access Project

author: Dinkelspiel; J.

license: Public Domain

text:
    NO. 8656
    COURT OF APPEAL PARISH OF ORLEANS
    E. W. ULLRICH GLASS COMPANY INC. versus A. G. WILLIAMS CANDY COMPANY
   Dinkelspiel; J.

This suit instituted J>jr plaintiff, olaimlng payment for two 9how osses sold to the defendant and delivered to the latter, for the sum of $193.00.

The answer denies the indebtedness, admits that-it ordered the glass show oases for the .purpose of showing oandies to the public, snd th'-t the plaintiff failed to furnish the show oí.ses, in that those delivered were not air-tight in order to preserve the candy, and further defeotive because owing to the odors of stint, the or?niie3 exposed deteriorated and were ruined through the fault and negligenoe of plaintiff in not properly constructing the show oases. Defendant further s,nswers olaimthey ing judgment in reconvention, thst/ikxx* were compelled to put in new show ceses, which oost them #316.00, and that the injuries to She business and to the stook which had been placed in the show oases furnished by plaintiff was to the extent of $75.00, end prayed that plaintiff's suit be dismissed and there be judgment in favor of defendant in reconvention against plaintiff in the sum of $391.00 with interest.

An examination of this record, which is entirely question of fact, proves to our satisfaction, that plaintiff did not exsoute the order for the two show oases in aooordanoe with the agreement entered into at the time the order was given; plaintiff knew the nature of the business for which the show oases vere ordered, and knowing the character of the business of the defendant in question being that -of e, candy vendor on University Place in the City of 3ew Orleans, that the requirements were •such in the manufacture of these^'show oases as to make them airtight, and plaintiff was informed of this faot and undertook to mke -these show oases so that they would conform, with the requirements of defendant.In this they failed. The show oases were not mode air-tight, there were many defeots in the manufacture, both in the wood used and particularly In the paint and enamel, whioh for the purposes required was to have beer, of the very highest order, and very best materiel, and from the reoord we are satisfied that this was not done; in faot the odor whioh arose from the paint was notioable for more then a month after the work had been delivered,- so that the goods used by defendant for the purpose 'of show were- spoiled, deteriorated and uterrly unfit for exhibition, muoh less for use. All of these things were established and ma.de knownto plaintiff, end promising to reotify the errors, failed utterly to do so,' henoe defendant was compelled to call in another Show oase manufacturer,who testified in this oase. who did the work to the entire- satisfaction of defendant at a very nominal cost above that whioh was to have been paid to plaintiff in this .oase if the oases furnished by it were in proper order.

January, 1923.

It would be useless to enter into details of the testimony jsxsji pro and oon in this oase and it would serve no usefull purpose. In the argument of this oase it was stated by counsel for defendant that the judge of the lower Court had, after the trial of the oase, gone into the establishment of the defendant, examined these show oases and found the faot to be that there was still an sxrit odor of paint prevailing.at the time of hie examination. There was no dispute of this fa.ot and no denial made-by plaintiff's attorney, and whilst we do not rely upon this, statement and only give it in this opinion.as sn additional reason why the defense in this oase must prevail, irrespective of what the Judge may have seen, • under the evidence as presented, weaxsf±xx are firmly convinced that the plaintiff has failed to'make out his oase.

On the' reconventional demand we see no reason to dis- • turb the- judgment which dismissed same.

For the reasons, assigned it .is. therefore ordered, adjudged and deoreed, that- the;-judgment of the Court «quo be and the same is-hereby affirmed, costs'of both courts to be paid by the plaintiff.

-Judgment affirmed-


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    FRED FRANTZ VS A. LEVITAN FURNITURE CO. et al
    No. 8669
    May 22d, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit against a tenant for holding over after expiration of his lease, notwithstanding notice to vacate.

The plaintiff alleged that he was the owner of the property No. 1200 Dryades Street? that the defendant occupied said house under a lease expiring September 30th, 1921, at the rate of $125 a month; that the lease provided that the lessees should vacate the said premises upon the expiration of said lease; that some time prior to September 30th, 1921'petitioner leased said premises to S. S. LeBlanc & Co. for a period beginning October 1st, 1921 at $175 a month; that at the exoiration of their lease the defendants remained in possession of said premises and refused to vacate the same notwithstanding notice to vacate; that it was necessary for petitioner to take legal steps to evict the defenr dants by a suit No. 99,683 of the First City Court, and by a second suit No. 138,890 of the Civil District Court; that in said Court there was judgment in favor of petitioner from which the defendant appealed to the Court of Appeal for Orleans Parish which affirmed the judgment: in suit No. 8,424.-; that in said-appeal the bond for $2,000 was signed by Jack Borden as surety; that the refusal of said defendants to vacate said premises at the expiration of their lease was malicious and illegal and done with intent to harass and injure petitioner by defendants who knew that the premises had been leased +.á *t- s. LeBlanc and his partner D. L.Ivy as above stated; that the defendants remained in nossession of said prémises during the whole of the month of October; that by reason thereof LeBlanc could not take possession until November 1st, 1921; that the said LeBlanc & Ivy rented said premises for the purpose of conducting a retail grocery therein; that they resigned their positions 7/here they were earning $100 a raonthj in order to undertake that business; that they remained idle durirg the whole of October; that petitioner is liable to said LeBlanc ard Ivy for said $200; that he is also liable to them for their loss of trade amounting to $1300; that petitioner tes also suffered the loss of $175 representing the rent which LeBlanc and Ivy would haye paid him had they occupied said premises; that he also paid $16 costs in his suits against the defendants; that he also expended #300 attorney's fees in prosecuting his ejectment suits against defendants; making in all the sum of $1,991.50 which the-defendants owe him and refuse to pay.

It therefore appears that plaintiff's claim consists of the following items;

lo October rent $ 175.00
2o Attorney's fees 300.00
3o Costs of-Court 16.50
4o Liability to LeBlanc & Ivy_1500.00
Total $1991.50

From a lenghty answer, extended over forty-three paragraphs, we gather that the defendants admitted owing $176, which they tendered, and pleaded no cause of action and a general denial to ¿11 the other items.

"The Court having heard counsel for plaintiff on the pleas or exceptions of no cause of action for all of the items except $175 for rent and $1.00 for notice to vacate, sustained the exceptions, leaving the cause to proceed ".upon the question of costs only".

There ms judgnent in favor of plaintiff for $176, at his costs, and he has annealed.

I. There is no dispute as to the correctness of the judgraent in favor of plaintiff for $176.

II. As regards the.claim for attorney's fees the learned judge of the District Court gave the following reasons:

"On the trial of the case, the Coürt first heard the. argument on the exception of no cause of action to the items enumerated as to attorney's fees. It is the oninion of the Court that attorney's fees can only be recovered in litigation in those cases in v/hich the law specially provides for their recovery, and the Court has never been pointed to any law which gives to a landlord the right to recover attorney's fees for eviction suit. The eviction is specially provided for in a very rScent statute of 192Q I think, or 1918. I have it not before me, in which this process is elaborately provided for, and in which there is no hint, that the landlord is entitled to attorney's fees, for procuring eviction. I know of no special law nor of any general, law that gives it. I am referred by counsel for the plaintiffs to the case of Jackson Brewing Co. vs Wagner, 123 La. 798, and to the case of Harper vs Pflug, 37 A. 904. A reading of these cases shows that the claim for damages was made up of a number of items, and in each one of them, was a claim for attorney's fees^but that no question was raised by the defendant as to the right of the plaintiff to recover attorney's fees; the matter was never called to the attention of the Court, arid that the judgment gave a lump sum for the damages suffered. I cannot believe that, if an exception of no cause of action had been leveled at the time to those two items of attorney's fees, in those cases, and properly presented and argued to the Court, that the attorney's fees would have been allowed. I do not believe it was the intention-of the Couft to make Jurisprudence on the subject of the allowance of attorney's fees in those cases; therefore I refuse to follow or to be bound by them in so serious a matter as this, where the consequences are so far reaching, and prefer to have this matter brought directly to the attention of the Court of Appeal, and from that Court by certiorari to the Supreme Court, and when the matter has been presented and argued to the Court, and if that Court, admittedly knowing what it is doing, and realizing the consequences of such a decision, chooses to allow attorney's fees in this case, then I will follow them. The exception of no cause of action as to the attorney's fees is maintained" .

In the case of Smith vs Bradford, 17 La. 263 (266). the Súfreme Court, inreversing a judgment allowing plaintiff in injunction $500 as attorney's feew, said:

"we know of no law sanctioning the allowance of anything beyond the ordinary costs of Court to be oaid by the party cast".

This decision was affirmed by name in 19 La. 358; 13 A. 327, 502; 18 A. 329 and 52 A. 1072.

In a petitory action counsel fees cannot be allowed. 145 La. 163.

^ In an ordinary suit attorney's fees are not allowed as costs or damages. 126 La. 187 (193).

This decision was based upon the following precedents: 10 A. 562 (564); 12 A. 239; 13 A. 326; 14 A. 311, 702, 738, 757, 826; 15 A. 517; 18 A. 321 (329); 19 A. 468: 28 A. 729, 878; 34 A. 61; 35 A. 466, 694, 1018; 36 A. 132; 37 A. 479; 42 A. 890; 48 A. 992; 51 A. 451; 52 A. 1535; 124 La. 871; 125 La. 525.

Attorney's fees cannot be recovered in a suit for specific performance. 124 La. 870 (871).

"In general, the law considers the taxed costs as the only damages which a party sustains by defense of a suit against him, and these he recovers by the judgnent in his favor". 13 A. 193; 12 A. 714.

Plaintiff delivered to defendant a locomotive with the understanding that, at the end of twelve days, defendant was either to return it or pay the price. Defendant refused to do either. Plaintiff sued for areturnand for $250 attorney's fees as damages. Held, thejclaim^s untenable. 39 A. 929; 38 A. 347.

But the precises question was practically decided in Jackson Brewing Co. vs Wagner, 123 La. 798. In that casé the plaintiff had sued the defendant, his tenant, in ejectment. The suit was dismissed^by the Supreme Court as premature. The plaintiff then brought a^conijgt, in which he obtained judgnent against the defendant. Harappealed and the judgnent was affirmed. During all the time of this protracted litigation defendant retained possession of the leased premises. Plaintiff then-filed a third suit for the following items;

21 months at $250 $ 5,250.00
Attorney’s fees incurred in ejectment suits 75.00
Costs of briefs in same 15.30;
Making a total of $ 5,340.30

We gather from the briefs in the case that the District Court charged the jury specifically

"that plaintiff was not entitled to recover the .attorney's fees and briefs incurred in the suit for defendant's ouster*. The .jury returned a verdict in favor of plaintiff for 21 months at $120 or for $2,520. The Supreme Court increased the rent from $120 a month to $200¿ or in- all $4200, and as thus amended the judgnent was affirmed, although plaintiff, in his brief, had urged his claim for attorney's fees, and had quoted in support of it Harvey vs Pflug, 37 A. 904.

The plaintiff in this case alaaT relies upon Harvey vs Pflug. But there is nothing in that case to show that either the jury or the Supreme Court, in the amount allowed plaintiff, included attorney's fees. The only reference of the Court of that item is as follows:

"She (plaintiff) has paid $150 attorney's fees, and assuming that they are included in the verdict a small sum would seem to have been allowed for lost improvements. At any rate, however, the jury may have made up the sum, we are satisfied the total is what it should be".

This language is not sufficient to entitle the plaintiff to ^ attorney's fees in the face of the overwhelming jurisprudence to the contrary.

The plaintiff also relies upon the line of authorities which would give a cause of action against a party who acts in bad faith and who foments litigation maliciously to harass the other party. The evidence does not establish that the defendants Naeted purely in bad faith. They failed in their defense for lack ^ of evidence, as they must under the law. But for aught we know Í they may have been right. They cannot be penalized for attmjptANing to exercise a legal right. On this question^the burden of | proof was upon the plaintiff and he has failed. 3

Plaintiff also relies on Cooper vs Cappel, 29 A. 214. This was a damage suit for trespass, for the illegal taking ^away of plaintiff's property and for assault and battery upon their person - an offense in every sense of the word. This case is criticised in 51 A. 457 and called "exceptional" on account of the facts cf the case. In the Cooper case the Court was passing upon the rights of parties resulting from an offense* The case before us grows out of a breach of contract , and the ^rules of law applicable to the latter must govern. Defendant's possession did not originate by violence or trespass, or any illegal act. 38 A. 347.

We therefore conclude that plaintiff is not entitled to attorney's fees.

III. As to the costs of Court, these have already been adjudicated upon in the two suits in which they were incurred. The fixing and enforcing of the payment of costs belongs to the Court having jurisdiction of the case where made. 2 M. 313, 83; 10 A. 582; 106 La. 242; 107 La. 69, 81; 113 La. 581.

IV. While we do not express any opinion as^the liability in damages of plaintiff to LeBlanc and Ivy, the pr&sumption is that they are, and that they will be called upon to pay them. We cannot go as .far as the learned judge of the District Court and say that plaintiff has no cause of action until he shall have paid damages to LeBlanc and Ivy. Bis possible liability for the same is sufficient to give him certain rights against defendants. A defendant in injunction may sue for attorney's fees before be has paid them. 35 A. 360. A surety may, even before making any payment, bring suit against the debtor to be indemnified by him, under certain circumstances. C. C. 3057. The most that could be said íb that plaintiff's claim is premature. Under the allegations of his petition he might have proved a. subsequent suit by LeBlanc and Ivy - or filed a supplemental petition. 13 A. 499.

In order that plaintiff's rights against the defendants resulting from any claims or suit that LaBlanc and Ivy may assert against them in the future may not be defeated by the judgnent herein of the District- Court maintaining the Exception of no cause of action, we will reserve their rights.

V. Plaintiffd^ontends also that he is entitled to interest upon the rent admitted to be due, and to costs of this suit, because the defendant's tender was made to him alone, as attorney of olaintiff, while it should have been made to the plaintiff himself, in accordance with C. P. 407.

It is true that this article requires the tender to be made to the "creditor himself". But that .means to the creditor himself, or to his agent or attorney, aa some one authorized to received payment for him.

C. C. 2140 (2136) "The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by a Court, or by law, to receive it for him".
C. C. 2143 (2139) "A payment made to an attorney at law, employed to sue for the payment, will discharge the debtor, although the attorney be not specially empowered to receive the debt". 10 La. 480; 18 La. 428; 3 A. 627.

The opinion in Mudd vs Stille, 6 La. 19, is not clear on the question, but even if it means what the syllabus says, it is overruled by the opinion in Billiot vs Robinson, 13 A. 529.

A previous tender relieves a defendant from the payment of interest. 108 La. 125; 117 La. 396; 26 A. 453; C. P. 415.

A previous tender relieves a defendant from the payment of costs. 108 La. 135; C. P. 416; 155, 549.

It is therefore ordered that the judgment annealed from be' affirmed, reserving to the appellant, Fred Frantz, all his rights against the defendants, A Levitan Furniture Co., and others in case of suit against the said Frantz by LeBlanc and Ivy in connection with the matters herein, - plaintiff to pay the costs of appeal.

Judgment amended and affirmed.

May 22d, 1922.


author: Dinkelspiel; J,

text:
    NO. 8671
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. MADELINE L. STORCK, widow of DR. GEORGE HUHNER. versus JACOB RABINOWITZ.
   Dinkelspiel; J,

Under an agreement filed in this Court, in this suit, this/mMm&was consolidated with the case of Mr, and Mrs, John E, Flanagan against this same defendant and were tried together, and were argued and submitted at the same time.

The faots in this oase precisely stated are that the plaintiff, Dr. Huhner, met with a severe aooident at the time and mnder the same circumstances as deoided in the Flanagan oase, but Dr. Hughner, after a few days died from the effect of the aooident, and this suit was brogght by his widow, claiming damages in a sum six over One Hundred Thousand Dollars, for causes therein stated, ending finally in the suffering and death of the Dootor,

The pleadings in this oase were not as full and as complete as they are in the Flanagan oase, but under the consolidation, the principles announced in the latter case oontrol and cover this case; henoe without farther statement of either the law or the faots governing this case, and under the agreement referred to.

For the reasons assigned in the Flanagan oase, it is ordered, adjudged and deoreed, that the judgment of the lower oourt be and the same is hereby affirmed, at the cost of plaintiff in both Court8,

©Judgment affirmed-


author: Charles F. Claiborne, Judge.

text:
    Ellis Davis vs American Ry.Express Co.
    No. 8673
    January 22nd 1923
   Charles F. Claiborne, Judge.

This is a suit to recover the value of goods not delivered.

Petitioner avers that on January 23rd 1920 at Plattsburgh La.he shipped through Ephraim Northern by the American Railway Express Op.defendant herein,a hog to be delivered to him at his address in New Orleans;that slid hog was dressed and In good oondition at the time of shipment)that said shipment arrived in New Orleans at about 7,30 P.M, on the same day;that on the next day January 24th and on the succeeding day January 25th he inquired about his hog at the office of the defendant in New Orleans,but was unable to Obtain any information)that on the following day January 26th he again called at-the offloe of the defendant when he was there told that the hog had been destroyed on account of Its decomposed oondition)that the hog was worth $200.00 ) that it was lost through the negligence of the defendant's employees.

The defendant admitted the shipment,but avwjw»d*that .hen the said hog was delivered to respondent,it was in suoh oondition that it deteriorated,notwithstanding proper handling)" it admitted that the hog arrived in New Orleans at about 7,80 P.M,of January 23rd 1920) it admitted that plaintiff was told that the hog had been destroyed,but denied all other allegations of the petition.

There was Judgment for plaintiff and defendant has appealed.

Ephraim Northern lives in the neighborhood of West Platteribuygh,We8t Feliciana;on the morning of January 23rd he and plaintiff herein killed a hog;he had known the hog for some three years and it was in fine oonditlon;he has raised hogs all his life;this hog was stabled and fed up for killing;they stabbed the hog,scalded him,and got all the Hair off of him, cleaned him white,gutted him,and washed him out olean with oold water;the weather was cool;a hog killed in that weather could not spoil in four or five days;the hog was packed in two sacks with two tags on eaoh sack with the addrees"From E.Northern, Plattenburg,La. To Ellis Davis.2236 Eighth Street New Orleans;

Davis was the owner of the hog;it weighed over five hundred pounds after killing;he and Davis took the hog to the Express Co.and delivered it about ^O'clock that evening,when the train came in;Davis went down On the train with the hog*; the hog was about three years old.

Ellis Davis corroborated Northern;he paid him $30» to fatten the hog ;after killing it they out it in two,and put each half in a sack;when they delivered the hog the man in the train took his knife and touched the sack to see if the meat was fresh;Platteriburgji is about 100 miles from New Orleans,he got on the same train as the hog at 2 O'clock and arrived in New Orleam at 7.30. that night;he saw the hog until the man took it off the train and put it in the depot,and he told him,he could get his hog early in the moming;he want down to the station and someone told him, the meat was transferred ,to the Union Depot; he went to the Un$on Station and saw Mr Surgi; on January -26th he agite called for his hog on Mr Surgi who told him the meat was spoiled and they had dumped/ it ; Mr Surgi sent him to the receiving office where he saw- Mr Tate;he went with the driver of the Company to the dump,but they did not see the hog;he would have to pay 60/ a pound for meat at the market thinks he could have sold it for 50/ but he asks for 40/ ; he had bought a large barrel to salt the meat,and would not have killed the hog if the weather had not been ooldjno one ever same to him to tell him that the hog was spoiled and had to be dumped.

On behalf of the defendant^L.G.Dessonnier testified that he is the traffic inspector for the defendant oompapyjhe made a report of the shipment whloh he produced;it is not dated/ it states that the consignee was E.Davis 2233 Eighth Street Hew Orleans ; two sacks dressed hog ; arrived January 23rd at Union Depot ; rotten and not fit for delivery,dumped ; weather real warm ; the report was made to R.G.Miller,olaimágejÉt,the odor of the hog was strong,they could hardly stand around it, // and when they" out the .sack it was full of maggots^e saw the hog on the morning of January 24th ; they ordered^taken to' the dump.

Claim agent,R.ff.Miller.adressed a letter dated hay 3th 1920 to the plaintiff herein informing him that his claim was deolined beoause the hog had arrived in a decomposed condition and they"would not be allowed to mw carry the hog through town in an attempt to make delivery,consequently it was consigned out to the dump without delay"!that the defendant's driver had oalled at his " house during the morning of January 24th to inform you (him ) of what had been done,and that he found no/i one at home."

F.Surgi,depot agent,said that he saw the hog on January 24th ; he smelled something very bad and he opened the saok and it was wormy,and he arranged with the wagon to take it out to the dump; the hog was very badly decomposed and wormy;if the hog had been in good condition it should'have been delivered on the 24th at it arrived on the 23rd ; Dessonnier and himself ■ condemned the hog;the weather was " very hot " on that day and the day before^'they did not send any notice to the plaintiff ; having a local address on the delivery ioute it was not necessary' to send a postal notioe;-he and Dessonnier oondemned the hog.’

It was admitted that if driver Weber,of defendant Company was present he would testify that he called at the house of Ellis Davis on January 24th to inform him that it was neoessary to dump his hog on account of its condition.lt was also admitted that if H.A.Bradley,Superintendent of Terminals^was present he ' would testify that he saw the hog,that it was rotten and working (reeking) with maggots and the odor was so bad that it was necessary to dump the hog.

The defendant mailed to the plaintiff on January 28th a postal card informing him that it held for his account meat ^ charge^ $2.49

The reports of the weather bureau U.S.Department,establih ed the following conditions of the atmospheres

January 23rd Maximum 80,Minimum 68-Mean 74-Wind S-part cloudy.

January 24th Maximum 7 Oyminimun. 48- Mean 59- Wind north east- Cloudy.

The temperature at six o'clook of the morning of the 23rd was 68 and rose gradually up to 80 at 3 o'clook P.M.,when it again fell to 63 on the morning of the 24th.

These incontestable figures completely contradict and destroy the testimony of Dessonnier and Surgi that the weather was on those two days "real warm" and "very hot".

The law of the case is as follows ;

All that plaintiff has to allege and prove is-that .the carrier undertoo^to oarry his good$and to deliver them,and that he failed to do it.lt is for the carrier^ to explain why.

5 R 138-2 R 403-24 A 333-50 A 857-115 La 1-113 La 1 132-La 615 (646 )-2 Hutchinson ( 3 Ed.) 741-1 Mlchie 654 .

Carriers are liable for the loss of the things entrusted to them,unles- they can prove that such loss was occasioned by uncontrollable eventsjl they are liable if the things are stolen by their servants or by strangers 132 La 615 --

" In an action against a common carrier for damages to goods,the proiBf must be clear and certain to relieve him from 11ability,that the damages did not arise while the goods were in his hands;for the presumption is against him,not only from the terms of the bill of lading,but from the policy of the law-. In suits against common carriers the testimony in their behalf of their clerks and servants must be received with great caution" Bond vs Frost 8 A-297 -14 A 224."

" The ship receipting for goods as in good order is liable for any dajgage subsequently discovered unless clearly proved to have occurred before delivery.2 H.D. 1427 Ros.2 and 4

In 2 La 333 the Supreme Court said; "It is the interest of such men( Architects ) to value services which they are in the habit of performing,at the highest possible rate;and there is sometimes an "esprit de corps" prevailing among them,formidable to the interest of proprietors,when any collision occurs between the latter and one of their body" 35 A 1132 ( 1138) .

"The Judge can disregard the testimony of witnesses, if he believes they are not telling the truth,and give judgment as if no evidence had been addneseed."13 La 412-14 A 224-24 A 332.

"The testimony of an attorney for his client is not full proof of a fact,particularly when the attorney would be personally responsible if the action fail,Such evidence has always been held to be of an inferior kind."7 A 580

If the testimony of Surgi is true,Bradley never saw the hog^as it was sent to the dump as soon as Surgi says he ascertained its condition.

It was admitted that Weber would testify that he went to plaintiff's residence to inform him that his hog had been sent to the dump;but it was not stated that Weber had seen the Hog,nor that he had carried the hog,to^i the dump.The only-witnesses therefore against the plaintiff and his disinterested witness,northern,are the two witnesses Dessonier and Surgi,both employeeXof the defendant and both interested' in discharging themselves from any responsibility in the matter for failure to deliver the hog.We prefer to beléfve the plaintiff and his disinterested witness,against these two interested witnesses.

Plaintiff's testimony is probable; the testimony of is BisBonier and Surgi ee exagerated and seems to us improbable. It has already been shown that their testimony was proven ineurreot in the matter' of the conditions of the weather.Their testimony is that it was warm.This oase was tried about a year after January 23rd 1920 and it is not probable» that they remembered■ the temperature on that day.Besides,the official records^that it was rather cool than warm.They testified that the hog smelled very strongly and was decomposed and wormy,The Station agent who received the hog at Plattenburg at 2 6'clock on January 23rd did not perceive any odor;the áefeHadnte defendants^agent who received and handle^the hog at the railroad station and at the Onion Stat/ion at 7.30 P.M. of the Bame day,did not smell anything^*it is inconceivable that the decomposition and smell and maggots should have set^twelve hours afterwards.The smell should have preceded the maggots by more than twelve hours.

Plaintiff swears he remained home all of the 24th,and that no one same to his.house from defendant company.According to Dessonnier and Surgi,this hog,of 'the value of §260.00 was condemned by them,and sent to the dump,before they notified the plaintiff.lt is impossible that these subordinate agents should have taken the responsibility of such action concerning an article of that value without consulting their superiors,or establishing the facts,if not with the plaintiff himself ,-at least with (disinterested witnesses.But if they did,their action was illegal. Plaintiff was entitled to a delivery to him of his hog,in good or baa condition.But the defendants say thit they would have violated the law by carrying a foul smelling animal through the •streets.They refer to no law or ordinance on the subject.But if there was such ají law,jithey would not have violated it any more by carrying the hog to its consignee .2236 Eighth Street than by taking it to the dump baok of town.But no witness is produced who threw the hog or who saw the hog thrown on the dump,

But the defendant's subsequent inaction in the matter does not Satisfy Us,that it made any efforst to ascertain the truth Of this caBe.lt was not until May^that it condescended to inform the plaintiff that it rejected tDfc claim.This evidenced a reoltlesa disregard of plaintiff’s rights which doeg. not put the defendant in a -favorable - >45*.'« The'burden was ujján the defendant to pi*5ve its ground cf defense 14 A 224-10 A 413. It has failed to establish it to our satisfaction.

The judge of the trial Oourt was of that opinion,and we agree with him.

Judgment affirmed.

January 28nd 1923


author: Dinkelspiel;

text:
    NO. 8682
    COURT OF APPEAL PARISH OF ORLEANS
    FELIX F. DUPLAIN versus PHILIP PATORNO, SAMUEL COSTE, et als, In Solido.
   Dinkelspiel;

fhla suit is based on a oontraot in writing for the sale of an eleotrio piano for the sum of #350.00, plaintiff alleging that 4n August 20th, 1921, defendants, under the name of.the Catholic Athletic Club, bought from him, sne peerless-trio orohestra eleotrio piano, for the prloe and sum of #350.00, #150.00 to be paid in'oash, and the balance thirty days thereafter; and that said piano was delivered at their plaoe of business, wnere it has' been in operation ever slnoe, end alleging further thai, -one first payment or ^l&O.OO was mo.de by oheok of defendants, signed- bv Samuel P. Costa, made to the order of Uhii Felix J. Duplain, which oheok when presented for payment at the bank was dishonored. ’Wherefore he prays for judgment.

The defendants.substantially answer that they bought the piano in question from plaintiff, whioh vías to be delivered in first olass condition on August 20th, 1931; alleging further that the piano delivered was not in first olaee operating condition, but that plaintiff oontinued to work on same without success, plaintiff was notified by registered mail latter that the oontraot was cancelled as he had fail nd to carry out'his part thereof, that said piano never did work, could never be used by the theatre and that another piano was purchased by aerendants and put in operation, henoe the bank upon whioh defendants drew the oheok in question was ordered not to pay same, end the piano sold by plaintiff was tendered and has been and ie at his disposal, and that plaintiff wa.s ordered to-remove said piano -from the premises, beoause he had failed to carry out his jontract; hence preyed for judgment.

An inxasikgitfciaHisfxikai investigation of the record jroves to our entire satisfaction that plaintiff sold the eleo;ric piano in question as a good; sound, working instrument, that he knew, the obleots of defendants in purchasing same were to install l,t for public ..exhibition, and plaintiff warranted the Instrument to do all that ws.s required of an instrument similar tax** to the piano in question, finally installed the piano-ana •sithough plaintiff worked for bourse both on the day of installation, end subsequent days to endeavor to make 1ihe piano ple,ysuco.essfully, failed utterly in doing this, and after repeated efforte it being shown by abundant testimony, that the ele.otrl'o piano in question oould not be worked and did not-..aooompllah its purpose, plaintiff was notified-by registered mail letter, which he reoeived, tnat tne oontraot was at an end, that the piano in question oould not be used; that it was not the in* strument which he, plaintiff, had represented it to pe, played no tunes of any kind or oharaoter, simply made a noise, weak ? t that! henoe absolutely useless, and although .plaintiff endeavored to do all in his'power to make the instrument accomplish its objects, he failed in all his'attemps, henoe the instrument in question not coming up to the contract and reprewdrrantlea sentation, and/witxasartas made by plaintiff, being unable to perform that which was represented it would, was .entirely useless, henoe we consider that defendants are entitled to judgment.

Jan. 15th, 1923.

We have not been favored with a brief or argument on either side in this case, but we find that:

"When any commodity is sold by description, as shown-in this oase, and the description is not substantially satisfied by the oommodity delivered, tne purchaser is not bound-to accept it".

See Vo. 94, Southern Reporter, p. 83-

"A misrepresentation by the seller oonoerning the goods sold may be grounds for evoidlng the oontraot."

35 Cyo. p. 73. and authorities there quoted»

The Judge aquo having seen and heard the witnesses in this case was m a better position than we are to judge of the truthfulness of the testimony adven: his opinion ana decision were in favor of the defendants and we concur.

It is therefored ordered, adjudged and decreed, that the judgment of the Court aquo be and the same 'is hereby affirmer plaintiff to pay costs of both Courts.

-Judgment affirmed-


author: BY: WILLIAM A. BELL, JUDGE:

text:
    MR. FURLOW & MRS. FURLOW (Mr. & Mrs. Edw. Richards) versus C.M. CASSIDY, CONSTABLE.
    NO. 8693
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    June 30th, 1922.
   BY: WILLIAM A. BELL, JUDGE:

Plaintiffs herein sue defendant, a constable of the first City Court of New Orleans, for damages, in the sum of One Hundred and Fifty-Six Dollars and Nine Cents ($166,09). There was Judgment in the trial oourt in favor of a« '’sndant, from whioh Judgment plaintiffs lave appealed.

The record shows that on Deee 1, in the suit of Mr. and Mrs. Richard v, one styled "Mr, Meredith, alias 311m" No. 100,887 of the First City Court of the City of New Orleans, a writ of provisional seizure was issued, and that on December 31st, 1921, under a constable's sale in satisfaction of the aforesaid writ, all of the property seized in said proceeding was 3old, except a certain machine described as a Prosperity Garment Press.

The evidenoe in the case now under consideration is conclusive, as shown by the testimony of the Chief Deputy Constable and his assistant deputy constable, that the aforesaid machine was offered for sale with other personal property under seizure, but that there, were no bids for the machine, and that accordingly the machine was not sold, but remained in the constable's possession until the civil sheriff for the Parish of Orleans, under a writ of executory process, seized the same in the possession of the constable of the First City Court, in the proceedings No. 140,214 of the Civil Distriot Court, in the case of the prosperity Company, Inc. v. John X. Crain.

The record before us further discloses that prior to the seizure by the civil sheriff of the Garment.press in the hands of the constable of the City Court, and prior to the sale under the writ issued in the aforesaid City Court case, in. the suit of Richard v. "Meredith, alias Slim," that the said asaatable was notified by the attorney for the Prosperity Co., Inc. uat said Garment Press was subject to a chattel mortgage lien in favor of the prosperity Company, and Bhould be sold subj ect to said lien, and that notioe of this fact was given aloud at the aforesaid oonstable's sale, before the Garment Press was offered for adjudication, and, as heretofore stated, that no bidders for the Garment Press developed at said oonstable’s sale.

On January 12th, 1922, the constable, through an admitted misunderstanding and error of law, delivered to the sheriff of the Civil District Court the Garment press which had been seized by the sheriff under the aforesaid executory process, and the constable being thereafter of the opinion that he should not have delivered the Garment press to the sheriff, accordingly intervened in the Civil District Court proceedings, 50, 140,214, and instituted thereby a rule in said proceedings against the said sheriff to show cause why the sheriff should not be compelled to return the said Garment press to the constable. ShiB rule waa made absolute on March 27th, 19.22, by a judgment of the Civil District Court in the aforesaid proceedings, and the Garment Press was accordingly returned by the sheriff to the ouatody of the constable in whose possession the said press still remains, and has always remained since the institution of the proceedings now before us on appeal.

The plaintiffs in this, cause allege that the delivery or surrender of the Garment Press by the constable to the- civil sheriff being an act of malfeasance on the part of the constable, which resulted in the necessity of plaintiffs’ intervening in. the Civil District Court proceedings, to assert their rights for a raoovery of the machine, that they have suffered linages consisting of attorney's feeB and court costs, etc., to he amount herein claimed.

To plaintiffs’ petition defendant has filed xbeptxona .and answer, and by exception pleads particularly that iha petition herai'n.f|.^»d diBolosea no cause or right of action, und by way of answer defendant alleges in substance the facts which have heretofore been narrated. Defendant particularly alleges that he made every effort to recover the Garment press illegally seized and taken from his custody by the civil sherif and successfully recovered said property by a judgment of the Civil District Court.

Defendant concludes his answer with the denial that any act of his has caused damage to the plaintiffs herein, or that he has been guil+y of any failure to perform the duties incumbent upon him as oonstable of the First City Court, in the proceedings of the aforesaid provisional seizure.

The salient facts of this case which impelled us to the conclusions we have herein reached, are, that on January 6th, 1922, after the Garment Press failed to sell at the constable's sale, plaintiffs filed a rule against the oonstable in the provisional seizure suit to show cause why the constable should not re-offer for sale the said press, and that the rule being dismissed, plaintiffs entirely acquiesced in the oourt's order, taking no appeal therefrom, or other steps lookii to the enforcement of such remedies or reliefs as may have been available under the law.

They did nothing until they resorted to what seems to us as a useless and unnecessary proceeding taken by tb in the Civil District Court, whereby they sought through intervention served upon the attorney for the prosperity Co., Inc, in the aforesaid suit, Mo. 140,214, to have their lessor's lien (already asserted in the City Court), recognized as superior to the Company's ohattel mortgage lien asserted in said suit agains the Garment Press.

The gravamen of plaintiffs' oomplaint against defendant herein is that beeause of their being compelled to intervene. in the executory proceedings, that they suffered damages as now claimed, and for which defendant is liable, defendant having permitted the garment press to be unlawfully seized and removed from his possession under the writ issued by the Civil District court.

It is plain to us that the intervention taken by the plaintiffs .was not only ill advised, but entirely unnecessary to the ultimate enforcement by the City Court, or supervisory courts, of such legal rights which plaintiffs my have had in the enforcement of their land-lord’s lien against the property in dispute.

Counsel for plaintiffs relies upon the authority of Crane, Breed & Co, v. Quinn, Constable, 23 la. Ann. 512. The faots in that case are not at all applicable to those now under consideration, for in the cited case, the constable, of his ana motion and without judicial authority from his own or any higher court, surrendered property under seizure, in his offioial custody, to a private party, not even at the time a litigant before the court of which he was constable. The Supreme Court affirming the judgment for damages against the constable in that case said:

"A constable not being vested with judicial powers has no authority to take property from one party and deliver it to another upon his own motion. He is but the ministerial offioer of the oourt, by whose orders he must be controlled in his offioial acts.”

In the case before us the defendant, through a mistaken,- but perhaps a proper deferenoe and submission to what he deemed a superior writ of the Civil District Court, surrendered the property then in his offioial custody to that of another offioial, to wit, the sheriff of the Civil District .Court,'from whom, by prompt and proper procedure, he Quickly recovered the same. However much at fault, the defendant’s acts were neither careless nor malicious , but if both,and if altogether reprehensible .plaintiffs must prove under the Revised Civil Code. Art. 20X6, that because of defendant ■.. ault they have su. ered damages herein claimed-. In this essential prerequisite to the recovery, we are of the Opinion that plaintiffs have wholly failed, and that the Judgment of the trial court la therefore correct, and should be affirmed at plaint if féí. boat.

JD36MKBT AFFIRMED,

June 30, 1922.


author: Dinkelspiel; J. Claiborne, Judge.

text:
    No. 8696
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. LUCILLE REY versus NEW ORLEANS GAS LIGHT COMPANY.
   Dinkelspiel; J.

we quote from defendant's brief which we consider is a statement of fact „hown by the pleadings:

"This is e. suit by Lucille C. Hey against Sew Orleans Gas Light Company for damages for cutting off of gas servios.

The petition avers that the defendant entered into an agreement with plaintiff to supply her with gas for cooking and illuminating purposes at her residenoe in the City of New Orleans, end to determine the quantity of gas consumed hy her the said Company installed in the house occupied hy her a prepay meter so constructed and arranged that hy dropping a twenty-five oent piece in a slot in said meter gas to the value of twenty-five (35$) cents could be used; that on October 18, 1931, the agents, employees end representatives of the defendant, acting under orders e.nd in the course of their employment, called at the residence of plaintiff and, after announcing their intention to out off the gas supply end to remove therefrom said prepay meter, upon the refusal of the defendant to permit the removal of said gas meter, they went under the house in 'which petitioner resided and disconnected the pipes through v/hion the gas. flowed or was carried from the supply pipes or mains in the street to eaid meter inside petitioner's residenoe, thereby cutting off.the gas; that the aot of defendant's agents end employees was deliberate, malicious, illegal, without warrant of law, and done -with the intent to cause injury and damage to plaintiff; that plaintiff notified the company of its said employees' action, hut the iefendant refused to reconnect said ¿as; that plaintiff has been seriously damaged' and injured by the defendant in cutting off and depriving her of the use of gas and prayed for damages in the sum of §750.00.

Defendant denied that it nad bntered into any agreement with Lucille 0. Hey, plaintiff herein, for.fthe furnishing and supplying cf g:.e for cocking end illuminating purposes. Io ; d:..l Vur-i r.h"5 under do te of January 19, 1913, one ¿Ira. A. Hoy «¡¿.l? ...pplio ticn So it for ¿as servios at the prei..i ¿o? Jo. 304 South Tel-rm-.chus Street, which appllo tier, v/vs uooeptid by defend nt i-nd, in eiocordfnoe therevith, t yreyiv .meter for the purpose of measuring the quantity cf g-s o: noumed installed. It denied ell other allegations of the petition, esespt th?t it 'dmitted thf-t on October 18, 1931, it3 employees, under i bs orders, celled '•■t thr residence . bov= seated for the purpose of cutting off the g--s supply an.l removing said prsp-.y meter, and upon r=fu3..-l -f 1-idy cn the prsmis to permit the removal of slid prepay mater, ditcem.eebed the servios pips under said premises Is-ding to a.-id meter, thereby cutting off sui-:. g. 3 su,.ply. Defendant averred th:t before cutting off the g.ia service cn a. id premises Jo. ¿04 South Jslsmtohus Street, due -a., nd *' a ...ule by it upon the .id lira. A. Rey for p.yj..snt of a balance aue for gas consumía ‘•t s&id premises nd '-rue notification given thf-t upon failure so pey, the gas service would be out off, rnd tht-t it me fully justified in cutting off said service."

Ihe testimony in this case is ¡tore or less admitted.

It is admitted that olein tiff applied to defendant for gr.s service at the residence 304 South Telenmehus Street on e prepay basis,'that the application was accepted and meter installed, that the meter vies a prepay meter and was constructed end arranged that by dropping a. quarter or twenty five cent piece in the slot in said néter, gas to the value of twenty five cents could be used by the applicant; it has been proven that in the latter pi rt of June, 1931, an employee of the defendant called at the premias-, for the purpose of changing the meter;tint he took out meter lío. 31636- and installed therein metsr Jo. 33191; tíu-t cn th'-t ds.y, the raiding of said new meter v¡;.s 449, and a memorandum m-'.de of said reading at the time; thit subsequently, July 23i . : 1 rxaing of the said meter wes 486 a difference . J71K jujío feet, showing #5339 of gas consumed and thr.t there .■ , --.t the t time only seventy five cents in said meter when the stripper took the money out of ssme; arid subsequently, August 33nd, 1931, ssid meter reading wss 533 or % difference between thet and the prior reading of July 33nd,---of 4300' cubib feet of gas, showing #6.64 of gss consumed and that the meter stripper' found in August only seventy five cents in said prepay meter. Subsequently the defends-nt sent one of its employees Uo said premises about August 29th, 1931, the purpose being to chenge hx the meter, this employee took out arid meter besring Ho. 38191 and installed meter Ho. 49469; the reeding of the-meter 33191 removed on that day was 539, or a difference between thi-t and the reading on August 32nd, 1931, of 1100 cubic feet cf gas, showing §JL.24 gas consumed, the meter xxa'lio. 38191 was nor stripped on the premises but- was taken to the shop of .defendant and turned over to another employee who verified the reading of said meter, stripped the some found no money at £.11 therein. The reading . cf June 39th, July 32nd, August 2Snd end August 39th, showed g-s consumad to the total amount of #13.67, and' the mcney in said meter being only #1.50, left e, balance cf #13.17 due by the plaintiff.

It is further shown thst by letters written on different dates commencing September 15th, 1931 end again on September 33rd, 1921, plaintiff wos informed that unless sii-i bill was paid in three days the meter would be removed; subsequently again on September 38th, 1931, the meter wes ordered removed., plaintiff refusing to permit-the removal of said meter. On October 10th, 1931, a letter '.;vs written to her that unless the bill was paid, service would be di.-.continued; to all these letters plaintiff .cut off ✓ pcia no attention, sc thi t a/ssatit order was issued October 14th, 1931 end on October 13th, 1931, the bill not hs.ving b?sn paid, servios was cut out.

Plaintiff's briaf end in Jure the argument does not c-uo;.ni. sh: í .. public service ccrpcr- "ion i3 obliged cc do business on credit or tc r.-r. hr service c.nd then it for p'vr.c.ut /..nd through She entire evidence in -b.sh- If of plaintiff, ;;.:cting from pi-.intiff1 s bri-.f:

"Thor.: is no disput; r^-g--.■ding the f"Otj in chic c'ft and She (¿uestlcn submitted for decision is on; cf l-w."

In s recent c~<>; lidded by the District Ourt ml /. ttsc’y-d ■. s >:. p- rt cf defend-nt1 s brief, is 1 copy of tfcs opinion of the learned Judge, ;hs Honorable Hugh C. Cage, in the r.-,;e cf St'-te sx R-l George .'lontgciuc-.ry, versus hew Orleans O s Light Coir:p>-ny, being Do. 135310, 'which opinion f.nd decision v/e <;uote in full:

"In oammunities living under our modern civilization, especially in ls.rgs cities, there are certain public services, which, in themselves, are natural monopolies, and, whether are so recognized in ls.vz and made monopolies by law, or whether the lav/ ignores end lets the., work out the social or .natural low, they in the end resolve themselves in monopli--s. The service of -.zater to the City did rss'.lve itself into e monopoly, even if it were net mode so by lav. The 'telephone service, if throv/n wide open tc the public, would, and does, in ever;' case wind up in one corporation furnishing che service. A statin railroad ’.vithin a distance, of twenty miles on etch side of it his -- natural monopoly, and if a n-.-'.i one was tc be built within twenty miles, one would die or he absorbed by the ether. The furnishing of gas is a n> turel monopoly, and in every one of these natural monopolies is prim.rily the duty of the sovereign to furnish this servios. The sovereign has-the option either to furnish the service itself, end own, añd/operate it, or, when he does no t choose tc do this, be muet.-farm it out to a contractor, generally called public; servios corporations. "The f-= rrner or contractor undertakes'under his' contract to perform the service-, thst were encumbent upon; the 'sovereign, under the contract thi.t he makes with the.sovereign, and obtaining certsdn rights: end certain s^Sgátions of .the citizens ■to-'/ ids the firmer, and cert; in rights .-.no. certs ir. oslig— ticr.s of the f-r-ier tow; id the citizens, „ui the Court will enforce th¿_. cn both sides.
The testimony' b.efors, :.v„ shPi'a tu t thor-. is no method known tc hurmn kind, in its present s't'gc. progres», for it? curing the amount of go s consumed, except the g;-sem?tcr; 'that g'sor.iet:r~, c'f st n:l*rd correctness ore used through all the United States, and, for th; t matter, all through the civilized world. Bo other method, os I s;,.y, of measuring th? i-mount of g's consumed hr a been found, except the in;; orumrat known &s meters. They, like all humvn invention:: js liable to error-to get -out of order snd fail to register correctly, and there s.re instruments kno.m =-s "ttet-.i's, " by which th- correctness of the g 3omet=r is tested, =nd these instruments --.re recognized by evr-rone, .,nd were in the conté;,-.pit tion cf the sovereign when it granted this ccntrr.ct tc perform this service, to the farmer. As I .s*y, this instrument n-'csss; rily '»/-■. a in the con tempi; tion of the sovereign, when the contr; ct v; $ mí-.ás with the defend* nt in this c-:-?, th:t is, th? legislative rot by which the service v.s farmed out -ml the i-cnopoly given. The oblige ticn cf the farmer or contractor in this cr.ce, rr-~ tc furnish g- s to the inhabit, nts of the City cf ’lev; Orl-'na, it w-3 its duty end obligeticn so to do, end in the same oor,tr---ct it was stipulated th-t it should h* vs the right tc ch-rgs therefor to the v-'-ri'-uc obreum-re net in excess of §4.00 per one thousand cubic feet. The v-»ry me'-ning cf the contract taken as n whole is th.-.t the cenerector is boxuid ;-nd obligated tc furnish this gr-s tc the citizens of Kev; Orleans, tout not free, he must be p-.'id for it. The citizen hv.s r. right to-exact the fxirnishing of G--3 on paying for it, and it is impossible to hold thi/t this-contractor is obligated to furnish g-se without pay. Dealing with* these matters, it is necess-ry th. t corns methods, rules and regulations should b-s made whereby the time .-'nd method cf payment, sh5.ll be governed. I'or example, re ‘Sonable’ time limit within which the payment of bills ■ 11 be i-c.ae, w----kly, monthly, quarterly, ee..iit'ririw-lly. ,-r annually. There is nothing that has been suggested x- me thet the monthly payment is not i. re.-sonable •ifegui tica. If that be the cr oe, end I think it is, then, when a months supply of g?s has been served by the oontraotor, to the citizen, it is the duty of the citizen to ps.y for it. The amount th-.t he h?s oonsumed can only be established ss I said, by asms of this instrument■ called a meter. When the meter re-ooras ? certain amount of gvo, the contractor - the grs ccm.x-ny - -has the right tc presum that the citizen has used that «.mount of grs.. If the citizen is under the impression that he h-s not. used thrt amount of gas, the only method of de berminiilg that f-. ot ?s to whether or not he owes for the ntímb-r if thcu^r.ds of feet cl'i'-imed from him by the gi ;• con,.;-/, ■ x.-ot the meter. Vihen the ~,?st is mr.Ae, cn hie =: te...: ; chat he doss net believe tiu t he owes the amount claimed -.i- ¡m hiju.s.nd the meter tests out correoxly, I o-nnet ccn..-. 1 Of any proof of evidence th-1 cculd overcom.- ouch o . . How would the Courts, in view of the t- ■xL.m.’y 1 .-.for; it, xhst the meter ' •> th? only fcnc’im method : ' ..-t r...'.r' ’■ amount of g! 3 consumed, take ‘-ny c :r'-r .- i’ fore, as I have s"id, when the moor’ t ’ ■ e V.-.-!n fi;:"d, and'the citizen r-: fuses to .. ■ ,r then demands ti further service, he is not, ■. icl.n m-ining the contract between th-. ..v reign and the f':.r..,-.r, «hioh oonxrsct only oblige-, eh-- : rm-.r to furnish the servio-upon being paid for it by th* citizen, „r,-i che regulv. cion or rule of conduct by' which the public oontr'otor -./«uld refuse to give further service seems to 'icé tfljsoluoely reasonable, s.nd the only effe-otive way by which xhe.business oould be carried on for the benefit of the whole public. The oitizen would have his remedy. He oould, where an apparently unusual bill 'was ,, rented to hi^,deiu-n-i a 6-, st. He. could in vs the test ■... ids, and if his meter • ■ ¡s .vrcr.g, it ‘-culi be immediately seen, end the matter would be adjusted, but if he was shown flu t the bill was wrong by testing the meter, and the oontr.-ctcr - the gas company ¡A should then .lem- nd ch-.t he pry it or h*ve his gas out off, an entirely different b‘ ss would 'os presented, because then the citizen "would be within his right under the contract me-de by th»- sovereign that he steed re^dy end willing to pay for the service ih"t vr5'a rendered. Therefore, he would have til rh.- rights given to him under the cowraot, but, if he r to pay for the services rendered to him, -the contri ct itself does not require the contractor to render services, without pay.
low, in thí3 c;ue, the relator is evidently in.-good, filth in oelieving th-r his bill is exhorbio-nt. He protested. The gv., o--mp!ny had his m,:ctr rested to find out wnether.his impre-.,i'n ik ; his bill '..us improper \n,s founded en facts., A test u, Us by ike... with me most t_._,roved method, showed th t '.i :u- surer or -etsr w s in 'urfsot order, or slightly ir. f-vor of the couaui.-ir; : n-i, ;h- t, tlnrifore, the amount" of g s th t it registered >/.,s the amount thst h:.d been used, and the 'mount w's tsxx due tc them.
Under the circumstances, the gss company having tre; tod i i: alike, the millionaire ¡.nd the pauper the same,, it w.~e right • nd proper -th-.’t it should apply the same itethed to Hr. Montgomery, the relator, in a $35,000 building and the poorest person in Kew Orisons, occupying the barest tenement. Any other ruling would require the gae company to bring suit for $1.50, $10.00 or $13.00, against thous- ■ r ts in the Oity, and the Courts would be clogged rendering carrying on of the business of the Courts pr .otioa^l, v.ble.
In my opinion, the mandamus should be di-.charged.11

We also refer to the case cf Annapolis Public Utilities Company vs. Martin, 103 Atl. 465, decided by the Court of Appeals of Maryland, in. which it wee held:

"In a consumer's aotion against a gas company for wrongfully and without just oause shutting off hi's supply of gas the burden was ón plaintiff to offer evidence legally sufficient to•show that he was not indebted to the gas company for gas supplied to the premises át the time the supply was shut off; for, unless such evidence was offered, there w~s a failure of proof to support the allegations of the declaration that the supply was wrongfully and without just cause shut off.
friere a consumer of gas used approximately §33.00 worth during a month, but his- meter contained about . only/fll.OO in quarters in payment, so that he was indebted to the .gas company -in about §13.00 for gas consumed on his premises when the meter ví&s removed by the oompany without unneoessary force or disturbance, after his failure to pay by e fixed date on notice, the oompany was not liable as for wrongfully shutting off the consumer's supply.of gas."

To the same effect is Bertram vs. Pacific Gas & E. Co., P. U. R. 1916, C., p. 410 at 413.

Also see Southwestern Tel. Co. vs. Danaher, 333 U. S. 488.

The oases referred to by plaintfff, Bettis versus Singer Sewing Machine Co. 10 Ct. of Appeal. 373, and Greenlee versus' Singsr Sewing Machine Co. ,10 Ct. of Appeal 373, where it was held:

"This is-not one of the mides provided by.law to' enforce payment of past due installments on artioles purchased, and parties resorting to such arbitrary methods, end deliberately substituting.violence for law, should-be made to feel the,'weight of judioial condemnation. 1

• And. the-.contention^ made- by- plaintiff,-' demanding ; damages, for the reason that- defendant resorted to arbl--. ■:.tB«&ry-method's to -enforce;--.payment of; a claim it-assumed' • .was'due ..by'the plaintiff* maintaining that' the defendant' ■ hsid .taifcen the. law -into, its., own - hands instead of taking the process provided by law for enforcement of the abligiw tions of plaintiff; in our opinion, is not the correct doctrine, this not being a oe-se of trespass, but being a •os-'se under a contract between the parties, 'which gave the right to defendant, ta in case of default or nonpayment for gas furnished, to stop the flow of gas •:-'nd the use thereof after repeated demands had been m--i.de on plaintiff to pay what was due for use of the gus and which plaintiff refused to pay.

conclude We conclude therefore, -that under the-authorities end trader the admitted statement of facts in this case that the.defendant company had the legal right to cut off the gas supply from plaintiff's residence and to remove the meter; and, therefore, plaintiff having under .her contract agreed to comply with all the conditions of svid contract end having failed to do so, although repeatedly requested and having been we.rned-cn three different- ocoaasions by letters admitted to heve been rer ceived, to p?-y wn&t was justly due, the cause of action ssiim claimed in this suit for demages cannot be allowed.

For the reasons assigned, it is ordered, adjudged end decreed, tfet the judgment of the Court-aquo be end the e#me is hereby -affirmed, with costs of both Courts to be paid: by plaintiff.

-Judgment affirmed-.

June 19th, 1922.

Claiborne, Judge.

CONCURRING OPINION.

I do not believe that the plaintiff owed the ampwnt of gas claimed by the defendant. She did not agree to pay for the gas that the meter, showed she had consumad; she agreed to buy as much gas as the company would furnish for the 25 cts she dropped in the slot not one f»ot more, and she paid for amount in advanoe. If the company supplied more than a quarters worth of gaB, It was its loss. But I oonour in the decree on. the ground that there was a difference between the amount of gas consumed for the 25 cts and the amount registered as consumed "authorized the immediate removal of the meuer". Such 'a regulation was reasonable and legal, although printed on the plaintiff's application for opening gas, and in type so smell as not to entitle it to favorable consideration by courts.


text:
    Charles F. Cleiborne, Judge.
    SUCCESSION OF EDWARD THOMPSON
    No. 8697
    June 30th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit to-compel acceptance of title of property No. 1631 St..Anthony Street described as follows:

A certain lot of ground, situated in the Third District

of this City, designated by the No. 9 in Square No. 36 (now 751), bounded by St. Anthony, Bourbon (late Bagatelle), Claiborne (late ■ St. Avid), and Derbigny (late Prosper) Streets, on a plan of Ls. ■' .H» filie, late Surveyor, dated December 5th, 1845, deposited in ’..vithe office of Jules Mossy, late Notary, and measures, in American "'Measure, 25* 7" 7’" front on St. Anthony Street.by 128*2’' deep -between parallel lines. Purchased by Edward Thompson from G. H. : S.cbmidt by act of Joseph Cohn, Notary, dated December 8th, 1865; Reg. C.O.Bk. 88 p 695.

Edvard Thompson died intestate bn October 12th, 1905; he'.leftpo ascendants, nor descendants, nor collateral heirs; :. he-married'Catherine Gleason on December 13th, 1856; she survived ;-.him'fag '.his -sole and only heir, under Articles C. C. 917 (911), 924 (918); 930(924) to 932 ( 926); 949 (943).

Widow Edward Thompson then married James Healey; she died ;'|«he',,'8th, 191-9; her succession was opened in the Civil District '.Court under No. 127,616; Mary Ann Hanlon, widow of James Hanley, íwsts -recognized as -her -sole heir and put in possession of all the property-left by képV'í/- ■

Widow-.James Hanley opened the Succession of Edward ThoápSoh.under the No. 140,911 of the'Civil District Court. She ^-Jfged-áll the facts herein above recited and further

■ ■ "that; .as- -heir at law of her .said aunt, and her said aunt ■ ®i:v&k:'^drbsai'd, .'she,, said'‘.petitioner, being desirous of : completing the record and being recognized as the sole and only heir at Law of said decedent as aforesaid, hereby a.ccepts purely and simply the -Succession of said late Edward Thompson and desires to be sent into possession of all his right, title, and interest in and to tire properties acquired during said community, and in and to all the property left by said decedent and in ps rticular to the Real Estate hereinafter described. She therefore irayed to be "recognized as tire sole and only heir at law of the said late Edward Thompson as aforesaid' and accepting his said succession purely'and simply, prays that her 3aid aunt, Catherine Gleason Thompson, his surviving widow in community, be recognized as the sole and only heir at lav/ of the late Edward Thompson, and that the petitioner being her sole and only heir at law aforesaid she be sent into possession of all the oroperty left by liim and in particular of all his right, titles, and interest in and to the following described property, to-wit: tlien follows the description of tv/o properties including the pronerty Ho. 1631 St. Anthony Street.

Judgment v/as rendered accordingly recognizing Mrs. Cathey ine Gleason, widow in community of Edward Thompson, and as such owner in her own right of one undivided half of all the property acquired during the community, and also as the sole and onl^ heir of her said husband Edward Thompson and as such owner of the other undivided half of all,the community property left by him; and. petitioner Mary Ann Hanlon, widow of James Hanley, v/as accordingly put in possession as owner of all the property left by said Edvard. Thompson.,

Thereafter Widow James Hanley sold the. property 1631 St. Anthony Street to tlie defendant herein, Joseph Dumett. He refused the title. A rule was taken against him to force compliance. For reasons why he would not take the title Joseph Dumett alleged: that while.Edward Thompson died in 1905, his succession was opened only in 1922; that neither hid widow nor Widow James Hanley core-plied with Article 930 of the Civil Code in that they failed to take an inventory of the propertv left by Thompson, or to have an attorney appointed to represent the possible absent heirs, or to furnish bond. From a. judgment against him, defendant has pnerled.

There is no doubt that under the Articles of the Civil Code cited above the surviving spouse was not siesed of right of .,j .> orojtrty of the deceased by mere operation of Jaw, as are ? ■ ; cirs, and that me right of possession and -.bsolute owners' ip depended uponlsts^compliance with those formalities as a :or...ition precedent. 44 A. 801; 52 'A. 960.

nevertheless the surviving spouse inherited or acquired the rights of an heir, and transmitted them to hor own heir even 7 oefore she had exercised them.

C. 0. 949 (943): "natural children and the surviving husband or wife before ueir.g put in possession of the estate left- ' i them, are not considered as having Brocee-’ 1 to ,c deceased from the instant of his death; -ut • y ao not the less, transmit their rigilts to their uro, if they die-before having nade their demand to bo put into possession. The reason is, that this sort of heirs having only a right of arbi in to cause themselves to be put in possession of successions thus falling to them, this rig..t and this action form a part of iheir succession, vhich they transmit to their heirs". 28 A. 859-

".it since these Articles of the Goce -.-ore adopted, and since those decisions were rendered interpreting them, there has intervened legislation which repealed all those portions of the above articles, requiring the formalities of an inventory, an attorney for absent heirs and a bond, as far as commuiity property is concerned.

Act 57 of 1910 p 93 as amended by Act 80 of 1916 p 201 reads, in part, as follows;

Awt. 915. "In all cases, when either 'husband- or wife” shall die, leaving no ascendants or descendants, and without having disposed by last will and testament, of his or her share of the comnunity property, such undisposed of share shall be inherited by the survivor in full ownership. But in the event &c".

If Widow Thompson had attempted to exercise her rights as heir of her husband at any time prior to the Act of 1910 there is no doubt that it would have been necessary for her to have com* plied with all the conditions of inventory, attorney for absent heirs, and bond, required by Article Oivil Code 930; even a judgment, without those formalities, would not have availed her. 44 A. 801; 52 A. 960; 128 La. 752.

But even a compliance with all those requirements would not have invested the surviving spouse with a psafect title,

"in case any heir should come forward within the space of three years after his or her having been put in possession &c".

But after the passage of the Act of 1916 the law,under certain conditions, constituted the surviving spouse a legal heir to the amount fixed by law, and did not require of him the performance of any formalities. The right of Widow Thompson to exercise her quality of heir of her husband originated with his death, but was held in abeyance until she, or her heir, had complied with certain formalities of law. She might have been unwilling, or unable, to comply with the conditions of the law; yet her right and that of her heir would remáin in a state of suspend: ed animation without prescription against it. In the meantime, the legislature might have repealed Article 930. When the heir in this cane chose to exercise her right, she was bound to conform only to such formalities as the law required at that time.

When Widow James Hanley asked that Widow Thompson bar recognized, as the heir of her husband and that she be put in possession of Thompson's share of the community property, the Act of 1916 had impliedly repealed Article 930, as far as community property was concerned and' constituted the surviving spouse a legal heir seized, of right of the succession of the deceased. We are therefore of opinion that the judgment obtained by Widow James Hanley recognizing her as the heir of Edward Thompson and of his widow and putting her in possession of all the community property left by them was legal and valid, and that the judgment appealed from must be affirmed.

Judgnent affirmed.

June 30th, 1922.

REHEARING NOT APPLIED FOR


author: Dinkelsplel; J,

text:
    NO. 8698
    COURT OF APPEAL PARISH OF ORLEANS
    EDWARD WAGNER versus NEW ORLEANS RAILWAY & LIGHT CO.
   Dinkelsplel; J,

Plaintiff institutes this suit against ths defendant, and the National Surety Company of New York, claiming the sum of #3580.40, for injuries received on the 17th of Maroh, 1919; alleging substantially that he was a passenger on oar No. 305 of the Magazine line, owned by the defendeuit herein, the New Orleans Hallway & Light Company. At the time in question the oar on which he was riding was in a very orowded condition, that he was oompelled to stand upon the rear platform of same, and when the oar neared the oorner of Vaiennle and Magazine Streets the oonduotor attempted to see if anyone was going to board the oar at the approaohing oorner, and In order that he might have a better view, the oonduotor pushed the crowd which was on the rear platform aside, qo that he might get to the edge of the platform, and in so pushing the crowd out of his way the oonduotor used suoh foroe that your petitioner was by his aot pushed from the platform of the moving oar, and fell to the ground; that the oonduotor did this in a reoklsss and negligent manner, and that said aooldent was in no wise the fault of plaintiff but was caused entirely by the reokless aot of the oonduotor, and his wanton disregard for the safety of the passengers on said oar. That as a result of aooldent 8ald/fcs£mxkaa his left leg was Injured, the knee oap knooked out of plaoe, oontuslons to the body, right side bruised, and in consequence of these injuries he suffered severe pains, was lnoapaoltated entirely for a period of about two weeks and partially lnoapaoltated for a period of about taaxwMkm six months averring further tkafcmxtkm that when this aooldent ooourred h< was employed as a machinist foreman at a salary of #6.90 per day sad as the result of the aooldent he was lnoapaoltated for ten days and was unable to earn anything whatever during that time, and that he believes that his earning powers will be permanently reduced in the future. He avers that the 8ure-ty Oompany under an ordlnanoe of the City, ae well as under a bond signed by It, is also liable to him for the amount In question.

The answer of the defendant denied generally that It was indebted to plaintiff In any auac, and avers further that plaintiff beoame a passenger of the oar at the time stated and attended to alight therefrom at Magazine and Qaiennle Streets while the oar was moving slowly, and In so doing slipped and fell from the step, and at the time plaintiff oarried a suit oase In one hand and an umbrella In the other, and failed to take the oare required under the olroumstanoes, they aver further that if plaintiff met with the acoldent olalmed by him he was the oause of his own Injuries if any sustained, through hie own fault to take that oare required under the olroumstanoes then and there existing. Wherefore they pray for a judgment In their favor.

adopted The Surety Company/daalal substantially the answer of the defendant.

The record in this case discloses that the plaintiff at the time stated by him was a passenger on the oar In question, and further that at the time that he beoame suoh passenger the oar was very muoh orowded and like many othere on board this oar he was compelled to stand on the rear platform of the oar. The testimony satisfies us that at the time of the aooident plaintiff had a grip, together with an umbrella, and when the oar approaohed toward Qaiennle Street where he Intended to alight, he gave the signal for desiring to get off the oar, and the oondnotor rang the bell in order that the ear should stop at the usual piaos on Qaiennle Street. The reeond further snows that the motorman hearing the bell slowed WP gradually, but before the oar had readhed Qaiennle Street, for some reason or. other, plaintiff oonoluded to try and get rid Of the orowa and get ready to alight, but with the grip ahl the umbrella in his possession, whether he tripped and fell or Whether as he olaime he was pushed by the other passengers, will make no material difference in the deolsion of this oase. The faot remains that in sfcfcsji attempting and finally succeeding in getting off the oar he fell and hurt his knee. The record abundantly proves that the testimony of the witnesses in his behalf is so contradictory that the witnesses are utterly unreliable and unworthy of belief. The one who swears that he stood at the oomer of Galennie gtreet expecting plaintiff to alight and testifies that he saw the conductor with his hands on plaintiff and pushing him violently off the oar is absolutely oontradioted by the other witnesses for plaintiff, and by plaintiff himself, both claiming that the crowd on the baek platform so intercepted the plaintiff that they pushed him off the oar*

On theother hand the witnesses for defendant all unite in the faot that plaintiff violently and of hiB own aooord got his grip and his umbrella in order to alight while the oar was slowly moving, and whether he fell or whether he attempted to alight before the oar oame to a sati«factory stop was his own aot, and not oaused by anyone connected with the defendant in any manner, shape or form,- and that whatever acoident ooourred was oaused by hie own voluntary aot and was not oaueed by the acts of the defendant or lte employees. This is fully borne out by the testimony of Daley, Xotsh, the oonduotor, Poohe, and Honeyout. The oonduotoi testifies positively that the man fell from the oar and hurt himself, the oar was moving slowly, he fell before it oame to a stop,about the middle of Galennie Street; that there was no surging of passengers and there was no shoving of the plaintiff; that he saw the whole thing and whether the man with the grip and the umbrella In his hand tripped witness does not know, nor do any of the other witnesses.

The question presented is mainly one of faot, and when We have the feote as established and the witnesses tee- . 4. timony, the judge of the lower uourt, an experienced and learned Judge of the Court for many years prior to this aooident, who mm heard and saw. the witnesses, had better means of judging the truth than we hare, and who was therefore m a setter position to judge of the truthfulness of the witnesses' testimony, and who after a full and complete hearing of the oase waa satisfied that whatever Injury 009 ourred to plaintiff waa produced through hla own faul.t and his own negllganoe, rendered judgment in favor of defendant and in thte judgment we oonour.

March 19th, 1923.

"The burden of proof is on plaintiff and he has utterly failed in establishing his olaim for Injury. Crowded conditions of oars oannot of itself be urged as a right to raoovery.*

Viator vs. H,0. By. & Light Co. 139 La. 439.

Landix vs. St. 4. By. & Light Co. 140 La. 329.

Olivier vs. Sf. 9. By. & Light Co. 43 La. 304«

for the reasons assigned it ie ordered,adjudged and deoread, that the judgment of the Court aquo be and the same la hereby affirmed, oosts of both Oourta to be paid by plaintiff.

-Judgment affirmed-