author: Dinkelsplel; J.

text:
    NO. 8914
    COURT OF APPEAL PARISH OF ORLEANS.
    OSCAR BUTTNER VERSUS JOHN J. PALMISANO.

   Dinkelsplel; J.

This Is a damage suit. And. ír-a a judgment dismissing said suit an appeal was allowed to the Supreme Court of this State, which Court transferred this cause to this Court, and in so doing Hr. íustioe 8t. Paul, the organ of the Court, rendered the following opinion:«■KafartirsrftMrtwftTiTtlH'Mnr

"Plaintiff alleges ths.t on September 13th, 1919, he purchased from defendant, a certain wagon and tools for #180.00, of whloh he paid #153.50 November 7th, 1919, and #27.50 on February 10th, 1920; that on February Sth, 1920, defendant stopped him on the street, foroabiy unhitohed petitioner's horse and took possession of the wagon, and then struck petitioner when he attempted to Interfere. That defendant kept the wagon four days and until the stun of #27.50 (whloh was then due) had been paid, therefore petitioner lost four ddkkaxixlax days work at five dollars per day; #80.00 in trade permanently withdrawn from him; #1,000.00 da for loss of the good opinion and esteem of his neighbors who witnessed the occurrence, and #2500.00 for mental anguish and the bodily fear to whloh he was put by said defendant. The defense was that the plaintiff consented that the drtrtdartafcawkd defendant should take and hold the wagon until the balanoe of #27.50 was paid. The trial Judge found for defendant and plaintiff appealed to this Court. Not a line of evidence was introduced to show that any of plaintiff's neighbors witnessed the ooourrenoe or that plaintiff lost any of their good opinion or esteem, and the olalm of #2500.00 for mental anguish and bodily fear is mlici manifestly forced and exagerated."

Ike evldenoe in this case is contradictory, but in its principal portions it presents the fact that plaintiff kza bought ,horse and from the defendant, the^ wagon at a given prioe, kept it for a certain number of months, and on the day of this ooourrenoe, plaintiff ^WdMCaattM meeting defendant, his partner, and a oolordd boy damwkmgMi driving the wagon at right near where defendant lived, demanded the balance due him whloh he allege» had been promised to him, took hold of the horse's head sad plaintiff jumped from his wagon, endeavored to free the horse from defendant's hands and in the encounter the evidence show» that defendant struck at this boy, who was not more than nineteen years of age at the time of this ooourenoe, and finally got possession of the horse and wagon and took It into his own possession* This evidenoe is concurred in by the partner. The oolored boy frightened, ran away from the scene of the occurrence. The defendant and several of his witnesses partially deny these statements and assert that plaintiff voluntarily surrendered the home and wagon In question, told defendant to keep it in his possession until the balance of the amount due him was paid, whloh would be done In a few days, and the witness, some of them, partially oonour In this statement, and one of them not entirely, max Subsequent to this oocurrenoe a charge of assault and battery was made In the Criminal Court against the defendant and he was fined the sum of Ten Dollars, from whloh he took an appeal, and this record does not show whatever beoaae of the appeal, whether it was tried or what other disposition was made of it. Be that as It mOy, we axe satisfied of one thing, and that Is that the defendant forea-bly, violently took possession, without the consent of plaintiff, of the horse and wagon, patria put It into his own premises and kept It there for several days, until he was paid by plaintiff the amount claimed to be due to him.

In the decision of this oase in the Court aquo, the learned Judge, deciding this oase In favor of defendant, gave the following reasons:

"This Is a suit between distant relatives by marriage, whloh shows no serious-violation of plaintiff's rights. Defendant cold plaintiff a wagon and certain tools for a prloe, whloh plaintiff negleoted to pay, and after some talk leading defendant to believe that the wagon would be surrendered to the defendant on the following morning took possession of it x& and held it for two or three days when plaintiff appeared paid the balance and took his wagon, and tools. It appears that the cause of action is too trivial to warrant a judgment. Suit dismissed."

On motion for a new trial, the Judge in a written opinion says:

"I am satisfied that an agreement was made to surrender this horse and wsgon to the vendor as security. When the pomas purchaser failed to pay this amount defendant took the horse and wagon when the purchasers changed their minds in this agreement."

The damage if any is trivial, henoe new trial refused."

From the deoisions of our own Court, in three separate cases, the first, Stella Washington vs. Singer Sewing Machine Company, to be found in 10th Court of Appeal, p 370, quoting from the syllabus: "Parties mndertaking to take the law in their own hands and to substitute violenoe for legal prooess should be made to feel the sis weight of judicial procedure»"

In the seoond case, to be found in the same volume, John Greenlee vs. Singer Sewing Machine Company, the syllabus reads as the syllabus in the Washington oase quoted above.

And the third and last case, John Bettis vs. Singer Sewing Machine Company,, virtually deoldes identically on the same propositions as in the two oase Just cited, and adds in that deoision the following language, which is quoted in Thayer vs. Littlejohn, 1st Rob. 140, wherein the Court held:

"But it was effected without judiolal prooess, and it is is not material how gently defendant acted, it wae a trespass vi et armis in contemplation of law, and plaintiff is entitled to reoover yerxsrbstKwttEly substantial damages."

Both plaintiff and defendant have known eaoh other for many years, in faob they are related by marriage, defendant knew plaintiff when he wae a mere lad, and there had never been so far as this record shows, an? oreaoh or any misunderstand-lng between these two parties until the inoident referred to occurred, and then doubtless in the heat of passion, and without seriously contemplating the effects of his notion, defendant struck plaintiff and finally succeeded in taking over the horse and wagon, which he had sold and for whioh be had received all but |27,50 out of (180*00, the prioe of same. Defendant did wrong; he had no right as decided by this Court, to take the law into ha his own hands, whioh he did, and for this plaintiff is entitled to some damages. We are satisfied that awarding the plaintiff the sum of (200.00 for the loss of his property together with the blow inflioted upon him by defendant will answer al3 the purposes of justioe.

March 19th, 1923.

For the reasons assigned, it is ordered, adjudged, and deoreed, that the judgment of the Court aquo be and the same is hereby annulled, reversed and avoided, and that there now be judgment in favor of plaintiff and against the defendant in the full sum of $200,00 with legal interest thereon from judioial demand until paid, and defendant to pay oosts of both Courts.

fadgmwt Judgment annulled and reversed and judgment in favor Plaintiff.


source: Caselaw Access Project

author: Charles F.Claiborne,Judge.

license: Public Domain

text:
    Mrs G.Thornton vs West N.O.L.and T.Co.Appellant.
    No.8918
    Charles F.Cj.~j.oome,Judge.
    March 19th 1923.

   Mrs G.Thornton vs West N.O.L.and T. Co.Appellant.

No.8918

Charles F.Claiborne,Judge.

This is a suit for damages suffered by a passenger on a street oar which Jumped the track.

The plaintiff alleged that she was a passenger on one of defendant's street cars on June 12th 1920,in the City of Gretna,seated on the right hand side of the car;.that the oar derailed,and she was thrown from feer seat and hurled across the car,landing on the opposite side from which she was seated, striking her head,her right side and knee and foot,sustaining severe injury and excruciating suffering;that the injury consisted in bruises from which the soars are still visible,that her right foot became infected and had to be operated on;that she received medical attention and was confined to her bed for thirty days and up to the time she filed her suit.June 8th 1921 she was unable to perform her usual work which was farm hand,wash woman or housewife,at which she earned two dollars a day.She itemises her damages as follows;

Physician $150.00
Drugs
Loss of labor 600.00
Suffering 600.00
Permanent injuries 595.00
Total 1950.00

The defendant denied all plaintiff's allegations and further answering averred;

"That some time in the month or June 1920 one of its cars was derailed;that at that time it was going at a very slow spfed.and that said oar merely rolled off the track,Just as easily as if it were running on the rail without any jolting. whatsoever,and that said oar rolled off about two or three foot on hard ground level and flush with the track,that there were approximately sixteen passengers in said oar,all of whom and particularly the plaintiff were .ot aware that the oar had rolled off the track,and all of whom had walked away and no one was. hurt from said rolling off the track.Respondent denies that plAintiff received any injuries whatever,and specially avers that at the time Bald car rolled off the track,your respondent's employees requested all the passengers partioilarly the plaintiff,whether. or not they were hurt,and each and all of said passengers Sealed that they were injured particularly the said plaintiff."

There was judgment for plaintiff for $500,00 and defendant has appealed.Plaintiff asked for an increase of the. judgment.

up6n the argument of the case in tiuo uourt the defendant has admitted that under the law it is liable,if plaintiff has suffered any injury,but it denies that she has.Tht defendant off/ered no evidence.

We shall take up the items-of plaintiff's olaim in their order.

1st.Physician.

She spent about $2' in drugs.

3rd Loss of Labor.

She had no steady employment.In the fall she broke corn;at other times she took in washing of bars,quilts,.spreads, and curtains;she made pies and sold them at the faotory.-in-shrimp time;she made $2 a day and some times more;she owns a small property,lives in one half and rents the other half; otherwise she supports herself and has always done it.There is absolutely nothing in her testimony that would establish that she was incapacitated from work for any lenght of time.She speaks of nothing but bruises and contusions;nothing broken or even sprained.Dr Gelke mentions nothing bufmultiple contusions and bruises one about her face,one about the chest and a third on her legs.Dr Rossner says " she was bruised;contusions- on her right side,right knee,and her right foot;the great tor on her right foot was badly bruised,an abscess developed,and it had to be lanced;^ lanced it". The amount of their bills,and of the drugs indicate that the plaintiff was not a year in recovering nor incapacitated from work during that time.Plaintiff might have examined them on those two points but abstained from doing it. She might also have introduced their bills in evidence which she failed to do.

4th Suffering.

There is. nothing that would convince us that plaintiff suffered much from her contusions,or that they lasted long. The Doctors were not neard on that subject.

5th There is absolutely no testimony of any permanent injury; the Doctors did not testify that they were yet in attendance. Dr Gelke was employed first;having to be absent the plaintiff called in Dr Rossner.The fact that these Doctors sent in their ees bills would indicate that their services were no longer needed.

Inxthe oase of Frazier No.8608''this day decided we allowed the plaintiff $250'for oontusions.

Lady in street car,hurt in collision,pregnant bruised '-38 A 185

Passenger hurt hy derailing train contusions and pain $300-40 A 64^'same cause -$200-41 A 793 .

Passenger thrown from car-injuries not serious $100 52 A 1199 .

Contusions,bruises and ets $225 and $300 -114 La 254

Outs and bruises $100-119 La 191-5 Ct.App 85-,

Plaintiff severely injured and suffered much $150 and $200 -127 La 403-407.

We will allow $76 for medioal services and $250 for all other items.

It is therefore ordered that the Judgment herein be reduced from. $500 to Three Hundred aiK1 twenty five dollars li with five per cent per annum interest from June 8th 1921 until paid and as thus amended that it bo affirmed with costs in both Courts.

Judgment amended and affirmed.

March 19th 1923 .


author: By miilia-Ai -BEBI. "Judge

text:
    F. E. GRACE VS J. A. PETTY
    NO. 8919
    COURT OF APPEAL PARISH OF ORLEANS
    WIIXIAM A. BEIX, JDDGE.
    MAY 14, 1923.

   By miilia-Ai -BEBI. "Judge

In'this .@últ¡!,---wflíoh is for damages ex delicta, plaintiff seeks recovery in the sum of #10-,000.00 for injuries alleged to have Men sustained' by.him heoause .of negligent acts of the defendant■'a. workmen.whilei they were constructing a certain roof ■ over tna whqrr-belonging to the "Dock Board on the levee near . .Fourth Street,- in this .city. She defendant was a contractor engaged: ir* roofing;and painting a shed for the Does Board, and . plaintiff ,'vrho:.was ..employed hy .the-Board to inspeot the painting ■’which was. hei-ng'.done hy this,.contractor, claims that on Ootoher . £6, 1921V.,while he was .performing.ais duties.ais inspector, he was struct: -on the head ana shoulders hy a plant which, fell upon him - •from-the purltlns ..of the roof, knocking him unconscious: ■ causing concussion''pf .the '.brain, brúahutrarns.and bpuisea. on-the forhsad ; and other ..bodily injuries. Hhe petition further sets forth that' ■ ■'one of the oarpenla||r’'s helpers, an employee of the defendant, -Carelessly and-negligently threw down or let fall from,the.raft— -ers of .the roof or. she.d, -the lumber-which struck plaintiff; .that' he-was taken, to. the hospital, where he remained for .four days; ,and whs confined to his b'ed at home for a .week longer, and‘unable to. return-to his. work until- Kovember '8th, some thirteen-days after the accident, ■ She '.-defendant answers by. acknowledging the ..-fact of the'.aoQidentv.-'-'but denies the injury claimed to-have been sustained and .also denies, that/.he or'.his employee was in any manner negligent or - responsible for the accident, and finally charges that plaintiff -was- guilty of grass, contributory negligence in placing himself-in-a, position, of danger, whioh was open and .apparent. From a Judgment-'fey defendant; plaintiff -has appealed.

'She surrounding .-olroumatañoes from which the accident' occurred and the nature of-'the work-under construction is made . very-clear by-plaintiffs ’own-witnesses.. V<e find from their - te's-timony that carpenters in defendant's employ were laying and nailing sheathing on the purloins of the roof; that upon completion of one section, averaging about twenty feet, they would advance for similar work, the painters immediately following them to paint the exposed sheathing .just laid. Plaintiffs duty was to inspect the painting (not the carpenters1' work) as it progressed, a fact which did not require him at any time to place himself beneath the open and uncovered purloins, where more or le3S dangerous work of the carpenters was being done, some fifteen or twenty feet away from the painting work. The plaintiff's own testimony on cross-examination clearly defeats hi3 right of recovery for the reason that he admits having had full knowledge of the nature of the work that was being done by the carpenters, and that he knew of other lumber having fallen on previous occasions, and that he oust have been, at the moment of the accident, standing immediately under the pl«oe where sheathing was being done. ,ie quote from plaintiff's testimony, in part, as follows:

"5.-How long had you boon inspecting this shed",
"¿.-This Fourth otreet shed/
’Jo.-Yes, sir",
"¿.-I have not the exact dates.
"". -I just want to get an idea, was it a -week, 10 days or two or three weeks’,
"A.-I guess three or four weeks.,
"3.-You had been there every day’,
"A.-Yes, sir.
"You had been there from the time the job,had begun, the sheathing in the shed and laying the roof’,
"A.-Yes, sir.
"".-You were standing right.under the place where the men were sheathing, were you not’,
"a.-They would lay the deck so the carpenters could pull it in place and nail it.
"3.-You wore standing immediately under that’,
sir, I must have been.
"7.-The boy v-as carrying lumber right over your head’,
"A.-I didn't see him; he must have been.
"".-There was nothing to keep you from seeing it’,
"A.-I had no business to look up.
"3.-Sid you look up',
".-i.-Ifo, sir.
"You paid no attention to the men who ’were 1-ying and carrying the lusher right over your head’,
"A.-IIo, 3ir.
"¡¡¡.-In your previous experience for three weeks in that work on that wharf ho.d any piooe of lumber fallen around you ,
were "A.-It fell in the road there where the trucks passing. lots of it were falling around, yes.”

Another one of the plaintiff's witnesses testifies that the oarpenttrs weré about twenty-two feet above a-nfl that he, plaintiff, was directly underneath tnem when he got hurt. He do not find, nor did the judge & quo, that defendant was guilty of any negligence. She court's written reasons for judgment are in acoord with our views, both as to the facts and the law of this case.

IT IS, THEREFORE, ORDERED, ADJUDGED ADD DECREED that the judgment herein appealed from be and the same hereby is affirmed, at plaintiff's costs in both courts.

JUDGMENT AFFIRMED.

MAY 14, 1923.


author: By WILLIAM A. BELL, Judge.

text:
    MRS. HAZEL WAGNER GRAND VS TOYE BROTHERS AUTO & TAXICAB COMPANY, INC.
    NO. 8920
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WIBXIAM A. BEBI, JUDGE.
    MARCH 19, 1923

   By WILLIAM A. BELL, Judge.

- Plaintiff in this oase complains of and has appealed from a Judgment awarding damages in the sum of $5500.00, for injuries ^Ngustainad hy her while a passenger in a hired taxicab. Defendant has /""hot appealed, henoe the issue Before us is solely one of facts from 'which we are to determine the fairness or not of the quantum of damage's allowed.

She prayer of the petition is for a Judgment of $0,050.00, upon allegations that plaintiff has suffered pain to the extent of $1,000.00, permanent injuries in the amount of $2,000.00 and has inourred a doctor's hill of $50.00. The injuries alleged are pain and suffering during a period of four weeks and permanent disfigurement to the face from scars oif^forehead and nose. The evidence discloses injuries arising from Broken glass — the wind-shield of the taxioaB — whieh out gashes on the forehead and nose. The evidence is conflicting as to whether the injuries are permanent.

This case is the usual one,wherein dootorB have disagreed. The surgeon who attended .the plaintiff declares that the in* Juries were painful in his opinion and that the soars on the foreheac and nose will never Become effaoed though they may possibly diminish, and that the soar on the nose will always Be a disfigurement. He alt testifies that at the time of the trial (2-J- years after the accident the soars are notioeahle. On the other hand the. physician testifying for defendant and to whom the plaintiff submitted herself for examint tion, declares that the wounds of their nature could not have Been painful; that while soars are permanent and these in question can Be seen,if looked for, that they have faded to a large extent, Better than any he has ever seen, and that in from six to eight months more, the little evidence that now exists of the scars will have vanished. Under such contradictory evidence from experts, the appellate court will not disturb the findings of the trial Judge who heard all witnesses and particularly saw and ascertained the extent and nature of the physical injuries suffered hy plaintiff. We deem it bur duty to assume that full justioe has teen done in this case.

If IS, IHEREEORE, ORDERED, ADJUDGED AMD DECREED that the judgment appealed from he and the same hereby Is affirmed, at defendant's costs in the lower oourt and at plaintiff's costs for appeal.

JUDGMEM AFFIRMED.

MARCH 19, 1923.


text:
    Wid Gunning Inc. vs Josiah Pierce and Sons,Appellants.
    No.8921
    Charles F.Claiborne,Judge.
    April 2nd 1923

   Wid Gunning Inc vs Josiah Pearce and Sons,Appellants

No.8921

Charles F.Claiborne,Judge.

This is a suit for rental of a film

that entitled the * Girl from God's Country " to "be exhibited by the defendant at hiB theatre for a period of seven days beginning May 12th 1922 for the price of ‡300,in accordance with a written contract which provides on the back thereof as follows; " Clause 5 - The Exhibitor agrees to pay to the Distributor, not later than seven full days in advance of the first play date of each picture,the full amount of the rental stipulated in this contract.The provisions hereof relating to the time of payment,shall be deemed as or the essence of the agreement."

Tne plaintiff further alleges that it tendered the film to defendant m time for exhibition on May 12th and that defendant failed to pay for and receive the same.

Defendant admitted the contract but denied the other allegations.He alleged that the above clause 3 of the contract was modified by the following words printed across the face of the contract,as follows;* To be played and paid on dates Stipulated in the contract" : and that the meaning oi those words is that the film should be delivered ( h 1922 in time to be exhibited on said date,and to be 'eepi-é for on me date and at the time of saia delivery;* that plaintiff well knew that said film was to be exhibited at defendant's theatre at ton -O'clock A-.M, Friday May 12th and that plaintiff shipped said film to defendant by express C.0.D.,and that the Express Co. did not tender said .film to defendant until Saturdav May 18th ah 9 A. .M. ,and that defendant refused the same as time was of the essence of the contract.The defendant further alleged that the contract was null” for the reason that It lacks mutuality in that it is not bixa-ceral in its provisions and character".

There was judgment in favor of plaintiff and defendant has appealed.

We fail to perceive any force in the plea of want of mutuality.

Clause 1 upon the hack of the contract provides:

"Clause I-The Distributor agrees that it will use its best efforts to have a copy- of the film to be shown by the Exhibitor,at its nearest branch office,for the delivery to the Exhibitor in time for the showing in the theatre aforesaid on the date or dates stated in the notice hereinabove •refered to and etc ".

The evidence satisfies us that the defendant was informed on the morning of May 11th,at about 9 O'clock,that the film had arrived in New Orleans and was in the Express office to be delivered C.O.D. ; that at about 2 O'clock of the same day the defendant sent to plaintiff in Atlanta,Ga.the following telegram.:" Girl from God's Country here-stop-release qulok for screening this evening,mail check to-morrow,answer, signed- J.E.Pearce;that on the morning of May 12th,between 9 and 9-15,the defendant's office telephoned to the Express Co. to hold the films and that they would send for them.

The defendant did not sehd for the films;They were tendered to them the next day,and by them refused.

A lessee who refuses to pay the price of the lease and to accept delivery of the thing leased,at the time stipulated,becomes at onoe bound to the lessor for the f.uj.1 price of the lease. 48 A 1313 .

Judgment affirmed.

March 26th 1923 .


author: By WM.IA1Í A. BBÜ. Judge

text:
    ROBERT GOTTSCHALK, INC. VS ARTHUR DUMAINE
    NO. 8923
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WURIAH A. KERR, JUDGE.
    MARCH 5, 1923.

   By WM.IA1Í A. BBÜ. Judge

Plaintiff has sued the defendant herein for certain premiums due en fire insurance polioies covering defendant's property in which ‘ luoted a moving picture show. She defendant has answered, ad-tting his indebtedness to the extent of $103.00, while the amount claimed by plaintiff is $173.38. She whole contention is over the -question whether or not the polioies whioh were herein issued and whioh were cancelled before the respective expiration dates thereof, were cancelled at the request of the insured or upon the orders of the insurance companies or their agent, Robert Gottsohalk, Xno. She terms of the polioies, all written on the Hew York stahdard, provided that if the polioies were cancelled at the request of the Insured that the refund would be on a short-rate premita#, and if cancelled by the coopany without the request of the defendant, the refund would.bo on a pro-rata premium. While the amount in dispute is only $70.38, the real issue in the controversy is whether plaintiff or defendant ordered the cancellations. If plaintiff ordered the cancellations then it was entitled only to a pro-rata premium, that is, $103.00; if defendant ordered the cancellations, then the plaintiff was entitled to a ahort-rate premium, or $173.38.

She only testimony in this case is given by the litigants themselves, that is, the defendant in his own behalf and the plaintiff sub-agent or employe, William J. Mahon, all other evldenoe consisting of documents, such as letters sent to.and received from the defendant and postal registry receipts, offered at the trial and by consent ultimately filed in the record of appeal.

There was judgment in favor of plaintiff and defendant has appealed.

The evidence shows that defendant was given time within whiol to pay for the premiums, whioh would have amounted in all for the full term or the policios to the Bum of #366.00. Shis «mount was to have been paid in installments running thirty, sixty, ninety and one-hundred-end-twenty days, that is, four payments of #96.26 per month. We find from the evidence that the policies were all issued in December of 1921, and defendant defaulted on all the payments sb same fell due, a fact whioh he himself admits in his testimony. We further find from the testimony given by plaintiff’s witness that.he made frequent efforts' to eolleot the premiums as the part payments fell due and that the defendant made frequent promises of payment, nono of whioh he lived úp to; that towards the end of the four months in whioh the installment payments were to bo mode,, defendant advised plsintiff's agent that he. defendant, was attempting to sell his picture show business. Upon this advice, It appears that the plaintiff's agent suggested that if defendant suooeeded in selling his moving picture property that it might be possible to have the new owner assume or arrange for the assumption of the insuranoo bearing thereon and for whioh defendant had never paid. ‘Shore is testimony to the effect that this property was finally sold in Juno of Í922, and that at no time did the defendant in any manner attempt to either pay the premiums due or to avail himself of the plaintiff's willingness to have the new purohaser assume the insuranoo. .On March 29, 1922, the policies were cancelled by the oom-psny, the eeme having been returned to the plaintiff herein by letter addressed to plaintiff by defendant, bearing date March £8, 1922. which letter reeds as follows;

"Enclosed please find my insuranoo policies. Within a few days I shall taha core of the premiums." Shore is another letter, of the samo date, the oentents of whioh are immaterial and need not be here noted. On April X, 1922, the plaintiff wrote to the defendant, acknowledging receipt of the letter in whioh had been enclosed the insurance policies returned by him for cancellation. In this letter plaintiff enclosed an itemized till showing the short-rate earned premiums due on said policies, and asking that a oheok in settlement he sent to them not later than the 5th of April, after which date, if same were not paid, plaintiff would have to turn over the claim to it's attorneys for attention. This same letter closes with the remarks as follows:

"We must acknowledge our regret at the unnecessary arbitrary attitude notwithstanding the effort we have made to he as reasonable and considerate as possible."

The defendant on cross-examination avoided persistently an acknowledgment of the receipt of plaintiff's letter, and could not be made to say whether he had ever seen or known of its contents, contenting himself with the statement that he had no recollection as to whether it had been received by him, and justified the excuse of not remembering definitely anything on this point by saying that he had a pretty bad memory. Such testimony as this, coupled with the further evidence in the record that the letter referred to was received, as shown by the return registry receipt therefor, signed by defendant's wife, whose signature for a while he affected Ignorance of, causes us to believe that the evidence in this case should be weighed in favor of the plaintiff, and we reach the conclusion that the cancellations of the policies were made by the voluntary return of the defendant and not through the arbitrary action of the plaintiff. This was undoubtedly the conclusions drawn by our brother of the trial court, who saw and and heard the only two/antagonistic witnesses in this case. Believing as the judge a cue did,, that the cancellations' were made at the request of the defendant, it follows that the short-rate premium is the one upon which the suit herein instituted must be based, and that, therefore the claim is rightly urged for $173.28.

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

JUDGMENT AFFIRMED.

MARCH 5, 1923.


text:
    Davis Wood Lumber Co. vs Jos Schillkoffskey
    No.8926
    Charles P.Claiborne,Judge
    March 5th 1923

   Davis Wood Lumber Co. vs Jos Schillkoffskey,Appellant.

No.8926

Charles F.Claiborne,Judge.

This is a suit to recover the value of services rendered.

The plaintiff avwrred that the defendant owned a piece of land near Kanderville and employed the plaintiff to out,haul^ saw,and dress the lumber fwwm the standing pine trees on said land;that defendant agreed to pay plaintiff $22 per 1000 feet for rough lumber,and $27 per 1000 feet, for dressed lumber; that on January 21st 1920 plaintiff sHipped to defendant a oar containing 19,575 feet of rough lumber making $43#.66^and 2422-feet of dressed lumber making $05.59,or a total of $496;04 ; that on July 28th 1920 defendant paid $200 on account,leaving a balance due of $296.04 for which plaintiff claims - judgment.

Defendant admitted that he had employed the -plaintiff as alleged except for the outting;he admitted the shipment of lumber as alleged;he admitted the payment of $200,but -denied indebtednesses denied that the price agreed upon for dressed lumber was $27 but alleged that it was $25; further answering defendant alleged that after the lumber mentioned by plaintiff had been out and delivered to defendant there still remained 60 logs from defendant's lands in"the possession of -plaintiff, the lumber of which should have been out and delivered to defendant;that the value of said lumber contained ia.Baid logs is $420.00,which the defendant is entitled to offset against the (291.83) balanoe he owes the plaintiff $2#1.83,leaving a balance due to him by plaintiff of $128.17 .

There was judgment in favor or plaintiff for $283.93 , dismissing the reoonvent-ional demand, as in case of non. suit,

The defendant alone had appealed.

The price of'$22 a 1000 feet for rough lumber was proven by the testimony of- plaintiff; the defendant admitted that'.It was the price made to him,and that he had paid it on former shipments under the same contract.

The price of 827 a' 1000 for dressed lumber seems to have been correctly reduced to $26 by the judgment of the City Court.

There is no testimony to establish defendants reoonven-tional demand,he is the only witness in support of it .His test-i*-mony is vague and Indefinite.He says that on a trip to Handerville, when the train pulled out ^he noticed a big pile of logs and he recognized his logs;especially one log which had formed the comer of his fence and upon which there was still a piece of his fence six inches lorig;he counted between 56 and 60 logs of different sizes from 10 inches in' diameter up/some logs would bring 100 feet otherJWcuj-d 1500 feet;he understood those logs were out up for fire wood in Handerville.

He is contradicted by Jessie Smith,wood foreman for the plaintiff-This witness says that before starting to haul,for the defendant they had been hauling for Mr Davis ;they had about 36 logs left at the Railroad depot for Mr Davis ; but as that did not maSe a' car load,they left them there,and began hauling for the defendant;they hauled all of the defendant's logs out of the woods,and " in the winding up of hauling " there were left 5 logs for the defendant at the railroad depot for lack of room, on the freight oar;the logs were sep^ated;those belonging tó Davis were marked,those, of defendant were not marked;he.wae there when- the logs were put there,and there when they were taken awayi Lt was his duty to see to that;the defendant's logs were very common loblolly timber about 100 feet to the log.

Mr W.H.Davis corroborates this testimony.

The judgment' is therefore affirmed.

Judgment affirmed.

March 6th 1923


author: Dinkelspiel; J

text:
    NO. 8931
    COURT OF APPEAL PARISH OF ORLEANS
    EQUITABLE EQUIPMENT COMPANY VERSUS MERCHANTS RAILWAY TRAFFIC ASSOCIATION LTD.

   Dinkelspiel; J

Plaintiff institutes this suit averring that defendant is a corporation under the laws of this state, s.nd doing business in this city, ünder.a contract annexed to the petition de-endant was to furnish plaintiff rate quotations on shipments when requested; averring further that on December SSnd, 1931, plaintiff requested defendant to furnish proper rate of shipment of 130368 gross1 tons of relay rails from Indian Village, Douieie.no, to Manning, Texas, and defendant quoted the rate at $6.83 per gross ton; alleging that relying on defendant's quotation as correct, plaintiff sold to the Carter-Kelley Lumber Company, 130268 gross tons of.relay rails at the price of $32.83 per gross ton, which was basea on the quotation of $6.83 furnished by defendant. That on .the arrival of the shipment at Manning, Texas, the oarrier demanded a freight rate of $9.18 per gross ton, which plaintiff was compelled to pay before equipment would be released to consignee. That a demand was made by phone to the defendant company, who replied assuming the responsibility of the difference in freight and ecaknaisiEdg acting on this plaintiff paid .the difference, $2,35 per gross ton, and therefore defendant; was liable for the s.um of $305.75. That remitting the $5.75 suit was instituted for $300.00 in order to give the Court jurisdiction.

Defendant answered admitting all the allegations of plaintiff's petition, but piaÉdxihxkxkhaxdafaKdxnt deny that there had been a breaoh of obligation and that under -the contract defendant had sstexadm rendered the plsdntiff services in this instance, just as it had been doing all along in the course of their business dealings and s.lleging further that the servioes rendered were not paid for, hence defendant was not liable.

On these issues the parties went to trial, and we find from the record, the -testimony of Charles tí. Skinner, who was the s-uditor and office manager of plsdntiff. Plaintiff offered in evidenoej the contrsot in question, together with two telegrams from the Carter-Kelley Lumber Company and In reference to the telegrams the witness was a.sked:

Q. Mr, Skinner, will you tell saaxinxjCEa the court in your own words .what happened prior to the exchange of these two telegrams as far as the defendant was concerned? A. We called up the Merchants Railway Traffic Association Ltd. for a rate on relay rails from Indian Village, Louisiana, to Manning, Texas, and were qxx quoted-a rate of 30§í per one hundred lbs} we ohecked these rates back with the railroad company afad they advised us that the rate is was $9,18 per gross ton.
Q. What does ths.t 30^ per 100 lbs. correspond to? A. |6.83 per gross ton, and to make our quotation to the Carter-Kelley Dumber Company correct, we took this matter up with the Traffic Association advising them that the railroad did not check the same rate that they did and thev assured us that: the rate of $6.83 per gross ton was correct -and we accordingly made our quotation based on this rs,te.
Q. If you had been quoted fcx any other Bate would you have quoted a different nrioe? A. Absolutely.
Q. Tour prioe to the consignee would have been based on the quotation furnished by defendant? A. Yes sir-

He further testified that immediately upon xsssixing learning from- the CarteruKelley Lumber Company, the fact that the carrier would n8t deliver on the rate quotation of $6.83, jíísxkc •plaintiff called up the defendant, 'telling them just what had happened; that the railroad refused to aooept the ¿bíe freight on the casis given by the defendant, bptt Insisted on the higher basis, or in other words, f0.18; plaintiff then aavlsed the uartsr-Kelley Lumber Company to pay- the freight and they would be reimbursed for any loss sustained, within ninety days.-

The -telegrams In question, the one .addressed to the Carter-Kelley Dumber Company, January 19th, 1922, reads as follows;

aTour wire advising rate $9.18 gross ton. Do not pay this amount-for our account, oorreot rate $6,83 gross ton; .protect will wire ha.ok -tty jaraacttgt draft to take care difference in weight.
Signed by plalntur".

Subsequently the Carter-Selley Dumber Company wired:

"Sailrond refuses to reduce rata, advise reduction in iraft or advise disposition of rail.
Signed by the Carter Kelley Lumber Co."

We find further a letter addressed to plaintiff by defendants, of dare January 20th, 1933:

“Referring.to phone message of your Mr. Cleveland, if you will advise payment of the fregith.bill based on $9.18, per gross ton. we will -assume the responsibility of oolleoting the resultant overcnsxge wivnin ninety days or m other words protect you rox any loss sustained; it is neoessary that matter be so handled.
Signed B. E. Slewtex, General Manager.n

Letter addressed to the Whitney Central Hational Bank authorizes the acceptance from .Carter Kelley Lumber Company of an amount less the amount of bill first rendered, to the extent of saoa.vo.

In sawer to this plaintiff wired the Lumber' Company;

"Have wired bank to reduce draft m accordance with your wire.*

- We find letter of February 13th, Written by the defendant to plaintiff corresponding in all respects with what hae heretofore been recited, but asxxng fax to be allowed 33 1/3 pe: cent additional to the oontraot to. take oa,re'.of the rate adjust ment.

March 4th, 1923.

'Frequent demands in writing had oeen made by plaintiff .-'•■on defendant, to all of which no answer was received-.

The only real defense offered by the defendant to this claim is insufficient; evidenoe of sele by plaintiff to¡ the Lumbei 'Company; otherwise admitting liability. The record to our entire .'.'satisfaction proves beyond doubt plaintiffs claim has been established,1 that defendant gave a written guarantee to plaintiff that-it would protect the plaintiff for the difference within ninety days. ■ Defendant, has failed to carry out its agreement.

For the reason» assigned it is ordered, adjudged and decreed,- 'that the judgment of the Court aquo be and tljjfe seme is hereby arfirmed, defendant to pay costs 6f both Courts.1

-Judgment affirmed-


author: Í^JttnESlBpiel; J.

text:
    NO. 8939
    COURT OF APPEAL PARISH OF ORLEANS.
    JOHN LEMIEUX versus GEORGE COUSIN

   Í^JttnESlBpiel; J.

Plaintiff institutes his original suit in the Civil District court, rlleging that defendant was indebted to him in the sum of iSleven thousand Dollars, the cause of action being that on the morning of October 16th, 1921, whilst engaged at work acting as a tong hooker and cutting of logs one of the logs to which he had hooked his tongs in order that said log might be dragged from the swamp and loaded on the log train, became jammed with a limb of a tree and further alleging injuries to his right foot and frank lower part of his leg, which were frightfully crushed and smashed and that he suffered excruciating pain and agony, prayed for damages for injuries aforesaid caused through no negligence on his part, in the sum claimed under Civil Code Art. 2315./'Subsequently plaintiff filed in this same proceeding , after answer had been filed/by the defendant disclaimer and if there viere any injuries they were due to the negligence contribuíory/nagigBH<£E of plaintiff, a supplemental and amended petition that he was entitled under the original petition to receive the benefits of the compensation laws of this State, vhieh included the last amendment made in August, 1920; alleging further the amount of his earnings and that he was entitled to receive sixty per cent of his wages for not exceeding three hun-ired weeks, prayed for permission to file-this supplemental and amended petition, which order was ex parte allowed by the District Judge and which supplemental petition-was not filed.until after several days after the prescriptiBJl period of one year had elapsed.

2o this supplemental petition the defendant filed exceptions , the first was a misjoinder of causes of action, which were cumulated inconsistent with one another and which cannot be /feaaadssaixtagafctoc sex in one proceeding. Also exception of no cause or right of action; and finally exception that the demand for compensation comes too late, tacaHy«iirxha one year having elapsed from the date of the alleged, injuries t,o the date of the filing of this supplemental proceedings', and prays' that the exceptions be maintained in an .to hi s right to seek under the far as/XRS kbpkuwx compensation/ law, and defendant be relived of any liability 4o pleasd.

On argument before the District Court, we find that .the plea or prescription was maintained .as to '■ the supplemental petition for compensation and from this judgment this appeal is had.

Under Act of the legislature of 1920, the 2nd section, amongst other things, provides:

"She Court in its discretion may grant further time for filing the answer or hearing the complaint and allow amendments to said petition and answer at any stage of the proceeding."

In the case of Philps vs. Guy Drilling Co. 143 La. 951, amongst other parts of the decision of that case,.held:

"Where supplemental petition in suit for compensation under Act ifo. 20 of 1914, complying with Sec. 18 paragraph one, a plea of prescription because Original petition set-.-.forth no cause of action, ana supplemental petition was not filed within one year after accident', was without merit."
"A demand for compensation under Act No. 20 or 1914, was no waiver and would not be dismissed merely because urged in the alternative and only if the Court should hold - that- -plaintiff, was not entitled to damage for tort under Civil Code Art. 2315."

In the case of Whittington vs. the La. Saw Mill Co. 142 La. 323. the Supreme Court held:.

"Under Employers Liability Act, Sec, 18; par. 2., granting the Court discretion to allow amendments at any stags of the.proceedings, and paragraph 4 providing'that the ludge. shall not be bound by any technical- or formal rules of procedure other than is'herein provided', plaintiff -seeling t o recover for the death.of the employee under .the law prior, to the enactment of that. Aet should be allowed to amend to show .a cause of action under the act, especially in view of the newness of the-.' prácti'e-,under such act.
"Under tlie Employers liability Act as amended by Act 234 of 1920, providing that an answer shall be filed to the complaint and that the dudge shall not be bound by the usual rules of evidence or by any formal rules of procedure other than those provided for in the Act, an exception of no cause of right of action should be mansxmx overruled itonggte though the petition is carelessly drawn and does not technically enforce a cause of action, its general purport showing it to be for compensation for an accident."

Pierre vs. Barringer, 149 La. 71.

Under the Employers' LiabilityyAct, (Act No. 20 of 1914), Sec. 18, as amended by Act Ho. 234of 1920, providing that the Judge shall not be bound by technical or formal rules of procedure, etc., a defendant neither admitting or denying plaintiff's allegations for want of information was properly permitted to reopen the case and file an amended answer denying that plaintiff was in its employ, notwithstanding tefc pleading Act, (Act No 157 of 1912) See. 1, subdivision 2 as amended by Act 300 of 1914, requiring defendant lacking information to deny the fact.alleged."

Hammett vs. Gilliland Oil Co. 151 La. 70.

Under the authorities and the law quoted, the exceptions of no cause of action, together with misjoinder of causes of action plead to be inconsistant with one another are in our opinion not material and therefore both these exceptions overruled; and the further exception that -the deffiand for compensation comes too late, the prescription period of one yoar having elapsed from the date of the alleged injuries to the date of the filing of this supplemental proceeding , in so far as it affects the claim for compensation is also overrulled for the reasons and the authorities herein cited.

We are of the opinion further that the cause of action as stated in the original petition remains unchanged in so far as the supplemental petition is concerned, except for the fact that the injuries are identical, but that the remedy.is different, tut the result if reached, and the conclusion from the evidene to he taken remains the same.

April 2nd. 1923.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment maintaining the exceptions of no cause.of action, misjoinder of causes of action, and the prescription ox one year, he and the same are hereby overruled, and the exceptions' are without merit, and therefore cannot he entertained.

It is further ordered, adjudged and decreed, that this case he remanded to the Civil District Court for further proceedings and he tried on its merits in accordance with the views herein expressed.

It is further ordered adjudged and decreed that the defendants pay costs of this appeal and all other costs to await" the final action of the Court.

Judgment reversed, and ease remanded for trial on its merits.


text:
    James Davis,Appellant. vs N.O.Public Belt RRD. and Al.
    No.8941
    Charles P.Claiborne,Judge.
    April 2nd 1923

   James Davis,Appellant. vs N.O.Public Belt RRD. and Al.

No.8941

Charles F.Claiborne,Judge.

This is a damage suit for physical injury.

The plaintiff alleged that on June 23rd 1921 his son was run over and killed by a train of the defendant railroad for which he claims $25,000 damages fBom the City of New Orleans, alleging that the " public Belt Railroad " is merely an- administrative agent of the City of New Orleans.

The defendant" excepted to plaintiff's petition on the ground that same discloses no cause of action."

The trial Court"referred the exception-to the merits because of the urgent contention of counsel for plaintiff that if the Public Belt Railroad was to be maintained and operated by the City of New Orleans that,by all custom,and by the ruling of the Interstate Commerce Commission,"operating expenses” necessarily include whatever expenses may bo inourred by reason of damages flowing "ex delioto" from the " Operation" of the road," and that it was authorized by the Constitution of 1913 •to pay all" operating expenses".On the merits,on the authority of Jones vs City of New Orleans 143 La 1073^the Court dismissed plaintiff's suit.The plaintiff has appealed.

In the Jones oase his widow sued the City for the negligent and careless killing of her husband on one of the docks of the City of New-Orleans,by one Humphreyssat .that time Humphreys was a City policeman, assigned to duty under, the Publli Belt Railroad,the defendant herein,and at the time of the sKoo%' It , ing was acting within the scope of his employment." The killing was investigated by the grand jury upon the' charge of murderj the return was "not a true bill* .

The Supreme Couty said that.this return was présump tive evidence that the policeman did not' comalt a■crime,but that even if he had, the City of Hew Orleans could not"T}e held // liable therefor in damages.The Court concludes with the language " We are therefore of the opinion,v/hether Humphreys be considered as an employee of the Belt Railroad Commission,a governmental function,or. whether he be considered as an ordinary policeman,that plaintiff cannot hold the City of Hew Orleans, liable in damages'ex delicto^or his'negligence or carelessnes" See Lamport vs Board 137 La 784-146 La 641-143 La 1077-52 A 429 -434-51 A 880-19 R.C.L.698- 9 A 461-41 A 1031-50 A 417-51 A 683 14 A 120-13 A 275-12 A 858-3 A 566.

The error of plaintiff's argument based upon the theory that damages caused by the running of trains'^eam a legitimate item of responsibility is in assuming that such damages are part of the"operating expenses."

Public owned railroads cannot pay damages for which the Courts decide they are not responsible and therefore such damages cannot form a component part of their " operating expenses."

Judgment affirmed.

April 2nd 1923 .


text:
    NO. 8945
    COURT OF APPEAL PARISH OF ORLEANS

    JACOB FALLO versus NEW ORLEANS RAILWAY & LIGHT CO.
   Dinkelspiel; J

ibis is a damage suit.

Plaintiff avers that on the 21st of Ksrch, 1923 at ten fifteen P. M., his automobile, in which he was riding, w«s'run into ana demolished at the corner of Broad and Onzago Streets, by a St, Bernard street oar, Ho. 300, owned, operated, and controled by the defendant oompany. Averring further tjat plaintiff was going down Board Street in his automobile and had stopped his automobile on the riverside of Board Street nearest to' the curbing a- the corner of Bro;-d and Onzaga Streets, to permit a passenger to alight, and after the passenger had alighted, plaintiff looked to see if there was any street c‘ar coming in either direction, saw a street c;r coming down Broad Street a block and a half away coming downtown, and he turned his -car to the left ana proceeded to arose Broad Street., but so rapidly wps the defendant's oar travelling thet before he could get over the crossing the oar struck his automobile, demolishing same and injured him. Thet defendant's oer was, travelling at an excessive rate of speed in violation or lew, particularly city Ordinance No. 786, Seo. 20, and that asid street oar was travelling at & rete of thirty five miles an hour and after the imps-ct proceeded at leist one hundred and fifty feet before it came to a stop. Thet the motormsn m>'us no effort to check or stop the oar until he >»cs right on top of petitioner, and so-terribl^ wes the blow end impact that the automobile was ikExwnxKam thrown completely around end pushed all the way across the tracks, whilst the car continued on its way for a distance 6f one hundred and fifty feet before it came to a stop. Plaintiff avers that his oar was damaged (describing the damages) in the sum of $150.00, and that he suffered severs and painful injuries, Saxxwhiakx one of his right ribs was broken, his left arm severely bruised, str-iined and twisted, and he suffered a severe nervous shook from which ho h' 3 ret yet recovered, and therefore should recover $1500.00 for his broken rib; $100.0.00 for the injuries to his left arm and $1000.00 for the nervous shook he suffered.

He further averred that the defendant company was in the hands Of the Ksxxx Receiver and that the Union Indemnity Company vas surety for defendant company in the sum of $3650.00 .and he cites and makes said company a party! to this suit, and claims judgment against both defendants for $3650.00, with legal interest from judicial demand, for coste and for general relief. Annexed to his petition is the bond of the Union Indemnity Company.

The defendant, the Railway Company answers substantially with a general denial, admits the furnishing of the bond in question and the amount thereof, and from, information received admits that on the date as set forth in plaintiff’s petition, plaintiff driving an automobile down Board Street reaching Onzaga Street turned directly in front of oar Ho. 300, of the Board Street line, which was then about to crocs over On-zaga Street; averring further that the dsfcsKds driver of said automobile should have known that it was dangerous to go upon the track under the conditions then, existing, and the accident and resulting damage was due to his careless, negligent and imprudent conduot in attempting to cross Broad Street when and as he did. therefore it prays for judgment in its favo#.

The Union Indemnity Company virtually adopts the answer of the defendant, the railway company, and prays that the suit as against it be dismissed.

The ordinance in question wes offered fn evidence.

Mrs. E. Castaing testifies substantially that she lives at 2540 Onzaga Street and that she was a passenger in plaintiff’s car the evening of the accident, he.d been out on a ride with him, she testifies that she was standing on the very corner xkemxahs where she had alighted from the car; the car had come from uptown and was going up Bread Street towards downtown, the oar stopped on Broad Street and Onzags and it came to a full stop* she got out at che curbing on the right h«dd side, after she had alighted-from the oar plaintiff asked her to look down the roed, whioh She did and she reported that the rOad was clear and that plaintiff could go ahead', plaintiff had to cross Broad Street to the other side and when she saw the street oar it vr,s a. block distant and was going at a terrific rate, so fast that you could not see it on the treok, could pot even hear it; after striking plaintiff, the oar went fully one hundred and fifty feet, there was no noise or warning given by the car, she heard no bell ring, there was no one in the auto after she had left it except the plaintiff, after the street car hit the automobile the automobile was between the uptown track' and the downstown track in the neutral ground.

On cross examination she testifies, "I was standing right at the corner, 'more towaras the uptown side, because he nev-er. stopped his automobile at the very curbing but a little further down, right by the tree; aiam*ix*it the automobile when--it., stopped was.--it was .about three feet from Onzaga Street, ■che auto, stood still, plaintiff out. off the power and and remained at this place for five minutes.. Witness further testifies 'that' plaintiff asked her to look and see if the road was olear and she answered perfectly clear go ahead. Sher further testifies, sha looked--both ways, up and down,, nothing was m sight withi» a block away, it was about a quarter past ten at •night, - the. street lights were burning and burning very clear,' Qhe testifies further that she continued to watch the street Car c.oming.-down-and it came at suoh speed that she had hardly time to look up when she'saw the oar had struck plaintiff, and she was- the first one to ruii to nim*

You Say the back -wheel must have been there, 1 did not ask you what must have been, but what you saw. A, X- am. telling you I was so bewildered X can’t tell you just- What happened. at the moment when he was struck. I don't knew whether it was the front vheel on the trvck or whether it .'.as not. He ’.vas just shout to cross when the c -r struck him.
Q, Then he had just gotten on the track when tae c^r struck him? A. Ho must have been.
Q. You were .looking at him? A. Y?s,

The next witness w.a the plaintiff, who after stating th'-t the auto in cuestión «as his property and ..here h3 had been that evening, and that ::e came from the direction of Canal Street &r.d-s->..e turning the corner cx Onzaga in order to 1st his passenger alight, he called to lira. Casteing after she had alighted xrem the csr and asked her if everything was clear and she said yea, she wrs then standing in company rfith her son, witness looked himself and it looked to him as if the o'-r was on the other side of the corner over a "clock off j he then testifies the car slowly sp-’-eded along and drove his oar to go right across, he thst peculiar effect you will hear emc on a break, and saw no more, he w-s hit. He testifies there was no bell rang, th't there ¡vas no noise only the screech of the brake, as if putting it cn the second' time; the car wes in the middle of the block b'fcre it struck him, the oar struck the middle of the auto.

Q. How much longer would it have been before you would have been clssrk of the track?
A. I would imagine, I can't say what time it would be, bun I figured I had lots of room, lots of time,- lots of clearance,

I can't imsgine where che man cerne from. And the Ford is a ^uick pick-up car; it is not a dreg, it goes right along.

He further testifies that he looked over.his left shoulder and saw the csr at least a. block away before he started to cross, and in order to reach the rail, he-was about five feet down near that curbing, towards the corner, the width of the street to the curbing is two or three £eet from the car traok and he started, to cross

In describing bis injuries be says tbst be could not get bis breath, could not understand what tb&t was, I said'I wasn't burt, and this ledy said, You must be, because you can't talk. He called on Dr. MoGuire a few days later and be made him go to'the Chai'lty Hospital to have an x-ray taken of the rib, end be worked on me for a broken rib; be suffered much --pain, he also suffered from the injury of bis arm, but the doctor told him that bis arm was not- broken. He testified th:-t it cost him ¡$150,00 to fix up his auto. On cross exam in's t ion be was asked:

Q. You turned on Broad street from there? A, I turned off-
Q'. I mean before the accident, where bad you turned on to Broad Streetí- A. I don't remember exactly. I was trying to think what house we went to.' axXxxxxtxsslxiss
Q, You don't remember where you turned on Broad Street? A, Ho sir. üíbetbsr on Esplanade, or whether we came cut TJrsuline or Dumaine, I don't remember what way we turned in.
Q. When you got to the edge of the curbing, or in line with that curbing on the nedtral ground, did you look again to see where the street oar'wss,- if it vías coming? A. Ho.
Q. Tihy? A. When I did.look the nar was on the other side of tie 'square, and I didn't'think it could-coma that, quick.
Q, And you -didn't listen, to sec- if any oar- might he there— whether it might here crept up on you? A. I didn't hesr any noise coming, until in'a seoond- I heard like putting the tosáis brakes on in a tight pinch, bn'.the ¿second tuin.
Q. -Vihene* was your automobile then? A', - it'struck me then. I. don''t-knowl.whet happened then;'I fell-down, in -the oar,
Q, There must hare .been some space".of -time from the time you heard. thts: brake movement, or. heaftd the no lee'from .the putting on of. the-brakes, tofthe time'you were hit;- There must hare been-a-.'fra'otiori of time?' • A. Thvt could hare been.'the' snapping of' yóu^. 'fingers.
Q, You had time to sense that the oar was on you, didn’t you?
A. When I heard that peculiar noise.
Q, Your oar had not been hit at that time? A, Ho, sir,
Q. Did you see the street oar then? A, X heard the noise,
When I saw the oar it had already hit me.
Q. When you sew the car, as you say a block away, did you know how it was moving? Was it moving fast., or slow?
A, I can't say that, because I didn't turn around to look at it any more. I ventured across,
Q. Vfhy didn't you look just before you got on the track! why didn’t you look again, to see if it was -coming? A, X felt like I had good clearance. There was something radically wrong, that he caught me that quick.»
Q. I am charging, in my answer, that there was something wrong with the operation of your automobile! that you didn't look before going on? A. Well, and I had her to tell me it was all right. I thought that was good assurance.

Joseph Castaing, the next jiííebrs* witness, is the son of the lady who was a passenger in the oar, and was waiting for hds mother the night of March 21st, and was standing oppoait the street oar when it hit the automobile at the oomeh of Broad & Onzaga Street*; he testifies that the street oar was fully a block and a half away before plaintiff started his auto, the car was ooming towards St. Bernard Avenue, and he stated plaintiff started to go across, he heard plaintiff ask whether everything was clear before he started, he,the witness-, answered go ahead Mr, Fallo, it is alright., and his mother said the same thing. Witness did not hear any warning, no bell rang, if there had been one he certainly would have heard it, he identifies the phaisi photo annexed to the record and offered in sxxst evidence, as the correct position of the auto*

The first witness in behalf of the defendant was a Mr, Filie, he was sixty four years of age and employed as n collegt- or for different societies. On the night in question he was £5 a passenger on the street oar.

He was ashed:

Q. We are investigating an accident that occurred on the 21st of March, 1923, at Onzaga and Broad Streets, sometime about a quarter pest ten in the evening, where a oar on Broad Street and an automobile tried to cross the street at the same time .and had an accident. Were you there at the time?
A. Yes, sir. I was on the thirds third seat of the car, of the street oar. There was nobody in front of me to mask the view,

1 was on the right side of the oar., river side of Broad Street, the oar was going in the direction downtown, towards St. Bernard. Witness testifies that the oar that was hit tried to cross the Btreet right in front of the street oar.

Q. How fsr was the cer away -from Onzaga Street at the- time the Ford started across? A. About ten or fifteen feet from the corner.

Witness further testifies that the street oar was going possibly about ten or fifteen miles, that the .gong, was sounded on approaching Onzaga Street, he testifies that the mo torrean tried to put the brake on the oar, oouldn't do it, couldn't stop the err, but. after the colllssion the oar stopped about fifty, feet from the other side of Onzaga Street.

Q. I am talking about after the accident, now, was the Ford on the left-hand side of the downtown track, or Oft the right-hand side of the down-bound track? a* On the left.
G. It was on the space between the up and the down tracks?
A. Yes, Sir.
0. And the street car, the rear end of it, w.ss about fifty feet from Onzaga? A. About.

This witness on his cross examination, did not in any manner alter or change his statements of his examination in chief, and on his reexamination by defendant's counsel!

Q. What I wa.nt to get particularly, if you pan give it to me¿ is this, when you saw this automobile.' turn as if to go across the street car tracks, how close was it to the street car track when the motorman rang his gong, how much space was there between the head of the automobile spad the street cart A.

About half a block before the crossing of Onzaga.

Q. I don't mean when he rang the bell the first time, there, hut when the man started to turn to go across the street, did ■the motoraan ring his gong again?
A. Yes e'ir.
Qi How mush distance wee. there then from the automobile to the street oar .track, when he rang the bell again? A. About tea feet..
Q. X don't mean how far the street oar was from that place., but how far sas the automobile from the car-track? A, The automobile tried to pass before the car, when the car was at the corner, tried to areas to the other side of the street.
Q, Well, what I want is this: you said you heard the motorman sound his gong and he tried to stop the oar. How close waa the as-automobile to the oar track at that time? A. He waa on the car trackj when the car o.ame to the corner. He tried to cross the track. When the oar reached the corner he was on the track.
Q> 'When you saw him did you see him in motion, the automobile? Hid yon see him moving? A, Ho.
Q. You didn't see the automobile moving? A„ Oh, moving, yes, sir.
moling Q* How close was he to the osr track when you first saw him/erstag towards the oar track? A, A few feet about 4 or 5 feet*

The next witness was J. H. Damon, who has been connected with the street oars for about fourteen years, bote in Algiers and Hew Orleans; witness testifies that he wa3 the motorman of the street oar on the 31st of -March 1933.

0,. An accident occurred at Onzaga and Broad Streets, on liaxoh 31, 1.933, about a quarter past ten, were you the motorman of a oar which had such an accident? A. Yes,
Q,. Do. you. remember bow you were running, on approaching Onzaga Street® A. Running .on full speed; At the. rate of eighteen miles an hour,
Q. Where was1 your street oar when, you first-saw the -automobile coming towards your track? A, When’1 first noticed-the ^.uto^' mobile, X was. in the middle-of ’ the square before you .’get- to ;Onza~-ga Street. The automobile was going in the same direction-I was going, going down Besad street.
Q. And how dose. to Onzaga was the'Automobile?-A. I not iced. him/, about the middle of the-block,, first, I suppose, X was going-down! He was going' in’the same direction-.’ %en I got about twenty feet from the' crossing of -Onzaga Street the automobile, shot -Across ’in. fronx of the-ear.and hit the render on the left hand pitte,’.hatch! ing his hind wheel,- turning the oar" around" thifc .way,- turned the; head or his o ar.uptown, .on the left hand side or the'track.
;Q. 'Your caí -stopped -after the•• accident? .4.-Tes/; sir. ' J.stopped in a - distance, of’about 125 fee-f.
(J. When'you saw him-, turn to go.-across zaga Street, were you? A.'About-twenty feet..'
Q, .Jftafr: did/ymt: ho? 'A. --I-. sounded- my -gong-'-and; 'refereed my: car /-right' of ff also used the brake.-
Q; -Could you. stop-the,o ar any-.-quiouef - -’than-- you. did? /.AV Ho sir/' impossible-, .at the speed. I was going!
Q. How close- was the, automobile to "the’’street- car track’.when yOu sounded your gong? 4,. I -notiéed -the automobile .running- in'f-r.ont’ of me. When I- saw hi»,- he;took -the sheer-to. cross the street;.to?;™ ards the woods, and-1 struck my gong immediately ¿na grabbed''mjy-brake. X had hold of the brake and oheoke’d-'-my -oar right' quick'.,
Q-. Tou didn't get the .-’question..- I' .aakedhowf&r was'the ..auto-, mobile from the street car track when you sounded youi„ gong?
A. .1 should judge he was about-twenty some odd feet/ at-thO most. That is how I noticed him xo cross, thf.t -is why.-X sounded my gong»

The next witness in behalf of the defendant was Philip Eotrugllo; this witness was a conduct or for the street oar company at the time of- the accident and had been suoh for about five years ;at the time Of-the accident'he was on. the rear-end of the oar, heard the crash, his oar was stopped after the.accident and he went- out to find out what was the oause of it, the street car ran about twenty five or thirty feet, the automobile was on the nettral ground between the .up and down tracts,

Onooross examination:

Q. How fast was th?t street car going that night? A.. Well .the ■motorman'had it on full speed, 9 points.

My idea is that, this car oould not go over eighteen miles an hour. Witness describes the jolt of the oar when it hit the automobile, .and that was the first he knew of the occurrence* He testifies on reexamination that a gong was sounded.

Q. How Mr. Woodville asked you something about the motion-of the car, if the crash was the first thing that you felt. I understood you to s.ay something about yes, and at the same time .the .ao.torman put on the- brake. How did you feel that, how did that come, the brake first and then the crash, or how? a. F.elt the aotormSn jamming his'brake, and then hitting just as he was doing $ nut ►

a passenger in the-’oar The Other witness, Mr. Blftom, who was/wksal at the time of the accident, was ci asleep and the crash awake him, knows nothing of the cause of the accident in question.

The testimony of Kami, taken by consent outside of Court gives very little -information one way or the other on the subject*

Considering the testimony pro and con, which is as usual in case? of this character, muoh at variance and at times contradictory, we are of the .Opinion; that the- plaintiff in this oase, whilst conversing with Mrs. Castaing after she had alighted from the car, drove his car on being iiirausxáifcyxihaxaxMiiíijmsjt informed by this witness, and possibly h r- son that there was nothing in sight and that the ooast was olear, ne drove his auto in the same, direction in which the street oar was coming, and whether he did so prudently or not, it was his duty bpfore attempting to cross the track to look and listen to determine whether that' attempt should he made or not. This he did not do until .it' was too late, and it has heen frequently held hy this Court and by the Supreme -Court of this Statej that one, before pax crossing the street oar track must at his peril, look and listen, and if he fails in this he cannot recover damages for any injury which toe may sustain»

The case of St&cx Snider vs. N. O. & Carrollton Railway Co, 48 An. p. 1, is to this effect.

In the case of Heebe vs. N. C. & C. R. L. & P. Co. 110, La. 970, the Court held:

"The recognised rule is that, before attempting t0 cross a railroad track, a persons hould stop, look and listen, and it wtll hardly, do to substitute fór 4t a rule to the effect that, being at a distance from a crossing, towards which he and an electric or eteam bar are traveling, he may then form .an opinion as to which of the two will get there first, and, acting upon that opinion, assay the crossing without giving himself .further concern upon the subject."

The same doctrine is announced in Durbose vs. N. C. Ry. & Lt. Co, 123 La. 1029, and in MaShane vs. N. C. Ry. & Lt. Co., 137 La. p. 830 the Supreme Court saye;

"One who attempts to drive a wagon- across a street railway track- in front of an approaching street car that could and .should, with reasonable csre be seen and heard approaching^ is guilty of negligence, and is no.t entitled to damages for injuries received from a oolliasion with the. stress oar,11

And in the 141st La. p. 1101, Tucker vs. I. C. R. R. the. court held:

"Ho failure cn the pert of the railroad company 'to do its duty will excurs anyone from using the senses of sight And. and Rearing upon approaching a railway crossing; and whenever the due use óf mthur sense -would hive enabled the injured person to escape the dtaKga: danger, the injury is conclusive evidence of-negligence, without any reference to ths railroad's fíilúre to-perform its duty." ■

Citing numerous authorities.

And in Leopold vs. T. & P. R. R. Co., 144 La. 1000, the court denied a recovery to plaintiff who vft.3 in an automobile driven by his son, and had almost crossed the tr- ok when 'it «ye.- struck;, the Court held, that though ths. engineer failed to 'cund boll or whistle and did net see the automobile until it wse struck, yrt plaintiff could and should have seen the train before going upon the tr'ck, and not locking cut for it 'was negligence, barring recovery.

The same doctrine ,vus applied in Mchren vs. N. O. Ry. & L. Co. 147 La. 345, wherein the driver of a brewery vftgon, injured in a collission with a street car at the corner of Chippewa and fourth Streets, was denied recovery, ths court holding:

"He' either did not look up,the street at the foot crossing, or, seeing the car coming at a swift rate, ho miscalculated the distance, or the time in vihich it would te.ke 'him to cross the track in safety. In thus acting he neglected to do his duty; and, though ths meterman may .also have been at fault, the injury must remain where it h«s fallen, as the fault of the plaintiff was the proxinr.te oause of ths injury to him.'"

From the foregoing authorities, and others, we are of the opinion, that plaintiff in attempting to.cross the trick as he did, whether he looked and saw the ccr coming at a rapid rate of speed or not, undoubtedly took the.chance, and unfortunately was caught in the accident, which caused the injuries to hiraself and damage to his automobile, and for which the defendant oannot under the circumstances be hold ^responsible.

April 30th, 1923.

For the reasons assigned, it is ordered, adjud decreed, thet the judgment of the Court ¿-quo bo annulled vsrssd and- set aside, and th?t there nor- be jttdg.-.-snt in defendants, costs of both Courts tc bo pi-id by pi:., iitiff ¡red and » re~ f-ivor of

-Judgment reversed and rsn-dored-


author: Charles P. Claiborne,Judge.

text:
    Thos James,tutor vs City of New Orleans,Appellant.
    No.8950
    Charles P.Claiborne,Judge.
    June 25th 1923.

   Thos James,Tutor vs City of New Orleans,Appellant.

No.8950

Charles P. Claiborne,Judge.

Plaintiff sues the City of New Orleans for $20,076 for injuries received in falling into a manhole on the sidewalk.

At about 3.30 P.M. the plaintiffs' mother was walking upon the sidewalk of Common Street;when she reached a point near the entrance of the St.Charles Hotel she stepped upon an ¿7T iron lid or plate covering a manhole upou,the sidewalk_near the /to- / é>~ streetjthe lid ty?£ed;her foot and leg fail into the hole,she suffered injuries which are ’alleged to have brought her to her-death.Por this her .children filed this suit.

The photograph of the sidewalk and of the manhole are in evidence.

The case was tried before a jury who rendered a verdict of $3500 .The defendant appealed.

The law of the case is settled by abundant decisions.

In Lemoine vs City 151 La 565 the Court said:

"Municipal corporations owe it to the public to keep the sidewalks in such a condition that pesdestrians who are ordinarily careful will not be exposed to injury.The right of the citizens to recover damages for injuries sustained by reason of the failure of the municipal corporation, to discharge the mandatory duty thus imposed on it is beyond question".

quoting many'authorities.134 La 820-3 Abbott 1001 S 1014 p.2307 Elliott S 793-126 La 598-112 La 599-105 La 271-106 La 458-104 La 348-43 A 327-41 A 1035-leading case 30 A 220 - 2 Dillon . Sec 788 .

The question arises what is the extent of this Mandatory duty? The answer is found in the decisions and in commentators. 16 Am.Dig 789 : " A City is not liable for latent or unseen defects in its sidewalks not discoverable by the exercise OÍ ordinary care}' and- if' a sidewall: at the time and place of an alleged accident is in a reasonably safe condition for ordinary travel 'thereon by. persons using such degree of care and .caution a.S- reasonably prudent persons would use for their safety,the Bi'ty is not 'liable for- injuries resulting from its use".See 134 La 826 .3 Abbott Mun Copr S.1019 p.2313 " Actionable negligence cannot b'e predicated upon -the exie'tance of a latent defect which it is impossible to discover through ordinary agenoies or means- by the exercise of ordinary care and diligence".53 S.W.210-97 N.E.795-104 Pac 660-90 Atc.782 -88 N.E.188-128 S.W. 819 .

6 Mc Quillin S.2815 :

" If a defect in a street is a latent one,notice thereof will not be imputed to the municipality,provided the defect could not have been' discovered by the exercise of ordinary care xxx if there is no reason to suppose the existence of latent defects they need not be searohed for.3 Abbott A S.1041 p.2342.

It is also the law that in order to render the municipality liable it must have had notice of the dangerous condition of the sxdewalk.125 La 356 .

3 Abbotte SM 1034 p.2328:

" The existence of a liability depending absolutely upon the.possession of knowledge of the defect by the publio corporation,it is therefore necessary for the plaintiff to show ■affirmatiyely in all oases notice either actual or constructive of' the particular defeot causing the injury complained of and the lapse of reasonable time thereafter within whies, it migfefc have bean Remedied in the exeroise of ordinary, care and diligence as depending upon the circumstances of that particular Casa",Also 3 Abbott §.1026 p.2321-30 A 220 .

Actual notice is notice to an officer'of the munipi-'peSiity oSarged'with the .duty of .maintaining sidewalks in good condition or seeing that they are so maintained.

In the absence of actual notice a City is only liable for defects in sidewalks as are apparent.16 AH.Dig.789 125 La 859 .

" The municipality is chargeable with ( constructive ) notice of such defects as ordinary care and reasonable diligenoe would discover^ and the fact that the defect is open to common observation is constroutive notice" 6 Mc Quillin S 2813 -30 A 220 .

S 2814: " If the defect has existed for such a length of time that the munioilality in the exercise of ordinary care, ought to have discovered and remedied it ,notice of the defect will be imputed to the municipality" 3 Abbott p.2333 S 1038-125 La 356-112 La 599-43 La 334 .

The nearest case to the one under consideration that we have beena able to find is that of Lorenz vs City 114 La 802 where a child stepped into a small hole in a plant forming part of the cover of a rire well in a street.But in that case " three witnesses stated that the plant was rotten;two of them testified that the hole had been in the plant for several months;plaintiff testified that he saw the hole in the covering about two weeks Before the accident;the hole in the •rotten plant was about four inches wide xxx the plant was rotten, and the hole produoed by decay had been visible for several weeks,if not months".

But in this case the manhole was made of iron,it lay flat,on a level with the sidewalk,and there was nothing about to indicate any defect in it,except that it looked old.It was only when one stepped upon it that it was discovered that it tilted.lt is not contended that the City' ever had any actual notice of its dangerous condition;nor was there anything about the 444 exterior appealance of the lid or of the manhole suggestive of a defect.The Oity was not bound to make any minute Investigation or experiment -to test the condition of the manhole. It was hound only for ordinary oare and reasonable diligence / in ascertaining its outward condition.In the condition in which •'N^the manhole was the only way by which the Oity could have ascertained its true condition would have been/walk upon it^or to have raised the lid^and to have made a close and minute inspeo- ^ tion of it.This would have amounted to extraordinary dillgenoe ^ which the law did not demand.lt had no occasion to do that as as that particular defect had not been sailed to its atten-. tion and was not apparent.

Witnesses testified that others besides- the plaintiffs' mother,had slipped upon the manhole and had .received Wjinjury.In the absence of proof that those accidents had been sommunicated to the City authorities they would not serve a® / evidence of actual or constructive notice to the City.They 1 would not add to the outward appearance of the manhole,but Vj would only serve to establish that there was a latent feature f danger in the manhole.

6 M.c Quillin S 2727:

"Prior accidents at the precise place where plaintiff was injured and caused by the same defect or obstruction^ do not necessarily show negligence on the part of the municipality. If the full description of the alleged defect in a municipal* case shows that it was not naturally dangerous,and must almost * inevitably ocour'in the many street^ miles of City^unless a ^grievously burdensome degree of care and expense is to be ^ exacted,a recovery will not be allowed even though witnesses J.0 testify to prior accidents" 86 N.E.833

It is therefore ordered that the judgment herein be reversed and set aside,and that there now be judgment in favor pf the defendant rejecting plaintiffs! demand at theS?- cost id i both' Courts.

Judgment reversed.

June 25th 1925.

¿¿/¿X


text:
    David H.Culligan vs Ant.Cantone,Appellant.
    No.8954
    Charles F.Claiborne,Judge
    April 2nd 1923

   David H.Culligan vs Ant Cantone,Appellant.

No.8954

Charles F.Claiborne,Judge.

Plaintiff sues for a broker's commission on the following contract:

Hay 26th 1920

X hereby appoint David H.Culliganxx my exclusive agent and authorize him to sell my property 2426 Philip Street for $3500- xxx I agree to pay David H.Culligan,my agent,a commission of 3 per cent of the total sale price,which commission shall be considered earned when the agreement of sale is signed and deposit made by purchaser xx In event of employment of counsel or suit by my agent to enforce this contract I agree to pay Attorney's fees not exceeding 25$ and costs of suit and etc .

" Signed." Antonino Cantone -

Plaintiff alleged that he received from P.P. and M.Hampton an offer in writing for the purchase of said property for $3500 on terms and conditions which were accepted by Cantone in writing,together with a deposit of $100 ; that plaintiffs services were completed at the time of the signed*» signing of said agreement of sale by the Hamptons and Cantone,and his commission of $105 earned.

The defendant excepted that the Court was without jurisdiction.Section 91 p.66 of the Constitution of 1921 confers jurisdiction upon the City Court of the City of New Orleans" of all suits for moneyed demands above $100 and not exceeding $300 exclusive of interest./The Constitution went into effect on July 1st 1921 p.127 and this suit was filed July 15th 1921 .

The defendant admitted having signed the card containing the contract but denied all the other allegations; lia specially" denied the other facts charged in the third paragraph of plaintiff's petition for want of.knowledge of the printed matter in the card above described which was not explained to him,and which he could not read himself because of his lack of knowledge of the American language;he denied the offer of purchase of P.P. and M.Hampton,and his acceptance thereof, and receipt of flOO .

There was Judgment for plaintiff and the defendant has appealed.

In addition to the authorization of sale by the defendant to the plaintiff .copied above the record contains Í r an offer to purchase signed by P.P. and M.Hampton for on terms and conditions therein stipulated.At the bottom .of this offer is an aoceptanoo in .these words signed by the defendant: 8 I,the owner of the above property accept the above offer on the terms and condition stated,and agree to pay David H. Oulligan three per cent commission on the sale.X hereby acknowledge reoeipt of flOO being the first payment on the above,"

This agreement of sale signed and the deposit of flOO entitled the broker to his commission under the express terms of the contract.

A plea is made that the defendant did not know how to read English.

Judgment- affirmed. Judgment

April 2nd 1823


text:
    Geo.Piazza vs Anthony Lala
    No.8960
    Charles F.Claiborne,Judge.
    March 5th 1923.

   Geo Piazza,Appellant. vs Anthony Lala

No.8060

Charles F.Claiborne,Judge.

Plaintiff is suing for attorney's fees.He avers that he is a practicing lawyer}that from April 1st to October 1981 he continually rendered professional services to the defendant;that those services consisted in consultations and professional advice sought by defendant relative to his interest in the Bien-ville Ship Trading Company owner of the Ship Augustina;that the consultations were on an average of 'two a week;that he perforated all services required by him by defendant to protect his interest in said corporation,And that they are worth three hundred dollars and more.

Defendant denied all the'allegations in plaintiff's petition contained.For further answer he averred:

" That defendant was president of a corporation known as the Bienville Ship Trading Co.Inc. a. concera which is now defunct and insolvent,and to which plaintiff rendered some legal services not of the value claimed herein,and plaintiff is seeking to re- ■ cover from defendant,personally,for the debts of the said corporation."

An exception of vagueness had been filed and overruled. But inasmuch as the petition claims for all services rendered from April to October 1981,and the defendant does not seem to have judgment of the Court te. these exceptions,as the judgment in * this case will form res judioata for all services of every nature during the period above specified.

Dpon the merits there was judgment for the defendant,and the plaintiff has appealed.

The questions for determination are: Were the servioes of plaintiff rendered to defendant individually^or to him as President of the Bienville Ship Trading Oo.^and is their value $300.00 1

The facts are that the plaintiff is an attorney at law . About the year 1919 the plaintiff drew vjt the charter of incorporation of the Bienville Ship Trading Oo. and was paid for it. The Capital was $50,000.00 and the stock was owned by the defendant Lala and by Stephen Carra.,and Rev Raymond Carra was donated one share.

The officers were Anthony Lala,the defendant,President, Stepí&n Carra,Vice-Preáident,Secretary-Treasurer; and the Board Trot Directors was composed of the above named officers and the ^ s*— Rev.Carra,although he did not know it,and never attended^meeting of the Board.Subsequently two other persons became stockholders for $500 and $1500 respectively.The defendant is a butcher and says he knows not how to read or write.

The corporations' only asset was a vessel named the "Augustina ".

In 1919 the Company made a contract with one Riplinger, of Honduras,by which the ship was to'engage in the fruit business between Honduras and Tampa,FloridajRiplinger was to reside in Honduras and attend to the business,and divide the profits. Stephen Carra was put in charge of the ship as manager and was ✓yv*-■' sent to Honduras to consúmate the above contract.Instead of attending to this business,Carra diverted the ship to a pleasure trip,registered the ship in his name as owner,in Honduras'and even sold it to a third party.

Riplinger^ from Honduras ^informed Lala of the above facts in a letter addressed to him,care of the plaintiff.The letter was received about April 1st 1921 and delivered to defendant. He did not produce it iin the trial of this case.He then consulted with the plaintiff concerning the means of recovering the ship. The plaintiff advised putting the corporation in the hands of a receiver.But the defendant and the Rev.Carra refused their consent.

Plaintiff then visited the Consul of Honduras,and prepared affidavits establishing the ownership of the ship in the Company,and not in Stephen Carra,and mailed these affidavits to the Consul of the united States in Honduras and corresponded with him on that subject.

About that time Mrs Elsie Ramos claimed that she had purchased from Mr Carra his interest in the ship,and employed an Attorney to assert her rights.

Defendant placed the matter in the hands of plaintiff, who made investigations,wrote an answer to the attorney of Mrs Ramos,in which he stated that since January 15th 1921 Stephen Carra had sold every share of stock to his wife.Nothing was further heard from Mrs Ramos.

The next matter was a demand of Vaccaro Bros upon the defendant for ihe payment of a bill of $900 for coal sold to the ship Augustina.This olaim also the defendant put in plaintiffs' hands for attention.On August 11th plaintiff addressed a lengthy argumentative letter to Vaccaro Bros,for delay.They answered requesting to have Mr Lala execute a 60 day note,duly endorsed for the amount due".They did not prosecute their claim.

The nature and extent of plaintiff's services is thus made apparent.Not only was the Bienville Ship Company insolvent even if it had recovered its ship,but the ship itself was lost to it..Piazza and tala knew those facts.No one is presumed to work for nothing.The Company being insolvent and unable to pay, we cannot presume that Piazza looked to it for payment.Lalla had no right to assume that Piazza was working for nothing,as he must be,if he looked to the Company. Being entitled to receive payment- for his services Lalla must have known that he would have to pay.

¿† Who» one receives the services of another he must pay for them,unless it is expressly agreed or impliedly understood \r¡ the creditor that some one else is hound for them.There was express agreement in this oase.The implication that the Oom-^pany alone would he liable is far fetched in view of the faot the Company was insolvent .While the services rendered hy the /plaintiff w inured indirct^ly to the benefit of the Company,they were performed at the request of the defendant and primarily 3 & for tfeejjis benefit.The interests of the Company were secondary in La;La i B mind,as the Company was insolvent and he was to get nothing from its assets.He tried to save those assets and to put' off creditors.for plaintiff to be reimbursed for the large sums he had spent.If Piazza had sued the corporation,it is likely the parties in interest would have denied the authority of Lalla to employ Piazza without a resolution of the Board of Directors. The President cannot bind his corporation by a contract not authorized bv its Board of Directors unless it is an act of simple administration. 33 A 58-132 La 829<839) .

But we think the amount claimed by the plaintiff is- in excess of the value of his services as fixed by himself.In estimating his services the plaintiff says} " I,suppose §2 a visit woPpM^havo^heen fair or is fair"-ftndn5ttig tlje number of visits to^two a week^would make about tr 54fat |2 each,would make fioe.oo .

It is therefore ordered that the Judgment herein be reversed and avoided,and it is now ordered that the defendant Anthony Lala be condemned to pay to George Piazza One Hundred and eight dollars with five per cent per annum interest from Novemv.or 4th 1922 till paid and all costs of suit.

Judgment reversed.

March 5th 1923.


text:
    LOUIS MOHREN VS NEW ORLEANS BREWING CO.
    NO. 8962
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDSE.
    APRIL 2, 1923.

   By WILLIAM A. BELL, Judge.

So .plaintiff's petition for compensation under Employers' Liability Act, defendant has filed the following exceptions:

"Bow into court, through Undersigned counsel, comes the defendant, and excepts to plaintiff's petition, in that the same is vague and indefinite and sets forth no legal oause of aotion.
"Wherefore, defendant prays for the dis-miaal of plaintiff's suit at his costs and for all general and equitable relief.
"(Signed) Edward Rightor,
Attorney for defendant."

Plaintiff has appealed from a Judgment of the trial court reading as follows:

"It is ordered that the exception of no oause of action filed by defendant, on October 15, 1917, be maintained, and, accordingly, the suit of the plaintiff, Louis Mohren, against the defendant and exceptor, be and the same is hereby dismissed, at his costs.
"Judgment read and rendered in open Court June 20, 1921.
"Judgment signed in open Court June 24, 1921.
"(Signed) H. C. Cage,
Judge."

Ihere is nothing in the language above quoted to enlighten us as to reasons for judgment. In argument and brief counsel for defendant and appellee urges fflifc^irmation by this oourt of the above decree upon the sole convention that the exception of no oause of aotion filed by defendant is based upon the failure of plaintiff to charge in his petition, either directly or indirectly, that the alleged injuries were caused by any accident arising out of and in the course of employment. The case of Arthurs v. Alexandria Lumber Co., Ltd., 143 La., 207, is cited in support of this contention.

Assuming that the exception of no oause of aotion was argued before and maintained by the trial court solely upon the point above cited, we pasato the consideration of its application to the instant case.

Plaintiff's petition sets forth, among other averments, the following:

" I.--That on Jims 88, 1916, and for many years previous, he was in the employ of the Hew Orleans Brewing Company, of Hew Orleans, as a driver, at a wage of $28.00 per week.
n II.-That on that day the team and wagon driven hy petitioner was run into By a street oar in this city, and petitioner was thrown out and received injuries which produced permanent total disability to do work of any character.” -- -

There i3 nothing from the above allegations nor from any other portions of plaintiff's petition, as we read it, which would show-directly or indirectly, that the injuries suffered oy plaintiff were those caused from an accident arising out of and in the course of employment, within the provisions of Section 1, Par. 2, and Section 2 of Act 20 of 1914. In Arthur v. Alexandria Lumber Co., Ltd., (143 La., 207), similar averments were declared sacramental by the Supreme Court, the said court affirming the lower court In maintaining exceptions similar to those now raised in the instant case. In the above-cited case the court said:

"Plaintiff sues in damages for the death of her hushand, which she alleges occurred while he was in the employ of the defendant company. She does not allege that it was 'by accident arising out of and in the course of such employmentand beoause of the absence ,of this allegation the defendant contends, very properly, that her petition shows no cause of action under the Employers' liability Act, * * * The plaintiff's husband having received the injury by reason of his having been in the building at the moment of the flash of lightning, the cause of action of plaintiff depends altogether upon whether the defendant was responsible for his having been there at that moment. * * * Very true the petition says that the deceased was in the employ of defendant, but this is not equivalent to saying that his employment necessitated his presenoe in this building."

The above authority and the reasoning upon which it is based might very properly apply to the case now before us. However, counsel for plaintiff and appellant herein, urges us to follow the mere liberal and equitable course pursued oy the Supreme Court in the case of Whittington v. Louisiana Saw-mill Company, 142 La., 327, in which case the court held:

"She plaintiff's petition i3 lacking in several allegations essential for showing a cause of action under the Act; hut we think that, in view of Paragraph S of Section 18, g? the court discretion to allow amendments fat any stage of the proceeding' and of paragraph 4 of the same section, emancipating oases under the Act from the 'technical or formal rules of procedure,' and in view of.the newness of the practice under this Act, plaintiff should he allowed to amend. However, the request for being allowed to amend not having been made in the lower court, but in this court for the first time, the cost of the appeal must fall upon plaintiffs."

The same ruling was held in the case of Pierre v. Barringer, 149 La., 71, the syllabus reading as follows;

"under' the Employers' liability Act, as amended by Act 234 of 1920, providing that an answer shall be filed to the complaint, and that the Judge shall not be bound by the usual rules of evidence or by any formal rules of procedure other than as'provided in the act, AH EXCEPTIOH OP HO ¡CAUSE OR RIG® OP ACTIOH SHOUID BE OVERRULED, EEHOUGH SHE PETIT IOH IS CARELESSLY DRAWS AHD DOES HOT TECHHICALLY EMBRACE A CAUSE OP ACTIOH; ITS GEHERA1 PURPORT SHOWIHG IT TO BE A SUIT POR COMPEHSATIOH POR AH ACOLDEST."

After examination and analysis of/the above-cited oases, decided within a year of each other, and in each instance having as the organ of the court our esteemed and recently retired chief Justice, we hesitate to conclude that the court, in its later decision, could have intended in any manner to reverse or qualify its ruling in the earlier case of Whittington v. Louisiana Saw-mill Company.

It does not appear that in the Arthurfc case any motion was made to remand with leave to amend, as in the Whittington case and also as in the instant case. This fact probably explains the court's ruling in the Arthur# case and its adherence to the harsh observance of procedure, against which the Employers Liability Act has particularly provided.

We think that in the instant case the needff- of justice will be more certainly subserved by remanding this oase to the district court with leave to plaintiff to amend.

IT IS, THEREFORE, ORDERED, ADJUDGED AHD DECREED that the Judgment herein appealed from be and the same is hereby set aside; and that this case is hereby remanded with leave to the plaintiff to amend his petition, the plaintiff to pay the ooat of appeal.

CASE REMANDED WITH LEAVE TO PLAINT IBT TO AMEND PETITION.

APRIL E, 1923.