text:
    NO. 8604
    COURT OF APPEAL PARISH OF ORLEANS
    STATE ex rel LOUIS MEYER versus ESTATE OF MRS. SARAH GRIFFIN, widow of GEORGE BRADFORD HOLMES.
   Dinkelspiel; J.

This is an application for writs of prohibition and mandamus, dlr'eoted to the Honorable Fred D. King, Judge of dsion.’’B" of the Civil Distriot Oourt for the Parish of rleans, and the olalm is that, relator filed in the Civil Distriot Oourt, executory proceedings against the Estate of Mrs. Sarah Griffin, widow of George Bradford Holmes; further alleging that the heirs of the said Mrs. Griffin reside outside of the State of Louisiana and that the Honorable Fred D, King,9ne of the Judges of the Civil Distriot Oourt, to whom said proceedings were alloted, appointed Meyer S. Dreifus, ourator ad hoo, to represent the said estate and the absent heirs of the deceased. Alleging further that said ourator ad hoo filed a suit to enjoin the said exeoutory proceedings, suggesting that the obligation.sued upon was (MMlptkMl and praying that an injunction without bond shoiB-d issue, and that relator having been served with a copy of petition for injunction and oited to appes-r and answer, filed an application direoted to the plaintiff, ordering him to furnish bond «.s seourity for oosts, whioh motion was granted and bond fixed at the sum .of Twenty Five Dollars. Subsequently, ourator ad hoo, having been served with the notice to give bond, moved that said order, be annulled, whioh motion was granted b$ the Judge and the order annulled. And alleging further that under the law, in any suit.or proceeding, a defendant is entitled to security for costs, and. that no proosedings can be hand in any suit until euoh seourity for 'oosts has been furnished and that in violation of law and the rights of relator, the Judga of said Oourt, annulled the order for bond, henoe this application for mandamus.

The Judge in kiaxa his return says that the relator in this case, Louis Meyer, is the original plaintiff in suit Ho. 140,859 of the Docket of the Oivil District Court and that he obtained on order for the issuanoe of a writ of executory prooess upon an obligation executed by one Mrs. Sarah Griffin, widow of George Bradford Holmes, on August 4th, 1913, payable one year after the date of its execution, and bearing interest at seven per oent from that date until .paid, paraphed by notarial aot and secured by a mortgage upon improved real estate within the Parish of Orleans, the maker of the note, according to allegation of the plaintiff's petition, died, no succession was opened and an allegation is made that the heir is a non-resident, whose whereabouts are unknown.

Under these allegations the Judge appointed the ourator ad hoo; curator filed a petition for injunction, whioh the Judge believed he was entitled to file, in accordance with Article 739 of the Code of Praotice, and Article 740, whioh exempted him from furnishing a bond and security for costs, and the Judge cites Section 4 of Act 136 of 1880.

And further the Judge answers that he considered that the plaintiff in the original suit had no right to avail himself of the Aot referred to, as he was, and is, strictly at all times, the plaintiff in the main unit demand, and the Aot is expressly reserved for the benefit of the defendant in the main suit, and that the faot that an injunction was applied for by the ourator ad hoo, appointed to represent the defendant, iát did not ohange the oharaoter of Louis Meyer from that of plaintiff to that of defendant so as to permit him to force a.n officer of ¿¡hJutxM the Court, appointed to represent an absent defendant;, to furnish a bond for costs in order to have that offloer fully perform his duty And the Judge preys that the writ in question be denied.

Section 4 of the Act 13S of 1880 provides:

"That the defendant in any cause or proceeding shall have the right to require the plaintiff or party proseouting thá same to give bond or other security in suoh amount as may be fixed by the Court, to secure the re-payment at final termination of the cause of all oosts expended by the defendant therein. That the order requiring such bond or security for oosts shall issue ex-parte on the application of the party, without oosts, and no further proceeding shall be had in suoh cause until suOh bond or security has been furnished,B

The other portions of the Act provide that in orse of failure to furnish bond, it shall operate as a dismissal/sad the proceedings as in oase of non-suit, and that in all oases the surety for oosts shall be considered a party to suoh suit pr proceeding, and shall be condemned for the amount of oo.sts recoverable in solido with the party oast in the final judgment in suoh proceeding,

A careful examination of this Act convinces us that under the law the plaintiff in injunction in this suit, was not such a plaintiff, as contemplated by the Act; he was representing the defendant, an absentee by an appointment of the Court and the mere faot that in hie opinion and the interest of justloe, under the olroumstanoes of this partioular case, that he thought it prddent to apply for the writ of injunction, did not ninutin&e constitute in - him-as a plaintiff but that heÉ simply' represented the absentee as if he .had been an original defendant in the suit, hence not being an Independent suit, was not required to give security for oosts.

In the case of State ex rel Kelson & Ppppleton against the Judge- of the Sixth District Court, Parish of Orleans, which case is in the 25th Ann. page 237, in the syllabus, the Court says-:

"Where the defendant, after pleading to the merits, made a reconventlonal demand, and -the judge refused to fix the cause for trial unless the defendant should give security for costs; held, that there is no Known law or practioe which could justify his conduct, end th-it none he-d been referred to by said judge."

In the body of the opihion the statement made in the syllabus is carried into effect.

Under these circumstances we do not consider that the mandamus herein prayed for should be allowed.

It is therefore ordered, .-¿judged end decreed, that the preliminary, order end the writ of mt-ndsmius direoted to the Judge be rescinded and' that the mandamus applied for be denied.

-Application for mandamus denied-


source: Caselaw Access Project

author: Charles F.Claiborne,Judge.

license: Public Domain

text:
    Wm.H.Byers and Al. vs Mr and Mrs Cliff B.Farish,Appellants
    No. 8605
    January 2nd 1922
    Charles F.Claiborne,Judge.
   Charles F.Claiborne,Judge.

Shis is a shit for a balanoe due on afe building contract.

The plaintiffs wrote to the defendants the following letters

New Orleans,La.11-10-21
Mrs Farish
2323 Magazine Street,City
Dear Madam,
We hereby agree to furnish all the labor and material necessary to make the repairs in your residence for the sum of Five Hundred and Fourteen dollars f514.00 as follows ;
1st. Remove the present floor on front gallery,replacing same With a concrete floor,three inches of concrete and one inch cement topping with heavy wire in between conorete for reinforcing.
2nd. Build four 16 inch oolumns of pressed briok about three feet high cutting off present oolumns so same will rest on briok columns with base and mouldings.Present buttress to be rebuilt so same will show 12 inohes at base and cap 14 inohesf 3rd. Pront steps to be replaced with conoerete and cement topping,also two steel rods to each step for reinforoing;
4th Where wood work for old screens on cornice same to be removed and put in good condition;
5th On side pórch and rear kitchen new steps to be made.
0th Tear down old stairs in rear and build new flight as designated.
7th. Remove the present floor on upper rear gallery replacing same with 1 1/8 X 3 1/4 B.grade flooririg,all pieces to be one length and grooves well painted with white lead, and oil.same to be drove up tight,
8th Remove present two windpwa in dining room replacing same to place as designated.
Any minor details suoh as renailing weather boarding eto we will also do.
Renew the entire house with new gutters No.26 iron. O.G.gutters where shown and round gutters the same.We find two 3 inoh down spouts that will also be made new. The railing on upper rear gallery to be made substantial.
The ohain wall under front gallery to be recemented.
Signed: W.H. and H.S.Byers.
By. W.H.Byers.
Where windows are removed in B.Room same to be closed up.
W.H. and H.S.Byers By. W.H.Byers.
To this letter the defendants answered :
Hew Orleans,La.10-10-21
W.H. and H.S.Byers,City
Gentlemen,
Your proposal of even date to furnish all material and labor according to specifications,to make the necessary-repairs on residence 1323 Magazine Street for the sum of Five Hundred and Fourteen Dollars $514.00 has been accepted.
Accepted.
Signed Mrs O.B.Parish C.B.FariBh.

The plaintiff executed his oontract,and also alleged chat he made extras to the amount of $164.15 .On December 3rd 1921 the defendant paid him on acoount $500 .She failed to pay any more,and plaintiff filed suit on January 5th 1982,claiming a balanoe of $14 on the contract and $164.15 for extras .

The extras claimed by plaintiff consisted of i 1st. Putting on shed roof over kitchen and

weather boarding and ceiling inner walls about three feet hlgn and stripped ready for soreen wire. $140.00

Repairing old roof. 24.15

$164.15

There was judgment against Mrs Baris*. and she has appealed.

Defendant filed a general denial,and further answering averred :" Defendant furJhhBr adages that after the payment of the $500.00 above set forth,she discovered for the first time that the work was improp«rly <3-ne;whereupon she called upon plaintiffs t..id entered 1.8r complaint and protest therefor, and that plaintiffs agreed to correct and rectify any work improperly done,which they attempted to do and are now seeking to charge defendant the sum of $164.15. therefor,that defendant is now compelled to pay the sum of $165.00 to have same corrected and done properly,which defendant is now entitled to recover from plaintiffs ."

It is evident that those allegations were not facts but matters of opinion which did not inform the plaintiff of the particular defects and imperfections of which the defendants complained and which the plaintiffs had a right to know in order to refute them.As allegations in a petition they would neve been vague and indefinite,and would have justified an exception of no cause of action or af vagueness. 124 La 865 133 La 137-145 La 349- As an answe*,plaintiffs would have had a right to call on defendants to specify in what particulars the contract had been badly executed 139 La 18.But plaintiffb did not do so.

Defendants have expati. ted upon their defense by their in testimony.In as.much as it has not influenced our judgmentAtheir wifcfei» favor,we prefer to consider the several objections raised by them in their order .We shall first treat of their work covered by their original hid:

1st The first objection is that the wooden or .. no on tint front porch are out of plumb visible to the nato. jye.inore ie no charge that the columns i.re in that oonuj ti. r ty reason of any action of the plaintiff.They were .o prior to IV contract. It seeme that inside of the woo'den columns the- 3 were iron columns invisible to the eye,about which thj : Iv. intiff knew nothing and of which they had not been informes-Thes'e columns had settled slightly with time.They were imbedded in the chain wall of the gallery and could not have been straightened without breaking up the chair, wall,taking them out and resetting them.The contract did not contemplate that plaintiffs should do this work which would have entailed an expense not anticipated.The defendants,husband and wife lived upoh the place and no doubt saw the work as it progressed.They found no ' vjt with it until after this suit was filed.

2nd 'me windows which served as doors between the bed room and the dining room were removed to the side wall so as 1 o serve as windows there and not as doors.They were slip head windows,ascending in a pocket over the window,if pcrV-n, the”e was.To liave made them ascend in that manner it would have heor necessary to tear out and rebuild the wall from the top of the wa»4 window to the ceiling,the more ao as the original wall was thinner then the Jams of the windows.If the lower sash cannot go higher ther. tliree feet the upper 6ash can come down and thus surve the purposee of light and vertiietior both for which alone tVse windows were.

3rd Thu "floo; "existing at. the tin.c of oh» cont .-a et m three,:- gallery was removed according to c. itiao* .It seeris the . under that floor,there was another fleer,aid a tin co'e.’ii-g 'not known 10 tne plaintiffs.Plai, tif.'s cunt-aer m c ... ~e the "floor* .'li.e floor is that pa-t o: a. e,nur*ir.en* - '.'"tul one walks,and. not a double fio >h or rniouit orb trru.. cc > . that may be found upon the floo: prop jr.hu t: .e-e- i - u c _ -( i-k to show that the existence of the second floor and of the tin aw-roof to harmful.

January 2nd 1923.

We therefore see no defense to the claim for work done under the contraer.

Seoend, Coming to the demand for extra work,we fail to perceive that any part of that work was included in the original contaspe^ on ract.The extra work is for puttingAa new roof over kitchen and for weather boarding and ceiling inner WallB §140 so as to make a sleeping porch,s.nd for repairing old roof §24.15 .None of that work was included ih the plaintiff’s bid notwithstanding the defendant testifies that it was.It is admitted that the work was done,but it is alleged that it was badly done and that the new roof leaks for want of pitch and that the old roof leaks.The new roof Vías of tar paper.

There is no satisfactory evidence that it leaked or that the leak could not llave been stopped.The same may be said of the leaks over the old kitchen roof.When the plaintiffs,accompanied by an expert,sought Admission into the defendants' house to examine the complaints about the work,they were denied permission.Work was begun in October 1921 and this case was tried in February 1922.Up to that time defendants had not made any changes to any of the work claimed by plaintiffs.

The trial judge heard and saw the witnesses and rendered judgment in favor of plaintiffs.We cannot say he erred.

Judgment Affirmed.


author: Dinkelspiel;

text:
    NO. 8607
    COURT OF APPEAL PARISH OF ORLEANS.
    STATE EX REL CONSTANTINE GIANNACOPOULOS ET ALS versus GEORGE J. CAJOLEAS.
   Dinkelspiel;

Plaintiffs alleging that they compose more than one-half of the members of the congregation of the Hellenic Orthodox Oh’ uoh of theCity of Hew Orleans, petitioned the Civil District Court for the Parish of Orleans, for the issuanoe of a writ o' man .amu" direoted against George J. Oajoleas, defendant, President of said ohuroh, compelling him to oall forthwith, a '•peoial me «ting of its oongregation or tc show cause to the contrary, on a da/ io be fixed by the Court.

Amongst the reasons set out in plaintiffs’ petition as to why they wr-re entitled to the relief prayed for, are the following:

That the rules, repletions and by-laws of said corporation -itotj. Is that speoial meetings of its members snail be aa..led by ti: = ^resident, whenever requested so to do, by not les3 than ow. — third of its members. IPlalntiffs petition, Section 6.)

c in utter disregard of the rights of petitioners ■r.d other?, being more than one-n&ir of the members of the oongrega.ior., u.e defendant, Pr .?i-',ent of said oongregation, had fai led art refused to oall the speoial meeting as requested, • m it ;h mandatory and his duty to do, that petitioners were witr;-ut relief by ordinary process of law, o.ud it was naoesst-y fji a writ of mandamus tc be issued compelling him so Oj. (bu-.cions 9 and 10 plaintiffs' petition)-

The Judge aqua Issued an order, in oompliance with the r j¡ plaintiffs' petitiou ordering che issuanoe of an als.-iiti' -. wr:t oi mandamus and fixing r. date rcr ice return.

Defendant excepted to piainciffe' petition on the junf thst >.vme set rorth no legal o'.use or aotlun, a*d al- ?> fil»d ar. '-■newer to the- merits in the event cnac the exception above noted wae overruled.

The matter was disposed of by the Judge aqua on the exoeption of no oause of action, whioh was maintained by him, the relief prayed for by plaintiffs being denied, and from this decree an appeal was taken to this Court, that being the sole issue presented for adjudication.

In the written opinion of the Judge aqua in deciding the exception of no oause of aotion, he gave as tie reason for sustaining the exception, that to oompel the President to -'all special meetings prayed for by a majority of ocngregaticn would force him to do a vain thing; foi whi1 e i* was true that under the oharter of the corporation, one-third of the members thereof had the undoubted right to demand that a specie! meeting be oalled upon their written request to th;t effeot, yet if this particular meeting wes oalled, the thing, whioh according to the written request for said meeting they intended to disous.s at that meeting and possibly aot upon, were expressly delegated to its Board of Trustees, and therefore, under their own oharter, having no legal right to do those things whioh they desired to do at this meeting, the oalling of same would be a -arce, unnecessary and serve no useful purpose and for those reasons, mainly, he he declined to issued the writ of mandamus prayed for and maintained the exception of no oause of aotion, denying plaintiffs the relief prayed for by them.

Be that as it may, we are of opinion that under Article 5 of the charter of this corporation, one-third of the members thereof have an undoubted right to demand tnat a speoial meeting of its members be oalled and it Is mandatory upon its President, upon due proof that suoh meeting has been asked for by the required number of members,(one-third), to call same, it being no concern of his what purpose or what object the meeting was to be oalled-

It may be equally true, as stated by the learned Judge aqua,, that the members attending this meeting, would have no power to do those things whioh they might propose to do, or might even go so far as to do them in spite of the oharter provisions to the oontrary, but oonoeding this to be a fact, it is our opinion that at this time, the Court has no oonoern with these matters, leaving to any one who might be aggrieved by what was done at this special meeting,fiheir undoubted rights granted them by thCir oharter, to seek redress at the hands of the proper tribunal.

The oharter of the corporation having in Artiole 5 provided when and how an extraordinary (or speoial) meeting of the community should be oalled, and as far as we oan find, there being no exceptions or limitations in said charter to the soorksagc oontrary, we are of opinion that it was the plain duty of the President, as the head of this organization to have oalled this meeting when legally requested to do so by one-third of its members, and failing and declining so to do, the only remedy left to the relatera was to apply to the Court to compel him to perform his purely ministerial duty through a writ of mandamus, directed to him by the proper Court, whioh remedy the law provides is proper under oiroumstanoes of this nature.

"When the charter, by-laws, or general laws makes it the duty o.f offioers to oall a stockholders' meeting to eleot directors or transaot other corporation business and they wrongfully refuse to do so, mandamus will lie at the instance of the stockholders."

Fletcher Cyclopedia Corporations, Vol. 3. p. 2720.

For the reasons assigned, it is ordered, adjudged and deoreed, that the Judgment Appealed from be annulled, avoided and reversed, and that the exception of no cause of action filed by George J. Cajoleas, defendant and appellee herein, to plaintiffs' petition, be and same is hereby overruled.

It is further ordered, adjuu^au and deoreed, that the alternative writ of mandamus issued herein, be made afee. '©ótete aha that the said George J. Cajoleas, President of the Hellenic Orthodox. Church be and he is hereby m’dssad to oall a special meeting of the community or th ss provided of the congregation forthwith as is/jucsjcsat for in Artiole 5 of the oharter of said corporation, and the said George J. Cajoleas pay oosts of both Courts.

-Judgment reversed and application for mandamus granted-


text:
    John Frazier vs South N.O.Lt and T.Co.Appellant.
    No.8608
    Charles F.Claiborne,Judge.
    March 19th 1923.
   Charles F.Claiborne,Judge.

This is a damage suit resulting from a collision of two street cars.

The plaintiff alleged that he vas a passenger on one of defendant's street cars on January 19th 1921 .in Algiers; that there happened a head-on collision between the car in the rear of which he was standing and another oar operated by the defendant company;that he was pitched through the rear door of the oar,struck the controller box with the side of his faoe and head,and fell to the platform on his right hand and wrist;that he suffered a severe contusion of the faoe and a sprain of the hand and wrist,and an injury to the eye that caused him intense pai^;that he was unable to work until 1'arch 21st 1921,a period of about fifty one working days ¡that he is a cotton screman earning eight dollars a day;that Hte was put to the expense of $41.00 for Doctors and drugs;"that the said sollision and result ing injuries and disability were caused by the gross fault and negligence of the said Company,its agent and employees,in failing to have careful and competent employees^ and failing to have proper braking apparatus on said cars¡and failing to control the said cars so as to avoid the said collision." He asked a judgment for for suffering. for loss of work,$41 for expenses and $500 /

Defendant denied each allegation of plaintiff's petition and payed for dismissal of the suit.

There was judgment for plaintiff for $350.00 and defendants have appealed.

The plaintiff proved the collision and the nature of his injury.But not a word of the testimony refers to the failure of the defendant to have careful or competent employees or proper braking apparatus.

The defendant introduced no evidence as to the cause of the accident.

In Pink-Reed vs Lancaster Ho.8318 Ot.App Tie said, on the authority of numerous opinions from our Supreme Court^:

" It is the duty of the carrier* to exercise a high degree of care and skill to carry a passenger and to set him down safely at his place of destination.If the passenger should suffer injury,the carrier is liable in damages,unless he proves that the damage was not his fault,and was the result of the passenger's own fault."

Under that decision when the passenger is injured all he has to allege and prove is a derailment,an explosion,a collision,or other accident,and an injury to himself,and the carrier is liable unless he explains that the accident was without his fault.123 S.W.848-127 La 309 .

But the defendant argues that the above rule is correct when the plaintiff makes only a general allegation of negligence on the part of the carrier;but if he alleges the specific acts of negligence,the burden of profif is shifted to the plaintiff who must prove those acts or fail in his suit.In support of his position he quotes numerous authorities from other States,but none from this State.

The plaintiff Sin this case does allege general negligence on the part of the defendant.Inasmuch as under our jurisprudence that allegation was sufficient to entitle plaintiff co recover,we consider all the specific allegations of negligence as mere surplusage,and not essential to be proven by plaintiff Vie do not favor the grafting of technicalities or the digging of pitfalls in our practice and jurisprudence.Vie prefer to adopt the rule of fair practice laid down by Judge Provosty in 127 La 309 in these words;

" Where a plaintiff cannot be expected to have any information as to the causes of an accident,whereas defendant must be assumed to be fully informed,and where the accident -id of the kind which ordinarily does not occur when due care has been exercised,plaintiff need not allege nor prove the particular acts of omission or commision from which the accident resulted but the accident itself makes out a prima facie case,casting e& on' defendant the burden to shoiy absence of negligence,and this rule is of peculiar applicability in cases of boiler explosions."

The plaintiff has asked for an increase of damages. But we think that the District Judge was liberal in his allowance.Neither are we inclined to reduce the damages.This cause should not have reached the Courts.

It presents a clear case of some liability,and the only hope of the defendant to defeat it,was the maintenance of an exotic rule of practice which has kept the plaintiff from his just dues for over two years.

Judgment affirmed.

March 19 th 1923.


author: Dinkelspiel; J.

text:
    NO. 8613
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. ALFRED ARDLEY versus MAURICE J. PITTMAN
   Dinkelspiel; J.

This suit is for the recovery of the sum of $150.00;

Plaintiff alleges that xnxghe wss employed by the defendant to 3811 his property, Ho. 8439 Hickory Street in the city of Sew Orleans, for the price and sum of Eive Thousand Doll.rs, and that s'aid contract of employment which was signed by she defendant, appointed plaintiff the exclusive agent for the sale of said property, until the revocation of the said oonwot, which revocation under its terms must be by a. written sixty daye notioe; end alleging further that defendant did not revoke said contract, end 'whilst said contract was in existence, and in violation of its terms defendant sold e-id property for the sum of Five Thousand Dollars, without paving plaintiff the aforesaid three per cent commission, which amounts to $150.00, and for which defendant is liable.

To this petition there was filed an exception of no cause or right of -.otion, Same being overruled, defendant answers daoxjdcnuc ?-i..iitting his signature to the document in Ojuestion, but denies the t the words "or to any other party" v..-re in s'-id document when he sitgned it and that said words wer9 inserted after he had signed it, without defendant's knowledge or consent. Further avers that by verbal orders of defendant he instructed .il'inriff not to sell the property end 05.nccll.ed the said contract.

The issues presented are two-fold; first, were the word3 "or to any other p-*rty" inserted in the contract at the time same was signed by the defendant.

The contract reads as follows:

"I want ”-u to sell my property 8439 Hickory near Joliet, for the sum of Five Thousand Doll-rs or any less amount agreed upon, end do now authorise you as my exclusive egent to make the sale and to accept a deposit of ten per cent of the xxarasxty purchase price. I agree should you find s buyer or should the property be sold within sixty dsys after this oon- . or any o ther party tract expires, to any party solicited by you,/to pay your commission of three per cent on sale price «xxtexjmyxsxhsrxpxartyx whether title is acodpted or rejected by purchft.ser. This contract may be revoked by sixty days written notioe.
(Signed) M. J. Pittman
8429 Hickory St.
New Orleans, July 27, 1921.

The main portions of the oontract are in typewriting, save and except the location of the property, the amount, Five Thousand Dollars, three per cent, and after the words "solicited by you" there is "or to any other party".

The second defense to this petition, that the revocation of said contract, if any, vías to be given plaintiff in writing»

The evidence is conflicting, particularly as to the "or words in said oontract /to any other party". Plaintiff swears that these words were inserted at the time the contraot was signed by the defendant, whilst on the contrary, the defendant and his wife b4th positively swe-sr that when the contract was left at defendant's residence it had not been signed and was kept at the residence for several days before it was aigaaot sent back to plaintiff, and both defendant and his wife ewea,r that .they "or had examined the contract and that the words fto any other party" were not inserted and were not in the oontract at the time defendant signed it.

There are therefore two witnesses against plaintiff, and they both positively swear that the words were not in the oontract at the time same was signed.

i careful examination of this reoord has convinced us "or that these words /to any other partyn were not in the oontract at the time of signature, henoe defendant sold his property, had s. right under the contract, without these worde, to sell it without paying the commission.

We do not believe that the verbal withdrawal feom said oontraot oould hs.ve effect, it required the written notioe of sixty days to be given to plaintiff, and this was oonoe.ded not to have been done, but it is immaterial whether it was or not, defendant had a right to sell hfcs property without paying the oommissionjwhether he gave written or verbal notioe is immaterial.

Plaintiff must make her olaim oertain, To make it probable will not be sufficient.

It has been held by this Court:

"A broker is not entitled to commissions when he has not brought the vendor end the purchaser together, or his efforts have not been the procuring cause of the sale. In the absence of an agreement to the oontrary the principal is «xfc at liberty to sell the property by his own efforts, notwithstanding the employment of the broker."

James A. Brennan vs. H. M. Ansley et als. 3 Ct. of Appeal, 304.

Gottlieb vs. Walsh, No. 2259 of the docket of the Court of Appeal, the Court held:

Plaintiff did not bring the purchaser and vendor together end his right to sell was not exclusive; hence he cannot recover.

In the case of Freeman vs. Diboll, 11 Ct. of Appeal, page 199, it was held:

When the contract of a real estate broker confers upon him the exclusive agency to sell the property and negatives the right of the owner to- sell or negotiate for its sale, the broker is entitled to his commission, if during the time of the contract a sale is effected by the owner or by another broker on the latter's behalf.

Also see Kostmayer vs. Landry, 12 Ct. of Appeal 385.

Upon the whole we are convinced that defendant had a right to sell, his property; he did so; and therefore under the contract as we interpret it, plaintiff is not entitled to any commissions- claimed by her.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the court aquo be and the same is hereby affirmed, costs of both courts to be paid by the plaintiff.

-Judgment affirmed-


author: BY: WILLIAM A. BELL, JUDGE:

text:
    MRS. LUCIE THERIOT BURCH, versus MRS. LEAH THERIOT, WIFE OF FELIX MELANCON, ET ALS.
    NO. 8614.
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    January 2, 1923.
   BY: WILLIAM A. BELL, JUDGE:

This is a suit brought by one child, against four other children, seven grand-children and four great grand-children of Lucien and Evelina Theriot for partition by licitation of the following described property:

"A certain tract of land situated in the parish of St. James on the left bant of the Mississippi Elver, at about 67 miles above the City of Hew Orleans', measuring five-eighths of an arpant front on said river, by 40 arpents'in depth; bounded above by the property of Hoel Breaud and below by that of Miss Emelia Tureaud; together with all the buildings and Improvements thereon and thereunto belonging."

The above property was acquired by Luclen Theriot on February 28, 1676, for $1200 cash, during the existence of.the community between himself and his wife, Mrs. Evelina. Theriot. The husband died in 1878, and his widow continued to ocoupy the property until her death, on December 13, 1897.

After the death of Luoien Theriot, the property was assessed in the name of his estate and while so assessed was sold On May 1st, 1897, by the State, to Leopold J. Peyret for $20.62, delinquent taxes for the year 1896. On January 0, 1898, within the year's period for redemption, the property was purchased from Peyret by appellant herein, who is one of the seven children and heirs of Luden and Evelina Theriot and the only co-defendant responding to these proceedings. She admits that plaintiff, herself and all other oo-defendants are the sole heirs of Luoien and Evelina Theriot, but denies that she owns the above desoribed property in indivisión, with them, but, on the contrary, avers that she is the sole owner thereof by virtue of the above mentioned purchase from Peyret. However, not wholly relying upon this defense, She prays in her answer that in the event of her being decreed a co-owner with plaintiff and other heirs in the said property and forced to a partition thereof, that the right be reserved to her to'claim against the prooeeds of the partition sale such taxes and costs of improvements as have been expended by her on the property.

Nearly two months after answer but shortly before trial, appellant filed a speoial plea of estoppel as a bar to plaintiff's action for partition, on the ground that plaintiff ha¿not exerolsed, within a.reasonable time, suoh rights as may have formerly existed entitling her, as against defendant and other heirs and oojvowners to the partition now sought; that by plaintiff's laches in permitting appellant to remain in open, notorious, peaceable and uninterrupted possession of the property ever slnoe appellant's purohase from Peyret in January of 1898, she was estopped to assert ownership in, or to claim partition of said property.

All other defendants than appellant failed to defend this suit for partition and judgment was accordingly taken cgaisst them by default. Thereafter, the issues set up by appellant's oas?/sr and plea of estoppel were set for speoial hearing, ©t which time ©bjection by counsel for plaintiff was made to the taking of any testimony in support of the plea or exception of estoppel for the reason that same was filed too late, and that said sxoeption disclosed no legal grounds for estoppel. The trial oourt overruled these ohjeotions and referred the exoeption.-as we think, rightly,-to the merits of the oase. After due trial there was judgment in favor of plaintiff direoting a partition by lioitatlon, reserving to all .parties any rights or olaims outstanding against the property.

As stated in appellant's brief, she relies mainly upon the maintenance by this court, of her plea of estoppel, overruled by the trial oourt. In fact the plea itself necessarily carries with it, admission of the indisputable record proof of oo-. ownership between all the parties litigant, or their ancestors, in the above described property, from the date of Evelina Theriot's death in Beoember, 1897, until now. from this faot, it follows the action here brought oannot be defeated or prescribed, so long as the property remains in common, and such community is acknowledged or proven. (R.C.C. 1304).

The certified copy of Act of Sale by Leopold jrret. to appellant, dated January 3, 1898, end filed in evidence, ’^yik^not show' that appellant's purchase'was one of redemption, but the consideration for the sale, to wit: $50,00, the source of acquisition by the vendor, the date of this deed, with that of tax deed to Peyret, May 1, 1897, and testimony of witnesses, all furnish conclusive facts that the purchase was one of redemption made within the statutory year allowed by the constitution of 1879. Under this proof there is no need for extensive discussion of the well-established Jurisprudence that, when a co-owner of property held in common, purchases same at tax-sale, or afterward redeems the property within a year from some third party, purchasing at tax-sale, the said co-owner is, in effect, but a tax-payer and aoquires in either ease no greater interest than he had before, except that of recovery from his oo-owners of their share of the disbursement incurred by him. Hake v. Lee et al. 106 La. 482; Bossier v. Herwig, 112 La.539. 545 Gulf Refining Co. v. Jeems Bayou Club, 129 La. 1022, 36 South, 557; Alexander et al. v. Light et al., 112 La. 927, 36 South, 806; Duson et al. v. Roos et al. 123 La., 835, Pitts v. Kerley, 126 La. 221, 52 South. 281; Miller v. Vivian Oil Co., 131 La., 762; Williams v. Harrel, 132 La. 1; Murphy v. Murphy, 136 La. 17; Cooper v. Edwards, 151 La. - (92 So. Rep. 721).

The law of the Instant case as found in the foregoing authorities is fortified by the codal provision of Arts. 1320 and 1321, as follows:

"It is not necessary, to support the action of partition, that the coheirs, or the party commencing it, should be in actual possession of the succession or of the thing to be divided; .for among coheirs and coproprietors, it is not the possession but the ownership, which is the basis of the action."
"It follows from the provisions of the preceding article that the partition can be demanded, even though one of the heirs should have enjoyed some part of the estate separately, if there has been no act of partition, nor possession sufficient to acquire prescription."

notwithstanding the quoted authorities, and the-above provisions of our code to the effect that among coheirs ownership and not possession is the basis for an action of partition, appellant urges, as her only available defense to this suit a plea of estoppel predicated upon her uninterrupted possession of the property from the date of her purchase from Peyret.

In support of this exception she relies upon the following expression of our Supreme Court found in the recent decision of Cooper v. Edwards (151 La. - 92 So. Rep. 722) as follows:

"Our opinion is that the plea of prescription of three years, under article 283 of the Constitution of 1898 and of the Constitution of 1913 (retained as section II of article 10 of the Constitution of 1921), was and is a sufficient defense to this suit. When property is sold to one of its joint owners for delinquent taxes, the transaction’ may be regarded, as far as the co-owners are oonoemed, as a payment of the taxes, not as a transfer of an indefeasible title. Hake v. Lee & Beall, 106 La. 482, 31 South. 54; Bossier v. Herwig, 112 La. 539, 36 South.557; Each co-owner, even after the expiration of the year that is allowed for any previous owner to redeem a title that has been divested by a tax sale, may be reinvested with the title for his original interest in the property, by paying his share of the prioe of the adjudication and of all taxes paid subsequently by the co-owner holding the tax title. But that right is not founded upon statute law; it is a result of .equitable considerations, and should be exercised within a reasonable time. A tenant in common, whose property has been sold to a- ootenant for delinquent taxes, is not allowed indefinitely to await developments and speculate upon the value of the property, in comparison with the cost of redeeming it. Duson v. Roos, 123 La. 835, 49 South. 590."

We find nothing in the quotation above noted that in any manner alters our appreciation of the law applicable to the case now before us, for upon examination of the facts in the case of Cooper v. Edwards, the expression of the court as above quoted dearly distinguishes or stresses just Chat the law would have been if the facts in that case were similar to those now under consideration. The defendant, Edwards, was not a co-owner with the plaintiff, Cooper, who was seeking to recover the property bought by Edwards, a third party, from another Cooper heir who had purchased same at tax sale. Edwards, as such third party, and ¡¡(¡¡f transferee (a.Cooper heir, but not the plaintiff) had held the property for fourteen years, wince the sale for delinquent taxes, and during that period paid. he, or his transferee, had Seagirt all aooruing taxes on said property.

The court’s decision was not for the reasons-expressed in the above quoted part of the opinion, but for tho reason that the plea of prescription of three years, under the Constitutioi^sof x19¿ J, regarding tax titles was full and sufficient defense to the suit.

There is nothing in the present case to show that the equities relied on are wholly with appellant herein, but on the contrary, it appears while she has been in possession of the property in question for over twenty years by aoquiesoenoe and gratuity on the part of her oo-owners, she has enjoyed suoh rents and revenues from the property as have served to- hold her harmless from any of the burdens inoident to her possession.

It should be further noted that the value of the property in the present case alleged in plaintiff's petition, and acknowledged in defendant's answer to be $1200.00, has not materially advanced during the whole period of appellant's possession.

It cannot therefore be claimed that other co-owners having allowed appellant to remain in possession that she could thereby have the slightest justification for believing' that they had abandoned the legal right of oo-ownership in the property, or that they had avoided burdens incident to possession, while awaiting their assertion of ownership conditioned upon enhanced values of the property.

Most diligent analysis has been given the other oases cited in appellant's brief, to wit: Duson v. Roos, 123 La. 835; Gulf Refining Co. v. Hart, 130 La., 51; Vestal v. Producers' Oil Co., et als., 135 La. 985.

In this case, as well aw in the Couper case, the Supreme Court has upheld with reiterated force the just and equitable doctrine that a purchase at tax sale by one co-owner of property held in common, is but a purchase for account of all co-owners in proportion to their several interests. Declaring this doctrine to be founded upon equity - not oodal or substantive law - the court in these cited cases has done nought else than to further pronounce against the enforcement of this equitable relief where oo-owners have failed to assert their rights within reasonable delays, against their purchasing co-owner. We find without exception that in the cited oases, even in the case of Duson v. Roos, that the period to redeem or contest tax titles had long since aspired, and that rights of third parties as distinguished from rights of co-owners had intervened. Che fact that the Duson case was remanded in order that it may be better determined whether one co-owner or his heirs had been guilty of laches, which precluded their equitable claims, particularly Implies that no laches being proven, the equitable doctrine frequently enforced by the oourts, in Hake v. Lee, Bossier v. Herwig, would have been upheld. Just what is a reasonable time in which equitable rights and remedies may be invoiced is a question which must be answered only in the light of the particular equities surrounding the particular case to which they are applied.

In the Duson case,■fifteen years had elapsed sinoe the tax sale to the purchasing co-owners, while in the case of Gulf Refining Co. v. Jeems Bayou Club (a later decision) the interval following the tax sale was, like that in the instant oase, over twenty years. Che faots in the Jeems oase, a oase affirmed by several later decisions already above noted, apply to the instant oase with suoh similarity that we find no necessity for pursuing further authority in support of relief herein prayed for by plaintiff and appellee.

We find no error in the judgment of the trial court, and are of the opinion that it should be affirmed in every respect.

It is therefore ordered, adjudged and decreed that the judgment herein appealed from be, and the same hereby is, affirmed costs of this appeal to be borne by appellant.

JUDGMENT AFFIRMED.

January 2, 1923.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    MORRIS REINER VS THE MACCABEE HOME ASSN.
    No. 8615
    June 5th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

This is an ejectment suit.

Plaintiff leased to the defendant part of the premises No. 134 3. Rampart Street for the term of twelve months commenc» ing October 1st, 1921 and ending September 30th, 1922 at the rate of $175 per month, payable on the 1st day of each and every month, evidenced by 12 rent notes, x x x

"Should the lessee at any time fail to pay-the rent punctually at maturity, as stipulated, the rent for the whole unexpired time of this lease shall, without putting' said lessee in default, at once become due and exigible Sc, and should the lessee, in any manner, violate any of the conditions of this lease, the lessor hereby express:ly reserves to himself the right of cancelling said lease without putting the lessee in default, the lessee hereby assenting thereto, and expressly waiving the legal notice, to vacate the premises".

The defendant failed to pay, on the day it matured, the rent note due December 1st, 1921; on the next day, December 2d, plaintiff notified the defendant to vacate the. premises within five days; defendant having failed to move, the plaintiff filed suit against him.

The defense is that on Decmeber 2d defendant called at the Whitney Bank where the notes were deposited for collection to pay the note for the rent of November, due December 1st, and was there informed that the rent note had been withdrawn by the nlaintiff; that thereupon^on the same day^the defendant tendered to the plaintiff the sum of $175 which he refused to accept; that defendant then informed the plaintiff that he had paid the previous rent note due November 1st on November the 3d, to the knowledge of plaintiff who had not object©!; and that if plaintiff had objected and had notified defendant that he wanted the notes paid punctually on the first of'eaoh month, that defendant would have done so.

There was judgment for defendant, and plaintiff has appealed.

The evidence is that the plaintiff and the defendant occur py the same building, the plaintiff occupies the ground floor as a store and the defendant the upper floor, and that they see each other practically every day; that the rent notes were deposited for collection with the Whitney Bank; that on November 3d the defendant paid the first note due on November 1st; that on the 4th the '.Vhitney Bank notified the plaintiff that the note had been paid, without, however, stating on what date it had been paid; that plaintiff had his bank book balanced on November 25th or 28th, that it was then for the first time that he noticed when it was paid; that he made no protSst to the defendant; on December the 2d at about eleven o'clock he withdrew the remaining eleven rent notes from the Bank; when the defendants went to the Whitney Bank, on the same day, to pay the rent note for November, due December the first, the rent note had been withdrawn by plaintiff; the defendants received notice to vacate the same morning; on that same day, at eight o'clock at night, defendants tendered $175 to the plaintiff who refused it; the plaintiff did not notify the defendant that he must pay his note punctually on the very day of maturity.

In the case of Bacas vs Handot 3 Ct. App. 324 which was an ejettment suit, this Court held:

"When a lessor, month after month, has, without objection or protest, accepted the rental a.'few days after the date of maturity of the rent notes, he cannot,without previous notice to his tenant, claim a forfeiture of the lease".

The case of Bruning vs Grinage 4 Ct. App. 429 was a provisional seizure and the opinion in Bacas was affirmed.

The case of Bacas was affirmed in Standard Brewing Co. vs Anderson 121 La. 935. In that case the Court said w p 939 and 940;

"Mr. Wirth (the lessor) could not but have known that had defendant had the least suspicion that the payment of the rent to the day was of any importance, he' would have taken no risk in the matter, x x x The lessee cannot claim of right any delay for the payment of his rent, and the Court cannot grant him any; but at least must he know that absolute punctuality of payment is expected of him and will be insisted on. Where by the conduct of the lessor, he is led to suppose the .contrary, he cannoo be said to be in fault if he allows an insignificant delay to elapse. He has, then, reason to believe that the slight delay is not objected to by the lessor".

This case was affirmed in Bonnabel vs Metairie Cypress Co. 129 La. 928.

To the same effect is Roth vs Fabian 7 Ct. App. 422.

In Briede vs Babst 131 La. 162 the Court said:

"That doctrine can obtain only where the tenant is ready to pay the rent.promptly and needs no indulgence, but delays in paying simply because he is under the impression, produced by the lessor's past conduct, that it is a matter of -no moment whether the payments be made promptly or a few days late".

It is true that in all the cases cited above the delay in paying the notes had been of such frequent occurrence, at least four times, that it had established a course of conduct between the parties. But this repetition or course of conduct is not absolutely necessary. It is sufficient, as said, in the Bacas case, if the tenant, by the conduct of the lessor, is led to suppose that absolute punctuality of payment is not expected of him and will not be insisted on, and that a slight delay will not be objected to by the lessor. In the case under consideration, the defendant tenant paid the October' rent note due November 1st, on the 3d of that month? the plaintiff, by his own testimony, became aware of that fact between the 25th and 28th of November; although he occupies the same premises as the defendant, and although he met him nearly every day, he did not convey to the defendant the least suggestion of his disapproval of such delay, or of his intention to require prompt payment at maturity in the future. Defendant was justified, therefore, in construing this silence into an acquiescence of the slight delay .inpáyment, and a consent that the same delay would be indulged in the future. We conclude, therefore, that the plaintiff had no right to demand a cancellation of-the lease and the ejectment of the tenant without at sleast making a demand of payment of the notes.

"Eorfeiture of leases are not encouraged by the Courts, and will be enforced only when the right thereto is clear beyond a doubt both of fact and of law".

Uniola Real Estate vs Levy Mattress Co. No. 8151 Ct. App.

Those who seek to enforce their rights ought to be sure they have performed their obligations, in this case plaintiff

"craves the penalty and forfeit of his bond" but he makes no tender to the defendant of his ten unmatured rent -notes. A vendor cannot rescind a sale for non-payment of the price without tendering the unpaid notes. 6 La. Dig. 521, 522 (1900); 5 La. Dig. 638 (1840); Alfortish vs Pailet 7850 Ct. App.

The defendant offered to comply with his obligation by paying the rent before suit was filed against him. It is more than doubtful that under these facts, plaintiff was entitled to % judgment. Watson vs Feibel 139 La. 377.

Judgment affirmed.

June 5th, 1922.


text:
    EDWARD B. LUDWIG versus CHARLES MAURO
    NO. 8626
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    May 22, 1922.
   BY: WILLIAM A. BELL, JUDGE:

This case is on appeal from a Judgment of the irst City Court of Hew Orleans, awarding plaintiff .damages in ihe sum .of Two Hundred and Fifty-Hour Dollars and Hive Cents , ($254,05), the full amount prayed for in plaintiff's petition, ihe Judgment of the Trial Court also having rejected'defendant's claim in reconvent ion.

It is charged in plaintiff's petition that on the morning of December 4th, 1921, petitioner's Dodge Touring Oar, while in a stationary position, was run'into and damaged, at the corner of St, Charles Avenue and Hirst Street, by defendant's automobile, which was driven by defendant himself. It is charged further that the accident was due entirely to the carelessness and negligenoe of Charles Mauro, in that, beyond plaintiff's oontrol, his, plaintiff's, oar, had come to a full stop on the neutral ground, at the intersection of 3t. Charles Areme and Hirst Street, because of the stalling of plaintiff's engine, plaintiff's oar being a new one, not having gone over 500 miles, and the night being cold and damp, the engine came to a stop, and while in that position that defendant's oar, go.ing down the River-si'de of the Avenue, close to the neutral ground on that side, and going at an unlawful rate of speed, collided with plaintiffs oar, and caused damages to the car in the sum of Two Hundred and Fourteen Dollars and Hive Cents ($214.05), and loss of the use of oar to the plaintiff, which he valued, for eight days, at $6.00 per day, or $40,00, making the sum total claim of Two Hundred and Hifty-Hour Dollars and Hive Cents, ($254.05).

Defendant charges negligenoe on the part of plaintiff, and alleges that plaintiffs oar dashed suddenly across the oar trades at the place above mentioned, and ran directly in front of defendant's oar in'such a way as to make it impossible for the defendant to avoid the collision, and that he, defendant, was running at a moderate rate or speed, and observing all traffic regulations. Defendant claims in reoonvention, damages sustained to his oar in the total sum of One Hundred and Eighty-Bight Dollars, ($188,00).

From the written testimony taten'in the Dower Court, we find the following facts:

Plaintiff and two friends were in plaintiff’s Dodge oar, going up St. Charles Avenue, on the Riverside,, at about three-thirty o'elook on the morning of December 4th, 1981, When near the wood oorner of 3t. Charles Avenue and First Street, plaintiff stopped his oar to let out his two friends, and then proceeded towards the River-, aoross First Street, and while ia the middle of the neutral ground the engine of his oar suddenly went "dead,'' leaving the rear wheels of the oar on the River-most-down-going rail of the street oar traok, on the neutral ground. Shis position, the evidence shows, caused plaintiff'3 oar to project a short distance beyond the neutral ground- into the drive-way Of the down-going side of St. Charles Avenue, While in this position, and unable to start his oar, plaintiff testifies that he looked up the street and saw the defendant's oar coming down, at a distance of about two blocks, and that same wa3 going at a speed over thirty miles an how, that he, plaintiff, immediately blew his horn, and that he also shouted to defendant when he saw that he had not heeded the horn signal, and was within a dangerous and short distance from . him. fhe position of plaintiff's oar, the signals given by him. to def endant-,--as roll - as -the cause of-the-stopping of plaintiff's oar on the neutral ground, are all verified by both witnesses-who were in plaintiff's ear before he turned same into the intersection of st. Charles Avenue and First Street. Ehese two witnesses were standing, at the time of the accident, on the lower, River oorner of St. Charles Avenue and First Street, to which'place they had walked, after leaving plaintiff's oar, at the point above stated.

It appears that after the accident, plaintiff’s oar was still with its rear wheels st, or upon the far- River side of the neutral ground, and had, from the impact of the on-ooming oar, bean turned in an angular direction, somewhat down St , Charles Avenue.

The damage to plaintiff's oar was on. the right front wheel, the right wheel guard, or fender, and the forward part of the right running-board, thus showing that this oar was hit squarely on the right side from the front to all of the right forward side extending from the engine to about one foot of the running-hoard.

On the other hand, defendant's oar seems to have been damaged to the extent of having its front bumper driven well into the radiator, making a hole therein on the left of the center of-the radiator, defendant's oar, known as a pilot Car, being the heavier of the two oars, and weighing about three tons.

There were five witnesses to the aooident - three .for plaintiff, that is, himself and his two friends, and two for defendant, that is, defendant anda man who was driving with him at the time of the aooident. There is some testimony also about another man having witnessed the aooident, but he was not produced by defendant, though it is admitted by plaintiff's counsel that had suoh witness been present, he would have testified as did the other oooupant of defendant's oar, who has testified as a witness herein.

All of plaintiff's witnesses are consistent in their testimony that from the moment plaintiff’s oar went "dead" on the track, there was no movement of his oar at all until it was struck by defendant's oar, while on the other hand, the defense made by defendant is that although plaintiff's car had stopped, or .gone "dead" on the neutral ground, that beforS defendant reached the point of the aooident, plaintiff suddenly put his oar in gear' and plunged into the middle of the street, thus crossing defendant's right of way before he ooula recover or swerve out of plaintiff's oourse.

We have given careful attention to defendant's t-v r.-nony on this fact, as the liability of the one or the other .. il-5a;i+ depends principally upon this contention.

Defendant testifies that when about one block up Chañas Avenue, and while on the wood side coming down, though t'.e weather was somewhat hazy, he saw plaintiff's oar standing on the track on the neutral ground, on the inside of the curbing, ’.y the word "curbing" we unde-.." n.l him to mean tl j curbing enclosing the neutral ground. He further.-states that when he got about eighty feet from plaintiff's oar, it sta: ted off, and reached about ten feet outside of the curbing, into, and abe i the middle of the street. If this statement be true, and If plaintiff's oar suddenly lunged into the street, there might be some grouuis for the charge of negligence,made against the plaintiff, but on cross-examination we find that defendant says was about eighty feet when he first saw plaintiff who hud stopped on the tracks, and that plaintiff started to move a little, and then stopped, and went about two feet out of the curbing. Shis position of plaintiff's car about two feet out of the curbing, would have put plaintiff's car with its hi.M wheels resting on the extreme right down-going ridge of the ear trac-K, just where the three witnesses for plaintiff testify the oar was resting at the time of the accident. If defendant saw plaintiff's oar at any time on the neutral ground, whether it was wholly within the curbing, or slightly projecting into the right of way upon which defendant's car was -coming, it was defendant's duty to give plaintiff every opportunity to safely make the crossing , especially as defendant admits that he he<Td plaintiff's horn, saw his ear and his lights clout a block a’.7-;y, and then continues to testify as follows:

" Q. Was there any space between the front of Mr. Ludwig's car and the sidewalk where you could have passed?
A. Yes, sir.
Q. Did you make any effort to go to one side?
A. I was mostly on the lake side.
Q. You were closer to the neutral ground than the sidewalk?
A. My right wheel was in the center of the street.
Q. You just testified that there was plenty of room between Mr. Ludwig's oar and the sidewalk, did you make any attempt to go on the side?
A. Yes, sir.
Q. Did you try to go by there?
A. I mean between the neutral ground and the car line.
Q. How much room was there between the front of Mr. Ludwig's car and the sidewalk?
A. About fifteen feet fully.
Q. How wide is your machine?
A. Five feet four inches or 5 inches.
Q. Did you make any attempt to go in this fifteen feet between his car and the sidewalk?
A. I tried a little but I could not do it, that is where I hit the front of his car.
Q. You observed his ear for eighty feet continuously?
A. For a block, but he was on the neutral ground.
Q. During all that time, there was at least fifteen feet of street that you could pass, did you make any effort to go through that?
A. I oould not because he was going towards the river, there is an incline there.
xxxxxxxxxxxx
£).. You hit this oar, this ear did not hit you?
A. Yes, sir."

She other occupant of defendant's oar testifies that he saw plaintiffs oar stop with bright lights, about the middle of the neutral ground, shan he and defendant were one block away from where the accident happened, and that plaintiffs oar made .another start when defendant was coming near the neutral ground, about thirty or forty feet from First Street. This, of course, is corroborative of defendant's testimony about plaintiff's having made a second start while on the neutral ground, Dut this testimony oannot be relied on, for we find that this witness states that it looked as though plaintiff were trying to start his oar, and that it was probably in gear, and that all of a' sudden, plaintiff's oar ran into defendant's car near the side-walk. This witness further testifies that when he firs saw plaintiff's car, it was stopped about the center of the neutral ground on the tracks, and that afterwards it moved very slowly, as if someone moved it, for five feet, and that the front wheels got over the tracks, on the street,and that it appeared as if á part of plaintiff's oar was on the last track on the down course of the neutral ground. This witness oontradiots the defendant, in that he says that both cars were moving at the time of the accident, while as a fact, it appears from defendant's own testimony that the oar was at a full stop on the neutral ground, then started uo move a little, and finally stopped, with about vwo feet of the oar extending out into the street. This testimony oannot be reconciled. Witness' testimony to the effeot that-defendant's oar was run iaio- by plaintiff's oar is impossible of belief, when the nature of the damage to the two ears is considered. Had the aooident occurred as this witness for the defense testifies it did, then the defendant's oar would 'have been damaged on the left side, and plaintiff's ear would have had its front'radiator- and bumper in the condition that defendant's oar is shown to have had. It i3 conclusive from the evidence, that plaintiff's oar, and -not defendant’s oar was run .into,- in fact, on cross-examination, counsel for plaintiff forces this witness to admit as follows:

" Q. Mr. Mauro ran into his car?
A. Yes sir, as he earns around lie headed towards the sidewalk and Mr. Mauro's car hit him.
Q. What was the position of Mr. Ludwig's oar after the accident?
A. On St. Charles Avenue.
Q. Whereabouts?
A. On St. Charles Avenue and First Street.
Q. Where about?
A. It was headed towards down town.
Q. Where were the front wheels, in the thoroughfare?
A. It happened in the center of the street.
Q. Where was the back of his car?
A. Facing Third Street, it was not directly up and down St. Charles Avenue.
Q. Where were Ms back wheels, in the street?
A. One was against the curbing.
Q. Which curbing?
A. She curbing of the neutral ground.
Q. How far away were you when you first saw this car?
A. About one block away.
Q. How far away was Mr. Mauro's machine at the time that Mr. Ludwig, as you say, started his machine a second time?
A. When I first saw the car stop it was in the middle of the neutral ground, then I saw it move less than five feet, then it stopped again, by then we were within thirty to thirty-five feet from it, and then I saw again lights making different moves as if to start again, that was when the car was -about the middle- of the street.
Q. How far away were you then?
A. Thirty or thirty-five feet.
4. How fast was Mr. Ludwig going?
A. He had stopped again.
Q. Was he at any time going any faster than three miles?
A. No sir."

Questions asked by the Court of this same witness and his answers thereto show that his testimony is not reliable. The Court asked him the following:

"Q. The Dodge oar was struck?
A. Both struck,
Q. Which oar was hit from the side?
A. None was hit from the side.
Q. The Dodge oar was not hit from the side?
A. Only by a glance blow.
Q. Where was his damage?
A. Right front.
Q. Was his running board hit?
A. No sir, it may have been, I do not know."

From the preponderance of the testimony, which appears to be in favor of plaintiff, we find particularly, that plaintiff was not in any manner at fault, and that the sudden and dangerous position in which he was placed by the accidental choking of his e gine, created a situation of which the defendant in his on-ooming car was fully advised from a distance of more than a block, and that after signal given by plaintiff's horn, which defendant admits to have heard, the last chance of avoiding the accident was clearly with the defendant. The width of the Avenue at the point of the accident, and the position of the fourteen foot Dodge oar after the accident, show that defendant had ample opportunity, by careful driving, and by careful obsérvanos of the signal given to him, to have swerved, and safely cleared plaintiff's ear, which we are convinced, from the evidence in +his record, was not in motion after it first came to a dead stop on the neutral ground.

We are of the opinion that the evidence is clearly with the plaintiff, and that the finding of the Dower Court to this effect should not be disturbed.

JUDGMENT AFFIRMED AT DEFENDANT'S COST IN BOTH COURTS.

May 22, 1922.


text:
    ANTHONY GIUFFRIA versus ROBERT R. REID
    NO. 8633.
    COURT OF APPEAL, PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    January 2, 1923.
   BY: WILLIAM A. BELL, JUDGE:

This is a suit on three promissory rent notes, each for the sum of $80.00, and representing the total value of three months' rent for June, July, August, 1921, on the second-floor apartment of premises Bo. 8602 St. Charles Ave., property owned hy plaintiff herein.

The lease was a written lease, dated September 20, 1920, and running from the 1st of October, 1920, to the 30th of September, 1921. In a previous suit filed in the First City Court of Hew Orleans, Ho. 97,348 of the doohet of said court, the same issues of fact and of law arose upon suit for rent due for the month of Hay, 1921. In this latter suit there was judgment for plaintiff, and on appeal, under the dodfcet number of this court, 8876, the judgment of the lower court was affirmed. In the suit now under consideration there was judgment in the First City Court under record number 98,964, for the sum of $240.00, as prayed for, from which judgment defendant has appealed.

The only defense to plaintiff's petition is failure of consideration for the notes sued upon, defendant alleging that although he signed the lease and notj,¿ referred to, that by a subsequent verbal agreement he was allowed to vacate the second-floor apartment, and In lieu thereof, to move to the third-floor apartment, just above the one rented under written contract of lease. Defendant admits that he voluntarily removed, from the second-floor apartment which was under written lease, but claims that by verbal agreement with plaintiff, the latter was-to put the upper, or third-floor apartment, into proper repair, and was to give him a written lease under the same terma and conditions as those nominated in the written lease relating to the second-floor apartment; that plaintiff failed to make the neoessaxjr repairs, or to give him a written lease similar to that of the first contract of lease. Upon these facts, it is contended that the rent for the months sued upon was not due^ and owing, and that defendant .. n compelled to vacate *’ ■ . íi'rd-floor apartment on or about April 20, 1921.

It is not necessary to disouss the contradictory evidence found in the record as to the failure of the plaintiff to make the repairs Verbally agreed upon, nor is it necessary to do tore than to note the testimony of plaintiff to the effect that he made such repairs as were possible, up to the point where defendant, who had agreed to assist him ill making said repairs, failed to continue to give him such assistance.

She sole question for determination ia whether the old lease relating to the second-floor apartment was ever can-celled. Whatever the understanding between the parties might have been, and irrespective of what their conflicting testimony may be as set forth in the record, the actions of the parties are abundantly eloquent in revealing exactly what was intended, We find as a fact that the defendant removed from the lower apartment at his, defendant's request, that he, while in the third-floor apartment paid two of the rent notes relating to the s.econd-floor apartment, that he never, at any time, requested the plaintiff to return the old lease, or to cancel the old notes, hut, on the contrary, after finding that plaintiff had re-leased the vacated apartment, he, defendant, then made written demand for repossession of said second-floor apartment, and that while in the third-floor apartment received permission from the plaintiff to sub-lease portions thereof, and for this purpose advertised for a subtenant. This advertisement called for a subtenant for the unexpired period of the lease existing under the written contract.

We find, from all these successive acts on the part of the defendant, that there was never any intention between the parties to do otherwise than to pormit, *>y exceptional accommodation on the part of the plaintiff the use of the third-floor apartment, in lieu of the 0:1s so-pulaaed in the written contract, and that plaintiff never iniei I to, 'o. in fact, did, by any acts on his part, release ¡.he dt.feudp.iJ- free no obligations arising from the writcen rortvacu. Great ;t-re is laic upon a certain letter receiv'd by defendant Creía ■"luiatiff a verbage of which, defendant contends there waa a dear declaration on. the part of the plaintiff to oanoel the lease on the seoondfloor apartment. We have given this .letter careful attention, and find from its language that no such inference can be drawn,and all of the actions of the defendant subsequent to the reoeipt of said letter distinctly portray the defendant's continuous intention to abide by the written lease, and to assert any rights that he might have had thereunder.

On March 10, 1981, while still oooupying the third-floor apartment under the accommodations granted hy the plaintiff, defendant wrote plaintiff that' he again desired possession of' the second floor apartment, under the lease held by him, and dated September 80, 1980. It was to this letter that plaintiff's counsel, on the following day, replied that there could be no doubt that defendant "voluntarily oanoelled (his) lease on the rooms in the seoond-floor of the apartment Wo. 8608 St. Charles Ave.7 and that he had taken in lieu thereof, under the same terms and conditions, rooms on the third floor then occupied by him.

By no reasoning oan the expression set out in this letter of plaintiff's counsel, be construed aS a release from the written contraot of lease on the second-fl'oor apartment, for in the ssme letter the defendant is notified that counsel has advised plaintiff to hold defendant for the remainder of the term of the lease on the rooms then ocoupied by plaintiff, in the third floor. The letter, taken as a whole, .shows clearly that the plaintiff had never, at any time, intended to release defendant from his original obligation, although under accommodation he permitted him to occupy a different apartment in the same building. Even though the interpretation contended for be taken as oorreot, the subsequent aots of the defendant in retaining the oooupanoy of the third-floor apartment, and of paying, at the same time, the rent notes on the seoond-floor apartment, would estop him from denying the existence of the former lease, and his liability thereunder,

The mere removal of defendant from one apartment to another in. the same building, oould not have oanoelled the OSly written lease which appears to have been given tualess there was express agreement to this effect. The evidenoe does not show that auoh agreement was made, but on the contrary, the plaintiff's testimony, and all the aots of the defendant, lead to the oonolusion that there was nc agreement to cancel the written lease. It cannot be doubted for a moment that had the plaintiff not paid the rent notes falling due after removal into the third-floor apartment, that provisional seizure would have been properly issued, and the property and effects of the defendant in said third-floor apartment been subjoot to lessor's lien for the rent then due and owing.

The plea of failure of consideration for notes given in payment of rent under a written oontraot of lease, is inconsistent with the further plea or defense that the lease suea upon has been oanoelled by mutual agreement. One or the other of these defenses may be established in avoidance of liability, the burden of proof, however, in the case of either defense being upon the lessee.

We have carefully examined the case of Haas & Son, v. Bernhardt, 144 La., 927, and all other authorities therein oited by the Court, and now relied upon by the defendant, as establishing the law governing the instant ease. We oannot see the application of these authorities to the defenses herein pleaded. /yteiv" There having been no^written lease between the parties to this suit, we are of the opinion that the cited, eases are more available to plaintiff than to defendant, in establishing the doctrine there enunciated, to the effect that verbal agreements regarding a contemplated written lease, are as though not made until incorporated into tne xease, and until the lease itself is duly signed by the parties. We find no error in the judgment of the trial court.

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

JUDGMENT AFFIRMED.

January 2, 1923.


author: BY: WILLIAM A. BELL, Judge

text:
    FRANK J. CALDERONE VS AMERICAN AUTOMOBILE INSURANCE CO.
    NO. 8634
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    APRIL 16, 1923.
   BY: WILLIAM A. BELL, Judge

seeks. reop.véyy ín'thé sum of 1,1869.26 from ■ ^í<a^^t../insttr*noo/oo^*i^ tmder.apoliay, oovoring loss,- or damage .l^kjjefcehik* ty “pollisipn-with' any -other automobile, vohiolt or l^íió^NSho/kishSi of,/th*.*eoiaont:.and--,extent .of-the damages sustained ^jagSflaÉtk^feK-iáHiti in dlatote.r ;.<6h* otose as finally alleged in plain-aM-'an^iomoiitol petition,.is/ópílislon- of his oar- with a rut g|||eet,;tr;/roaí.-bed ever whipa no was traveling. Defendant denies’ if|^^as;fát.ph a. collision,with suph an object, and'avers that'

.appeared.to he, proven as .the-cause of,.the aooidont, i,P||^J^'Ve4pajlÍé.d ooll'ision is not suoh which oonstitutós’a oollis^tjfphi'hv^h*/-'6*^* >-■m*SnlliS an».-««tenement of tho polipy sued upon. I^rt^'lahawering,- defendant' denle» unan une amagos sustained were «rtept’'iinplly 'claimed in-/the supplemental petition.,

■'3/he evidence /shows' that the -oar was completely overturned /intensively 'damaged; that at the time of' tho aooi^Kf,;khÓRoS^'¿*i''^ks.'persons.in -the- par* .all.'.of - whom, wore- tho, sole ^#kessee: to- the Cooident. In filing with the defendant oompany a inptipóiíófi-thó/aoQident.as ,required by the terms, of, the policy, plain,fti'ff~made 'and'signpd the following written deolaratien, .whioh we quote ’kn-partj-

,. nbvertook a truck, whioh we preoeeded to pass. Hear Wheel of my oar got in dltoh and oaused me to lose -'/oCntrel oí .-'oar,, whioh overturned.
"(Signed) ,P. J. Calderone."

■ilnviaakdng /pr.opf' Cf‘loss., '/as another requirement under the . palioy, plaihtiff-iiiadeV. sdgned.and swore to- the' following facts;

’"As I «s-driving my-automobile on tho west bank Of the . riverj '/on--;the Algiers-road, at a speed of about 16. aller'em/hour:;/! netloed an automobile, coming in.the pppesite diridtion, at-the .rate-of about. ZO/miles an hour, She»' the' entoínebl-1'e, was .about to pass me, I'-tried to get - ■a/’:firmer ,ghip>o» the >oad and.the autemibile skidded-Into thS;4'i#,C|h./tod W opming-np^the ether vbahh;:.'turned corn-- ' pl|tel-y-óyear..- .wreohitog’my;..autejaobileA iahe'-totemeblls: that '-'was'ñ.ómif|í.'in.';thé ^80.»-^^0#|0».-'3!0*^«04,. although the people in it saw what happened to my automobile^ Although I have used every effort, I have been unabl,. to find out to whom this automobile belonged. It was a two-ton txuok, but I do not know ofwhat make."

After filing his original petition and only after being ordered by. the trial oourt to supplement his original declarations with, more definite averments as to the object with whiah he alaimifta have collided, did plaintiff venture as a definite oause for the aooident the allegation that his oar had oollided with a "rut" in the street or road-bed. If this was the proximate and dominant oause of the aooident, we are unahle to conceive why this outstanding fact should have been totally disregarded by olairaant or even oarelesslv omitted In the preparation of both the notioe of tho aooident and the sworn proof of loss.

While avering in his original petition the faot that his oar struok an object in the street, he further declares:

"And in oraer to prevent his oar from falling-into said ditoh, petitioner turned his oar with' promptness and energy almost straight across the middle of the street, and in so doing, the car turned upside down."

Our appreciation'of the evidence lead's us to the oonoluslon from plaintiff's attempt to, olear his' rapidly, moving oar from collision . with the truck passing him in or near the ourVC in the robd-way,. ijtát bhe resultant rapid change ef dlrsetion given to his own oar, caused it to he turned upside-down. Plaintiff's belated theory as to the collision with the rut in the road being the oause of the aooident, is only supported with positiveness in his own testimony. ■ One of,his other two witness.es has failed to verify tais fact in any way, i&ile the other testifies, in accounting for the accident, -.that "the .oar aust have bit a rut and In so doing completely turned over." Ho one' but plaintiff bimsslf has testified to having seen any rut or obstruo- ' bien in the road-way. Assuming that conclusive proof had been made - of such a faot, there is nothing to oonvinoe us of a collision with. suoh an object. However liberal the text writers or courts may he towards construing such contracts of insurance in favor'of the insured rather than the insurer, we are not able to hold that .the words of the polioy before, us covering collision "with any other object" could, tinder a most liberal construction, embrace such conditions as are contended for in the instant case. Zhe word "rut" in its most usual and popular significance implies that which is depressed beneath the surface and not what is visible, obstructive or tangible:

"BUZ.: A sunken track made by wheel or worn by constant passing and re-pássing of wheeled vehicles; hence, a groove forming a path, far anything." (Standard Dictionary).

We are unable to find from the evidence any conclusive fact that plaintiff's oar was either precipitated into or collided with the- so-called "rut," nor does any of the testimony Justify eur holding that such was an object, collision with which would give rise to liability under the polioy. Jfrom examination of the -decisions of other States oited by counsel for plaintiff, wo note authority for the -ruling that the words "collision with an object" embraces both perpendioulai and horizontal objeots,- including the flat earth or a body óf water, but in these oases the resulting damages arose from initial collision with another object loading to the final contact or collision with such bodies of earth or water. Berry on Automobiles, 3rd Ed., page 1519, paragraph 17£3, in discussing those oases proceeds further to say:

"It has been held that tho driving of an automobile into a hole six or seven inches deep and eighteen inches wide between oar tracks, in a city street,' is not suoh a ’collision with an object' as is contemplated by the parties to an insurance polioy containing, a' collision clause."
Dougherty v. Insurance Co., 38 Pa.,Co.,Ct., 119.

We have not been referred to nor have wo found in eur State’s Jurisprudence any oases similar to the one now under consideration. In the case of Wettengel v. United States Lloyds, 157 Wis., 433, 147 N.W., 360, where a clause in the policy covered-damage to automobile and equipment by being in collision with any other autemobile, vehicle or- object, and excluding damages causedby striking any. portion of the road-bed' or. by striking -the rails or ties of street, steam or eleotrio- railroads, etc. In the policy before us.there is no provision excluding or including a collision with any portion of a read-bed. In the case cited, the Court said:

”fhis accident is so obviously outside of the collision stipulation of the policy that discussion seems superfluous. In order to bring the oase within the policy there must have been: First, a-oolllsion; seoond, the collision must have been w^th another automobile, vehicle or somewhat similar object ojuádem genr-ria. and, third, it must not have-been with any portioSTolT’the road-bed, meaning .the ground on which the' machine was running or attempting to run. Mo such condition was shown as that insured against.”

We think in the instant case, as in the one just cited, the accident is obviously outside of the specific conditions covered by the policy.

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

JUDGMENT AFFIRMED.

APRIL 16, 1923.


text:
    NO. 8643
    COURT OF APPEAL PARISH OF ORLEANS.
    UNITED STATES HOFFMAN MACHINERY INC. versus JACK NESBIT & MILES MASHBURN et als.
   Dinkelspiel; J.

This ligigation presents, substantially, the following facts:

appellant The brief of the^p$PC*®®tWfcizls states oorreotly the oause x of aotion.

‘ "The St. Charles Street Realty Co., Ino., one of the -defendants in the above proceedings sued out a provisional seizure against the other defendants and Mashburn and seized a pressing ■maohine -under a claim of Eighty Dollars, for rent. This proceeding was in the First City Court; the plaintiff in the above oase, the. United States Hoffman Machinery Co., Ino. filed an intervention and third opposition, olaiming a superior privilege on the maohine for Three Hundred- Seventy Dollars. The Court on final trial sustained the olaim for Eighty Dollars, ordered the property provisionally seized to be sold under a writ of fieri faoias, in satisfaction of the debt and dismissed the claim of the United States Hoffman Machinery Co., Ino. the pr present plaintiff, on the ground- that the amount involved was above the jurisdiction of the Court; the fi.fa. issued; the property provisionally seized was seized under the fi.fa. ánd at about the time the oonstable was ready to advertise it for sale the above suit was instituted by plaintiff.

Subsequently the property was actually seized and the Sheriff took from the Constable, the maohine whioh the Constable had in his possession and whioh he was prepared to sell to satisfy the the lessor's olaim. The Constable filed a rule in the District Court, setting up all the facts and the District Judge ordered the sheriff to return to the oonstable the property,

The St. Charles Street Realty Company, Inc., one of the defendants ksx herein, being a party to the suit and being the plaintiff in the provisional seizure in the First City Court, moved to dissolve the injunction issued in the oause, preventing the annUft. Oonstable from selling the machine on the ground that the United States Hoffman Machinery Co., Ino.'s. remedy was by third opposition in the Distriot Court, claiming the prooeeds realized from the sale to be made by the Constable under the judgment of overruled, +the First City Court; this motion was/stesac&sw*l$ being based upon no right or oause of aotion for the issuanoe of an injunotion in the said oause. The Distriot Court heard the motion to dissolve and overruled it, leaving the litigation in that position; the Constable is in possession of this maohine under a fi.fa. issued from the First City Court without power to sell the maohine beoause he is enjoined from doing so by the Distriot Court, thus leaving the plaintiff with the executory prooess, ordering the seizure and sale, from the District Court, when the Distrlot Court subsequently required the maohine to be returned to the Constable of the First City Court/

It is in this condition of affairs that this appeal is prosecuted and the whole question that presents itself to this Court is, has a litigant, whose claim exceeds the maximum jurisdlotion.of the First City Court, the right of going into the Dis-,through injunction proceedings, triot Court/and preventing the sale of the property upon whioh he claims a privilege, or is not his remedy simply to apply to the Distriot Court, mating the seizing creditor and the Constable a party and requring the party to either hold the proceeds in his hands by an order of the Distriot Court, xfci$nxixx*g!ix±:k requiring the seizing creditor in the suit to oome into the Distriot Court to litigate the same as though the seizure had been made from the opponent would have the right to litigate by third opposition.

Under the Article of the Code of Practice, 401, "Third Opposition claiming provllege is made by motion — Sheriff hold prooeeds. If, on the contrary, the.opposition be made on the ground that the third opponent has a privilege which entitled him to be paid in preference to the party mating the seizure out of the proceeds of the sale of the property seized, as when there are several seizure's :>x oonfliotlng olaims on the same property, such opposition may be made by motion, of which due notice must be given both the to the party who has made the seizure and tckx to the sheriff; and the oourt, without requring any seourity from the third opponent, shall direct the sheriff to retain in his hands, subject to their further order, the proceeds of the sale.

It has been held in the case of Edward Shiff & Co. vs. P. Carprette et al, 14 Ann. p. 801, quoting from the syllabus:

"When a party has a olaim exoeeding in amount the jurisdiction of a Justioe of the Peace, and bearing a privilege upon property attaohed by another party in a Juetioes1 Oourt, his remedy is by a suit in theDistrlot Oourt, olaiming ttspxix his privilege and enjoining the officer having the writ of attachment Issued by the Justice from proceeding with its execution, and paying over the prooeeds to the attaching oreditor, or by a rule taken upon the attaching oreditor, to show oause why he should not be paid by preference out of the prooeeds of the sale of the property attaohed."

The same doctrine is announced and affirmed in the 51st Ann. p./fetó* in the Case of Brown, Jr., versus Washington.

The syllabus there reads:

The olaim of the third opponent was not liquidated, and he. was prevented by its amount from going before a justioe of the peaoe oourt to assert the olaim and the privilege by which it was seoured against another oreditor, who was having judgment rendered in his favor by a justioe of the peace oourt, executed to satisfy the privilege recognized by the judgment on the property £sk to whioh opponent also olalmed a privilege.

opponent It was there held: That the third/«pgaatiiaa oan oompel his adversary to come into the District- Oourt to litigate, his right to a privilege.

Under the artioles of the Code of Praotfoe and the authorities oited, the injunction should have been dismissed and parties relegated to their rights as requlred'by law. Injunction is not the proper remedy in this oase.

For the reasons assigned, it is ordered, adjudged and deoreed, that the lnjnotion issued in the first oase and maintained, be dissolved and that plaintiffs, the United States Hoffman Machinery Company, Ino., if they so desire, will have a right to file a third opposition by rule or otherwiee/ Sc maintain whatever privilege they may have and that the judgment of the Court aqua be set aside and the proceedings dismissed, at plaintiffs' costs.

-Judgment reversed and injunction dissolved-


text:
    Chas. F. Claiborne, Judge.
    FLORY BROS. VS PASCAL MANCUSO & al.
    No. 8644

    June 5th, 1922.
   On motion to remand.

From a judgment against the plaintiff^thoy have appealsd. Owing to the continued failure of the stenographs^ to deliver the testimony taken by him on the trial of this ms*» and owing to his aubaofpont death* the plaintiff® moved to remand this eu». to the District Court for a new trial*

On the authority of Falcon vs Corona No. 8254 of this Court.

It is ordered that the juApsent of the District Coura heroin be reversed and set aside* and that this ease be maided for .a am trial* all coate to omit the final judgment*

June 5th, 1922.


text:
    Edgar A.Dumont vs J.D.O'Keefe,Receiver and C Appellant.
    No.8649
    Charles F.Claiborne,Judge.
    June 25th 1923.
   One of defendants' cars ran into - the ,plaintlff.’s,,;"'1 ■ ■ . • ' ' "/v"' automobile and demolished it .Hence this suit for. its1 value;1-?1*:

The facts are that the defendants run a 'double- - •' ■■ ■ i track line.of cars up Magazine Street and through Audubon Parfcj the traokalthrough the Park are on a neutral ground oti .the. Kl-Ver.\'y / ' ■, ;: ■ side of a paved roadwway wide enough to aooommodate ve&rilesj? f. . at the upper end of the Park,at a distance of’ about 10p fiat befors reaching Walnut Street,'there is no-more neutral,.ground - ■ j. • and Magazine Street narrows to such an 'extent that the entire street is occupied by the two tracks,leaving’no. room for vehicles on either side; just before reaching that harrow point-the-two tracks leave the neutral ground,and oross the above roadway.-.,. . v ,.' iv''fi'.vVíi diagonally on the right over a distance of about 85 feet WJ.th 1'-1.:1'1??’ a well defined curve exoeeding 45 decrees,and one track proceeds1’; up the right side of Magazine Street within a few .feet- of the;*!, side walk,making a sort of triangle or pocket between the osúr’"1 tracks and the side walk on the lake side .For that reason,a 1 / vehicle running up the roadway within the Park',must of necessity •• drive upor and across the right hand side track when it 1 savin, the roadway to go up Magazine Street. •

The plaintiff alleges that on the morning of January 23rd 1923 at about ten O'Olo'ek,his. wife was driving Éi’s'auto^ivsfl mobile up Magazine Street through Audubon'Park; that’ she1’enter*®?!..' - '■ • ” •' -íí'iw a few feet upon the track of the Magazine car at the point1 :...■•>■<;'• where the track makes a triangle wits the sidewalk * when su®* V!;* denly,and without warning, said automobile'was .struck‘frqk-;b#ft^¿¿'í by a street car coming up Magazine and operated*.by't'hé’d0^eáí&!§||s« company;that it- was struck wuth such- force;ás tó;.&uri;tt-'agaik^ a tres on the sidewalk,and totally wrecked it.He claims the value of the car $1600 .

The answer alleges that on the morning above stated "an automobile driven by a lady was driven upon the tracks upon which respondent's 'Magazine cars are operated in Magzine Street at the upper end of Audubon Park,at a time when one 08 said oars was so close upon the automobile that the motorman could not possibly stop it in time to avoid a collision," and it oharges plaintiff with negligence and heedless disregard of warnings.

There was judgment for the plaintiff for $1575 ,and the defendants have appealed.

Our examination of the testimony pleads us to the conclusion that the plaintiff reached the point where the Magazine Street oar enters into Magzine Street just where it begins to be narrow to admit of an automobile on the side of the track and at the triangle above mentioned where the plaintiff had to cross at least the single rail next to the sidewalk in order to proceed up Magazine Streetjthat she entered upon that rail or track without stopping,or slowing up,or looking^ and that by omitting such precautions required equally by care and jurisprudence she was guilty of gross imprudence which, under ordinary circumstances,would have fixpd the consequences upon herself,and would have prevented -h-hn pi MwMff from recovering 19 A 304-47 A 268-43 A 1,933-49 A 1302-50 A 1087-51 A 262 299-52 A 245-2149-105 La 418-427-113 La 475-789-1107-124 La 37-43-125 La 777-778- No.7405 Ct.App.No.7888 Ct.App. No.8127 Ct.App No.8595 Ct.App.

Even under former jurisprudence,she could not have recovered, from the defendant,even if it hadbeen guilty of negli genee,inasmuch as the fault would have been mutual 2 H.D. 1054 C_- 39 A 796-42-[ A XXXX-XXXX ].

But under modem jurisprudence. the plaintiff is entitled to recover if,notwithstandiiig^negli~ genoe,the defendant,in the exercise of due oare,could and should have avoided the accident.This is the application of the doctrine of the last clear chanoe as recognized by this Court in the cases Nos.7405-7988-8127-7824-7993 and by the Supreme Court in 39 A 799-46 A 1554-105 La 229-52 A 417-116 La 789- leading case Mc Clanahan vs RRD.111 La 781-125 La 777-778-898-124 La 165 171 -143 La 60.

We are of the opinion that the defendants could and should have avoided the accident .We' are satisfied that the defendants car entered the' Park after the plaintiff,and that it followed the plaintiffs' automobile until the moment of the to collision.There was absolutely nothlngAintereept the view at any time between the car and the automobile. Not only there was a motomeer on the front platform of the car. but there was also a pitman.They say that when they first saw the automobile it was thirty-five feet ahead of them.If they did not see it sooner it was their fault.They must be held to a knowledge of the fact that when they approached the curve,they had to cross the roadway in order to reach Magazine Street,and that all vehicles driving up that roadway also had to cross the same street,and that it was a danger point.It was so well known. to the employees of the defendants,that Edward Boehm,pitman for the defendants,testifies: " I had to make a stop anyhow,coming If •to that curve,and .you know they dont allow you to go on that curve without stopping".The distance bwtween the beginning of the curve and the point of collision is 87 feet of clear view over a paved street.There was no «Kea?eiee excuse for the employ-/T*ees 'of the defendants not to have see the automobile on the other r~ end of the curve,and they knew that the plaintiff had to cross the track at that p‘oint,for that was on herjijine of travel, and she liad no other road upon which to go.Under those peculiar circumstancés ,of known danger there was an obligation on the part of the defendants^employees to exercise more than ordinary oare aione would have avoided the accident,

"It is the duty of the' ohauffeur of an automobile to look out for pedestrians at street crossings and to take all needful precautions’to ayoid collisions with them".130 La 648.

f ^The motorman had reasons to believe that persons might be attempting to oross "at the foot crossings of that narrow street and he should have been certain that the crossing ■. was dear before taking his car over it. 125 La 898.

"While plaintiff was negligent in attempting to cross the defendant’s track at a sharp curve without stopping to' look and listen at the proper time and place,the Company .will b.e' held liable when the evidence shows that the engineer ..saw the .danger in time to a,vold the accident by sounding .the whistle or applying the brakes".116 La 789.

. "there was no proper care on the part of the employee ■ in oharge of defendants electric car.Such care and diligence must be exercised at dangerous places on a railway to avoid inf noting in jury,as the proper manning of a car requires" 51 A 146.

"the duty was by the ordinances of the municipality ánd rules of safety,imposed upon the defendant train to stop at the crossings.lt was not stopped".Judgeent for plaintiff 50 A 501.

Judgment affirmed.

June 25th 1925 .