author: By Ilia Hohor John St. Paul.

text:
    NO. 7989.
    J. D. WEATHERSBY. VS LOUISVILLE & NASHVILLE R. R. CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPINION.

By Ilia Hohor John St. Paul.

Plaintiff anas for alleged loa ea auatained on a ahipment of corn flour, aaid to have Been damaged by dampneaa and duat, whilst under an open ahed where defendant had atorad it after arrival.

Por answer the defendant deniea other liability than that of warehouseman; denies any negligence as suoh; denies the extent and quantum of the alleged damage.

I.

It is .admitted that defendant's liability is that of a warehouseman only. But where merchandise held on storage feven by a carrier) consists of a perishable commodity, liable to be damaged by damp and fog, it should be stored in a warehouse of other dry place, and not under an open shed without other adequate protection against the weather. Coate Bros vs N. O. Terminal Co, 139 La 958.

In the case before us it is shown that the commodity was particularly liable to damage from moisture; that it was stored under an open shed only thirty or forty feet wide, and surrounded but not covered by tarpaulins.

II.

The evidence herein is not as full as it might -bo as to the extent of the damage dona by the moisture, and possibly this may be due to the stand first taken by the defendant when the claim was presented; towlt, not a denial that such damage had ocourred, hut a denial of liability in any event; as plaintiff had been notified that the shipment had arrived, was aware of "local conditions", and if not satisfied with defendant's storage facilities should have stored his goods elsewhere. In which position defendant persisted from June 18th 1918 to August 29th, 1918, and apparently shifted therefrom only when it filed its answer herein.

And whilst we do not take this as an unqualified admission that suoh damages had occurred, nevertheless it is entitled to some consideration as being indicative of this at least; that it was easier to question plaintiff's to right under the alleged facts than question the facts themselves. And where a party gives a reason for his conduct and decision touohing anything in controversy, he cannot after litigation is begun change his ground and put his conduct upon another and different consideration. Vicknair vs Southside Plantation Co, 10 Orleans App 43; citing Railway Co vs Mc Carthy, 96 U. S. 267, and Warner vs Fabacher, 6 Orleans App 37.

III.

For the rest, defendant's own witnesses show that the shipment was damaged somewhat, even if but slightly, first in aotual transportation and afterwards in storage. and avan though the full extent of the damages Is established only by the testimony of plaintiff alone, yet that testimony Impresses us as fair, full and honest; and it is certain that it satisfied the trial Judge who heard it from the mouth of the witness himself.

May 2nd 1921.

That testimony shows that the whole shipment had been damaged from the exposure; that one purchaser rejected the flour absolutely, that another claimed a reduction, and that the whole lot was eventually sold below coit, all because of its condition.

XV.

Plaintiff claims only the difference between the oost of the flour to him and the price whioh he reoeived for it; he olaims nothing for lost profits. He admits that the market was falling, but says that the fall took place whilst he was trying to dispose of-an article difficult to sell on account of its condition. He swaers that had the flour not been damaged he could and would have disposed of earlier and at a profit. And on the whole wo think that ha has made out suoh a case as warrented the judgment in his favor.

The Judgment appealed from is therefore affirmed and made executory against James C. Davis, Director General Of Railroads, as agent of the United States, at his oost in both oourts.

Hew Orleans la,


source: Caselaw Access Project

license: Public Domain

text:
    J. D. WEATHERSBY VS. DIRECTOR GENERAL OF RAILROADS.
    NO. 7989
    COURT OF APPEAL PARISH OF ORLEANS.
   It is hereby agreed between plaintiff > and defendant, represented by teeir respeotiwe oounsel of record,that the decree heretofore rendered herein by this Honorable Court should be amended so as to read "without interest"; and in all other respects affirmed as rendered.


author: By his Honor John St. Baúl.

text:
    No. 7991.
    SUCCESSION OF GASPAR PIETRI
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   cpi:íio:í.

By his Honor John St. Baúl.

On I,lay 17th 1918. the deceased addressed a latter to l»o Bellman, opponent herein, authorizin'’ vim to lease to the liberty Stores, Incorporated, oertoin property for r term of years, ftg rental to be one per cent per month of the estimated value of said premises, towit, }7P,00 for the ground and approximately -5&000 for the building v/hioh the deceased agreed to erect and deliver on or about February 1st 1919; and therein the deceased agreed to pay Fallirían a oommission of Z'jj on the gross amount of the leaso.

Four days later j?eliman confeoted a written lease in exact accordance with his instructions; which lease was duly approved and signed by the liberty Stores and by the deoeasod. But for reasons satisfactory to himself the lessor failed, nogleotod or refused to ereot the building agreed upon, notwithstanding repeated requests made upon him by, or on behalf of, the tenant; and thus the latter was never able to enter ujion the promises, possession whereof was retained by the lessor and his heirs.

Bellman seeks herein to recover the commission promised, and his claim is contested on the ground I. That the instrument called a lease was no^4uch in law, the rent not being fixed and oertain; and 2. That the deceased was not put in default.

1,

We think that Tinder the muxira "Id certun est quod eertum fieri potest", a rental fixed at a certain percentage of the value of a lot of ground and the cost of a building to he 'erected thereon is certain; being quite as certain us " a portion of tho fruits yielded by the thing leased". C. C. 2671. See also, N. & O. R. R. vs Tennessee, 153 U. S. 406; U. S. vs Smith, 5 Wheaton 69. For it is clear that ohce the building had been erected and its cost established, a ten year old child could have figured the amount of the failure, neglect or refusal of the deceased to orect the building, the exact cost thereof cannot now be established neither he nor his heirs can ooraplain that his ov:n estimate of the cost should be pcoopted as the basis of this claim since he has put it out of tho power of tho other parties to make that cost more certain. See Steppach vs Worms, 7 Orleans App 214; Rightor vs Aleman, 4 Rob 45.

But whether the contract between tho deceased and the liberty Stores, be or be not technically a lease, it was none the lesa a perfectly legal and valid contract even though innominate, Blouin vs Hebert, 134 La 423; Thielman vs Gahlman, 119 La 350; Phelan vs Wilson, 114 La 813. And it is quite certain that it was the very oontraot which the deoeased authorized and approved, and for tho proouring of which ha promised to pay the commission herein claimedit follows that Reliman had earned his commission as soon as he had obtained the consent and signature of the parties. Slattery vs Hussey, 4 Orleans App. 65; Roberts vs Thomas, 8 Orleans App 211; Gurley vs Parkinson vs Loeffler, 14 Orleans App 424; Succession of Fairchild, No. 7848 our docket.

XX.

It Is urged that the deoeased and his heirs are not liable £qe commissions because they were never put in default by the liberty Stores. But the falacy of this contention lies in this; that Reliman has no concern with, the contract between the deceased and the liberty Stores; and whether the parties thereto do or do not stand up for their rights thereunder cannot interest him. He is not suing upon that oontraot, but on that of May 17th by which the deeeased promised to pay him a commission for certain services which he was to render and did render; and for which he is entitled to be paid. It is quite immaterial that the deceased aftorwards backed out of the contract and that the other party took no legal steps to hold him to'it; the fact remains that he aocopted Rellmanrs services and promised to pay for thorn, and thorn is no good reason in law or in equity why he should not do so.

April 18th, 1921.

¶& think- the judgment appealed from la oorreot,

Judgment Affirmed.

- Haw Orleans la,


author: Dingelsniel- J.

text:
    George Cerniglia. -versus- Cloverlands Dairy Co.
    No. 7993.
    Court of Appeal. Parish of Orleans.
    Dinkelsplel» J.
   Dingelsniel- J.

This controversy, substantially, presents the following facts.

Plaintiff, owner of a ford auto truck, operated by him in conduction and for his business, which was that of a retail butcher. That his Driver, one Polizzi, --drove said truck from plaintiff's place of business, in the early morning hours, between three and four o'clock, down St. Charles Ave., going down on the river side of the Avenue, which is the proper way downtown, and that about that hour the truck, being on St. Charles Ave, between Toledano and Harmony Streets, and the night being dark, and driving it at a moderate speed, the driver noticed a two-mule wagon, the property of the defendant, which wagon was standing off the ourb, headed uptown in a wring and illegal position, and on the wrong and illegal side of the street.

That plaintiff's driver attempted to pass said wagon by swerving to the left in the accustomed and correct manner, but the wagon then standing off the curb, was without a driver, or anyone present, to hold the reins, or direct the mules; the mules having been left standing alone, uncontrolled, undirected, free to wander at will, started across the street on their own volition, struck plaintiff's truck, breaking and damaging the front thereof, running the pole attached to said wagon right into the said truck, causing damage and injury to it which amounted to the sum of $ 115.95.

Contending further that it was gross negligence on the part of defendant's employee to leave the said two-mule wagon in a frequented street at an early hour, and the night being dark, alone unattended, uncontrolled, without anyone to watch over said mules, and it was further gross negligence t4> leave said wagon with the said two mules on the street, exposing any automobile, coming down in their regular and leggl path, to an accident or-probable collision, but that said accident 'was solely and only due to the negligence, imprudence, and want of skill of said defendant company, or its employee, and which was in no way contributed to bp any actions on the part of plaintiff or his driver; that had the mules been attended to, or watched overy. they would not have crossed the streetjp thus causing the damage as set forth; that the cost to repair the damage was the amount stated, and that he paid same, and also, that he was deprived of the use of his truck, which was necessary in his business, and that he tod to hire a horse and wagon for twenty-four days, which was the time that his truck was being repaired, and for which he had to pay five dollars a day, or the sum of one hundred and twenty-doliars, which he had paid to the parties he had rented same from.

Wherefore he prayed for judgment for $ 335.95. Annexed to his petition is an itemized statement of the amount of the damage.

The answer* of the defendant admits, the allegations of plaintiff's petition, except that said truck was proceeding at a moderate speed, and the amount of the damages alleged, and denies, further, that said mules ran into plaintiff’s truck, but avers, that had plaintiff1s driver been driving in a lawful Banner, that he could have controlled his truck in time to avoid striking the defendants wagon, and that the accident was due solely to the fault and negligence of plaintiff's driver.

In all similar cases of this character, the testimony is always conflicting, but in this case, there are certain portions of the evidence, which we shall refer to, which control this case.

The plaintiff himself was not present when this accident occurred, and his testimony is simple as to the damage, and as to the amount ef he paid, which is not denied, and also for the hiring of a horse and wagon to carry on his business.

The driver, Polizsi, a witness in this case for plaintiff; " I -was coming on St. Charles St., at about twelve miles an hour, I made it by business every time X crossed a cartrack, and just 'merely rolled over, and after crossing the track proceeded on ten or twelve miles, X saw an automobile truck at Toledano and St. Charles St., about ten feet further on, or possibly twenty feet, then I saw a milk wag-on on the gutter edge, facing-uptown, and just as I got close to the milk wagon the mules out across to eat the grass on the neutral ground, and there vías nobody in the wagon driving, no weight on as the mules, I tried to crowd as much/I could towards the neutral ground, and if I had gone any further, I would .-ave gone against the curb, and the tongue of the wagon hit the truck, and the lamp of the truck, and broke the windshield, and broke the steering wheel, and broke the post."

Q. Describe how the accident Occurred, and how the mules came in contact with your wagon ?

A. The mules were kind of slanting uptown, and all of a sudden, they started to cross the street to eat grass on the neutral ground, and I tried to cut in front to avoid the accident, and when they saw the light, they draged the machine, and broken it up.

Q. Did those mules suddenly dart across the opposite way, or did they leisurely cross the street.

A. They were already near half way in the street, and I knew I oould make it if the mules would stand still.

Q. At the first time when you first saw the wagon, how far from the point where the wagon was whre you ?

A. I saw the wagon when I was at the corner of toledano Street, it was about thirty feet from the corner, and if the mules would have stood still, as they were, I would have made it alright, but there was nobody holding the mules, and it decided to go across and eat the grass, and that is when it happened.

Q. You could stop your car in four or five feet, or maybe six feet, going at twelve miles an hour T A. Yes, and if those mules had stood where theybwere at, I would have had plenty of room to stop, but I did not know they were not going to stand still, I was going about my business, and the mules did not stand, and asl got close to them, they started to cross the street.

Q. You saw the mules moving towards you, you were six or seven feet away ?

A. I did not see the mules moving towards me at all, they were standing still, and they moved and hit me at the same time.

Q. They had to go across a space of eighteen feet before they could hit you ? A. Eighteen feet.

Q. (By the Court) Let us get this point striightened out. When you were at Toledano street, was this wagon with the mules headed to-wardse the neutral ground ?

A. They were kind of 'slant across the way, in the street, and if they had stood s'till, or turned this way, they would not have hit the automobile, ifsthey would have stood in their position that they were in.

Alphonse Poret, another witness for plaintiff, he testified that he was on the truck when the collision occurred, was sitting where the wagon hit, " I was on the right side".

Q. Tell the Court, in a few words what brought on the accident ?

A. We was coming down St. Charles street, ten or twelve miles an hour, and just as we got about to Toledano St., we saw the wagon, but the mules were standing still. We didn't know that the mules was going to pull over or not, and we kept our same gait, and as we got about five feet from the mules, the mule.; pulled over to the neutral ground, they gave one or two hard jerks, and came right cross to eat grass.

Q. Is it not a fact, that the viay t..e accident happened, was that when you came to Toledano Street you saw these mules and wagon with the mules star.din^ out towards the neutral ground, and with just enough roon for the automobile to go by 7 A. Yes.

Q. They were standing still at that time 7 A. Yes.

Q. Mr Polizzi, did not try to stop at that time 7

A. Before he got any chance to stop the mules drags the wagon and goes across towards the neutral ground.

The law, in reference to the facts, is found in 39 CYC. page 530, reading: " While the negligent act or omission of the person injured ordinarily defeats recovery, the rule is subjeet to the exception or qualification that, although sueh person has been guilty of negligence in exposing himself to danger, yet he may recover, if defendant, if knowing of such danger, could have avoided the injury by the exercise of ordinary care, and fails to do so,- as in such case of negligence of the person injured, is not the proximate cause of the injury, and the negligence of the defendant becomes the proximate cause. This rule has no application where the negligence of the person injured, and of defendant, are concurrent, each of which, at the very time that the accident occurs, contributes to it."

The learned judge of the lower Court, gave written reasons as follows:

" The plaintiff's driver sav; a palpable danger, which he could easily have obviated by stopping and leading the raules to the sids of the curb, and then driving past.
He, however, diliberately took the risk of driving between the heads of the mules and the neutral ground, trusting to luck that the mules would not move. They did, however, move and the damage resulted. He could not take this risk at the cost of the defendant. He tookrtthe risk at his own peril and at his own cost.
This was contributory negligence of the grossest kind, and bars recovery."

Tie concur in the views thus expressed and here quote it.

For the reasons herein assigned, it is ordered, adjudged, and decreed, that the judgment of the lower Court be, and is hereby affirmdd, with cdsts.

- JUBGUEHT AFFIRMED -


author: Dlnhelsplel. J.

text:
    Robert Ducros. .vs. Missouri State Life Ins. Co.
    No. 7996.
    Court of Appeal. Parish of Orleans.
    Dlnkelsoiel. J.
   Dlnhelsplel. J.

Plaintiff claims that defendant, a Missouri corporation, domiciled in the City of St. Louis, State of Missouri, hut whioh is authorized to, and actually oonduts business \of life insurance in this State, and whioh has designated the Secretary of State of Louisiana as it's agent for the service of legal process in conformity with Section 1 of Article 3 of Act 105 of 1898, is justly and truly in-bedted to plaintiff in the full sum of $418.75, with legal interest from October, 30th. 1919, for this:That on October, 11th. 1915, defendant company issued to plaintiff three seperate policies of insurance on his life, bearing different numbers, for different amounts, in all amounting to the sum of $35.000., for whioh premiums on the several policies were paid from time to time and for a period of upwards of. five years.

That said policies were issued, and the amount of the annual premiums, in each case, based on an application nsu&s made and signed by plaintiff in whioh he dhlared his age to be 34 years, but that in point of fact, and at the time the policies were issued and the applications made he vacas was only 38 years of age, that he overstated his age in said applications for purely private business reasons wholly disoonnected from his application for insurance.

® That overstatement of age, aforesaid, do( not visiate said policies; the contract of insurance in eaoh oase specifically providing for such oontingenoy; and that said does overstatement of age not oonstitue a fraud on said def-endat company, or in any manner prejudice it's rights, the maximum of defendant's liability being fixed in each policy, by the face amount thereof. "

* That under date of October, 30th. 1919, the business exgenoiee which originan controlled, him having terminated, plaintiff advised said defendant oompany of the overstatement of age, gave it his oorreot age, and requeted an adjustment of the policies and a return of the eoess or un-erned premiums whioh he itemizes totaling $418.75,

And, alleging further that, the overstatement of age did not secure to plaintiff greater protection, or increase defendant's liability, therefore, the exoess premiums paid were wholly without consideration, defendant oompany not having given anything in return, and that therefore he was entitled to a return of said exoess or unearned premiums. And, attaching to his petition and making part thereof a photographic oopy of one of the policies and the application therefor, and avering that all three policies are indentical in terms, the only difference being in faoe amounts, and that all were issued on identical application, and avering amioable demand prayed for judgment.

Defendant excepted .to the petition on the ground that same does not reoite, set out, or disclose a right or cause of action, and that same is vague and indefinate. This cause is claimed to have been and to be res nova. Civil Code, Art. 2303. " He who has paid throught a mistake, believing himself a debtor, may reclaim what he has paid."

Code of Praotioe, Art. 18s- * He who pays through error what he does not owe, has an action for the reparation of what he has thus paid, unless there was a natural obligation to make suoh payment; but he must prove that he paid through error, otherwise it shall be presumed that he intended to give". Citing numerous authorities. Again, Civil Code, Art. IS 1799s- " It is a presumption of law that in every contract eaoh party has agreed to confer on the other the right of judicially enforcing performance of the agreement, unless the oontrary is expressed or.may be implied".

or may bo implied".

ArtlSOl, Codo of Praotioe:- * The party proposing shall bo presumed to continué In the Intention, whloh his proposal expressed, If on receiving the unqualified assent of him to whom the proposition Is made he do not signify the ohange of of his intention." Joyoo on Insurance, Vol. 5. p. 8580. Par. 14ol, B, reads as follows:- B ini, although the Insurer has for several years oolleoted premiums In excess of the maximum rates fixed by the oontract, and of those whloh he was legally obligated to^sy, and though he has protested against said esoessive rates, nevertheless it Is deo-ldod that suoh exoesslve premiums oannot be reoovered baok as they were voluntarily made under a olaim of right, the ground of the decision being that, in the absence of a statute, fraud, compulsion or duress, a person who with full knowledge of the facts voluntarily pays another money oannot thereafter reoover baok the same even though he protested at the time against his liability and declares that he makes the payment under ooerolon. A distinction was made between such a case and one of payment under a mistake of faots. So one voluntarily paying an Insurance premium with knowledge of the facts, oannot recover them on the theory that they were not in aooord with his oontraot. So where, under an employers liability polioy, and addition premium was paid after the expiration of the oontract, based upon wages of employees not in the olause included by the terms of the polioy, It was held, that suoh payment was voluntary one made under a mistake of law and not recoverable". In the case Tabot vs. New Bedford, 177 Mass. 197.; " Where plaintiff had paid a license conditioned as to believe he was permitted to oarry on his business, and the license was subsequently revoked the Court held:- " In an action for money had and received, when the plaint -iff made a voluntary payment free of any binding contract or condition: that there was no mistake of fact, and that the license was valid, at least while the board graating it remained in office."

In the 136 Mass. Rep. p. 485, Regan vs. Baldwin,;- " Where the le^sJÍ'íif a shopyprovided that the lessee^should pay a certain rent, except in case of fire, and shouldh keep the premises in repair, damage by fire excepted, so as to be rendered unfit for use, the renter a just proportionate thereof, according to the thing and extent of the injury sustained, should be abatted or suspended, until the premises should be put in proper condition for habitation of the lessor. During the term of the lease, the shop was injured by fire, so as to be unfit for use, the lessor did not repair for a certain time, refused to abate the rent, and demanded full rent of the lessee which he paid under protest. Held;- that the lessee had no cause of action against the lessor"

Walden vs. La. Insurance Co. 12 L. 134. " The insurer must be informed of every circumstance tending to create or increase the risk, and which if disolosed, might induce him to decline or even demand a higher premium."

In the 135 L. p/ 47, Mutual Life Insurance Co. vs. New. , quoting from the syllabus; " Where there is a clause in the policy of insurance provided that that if the age of the assured has been misstated that the benefit will be adjusted equitably upon ascertainment of that fact, and there is another olause providing that after two years the policy will be in-contestible, if the premiums have been paid, both clauses are general and one does not control the other".

In that case without quoting anything more than we have from the syllabus, the Court goes on to say: That where the assured has understated her age, and the company after death paid the policy, suit brought by the company subsequently to the party paying in errorj was denied the right of recovery/beoauee of the clauee in the policy of incontestibility after two years.

A careful examination of the case at bar satisfies us that plaintiff has accomplished the object stated in his petition and has received the benefits by misstating his age. The law is absolute, and in so far as the authorities go^all that we have been able to find are ananfanJi amraAsuii unanimous, in sustaining the rights of defendant in this case land in refus-voluntarily given by plaintiff to further his object.

For the reasons herein assigned, it is ordered, adjudged and deoreed, that the judgment of the lower Court, be, and is hereby affirmed with costs of both Courts.

-Judgment Affirmed-


author: By his Honor John St. Paul.

text:
    7997.
    DAVID R. HUMPHREYS VS MEMOURS COUSIN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O f I 3 I 0 III

By his Honor John St. Paul.

This is a suit upon promissory notas. The defenses ara .■ That plaintiff is not a holder in due course, hut sues

or aooount of one Hiddlaston Kenner, his attorney of reoord, who is the real owner of said notes. 2. That said notes hare been paid in full in capital and intorest to said Kenner, ¡5. Alleged usury, 4. A suggestion that said note3 really represent only amounts advanced for expenses to be incurred in certain joint ventures between said Kenner and the defendant, in which they were to share equally after deducting expenses, 5. A plea that in a certain joint venture JCenner received as his share i?2E0 out of which $125 Was to be applied upon the notes, 6. That for nino months Kenner oocupied oertain premises belonging to defendant, in consideration whereof Kenner was to rebuild the felloes and repair the premises, but Sid not do so; wherefore defendant olaims he is entitled to $225, or $25 per month, as the value of the occupancy, and Y. That Kenner whilst occupying said premises destroyed the furniture and fences, thereby causing damages to the extent of $500.

X.

That plaintiff is not a holder in due course, and Kenner is the real plaintiff, is not disputed. But as the trial ludge allowed defendant full latitude in setting up against plaintiff any defenses he might have against Kenner, the defendant has no cause for complaint. See Colovich vs National Fish Co, 8 Orleans Appeals 47, citing 122 La 871, 124 La 562, 41 An 1, 18 An 483.

XI»

Shere is not the slightest attempt in the evidence to show that defendant ever paid anything whatever on account of these notes to Kenner, or to any one else,

III.

She matter of usury is not even referred to in the evidence.

IT.

$he suggestion that the notes represented only advances for expenses is inconsistent with the alleged usury, inconsistent with the alleged payment, and utterly refutted hy defendants own testimony. Kenner denies it Absolutely.

V.

Just v.-hy Kenner was to apply one half of his share in a certain deal to the partial extinguishment of-defendants debt to him, is not shown in the testimony; indeed there is no attempt to do so, as defendant does not even mention it but contents himself with testifying that in that transaction he himself was fair and liberal and Kenner not at all so. But the defendant's own testimony on that subject leaves a distinct impression that Konner expected him to pay something on the notes out. of his (defendant's) share when he received it; which expectation was not realized.

VI.

The property occupied by Kenner was under seizure and vacant; Kenner undertook to fight the seizure on a contingent fee, but was uhsuccessful. It in inconceivable that anyone, especially if versed in law, would have undertaken to make extensive repairs upon property which ha held by a tenure so precarious and with the sheriff likely to call upon him at any moment for rent. Kenner denies there was any agreement beyond permission to occupy the premises as quasi carb-takér, and the circumstances tend to corroborate him.

VII»

The evidence does not show what damages if any Konner did to the premises, nor tho amount of such damages if any. Kennor denies that he damaged anything whatever; and the fact that he had a half interest in the property if he succeeded in saving it, is very persuasive evidence that he did not do so.

7X11»

On the whole we arise from; a consideration of this case with the firm conviction that there is no merit whatever in the defenses set up.

April 18th, 1921.

She judgment appealed from is therefore reversed, and ip is now ordered that there he judgment for plaintiff David 0. Humphreys, und against defendant Ilempurs Cousih, for the full sum of Kiree hundred and Seventy-six & 18/100 Dollars (;376.18) with legal interest from judicial demand until paid and the costs of both oourta.

How Orleans la,


author: Dinkclsniel. J

text:
    William Edenborn. vs Singold Warehouse Co. et. als.
    No. 7998.
    Court of Appeal. Parish of Orleans.
    Dlnkelsplel_j.
   Dinkclsniel. J

Plaitiff sues defendant company qlaimlng that said company is a oorPoration; that they leased the premises belonging to plaintiff, corner of Julia and Magnolia Streets, in the City of Hew Orleans, said lease commencing the 5th. of January, 1919 and ending on the 5th. of January, 1936. That the,lease was in writing in consideration of a monthly rental of $80. per month, payable monthly, and for which defendant gave it’s promissory notes bearing interest at the rate of 8$ from maturity until paid.

Avering further, that defendant compnay is a corporation, organized under the laws of this state and domiciled in this City, and that N. C. Sins & Co. made themselves a party to the aforedaid contract of lease\ and bound themselves in solido with said lessees for the faithful performance of the lease. That the lease contained clauses, that unless the rent was paid punctually at maturity, the whole of the unexpired term, without putting ■ lessees in default became.due and exigible, and should any claim in favor of lessor be placed in the hands of an attorney should pay as fees and compensation an additional sum of 10$ of the amount due on such claim if under $150., and 30$ if the amount be over $150., together with costs, charges and expenses.

And further alleging, that the rent note maturing on November, 5thl¡ 1919, being not paid at maturity, notwithstanding amicable demand, and that by the terms of the lease the remaining rent notes falling due on December, 5th. 1919, became due and exigible, and that ih*»e there is therefore due to plaintiff the full sum of $160. besides interest and counsel fees as stipulated. Annexing to the petition the lease and the two rent notes, and making same a part thereof, claiming the lessors lien and privslege upon the property to be seized, and which was seized subsequently, and prays for judgment for the amount olSimed.

Subsequently plaintiff filed a supplemental and amended petition, avering error, stating that oweing to the corporate title being used on the lease and notes made by defendants who signed the name of Singold Warehouse Co., that a mistake had been made, and from information received they were not a corporation bpt a partnership, and therefore prayed leave t to file the supplemental and amended petition, and for Judgment as prayed for in the original petition.

To this petition, defendant through it's attorneys filed an exception and a motion to bond in these words:-

" On motion of Miller, Killer & Fletohinger, Attorneys for the Singold Warehouse Company, a co-partnership composed of Michael 0. Sins of New Orleans and Charles Ji. Golding of the State of New York, named as defendants in the supplemental and amended petition filed; and on further suggesting to the Court that a writ of provisional seizure issued herein, and that movers desire to have said seizure released upon executing a bond according to law;-
" It is ordered by the Court, that defendant be and ha is hereby permitted to execute a forthcoming bond, with good and solvent security, for the amount of plaintiffs claim and oosts, and upon his furnishing said bond the said seizure be released."
This was dated, New Orleans, February, 4th. 1930, and signed, Portor Parker, Judge.

And, subsequently the same parties filed an exception to the supplemental and amended petition, on the ground that same discloses no cause of action, or right of action, and the filing of said supplemental and amended petition was improvidently allowed; and praying for judgment maintaining the exception, and on the 34th. of June, 1930, the Judge of the lowef Court dismissed plaintiff's suit maintaining the exception.

There is no reason, in our opinion, why the defendants, M. C. Sins & Company who were bound in solido with the Warehouse Com-pany should have had judgment in their favofc under any circumstance, and under the decisions, "want oí citation is cured by the appearance and pleading of the defendant, and his consent to go to trial upon the merits without any decision upon an ex-zeption of want of citation". Livingston vs. Dick, 1 L. 323; " An apearance by an Attorney for a defendant in a cause except for the purpose of excepting to the citation, cures any want of citation." In re, Byland, 38 L. 736, again, " The absent defendant, by appearing and bonding the property attached, waives citation." Williams vs, Gilkerson, Sloss Co. 45 L. 1013. " ™ere °"e appearB and- to a suit, the pleading has the effect of curing want of citation, or defective citation". Allen vs. Henley, 130 L. 861.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the Judgment rendered by the lower Court, be, and the same is hereby rever4Í?and this case remanded to the lower Court, there to be proceeded with in accordane with the views herein expressed and according to law. Costs of appeal in this Court to be paid by defendants, oosts of the lower Court to await final decision in the case,

-Reversed and Remanded-,


author: Dlnkelanlel. J.

text:
    William Edenborn -vs- Singold Warehouse Company
    No. 7999.
    Court of Appeal. Parish of Orleans.
   Dlnkelanlel. J.

For the reasons assigned this day In oase Ho. 7998, entitled William Edenborn versus Singold Warehouse Co. et als, the judgment In this oase 1a reversed and the oase remanded and

It Is ordered, adjudged and deoreed, that this oase be remanded to the Lower Court, defendant to pay oosts of Appeal and all other oosts to await the final deolslon of this oause.

Judgment reversed and remanded*


author: Pínkelspi3l. J.

text:
    John M. Couget- -versus- Henry Vezien & Raymond Nelson.
    No. 8000.
    Court of Appeal. -Parish of Orleans.
    Dinkelpiel. J.
   Pínkelspi3l. J.

This suit substantially presents that defendants are co-partners, and reside in the City of Hew Orleans, and are indebted to plain-tiff in the sum of §1.000., and claiming further, that defendants be enjoined from carrying on the business of a Laundry and operating same because same is a nuisance, per see; that plaintiff's home is at Ho. 113 Oliver Street, and he has his residence which is a two story back cottage in the residential section of this City; that defendants operate at Ho. 539 Patter -son'Street near Oliver Street, and conduct their establishment illegally, operating out of the common order, a so called steam laundry in the rear of their place of business which laundry adjoind the rear portion of plaintiff's home, and is conducted in such a manner as to be seriously detrimental and injurious to the peace, quiet and comfort of the neighbors, and particularly of plaintiff and his family, and that the business is so operated and managed oonsituting it a nuisance, and the manner of it's operation and management, and the way the buildings are reconstructed and used by defendants effect seriously the health and comfort of plaintiff and of his wife and family residing with him. He annexes to his petition a skecth which gives the rear of plaintiff's home and adjoins the rear line of the board building occupied by defendants and used as a steam laundry, and the only seperation between the premises of plaintiff and said laundry is a loose feather edge pine board division fenoe, two story in highth, built in an insufficient and imperfect manner with improper materials. That plaintiff's sleeping apartments are in the rear second story of his hprae, and his kitchen and dinning room are in the rear lower portion of his home only a few feet from where defendants have established their so called laundry which is operated daily from early morning until late at night; that on account of the manner in which said laundry is set up ot built, and it's operation and management are conducted, plaintiff and his family have been injuriously effected in health hy oonstant offensive noxious orders ominating from said laundry, noxious steam and gasses which are permitted to «MaíiÉaiÉabr the atmosphere and makes it impossible for plaintiff and his family to remain in their sleeping and cooking apartments, and they have perforoe been compelled to abandon same and therefore deprived of the peaceful use and enjoyment of their home, and that besides oders, gasses, steam and other nuisances above referred to, the said laundry is being operated in such a manner as to constitute a nuisance on account of the excessive noises, unreasonable hum rumbling escape of steam and vibrations from defective install-mets all to the great injuij of plaintiff, and the impairment of his physloal comfort and enjoyment of his home and that of the residents of the neighborhood, and for these and other causes plaintiff claims a Judgment for $1.000., together with a Judgment fdrbidding and preventing the said laundry from useing and operating said establishment under conditions as set up by plaintiff. Accompanying this petition, plaintiff, files his affidavit together with a bohd as fixed by the Court. A rule nl si was issued on defendants to show cause why a preliminary injunction should not issue.

To this petition an exception of no oause of action was filed whioh was overruled, and an answer was filed, reserving the benefits of said exception, and denying any indebtedness to plaintiff in any sum whatsoever. Admits that plaintiff resides in the premises as stated by him, but denies any and every othe: allegation in the petition contained. They futher aver that the; are conducting, at the place stated by plaintiff, a-drying and cleaning establishment, but deny that they are illegally operating said business out of oomaon order and custom; they deny that the neighborhood is a residential one, but contend that all of the buildings facing Patterson Street are business esta’o -lishments. Admit that their property adjoins the rear portion of the premises occupied by plaintiff, but deny that their business 1b conducted in such a manner as to be detrimental and Injurious to the peace, qul'ét and oomfort of the neighborhood and of plaintiff? deny that they manage and operated their said business in such a manner as to oonstitute a nuisanoe, and also deny that they oonduot their business in a careless, negligent and illegal mftnner that the health and oomfort of plaintiff and his family have effected in any manner whatsoever as a result of the oonduot by them. They pray for judgment in their favor dissolving the injunction with costs.

The trial of this case in the lower Court oocupied three entire days, and there were sixteen witnesses heard for plaintiff and an equal number heard on behalf of defendants..

The patience of the learned Judge of the lower Court was certainly tried in every way that it was possible to do, but as in similar cases the Judge listened carefully to the testimony, heard arguments of counsel, weighed the testimony, and came to the ^naHy that plaintiff was entitled to relief

rendering the following judgment ; -

" It is ordered, adjudged and decreed, that there be judgment in favor of plaintiff, John it. Couget, and against the defendants Henry Vezien and Raymond Kelson, a co-partnership doing business under the name of 'Ve Bel', jointly and in solido, decreeing, that the smoke stack, engine and boiler owned by defendants, and situated on the vaoant lot of ground fronting on Morgan Street in the Fifth District of the City of Hew Orleans, as opererated and used by said defendants in connection or in conjunction with the drying and oleaning business conducted by them at No. 539 Patterson Street, in the City of New Orleans, to be a nuisanoe, and accordingly said defendants, Henry Vezien and Raymond Nelson, jointly and in solido, are hereby perpetually enjoined and prohibited from operating or useing the said smoke staok, engine and boiler until the same shall have been remodeled and reconstructed, or to be so equipped with a smoke comsumer or other appliance as to afford reasonable relief or security to the plaintiff, John M. Couget from smoke or soot or both from flying over, entering into or being deposited upon his premises at Ho. 113 Oliver Street, in the Fifth District in the City of New Orleans.
"It is further ordered, adjudged and decreed, that there be judgment in favor of plaintiff, John M. Couget and against defendants, Henry Vezien and Raymond Nelson, jointly and In solido, in the full sum of §100. damages.
"It is further ordered, adjudged and decreed, that in all other respects, that the demand of said, plaintiff against said defendants be dismissed and rejected.
" Costs to be paid by defendant".

\ Vie concur in this judgment and decree , and we are satisfied from the testimony, which it is utterly futile to discuss, and absolutely unnecessary , and would serve no useful purpose, that the law and the facts justify fully the judgment of the lower Court. The statute being Act 111 of 1898, which in our ■■.opinion, covers this case, and although quasi oriminal in it's nature, neverthe less is absolute in it's terms.

It has frequently been held that nuisance such as the one in question can and will be enjoined under proper facts presented to the Court, and we refer to 3r\d. Edition of High on Injunctions, Seo. 773;- " A mere smoke or disagreeable orders, though not noxious, may be a sufficient ground for the interferance of equity."

Section 775:- same authority;- " The smell of stench arising from the.keeping of live hogs in cattle yards in suoh numbers and for such length of time as to effect the health or comfort of s*ítfi§i£A¿g~r^8Ídents ü is a nuisance- which equity will enjoini

In the case of Tilton vs. N. O. City R. R. Co. 35 A. 1062. " Relief will be granted an individual only when he shows a special peculiar injury for the nusianoe not common with the public?

•“ Same authority:- " The use of steam maybe a nuisance either actually or constructive".

" A nuisance is one of that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indiore-et or unlawful personal conduct, working- an obstruction to, or injury of a right of another or of the public, and producing sucft material annoyances, inoonvenianoe, discomfort or hurt that the law will presume a consequent damage". State .vs. Heidenhain. 43 L. 483.

" Smoke and nauseous smell may be a nuisance". Frolicher .vs. Southern Marine Works. 118 L. 1077.

" Where the right of the private action exists, injunction will lie to retrain the continuance of a nuisance and to su~ press it." Bell .vs. Riggs. 38. L. 557. and other authorities cited in that case.

We have eerefully considered the able brief of defendants in this case, and examined the authorities cited by him, and we do either .or the law <.not consider that they represent/the facts/proven in this particular case, therefore not applicable to same.

Plaintiff, in this Court, has prayed for an amendment of the judgment, that héye bea allowed the full sum of $1.000.together with the Injunction as prayed for, and heretofoce recited. Tie are convinced that plaintiff is not entitled to anything more awarded than the able Judge of the lower Court/him.

For these reasons, it is ordered, adjudged and decreed, that the judgment of the lower Court be, and is hereby affirmed with costs in both Courts against defendants.

-Judgment Affirmed-


author: Dlnkelsplel. J.

text:
    Globe Indemnity Company. -versus- International Ship Supply Co. Inc.
    No. 8001.
    Court of Appeal. Parish of Orleans.
    Dlnkelsniel. J.
   Dlnkelsplel. J.

Plaintiff subrogated to tbe rights of Sterns Auction Exohange, Incorporated, sues defendant, the International Ship Supply Company, Incorporated, claiming that defendant is Indebted to plaintiff in the sum of $489.10.

Further alleging, that on a policy of insurance carried by the Sterns Auction Exohange, Issued by plaintiff, covering damages whioh there' motor vehicle might reoeive by a oolislon, and that on the 33rd. of October, 1919, a Republio Truok, owned and operated by Sterns Auotlon Exohaa-age, and oovered by said insurance, was proceeding in Bienville Street, from the river in the direotion of the lake or woods, driven by an employee of Sterns Auction Exohange, and upon reaohing a point near the intersection of Bienville and Deoateur Streets, the driver sounded his horn and prooeeded to cross said intersection} and when gaining the intersection by the above named streets, a truok owned and operated by the International Ship Supply Company, Incorporated, ran into and oolllded with the truok of the Stems Exohange damaging same in the amount olalmed.

That the Sterne Exchange truok was operated in aooor-danoe with law and the ordinances of the City of New Orleans for the regulation of traffio upon it's streets and roadways, and olalmlng further, that the damage done to ■aid truok amounted to the sum of $469,10, whioh the Globe Indemnity Company, plaintiff herein, paid and reimbursed to Sterns Exchange, on account of and by reason of it’s liability under it's said polloy of insurance, and by reason of said payment under the terms of said polloy said Globe Indemnity Company became subrogated to all rights, notions and claims for damage that said Sterns Exohange, has or had under said policy; that said accident and collision was not due to the fault, negligence or want of oare on the part of said Sterns Exohange, or it's servants or agents.

And, further avering, that said accident and collision was due solely and only to defendant, it's agents, servants or employees for whom it is responsible in law and who at the happening, of said accident and collision were operating said truok for account of defendant and in due course of it'8 business.

And further , that defendant was guilty of negligence in violating the ordinance of the City of Hew Orleans, particularly the portions of ordinace Ho. 5181, Commission Council Series, and other laws for the regulation of traf-ilo within the limits of the City of Hew Orleans; that said trucf was being operated at an exoessive and unlawful rate of speed, particularly in'attempting to cross an in~ terseoian of streets without slowing down the speed of said truok; that defendant is guilty of negligence for the reason that the driver of it's truok failed to sound it's horn, or otherwise signal the approach of 8aid truok of defendant by not oomforralng to the regulations fixed by law, and finally that defendant was guilty of negligence in failing to have daid truok under control.

The answer admits the occurence of the collision referred to, but denies that it's truok ran into that of the Sterns Auotion Exohange, and predicates said denial upon the lack of sufficient information to justify belief, denying, that the truok of the Sterns Exohange was damaged in the amount as alleged.

Further answering denying all and singular the allegations contained in plaintiff's petition, and further answering says; that the collision complained of was due, soiily and entirely, to the negligence of the party oper-ating plaintiff's automobile* truok at the time of the accident, and that defendant's truck was travelling at a slow and moderate rate of speed in conformaty with the requirements of the City traffic ordinances, and that said truck was at the time being driven south in Decatur Street which is a main artery of thoroug hfare upon which there is an unusual amount of traffic, that the horn upon defendant's truck was sounded upon approaching the intersection of Bienville Street, and that no horn signal was sounded by the party operating plaintiff's truck in Bienville Street, and that said party was at the time driving plaintiff's automobile truck at a high and reckless rate of speed violating the requirements of the traffic ordinances refe'rred to in the petition of plaintiff, and violating the ordinary rules of caution and safety dicated by the fact that plaintiff's truok was at the time approaching a main artery of thoroughfare. Defendant further alleges, that**- it’s truok was damaged in the collision complained of, and reserves the right to sue for damages in future.

A motion to dismiss plaintiff suit was filed subsequent to the filing of a suit by the Sterns Auction Exchange against the same defendant, for the same cause of action, which was over-ruled by the Court.

On the trial , on the merits, on behalf of plaintiff, Arthur Lindsay, the driver of the truck in question was examinedj-

Q- What happened that was out of the ordinary?

A- Well, at the corner of Bienville and Decatur another truok run into mine there, and that was out of the ordinary. I was coming from North Peters and Bienville, from delivering a desk, and was coming to the store. I was half a block between Bien-ville and Hecatur which runs into a point there, and right at North Peters and Decatur, the accident occurred. He was going out Bienville from the direction of the river to-the woods.

And in answer to a question to state juat what happened, he says:

" I turned around; I gets near Decatur on Bienville; I Dlows my horn; I hears no reply from no one, I started on acoross the stseet, and by that time there was another truck going up Decatur Street towards Canal, he was ooming at a rapid speed, I biowed and heard no one answer, naturally I started on across, and I realized that he was ooming, and that is the time I turned on the emergency brake, stopped myself, and he ran right into us, and bursted my engine all to pieces, also the radiator."

Q- How far did the truck of the International Supply go after it hit your truck?

A- About ten feet as near as I could get it. He was hit on the right hand side of seat, front seat of the truck; his engine was bursted half in two, the radiator was bursted all to pieces and it was leaking.

Q- Did you notice what side of Decatur this other truck was going up in the direction of Canal Street on the right hand or left hand side?

A- Ho, He was near the middle of the street,for the simple reason

Si- when he struck my truck, it was right near the middle of Bienville and Decatur, because I had'nt quite got to the comer when I slid. The accident occurred about half jhast one in the day time.

Q- How far, if at all, did your truck skid when you applied the brakes?

A- Well, as near as 1 oan get at it about six foot. The streets were dry. The truck was a heavy truck weighing a ton and a half. The International Ship Supply truck stopped just across Bienville Street on the right hand side near the woods sidewalk.

The next witness, Edward Buckter, testified; he worked on the truck of the Sterns Auction Exchange as a helper and was with txha the driver Lindsey at the time of the aooident. He says:- » We came out from Decatur Street and delivered a desk, and was coming back from there to go to the store on the truck when tisix

this other truok hit ua. When we reaohed Dooatur Street the drifeer hlowed his hora, he got no answer, so we started out again to go across,*kn and just as we started to go across the other fellow was coming down this street towards Canal Street. Lindsey put his brakes on to stop his truok, but nevertheless he was struck, after he strüok he knooked the engine off towards Canal Street, the way he was going, and.he went about ten or fifteen feet before he stopped."

Q- You say he was coming up-Deoatur Street, and struck your truok, and knocked you all towards Canal Street, and went about ten or fifteen feet before he stopped? -A- Yes.

Q- How fast was the truok you were on travelling?

A- Was'nt going very fast; he was putting her in second after he blew his horn, than he started to pull back in third to go across, and after he did'nt get no answer, and just as he discovered ke the other fellow oomlng this way he throwed his brake and he stop -ped her just about four geet and skidded.

Q- When was the first time that you knew the other truck was coming up the street?

A- It was just, I looked up when he grabbed the lever, the emergency brake, when he grabbed it, that is when I threw my eyes and seen him coming, and the time I looked at him he was right on ua, he knooked our truok and he ran about ten or fifteen feet before he stopped.

Mr. Campbell, who is the Vice President of the Stems Auction Exchange fixes the amount of damage paid by plaintiff company, w which was admitted to be correct, and they received the amount of money from the insurance company.

In behalf Of defendant there were three witnesses examined. B. C. Franoinquea was the first witness. He saw the accident at the Corner of Bienville and Deoatur Streets. ,He says, he was coming down off Bienville Street and walking from the woods to the river on Bienville Street right on the corner, he was on the river side, there was a yellow truck of the supply company coming along Deoatur Street very slow blowing his horn; there was a truok ooming in from Bienville Street, very high speed; two niggers drivers; the delivery truok ran into the baok of the yellow truok on the lef$ hand side, and after he hit the truok he skidded at least thirty feet, then this other truok came right to a stand, the yellow truok.

He goes on to dtate, that the Sterns truok, travelling in Bienville Street skidded after it had hit that truok, it skidded right through, could'nt even control the truok.

Q- Was any horn signal given by the Sterns Auction Exchange truok?

A- None at all; ooming right through at full speed.

Q- Was any horn signal given by the International Ship Supply truok?

Q- Yes; blowing his horn, that is what brought me to'a stop, I let him pass. The International Ship Supply truok was going very slow, possibly eight miles, ten miles, and that is about all it was going. I first saw the truok of the International Supply ooming up Deoatur Street, he blew his horn, that drew my attention and I stopped to let him pass; it's an awfully mean comer there; there is an accident there every second day, because I deliver bread in that neighborhood. The truok was dim the right hand side going uptown. Deoatur Street is a one way street.

He goes on to testify: " I supply all the places around that neighborhood with bread with teams and I walk behind my wagon.

I oome out of Leon Leroques when them two niggers were in there drinking, when I oame out they was on the truok argueing, they was ooming along, driving fast, and they ran into the baok part of this truok and they skidded right along. "

Q- Had that truok actually passed the intersection of those two streets?

A- No; he was struck as he was ooming between the two streets, on Bienville Street, as he was going up, this truok oame along on Bienville Street, and struck him right in the baok paert of it; he could not strike him if he passed the street, he would have never pushed higu

The next witness, Anthony St. Phillip. He was the driver for the National Ship Supply Company on the 33rd. of Ootober, 1919, and was driving it's truok on the oooasion of the accident at the corner of Bienville and Decatur Sts., and in accounting for the accident and how it occurred, he say»:- " 1 was coming up Deoatur Street about half jkast one going toward» Canal Street, while orosslng Bienville Street, Sterns truok oomlng at a pretty, good rate, hit my rear seat, and that is all I could see to it.

I was going at the rate of eight or nine miles, something like that. X was sounding the horn as it approached the intersection of Bienville Street, and if there waB any horn sounded by the other truok I never hoard it. The Sterns truck skidded and that 14; the way he hit my truok ; they were going about eighteen mile» an hour anda at a full loop, and at that rate the man crushed into mf rear end, and he «kidded fully thirty feet before he «truok my truok, and the street was dry; Deoatur Street is a one way street. He was travelling towards uptown, and Deoatur Street 1» very muoh used for traffic and a very buisy street. When he wae struck he was about the middle of Deoatur Street, and before he oould get on .either side, because it is usually all blocked up with vehlolas of all kinds; you have to stay about the middle of the street, and I was in the oenter of Decatur a little towards Canal Street, and nearly over when the other truok nailed me.

( Pago 34, of hie testimony.)

Q- What portion of your truck came in oontaot with the other truok?

A- Well, the front end of his truok hit my right wheel right square¡ that is all X seen the damage.

Q- The first portion of your truojf which came in oontaot with the other one was that portion near the drivers seat, is that oorreot or not?

A- No, Sir; his truok Just hit the rear end no other part was etr^ok; my truok did'nt strike his truok in any other place-but the rear end; the only portion of my truok that ever got hit.

The next witness was Hr. Robinson, who testified as follows:~ Q- Vfhat if anything,do you know about the facts in connection with the aooident in which a truck of the National Ship Supply Company oollided with a truck of the Sterns Auction Exohane Co-pany, at the Corner of Bienville and Deoatur Street on October, 33rd. 1919. Did you witness the aooident itself?

A- No; I dld'nt witness the aooident, but I went at the soene about ten minutes later, and the vehicles were still on the soene of the aooident. One of them, the Sterns vehicle, I saw the skidded mark starting on Bienville and oontinuelng up Deoatur Street about 30 or 30 feet, and that skid was right behind the Sterns Exchange truok, and 1 oalled the attention of the dribsr to the skid mark, and the skid mark showed for a dlstaaoe of some 35 or 30 feet right on Bienville Street across Deoatur.

It is evident from the testimony quoted and from a oareful examination of the entire reoord that contributory negligence trail/ was clearly established. The ixti Judge saw and heard the witnesses and could better judge of the credibility of the witnesses than we oan, and it has often been held that, under olrAumstanoee such as thews, where questions of fact alone are Involved, that the judgment of the trial judge unless absolutely erroneous will be maintained by this Court.

For the reasons herein assigned, it is orderd, adjudged and deoredd, that the judgment appealed from be, and the same is hereby affirmed with costs against plaintiff, appellant.

-Judgment Affirned-


author: Dlnkelsniel, J.

text:
    Sterns Auction Exchange, Inc. versus. International Ship Supply Co. Inc.
    No. 8001
    Court of Appeal. Parish of Orleans.
   Dlnkelsniel, J.

This suit grows out of the same notion as suit No. 8001, entitled, Globe Indemnity Co. Inc. vs. International Ship Supply Co. Ino., this day decided. Both causes ware tried at the same time.

For the reasons assigned in the suit No. 8001, the judgment of the lower Court is affirmed with costs against plaintiff, appellant.

-Judgment Affirmed-


author: BT hia H0nor John at. Paul.

text:
    NO. 8002.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    MARTIN GRADNEY VS N. O. RAILWAY & LIGHT CO, ET AL
   OBXHIOH.

BT hia H0nor John at. Paul.

Plaintiff alleges that Being a passenger on a Tohoupitoulas oar, and Being required to transfer, he alighted and made hia way to a point on the neutral ground at Canal and Tohoupitoulas Streets, where ho intended to Board a Dauphino oar, and whiph was the proper place to do so. That whan a Dauphino oar finally appeared, and just Before it reachod the point where petitioner and others were standing, a Canal Belt oar crossed over in front of said Dauphino oar in order to got on the same track as said Dauphine oar. That in switching over to said track in front of said Dauphino oar, said Canal Belt oar traversed the neutral ground Between tne two tracks, causing plaintiff and the other passengers to recede out of reach thereof. That the fender of said oar, owing to size and oonstruotion and the narrow spaoe Between the traoks at that point, overlapped the track in making the curve; to suoh an extent as to leave insufficient room for a person to stand-in safety when the adjoining track was occupied By a oar coming from the opposite direction. That while plaintiff was attempting to get out of reach of the fender of said Canal Belt oar, a Dauphine oar approached him on said adjoining traok without Signal or other warning of its approach, and Struok plaintiff in the back throwing him to the ground; whereby he was injured, eta.

For answer defendant denies generally the allegations of the petition; denies any fault or negligence on its part; and avers that plaintiff tacked into the track on which the Dauphins car was approaching, at a time when said oar was so close to him that he should have known that it was dangerous to do so; and hence the fault was exclusively that of plaintiff,

I.

A police officer, who saw the accident hut refused to make a statement at the time, tetstifies that he saw the Dauphins car, coming pretty lively, hut it stopped. Shat he then heard the motorman release, the airbrakes; that he saw him going over the intersection, and the overhead switch hlaw off as he did so. Shat the motorman "got up and turned round, and stood up in a little step, laughing and loklng with his conductor; the oar rolling on at a lively rate of spaed.” That he saw plaintiff standing in a curve as the oar shot over the curve and hit plaintiff. That plaintiff was not on the track hut between the tracks, on the neutral ground. That the motorman threw on the overhead switch, and put on the power without looking ahead; and did not look ahead again from thopolnt where the switoh blew out until just before ho struck plaintiff, about 60 or 70 feet. That when he did look forward it was too late; and the oar stopped with the middle about where plaintiff fell. That plaintiff had a companion standing about a toot from him, to whom ha was talking. Plaintiff was not hit by the fender of tha oar, but witness oannot aay whether he was hit by the vestibule post or by the side of the oar, The conductor with whom the motorman was ohatting was at the rear of the oar. That witness was once a motorman In the employ of defendant and left it on good terms. That onoe he quit because he knew ha was going to be discharged for an accident due to his own fault! and onoe ha was discharged for striking a conductor who had delayed his dinner, and for refusing to make report about it.

This witness did not give his testimony in open court; but as the judgment below was for defendant, it is dear that the trial judge (who did hear the other witnesses) did believe him.

Mr. Krumbhar, an architect, took measurements at the scene of the accident. At the place pointed out to him as the spot where plaintiff fell, there is six feet seven inches between the traoks; when two cars make the curve at the same time, one car overlaps two feet six inches and the other just two feet, leaving exactly two feet one inch clear; sufficient, but just sufficient, for a person to stand in safety if he stand quite still.

Offioer^orges did not see the accident; he saw the plaintiff only when he was already down. "The car was about to stop where the plaintiff was lying."

Sam Soott, plaintiffs companion, did not sss him struck; he was standing about a car's length from plaintiff, further from the river and looking the other way. There were six or seven persons standing where they were.

Plaintiff testifies that he was waiting for his oar to arrive; that there was a Canal Belt oar which was in the lead on a parallel track, and when the latter "went •to oome out ahead of her x x we had to step back; and when she swung around the curve, the fender swung ###$# so far over that I had to step back to keejb from getting hit* K'K 2.

(The re were) any quantity of women, children and men, about forty or fifty, standing on the little space of ground, x x x (I was standing) between the two tracks, x x x When the fender made me back, I don't know what happened, x x x the other car struck mo in the left side and laid §§§ me out (unoonscious). x x (My hearing) is not so very good. I cant hear so very good." He was nearest the river of all those who stood there.

The motorman testifies that when he approached the spot where the accident happened, "there was nothing near the track at all.x x x(piaintiff) was standing up there looking between two cars for his car; and when I reached about three feet from him, he made about three steps back and was struck by the vestibule post of my car. x x x I was ringing the Rail, Rut it seemed lilca he did not hear it. x x x I immediately stopped the oar, and he was lying on down, x x (My oar) was going very slow, it was three points. Z Z (Thera weir») two or three other persons standing there, about fifteen feat from him; he was further from (further off f than they?)

II.

It may ha admitted that the conditions testified to by Mr. Krumbhar, show that the place at which plaintiff sought to board his oar is suggestive of a danger to which a carrier ought not voluntarily submit a passenger; but on the other hand the place is not the private property of defendant or under its exclusive control; but it is on a public -street over which the municipal authorities have the sole power to regulate streetscar traffic. Act 159 of 1912, Section 8, paragraph 12; Constitution Art. 48.

Hence the authorities cited by plaintiff have no special application to the case at bar; and it suffices that defendant shpuld operate its cars at that point with a degree of care commensurate with the increased hazard due to such a situation.

Moreover the situation seems by no means so very perilous as plaintiff suggests. For it is shown that a number of people could and did stand there in safety; that the one point of danger As at least a full car length the point at which plaintiff's companion was standing to taka the sama oar as himself.And plaintiff's suggestion that tha plaoa was so crowded as to force him to that one dangerous spot, is not horna out by the testimony of his companion, and seems to oonfliot with that of the two police officers who did, and therefore oould, see him lying on the ground.

May 2nd, 1921.

III.

As it is an undisputed fact that plaintiff backed into the oar, the question therefore is simply this; was the mototman keeping a proper lookout? Bid he sound his bell? Bid he do all he oould to stop his oar when he saw plaintiff backing into it?

As to this we have only the testimony of the first polios officer and of the motorman; who flatly contradict# each other. And the trial judge who heard the motorman believed him.

Wo cannot say that the trial judge erred; for the motorman's testimony that plaintiff seemed not to hear the bell finds corroboration in the fact that plaintiff's hearing is not good; and the promptness with which he stopped his oar shows that he was attending to his duties.

The judgment appealed from seems to us correct, and accordingly;

Judgment Affirmed.

New Orleans La,


author: By Dinkelspiel; «J

text:
    NO. 8005
    COURT OF APPEAL PARISH OF ORLEANS.
    NEW ORLEANS TERMINAL CO. VERSUS HAMPTON REYNOLDS.
    J. By Dinkelspiel;
   By Dinkelspiel; «J

Plaintiff instituted, this suit averring defendant was indebted -onto plaintiff in the sum of Three Hundred Twenty One end 98/100 Dollars, together with interest at seven per cent from November 1st, 1914, until paid.

The substantial part of plaintiff's petition sets forth that under an agreement with defendant, of date August 16th, 1913, and sundry letters up to end including October 36th, 1912, it was agreed and understood in accordance with letter of October 30th, 1913, written by defendant, addressed to plaintiffs' General Manager and reeding as follows:

"Hew Orleans, La.
Oot. 30th, 1913.
Mr. E. A. Kelly,
General Manager, N.O.T. Co., City.
Dear Sir:
Tours letters August 16th, September 19th and October 26th received.
Your proposition of August 16th, in which you state that you will rent me second hand sixty pound rail and angle bars on an interest oharge of 7$ per year, I to furnish necessary spikes, bolts, oross and switch ties and all other material and labor required; I to take care of the expense of loading up and movement to the Canal of the rail as well* as taking up the rail, loading and unloading same after it has served its purpose, the Terminel Co. to furnish the frog end switch complete, is acceptable to me.
Thanking you for your courtesy in this matter, I am.
Yours truly,
(Sgd) Hampton Rejoiolds."

Plaintiff avers that upon termination of the .defendant /-said le:-se/returned to petitioner rails and bars, and deducting the amount returned from the amount furnished by plaintiff to the said defendant leaves a balance of rails and angle burs due by defendant to plaintiff as follows:

Deducting the amount returned from the amount furnished by your petitioner to the said Hampton Reynolds leaves a balance of rails and angle bars due by said Reynolds to your petitioner, as follows, to-wit:

33 - 60# Rail 301 lengths, and 119 pairs 60# Angle Bars.

And averring further that the value of saidr rail not returned amounts to $338.68, based on weight of 8.84 tons at $37.00 per gross ton and the value of said angle bar6 is $83.30 based on 119 pr. at 70 Ct. per pair, making a total of rail and angle bars of $331.98, which plaintiff claims to be due by defendant together with Interest at seven per cent from ITovember 1st, 1914, until paid and finally concludes with a prayor for judgment in favor of plaintiff and against the defendant in the full sum of $331.98 with interest at seven per cent from November 1st, 1914.

To this petition defendant admits the indebtedness alleged in full, together with interest claimed but because he does not know the value of sc id rail and angle bars denies that he is indebted in the amount claimed by plaintiff and finally claims that plaintiff is indebted to him in the sum of $3385.31, together with legal interest from Uovember 33nd, 1914, until paid.

That defendant Is unable to file a reconventional before demand beoause/ai the Institution of the present suit defendant entered a suit against plaintiff and one John Riese, claiming that they are indebted unto defendant Jointly, severally and in solido in the sum of $3385.21, all of whioh claim is referred to in another suit of defendant versus Riese and others, being Humber 114817, Division "E" of the Civil Distriot Court and whioh said petition and exhibits, together v/ith citation and returns thereon are made part of this answer and as an exception and defense to the demand heroin for principal, interest and oosts, defendant shows that so muoh of his demand in said suit in Division "E" of this Court against the plaintiff herein as would eque.1 the amount this plaintiff would reoeover against this defendant in this oause in prinoipal, interest and oosts, is a bar to any suoh recovery^ and wherefore he praps for Judgment in his favor.

To this answer, a reoonventional demand, as it may be termed, plaintiff plead against the plxxs plea of compensation made by defendant herein, the prescription of one year.

And further that prior to the institution of the present suit, defendant instituted suit against the K. 0. Terminal Company and John Riese, a suit in this Court under the number 114817, upon the same oause of action whioh forms the basis of the plea of compensation made be the defendant herein and alleges said suit was dismissed and subsequently affirmed on appeal, by th#e Supreme Court of this State, and therefore the Judgment has beoome final and has acquired the force of the thing adjudged as between the parties to this suit.

Wherefore plaintiff prays that this plea of prescription and res adjudicata as to the plea of compensation made by the defendant be sustained. Anexed to the petition are itemized bills for the amount claimed.

On the trial of this cause the amount claimed was abundantly proved and the question presented to the Judge of the Court aquo and to this Court is whether or not the plesaof prescription of one year and pompensation can be or cannot be plead in this case.

An examination of the authorities satisfies us that a demand in reoonvention, must show by his pleadings, that it is connected with, and incident®,l to, the principal demand.

A demand not equally liquidated with that sued upon oannot serve as a set-off or in compensation.

.A demand not incidental to, and connected with, the principal demand, oannot be plead in reconvention.

The plea of compensation admits the debt sued upon, and even where the counter-demand is of such a nature as to serve for either compensation or reconvention, and defendant esoapes the confession involved in the one by advancing his claim in the shape of reoonvention alone, he cannot, without amendment, and after having forced plaintiff to his proof, have his plea in reoonvention considered-as one of compensation. Flavius B. Godbold vs'. W. C. Harrison; McGlointls Reports, page 31, Vol. 1., and otl^er authorities cited in the above cause. Alao see same case reported .in same volume at page 178, where the doctrine was reaffirmed.

Art. 3309, C.C. Debts Compensable. "Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, end which are equally liquide.ted and demandable.

The days of grace are no obstacle to the compensation.11 "It i3 obvious that the debts oannot be equally liquidated when one or both of them is an unliquidated claim for damages." Reynaud vs. His Creditors, 4 Rob. 514, Pike Lapeyre & Bro. vs. J. M. Wells, 24 Ann. 208.

We have oarefülly examined, the brief of defendant and appellant in this oause and the maxim of the law quoted by him "qua temporalia sunt ad agendum sunt perpetua ad exoipiendta" does not apply in this particular oase.

The demand of plaintiff is a liquidated demand, henoe we are constrained of the opinion that both the maxim and the authorities asserted by the learned counsel of the defendant in this oase has no application to same.

Our brother of the Court aquo in an able written opinion, whioh^adopt and quote in full has done justioe to all parties in Interest.

"Hampton Reynolds is a general contractor, and a oontraot whioh had been awarded to him made it necessary that he have a switoh or spur traok oonneoted with the tracks of the Hew Orleans Terminal Company. He obtained permission from the Terminal Company to build a switoh to oonneot with its tracks. He realsed the roadbed neoessary, laid the ties and having neither rails nor angle bars neoes-sary for the work, leased these from the Terminal Company, under a oontraot evidenced by an exohange of letters. When he had finished the oontraot whioh was served by this switbh or spur traok, another oontraot by a public board, known as Contract 67-D, was advertised and Reynolds bid upon it, as did another contractor, John Reiss, end the latter being the lowest bidder the oontraot was awarded to him.

Reynolds then offered to sell to Reiss the switoh traok as it stood, but no agreement was reached and the next thing that Reynolds knew of the matter was that the Terminal Company had turned the traok as it stood over to Reiss, that Reiss had taken possession of it and was making use of it in oarrying out his oontraot with the publio board. Thereupon Reynolds brought suit against Reiss and the Hew Orleans Terminal Company, it being Ho. 114,817 of the docket of the Civil Dlstrlot Court for the Parish of Orleans, Division "E", in whioh he olaimed from Reiss and the Terminal Company, in solido, damages in the sum of $3,385.SI, which he alleged was the value of the spur track.

This suit was brought more than a year afteT the Terminal Company and Reiss had taken possession of the scur track and the defendants interposed a plea of prescription of one year. The lower Court maintained the exception and dismissed the petition. An appeal was taken to the Supreme Court end thet tribunal decided thet the action of Reynolds was one ex delicto, sounding damages, and affirmed the judgment of the lower court. See case No. 31,916, Reynolds vs. Reiss et als of the docket of the Supreme Court, reported in Vol.81-13, So. Rep., page 884, et seej.

After the deoision of that case, the New Orleans Terminal Company brought suit against Reynolds in which it alleged the leasing of the rails and angle bars to Reynolds, as stated above, and alleged that Reynolds had failed to return 33 60 lb. rails of 30 foot lengths, and 119 pairs of 60 lbs. angle bars, which it alleged were worth together the sum of $331.98, and asked judgment for that amount with interest at 7 per cent, under the contract, from November 1, 1914, the date they should have been returned, until final payment.

The answer of the defendant admits everything alleged in the petition, except, of course, the conclusion of law that the amount was due and the price of the material not returned. In other words, the only thing which is not admitted in the petition is the price of the artioles. She loss of them, the failure to return the obligation to return are all admitted.

However, the answer goes on and alleges that the plaintiff, the New Orleans Terminal Company, is indebted to him, Reynolds, in the sum of $3,385.31, for the reasons and causes set up in the case decided by Division "E” and the Supreme Court, hereinabove referred to, and the pleadings themselves allege the debt in compensation ^o the extent of whatever sum the Court might find due by the defendant to the plaintiff on the cause of action alleged in the plaintiff's petition.

To this plea in compensation the Hew Orleans Terminal Company1 filed pleas of prescription and res adjudicate, setting up the prescription of one year and the judgment of the Civil District Court and of the Supreme Court, as hereinabove related; and the case coming up on these pleas was argued and submitted to the Court for adjudiod&ion.

The Court does not consider either of these eíbsbb pleas good. The principle of Irani law expressed by the maxim,

"Quae sunt temporalia ad agendum sunt perpetua ad excipiendum" applies

It is true that Art. 3130 of the Civil Code under the heading "Of the manner in whioh obligations may be extinguished" enumerates nine manners. The article reading "obligations are extinguished, then follows eight methods, the ninth and last read "By prescription'which shall be treated of in a separate title."

But in my opinion this is not a oorrect statement. Obligations are not extinguished by prescription. Prescription only has the effect of barring an notion to enforce the obligation; the obligation remains. The obligation whioh, before the running of prescription, was a perfeot or civil obligation, becomes by the accruing of the prescriptive bar a natural obligation. The character of the obligation is changed, but the obligation remains. That whioh had been previously a civil or perfeot obligation, beoomes then a natural obligation unenforoible in law, and enforoible only in the form of oonclence and good morals. The proof that the obligation remains is patent in the language of the Code.

Art, 175? of the Code declares that obligations are of three kinds: Imperfect obligations, natural obligations and civil or perfeot obligations. This ártiole defines a oivil obligetion to be, "A legal tie which gives the party, with whom it is contracted, the right of enforcing its performance by law". It defines a natural obligation to be one, "Which cannot be enforoed by action but which is binding on the party who makes it, in conscience and according to natural justice."

Art. 1758 of the Code declares that natural obligations are of four kinds, the third kind of whioh it declares to be "When the action is barred by prescription, a natural obligation still subsists, although the ci-ril obligation is extinguished. "

And the succeeding Art. 1759, deolares "That no suit will lie to recover what has been pai$, or given in compliance with a natural obligation." and that a "HaMral obligation is a sufficient consideration for a new contract."

Therefore, where the action to enforce the recover is barred by prescription, the obligation yet remains as a natural obligation, and under the principle of law above quoted, cuae temporaria, etc., it is forever effective as an exception or defense.

For these reasons the plea of prescription as herein pleaded against the use of this natural obligation as an exception or defense is not well taken.

As to the plea of res adjudicate, there has been no judgment rendered against Reynolds, except the one’ herein-above detailed, in whioh it has been judicially deolared that this prescriptive period had run at the time his suit was filed, and that he was thereby barred from recovery, and this judgment coyild only be plead as res ad.iudlcata against Reynolds in the event that he should oome by direot action to enforce the natural obligation which yet remained.

But Reynolds seeks to oppose this natural obligation in compensation and, in my opinion, he cannot successfully do so. Art. 2209 of the Code declares: "Compensation takes place only between two debts, having equally for their objeot a sum of money, or a oertain quantity of oonsumable things of one and the same kind, anói whloh are equally liquidated and demandable.11

It is plain from this language that a debt which is not liquidated oan never serve as a defense by way of compensation "liquidate. Raw

To determine by agreement or by litigation the preoise amount of (indebtedness or damages): to make the amount of (indebtedness or damages) ol'ear and certain, or to settle the date from which it may be calculated."
Webster's Dictionary.
"A debt or demand is liquidated whenever the a— mount is agreed on by the parties, or fixed by operation of law."
15 Ga. Rep. 331.

The Supreme Court has' decided, as between these litigants, that the claim of Reynolds is one arising ex delict and sounding in damages, and nothing is better settled than that suoh an obligation or debt is never liquidated until it be done by agreement of the parties or by judgment of a court of competent jurisdiction.

It would be useless to say that the plaintiff's claim is equally HKfctasnda unliquidated. As a matter of fact it is far nearer liquidation. All the facts set up by the plaintiff are admitted except only that the value plaoed upon the un-re-turned articles is left at large by the pleadings. It is plain

from this statement that the olaim of the plaintiff is far nearer liquidation than the defendant's, and the law is well settled that a debt offered in compensation must be equally as liquidated as that of the plaintiff. Se La Digest, Vo. 3, p 181, par 15:

(1829) Lacoste v. Bordere, 7 Mart. (N.S.) 517; (1832) Curtis v. Young, 4 La. 441; (1835)Blanchard v. Cole, 8 La., 153, 159; (1835) Hoffman v. Pontohartrain R. Co. 9 La., 20, 22; (1842) Jonau v. Ferrand, 2 Rob. 216; (1842) Jonau v Ferrand, 3 Rob. 364; (1844) Copley v Lambeth, 9 Rob. 137; (1848) Phelps v Stone 3 La Ann. 617; (1850) Piv Vidal, 5 La. Ann. 303; (1851) Bristow v Erwin, 6 La. Ann, 102; (1854) Owen v Vanderslice, 9 La Ann 189; (1854) Coleman v. Marble, 9 La Ann 576; (1859) State v Leckie, 14 La. Ann 636; (1876) Berens v Ker, 28 La Ann 96; (1881) Godbold v Harrison, 1 McGloin 31; (1881) Baldwin v Handy, 1 McGloin 189; (1884) Garrett v Todd, 2 McGloin 57; (1909) Monroe Grocer Co v Perdue, 123 La. 375, 48 So 1002.

June 4, 1920.

For these reasons the pleas of prescription and. res adjudicate will be over-ruled and when the case comes up for trial on the merits the compensation pleaded will be disallowed, and judgment will be rendered in favor of the plaintiff for whatever sum it succeeds in proving is a just value for its unreturned rails and angle bars.

Hew Orleans,

(Sgd.) H. 0. Cage Judge."

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

Judgment affirmed.


author: CHARLES E, CLAIBORHE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    Succession of John R. Gheens
    No. 8006
    February 21st, 1921.
   Succession of John R. Gheens

Bo. 8006

Appeal from Civil District Court, Hon. Wynne G. Rogers, Judge.

CHARLES E, CLAIBORHE, JUDGE.

The only question involved in this case is whether the attorney for absent heirs is entitled to a fee.

John R. Gheens, a bachelor, died in the City of Hew Orleans, where he was domiciled. His succession was opened on June 18th, 1918. The only heirs left by him were a brother, Charles W. Gheens, a resident of Hew Orleans, and a number of nephews and nieces, who all resided in Kentucy. He left a will and two codicils, by which he made three particular legacies of $5,000.00 each to as many charitable bodies, all domiciled in Kentucy, and instituted his brother, Charles W. Gheens, his universal legatee, ignoring his other collateral legal heirs.

He appointed three executors, one of whom was his brother and universal legatee above named; they provoked the probate of the wills; and on their allegation

"that the only heirs left by the said John R. Gheens are collateral heirs, all of whom, except Charles W. Gheens, one of your petitioners, reside out of the State of Louisiana; but your petitioners aver that the will provides for legacies to persons residing in-the State of Kentucy, and it- is, therefore, necessary that an attorney be appointed to represent the absent heirs in these proceedings",

the Court appointed Delvaille H. Theard as

"attorney to represent the absent heirs".

The absent heirs, nephews and nieces, on January 29th, 1919 filed a suit to annul the will and codicils, on the ground that they were not written by the deceased and that he was not of a disposable mind. The suit was afterwards dismissed by consent, and the universal legatee put in possession after payment of all debts and particular legacies by judgment rendered June 4th, 1920.

But on Hay 24th, 1920 the attorney for absent heirs had taken a rule against the Executors to show cause

"why the special legacies of $5000 to the Steve Holcombe Mission of Louisville, Ky., and of $5000 to the Newsboys Home of Louisville, Ky., and of $5000 to the Home of the Innocents, of Louisville, Ky., should not be paid to mover, and why a fee of five per cent on the amount of said legacies should not be allowed to mover, said fee to be paid either out of the said legacies or by the residuary legatee herein, as this Court may determine &o

To this rule the Executors answered thet it disclosed no cause of action; that the legacies mentioned therein had been paid; that if any sum is due, it is by the legatees and not by the Succession.

The rule was made absolute to the extent of fixing the fee of the attorney for absent heirs at $250 to be paid by the Executors.

Erom this judgment the Executors have appealed.

The attorney for absent heirs testified that the assets of the Succession amounted to about $700,000.00'; that he notified the parties in interest of the opening of the Succession; and communicated with the three legatees; he participated in the taking of the Inventory and signed it; the Inventory amounted to $555,000.00; he thinks his services are worth $250.00; he never made any appearance in Court by pleading or otherwise except by signing the Inventory; the petition of the universal legatee to be put in possession was submitted to him and signed .by him; when the absent heirs filed their suit to annul the wills he had several conferences with their attorney at law; as soon as he was appointed he examined the record, and had copies of the wills made for which he paid; there were many questions concerning the validity of the wills; he became aware that the absent heirs were represented here by counsel only after the filing of their suit to annul the wills.

The attorney for absent heirs has produced several letters and telegrams dated in September and October, 1918, addressed to him by persons in Louisville, signing the name of Sheens; hut the name of none of those persons corresponds with the petitioners in the suit to annul. They advised him that they did not need his services.

The exception of no cause of action of the Executors is based upon two propositions;

lo That the special legatees named in the rule are not absent heirs, and therefore no attorney could be appointed to them.

lo It is an error to say that the attorney was appointed to represent these three legatees. The order of Court says, in so many words, that the attorney is appointed to represent "the absent heirs". The appointment was based upon the allegation contained in the petition of the universal legatee and Executors

"that the only heirs left by the said John B. Gheens are collateral heirs, all of whom x x reside out of the State of Louisiana x x and it is, therefore, necessary that an attorney be appointed' to represent the absent heirs in these proceedings".

It is thus made conclusive that the attorney was not appointed to represent the three legatees, but was appointed to represent the collateral heirs of the deceased who resided in Kentucy, and who subsequently filed suit to annul the will. The Executors and universal legatee were thereby estopped from contesting the validity of the appointment. 14 A. 599.

The case of Lacey vs Newport, 3 A. 226 relied on by defendants is not in point. In that case the testator had given

"to three of his brothers residing in Ireland"

$1000 each; the Court appointed an attorney for absent heirs, who filed proceedings against the Executor and the widow to probate the will;

"the defendants excepted to the action on the ground that there were no absent heirs".

The Court said:

"Legatees under a particular title are not heirs". It is evident that in that case the attorney for absent heirs was ep pointed to represent the three brothers as legatees and not as heirs, and that the Court held that an attorney for "absent heirs" could not he appoSnted to. an "absent legatee" who was represented by the Executor; .There was no allegation or evidence in that case that the the testator had left any "absent heirs"; and, in fact, he could not have 16ft any, since he 1ft his property by his will to his wife and children
"who were then and still are residents of this State". Rut in the case under consideration the teitator has left a number Of absent heirs.

Article C. C., 1210 (1204) provides:

"On opening of a vacant succession, or of one Of which the heirs or part of them are absent from and not represented in the State, it is the duty of the Judge ordering inventories to be made of the effects of a succession, to appoint a counsel to the absent heirs, to assist at the inventories".

C. C., 1216 (1210):

"The counsel of the absent heirs shall continue to ac.t as such until the heirs present themselves or send their powers of attorney to claim the succession, or until the Curator is finally discharged".

C. C., 1661 (1664):

"■When of the testators' heirs some are absent and not represented in the State, the judge shall appoint for them a counsel, Yihose duty it shall be to assist for them at the inventory of the effects left by thá testator, to take care of their interests, and to oppose everything which may prejudice the same".

C. C., 1662 (1655):

"It shall also be the duty of this counsel to inform, with all possible diligence, those whom he represents, of the opening, of the succession, and to correspond with them; and when he has once accepted this charge, he cannot divest himself of it, until the heirs have sent their poY/er of attorney or until the succession is liquidated".

It is therefore evident that the Court properly appointed tile attorney for absent heirs. The learned counsel for the Executors is forced to that admission himself; he says in his brief:

"As a matter of fact, there were absent heirs interested in this succession, but we are not here concerned with the validity of the appointment of a curator".

The attorney for absent heirs would have had the right to protest their interests by suing to annul the will, just as the heirs themselves did late». 145 La. 756.

lio The argument that the attorney for absent heirs has asked to be paid only by the three legatees or out of the share coming to them is not borne out by the rule. This clearly asks that

"said fee be paid either opt of the said legacies or by the residuary legatee herein as this Court may determine &c ".

If it is true that the attorney represented the three absent legatees, as was held in 15 La. 66, and that he must be paid exclusively out of the funds coming to them, the Executors can hardly hope to be heard on that ground, after they have paid the absent legatees without protecting the attorney here. But if the attorney represents the absent heirs also, then he is equally entitled to be paid. It is true that if any amount had been coming to those heirs, it was just and legal that he should be paid out of that amount. 19 La. 425. But if those heirs inherited nothing, then the fee was properly chargeable to the Succession . 14 A., 399.

Article C. C. 1219 (1212) reads as follows:

"The counsel of .absent heirs have a right to receive fees or emoluments proportioned to the pains taken in the performance of their duties, out of the funds of the succession of which they represent the heirs, but those fees or emoluments shall not be granted to them, except on proof being made of the services by them rendered, and of the value thereof, after having cited the heirs, if theypresent themselves, or the curator appointed to the succession im which these heirs have rights".

It has he en aeciaed. that when there was no necessity for the appointment or when the attorney rendered no services to the succession, he was not entitled to he paid hy the Succession.

4 La., 436; 125 La., 870.

But the jurisprudence is that when the services of the attorney for absent heirs have proved valuable to the sucffession his fee is properly charged to the succession. 12 R., 413; 25 A. 647; 29 A., 7461 36 A., 304; 51 A., 1307. What the Court understood by services

"valuable to the succession"

is stated in 45 A., 248 in these wordsi-

"He (the Attorney) was active and energetic in his services. He communicated with the heirs or legatees. He attended the taking of the inventory for several days, was present in the District Court and in the Supreme Court in the litigation connected with the Succession" .

It seems to us that the services rendered in that case are parallel to the services rendered in this case. In that case the Court allowed the attorney |700 to be paid by the Succession

"although there was nothing distributed through, or by him, to absent heirs".

Were it otherwise attorneys for absent heirs would receive no compensation in insolvent successions.

Judgment affirmed.

February 21, 1921.