author: By St. Paul, Judge.

text:
    NO. 7478.
    O. B. & S. A. STILES VS PENNICK & FORD, LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   OPINION.

By St. Paul, Judge.

Defendant appeals fror; a judgment By default and files asAggnment of errors in whioh it complains of illaged irregu-in the pleadings, oitation, return, and judgment,as follows;

I» That in the pleadings, oitation, and judgment, the defendant's name has Been written and spelled in full instead of By means of signs and abbreviations (as ahoye).

2. That according to the return the oitation was served upon "PenAok & Ford Company" instead of Pentok & Ford, Limited.

8. Shat the return fails to reoite oertain facts in connection with the service as made, or to state how oertain other facts had. Been ascertained.

I.

The right to use signs and abbreviations in judicial proceedings has often Been questioned and the practice has Been generally discouraged (32 Cyc 77); from which it follows that the opposite practice 1b to Be oommended rather than condemned. It would therefore Be inequitable that plaintiffs shpuld Be penalized for adopting the Better oourse.

II.

As it was clear from the petition and oitation herein that they were intended for the defendant herein, the identity of the defendant with the Penick & Ford Company mentioned in the return is apparent, and the slight clerical error in the name of the defendant is immaterial. C. C. 422; Daniel vs Bush Hotel, 8 Ct App 235; Sentilles vs R. R. Co. 9 Ct App 15.

III.

The defendant's domicile is in the parish of Orleans. It was cited in the parish of Jefferson, Before a court of that pariah. apon a cause of aotlon ex delicto arising in said parish.

She sheriffs return «as as follows;

"Received May 31st 1918, and on the sane day "»4nrirnr'M¡ri of the within petition and citation on Penicfc vk Ford Co. Through Goergo Guest, its superintendent, in person, 11 m the parish of Jefferson at about ^¡Tralles from the courthouse

The general oorporation law. Act 267of 19M-, provides in paragraph "d" of Section 26 that where a causo of action arises ax delioto against a oorporation the venue may he laid in the parish where the cause of action arose. And paragraph "a" of the same seotion provides that in such oases the oorporation may he oited hy service on the agent in charge of the affairs of the oorporation at that place; and such service may he made on suoh agent wherever he may he found.

So we think the service and return were both sufficient.

Under Article ## 200 of the Code of Practice the Sheriff must m^ke a return stating the manner in whioh hefserved the citation; and that return like all his other official returns is prima facie evidence of the facts therein stated; Cox vs Wills, 3 N. S. 158; Fleming vs Conrad, 11 M. 301. So much so, that it is not even open to collateral attack; Johnson vs Puhalovich, 8 Ct App. 421.

Accordingly where the sheriff returns that he served the agent of a oorporation his statement is presumptive evidence of such agency. Scherr Mfg Co vs American Insc Co, 11 Ct App 131; See also Sloan vs Menard, 5 An 218.

And exoept where the service was domiciliary the Code of Practioe fixes no particular form of return. Artiold 201 and 202, requiring the sheriff to state inter alls the source of his information, hy their very terms apply only to domiciliary service. See also Whiting vs Haggerty 5 An 686.

The case of O'Connor vs Jones, 7 Ct of App. 267, relied upon hy appellant was a case of domiciliary service, without pratense «f validity otherwise. See same case in 8 Ct of App 244, and in 129 La 411.

May 1919.

On the «hole we think that If a return, in fora and anhatanoe auoh aa the one In this cuse-, la not to he taken as presumptive «▼idenoe of the foots whloh it recites, and allowed to stand until set aside in sons direet form of aotlon,.then no judgment hy default can ever he relied upon or enforoed; with this ourlous result to follow, that a defendant will alnost always he.more eertaln of aneoess on appeal If he allow the oase to go hy default rather than attempt to defend It. And we feel that suoh was not the Intent of the law.

We therefore think that all the proceedings in the court helow were sufficient and valid, and accordingly;

the judgment appealed from is therefora affirmed.

Hew Orleans, la,


source: Caselaw Access Project

author: CHARLES F. CLAIBORNE, JUDGE.

license: Public Domain

text:
    By CHARLES F. CLAIBORNE, Judge.
    LEON JOHNSON, Appellee, vs. MARYLAND CASUALTY COMPANY OF LOUISIANA, Appellant.
    No. 7493.
    November 11, 1918.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff moves to dismiss the appeal herein taken by defendant to this Court on the ground that the amount sued for exceeds two thousand dollars the limit of our jurisdiction.

The petitioner alleges that in March 1918 he iras employed as a day laborer by the Baist Shingle Company; that while working within the course of his employment his hand was caught by a saw "and the thumb of his right hand was entirely and completely cut off together with a portion of the hand below said thumb, and the index and middle fingers of his said hand were cut off below their middle joints and near the knuckle, and the end of his fourth finger was also partly cut off1?; he further alleges that the injury "above detailed" constitutes a "permanent total disability", and he is thereby deprived of the ability of doing any- work as a common laborer and mill hand; that he Is illiterate, has no other trade or profession, and capable only of doing manual labor which he is no longer able to perform because of his said injuries, and he is unable to secure any other remunerative employment; x x x that at the time of his said injury he was earning twelve dollars a week as a day laborer and mill-hand, end because of his "total permanent disability" he is entitled to receive fifty per cent thereof as a weekly compensation for 400 weeks from Marojpi 16th, 1918 until the expiration of the eald 400 weeks; x x x that the Maryland Casualty Company x x x is the insurer of the said Baist Shingle Company,x x x and under the provisions of Act 20 of 1914 he has a right of action against the said Insurer to enforce the payment to him of the compensation now due him and to Become due him from week to week, to which he is entitled Because of his said Injuries and Because of the "permanent total disability" inflicted upon him By reason thereof". He claims (54 as "compensation" due to him, for nine weeks prior to the filing of the suit, and (2346 for 391 weeks thereafter.

From a judgment in favor of the plaintiff for (900 payable at the rate of (6 a week for 150 weeks, the defendant has appealed to this Court.

Although plaintiff's claim is for (2400, defendant contends that under the allegations of the petition and under the law, it would Be impossiBle for him to obtain a judgment exceeding (2000, and therefore his claim is inflated,' and this Court alone has jurisdiction of his appeal.

Ihe jurisprudence is fixed that it is the ¡Largest amount for which the Court could render judgment under the allegations of the petition and under the law that determines the question of jurisdiction; and that where the amount a^^gd is inflated or fictitious upon its face, or impossiBle to recover, the Court will consider the allegations of the petition and the law applicable thereto to determine its jurisdiction, - 1 H. D. 20-1 La. Dig. p. 267 -(1885) 281 § 53.

The plaintiff specifically claims "compensation" under the Act of 1914, and not damages under C. C. 2315.

In the case of Philps vs Guy Drilling Co. 79 So. Rep. 549, our Supreme Court said; "Act No. 20 of 1914 (under which plaintiff claims] prescribing, the liability of employers for compensation to employees plainly expressed the Intention to limit the rights and remedies of employees and tholr dependents to the com» psnsation thereby provided, and to exclude other rights; to "prescribe* meaning to lay down authoritatively as a guide or rule of action". -A ^ 2 ^

Sec. 34 of Act 20 of 1914 p. 61 - reads as follows:

"Shat the rights and remedias herein granted to an employee on account of a personal injury for ' which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependants, re\¡^onajfrr^ytfaerwlse. on account of such injury" ^Boyer vs Crescent' Paper Box Factory 78 So. Rep. 596.

Te therefore conclude that plaintiff.dam olaia A only the amount allowed by the statute and nothing more.

Section 8 of Act 20 of 1914 as emendad by Act 243 of 1916 p. 513 reads as follows:

"That compensation shall be paid under .this act in accordance with the following schedule of payments:
(d) "In cases Included by the following schedule the compensation shall be as follows:
"For the loss of a thumb, fifty per cantum of wages during 50 weeks.
"For the loss of a first finger, commonly oalled the index finger, fifty per centum of wages during thirty weeks.
"For the loss of any other finger, or a great toe, fifty per centum of wages during twenty weeks x x x provided, however, that in no oase shall the amount received for more than one finger exceed the amount for the loss of a hand x x x
"Sor the lose of a. hand, fifty per centum of wages during 150 weeks.
(e) "For Injury producing "permanent total die-ability" to do work of any character the compensation shall be fifty per centum of wages, x x x for the period of disability, not exceeding 400 weeks".

She defendant contends that plaintiff's injury is only "permanent partial disability" and entitles him only to the relief accorded by S "d" above quoted, at best equal to the loss of a hand, during 150 weeks, which was the time adopted by the District Judge.

The plaintiff on the other handi argyi that he has suffered a "permanent totals disability", and that he is entitled to relief^for the p«*lod of 400 weeks.

The question to be solved is therefore whether » // u r/ the plaintiff suffered a partial or a total disability?

The answer is found in the opinion in Myers vs La. Ry. & Nav. Co. 140 La. 937 (947).

In that case tpe plaintiffs hip joint had been fractured and the Court said: "The next and last question is as to whether the disability of plaintiff is partial or total. Section 8 of the Statute provides kc kc . i In the case of Mellen Lumber Co. vs Industrial Commission of Wisconsin 142 N. W. 187 the expression "total disability" was interpreted to mean total inability to perform work of the character in which the injured employee was engaged at the time of the accident, regardless of his earning capacity in other occupations. Such an interpretation is not possible under our Statute, since its wording is "total Disability to do work of any character”. We have to hold, therefore, that the disability of a workman who has lost the use of one of his legs from the hip joint down is not necessarily total, since within the meaning of our said Statuto d^ny lines of work are open to a man in that con-ditÍOnti” 2-Z./3¿-377-

See L. R. A. 1916 A 347 Ann. Cas. 1915 B 997, 1000.

Guided by that opinion we have to decide that eren ■wie loss of a hand wsásjld not,eonstitttte s Btotal disability" ¿nvv . ' within the meaning of the StatuteA^and that therefore the plaintiff could not recover a sum exceeding §2000.

She authorities quoted in plaintiff’s brief are • U0P iP conflict wlth.th.e decision .of. cur own Courts,

< i't is therefore ordered tw the/aotion to di be denied.

November 11th, 1918.


author: Max Dlnkelspiel, Judge.

text:
    GRIMALDI & EGLOFF vs. WILL J. MORGAN
    NO. 7494.
    COURT OF APPEAL
   Max Dlnkelspiel, Judge.

Plaintiffs brough suit in the First City Const against the defendant, on a plumber bill, claiming a balance due them. Seventy Nine Dollars And Forty Conte, ($79.40) with fire per cent interest from date.

Citation issued, served August 9th, 1918, Judgment rendered same day.

Hotioe of Judgment served on defendant, Septs®., her 3rd, 1918.

Motion and order for appeal filed September 13th, 1918.

There was no appearance in the Lower Court and Judgment was rendered after the legal delays had elapsed, and Plaintiffb' making full proof of their olalm.

Subsequently defendant filed suit in the First City Court, alleging want of citation in the original suit, and praying for annulment of the original judgment.

After hearing all parties in interest, the Judge of the City Court on the 13th day of February 1919, decided:

■This oause having been submitted to the Court for adjudication on November 19th, 1918, on ths petition of defendant Will J. Morgan, to annul the Judgment- hersiu ,orally_ heretofore rendered for the reasons/assigned, the law and the evidence being in favor of petitioner, iinsferesnr

It is ordered, adjudged cad deasseds

That the Judgment heretofore rendered hosois, on August 14th, 1918 in favor of plaintiff, Grimaldi & Egloff, and against the defendant, Will J. Morgan, in the sum of Seventy Nine Dollars and Forty Cents ($79.40), with legal interest fro» date until paid, and ooats, he and .the asna is hereby, «mulled, aet aside and avoided as of no fores and effeot.

12th day of February, 1919.

Zt ie further ordered, adjudged and deoroedi That plaintiff in suit dad defendant in suit to anull, Gtrlmoldl & Egloff pay all ooats of this proceeding."

Judgment rendered and signed in Open Court on the

Arthur landry. Judge.

It is evident that the Judgment of (■brullity, rendered toy his gonor, of the First City Court after duo prooeedlngs had, must now bo maintained and therefore that the Plaintiff, Oriaoldi & Egloff in their suit on appeal in this Court toe disniesed at théir oost. C5. C>. V.'A'to t> , «xSL^-,


author: Hia Honor Charlea P. Claiborne.

text:
    NO. 7499.
    BUREAU OF NATIONAL LITERATURE, INC VS WILLIAM HENRY BROWN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    Jany 20th, 1919.
   Hia Honor Charlea P. Claiborne.

, Hy reading of the doeument headed. "Original Application" dated February 20th, 1918 leads me to the oonolueion that it did not contain a oontrmot, until it was aooepted by the plaintiff. The plaintiff itself called it an "Order” in its letter to the defendant dated February 26th 1918. It «as therefore not binding upon plaintiff until aooepted by it.

C. C. 1800 (1794) 45 A 214 1 La 190 33 A 577 34 A 66.

And until aooepted by plaintiff defendant had a right to withdraw hia offer. C. C. 1800. Defendant's "Application" or "Order" was made on February 20th. nothing shows that it was aooepted.even by the soliciting agent. It was "Aooepted" by the plaintiff by a letter dated February 26th. But in the meantime and prior 'thereto on February 2XJA defendant’s letter of February 20th recalling his order, reached the plaintiff. This in my opinion put an end to the Intended contract and released the defendant.

But even if defendant's signature to the "Application" could be oonatrued into a oontract, it was a mere nudum paotum and could not be enforced against him, because while he bound himself to pay money, the plaintiff did not bind itself to do or give anything. UHHHHü étt Ho oontraot can be said to exist until both parties are equally bound. 4 A 457-13 A 419-36 A 35-45 A 1270-118 La 823 (827) 120 La 969-121 La 223-122 La 610-124 La 821 (829) 12 Ct App 393.

Judgment reversed and judgment is now rendered in favor of defendant rejecting plaintiff's demand at its oost in both courts and judgment for defendant for #7.50 and his costs.

New Orleans, La,


text:
    CHARLES F. CLAIBORNE JUDGE.

    KIMBRO & THERICT, APPELLANT, VS H. C. WARMOTH.
    No. 7507.
    April 17th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

Petitioners claim of defendant two siphons, one centrifugal pump, two sections pipe, two discharge pipes, 1 scale, 200 feet of pipe and one Rice Harvester; all of the value of $1200; thqy allege that they left the a one on the Sarah Plantation, belonging to the defendant, sometime in January, 1916, with his consent and with the agreement that there were to be no charges until they cared to send for them; that they have demanded the return of these implements from the defendant who has refused. They pray to be recognised as owners of said implements, and that the defendant be ordered to return the same to them.

The defendant admitted having in his possession the two siphons, the centrifugal pump, the scale, but denied having the pipes unless they formed part of the siphons, and denied any agreement to return them to plaintiffs without charge; that plaintiffs left tho rice harvester exposed to the weather and that it is now of no value; that plaintiff left the pumos on tho batture and it became imbedded in the mud; that defendant dug it up and removed it to a place of safety at a cost of Si25.

Assuming tho position of plaintiff in reconvention the defendant, H. C. Warrnoth, alleges that on November 1st, 1914, he leased to the plaintiffs, Kimbro and Theriot, three plantations known by the names of Idlewild, Sarah and Live Oak, for th8 year 1915; that one of the conditions of the lease was thiss

"It is agreed that lessees shall put seed cane down in the fall, enough to plant 180 arpenta and prepare the land in the fall for planting ISO arpenta in cane"; that the said Kimbro and Theriot did not put down enough

sugar cane to plant 180 arpenta; that the plant cane was covered. and H. C.Warmoth was unable to ascertain it» quantity until the tima of planting» when it was discovered that the seed cane left was'only sufficient to plant 85 arpents leaving a deficit of 95 arpents; that Kimbro and Theriot should have put down five tons for every'arpent or 475 tons for the 96 arpents; that seed cane had a value of $5 per ton, or $2375.00 for the 475 tons; for which the plaintiffs are indebted to the defendant, and which they refuse to pay, notwithstanding demand;

that himbro and Theriot borrowed of defendant two cane wagons which they were to return after the harvest of the crop, but which they failed to do until December 1917; that they, therefore owe defendant $30 per wagon, or $60, for the rental of said two wagons;

that Kimbro and Theriot also owe the defendant $25 for digging up and storing up the pump;

that Kimbro and Theriot also owe the defendant a balance of $12.70 on the lease Of the Cedar Grove Plantation;

that Kimbro and Theriot also owe the defendant $50 for storage of the two siphons and of the pump;

that the amount due by plaintiffs to defendant therefore amounts to $2522.70;

that defendant retained possession of the implements claimed by the plaintiffs for the purpose of securing the nayment of his claims, and that he advised the plaintiffs that he would deliver said implements to them, whenever they paid him his claims;

Wherefore defendant prayed that plaintiffs' demand be rejected, and that'he have judgment against them, in solido, for $2522.70 with legal interest from judicial demand; that his lessor's privilege upon the implements claimed by plaintiffs and his right to retain them until his claim was paid be recognised, and that they be sold to pay his claim.

This answer was filed May 18th, 1918.

There was judgment "in favor of defendant H. C. Waxmoth, and against Kimbro and Theriot, dismissing said plaintiffs' suit at their cost".

Kimbro and Theriot, plaintiffs, have apoeaív-*, _it hag not»^yy--

In thie Court, defeni ever to the appeal in which he alleges that the judgnent "ie contrary to the low and the evidence in that said judgnent did not pass upon the reconventional cjecand of defendant H. 0. ür-moth againet Kimbro and Theriot,, 9. K. Kimbro and B. H. Theriot, individually and in solido, in the full sum of $2522.70 with legal interest from judicial demand, and that aaid judgnent should be amended by decreeing in favor of H. C. farmoth, defendant in the original action and plaintiffs in reconvention, and against the aaid Kimbro and Theriot, G. B. Kimbro and B. R. Theriot, in* dividually and in solido, in the full sum of $2522.70 with legal interest from judicial demand*.

As the defendant,in his sworn answer and in hia testimony, admits that the plaintiffs are the owners of the implements by them claimed, we must interpret the judgnent in favor of the defendant as one recognizing his right to retain possession of plaintiffs' implements in payment of the amount due to him by the plaintiffs -, and otherwise rejecting defendant's reconven-tional demand.

It is true that the judgnent does not, in so many words, reject the reconventional demand, but it is evident that it means as much.

A judgnent in favor of plaintiff is a necessary denial of the reconventional demand. 4 La., 40; 6 A., 222; 14 A., 860; 35 A., 365; 38 A., 571.

A judgnent in favor of defendant’s reconventional demand is necessarily one rejecting plaintiffs' demand. 19 A., 98; 14 A., 564, 565.

A judgnent in favor of defendant settles all points in controversy; it rejects the plaintiff's demand and the defendant's reconvention. 19 A., 304.

The silence of a judgnent concerning certain claims in contestation is equivalent to a rejection of them. 32 A., 836; 35 A., 366; 36 A., 398, 722; 38 A., 701, 702.

But the defendant has not appealed from the judgnent rejecting his reconventional demand. Re eannot have thdcMuitaaanfc

In Levert vs Berthslot, 127 La., 1004, the Court saidon page 1013:

"Where, by the verdict of the jury, the demand of the plaintiff was nonsuited as was also the reconven-tional demand of the defendant, and likewise the demand of the intervenor, and thereupon the plaintiff appealed, but the .defendant and intervenor did not, the latter, as appellees, are not entitled, on the appeal of the plaintiff. to bring before the Court for adjudication on the appeal the demand of the defendant in reconvention and that of the intervenor on its intervention under a prayer for an amendment of the judgment apuealed'from. Those parties are not seeking an alteration of a judgment which the plaintiff has obtained in his favor, but the absolute reversal of the judgments which had been rendered against them respectively, on their individual demands". See also 1st. Mc Gloin, 78; 21 A., 714.

The cases of Lange vs Baranco, 32 A., 697, and Vicksburg R. Rd. vs Traylor, 104 La., 284 (299), are not in conflict with the above cases. In both these two cases the plaintiffs issued an injunction and the defendants reconvened for damages caused by the illegal issuance of the writ. There was judgment against plaintiffs and against defendants in both cases. Plaintiffs in both cases appealed;- defendants did not. Defendant in the first case answered the apneal and prayed for an amendment in his favor. The Court allowed it, but failed to refer to the case in the 21 A., 714. In the second case, 104 La., 284 (299), the Court said:

"There are two demands contained therein, one covering a demand for interest, attorney’s fees, resulting from the first injunction, and the second claiming interest, attorney's fees, damages etc. resulting from the last injunction. A question has been raised as to whether these demands having been disallowed by the District Court and defendant slaving appealed themselves are before us on ths present appeal through a prayer tor an amendment of the judgment below.
• Appellees declare that particular question wa* passed upon in Lange vs. Barencro, 32 Ann. 696-699.
"The claim for danagss as resulting from the second injunction is incidental to and directly connected with plaintiff's proceedings in the present suit; it fall’s therefore under the doctrine announced in the case cited. The claim for damages, etc., resulting from the first injunction occupied the same relation to that particular proceeding which the other does to the second, hut instead of passing upon it when judgment was rendered in the first suit, the rights of the parties touching the same were reserved.
"By that action it became the subjeot of a separate and independent suit or demand, and that is the position which it occupies in the present action. It was incidental to the first injunction, but not to the second. From that standpoint we think defendant should have appealed from the judgment disallowing it in the present suit.
"It cannot be altered or reversed by simple prayer for amendnent’.

We do not think that the reconventional demand in this case ^cas "necessarily connected with and incidental to the" main demand, within the meaning of the above decision and we are, therefore, of opinion that in order to bring up the matter on appeal before us, the plaintiff in reconvention should have brought the matter up by appeal, and could net do do by mere answer to the appeal. C. P., 375.

It seems to us, besides, that these two cases have- been overruled by the case of Levert vs. Berthelot; and this last case appears to us more in consonance with law and jurisprudence.

Tne only question therefore left for our examination is the correctness of ths judgment in favor of the defendant dismissing the main demand. Ve must not reverse the judgment unless we are satisfied that it is wrong.

have already seen that ths plaintiff, ’ey their lease, «ora obligated to pat down nod cano in the tall enough to plant 160 arpante.

The testimony establishes, beyond a doubt, tnat the plaintiffs, in the fall of 1905, planted 60 acres; that with the oane which they left in windrow, the defendant planted at ■oat 38 aoros in the spring of 1916, and sold enough oane to a neighbor to plant tire acres, making in all 103 acres, 1 earing - a deficit of 77 acres.

The defendant testifies that it requires four or fire tons of cans to plant one acre, according tó the quality of the Cane and that is not contradicted; to plant 77 acres would the re - fore require at least tour times that number of tons or 308 tons; the eridenoe as to the value of a ton of cane at that time varies from 32.75 according to the plaintiffs to $4.63 according to the defendant. Taking plaintiffs' om figures the '308 tona would be worth $847.00. The plaintiffs would therefore owe the defendant that sms as part of their obligations under the lease.

Ur. Theriot testifies that he paid for the pump $325; for the scale $160, and for the rice thresher $80. Ur. Kimbro says that they purchaeed a lot implements, including the siphon, ' for about $450, out of whioh they sold the boiler for $250, leaving the value of the siphon at $200, fixing the value of plaintiffs* implements at $765.00. The amount of defendant's claim therefore exoeods the value of the implements of the plaintiffs detained by him and upon which he has the lessor* s privilege and right of detention, by at least $82.

The plaintiffs contend that the deficiency of Cans was due to the lack of care given to it by the defendant after they had left the plantation on January let, 1916. The evidence does not satisfy us that such was the caws.

They, also complain that the cane was planted too late towards the and of Uarch, when it should have bben planted in January or February. Ve are not satisfied that the deficiency of oane was caused by that delay; we believe it was owing rather to ths quality of the cans in windrow.

Thqy also argue that the plaintiffs and the defendants had a settlement of each other's claims in January 1916. That •is true. Bui that seiflembrit could not ’have ’had -in contemplation ths necessary quantity of cane which could he ascertained only long after in the spring when the cane was dug out of the windrow and planted long after the settlement.

Tney also plead that the defendant has failed to put them in default as a prerequisite to recovering, damages for a breach of the contract. The defense does not involve a claim for damages. It is a demand for specific performance of the plaintiffs' obligations Under the lease; in other words, a demand for payment.

■By payment is meant, not only the delivery of a sum of money than such is the obligation of ths contrast, but the performance of that which the parties respectively undertook whether it be to give or to do*. C. C., 2131 (2122).
"Although we understand jsomnonly by the word payment only that-Batrmee=ás which those who. are indebted in sans of money acquit themselves-of their obligations by paying money; yet wq may give the name of payment in general to all the-Ba£s&as*=in¿*ínich debtors acquit themselves of their obligations. For whatever frees the debtor from his obligation is instead of payment*. 1 Domat (Strahan) p. 891 § 2240.
•Real payment is the real performance of what one has bound himself to give or to do. When the obligation is to do something; the real payment of such an obligation consists in doing the thing which one has bound himself to do. When the obligation is to give something, the payment is the giving and transferring . the ownership of the thing". Pothier on Oblig. § 494.
■In its most general acceptation, and in its application to the very object of the engagement, the word payment signifies the performance of the duty which forms the subject-matter of the obligation, whether it consists in giving, in doing, or in not doing. It is said of an obiigor that he pays, when ha executes what he has promised; solvere dicimus eum qui fecit quod facere promisit*. L., 176, De Verb. sign. (We aay that ha pays who do68 what ha has promised to do). 3 Larombiere on Art 1235; 2 Delvincourt. p. 161 - 7; Toull. § 5 p. 10; 12 Duranton p. 12 § 9.
"The law dowa not require a previous demand, when the suit is one of revendication, or to enforce the performance of the principal obligation resulting from a contract, other than those for the payment of money where an amicable demand is required, and that merely in relation to costs or interest ¿2 mora11. 16 La., 386; 24 A., 370.

Although the judgnent of the District Court may not be technically correct it nas done substantial justice between the parties and it is therefore affirmed.

April 17th, 1919.


author: Max Dlnkslsplel. Juago.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    MICHAEL F. CARRANO Appellant, versus CONCORDIA FIRE INSURANCE COMPANY OF MILWAUKEE, Appellee.
    No. 7513.
   O P I N I O N

Max Dlnkslsplel. Juago.

This oauso comes before this court under the following ^state of fadts:

? Plaintiff bought, at partition sale under the orders of ''the CiTil District Court, on the 4th of May, 1916, a certain piece of property on Annette street, consisting of a double cottage, and on the following day, the 6th of May, 1916, insured the property with defendant oompany for the sum of $800.00. The property was insured through Allen Hehle¡ the local agent in the City of Hew Orleans, who issued to plaintiff its policy of fire insurance Ho. 28367, insuring your petitioner against all direct loss or damage by fire on the property known by the municipal numbers 2216-2217 Annette, between Horth Miro and Horth Tontl, square St. Anthony street, in Hew Orleans, Louisiana; and the allegations further state that defendant company bound itself to your petitioner in the manner fully set forth in said policy and in the riders attached thereto, which policy was made a part of the petition; that on the night of July 29, 1916, the property so described in said policy of fire insurance was completely destroyed by fire, so that the event insured against in said policy haring occurred the amount due in accordance with the said contract was payable to your petitioner, and that petitioner has complied with all the the obligations/wf said policy Imposed upon him and has not violated any of its provisions; that immediately after the happening of said fire petitioner notified said defendant, but neglooted and refused to furnish your petitioner with blank forms of statement and-proofs of loss, and denied any liability to your petitioner by reason of lta said contract of insurance, thereby relieTing your petitioner of the necessity of furnishing said proofs of loss to the defendant company, and that more than sixty days having elapsed since the happening of the fire and notwithstanding demand made upon said defendant, it has refused to pay your petitioner the amount of his loss in accordance with said contract of Insurance.

The prayer is for Judgment in the sum of $800.00, with Interest from date of the fire, with the sum of 12# upon said principal and interest as damages; and, further, with reasons» ble attorneys' fees for the prosecution and collection of this loss, and that a reasonable attorneys' fee is 26# of the amount of said loss, Interest and damages. For all of whloh plaintiff olalms Judgment.

The answer of the defendant denies its Indebtedness as claimed, stating that it did issue a certain Hew fork Standard Form of fire insurance policy bearing the number above stated, at the date stated and for the sum stated, on the conditions and warranties as provided by Act Ho. 106 of 1898 and the laws amendatory thereto, which said polioy so' issued was delivered to said petitioner, but was conditioned as provided in the said polioy and made the controlling terms thereof, which conditions and warranties, under whloh and by which solely the said policy was Issued and upon whloh its effectiveness was conditioned; being the completed contract between the parties, and the sole evidence of the conditions, terms and warranties upon Which any right of recovery or any right thereunder oould accrue. Defendant^, answering further, avers and charges that a fire occurred on the morning of July SO, 1916, and as a result thereof certain damages occurred to parts of the property built upon the lot described in plaintiff's petition; that the entire property was not absolutely destroyed, but the fences and outbuildings on said premises «ere not affected by the fire, and particularly denle* that plaintiff had any lnsnrahle Interest, or any ownership In fe* simple as a sole and unconditional owner at the time averred as the happening of the said fire, or thereabouts, and refera particularly to the policy and the clauses whleh demand this ere recovery could he had. It admits notification by plaintiff, as stated, and that It did not furnish blank forms of proof of loss and statements; admits that It denied liability to petitioner of any rights against this defendant under the said policy of insurance; avers that It Is provided as a warranty In the said policy of Insurance that "Shis entire policy, unless otherwise provided by agreement endorsed hereon or added hereto shall be void, or If the Interest of the insured be other than unconditional and sole ownership, or If the subject of the Insurance be a building on ground notTowned by the Insured in fee simple", and alleges further that It' did not Issue, nor Is there annexed to and made part of the said policy, any agreement providing otherwise than as above stated, or relieving the insured of the warranties hereinabove set forth.

It further alleges that plaintiff attempted to purchase and acquire ownership In the property described in the said polloy at a sale made under order of court In order to effect a partition between co-helrs and co-owners who had acquired their rights of ownership by inheritance, but that, at the time when the said order of oourt was Issued-, the court was not apprised of the fact that the said parties praying for a partition of the said property as heirs of liarle fio, wife of George Robertson, were not the true owners of this property which this petitioner attempted to acquire by purchase at said sale; that the judgment ordering the sale of said property to effect a partition bears date December IS, 1916, and was signed on December SB, 1916; that long prior to the date - on which said attempted sale and attempted adjudication occurred the property had been acquired by one liarle fio, wife of George Robretson, whose heirs, the said Harr; Robertson, Joseph Robettson and others, - being the sane parties who attempted to effect a judicial partition of the property described in the said policy - had failed and neglected to make payment to the State of Louisiana of the taxes for the year 1913, and following said failure the property then owned by her,and bearing the municipal numbers as shown in the policy of insurance - being the same property whioh had, after all legal advertisements and all formalities provided by law, been adjudicated to the State of Louisiana for the taxes of the year 1913, - the said property being assessed' in the name of the fcen owners, and that the record of said sale was recorded and filed in the Conreyanoe records of this parish and in the Land Office of the State of Louisiana, all as provided by law; that the ownership of said property was in the State of Louisiana at the time when the petitioner herein attempted to acquire rights from other parties, and at the time when the said alleged sale and adjudication was made, hence petitioner acquired no insurable interest in the said property, nor was the petitioner the owner of said property at the time of the said fire, solely and unconditionally, nor did he own the land on which the said buildings were «T¡poted^in fee simple.

Defendant further alleges that no attempt was made to redeem the said property by the said heirs aforesaid until the 11th day of July, 1916, at which time, by Certificate 1710-X, the said property was redeemed to the heirs upon the payment of $87.23, covering the taxes, interest, costs and penalties for which the Said property had been sold and adjudicated to the State of Louisiana for the taxes of the year 1913; and that no act of sale was made between the plaintiff herein and the heirs until August 19, 1916, long after the happening of the said fire.

Further alleging, defendant shows that the same property was also sold and adjudicated to the City of Sew Orleans for the non-payment of olty taxes thereupon, and adjudicated to the Sylka land Company, - a one-half tadiTided Interest In said property described in said policy of lnsuranse, - the said sals hawing been made on aoeount of the said lira, Karla Robertson hawing (ailed to pay the taxes to the Qlty of Sew Orleans for the year 1910, the said property having bean advertised for sals and sold on December 11, 1911, on whioh date the one-half interest In the said property was adjudicated to the Sylka land Company, limited; that the said property was again sold, following due legal advertisement, by the City of Sew Orleans for the non-payment of city tazas, and no attempt was made to redeem the said property until the 25th.of August, 1918, when Mrs. Robertson paid the taxes for the year 1912, the said property having been sold as Sale So. 8063, for the taxes of 1912 by the City of Sew Orleans, as averred; that therefore the Robertson heirs were not the true and legal owners of the property during the month of December 1915, when his Honor, Judge Thdard, signed the order of sale to effect a partition, nor were they the owners of said property on the 4th of Kay, 1916, the date of the adjudication to plaintiff, nor were they the owners of the property under date of July 29th or July 80th, 1916, the date of the happening of said fire, hence petitioner did not acquire and was not the sole and unconditional owner of the property under the dates given, nor was he the owner in fee simple of the land on whioh the buildings were erected as described In the policy of Insurance. Defendant avers, specifically, and pleadithe breach of the said warranties as above stated, and also that plaintiff had no Insurable interest In said property at the time of the said fire. It avers a tender of the amount of the premium it had received, Whioh plaintiff refused to accept. It admits its refusal to make payment, averring the breaches of the contract above set forth. It sets up the further fact that, following the happen-lug of the said fire, the said claim of loss and damage vas referred to Its adjuster and a full disclosure of all the facta surrounding said policy of Insurance was made to the attorney of the defendant and adrice sought from him upon the question of whether or not liability existed, and vas informed hy said attorney that no liability existed against it, and, acting upon the advice of its counsel, in good faith denied its liability. It prays, finally, that ±ta all its defenses be maintained and plaintiff's suit dismissed at his cost.

It subsequently filed, on the 7th of February 1918, its plea of estoppel, averring in that plea substantially the same character of defense that it had averred in its original answer.

She Issues, so far as the facts in this case are concerned, are virtually admitted, and the only questions involved are questions of law.

Counsel for plaintiff, the appellant in this case, in his able argument, has cited numerous authorities, many of them from the highest courts of the land, in which - without endeavoring to go specifically into any of them - it has been held-that in cases such as this, either where there was a mortgage on the property insured or a clause. attenuating to destroy the ownership and prevent recovery, if loss by fire was had, that it would not and did not become effective, and the companies were held, in numerous cases, to pay the loss. It has been decided, alBO, that where, as in this case, and under the laws of this state, there were tax sales either by the State or city and the property could be redeemed after a certain period of time, it followed, on this state of facts, that where a fire occurred the company was held liable; and many decisions are quoted, as stated, in both instances, and many others of a similar character. But it must be remembered that this court is bound to follow the Supreme Court of this State, where it has positively decided otherwise, and the latest decision on this subject' is found in the 140 La., 811, being the case of Perrin v. Stuyvesant Insurance Co., where, through Justice Provosty, the organ of the court, this language is used:

"That, by another express stipulation, the policy should be void 'if the interest of the insured be other than unconditional and sole ownership' and that at the time of the issuance of the policy, and for some time thereafter, the title stood in the State of Louisiana by Yirtue of a tax sale.
"The facts are undisputed and are fatal to plaintiff's suit under well-settled law. These grounds of avoiding the contract appear narrow, but they are, all the same, perfectly solid. In Jones & Pickett v. Insurance Co., 132 La., 847, the ground was that foreclosure proceedings had been instituted against the property since the issuance of the policy; and this was held fatal, although the foreclosure proceedings had been discontinued before the fire, and therefore had in no wise contributed to the fire." (Quoting numerous authorities).
"In a word, the insurance contract has to be enforced as written. The tax sale to the state was subject to redemption, but it did not for that reason any the less convey the title; the title none the less stood in the state so long as the redemption had not taken place." (Authorities).

And we find, in the case of Imperial Fire Insurance Co. v. Coos County. 151 U. S., 56, the following:

"Contracts of insurance are contracts of indemnity, upon the terms and conditions specified in the policy or policies embodying the agreement of the parties. Por a comparatively small consideration, the insurer undertakes to gurantee the insured against loss or damage upon the terms and conditions agreed upon and upon no other, and when called upon to pay, in case of loss, the insurer therefore may Justly insist upon the fulfillment of these terms. If the Insured cannot bring himself within the conditions of the pplioy, he is not entitled to recover for the loss. The terms of the policy constitute the measure of the insurer's liability, and, in order to recover, the assured must show himself within those terms; and if it appears that the contract has been terminated by the violation on the part of the assured of its conditions, then there can be no right of recovery. The compliance of the assured with the terms of the contract is a condition precedent to a right of recovery. If the assured has violated or failed to perform the conditions of the contract, and such violation or want of performance has not been waived by the insurer, then the assured cannot recover. It is immaterial to consider the reasons or the conditions or -orovisions 021 which the co itract is made to terminate, or any other provision of the policy which has heen accepted and agreed uoon, It in enough that the parties have mad® certain terms and conditions on which their contract shall termínete, The courts may not mate a contract for the partios, Their function and duty consists in enforcing and carrying out the one actually made.''

April 1919

As tó .clause and sole ownership, the United States Supreme Court, in the case of Martha I. Hunt vs. The Springfield Fire Insurance Company, 196 U. S. Page 46, held that "the placing of a deed of trust, the equivslent of a mortgage, violated one condition as to unconditional Ownership and prevented the recovery on the policy".

Bank of Cotton Valley vs McInnis Et al, Syllabus, pages 435-436 of 143 La. Reports, read as follows;

Contracts-Stipulations.

"It lies-within the power of contracting parties to make any stipulation material to the contract, although such stipulation may seem to be of little valxie to either party, intellegeltly entering into a binding contrcict".

We find no escape from the reasoning of both the Sujiieae Couit-of the United States and the highest court of our own state; hence the judgment of the lower court in this case is affirmed.

Hew Orleans,


author: CHARLES F. CLAIBORHB, JUDGE.

text:
    CHARLES F. CLAIBORNE, Judge.
    STANLEY A. HARVEY VS. HARRY HIRSCH.
    No. 7518.
    April 17th, 1919.
   CHARLES F. CLAIBORHB, JUDGE.

Plaintiff ie a real eetate agent. He euee for a oom-mieelon upon the following oontract:

H. 0., La., July BBth, 1916.
"I hereby appoint S. A. Harvey, hie heire or suo-ceaeore, nly agent and authorize him to sell or exchange my property known ae 603 - 617 inclueive and 615 - 17 in rear Gen. Taylor ooraer Annunolatlon &o . . . Sell 615 - 17 Oen’l Taylor $2000 Net or " 603 - 7 - 9 - 11 - 13 Gen'l Taylor $2500 Hot, for the price and eum of Forty-five hundred Dollars ($4500.00) net. Owner agrees to pay all mortgages. Interest and taxes for 1916 to be prorated by the vendor. If property is sold for this amouitt or less, owner agrees to pay his agent three per cent commission. I give my agents sole control of same from date, and to put up signs: and further agree not to interfere in the sale j»f said property during the term of this oontract. I also bind myself to refer all applicants for the purchase of said property to my agent. 1 will notify my agent in writing and give him ninety days notice if I desire this contract discontinued. TOien this property is sold, I agree and bind myself to pay my agents all over $4500.00 for their commission, no matter by idiom the property has been sold, or if any of the preliminaries of sale are made during the term of this contract, and sale Itself is consummated thereafter, I agree and bind myself to pay my agents all over $4500.00 and if sold for less than this amount owner agrees to pay three per cent commission. In the event of no sale being effeoted during the exlstsnoa of this contract no ohargo will be made for commission. 3 S3 It Is understood and agreed that ray agents' labor ceases when the deposit Is put up, and that the cómalas ion or difference Is earned, and will he paid by me whether the title of said property is accepted or rejected by the purchaser. My agent is authorized to accept a deposit of ten per cent of the purchase price, and in case of suit, or if the services of an attorney are required to recover any part of the commission or difference due, 25 per cent, will he added for attorney's fees.
"Signed" Harry Hirsch.

The plaintiff alleged "that he spent a great deal of time in endeavoring to interest prospective purchasers, and while the said contract was in full force and effect, petitioner never having received any notice that the said Harry Hirsch desired same discontinued, on December the 28th, 1916, the said Harry Hirsch sold the property to Karl Adler for $3500.00, and now refuses to pay your petitioner the 3% stipulated in the said contract as detailed above". He prayed for $105.00 commission and 25^ attorney's fees thereon.

For answer the defendantadmitted signing the above contract, but denied that the plaintiff had spent a great- deal of time in endeavoring to sell said property, or spent any money, or did anything looking to the sale of the property; he admitted that he sold the property for $3500; he averred that the oontract sued on was null, void, apd of no effect, for want of mutuality and for want of consideration; that the plaintiff neither did nor gave, nor promised to do or give anything as a consideration for signing of the contract, and that it is a nudum pactum without any force or effect.

The plaintiff as a witness testified that he advertised the property several times and submitted it to several prospective purchasers, and that he was advertising the property,at the time it was sold by Mr. Hirsch, in the Item and Timos-Pioayune.

There was no other testimony. There was judgment for plaintiff as prayed for and defendant has appealed.

The reasonjfor judgment given by the Dlstriot Judge were as follows:

"Under this contraot, Harvey advertised the property for sale and madeeffortw to sell it, and was Continuing the efforts, when, without having terminated the contraot, Hlrsch on December 28th, 1916 scdd the property for $3500,00. Harvey brings this suit on the contraot to recover three per cent on the purchase price plus 25 per cent attorney's fees thereon. The defense pleaded is "that the contraot sued on is null, void, and of no effect for want of mutuality, and also further that the contraot is null, void, and of no effect for want of consideration! that the plaintiff had neither given, nor promised to give, nor done anything, as a consideration for the signing of the said contraot, and that it a nudum pactum and without any valid force or effeot. It is plain that when the document was handed to plaintiff, it constituted a pollloitation, and that when it wac accepted by him, and his consent thereto expressed by his acting on it, it beoame a contract of mandate. Rev. C. C., 1797,, 1796, 1802, 1803, 1811. A Just cause is always understood unless the contrary is -shown. The burden of proof to show want of cause lb. on defendant. 16 A,, 366. Article 1894 provides: An agreement is net the less valid though the cause be not expressed". She oause "not expressed" in this contraot is plainly the procurement by' the defendant of the services and facilities of the plaintiff, by and through which a sale of this property might be seoured. In order to procure this chance he was willing to and did contract that he would pay the three per cent commission if the property was sold during the term of the oontraot, no matter by whoa the sale was effected. He did get the benefit of the servioes and facilities of the plaintiff for which he contracted. She consideration was real, and the contraot was valid. In the case of Gurley vs. the City of New Orleans, 41 A., 79, the Supreme Court quotes with approval the statement of Trolong that a mandate is a consensual and Imperfect synallagmatic contract by which one binds himself either gratuitously or for a remuneration to manage or. direct a licit matter for which he is to account. That the principal may always revoke, ad nutum. the powers conferred, and when this occurs, re-numeration is due up to then only, observing that It is for the mandatory to guard against such results by stipulating that the entire compensation shall accrue to him by the solitary fact of his inmixtión. This is exactly what the .plaintiff did in this case. There i« nothing wrong, imuoral, inethical, or unjust in such a contract. The real aetata agent who honestly engages to endeavor to effect a sale of his principal's property incurs expenses and expends time and laoor in so doing. If he could not protect himself by such a contract, he could easily be robbed of the fruit of hie labor and expenses, or of his chance to benefit thereby. The defense set up 1$ not well founded".

Ve cannot oetter express our own opinions upon the questions Involved in this case, and we adopt the reasons of the learn* ad judge as our own. *76 had occasion to pass upon similar questions in the cases of Freeman vs. Diboll, 11 Ct. App., 199, and Kostmayer vs. Landry, 12 Ct. App., 385.

The case of Campbell vs. Lambert, 36 A., 37, snd the line of authorities in accordance therewith,quoted by defendant are not applicable to the relations of principal and agent disclosed in this case. There was mutuality and consideration in the contract in this case.

It is true that the general jurisprudence is, and this Court has itself decided, that in order to entitle a broker to a com mission he must be the procuring cause of the sale. But this rule applies in the absence of a contrary agreement; there is no law that makes a nudum pactum a contract by which the agent shall be entitled to a commission in the case the sale is made through himself or through the owner, or through any one else. Suoh a stipulation is made precisely for the purpose of avoiding the necessity of a lawsuit to determine through whose agency the sale was consummated.

See 9 C. J. 575 74 p 576 note 30. 31

"The great «eight of authority supports the rule that a stipulation on a real estate broker's contract promising him a compensation in the event of a sale of the property by the o«ner himself during the life of the contraot is valid and enforcible, «here the broker has used ordinary diligence in endeavoring to make a sale of the property". 176 S. W., 1151; 43 S. W., 922; 128 S. W., 20.

"As a general rule a real estate broker who is given an exclusive right to sell property is entitled to a commission on any sale thereof made by the principal either independently or through the efforts of another broker within the time specified in the contract of employment although the exclusive agent's efforts did not contribute toward the sale as when the principal himself sells the property without the oroker’s aid", id p. 622 SlOl.

It is -therefore ordered that the judgment be affirmed.

April 17th, 1919.


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    CHARLES F. CLAIBORNE, Judge.
    JEFFERSON PLANTING & M'F'G. CO. VS. MORGAN'S LA. & TEXAS RR. & S. S. CO.
    No. 7520.
    May 1, 1919.

   CHARLES P. CLAIBORNE, JUDGE.

This is a damage suit for running over and hilling mules.

The plaintiffs allege that they are the owners of the Willswood Plantation situated in the Parish of Jefferson, upon wh^ch they raise sugar cane; that the tracks of the defendant company run for several miles through their plantation; that their refinery is situated upon one side of said tracks and upon the other side of said tracks are the "Negro Quarters"; that there is a public road leading from the refinery to the quarters and that said road crosses defendant's tracks; that this crossing is much used by plaintiffs' employees at all times of the day in going to and from the fields and refinery to the quarters, especially during the grinding season in October, November, and December; that defendant's employees were aware of that fact, or should have known it, and that, for that reason, .they were in the habit of slowing down their drains and blowing the whistle, or ringing the bell for this crossing;-that on November Ilth, 1917, while one of plaintiffs' employees was in the act of driving a cane cart drawn by three mules across «aid track, one of defendant's fast passenger trains ran into said cart and mules, completely demolishing the cart and killing the three mules; that Before plaintiffs’ employee attempted to Cross defendant's tracks, he stbpped, looked, and listened, and neither seeing nor hearing the said train approaching he proceeded to cross the track; that defendant's passenger trains are noted for the lack of noise while in motion, and that-it is almost impossible to hear them more than 100 feet away;' that this train was two hours behind time, and was running extra fast in order to make up time; that the plaintiffs' employees in no manner contributed to the accident, but that it was caused solely through.the gross negligence of defendant's company in failing to give any warning of the approach of the train to said crossing; that the plaintiffs were damaged to the amount of $B50 by the hilling of said three mules, and to the amount of $75 by the loos of the cane cart.

The defendant denies the following allegations of the petition: that the crossing was being constantly used or that its employees knew it; that the driver of plaintiffs' cart stopped looked, and listened; that its trains are noted for lack of noise while in motion, or that it is impossible to hear, a train beyond 100 feet; that it negligently ran over the mules and cart; that its train was two hours late or that it was running extra faat to make up lost' time; or that it was the custom of its employees to slow down for said crossing; it admits the killing of the three mules and the demolishing of. the cart, but avers: that the train was composed of an engine, a tender and seven ears, and at the time of the accident was running at a speed not exceeding 18 miles an hour; and after striking said, cart, was brought to a full stop within its own length; that it was the custom of its employees to blow the whistle and ring the bell for said crossing, and that the whistle was blown and the bell was rung for the said crossing; but that plaintiffs' employee who was driving the said cart was a young^inexperienced, and careless boy who did not stop, look, and listen for the approach of the train, but was watching another train then running on the Texas and Pacific railway track, and was thereby guilty of contributory negligence which was the proximate cause of the accidaat; that before and at the time of the accident there was such a dense fog that the employees of defendant oould not see the mules and cart approaching the crossing or on the track within a sufficient distance to have stopped the train and avoided the accident.

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

The Judge of the District Court found that the driver of the cart stopped, looked, and listened; that he neither heard the train approaching nor any whistle or bell, and,that he was proceeding to cross the tracks when the mules were struck as they reached the middle of the track; he found that the speed of the train was excessive on a foggy morning, and he doubted that proper signals of the approaching train had been given.

The questions presented therefore are;

lo. Did the driver of the cart stop, look, and listen before proceeding to cross the track, and if he had done so, would he have been able to see or hear the train coming?.

2o. Was the train running at an excessive rate of speed? and

3o Did the engineer of the train give signals of his approach by blowing his whistle or ringing his bell?

The plaintiffs' witnesses testified as follows:

Israel Wright,the driver of the unfortunate cart was si years of age on January 191B; has been living on the Willswood Plantation for ten years, and has been driving mules nine years; first drove the water cart; drove the three mules cart for about seven years; was driving the cart on the morning of the accident he was driving from the rear to the front; the first tracks to cross are those of the Southern Pacific (or Morgan's La. & T.exas RRd) the defendant herein, which ran into him; Gould Casimere and three women were in the cart with him, and one Uelville or Albert Carter, a brakeman, was standing on the Southern Pacific crossing; before he drove on the track he stopped on the wood-side of the track; he was going toward the river; he "looked up the track and he looked down the track"; he "didn't see nothing at all"; the brakeman, Albert Carter, told him to stop there and look;

Q. Did you stop and look?

A. Yes,. sir.

ft. Did you listen?

Question objected to as leading and objection sustained,

ft. You have said that you stopped and looked?

A. Yes, sir, I did.

ft. Did you do anything else when you stopped and looked?

A. I stopped and looked,

ft. Did you do anything else?

A. No, sir, I did not.

ft. Did you pay any attention?

A. Did I pay any attention?

ft. Yes.

A, I stopped and looked to see whether the train was coming, 1 had to pay attention after I stopped' and looked,

ft. What attention did you pay?

A. I paid attention to sea if the train was coming,

ft. What do you mean by paying attention?

A. Well, if the train was coming I was listening to see if she was coming.

ft. Did you near any train coming?

A. No, sir, I did not;.

he heard the whistle of the Texas Pacific when it was coming, and when it passed the crossing going to New Orleans; (the tracks of the Southern Pacific are parallel to the tracks of the Texas Pacific and are 97 feet apart); after the Texas Pacific passed he drove up on the track of the Southern Pacific, when the train ran into him; it killed the mules and knocked higi and the cart into the gutter, and broke the cart;

ft. Did it knoolt you foolish?

A. Yes, sir.

Cross-examined:

it was nearly nine o'clock in the morning; it was’fcwful" foggy; he could not see at any distance on account of the fog; he could not see the train fifty feet off; he heard a whistle about ten minutes before the accident; it came from the Texas Pacific train; he did not say to any employee of the Southern Pacific that he heard a whistle a short time before the accident, but that he thought it came from the Texas Pacific;

ft. How far did that train go after it struck your mules and cart before it stopped?

By Mr. Prowell.

"I object to the question. The witness has testified that he was knocked foolish. How could he state how far the train went after the accident?" Objection overruled.

A. I could not exactly say. I could not tell,

ft. Why can't you tell?

A. X can't,

ft. Why?

A. Because I was knocked foolish,

ft. But you could talk; tcouldn'^ you? '

A.' I could talk a.little-, yes, sit,

Ur. Landry spoke to Kim about the case; • he spoke to Kim also; Ke told Kira he wa$ crippled and Ke «anted to know if Ke.could not get something from the one who did the damage to him; he does not know where the three-women are; they must be in Gretna somewhere; Carter was standing on the East side of the crossing; the two tracks are about 20 feet apart; or the length of this room, 65 feet: the Texas Pacific passed about four minutes before; he is still working on the Willswood Plantation; he cannot say in what year he was born, because he does not hare his card, upon which his age id marked; he has it home; he looked for it this morning but could not find it; he will send it to Court; it was an hour after the accident before he came to his senses; he could understand a little but not all; he was knocked senseless, but not clean out;’after the accident he talked to a man who said to him he was the' conductor; he .was standing in his cart when he looked and listened; he neither saw nor heard a train coraipg; "no train blew after that T.4 P. train"; nor did it ring a bell; the S. P. made a short blow after it struck him; Carter told him so; some of the whistles of the S. P. are the same as those of the T. P. and sound alike; he could not see the T. &. P. pass until the last coach went by; he could discern only the last coach.

Albert Carter was- living on the Willswood Plantation in the fall of 1916; he was brakeman on a small train switching-cane cars on the T. P. and the S. P.; he was on the crossing to see if the track was clear so he could cross with his engine;

Q. Where were you on Sunday morning of last Hovember when a Southern Pacific train ran into a cart and killed three mules.

A. I was fifteen feet from the track of the S. P.; the cane cart stopped where I was standing about 15 feet from the track. 1 told him when he drove up to wait and let me go and look.

Q. Who was driving that cart?

A. This boy Israel Wri#it. I told him to wait and let me go and look. I went on the track and I heard the T. P. train blow and I said "there is something coming now, hold up", and he checked up his team; the T. P. passed going to the City -; the T. P.train passed over the crtíssing completely before bright started to cross over the S. P. track,

Q,. Did you hear any other train coming after the T. & P, had passed?

A. No. sir, I did not hear any.

Q,. Did you hear any other bell ringing? '

A. No. sir.

Q, You were standing ri^it by the T. & P. track?

A. About fifteen feet.

Q,. Nov you are positive you heard neither any bell or whistle olow?

A. No, sir, I did not.

Q. What did Wright do after the T. & P. passed?

A, He was looking up and down the track.

Q. Up and down what?

A. The track*

Q,. What track.

A. The S. P. track.

Q,. And you told* him to do what?

A. I called his attention. 1 said: "Wait, let me look;"

and at that time I went to look and I stepped back and said: "All right, I think the track is clear". I did not see nothing"; and as he just drove up on the track it ran into hia",-

when.the train stopped, the last coach was about 100 feet from the crossing; the train was going fast; he did not hear that train blow its whistle; if it had blown any whistle he certainly would have heard it; he did not hear any bell ringing, if any had been rung he certainly would have heard them; cross- examined:

when he told Wright to wait, he had driven up a little bit and ."he was ten feet from the track at the time I toW him"-; the head of the mule was 10 or 12 feet from the track which would have put Wright on top of his wagon, about 15 feet away; it was awful foggy and he could not see beyond about 65 feet; it was about five minutes after the T. P. had passed; the train was running very fast; the front end of the engine hit the cart; the mules did not run into the engine; it was the T* P, cannon-ball; the engineer, and fireman, and brakeman, and conductor came hack to the crooning and talked with him and due Joseph;

Didn't they talk to lerael bright?

A. lerael Wrlgit was out of hie aeneea.

Guo Joseph was putting coal Into a hox about 110 feet from the 3. P. road; he Is no longer in the employ of the plaintiffs.

Gus Joseph was working for Ur. Landry In November, 1917; is no longer in his employ; on Sunday mornings he usually filled the coal cox for the little engine; on the morning of the accident he was in the coal-yard loading a wheelbarrow at about ISO feet from the crossing; he saw the accident; he did not hear the train blow a whistle nor ring any bell; if they had, he was close enough to hare heard it; it was a very foggy morning, one could hardly see 40nfeet ahead; the conductor tried to make them say that' the train blew its whistle, but they told him it did not; the crew of the train being shown to him he was unable to identify which one of them had told him so! the conductor being introduced to him, hv cannot say that he ever saw him before.

Gould Casimere is 21 years of age;^employed at Willswood in November 1917 nnd is still working there; on the morning of the accident he was in the cart with Israel Wright and three ladies; "they just were taking a little ride,that's all"; they were taking off the grinding at Willswood; he got his back hurt and was half crazy; Carter was at the crossing, and he told Wright to hold on, and to look up and down the track; he looked too and saw nothing coming, nor did he hear any thing; heard neither ■vhistle nor bell; would have heard it had it been rung; the first time he knew that the S. P. train was on him, was when he was down in the dump with the mules, and cart; they were not having a joy-ride; the ladies" were not working that morning; they were just having a little ride; it was a very foggy morning; one could see only about 25 feet off.

Israel Wright recalled to testify concerning his age, says he could not find the red book he mentioned in his examination; he was told by his parents he was 21 and haw registered for the army a'a such; he was nine years old when he came to Willswood and has been there nine years, he IS confused about his age.

T. S. Landry is the manager of plaintiffs' plantation; has made a sketch of the place where the' accident occurred; the first mule was against the sign post 21 feet from the center of the plantation road; the second mule was found at about 55 feet from the center of the same road in the ditch along the railroad track; the cart was in the same spot; the third mule was found on the embankment of the railroad at about 84 feet from the center of the plantation road; they were all lying on the right side of the railroad tracks; when he arrived at the scene of the. accident the last coach was about 67 feet from the center of the. same road; the limbs and necks of the mules appeared to be broken, but their bodies and their hides were not torn or ruptured, and no other injury was visible; the body of the cart was crushed to pieces; the shafts were torn off; when he first saw Wright he was supported by people and- appeared to be hurt; the road is the main road on the plantation and used more frequently then any other, and is most used in November and December; the morning was very foggy and he could not see more than. 40 or 50 feet away.

Wright recalled did not state to any employee of the S.P, that he had heard a whistle blow but that he thought it was the T.P. whistle -; the mules were in the center of the track when they were struck, the cart.was not quite on top of the track; he did not run into the train; the train ran into him.

A. C. Querella is a railway postal clerk; he was on the mail car behind the engine the morning of the accident; the engineer gave signals at intervals due to the fog; for each crossing he supposes; he heard-no bell; he heard a whistle blow, but he could not tell whether it was his ttain or the T. P.; it was so foggy he could not see anything; he heard a whistle blow before the accident; the train usually makes much noise.

The defendant then- examined its witnesses;

Robert B. Tanner was the engineer on the. locomotive on the morning of the acoident Sunday, November 11th, 1917; he has been an engineer for 34 years;

Q, Were any signals given before coming to that orossing of the approaoh of the train?

A. There was.

4. What signal?

A. The road crossing signal, two long ’blasts- of the steam whistle and two short ones; the signals were given at the whistling post about 1700 feet; about 700 feet from that crossing 1 gave the signal again; the whistle was blown twice.

ft. Did you have a bell on your engine?

A. Yes, sir.

The bell was ringing continuously until this crossing was reached; the fireman attends to that; it is an automatic bell, operated by air; I could hear the bell ringing; the atmosphere was very foggy; he did not see the cart or. mules before they were struck; he saw them Just at tne moment they drove into the front end of the engine into the cylinder; they were struck in the head by the bumper and the cylinder on the right hand side of the engine, and they broke the iron grab handle on the right side of the engine and the step on the right side rear end of the engine; they were struck by the side of the engine; he saw them just as they hit themengine; he got to the crossing before they did; he was not going at a rate of speed exceeding 25 miles; the schedule time is 32 miles an hour; there were seven care on the train; after the accident he stopped; the rear end of the train was then near the crossing; he walked back to the crossing and had a talk with Israel Wright as follows: "Well, when I got back to the crossing where the boy was standing, I asked him "are you the driver of that wagon; who was. driving it? He said: "I was", lír. Feeney was there, I believe, and this colored man I spoke of; (Ezidore) and I said: "Didn't you hear this train whistle?" He said: "I heard the whistle but I thought it was the T. P. train which just went by?*; the train car be heard coming certainly at least a quarter of a mile; the train wás two hours late when he took it at Lafayette; we were due in New Orleans at 7:70 and it was at least 10:30 when we got there; were delayed 30 minutes by the accident; ioit time on account of the fog; could see only 15 or 20 feet with the head light; the whistling post is only three or four feet from the end of the tie and he could see it; the train was called! the "Sunset'Express" and consisted of the mail and baggage oar and sleepers and coaches; the train makes a whole lot of noise when rolling; was not racing with the T. & P..

Charles II. Jiarxen was fireman on the Southern Pacific train on November 11th, 1917; (the witnesses are now separated) was going about 25 miles an hour; the whistle blew for that crossing at the whistling post; "the bell was ringing a long time before we got to that crossing, because they have got private crossings along there, and they have people going to work along there that time of the morning, and the rule of the company is to ring the bell and blow the whistle fox all crossings"-; the bell was rung by automatic air; open a valve and ring it; the train makes enough noise for any one to hear it 3 or 400 feet off;the exhaust and the engine; it was very foggy and one co$ld not see beyond ten or fifteen feet; the cylinder was struck and the hand rail was broken off; there was no evidence of hair or anything on the pilot or cow-catcher; the only hair wqa back of the cylinders; knows nothing about the traffic on that crossing.

John 8. Feeney was conductor on the train on the morning of the accident; has been a conductor for eleven years; the morning was foggy; after the train stopped he went back to the crossing and saw Israel Wright; he said his age was 17; he asked him if he did not see the train and he said he though (A t~ was the T. P.; he said he did not hear the whistle blow;

Q,. Do you know whether or not the whistle of -that train was blown before coming to that crossing?

A. I will swear to it that it was; and the bell was rung also, for the reason- that the window where I was sitting in the head coach was open; the bell is operated automatically; it could have been heard 210 feet off from the scene of the accident; he heard the whistle blow from the whistling board; it can be heard much further on a foggy morning when everything is silent and quiet; the morning was foggy and he could not see 50 feet off; according to the telegraph station they ran from Boutte to Willswood, 10 miles, in 31 minutes;' a train running 20 or 25 miles on a morning like that, makes much noise; in the it woods you could hear one mile, and out of the woods one half /v mile, if jiour mind is- on it; when he came back to the crossing there was no one there except the hoy Israel Wright; the train was behind time; they were due to leave Lafayette at 2:48; they left it at 4:10; they lost time between Lafayette and New Orleans; the accident occurred at 8:55; the train was running 20 miles an hour;they reached New Orleans at 10:55; be knows the whistle blew at the whistling board; he looks for the signal boards; that is his business and what he is paid for; his duty isj/to run the train and look out for those signal boards.

Dr. Rowland R. Thomas, of Cade, La., was a passenger on the train on the morning of the accident, and was seated in the wmoker; he heard the whistle blow; the speed of the train was about ten miles an hour; is a graduate of Tulane TJMversity and has been practicing for 13 years; after the accident Israel Wright came up the embankment; he heard him talking to the engineer; "he said that he heard the train blow and he thought it was the T. P. because it passed, and as soon as the T. P. passed he drove over the track and the other train hit him, and that the women jumped out of the wagon before the train hit him. He said he stayed in the wagon and tried to get the mules over, or get them off, I don't remember which, and the train turned him and the cart over"; he examined the boy to see if there was any trouble with him. and found a spot on his right side which appeared to be a rupture, but it did not hurt him, and seemed to be an old rupture; he 'talked freely about the accident and seemed to know how it happened; he is the doctor for the Southern Pacific since 5 years; the engineer blew four times for that crossing, two long ones and twp short ones; he does not know which train blew the S. P. or the T. P., but a train did blow.

Alexander Ezidore has been a railway postal clerk for eight years; was on the train on November 11th, 1917;

Q,. Tell, was any signal given of any kind for that crossing?

A. Yes, sir.

Q,. What signal was given?

A. Well, in the first place, the bell was continually ringing, continually; and the whistle was blown also for mile posts, .before it reached this crossing; I heard that"; his car was adjoining the engine; after the accident he and the engineer •walked hack to the crossing and met there Israel Wright. "We asked him did he hear the whistle blow, and he said yes, hut he thought it was the T. P., which runs parallel to the S. P.; the train was then running 15 miles an hour; it was a very foggy morning; he is not employed hy the S. P.; he cannot swear positively that the train blew for the crossing, hut he can swear positively that she blew before she got to the crossing a few minutes; they were not trying to make up time; they could not.

Nathan Lawson has been express messenger for WeiIs-Fargo for nearly 25 years; was on the train of the S. P. on the morning of November 11th, 1917; the speed of the train was about 20 or 25 miles;

Q,. Well, do you know whether there was any signal given fo'r that crossing that morning?

A. There was a whistle blown, and also the bell rang; 'that is the customary signal,' a minute or a little less before reaching the crossing; the bell was ringing continuously and had been since the first whistle was blown; it was Very foggy.

Horatius J. Kennedy, brakeman bn the S. P. for 13 years; was flagman on November 11th, 1917;

Q,. Do you know whether any signal was given for that crossing or not?

A. Yes, sir, there was a signal given.

Q,. Now, state what kind of a signal it was?

A. A steam whistle signal for crossing; two long ones and two shorts.

Q,. You are positive that was given for that crossing?

A. Yes, sir, for two crossingS'I heard it twice.

Q. You heard it twice, for two crossings?

A. Yes, sir -; the train was going at a speed between 20 and 25 miles; he was sitting on the rear end; back platform; when the train -stopped, the hind end step was on the crossing.

J. J. Thrailkill for the last 17 years is a guard for the Wells-Fargo Express on the S. P. road; was on the train the morning of the accident.

Q,. Now do you know whether any signal was given for the crossing at Willswood Plantation?

A. The engineer blew his whistle for the crossing. It was a very dark morning that morning, and he was blowing his whistle for the crossing. Of course, I could not see the crossings myself, because I was in the baggage car. The engineer could tell them from where he was, but I could not. He was blowing the whistle all along these crossings; pot more than a minute and a half and not exceeding two minutes elapsed from the time he blew the whistle until it stopped;

4. But you heard the whistle of that train blow before .you got to that crossing?

A. Yes; sir; I was sitting right in the car, and heard the whistle blow; the train was running 21 or 22 miles an hour; the ■train blew for that particular crossing; after it blew he heard the. crash on the same side of the train he was on.

Shepard Smith, train porter on S. P.; was on train on Hov’-ember 11th,; train was running between 18 and 20 miles;

0,. How do you know whether any signal was given by the engineer, or anybody else prior to this accident?

A. The only signal I know of was the steam whistle was being blown and the bell was ringing.

4. Bid you hear the whistle blown?

A. Yes, sir;- the bell was constantly ringing; it is 4*0^ automatic bell; he heard the conductor ask Israel Wright how old he was, and Wright said he did not know; th4 conductor asked Wright if he did not hear the train blow and he said he heard the whistle blow, out he thought it was the T. P. and that is why he continued to cross over.

The r.ule of law is that damages cannot be recovered by those whose negligence has brought on the injury. It has been expressed by the words "volenti non fit injuria". 2 H. D., 1054; 48 A., 978; 5 La., Dig., 523 § 25.

In regard to the duty of persons about to cross railroad tracks the law requires of them to "stop, look, and listen", as a condition precedent to the right of recovery; in other words, plaintiff must satisfy the Court, that although he did "stop, look, and'listen", he neither saw nor heard the approaching train It is not sufficient for a 'wise plaintiff merely to swear that be "stopped, looked, and listened", and that he neither saw nor heard; hut his testimony must he corroborated as a matter of fact by surrounding circumstances establishing that neither plaintiff nor any other person possessed of ordinary sight and hearing, after using those senses in a proper manner could ha.ve seen or heard. If the facts about the case indicate that plaintiff, by the intelligent exercise of his faculties, would have seen and heard, his testimony to the contrary would be of no avail ^¡^In the case before the Court it was the duty of the driver of the cart to have stopped at a,reasonable distance from the railroad track. He says he stopp-»-ed ten or fifteen feet from the track. The track was to him a warn-, 3 3 ing, a red light signal, informing him of the danger of crossing 33 Cyc 1002. Heavy trains loaded with freight; rapid oars speeding passengers up and down, passed upon these tracks at every moment of the day.. ¶ He knewmthat; he had lived upon the plantation ten years and had \ driven carts across the track for almost as many years. After stopping it was his duty to "look and listen"; not in a perfunctory manner, perhaps to comply with the law; hut in an effective way to accomplish the end intended hy the law in its requirement. 42 A., 355. If the motion of the train was so noiseless that he could not hear it in time to get out of its way, then he could rely only upon his sight; and if the fog was so dense that he could not see heyond twenty feet, then he should?4ot have crossed at all unless Q he assumed the risk, or he should-Have walked up the track for a ' <3 reasonable distance to make sure that no train was coming. But in tftis ease it is not necessary to urge such precaution. We must remember that the plaintiff was driving three muhes-hitched abreast to a cane oart; their motion was noiseless, slow, and under easy control.- Assuming that the driver stopped fifteen feet from the track,' and that he proceeded up to the track in a walk at the rate of four miles an hour, and assuming that the train was running-at the rate of 40 miles on hcvr, or ten times faster than the oart, then it is evident that at the moment the oart statted to cross,, the train was ten times further off, or. 150 feet, from the point of collision; every foot -that the cart advanoed put the train ten feet nearer; s.o that when the oart had gone twelve feet, or within a few feet of the track the train had moved 120 feet, and a distance of only thirty feet separated them. Assuming that the plaintiff could not see the flaming glare of the headlight of the locomotive, it is inconceivable that he could not have heard the noise of'.the train, at that moment, when itwould have been yet time to stop and avert the calamity. This Court will take judicial cognizance of the fact that a locomotive pulling seven pullman and passengers cars at a speed of 25 miles an hour does met make a noise to be heard on a foggy morning in the country at a greater distance than thirty feet. Judicial authority for that state-sent is not wanting. In the case of Brown vs. RRd., 42 A., 356, the Court said:

"Had he listened ae he approached the crossing he would certainly have heard the train as it thundered along in the open field at the rate of thirty miles an hour.with no.obstruction to sound, and making a noise, which one of the witnesses compares ;to that made by "a drove of cattle going across a bridge". It is in proof that one of plaintiff's witnesses who was half a mile off, that another who was at a distance of one hundred yards, a third who was 300 yafds off, and a fourth who was a distance of several hundred yards and was walking toward Brown, on the same road and on the opposite side of the track, all waw and heard the train before the accident, and that the attention of one of them was attracted to the train by the noise which it made".

Uarxen, defendant’s fireman, was asked how much noise a train made running at 25 miles an hour. He answered: "Well, it is enough so that anybody could hear it coming three or four hundred feet off. I-guess, the exhaust, engine, and one thing and another".

The engineer said the train could be heard- one half mile away.

Feeney, the conductor, says that in the woods you can hear the train coming at one mile; "fully a half a mile, if your mind was on it*. Also 42 A., 993. 114 La 828

We therefore conclude that the accident was brough about by the want of care of plaintiffs' driver and for that reason they cannot recover. See the case of Gelbke vs. West N. O. RRd., No. 7405 recently deceided by us. Also 123 La., 647; 47 A., 270; 6 Ct. App., 238.

Where one of tvo persons either 'innocent or mutually negligent, must suffer, the one who knew of the cause which occasioned the injury, and who could have avoided it and did not do so must bear the loss. 5 La. Dig., 520 (1882) (1911).

Was the train running at an excessive rate of speed?

There is no evidence that the train was running at a speed exceeding 25 miles an hour; the schedule speed is 32 miles an hour. The train was two hours late when it left Lafayette; but it had not made up time, as it was still two hours late at the time of the accident was more than two hours late whan it reached .New Orleans.'7 There is no state or parish law regulating the speed of railways; it is therefore a question of fact and not of lsrw; it is left to the discretion of the engineer to be adjusted by the danger to be incurred. There is no prudence nor custom that we know of that demands slacking of speed at crossing plantation roads^y The road tha* crossed the railroad was not a public road. Plantation roads cross the tracks of'the Southern Pacific, the Texas Pacific and the Mississippi Valley, for many miles north of Hew Orleans, and it would he dangerous assumption of power for Courts to fix the rate of speed at which they will allow trains to run; neither the Legislature, nor the police juries have acted and this Court will not. Each case must he governed by its own features, nothing in this case proves that the train was running faster then usual nor faster than it should. 33 Cyc 971 § 8-

But the Judge of the District Court thought that the ttain was running too fast on a foggy morning. Rates of speed from 28 to 50 miles an hour have been approved. 2 Thompson on Meg. S. 1879.

In 48 A., 937, Vincent vs. Morgan's RRd. our Supreme Court says:

ft It has been said in'other jurisdictions that trains must be run with speed on dark nights and on misty days, and that doing so raises no inference of negligence in the absence of special facts going to call for particular precaution. Quoting 66 N. W., 842.
Trains are run by schedule, one train confrrming itself to the movements of the others, and it would be a danger-, our rule to establish that weather conditions in one particular neighborhood should control and regulate the speed of the trains in a special vicinity".

Did the engineer of the train give signal's of his approach by blowing' his whistle or ringing his bell?

The Judge of the District Court expressed some doubt upon this point. Pour witnesses for the plaintiff swear that none Were given. They are: Israel Vfrifdit, the driver of the cart, Albert Carter, a brakeraan, Gus Joseph, a laborer, and Gould Casimere, who was in the cart with Wright^^^^^_

On the other hand nine witnesses,^equally' credible, swear that the whistle was blown and the bell rung. They are: Tanner, the engineer, and Marxen, the fireman, whose duty it was to blow and ring; Peeney, the conductor, to see that it' was done; Dr. Thomas, employed by the defendant; Ezidore, a postal clerk; Lawson, express messenger; Kennedy, brakeraan for•defendant; Thrailkill, another express messenger; and Smith, the train porter

Whether th§ witnesses are 'counted or weighed the testimony of defendant prevails over that of the plaintiffs.

But the rule of Evidence is that positive testimony must outweigh negative. 1. H. D., 557 No. 12; 2 A., 1008; 12 A., 129; 33 A., 800; 36 A., 84; 37 A., 258; 40 A., 741; 45 A., 331; 46 A., 570; 47 A., 383; 107 La., 402; 2 Evans Pothier on Oblig p. 190, 452; 30 Am. & Eng. Enc. Law, 1071- 47a 271- 48 a 26-

The philosophy of the rule is aptly stated in Story vs. Ins. Co., 37 A., 254 (258): Poche, Judge:

"But, one witness swears affirmatively and the other negatively. The assertion of a fact which has never had existence cannot be consistent with truth, whereas the denial of a fact which has existence may,without violating truth, be the result of inattention or of a defective memory. Hence the rule that positive testimony on a given point, must always predominate over negative testimony on the same point".

The witnesses to the fact could, he indicted for perjury.; the others could not.

But in view of our conclusions upon the first branch of this case it is immaterial whether the train ran too fast, or whether the whistle was blown or the bell rungi

"The fact that a railway train approaches a public crossing at a high rate of speed, and also without giving the customary, reasonable, or statutory signals, by ringing its bell, or sounding its whistle, will not excuse contributory negligence on the part of the trav-eller approaching the crossing, provided his negligence is plain, though it will have an important bearing in the solution of the question whether he was negligent or not". 2 Thompson § 1888 p. 587; 6 Ct. App. 238. 1 a 37; 28 a 320-30 a 15-31 a 492-42 a 350-44 a 285-95 U S. 692-33 Cyc 985 § V- 988 § VIII - 1009 SF - 1024 (H) - 1033 § IV - Beach Cont Neg. Sec 64 § 195- Wharton Neg Sec 384-

is therefore ordered that the judgment herein be reversed and avoided and it is now ordered that there be judgment in favor of defendant rejecting plaintiffs' demand at their cost.


author: St Paul, Judge,

text:
    NO. 7521.
    LOUIS PETIT. VS MR AND MRS SAMUEL DEPASS.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION »

St Paul, Judge,

On November 3rd 1910 plaintiff filed this suit claiming the ownership of a certain tomb and asking an injunction and certain damages in connection therewith. On July 16th, 1911, final judgment, the case was continued to he re-assigned. No other proceeding whatever was had in the case until August 1st, when it was placed on the call docket to be fixed and tried. Thereupon defendants moved that the case be dismissed as having been abandoned by plaintiff; and this motion having been allowed the plaintiff appeals.

Act 107 of 1898 amends Artiole 3519 0. C. and provides that when a plaintiff shall at any time before final Judgment allow five years to elapse Hitiét without taking any step to prosecute his claim he shall be considered as having abandoned it.

It Is urged however that as said artiole is found## in the oode under the head of "causes which Interrupt prescription" it applies only when an issue of prescription arises and not otherwise

But so to hold would be to nullify the statute. Nor the issues in a suit are $### to be decided according to the status of things at the time the citation Issues, and hence prescription not accrued at that time can never avail in that suit; so that if a suit may still continue in spite of the five- years inaction it follows that such inaction cannot prejudice the plaintiff and the statute would thus be utterly ineffective. Of course a statute cannot be thus emasculated.

We think the suit was properly dismissed.

The judgment appealed from is therefore affirmed.


text:
    B. COHN COMPANY, LIMITED VERSUS KATHERINE RICHARD LAZARUS
    NO. 7523.
    COURT OF APPEAL.
   On joint motion of SOLOMON WOLFF, attorney for plaintiff and appellííjC and BORAH, HEEL, BLOCH & BORAH, attorneys for defendant and appellgftjfjmd,

On suggesting to the Court that this case has ■been settled and compromised;

IT IS ORDERED .BY TIB COURT; That this suit be and the same is hereby dismissed.