text:
    LEAMAN & SEILER versus MIKE KANTOS
    NO. 8552,
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    December 11th, 1922.
   BY: WILLIAM A. BELL, JUDGE:

Plaintiff, a real estate firm' in this City, sues defendant for recovery of certain commissions in the .sum of $£10.00, which said firm claims is due them under a v/ritten contract to purchase certain real estate known as fpZQZO-ZZ Tulane Avenue, in this City. There was judgment in favor of plaintiff, and defendant has appealed.

There are only two witnesses in this oase, tfptMbv&Sq: plaintiff and defendant, each testifying in oto behalf, and the evidence is naturally conflicting. The whole case turns upon the interpretation to be given a written contract of purchase, the important clauses of which are as follows:

"I hereby offer and agree to purchase through you, Desman & Seiler, for the sum and price of .Seven Thousand Dollars ($7,000) the following described property: (Description).
Terms, cash- - Subject to Approval of loan Prom Homestead, etc. ********
If this offer is accepted, I will deposit with you immediately, in cash, $500,00, of the amount thei’oof, on account of the purchase price, etc. ***********
Should I fail, to comply with the terras and conditions of this offer after same is accepted, I obligate myself to pay on demand your commissions on this sale,"etc. ********

This written contract was signed by the defendant, and duly accepted by the owner of the property. The peti-' tion predicates plaintiff's right of recovery upon the allegation that the defendant, by his acts and conduct, has refused to comply with the agreement to take title, and has arbitrarily insisted that petitioner should secure a loan of $6,500.00 from the Homestead Association. Plaintiff further alleges that defendant knows full well that no homestead would advance such a sum on any property valued, as this is alleged to be, at the sum of $7,000.00, and it is finally alleged by plaintiff that it is the defendant's duty, and not plaintiff!s, to negotiate the loan from the Homestead, and that defendant has failed to deposit the $500 on .account of purchase prioe in compliance with the agreement as shown in the contract, ■ ■

Defendant answers tills suit by pleading that plaintiff's petition discloses no cause or right of action, and reserving the benefit of this exception, defendant pleads a general denial, except that' he admits his signature to the document made part of plaintiff's petition.

In a suit of this nature from the City Court, where the petition might- have more particularly described a cause of action, and should not in fact have imputed any motive to the defendant as grounue for avoidance of the contract, the Courts not being concerned therewith, we are, nevertheless, of the opinion that the case should be considered on its merits. Therefore, in so fer as the Court's judgment implies, though it does not express, an overruling of the exception, we think the said exception Bhould have been overruled.

Passing to the merits, it is apparent from the language of the written contract cued upon, that said contract or obligation contains a suspensive condition in that the performance of the obligation is dependent upon, or"subject to approval of a loan irom the Homestead." It is casual in its nature, as well as suspensive, in that it is not made certain that the loan .-ould l-o possible nor that the procuring of said loan is in the power of either the creditor or the debtor. Rev. C-C. Arts. Se>Z.t, Z^Z-3-,

The evidence taken in this case is by no means conclusive as *o whether the plaintiff or the defendant was obligated to sc dirt . ie lou t -cm u ■■; Homestead. The defendant testifies on this point hh„ t he knew of no Homestead in the City nor where to apply for a loan from any Homestead, and that the plaintiff agreed from ti c outset of the contract to introduce him to some Homestead so tk. l.e could borrow the money if possible, slid that he, defendant, signed the contract upon the condition ¿hat the loan could be thus procured. The plaintiff, on the other hand, denies ■‘•hat the eontraot was made on such a condition, but does admit that he told defendant that he knew of a Homestead to which he would "re glad to introduce him for this purpose. No such step, however, was taken by the plaintiff, nor is any explanation made by plaintiff as to why this was not done. On this point, it is pertinent to notice certain of the testimony, reading as follows:

"Q. He told you he wanted to make sure the Homestead would loan him the §6,500, did he not, before he put up his §500?
A. I suppose that was his views.
Q. Was that not a fact of what he said to you?
A. Probably he meant that.
Q. That is what you understood him to mean?
A. No other way that I could misunderstand him."

It is clear from the language of the contract that the defendant obligated himself to pay ¿500.00 if his offer was accepted, and that he would deposit this amount immediately, in event of acceptance, but the whole of the contract must be interpreted together, and it would b9 an unusual and unreasonable interpretation to hold that this part of the contract implied an unconditional agreement to deposit the §500 immediately.

As a matter of fact, it is plain from the evidence, that after defendant was first oalled on by plaintiff to deposit the §500.00, he responded to the demand by visiting plaintiff and stating his willingness to make such deposit provided he could be assured that a loan over and abofe the cash he was to pay, to wit, §6,500.00, could be secured from some Homestead. Plaintiff, in response to this demand, declared it was not possible to procure said loan, and defendant's testimony is that because of this statement, he refused to deposit any part of the §500.00 required of him.-

He are of the opinion that the condition upon which the contract was predicated, made it at all times a suspensive obligation which a court of justice would not enforce unless the performance of the condition was specifically imposed upon one of the parties to said contract.

We find that the defendant was not charged in the letter of the contract with this specific duty, nor that he has, in any way, attempted to evade the spirit of the contract, but on the contrary, has never been, from the letter of the contract, charged with the duty of securing the loan. It does not appear that at any tine after signing the contract, that defendant agreed that he, rather then plaintiff, would have to procure the loen. It is not the duty of the court to supply s contract with what is necessary to make it more certain end binding, and the law requires that a plaintiff must always make certain his demand and support it by reasonable proof.

We think in this case that plaintiff has failed to do this, and that the defendant cannot therefore be held to the payment of the commissions sued upon, for the reason that the suspensive condition of the contract has not arisen or been performed, and for the further reason that he cannot be charged with any fault of his in this respect.

It is therefore ordered, adjudged, and decreed that the judgment herein appealed from' be, and the same hereby is, reversed, and that there now be judgment in favor of defendant, dismissing plaintiff's claim at his cost in both courts.

JUDGMENT REVERSED.

December 11th, 1922.


source: Caselaw Access Project

author: By WILLIAM A. BELL, Judge.

license: Public Domain

text:
    JOSEPH MODENBACH VS MISS N. RUTH VAN SMOOTH AND ALFRED J. WESTON
    NO. 8559
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    APRIL 2, 1923.
   By WILLIAM A. BELL, Judge.

This is a suit for materials and labor furnished under an alleged verbal agreement for certain repairs to a building described in the petition as "Premises Ho. 2315-17 State Street." It is net shown in the petition that either of the defendants owns the property in question or that either of them is the agent of the other. The petition simply sets forth that the work was done and the labor ■ and material furnished at the request of the named defendants, who agreed to, but have failed to pay, the itemized bill annexed to the petition. There is a prayer for Judgment in solido against the defendants for $182.85, with legal Interest from the date of the bill, and with recognition of the lien and privilege on the-above-numbered premises.

While our examination of the petition causes us to believe that had the exception of vagueness herein filed been maintained and leave granted to amend, the trial of this suit would have been greatly simplified, yet the evidence before us is convincing that the Judgment as to the amount awarded plaintiff, to-wit: $118.85, is fully Justified. However, it has clearly developed in the trial of this case, as shown by the record, that the work and materials furnished were undoubtedly for account of only Miss H. Ruth Van Smooth, one of the defendants, and that the other defendant here-: in, Alfred J. Weston, was in fact simply her authorized agent, was done and to which the materials were furnished. There is ne allegation in the pleadings nor is there any proof in the record which would Justify the recognition of any lien or privilege against the property described. Ho privilege could have arisen as.shown is no evidenoe to show that the lien or privilege, if any, has been;. duly recorded within the purview of Act.229 of 1916, as interpreted she being the owner of the building upon which the work court in the recent oases of Roca Lumber and Hardware Co., Inc., v. Frick et al., No. 8741, and G. H. A. Thomas Co. v. Evans and Evans, No. 8911. (See also Gleissner v. Hughes, Sheriff, et al., No. 25141, Supreme Court of Louisiana, decision rendered on rehearing January 27, 1923 and not yet reported).

We find no error in the Judgment allowing legal interest from January 15, 1921, but the Judgment from which each defendant herein has appealed should be amended to the extent of relieving appellant, Alfred J. Weston, of any liability whatsoever. There should be Judgment only against appellant, Miss N. Huth Van Smooth, and without any lien or privilege upon the property described in the petition.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Judgment herein appealed from be and the same is hereby set aside and annulled as against Alfred J. Weston, and is amended to the extent of allowing the claim of Joseph Modenbach, plaintiff, against Miss N. Ruth Van Smooth, in the sum of One Hundred and Eighteen and 85/100 Dollars ($118.85), with legal interest thereon from January 15, 1921, until paid, but without recognition of any lien or privilege on the property No. 2315-17 State Street? the said Miss N. Ruth Van Smooth to pay all costs in both courts.

April 2, 1923.

JUDGMENT REVERSED IN PART AND AFFIRMED IN PART AND AS AMENDED AFFIRMED.


author: Dinkelspiel; J.

text:
    NO. 8559
    COURT OF APPEAL PARISH OF ORLEANS
    JOE MODENBACH VS. MISS N. RUTH VAN SMOOTH AND ALFRED J. WESTON.
   Dinkelspiel; J.

On motion to dismiss this appeal on the following grounds:

—Sst. That said appeal was taken too late, the motion of api'eal and the appeal bond having been filed after the time allowed by law; Aot 138 of 1931 Jmsxxuaa&st. 333. for the -'¡eking of a suspensive and devolutive appeal,

2nd. That the appeal bond furnished by the defendants in this oase is no bond at all, for want of surety.

3rd. That defendants and appellants signed their surety for eaoh other, whioh is prohibited by law, and therefore the appeal oomes to this Court without bond.

The appellants in reply to the motion above referred to, files the following:

1st,. That said motion oomes too late-

* brief 2nd. That said motion is not aooonrpanied by/xsxxsaos&x as required by.the rules of this honorable Court, reoord

This/XUS was filed in this Court, February 13th, 1922. The motion to dismiss same was filed April 17th, 1922, and under the law and the authorities, the motion to dismiss oomes too late.

In Antonio Greco vs. Luigi Millano, 13 Ct. App. 137. the Court held:

"But the appeal in this case was made returnable on August 2nd, 1915. The motion to dismiss was filed October 7th, 1915. This was too late. A motion to dismiss an- appeal for want of an appeal bond must be made within three calendar days after the return date."

And authorities there cited.

In the case of Saxon vs. Southwestern Brick & Tile Mfg. Co., 113 La. p. 638, the syllabus reads:

"Motion to dismiss comes too late, if filed more than three days after filing of the trfcnscrlpt."

To the same effect is Monteleone vs. National Union Fire Insurance Company, 128th La. p. 426.

In the case of Askew vs. Parker, 131 La. p. 734, the same doctrine is announced.

And in the case of Bordes vs. Bank of St. Bernard, 141 Ann. at page 143, the syllabus reads:

"A motion to dismiss an apipe&l because of delay in filing the bond and of omissions from the transcript is b?.sed on mere irregularities, which cannot be considered, unless the Court's attention was oalled thereco within three days from the filing of the transcript."

For the reasons assigned, is is ordered, adjudged and deoreed, that the motion to dismiss be denied.

-Motion to dismiss denied-


author: Per Curiam;

text:
    NO. 8559
    JOSEPH MODENBACH VS MRS. RUTH VAN SMOOTH, ET AL
    COURT OF APPEAL PARISH OF ORLEANS
   Per Curiam;

It was moved to dismiss this appeal on the ground that the appeal was taken later than is allowed by Act 120 of 1921 p. 232.

It is true that this aot provides that "Appeals shall be allowed and be returnable to the Court of AppeAt within ten days exclusive of Sundays, from the rendition of the judgment S¡ c" and repeals all laws in oonfliok therewith. But Aot 97 #f 1916 p. 216, relative to appeals from judgments rendered by Justices of the Peace provides that "judgments shall not be final until action by the Court upon any motion for a new trial which may have been made within the time now authorized by law or rules of Court."

The judgment in this case was rendered January 18th 1922; the motion for a new trial was refused on January 31st, the appeal was granted on February 11th, 1922. The appeal was therefore taken in time.

Rehearing refused.

June 19th, 1922.


author: BY: WILLIAM A. BELL, JUDGE.

text:
    NEWEL REID LA RUE, versus NEW ORLEANS RAILWAY & LIGHT CO.,ET AL.,
    NO. 8560
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    October 30, 1922.
   BY: WILLIAM A. BELL, JUDGE.

Plaintiff herein sues the New Orleans Hailway 8? Bight Company and the National Surety Company of New York, in solido, in the sum of Pour Thousand One Hundred and Fifty Dollars ($4,160.00) for damages sustained by him as a result of a collision with a street car of the New Orleans Railway & Bight Company, on November 12th, 1920, at 6:40 o'clock, P.M., on the comer of damp and Bafayette Streets in this City.

The New Orleans Railway & ‘Bight Company, as one of the defendants, through its reoeiver, J.D. O'Keefe, admits that an accident occurred, such as is described in plaintiff's petition, but it denies, as does the National Surety Company of New York, any liability therefor, and charges the plaintiff with gross contributory negligence. There was judgment in the trial court in favor of both defendants.

The issues in this case are purely those of facts, and from the evidence before us, we are convinced that the judgment of the trial court was oorreot. We find that the plaintiff a white man of about forty (40) years of age, and employed at the time of the accident as a night watchman for the Canal-Bouisiana Bank & Trust Company, was a partial cripple, having to. walk with the assistance of a cane. This man, on the date of the aooident, was standing on the Camp Street side of Bafayette Square at the intersection of Bafayette Street, and attempted to cross the street . going towards the river, when he was knocked down by a Prytania car, and sustained a fraoture of the tenth rib on the left side, and a lacerated wound on the left hip, with oontusions of other parts of the body. He was confined in the hpgpital for fourteen days, and was under doctor's care until the middle of December of the same year.

The plaintiff swears that before crossing into the street from the sidewalk, he looked to see where the on-coming car was, and observed it at North Street taking on passengers, arid that when he stepped on the track, the car was approximately 100 feet from him. He states that the oar was going about twenty milco - an hour, but from the testimony of all other witnesses, this speed is ridiculously exaggerated, and we find that the car, at the time he was struck, was not going at more than from five to six miles an hour. We also find that the plaintiff stepped on the up-going car track when the car was not more than twenty-five feet from him, and that the motorman gave him every -notice possible, three witnesses stating positively that the motorman rang his bell as soon as he observed the plaintiff's attempt to cross the car track- and that he made every effort to avoid the accident, by promptly putting on the brakes.

There were four eye witnesses to the accident: The motorman, two witnesses on the front of the oar, and the driver of an automobile going down Camp Street towards Lafayette, on the river side of Camp. The auto driver testifies that he saw the plaintiff while he was driving his oar in front of the central part of the post-office building, which may be estimated at about 150 feet from the oomer of Lafayette and Camp Streets, and that the on-coming oar appeared to witness to be about 200 feet away when witness first saw the car, and that witness noticed plaintiff's attempt to cross the street - a fact which caused witness to stop his down-going auto in order to avoid collision with the plaintiff; that witness heard the gong of the street car and noticed that plaintiff did not stop at the signal, but continued to cross the street, and that when he was struck by the car, witness stopped his auto about ten feet above the point of collision.

This witness, on cross-examination, shows that he was not at all certain as to the distance of the car when he first saw it coming up Camp Street, and the testimony of the several other witnesses is most contradictory on this point, the distance varying from .200 feet to 20 or 30 feet at the time plaintiff attempted to cross the street. Two witnesses on the car, however, who saw the plaintiff approaching the track, agree that he was most indifferent as to the danger -he was incurring, and did not heed in any way the signal given him by the motoiman, and furthermore, that plaintiff did not look when he stepped into the street in the direction of the on-coming car. It appears that the plaintiff had nearly crossed the up-going track when he was struck by the left front step of the oar and thrown under it, almost against the front left wheel, and that the oar was brought to a full stop as rapidly as it was possible to do so. The fact that plaintiff was a cripple should have caused him to take unusual precaution in crossing this very busy thoroughfare at so late an hour as 5:40 o'olook in the afternoon of a November day.

We find conclusively, that the car which struck the plaintiff was going at a very moderate rate of speed, and while there is contradictory evidence as to whether the car had previously stopped at North Street rather than at Doydras Street before stopping to avoid the accident, we are convinced that the excessive traffic shown to have existed at the time prevented the car from going even at that rate of speed which is allowed under the law. In othe-” words, the evidence is clear that the Railway Company and its employee were not guilty at any time prior to or after the accident. of any negligence, and that the motorman in charge of the car exerted every means humanly possible to avoid the accident which arose solely from the carelessness of the plaintiff, a pedestrian not naturally equipped, in hie crippled condition, to take even the most conservative chance. Yfe think that every circumstance which would have avoided the accident was within the control of the plaintiff, and that by no possible cqre on the part of the defendant Railway Company or its Hsnqi employee could the aocident have been avoided. The Judgment of the trial court is, in our opinion, therefore, correct, and should be affirmed.

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

JUDGMENT AFFIRMED.

October 30th, 1922.


text:
    NO. 8563
    COURT OF APPEAL PARISH OF ORLEANS
    ***
    ELKIN MOSES versus THE HILLER VINEGAR Co. INC.
   Dinkelspiel; J.

Plaintiff institutes this suit alleging that his pro-confession is thst of a jraMcts certified public accountant, ana ¿l&wkey;/ — ^that In that oapaoity he was employed by the defendant to do oertain work on its books consisting merely of an audit thereof, for the jHttae year 1930, for the agreed price of $350.00; that he performed his part of the said oontraot by doing the work, whioh he agreed to do, but notwithstanding amicable demand, defendant hs.s refused to pay.

The answer substantially admits plaintiff's employment, but alleges that he was employed to audit their books by the year at a yearly salary of $350.00, and in addition was to give them at least one audit per month or as oftan as called on to do so, but thst plaintiff failed to oomply with this oontraot, henos is not entitled to reoover, and there should be Judgment for defendant.

It would be futile to discuss at any length the evidence in this oase, but only to oall attention to particular portions thereof, plaintiff swears positively to his employment as olaimed in the petition; that he did the work required of him, more than that, he did much more work than he had agreed to do.

There is filed also in oonneotion with this oase, the report of Mr. Derbes the auditor employed by the defendent subsequent to the employment of plaintiff and hie xsfcnx report before us, amongst other things, shows that in a letter addressed to the defendant, April 13th, 1931, Mr. Derbes writes: "As per agreement we have looked over your aooounts and submit herewith statements thereof as reflected on your books." Itemizing statements, unneoessary to repeat here, the report goes on to say: "The above mentioned statements were prepared from the trial balance and financial statement furnished us by your bookkeeper and aoóepted by us without further examination."

Plaintiff testifies that he has been a certified public accountant for many years,and prior thereto had/^aoobuntant and we are satisfied from hie testimony ths.t he is an expert in matters appertaining to his profession.

The testimony of the defendant is not at all convincing; smongst other statements made, denying the employment of plaintiff except as alleged by bim in his answer, he was asked by the Court:

Q. You stated you employed Mr. Moses from July, 1930 to July 1931?
A. Yes sir.
Q. Did I understand you to say that you notified him at the end of the year 1930 to come end complete these hooks up to December 31st, 1930? A. Yes sir.
Q. You did that? A. Yes sir.
Q. Then, if you employed him from July £& 1930 whet would, he have to do all the other-months; how would he balance your books if he did not take up the books from January to July 1530? A. He was employed from July 1930.
Q. To July 1931? A, Yes sir.
Q. Whet would he heve to do with your books from ioijc January to July 1920? A. He was to look them over,
Q. He would have to do some work on them? A. 3Esasxs: Ho sir, he decided not to go over them.
Q. How oould he bal&noe your books for the yesr 1930 if he did not oheok the entire books from January 1930? 'A, Because he would take it forgrsnted that the hooks were alright; he was to render me a certified statement.

We gather from the entire record and from the testimony in this case that plaintiff did all that he wes required to do, all that he had agreed to do, end subsequently under prepared his agreement with the defendants,/*Haxsxia the return for the United States Government for income taxes.

The Judge of the lower court hesrd and saw the witnesses, noted their demeanor on the stand, therefore had a bette'r opportunity to judge of the truthfulness than we have. He rendered judgment in fe.vor of plaintiff and we are satisfied this is correct. For the. re- 30ns assigned, it is ordered, adjudged and decreed, that the judgment of the Court aquo be and the same is hereby affirmed, costa of both Courts to be paid by defendants.

-Judgment affirmed-


author: CHARLES F.CLAIBORNE,Judge.

text:
    LOUIS LIND VS KRACKE AND FLANDERS CO. Appellant.
    NO.8564
    CHARLES F.CLAIBORNE,Judge.
    January 2nd 1923.
   CHARLES F.CLAIBORNE,Judge.

This is a damage suit resulting from a collision of automobiles.

The plaintiff alleged that his automobile was damaged to the extent of $160 by a truck of the defendants,driven by their Shauffeur,running into it carelessly.

The defendants filed an of no oause of action and a general denial,and alleged^the accident was caused by the negligent act of the plaintiff's driver in backing his machine without taking due precautions.

There was Judgment overruling the exception of no oause of action,and condemning the defendants to pay to the plaintiff $150.

The defendants have appealed.

In this Court they argue strenSbusly that their exception Of no oause of action should have been maintained and the suit dismissed.lt is based in the failure of the defendant's plaintiff to allege that the defendant's chauffeur caused the damage to plaintiff’s car while fee^said chauffeur^ in the language of Article 0.0.2320 was in the exercise of the functions / in which he was employed."

In support of that exception the defendant stoutly asserts three propositions of law :

1st. That in order to hpld a master liable for the torts of his servants,it .Is sacramental that it be both alleged and proved that the servant,at the timeNis^ the act was committed, 1 was acting within the scope of his employment.*

2nd "That where a petition seeks to hold a master liable for the tort of his servant,but fails to allege that the servant, at the time of the negligent act,was aoting within the scope of his employment,it is fatally defective,and should be dismissed on an exception of no oause of action."

3rd. "That no proff is admissible that a servant at the time of a negligent act was aoting within the scope of his employment,when the petition does not contain an allegation to that effeot,as it is a well settled principle of law that no proof oan be offered of matter not put in issue by the pleadings,"

As his authority,he cites nine cases from the Supreme Court of this State and 31 0yc.680.-We have industriously examined all those authorities,but as we have read them,no one goes further than to state the general principle of law, that no evidence should be admitted to establish a fact which should have been,but was not,alleged.

We find that in the solitary case of Rubin vs Bierman 149 N.Y.Supp.483 quoted in Berry va Autos Sec 1038-1039 P' 968-969 defendant's proposition has obtained.

n

But on the other hand we find in 26 CYC.1573 note 80 that it has been decided in 43 Atl 940-103 N.Y.App.Div 577 and 93 N.Y.Supp 161,that " evidence that defendant was the owner of the automobile which ran over plaintiff,and that the oaauffeur operating the automobile was employed by defendant for that purpose,is sufficient to establish prima facie that the ohauffeur was acting within the scope of his employment at the time of collision."

" Where a bey was in defendant's employ and had been sent by him to get goods,during which time the horse he was driving ran over plaintiff ( it will be presumed the boy was at the time aoting in his employment,and the burden of showing the contrary was on defendant." 7 N.W.222.

"As a general rule where the evidence offered tends to prove any fact substantially embraced within the allegation,whether expressly or by olear influenoe^it sould be admitted 31 Cyc P.682 (d )

We prefer to adopt the views expreetiou. .... . opinions which are more in consonance with our liberal practice.

The preeumptioh is natural that where ever the chauffeur is found driving the automobile of his employer,he is then and there in the course of his employment.The fact that he is not on duty is a negative which the plaintiff is not bound to allegejbut it is a defense which must he raised by «>¿ the defondar.t 48 A 225/But our Supreme Court in Dotson vs La.Lumber Co. 144 La 78 has decided:

" Although the general rule of law is that a plaintiff who claims damages must allege and prove the facts necessary to establish the negligence of defendant,upon which he predicates his demand,it is equally a well recognized exception to that general rule that where the cause’Of the accident s' by which the damages was inflicted is more properly within the Knowledge of defendant,the accident itself makes out a prima facie case,and the burden is upon the latter to show absence of negligence."_/ S G? — / L&U-- /pro. - 22 ¿7F, SV

But even were the exception of defendant well pleaded for deficiency of allegation,the judge of the trial Court and ourselves,as we have repeatedly decided^should only maintain the exception with leave to amend. . . «

The strictness of raetuicalities,which at one time^ fortunately past,right have maint-áined defendant's exceptions, no longer exists.The practice which had obtained In ur Courts for many years to admit and consider clandestine exceptions of no cause of action without stating wheroiri the petition disclosed no cause of action,and which pl«ir.ti.“i -'i’cohered only after argumentythe exception,and to dirmi;.. a suit v'thout giving plaintoff an opportunity to amend his rr'iJ.jn to :’--et the views of the trial judge,did not promote .■ju-ti -.o nu’ command respect for the administration of tho law.

This practice was criticized in the case of Davis vs RRD. 117 Ka 320 (324) The Court said.'

" The exception of no cause of action in which no specific objections to the petition are set up,and which remits the plaintiff to an ascertainment of what they may be to the t trial of the exception,is calculated to work injury^and in many jurisdictions the defendant is required^by express statutes^ to specify in detail what the objections are^so as to enable the plaintiff an opportunity to remove the same.The exception in this State is some time levelled at the allegations of the petition and sometimes it reaohes back of the petition to the caus^ of action itself,but up to this Mme it has never been exacted that the objectiona^but «^should¿X see,that the exception should be made to perform the funotion properly appertaining to it,and not be allowed to have substituted for it another and be lost,merged and confounded."

And in the same case on page 323 the Court said :

" The tendency of modern practice is to yield as little as possible to technicalities,and to afford ajeá as far as practicable to the filing of amendments which work no injury and prevent useless delays and costs" 144 La 623 - 2 N.S. 627

In the case of Reiman vs Vasques 3 Ct.App.300 this Court said: " An exception of no cause of action is not favored where there is set failure to state time,place and circumstance."

In the case of Commercial Bank vs Smith 150 La 234 the / // plaintiff sued upon six notes;the defendant filed an exception of no cause of action based upon the absence of allegation that the plaintiff was the owner or possessor of said notes. Two days after the argument and submission of the exception the plaintiff^without leave of Court^filed a suplemental petition covering the alleged defects.

The trial Court held that the citation on the Sipplemental petition was invalid,maintained the exception of no cause of action,and dismissed the suit. The Supreme Court recognised the right of the plaintiff to file the supplemental petition at/that stage of the proceedings, reversed the Judgment of the District Court and remended the case for trial.

The Court Said :

" The question of the right to amend a-nptition prior to the appearance of the defendant,by rtétmr of exception or answer,appears to be entirely at large,and sinoe the law is silent upon the subJeot,we know of no reason why plaintiff should not be allowed to amend in any respect that the Judge Binds that the interests gf Justice may require,whether it be to supply a cause of action where none has been alleged in the original petition,or otherwise.The law intervenes only after issue is Joined,and declares that thenceforward an amendment may be made,"with leave of the Court"provided" it does not alter the substance of the demand by making it different from the one originally brought", and the code of Practice .further declares* If Art 357.The cause is at issue when the defendant has answered either by confessing or denying the facts set forth in the petition,br by pleading such dilatory or peremptory exceptions -m- (ft-as he is bound ton plead in limine litis,pursuant to the pro> visions of the oode *,
"The exception of no cause of action is a peremptory exception which may be filed at any time,and its filing does not put the case at issue,and the atoe is time of the declinatory exceptions C.P.358 ; hence there are few,if any,eases to be found in which applications to amend have ever been denied because of the mere filing of an exception of no cause of action and equally few where such applications have been granted when made after the exceptions have been maintained.32 A 395" 34 A 324, 35 A 276. We are therefore of opinion that the supplemental petition was properly allowed."

In the case of Tarver vs Quinn 149 La 368 the Court said that before issue Joined the plaintiff could amend without any leave of the Court; and that , after Issue Joined,the plaintiff might amend with leave of the Court,provided the amendment did not alter the substance of the demand.

In that case the Court said on page 377; " It will be noted that,if a plaintiff is entitled to make an amendment, and leave to make it íb refused,the appellate'Court wilj. send the case back with instructions to allow the amendment to be made; and it will be noted «also that,svercafter issue Joined, a party is entitled as of right to make all amendments which do not change the issue or alter the substance of the demand."

Ever since the case of Debuys vs Moloere 2 N.S.627 the Court said;"Amendments are reducible to.no certain rule; but that each particular case mast be left to the sound discretion of the Court;and that the best principle is that an amendment should or should not be permitted to be made as it would best tend to the furtherance of Justice." 123. La 887

In Wolf vs N.O.Tailor Made Pants Co.; "Originally the sustaining of a demand demurrer put the plaintiff out of Court;but the practice grew up in Courts of Equity to allow amendments -4»,ceratain conditions.If the conditions were not complied with,the decree became füat and conclusive "

In the following cases a Judgment maintaining an exception of no cause of action based upon insufficient allegations OtTZO* with leave to amend WwJ'e affirmed or rendered- 10 Ct. App.43 27 A 715-37 A 418-43 A 223-196 La 586-113 La 388-117 La 320-123 La 887-138 La 134.

We therefore come to the conclusion that when ever an exception of no cause of action as filed to a petition on the ground of insufficiency of allegations and the Court maintains the exception,it should not dismiss the suit,but should, at the same time/reserve the right of the plaintiff to file an'amendment under such conditions and within such time as the Court may fix.

On the merits,the plaintiff proves his case by the testimony of his wire(who was driving his automobile,and four other witnesses.They prove that the chauffeur who was driving the defendant's truck and who drove into plaintiff's automobile was actually at the time driving defendant's truck loaded with merchandise on the way to defendant's place of business.

The defendant's did not produce their chauffeur as a witness nor account for his absenoe,nor produce any testimony or evidence of any kind.

Judgment affirmed.

January 2nd 1923


author: BY: WILLIAM A. BELL, JUDGE:

text:
    PAUL D. BELLOCQ versus HOTEL DE SOTO CO.
    NO. 8567
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
   BY: WILLIAM A. BELL, JUDGE:

This is a suit for personal injuries, in which a jury trial resulted in verdict and judgment for plaintiff, Paul >D. Belloeq against defendant, the Hotel De Soto Company, proprieors” of the Hotel De Soto, in Hew Orleans. The damages allowed were $2,666.50, and a judgment in favor of intervenor, Miller Indemnity Underwriters and against plaintiff, in the sum of $166.50.

We find that plaintiff was employed by the Interstate Electric Company, whose place of business was directly opposite the Perdido Street side of the hotel which occupies the entire block-or l/2 block, bounded by Baronne, Carroll, Eerdido and poydras Streets.

On May 10th, 1919, at about 11:30. A'.M., plaintiff was directed by one of his superior co-employees of the Interstate Electric Company to repair an automobile used in the company’s business. This machine was at the time, parked closely to the side-walk, on the hotel side of Carroll Street, about fifty feet- from the corner of Perdido and Carroll Streets. Whi-le engaged in the repair of the car, plaintiff was standing on the side-walk with his back to the hotel and leaning over the open hood of the madhine. In this position, a wooden framed screen fell from the eighth floor window of the hotel, .struck the car and plaintiff a slanting blow, resulting in severe contusions of plaintiff’s scalp, and causing a dent in-the hood of the car. Plaintiff was not rendered unconscious, but for a minute wag, as he say3; "dazed" by the blow, and after bracing himself against the hotel wall, be managed to walk from the- place of the accident to the réar door of the Interstate Electric Company, where his fellow-workmen came to his assistance, and hurried him.in one of the Company's trucks, to a nearby hospital, neither of the doctors who treated him at’the hospital testified in the case, hilt from the evidence it appears that plaintiff suffered severe e.on-. tuai'ons-,and lacerations of the scalp, was detained for treatment ab -td)!) hospital for a week, and continuing to suffer, from nervous shock and physical disability, causing a ringing in the ears, irritability and loss of sleep, etc., he v.as net able to return to his work for four weeks longer, nor t'o Ms accustomed heavy work in the shop, for some time later. A nerve specialist whom plaintiff did not consult for over a month after the accident, testifies that he found plaintiff ha-d suffered a concussion of the brain, not of a serious nature, but such as would, and did, yield to proper treatment and rest, and that after seeing plaintiff a second and last time, while under his care, that -plaints ff told him he was feeling very much improved.

We find from X-ray-photographs in the record, and from the radiologist's report thereon, that same "showed "no evidence of. depression of the skull or of fracture or "any signs of bone injury." Vie also find from testimony on b'ehalf-'Of plaintiff, record-admissions tc the effect that examination by a'competent oculist disclosed n'o injuries to plaintiffJs,.eye-sight, but that the headaches and other terns porary sufferings r.ere natural results of the accident.

It is not denied that plaintiff v.as injured in the-manner described in his petition, and after careful examination of the evidence we have concluded that the extent of his injuries were as above set forth. He has also proven conclusively that his financial loss in wages, doctors’ bills, etc., was some §350.50. of which the Millers' Indemnity Underwriters, intervenors herein, have reimbursed him in the sum of §166.50. 'These facts being, established, we are led to the ■ conclusion, vel non, of defendant's liability; and to this /end', v.e must"’determine facts presented by the record.

We find from the evidence that the wire sdreen \-&hich struck-the plaintiff, and caused his injury, was undoubtedly a part of the structure, or equipment, of the Hotel pe^S.pto, property of defendants herein; that it fell from the story windov of the Hotel, and was seen in its dovnward lllii^ht- .‘to-strik.ei the plaintiff a glancing b^ov on the head, and to also land upon the hood of the automobile which plaiatifi was repairing. Defendants contend that the verdict and judgment in this case was erroneous, particularly for the reason that the evidence does not establish that it was the defendants' fault which caused the accident. Three \ itnesses of the defendant testify to what might be considered reason?bio inspection of the screens and fastenings throughout the rotel. and to tie precautions usually taken in regard to this kind nf property, as well as to fixtures and equipment of the rotel. Te have no right tc doubt that this testimony is truthful and reliable, but, on tlx piker hand, it is clear from the evidence, and test imony of other witnesses, and from the admission of defendants.' witnesses, that knowledge had been brought, home to the hotel, on more than one oocaslon prior to the accident, of defects in the- screens used by the Oor.peny in jis win,dots. The evidence Is c0ncil;ijive that on at least tv.o or three occasions prior to, and ')• no means reraote from the J.- te of tve accident, leic'ns had fallen, or he..- : blown froi. the windows of th r -tel, and srbsoquenily gatheren ey the Total's chit f engineer, i «va: the ini instate C •r.,p/.ny'o employees, the latter having re.-o,.eo lien fror. out of the street in, end around the locality vK-re ¿I.?'stiff was injured. These f-ots, while testifled'to hj. ü.„ rlaiai'ff 's co-employees, are also confirmed ’oy disinterested 't-i-vse , enqiloyed in the ;■ =i->.hborhood of (larro-ll Stress, .-re->.tOp- • poeite from the 7‘otei, and who "era not connected In any , aj viith the plaintiff or defendant in this case. liability arises from this evidence in particultr, coupled .viti, 1"-' S oJ JhS defendant and it; employees were charged »- 1 th th-.- ' ...l~'¿u oh the perishable c.'ldition of these sere n-.-. arn w" ' h i" e ij.parent defects therein, i>rinr to the >.3dü-i.t arl-i f- in ’ uij case. The fastenings hand springs in f'" p-rticul ■ ,.‘.f ... in question, being "indo of steel, -apjeot t. ' . v.’’ ■.x'£. in. , cause» peculiar • o.l part in'far supei > n -:n "r-part of the Compa..y or it., e- ployei.-í. .

Under the doctrine of rea ipsa loquitur, which in our appreciation of the evidence before us is peculiarly applicable to the instant case, it is not incumbent upon the plaintiff herein, to prove such negligence as musx rightly be presumed from evidence conclusively showing that other screens on several occasions prior to the accident had fallen from defendants' building, notwithstanding its previous and- continuous system of supervision. Herbert vs Lake Charles Ice, Light & Water Works Co., 111 La. 522. The case before us was thought by the learned judge of the trial court, as shown by his charges to the jury, to come particularly within the doctrine a Dove mentioned, and we agree with him in its application here. In the case of Lykiardopoulo vs. New Orleans & C. R., Light & Power Co., 127 La., 310. the court found for the plaintiff who was killed by explosion of a boiler tube in the boilers to which he was stoker, holding that defendant and not the plaintiff was charged with the necessary care and inspection of the boilers, neglect as to which need not nave been charged or proven by plaintiff. We quote in part from the language of the court, as follow:

"In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully, informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the aocident speaks for itself - res-ipsa loquitur - that is to say, that, a presumption of negligence arises from the fact itself of'the aocident. In such cases,-the plaintiff not only need not allege the particular -acts of omission or commission from which the accident has resulted, but need not even prove them. The aboident itself makes out a prima facie case, and the burden is on defendant to show absence of negligence. Res ipsa loquitur."

We note the particular reliance placed by counsel for defendant in the case of Mire vs East La. Ry. Co., 42 Ann., p.p. 392 to 395, stressed by him in application for a new trial. and in brief and argument before this court. Most careful analysis of this case and of other similar authorities cited, has not convinced us of their application either to the law or the facts involved in the case now under consideration.

Another defense urged by defendants' counsel and pleaded.in answer as a bar to plaintiff's recovery, is vne fact that plaintiff was, at the time of the accident, guilty of negligence by working in the public street upon an automobile. in direct violation-of City Ordinance No. 6173, Commission Council Series, which reads as follows:

USE OE STREETS EOR REPAIRS PROHIBITED.
(a) ho machine shop or automobile service or repair station or other establishment for the repair or adjustment of vehicles shall use the public streets for the storage of vehicles or the repair of vehicles ,
(b) In case of necessity, vehicles may be stopped in the public streets for the replacement or repair of tires or for minor adjustments, but shall not stop in such a manner as to impede traffic,"

There is no merit to this defense, because of the fact that proof is lacking, (the burden ’being upon defendant) to show that plaintiff was violating, first the letter, of the of the ordinance as above quoted, or secondly, that even if violated, that its breach in any manner contributed to the accident. The charge to’the Jury thoroughly covers this point, and cannot be better expressed, than in, the language of the able ti"t».i •badge, who said;

"If a-man violate a City ordinance and by his violation of.-, that, ordinance he’makes more liable or apparent an accident, then he ’ •is guilty of negligence, but when hi.S. violation - of the ordinance has nothing to do with the -negligence of his .’adversary, then such negligence does not .preclude his recovery.
■ Every man has a right to use the public streets for all lawful purposes, subject to the police Power of the City and when he violates an ordinance and by his violation as no injury or damage, then it is merely a matter for police action."

The following Articles of the Revised Civil Code is all that is necessary to clearly fix the liability of defendant in this case:

R.CGC.2315. "Every act whatever of man that causes damage to another obligates him by whose fault it happened to repair it,"
R.C.C.670. "Everyone is bound to keep his buildings in repair, so that neither their fall nor that of any part of the materials composing them may injure the neighbors or passersby, under the penalty of all losses and damages which may result from the neglect of th'e owner in that respect."
R.C.0.2322. "The owner of a building is answerable for the damages occasioned by its ruin when this is caused by his neglect to repair it, or when it is the result of a vice in its original construction."

It has not been proven here what force or agency, if any, caused the screen to fall into the street, or that any of defendants' servants caused the screen to fall while cleaning, repairing or lifting it.

There is evidence? that no guests were in the room at the time of the accident, but one of the disinterested witnesses swears that he saw someone look out of the window immediately after the screen had fallen from it. Under these-conditions, another Article of the Code would also apply:

Art. 177: "The master is answerable for the damage caused to individuals or to the community in general by whatever is thrown out of his house into the street or public road, and inasmuch as the master has the superintendence and police of his house and is responsible for the faults committed therein."

We are not disposed to approve of the quantum of damages awarded by the jury and amounting to $2,666.50. This amount in our opinion, is excessive. There is nothing before us to show that the injuries which plaintiff sustained are in any manner permanent, nor in their nature serious. Though the plaintiff’s age does not appear in. the reoord, we gather from other faota,.that he' ia a, young man, shown to have been athletio and’vigorous. Though' temporarily disabled and nerve— —raoked by the aeoident, he returned to his normal activities, and resumed his accustomed duties whioh he was fully performing when before the court in this case. We have already detailed above, our appreciation of plaintiff’s injuries and cannot but lean towards the impressions of the trial judge, as expressed on the occasion of his giving writ ten reasons for denial of a new trial.

We think, after careful consideration of the reoord, that the judgment in favor of plaintiff, Paul D. Bellooq, and against Hotel De Soto Company, defendant, should be reduced from Two Thousand Six Hundred and Sixty-Six and 50/100 Dollars-, ($2,666.60) to One Thousand six Hundred and Sixty-Six 50/100 Dollars, costs of the lower court to be borne by defendant, and those of appeal to be borne by plaintiff.

Under Seo. 7, par. 2 of Act 20 of 1914, as amended by Act 247 of 1920r that part of the original Judgment rendered herein, in favor of intervenor, Miner-Indemnity Underwriters, recognizing it as subrogee of all rights and actions of the Interstate Electric Company, employer of' plaintur, Paul D. Bellocii,-and as such awarding it judgment-for the sum of One Hundred and Sixty-Six 60/100 ($166.50) Dollars, with oost3 of intervention, against the amount now decreed to plaintiff, IS AEPIHMBD, said amount to be paid intervenor out of thi3 judgment by preference over all other persons.

JUDGMENT AMENDED AND AS AMENDED AFFIRMED

March 27, 1919.


text:
    NO. 8572
    COURT OF APPEAL PARISH OF ORLEANS
    ABDUL SURKER vs. JOSEPH SUTTON.
   Dinkelspiel; J.

This is 3 damage suit, based upon the wrongful seizure f plaintiff's goods by defendant. It appears -that under a fi.fi,. of defendant issued against S. K. Ali, certain household furniture nd fixtures were seized belonging to the plaintiff, and said goods were kept under seizufe for three ds,ys, when on the affidavit of plaintiff herein, averring that the'property seized was his property and not the property of the judgment debtor, same was released by the Constable with the consent of the defendant, and by his orders. Alleging further that the seizure wes absolutely tortuous s,nd without any right thereto and oaused plaintiff herein mental agony and that some of the property seized was destroyed and others not fit for use; olaimed damages in the sum of $300.00.

The defendant first filed a general denial and subsequently alleged in a supplemental and amended answer that subsequent to the seizure plaintiff called at defendant's store and agreed to pay the full amount of the judgment: sgainst Ali and did pay the sura of $8.50, thus acquiesoing in the seizure, hence not entitled to any damages.

A reading of the testimony in this case shows that the seizure made by the defendant and which was released three days subsequently, was absolutely unjustifiable, that the property seized ws the property of the plaintiff in this case, that plaintiff was pft to great and serious inconvenience for the time being and suffered some loss in the destruction of some of the property seized. There was no justification for the seizure whatsoever; the parties were in no way connected or related, one way or th’e other, they happened to live under the same roof, and had their belongings in different rooms of the apartment; plaintiff protested vigorously-against the seizure and did all that he could to try and prevent same, but without effect, and the statement made Ibn the answer that plaintiff paid $8,5<57i^oh denied by him, gave no justification for seizj- hl3,plaintiff's property under a judgment against another party.

We have no doubt that pi"intiff has fully maintained his claim for damages and that the judgment rendered in this os.se is correct.

We find in the case of Mrs. Epstein vs. Henry T. Roux et al, 12 Court of Appeal, 313, the oourt goes on to decide:

"Defendants point to no oiroumstanoe that might have lead them into the error whicsk of belfeiving the property which they directed the Constable to seise was that of their judgment debtor. On the oontrsry they aoted wholly without information on the subject, without previous investigation and with such inexcusable rgohlessness and such wanton indifference for the rights punitive of others as to warrant the imposing of/smsulHtijr damages, 3ven though there action was apparently prompted by no ill-feeling towards plaintiff nor intent to injure her. "

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

-Judgment affirmed-


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    DAVID R. MILLER VS VALENTINE W. PONS
    No. 8579
    April 10th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for possession of leased premises. It was filed January 6th, 1922.

The rule avers that plaintiff leased to defendant the premises No. 2727 Louisiana Avenue for $35 per month; that the defendant failed to pay the rent for the month of December 1921, due January let, 1922; that the lease provided that should the lessee violate any of the conditions of the lease, the lessor reserved to himself the right of cancelling said lease without putting the lessee in default, the lessee waiving the legal notice to vacate; the plaintiff prayed for judgment condemning the premises.

No brief on behalf of defendant has been filed in this Court, and his counsel has submitted the case. No error in the judgnent has been pointed out to us, and we have seen none.

After answer filed by the defendant there was judgnent against him as prayed for. Prom this judgnent the defendant has appealed.

The judgment is therefore affirmed.

April 10th, 1922.


text:
    CLARA MORTEN VS THE NATIONAL LIFE AND ACCIDENT INSURANCE CO.
    NO. 8580
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
    FEBRUARY 19, 1923.
   By WILLIAM A. BELL, Judge.

Plaintiff brings this suit against tbs defendant company upon a certain accident policy issued to her on November 19, 1917. The date of the petition herein filed is October 19, 1921, and the accident by which she alleges to have sustained injuries, indemnity for which are claimed.under the policy, is shown to have occurred on April 9, 1918. She alleges that she was totally disabled and will so remain for the balance of her life. The amount claimed under the policy is the sum of $240.00. The defendant answers this suit, pleading exceptions of vagueness, of no cause of action and finally setting up the special defense of prescription, contending that the cause of action, if any has arisen under said policy, is now prescribed by two years under a stipulation contained in said policy to the effect that ho suit shall tie brought nor action commenced against the company under said policy after two years from the time when the right of action shall have accrued. These defenses are then coupled with the answer,(as required,^ to the merits of the case. There was Judgment in favor of the defendant dismissing plaintiff's Bait, the Court maintaining the exception of prescription and otherwise finding in favor of defendant upon the Issues raised on the merits of the case. From this Judgment the plaintiff has appealed.

We find that the alleged accident occurred on April 9, 1918, and that not until three years and seven months thereafter, to-wit: October 19, 1921, was this action brought. Examining the policy in question, the most pertinent and important clause therein reads as follows:

"No suit Shall be brought nor action commenced against this company under this policy * * * after two years from the time when the right of action shall accrue."

It is contended by plaintiff JSsaA notwithstanding the clause juslj quoted, that same has no application to the-instant case, or If said clausa oould have aver been applied as á defense to this suit, that defendant is estopped from pleading same because of the subsequent aotiogs of the company or its authorized agents in. holding out to the plaintiff suoh promises, of settlement or of entertaining suoh negotiations of settlements caused plaintiff to believe that the clause in question was waived and as to delay plaintiff in asserting her legal rights within a.reasonable time before the prescriptive period referred to had elapsed.

The first question' to be disposed of in this matter is Whether the plea of prescription íb properly and timely applied and whether estoppel oan he urged as against the- said plea. The merits of this oaee need not be discussed if the plea of prescription is good.

There appears from the evidence the undisputed faot that plalntiff first prssented a disability claim to the defendant company sometime in April, 1918, and that seme was rejected by the local representativee of the company and sent by than- to the home office, and that soon after this rejection waB made and Knowledge of it brought to the defendant, she called at the office to make personal inquiry and was advised that the claim had been re Jeoted. It is also an undisputed fact that nothing was doge by the plaintiff until April, 1921, when she placed her claim in the hands of her attorney, and suit was not filed on said claim until October 19, 1921.

We find from the evidence that although negotiations \f' wars had between plaintiff and defendant concerning the el aim inquo at ion, that said negotiations entirely eeseed a few months áf-’: ter the date of the aooident, long before the v"i- •'(. sotiptive period could have aoorued. very much mere than a year before the expiration of the time limit. It is trae that long after the two years had elapsed as a time within whioh the aiit whould have been instituted, and, in faot, fully three years after the aooident had ooourred, that when plaintiff's attorney oommunicated with the defendant insuranoe oompany, he was told that the oompany would adjust the olaim if they were furnished with satisfactory proofs that plaintiff was disabled. These statements were, however, made long after the two years had elapsed and by no possible implication could it be said that the cofcpany had waived its right or that it has been estopped by its action^, from setting up the prescription period set forth in the policy. It is evident from the dates above noted that the plaintiff's rights had already prescribed and henoe that she could not have suffered any injury by virtue of the faot that the oompany was willing to even di scuss the justice or not^ of her belated claim. It oannot be said in thiB -case that she was misled in any way to the prejudice of her legal rights, the right to sue having been barred ogor a year before these negotiations ooourred. The accident having happened on April 9, 1918, the right to sue thereunder was barred after April 9, 1920. While under the facts of this case it is apparent that whatever negotiations were subsequently made, same never arose until, as just stated, the action had the prescribed by over a year. It should be further noted that the policy in question specifically provides that its agents are not authorized to and have no power to make , alter or discharge any contracts for the company, and that, therefore, no agents could waive the terms of the contract requiring suit to be filed within two years. Moreover, we are unable to find from the evidence t>f&A;his case that plaintiff has in any manner proven that the company or its agents made any claim to her that would justify her belief that the definite stipulations of the policy had been qualified or waived.

There is nothing in the law of the contract upon which this suit is predicated that is against public policy or contrary to equity and fair dealing. It has been frequently recognized by the courts of this State that such stipulations in policies of insurance as are now pleaded in this suit^are valid and legal as between the parties and will be rigidly enforced when a defense thereunder is properly urged. In the case of Blanks v. Hibernia Insurance Company, 36 Ann., 599, it has been held:

"Stipulations in policies of insurance limiting the time within which claim shall be prosecuted are valid and legal and form the law of the parties."

See also Carraway vs. Merchants Insurance Co., 26 Ann., 298; Mortimer v. Merchants Insurance Co., 35 Ann., 353.

We find that the plea or exception of prescription as herein filed is well founded and must be maintained. There is, therefore, no necessity for a consideration by this Court of the issues raised upon the merits of this case.

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

JUDGMEMT AFFIRMED.

FEBRUARY 19, 1923


text:
    Charles F. Claiborne, Judge.
    CLARA MORTEN, Appellant VS NATIONAL LIFE and ACCIDENT INS., Co.
    No. 8580
    May 22nd, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

She plaintiff claimed of defendant 1240.00. From a judgment in favor of defendant, the plaintiff was granted an appeal returnable to this Court on February 23th, 1922. On motion of plaintiff, filed February 27th, the time allowed for filing the transcript was extended until March 8th, 1922. She transcript was filed in this Court on March 9th, 1922. Xhe defendant and appellée has moved to dismiss the appeal on the ground

"that the transcript was not filed until March 9th, 1922, the day after the extended return day".

In the case of Ragan vs La. Ry. & Nav. Co., 139 La. 633, the Supreme Court said that under Article 1135 of the Code of Practice it was the duty of the Justice of the Peace to transmit to the appellate Court the transcript, and that the appeal could y not be dismissed for his failure to do so, C. P. 898, thus penalizing an appellant for a fault which wfts not his.

We are bound to follow this opinion until reversed.

Motion to dismiss denied.

May 22nd, 1922.

303


author: WILLIAM A. BELL, JUDGE.

text:
    SURETY CREDIT COMPANY, INC. vs. W. Q. SMITH, D. L. KELLEY AND JEWELL A. SPERLING.
    NO. 8582.
    COURT OF APPEAL FOR THE PARISH OF ORLEANS.
    WILLIAM A. BELL, JUDGE
    January 22, 1923.
   WILLIAM A. BELL, JUDGE.

This is a suit against the defendant, one of three joint and several signers of a promissory note dated May 27, 1921 for the sum of $100.00, value received, and payable on demand with interest at the rate of 8 per. cent per annum from maturity until paid, and for attorneys fees fixed at 20 per. cent.

Defendants pleads exception of no cause of action and further answering admits his signature to the note but pleads that said signature was procured without any consideration for the signing of said note and through misrepresentation and fraud. The answer does not set forth by whose misrepresentation or fraud was the defendant induced to obligate himself upon the note in question, and there is no evidence in the record which in any manner supportslthese defences.

There was judgment in the Lower Court in favor of plaintiff and against defendant for the full sum of $100.00 with 8 per. cent interest thereony^BZat,May 27, 1921 until paid and 20 per. cent attorneys fees on the principal and interest and for cost. We find no error in the judgment of the Lower Court.

JUDGMENT AFFIRMED

January 22, 1923.


text:
    POMPEY P. HAMPTON, ET AL versus ANTONI O. CANTONE
    NO. 8585
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
   BY: WILLIAM A. BELL, JUDGE:

This case i>- present ly before 'tl..'' -!<j”rt a ’ - fendant’s motion to dismiss plaintiffs’ appeal for .•.■..ni jurisdiction rations raateriae. It'is contended the.' tl,' averments and demands pot forth in ¡'if.lnti'ft' .• •: gi nal petition having, among other things, specially ..-c.f un. :.. certain contract of pinrel ace of real estate s.l'Wod. to te worth 35.00Q, and pin ntiffs having specially prayr." for specific performance ¿.impelling defendant .to eonvc; i'e h ' the property in guestion, that on appeal from s .iudrrie "¡ dismissing their demand, this leurt i¡; vh Í1 out juris Hot I on ratipne materiae to entertain the appeal.

The record shows that in th<- or’g’nsl petition plaintiffs prayed for specifio .-icrformance , as ah w, _“t forth, and in the altern- tlve for daivig-’s in the oum of ?1,375, Suit was instituted on-lepter.ber 1, 1?2~, t: v.hic.idefendant filed exceptions of np cauce of net'.on, on '’optember 15, 1920. Plaintiffs then filed o sup^lemcnii.' and amended petition on J&k.. .ry 10, 1921, in\ vhich it ■ o allegad "that they rs-adop't all of the allegations of said original petition, except as may he modifies lore lx," ciad t■ .’.í-i pro-, ceed to allege in lar. II <• f. said supple ..ion tel politic’.: that they had recently, and nf*cr filing of the crUinnl ¿otlt’cn, boon reliably informed, and therefore alleged as true, 'hat the defendant did not oi n tee real estate in guest ion. S ’rH•••’■ he represented himself to be the ovner, fed that they thcreJorc, on reliable information received, further alleged that the d ifeudaut wae only a port ov.per of the property involved. In Par. IV, of the supplemental petition, it was further pleaded that owing to the bad faith, delays t-.p damages ejausod to the plaintiffs by the faults of th.', defendants they were entitled to be relieved of any obligations to purchase the property described, and that because of the faults and bad faith of •the defendant, th-† they were entitled to recover the domares previously alleged in lar. Til. of their original petition, aggregating the sum of $1,375. The prayer of the supplemental petition reads as follows:

"I E E S S f C B.E, pli.irtiffs pray that this supplemental petition be filed and that defendant be duly cited and served herewith according to law, and that, after legal delays and due proceedings .had, there be Judgment- in their favor against said Antonio Cantone in the principal sum of TEIKTYEtT ruinsriR ajtb sevebty-five doItLAbs ($1375.00) for damages above stated and reasons and causes alleged in the original and supplemental petitions",, with Five i’er Cent [pfo) interest per annum from September 1st, 1920, unl.il paid, and all. costs of suit.
Petitioners further pray for full and general- relief."

On January 24, 1921, defendant, among other exceptions, which need not be detailed here, filed additional plea of no causé of action, against the supplemental petition above referred to. All exceptions, to both the original and supplemental petition, were over-ruled by the Trial Court, and after issue Joined there was finally Judgment dismissing plaintiffs' petition, from which Judgment appeal has been tsEten to this Court.

We are of the opinion that the supplemental petition, with its specific reservations, allegations and prayer, conclusively establish, with full regard to the provisions of‘thé Code of Practice of this State, a complete abandonment, in proper and legal form, established before Judgment, of all-demand for specific performance as originally set forth in the original petition filed in'these proceedings. Every provision, pf. the Code of practice in regard to the filing of supplemental pleadings, has been observed, and neither the supplemental pleading nor the prayer contained therein, has, in any manner, prejudiced; the rights of the defendant, as said rights existed' either before or subsequent to the Judgment herein appealed from.

The desideratum glead*/"01 ing, cannot be stated better "vCau, by the languu-e found in Art. 161 of the Code of Practice, -• '-ich próvidos:

"It is sufficient, in -ill judicial demands vl-'ich are required to be in writing, to express oVcrly what is demanded, with such conclusions ..j :.oy servo for a basic to the judgment to be rendered in the cause,"

The "conclusions" referred to in the above article are necessarily found’ in the ¿loader's prayer, which concludes his original or supplemental p.etiti t., or answer, a3 the case my be, and with -due regard' to the proviso found in Art. 149 of the Code of Practice, that "inconsistent demands cannot be nimulated in the same action," Jfé Snow of no prohibition against the litigant either amplifying or modifying his original demand before issuo joined or judgment rendered. It has been frequently stated as a doctrine of judicial interpretation, supported by endless authorities that in order to ascertain vhat is demanded vin a particular suit, resort must be had to the prater of the petition. Hart et als. v. Untoreiner et als., 14 Orleans App. 146; Slocum v. de Lizardi, 21 Ann. 355; Zemper's Heirs v. Hulick, 16 La., 44; Hood v. Segrest, 1 Rob. 109; Hass v. Irion, 121 La., 149.

In Hader v. Fox, 15 La. 132, it was held "that a supplemental petition praying for a new order of seizure, and claiming instalments not due when the original petition was filed, does not change the original demand, and is admissible." It has been further held, and is consistent with Art. 155 of the Code of practice, -that a supplemental petition which does not change, but simply amplifies the issues tendered, should be allowed. Ramoneda v. Kikletisch, 1 Orleans App., 296; Trenchard v. Railway Co., 123 La., 126; Semitit-r before judgment Is always permissible, and the supplemental prayer in the pileadings before us^ carries with it an abandonment of the original claim for specific performance, and under all rules of consistent pleading looking to the simnlifvinf' of isauea Joined, the restricted, or modified demand in this proceeding has Clearly established the fact that, had the Judgraont been rendered in favor of jilaintiffs against the defendant, nothing more .«(in a Judgment for da".-ia<*e3 in the sum of fl,£i7E could have l-reu rendered, for the reason tint noth: ng more has been áoK..ítdo 1 on ihe fane of <vc pleading3.

MOTION TO DISMISS IS DENIED.

April 24, 1922.


text:
    WM. B. KOHLMAN vs. E. J. Hart & CO., LTD.
    NO. 8589.
    COURT OF APPEAL FOR THE PARISH OF ORLEANS.
    V.ILLIAII A. BELL, JUDGE
    January 22, 1923.
   WILLIAM A. BELL, JUDGE.

This le s suit by plaintiff as lessor of oommerolal Nos. 608-610 Chartres Street in this olty under written lease, ¿mount olaimed is for three months rent, repr.eihsee rent notes for $76.00 eaoh, whioh notes bear inter- * tifo. The written lease also provides that in case it should bfloome rifeoeesary to place the claim arising from said lease in the hands of an attorney for collection, lessee should pay as counsel fees an additional sum of 10$. The lease began on the 1st of October, 1921 and the leasee paid monthly rent as it beoame due, but . finally refused to pay the rent for the monthisued upon, í#~wit: January, February and liaren of 1921 for the reason that lessee olaimed that the roof of the leased premises, particularly the main building leaked to such an extent that it wes necessary after putting the leBsor in default to have the roof on said building as well as of the, out-building on said premises renewed at the oost of $224.00 or $1 lesa than the total rent for the three months above stated. When sued for the unpaid rent, defendant answered by admitting the lease and its liability there under but denied liability for the amount sued upon, claiming that .because of the forced repairs after putting the lessor in default, and because of the lessee having paid for said repairs there was nothing due to the lessee except $1 which was tendered to lessor or his agent,but refused. Further answering it denies that it was necessary to place .the note sued upon in attorney's hands for collection.

There was judgment in the Trial Court in favor of plaii tiff for the sum of forty-one dollars ($41.00) with 8$ interest there* from April 1, 1921 and for 10$ attorney's fees on principal and inter* the Said judgment recognizing lessor's lieji and privileges The lesso: alone has appealed from this judgment.

The evidence in this case convinces us that the roof of the main building was in a leaking condition, and that under the law as well as the terms of the contract of lease that the plaintiff was obligated to repair the same. '.Ve do not consider from the evidence before us that this obligation devolved upon the lessor in respect to the shed or out-building of the rented premises.

The lessee's disbursement of ';.225.00 was for an entire new roo'f on both the main and out-building on the previses, and wes incurred without notice of the proposed disbursement, without any bids being called for, and q$¡& a month and a^íaí^aíÉfeLé^njti float ion to the lessor that premises were in leaking oondition. The ri.'ht given the lessee under the Civil Code to make such repairs are predicated only upon putting the lessor in proper default. There are two questions to be determined in this case. First, whether the lessor was put in proper default, and secondly whether the repairs made by the lessor was such .as oould he considered necessary and reasonable under the circumstances of the esse.

The roof of the main building was put in repair under a two year guarantee, about one year before the lease in question arose and it appears that frequent leaks in the roof occurred before the lease in September and after the lessee had taken possession in October. In every instan^ however, the lessor, when notified of these leaks gave the matter his prompt attention, hut upon further trouble with the roof it appears that the lessee wrote a letter on Ilovember 6, 1920, to lessor notifying him that the roof was in bad condition •and that the leaks had not been remedied, because former repairs on said roof had practically been of no benefit, and finally advising lessor that unless he took immediate stews to repair the roof extensively, that the work would be done by lessee, and the price thereof '-edueted from the rent. The letter stated that this written notice was to apply to the out-building also. On the same Krj lessor replied to the effect that his architect and contractor hr..', faviced him that the roof was at that timo free of all leaks, that ir ray event he would not agree to repair outer building or shed, and t ... • he had never made any agreement with lessee to re .air the .■■oof o the shed, but that if the roof of the main building s’-ould she-» any tmaency to leak he, iessor, would immediately,upon lessee's advice,have the matter corrected.

Prom date vf this correspondence no further requests were made upon the lessor nor did the le.ssoe in any manner question the contents of lessor's letter of Jbvemter íth. Mle record shows that on n November 13, 1920 the lesrc.c' ;; '■ tcrucy wrote lessee the following ^ advice found in the recod'd oi, th ■ book of lessor's letter of 1,'ovember 6, 1920, and reading af ioj]owe.-

11/13/20
"Mr. Iieovy.
."ave y r ran make an investigation of repairs access .try, "•«•it a reliable party and have him give you ■ r.r'tten report — price also— inform him you will - him as witness if necessary— Then nroceed to hi v- verk done — fay no further attention to 'lx. ZZc. 1r.au — lieep this letter as acknowledgment tiat he is i-. default.
S. V. ?rove»S£l,"

le are of the opinion that the lessor was not put in ie,.cl or pr.per default concerning the leaks in the roof, nor does any of the eviderefi in this case impress us with the fact that the lessor was in cry manner negligent in having or attemptiig to have the bad condiiicn of the roof thoroughly rectified, are also of the opinion i’-'.t (.!» lessee was not Justified in havin, enti e now r.,of placed upon i ip read;. .rad the out-building, particularly, was he not Ju fified ?r. incurring tnis expense without first notifying th lessor >:$ to the nature of the proposed roof, the extent tnc r<-pairs and the contract urioe tnereof,after proper bids dul- submitted. In other rr "dfc all the circumstances of this cas? imoel'ed the lessee to deal ft’cl \ii Vh the lessor and in such meaner a..; ¿/"would hove expected I vos->r Vo deal with Mo. c/7

>0 testimony as we read it in this ease, imp’"esse#'’ us v. ’ th '.no fret tl-;!, the contract price under which the lessee renewed the roof on ti • '.-.uildinp is excessive. The contractor who did the ntí "•'i ti fJ ‘hat the roof on the main building approximates twentyfiv~ squares ; v.essureme'it, and that the slate surfaced, rolled roofing materia] .; -c-d by him cost about J185.00 for the mein roof, or re. ho other bids were received and lessee allowed ..is own price. Thor-, was no evidence offered by lessee t.-:ic price was customary or reasonable, but the unoonstirr.ony qf lessor's contractor — s man of 22 years ex-»ne roofing business — &0máA that he had just, prior-to *7.4 ) ‘ a - rc c * to to -r.ow v r -.ad:',etc.. •c.rj e-;ct.-e tri. 1 oi this case, completed a similar roofing job in this oity, : t cost :i about -¡¿2.00 per square, be think thereiore that the lessee s .cul-i ,o - be credited with more than v75.co for the work done on the . -iloing, especially as we are impressed vith the evidence going •v <■ taciish only repair ■ orh^rather than entire nev work should f.v ; be ione.

"'‘e- -j eiit" due by lessee for -.•« „t.-. th o' January 1921 ‘r. af f 7E.00 shou]-i „e ri -Vly end "pi l. y rfr-set by the amount wow- reco'-iz-" by iv for eopoirs * ■ t-.e r.-of, t. "it: .,75.00. It -‘a ‘‘->e ’efov? or. ftsu, adjudge •. and'decreed that the r-idrment aooee.’ed fr-:m. tg a.-d *’-0 g; me hereby is amended so as to incre'se sci^ ji dgment i:i favo, oí t^ci" ¿ií f d.i egsir.st defendant f"r i-o ru ci Icrtj-or.i 1’oT I- r (-.41. -0 ! to tl--. o’Vi if Cue 1'unu.rod c:.¿ ill,. Joii:j.s ( li. - th eig.- re- cert i:.t. rest per eo;- - .n 2 -v.-ity- 'iv. • 'l.'-j Rollara j'r.-a ,-arcr. 1st, 1221, end o.j - .- “ y-ii\3 1"',’ no,.'a ■- X".-. '..vil let, 1921, arü ten por cent (1C;?! cjiis-’j. > 'nciptl ,nt ■- attorney® 2,e(, and wit/, re„c.$n..t:,i n ... ~e t; .to... z 1 '¡.;rrh lien :wivile.-c iuor> all : * '< co:.ip ..a in r-.i ’f t-.'-c. premfs-j, ant r~ --eats in. tc.-h Joi~U.

J. r:'J- ’¡.'.’LL’JKh -'.lib .'.51 1 -, 0.

January 22, 19:.,,


text:
    Charles F. Claiborne, Judge.
    WM. MAXWELL VS N. O. RY. & LT. CO. & al.
    No. 8595
    June 5th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit arising from an automobile accident.

The plaintiff alleges that on February 8th, 1919 at about 12:30 of the day, he was seated on the top of a pile of lumber upon a trailer attached to a motor-truck owned and operated by his employer John B. Mertzweiler; that while the said Mertzweiler was in the act of crossing Magazine Street, at the intersection of Foucher Street, from the lake side of Magazine Street, - going in the direction of the Mississippi River, and while the said truck was turning into Magazine Street, in the direction of downtown, and the said trailer was on the lake side railroad track, a car of the Magazine Street line of defendant company running uptown dashed into the left hand hind wheel of said trailer with such force that the trailer was knocked from said track causing your petitioner to be thrown from the trailer down to the ground oa-Mcgasát» ■ Street;' that he received serious injury for which he claims $15,700 damages.

The defendant company pleaded a general denial and specially averred:

"that at the time and place and at the hour named the .said car was being prudently operated on Magazine Street on a trip uptown, when the automobile with a trailer attached which was being driven on Foucher -Street towards the River attempted to cross the track when a car, was practically at the crossing, so that there was neither ■ time or distance within which to stop the car or so check it that the accident could be avoided".

There was judgment in favor of defendants, rejecting plaintiff's demand, and he has appealed.

Concerning the manner in which the accident happened, there were three witnesses for the plaintiff, viz: Hertzweiler, Devensky, and the plaintiff Liaxwell.

lo lviertzweiler testified practically that he was driving the automobile to which was attached the trailer; that there was a very light load of six or eight planks each eleven feet long upon the trailer, end that Liaxwell was sitting on the planks; that the length of the whole outfit, auto and trailer, was 27 feet, 10 inches; that the width of J'&iazine Street from curb to curb is 38 feet; that he was driving out Voucher Street to the river; that when he reached Tisgazine ,’treet, he checked up almost to a ston; that he looked up and down Hagazine Street; that he saw a car coming down the street; an,; another going up the streets both about a block and a half away; that he proceeded to ero. ■- the street, when the uptown ’iagazine ;ar hit the left hind wheel of the trailer and broke it, throwirg liaxwell to the ground; that there was no obstruction to thp car seeing him, as the fence on the downtown wood corner of Poucher and Liagazine was a low iron fence; he went over this crossing et the rate of about 4 or 5 miles; efter hitting bhe trailer, the car ran ten or twelve feet before it stopped; the left hind wheel won on the river side rail of the uptown track when ’t was st. uck; if he had seer, a oar approaching he could' have stopped immediately within two feet; he liad often gone over that crossing; there is a double frock on Kagazine Street; there is a roadway on each side of the two tracks; he heard the motorman say:

"I put on my brakes and they wouldn't hold"; when the car got near him it
"hurried its speed".

2o P. A. devensky les^lied that he was a paasenger on the Magazine car and occupied, a seat next to the window on the left hand side of the o.a'r two sea from the front; he was reading the paper; the car

’’ran pretty fast, then a yd down? he looked through the window • .aw an automobile crossing slowly about fifty feet diste,.i<; he felt a jolt and then saw the oar liad struck the trailer, and saw the man going overboard with his head down; he had known Maxwell for about a year; witness was a dry goods peddler and had sold goods to Maxwell; did not hear the motorman sound his gong; after the car struck the wagon it stopped almost at the same time; he thoughfeaxwell had been killed; a few days later he went on his route peddling and stopped at his house as he ’
"thought^ may be^they might want black goods".

3o William Maxwell, the plaintiff, says he was s.eated on the lumber on the trailer near the front, facing uptown, to see if the uptown car was doming, Merzweiler was seated on the left side of the auto, driving; he said:

"we started from the house with a load of lumber, on Camp Street, coming out Foucher to Magazine to take the downtown track as far as Washington, thon turn out Washington towards the river, with the work at Washington and Constance. And just as we got to Magazine we kind of halted a little to see our way clear of the car, because we pitch across and he looked down and I looked up and saw everything was clear and he holloaed to me how it was. I told him all right. He answered me back the same and we went on. Just about the time that we were crossing the track, the trailer was, there come the blow down, and I want; that’s all I know";

he did not hear the Magazine car coming;

"he could see far enough to know if a car was coming"; maybe half a block; he did not look down at all; he could see over the fence seated high up on the trailer, heard no gong.

There ms offered in evidence a photograph representing the place of the accident, its approaches, and surroundings.

Eight witnesses testified for the defense,

lo M. Ferrage; at the time of the aocident was watchman on the river front, and I3 now carrier for the States; he was standing on the left hand side of the platform of the car coming down Magazine Street towards Canal; he looked ahead and saw the automobile at about 15 or 20 feet from the comer; it seemed as if it had slacked up to let' the car go by, and afterwards it put on more speed and came right aroun|; at that time the car must have been 40 feet away from Foucher Street; the car was coming about half speed; when it neared the comer it put on full speed, and when he noticed the auto coming, he threw it off but did not have time; both cars sounded their gong;

"a child was playing in the middle of the square with the car coming from Canal Street end the motorman kept ringing the gong to get the child off".

2o W. Rossbach was a florist on the date of the accident, but is now employed by the defendant Company; on the date of the accident he was working in the garden of the residence comer of Foucher and Magazine; Frank Ritter was working with him at the time;

"Mr. Hertzweiler came with the automobile from around Camp and Foucher. He lives on Camp. He came around the comer so fast I had to holloa at my man to get out of the way. He just did get out of the way in time, or he would have run over him x x After he saw the car coming he tried to put more speed on it to make the curve to go below. He made it, but the back of the wagon hit the wheel right, where the tender i s, hit the wheel and broke the back wheel";

the car was then pretty near Foucher Street; just after the car hit the wagon, the car stopped dead.

3o Frank Bitter says:

"The man liked to run over me with his automobile. I was loading trash on Mr. Eossbach's wagon and he hollaed to look out for the machine. I had to get up between the two wheels of the wagon to keep him from htting me. He went to make a long turn and the car hit him".

The balance of his testimony is practically a repetition of Eossbach's.

4o C. Curley was the motorman on the occasion of the accident on the car going towards Canal Street. He is 39 years old, and has been 13 years in defendant's employ as such; he had a hard time stopping himself; he stopped his car on Foucher Street; he saw the auto coming at a fast rate of speed, so he janmed on the emergency brake and pulled the reverse; the plaintiff fell in the middle of his track; he stopped hiB car about two feet from his head lying in the middle of the track.

Q. "Then this man tried to cut between two cars, both of which were close to the crossing, you say?
A. Yes, sir."

Continuing the witness says: The auto must have been going 12 ■or 16 miles; with a good brake and a dry track he can. stop a car going 15 miles an hour in a distance of 100 to 125 feet; there was one man on the platform of his car.

5o John Shaw was motorman on the Magazine car going up, that did the damage. He says: He made a stop at Aline Street, one block below Foucher; as be started up he was speeding the car up, and when he got about 100 feet from the comer of Foucher he noticed ths auto pop up from the feather edge fence; he hit . his gong, but it wás too close, the front end of his car caught, the Dack wheel of the trailer; when he saw the auto coming, he hit his gong, threw the power off, had the air on, and threw his reverse; his brakes were in good condition; he coala not have stopped his car sooner than he did.

60 R. C. Puig was conductor of the car involved in the accident; his attention was attracted when the motorman pulled his reverse; the car was then about a car length from the comer, 45 or 50 feet; he heard the gong; then he heard the crash; the downtown car also stopped there.

7o Jos. A. Morgan, was employed by the defendant Company at the time of the accident, not now; he was occupying the front seat left hand side against the window of the car going downtown; he saw an auto coming out of Foucher Street, going pretty fast' about 20 miles; the car going up was then about 45 feet from jhe / crossing; both stopped at the same time along the side of the| / f - trailer; they were going at a speed of about .20 miles an hou£. /

8o Joseph B. David is employed by the Service Printery; was never in the service of the defendant; on the day of thé accident he was in the car going downtown, and saw part of the. acc'iB ¡ dent; tha auto was moving pretty fast; it did not go straight/ across Magazine Street; if it had, it would have missed the car; it went diagonally across; his car stopped within one foot of plaintiff's head; he was seated on the right hand side of the car on the front cross seat next to the "admiration" seat; the motorman of the upbound car

"tried his mightiest to stop the car"; he had a clear vision of the auto; it was crossing when he first saw it - it stopped about two car lengths after the accident.

Assuming that all the witnesses are equally credible, we find that the testimony overwhelmingly established that Kertzweiler failed to exercise his faculties of vision and did not see the car coming up the street because he failed to look. 140 La. 21. The time was midday and the weather clear, and if he had looked he would have seen the car. We must assume\therefore that he did see it, and that he took his chances to pass ahead of the caí- 7ith impunity; if he did not see it, he was negligent; the lav: favors the vigilant. 9 Ct. App. 86; 50 A. 1087; 106 La. 236; 51 A. 299.

But Mertzweiler is certainly mistaken when he says that toe cars were a block and a half or 450 feet away when he arrived at Magazine Street. He is contradicted by several witnesses and by stem facts. Then he reached that street he had about 30 feet to get into the middle of the street, and his auto and trailer together measured about 30 feet, so that he had to travel at best 60 feet to clear the track on the wood side; he traveled at the rate of four miles an hour. If we assume that the oar's speed was 16 miles an hour, then the car travelled four times as fast as the auto; therefore while the auto travelled 60 feet the oar went only 240 feet, which would bring it only within 210 feet of the auto. But the most reliable testimony is that the car was speeding at the rate of only eight miles an hour, which would corroborate the testimony of other witnesses that when the auto reached the comer the oar was about 100 feet away. If this be true then two conclusions whield the raotoxman from blame. The first is that he could not stop his car in that short distance, and the next is that he had a right to assume, when he saw the auto, that the chauffeur would check his machine so as to allow him to pas3. Such were the rulings in the following oases: 8 Ct. App. 340.

In Cowden vs Shreveport Belt Ry. Co. 106 La. 236 the Court said on p 240:

"And even after the horses had fairly emerged from behind the comer building, say when their heads had reached the sidewalk line, he (the motcxmeer) was not bound to divine the intention of the wagon to make straight for the track, and, so divining, have recourse at once to heroic measures for stopping the car; the natural assumption in suohoaseS" was that the wagon would stop or turn aside. If a motomeer must, under penalty of negligence, or worse, assume that every vehicle or every pedestrian he sees moving towards the track will keep on the even tenor of their way, and acting upon such assumption, must at once y4ut on brake and reverse current, what becomes of rapid trensit in Cities?"

In the case of Marsten vs Shreveport Traction Co. 140 La. 21 the Court repeated:

"The motorman had the right to assume that the plaintiff, who was driving slowly, would stop or turn his machine before reaching the car tracks. Plaintiff's intention to cross could not have manifested itself to an observer until he was within a few feet of the rails".
See also 48 A. 12; 52 A. 422; 137 La. 832.

In the case of McShane vs N. O. Ry. & Lt. Co. 137 La. 830 the Court said:

"We affirm the doctrine heretofore announced in two very similar cases 106 La. 236 and 110 La. 970, that to attempt to drive a vehicle across street railway tracks in front of an approaching car, which could and should have been seen with ordinary care and prudence, is such negligence as must prevent the recovery of damages for injuries resulting from a collision with the car". Affirmed in Marston vs Shreveport Traction Co. 140 La. 21.

It is also the law that street cars in Cities have the right of my. In the case of Walker vs Rodrigues 139 La. 251 (253) the Court said:

"Besides, the train had the right of way, and it was the duty of the defendants to have guided and controlled their cars, and to have yielded this right of way, without running over the neutral ground, and injuring plaintiff in so doing".

The negligence of Mertzweiler is made the more evident by his own testimony in which he states he could nave stopped his automobile

"within two feet". 140 La. 20.

The testimony of the plaintiff cannot help him as he testifies that he was looking uptown and was turning his back to the car coming uptown that did the damage.

We therefore come to the conclusion that the accident was caused by the negligence of the chauffenr of the automobile and not by any fault of the motomeer of the car, and under settled jurisprudence the plaintiff cannot recover. He is bound by the negLigence of the chauffeur. 106 La. 236; 132 La. 773; 140 La. 18.

Judgment affirmed.

June 5th, 1922.