text:
    No. 7777
    Mr. & Mrs. Ernest Ruffo -vs- H. G. Marcotte.
    Court of Appeal- Parish of Orleans.
    By Dinkelspiel- J.
   The plaintiffs in this case were the purchasers of a pieoe of property formerly belonging to Mrs. George H. iougall. These then lessors rented to defendant the premises No. 1838 Fern Street for a period of one year commencing on the 1st of'July, 1918, and ending on the 30th of June, 1919. Among other clauses in the lease, there is to he found this clause: "It is understood and agreed that failure of lessee to notify lessor or his agents in writing within thirty days of expiration of this lease shall he construed as a renewal of same, under such terms and conditions as is now enjoyed." This lease was duly recorded and transferred to plaintiffs in this suit in due course.-

It transpires from reading the testimony and the various letters between counsel in this case that shortly after the expiration of the lease in cuestión the plaintiff and defendant met on the streets in this City and defendant offered his check in payment of the rent due for the following month,?35.00. Nher. the offer of the check was made, plaintiff produced an ordinary receipt which defendant refused to accept, buty^tefldered a receipt mnd-i fy-Wic^t?fa terms of the renewal of.the lease heretofore quoted. The plaintiff said that he must see his lawyer about this and asked that the parties meet the following day so that matters could be adjusted and payment made. Defendant did not appear the following day, but a notification or letter was written by his attorney stating his willingness to pay the rent for that month upon a receipt to be signed as dictated in accordance with the renewal obligation of the lease.

Several letters of the same character passv.ú between the attorneys of the'parties without coming to any definite conclusion, and eventually a perraptory notice was sent by plaintiff's attorney that if within twenty-four hojSs after the receipt of the letter fixing the time for payment wa3 not made, an ejectment proceeding or suit for possession would be brought,and no payment having been made on other letters of the same character intervening but without producing money results, the money being in the hand3 of the attorney of defendant ready.and willing to pay as frequently asserted, which offers were declined, and this suit instituted.

There is little or no dispute about the facts as thus stated, and the only question is, can defendant avail himself of the obligation that the lease devol ves upon him by placing the money, as he said he did, and as the attorney states in the hands of his counsel? Tie think not. Tie think the law is absolutely the other way, and in order to avail himself of the obligation and the enjoyment of the lease, it was compulsory for him to make payment in money and nothing else would answer. In this connection, we refer to the case of Mudd vs. Skille's Heirs, 6 La. p. 19. "A real tender can not be made so ac to 3top interest, unless the legal formalities are pursued, thus, a tender to the plaintiff's attorney at law is insufficient."

In the 2nd Annual, Bacon, et als vs. Smith, et als, p. 441, the syllabus reads: "The mere announcement by the maker of a note of his readiness to pay, made to the holder, and the refusal of the latter to receive the amount or. the ground that it had been attached at the suit of a third person, is r.ot a legal tender and cannot stop: intere3tv-S, Quoting ;jj g' Code of Practice, 407-415. '<& l, ft. *'}

.Garland'3 Revised Code of Practice of touíísjjJúi&í fteo. 1, Art. 404. "Heal Tender,’1 n’rhen a defendant confesses that he owns the -/.-hole ox a part either of the debt or of the property demanded of him, and the plaintiff refuoes to receive v/hat sveh defendant aehnoNle djes that he owec him, such defendant may aubs a real tendon of .same to such plaintiff either after the issue hd3 bsoh joined or oven previous to any judicial ¿rccerdinjs having been instituted against him.” C. P. 417. C.C. 2167.

"That the tender be made in tiie place agreed u.-on Por the payment, or that, if there be no" special agreement as to the place of payment, it be made either to the creditor himself or at his dwelling, or at the house ohosen for the execution of the agreement."

Art. 407 of the Code of Practice reads: "Tender of Money." "Rher, the tender is for money due, it must be made to the creditor himself or at his actual or chosen domicile, by the debtor or his agent, in the presence of two witnesses, residing in the place, by tendering to such creditor the sum which is due to him, with interest and such costs as he may have incurred, and exhibiting ouch sum to him in the presence of such witnesses in current money of the United States." Also see Arts. 409 and 411, C. P., also see 46 Ann. Simonds vs. Sheriff, et als, p. 472-473, and under the head of "Tender" Cyc, Vol. 38, p. 143, Sec. 3. "Tdien making a tender there must be an actual offer by the tenderer to pay. An announcement -without more oí an intention of making a payment is not sufficient, r.or is an assertion of readiness or willingness to pay sufficient,"

Ke have thus gone into the-facta and the law of this case and have cone to the decided opinion that the plaintiff has fully made out his case --nd the defendant has f.died under the law to give the satisfaction that the law requires in similar cases. There could be no other payment and no other tender except such as the law provides for; that the mere fact that from month to month defendant has handed his attorneys the amount of rent due to plaintiff is not a legal tender and cannot so bs construed under any circuí:.stances.

For she reasons assigned in this opinion, the judgment of the court a quo is affirmed.

Judgment affirmed.

DISSBBtlBO CPIIIO*.

St. Paul, J.

I am unahle to agree with ay Colleggnea and with tha hlatrlot Juago.

They may ha right; hut I think that defendant was lag hy oaonotl’a lottar of August 1st (mot Intentionally, of oouroa, hut mamo tha laaa ariaoutly) Into tha hallof that a now laaaa would ho algned at tha s«M tima that ha paid, tha rant, that la, within tha £4 hours. Amt however may have haan tha taehnieal aarits of dafaadant'a original position. It waa at laaat not an mu. tmdaad, «hat appeared ta have haan eonoadod, waa aran mora than ha had aakod; ao that to him tha oontroTarsy aaaaad olosod.

XI.

Again, I think that no tandar hy dafamdant waa required. A tenter is naoasoary and useful only to atop lataroot and oeata, or ta antleleat< and prevent a auhaequent putting in tofanlt jjt aona iaaonvoniont But In order to dlaaolTa a laaaa or other oontraot far a paaalwe h«wh thereof, thara must ho an actual putting in daafult, mat a nara want af tandar or eran a long oomtlnued and deliberate fallara af perfumamos: unloaa a putting in default has haan waived, or would ha aaolaaa awtag to a paranptory rafuaal, or manifeat Inability to parfoxn.

She only putting In dofault in this oasa (almas thara waa ns peremptory rafuaal to pay^or rafuaal at all after tha latter af August lat)oould and should hare haan a demand made at tha dentella of thm defendant (the debtor) hy a parson than and there ready ta resolve tha payment. A demand h£ post was no demand at all. Lafayette Realty Vs. Puglia, 10 Orleans App. Rep. 105; Bennabel va Metairie Cypress Co., 120 La. 928.

Briede Babat, 181 La 181, has no spplloatlon hero. There tha plaintiff sat only «llagad ««loable demand without «wall, hut proved rapaatad and praaaing personal demands, rla, "oanataut dunning,” without resulta. And, aa aforaaald, no tandar of aay kind waa required of tha dafandant in thla oaaa; ao that whan er whara or how tha nonay for tha rant waa "oonalanad^la ef no oonaaquanoa whatarar.

III.

Moreover X an hy no naana aura that dafandant'a original position waa only ngi unxaaaonahla: It nay aran have haan atrlotlt oorraot In law,

Bor besides the provisions of tha old laaaa for a taolt renewal, that oontraet gave defendant an express "right to rasaw;" by which, of oouree, the partlea oontanplated althar tha waking of a new written lease, or at least a written extension of tha old one.

low It nay ha truo that defendant did not need any foxaal instrument, or written inatruaent at all, in order to retain possession of the premises; slnoe the law (sometíaos) oonalders that done which should hare teen done. Tet, none the less, defendant was entitled to just auoh an\ instrument, einoa tha old lease gave him a legal right to it; for a oontraet to axaoute ¿ oontraoti the terms of whioh are fixed, Is a ralld and binding agreement In this state, as elswhere. Kaplan vs Whitworth, 116 La 337.

And therefore when plaintiffs "failed, refused or neglected" to execute a written renewal of tha lease (whioh In the Tory nature of things should hare oreoeded the time fixed for payment of tha rent thereunder) they were themselves in no position, without a change of mind on their part, to demand iifMWittiitt'HtíHUÍt tHtftUU performance on the part of defendant, 1. e. to demand payment of the rent under that lease.

Tor a party to a contract who fails to perform (and is not xeady^even willing to perform) his ##### share of the agreement, is as yet in no position to damend perfromanoe by the other party. Ihls ia the general law; in thia State it ia even statutory. 9 Cyc 721 Verbo; Oontraota, viz, "When first act ia to Re ¿one by-plaintiff, " Rotea SI to 55; Golding vs Petit, 20 An 505; Brown vs Stubbs, 47 An 1480; C. C. 1913, 1914.

IV.

For my part I have not the 8hadow of a doubt that plaintiffs would have received their rent promptly and fully, had they but shown the least inclination to do that whioh reason and equity (to say nothing of atrtet law) pointed out to them aa the one proper thing to do; and the same letter of August 1st shows, to my mind, that they had been very plainly told ts=de'.

I therefore respectfully dissent.

New Orleans December 9th, 1919.

January 12th, 1920.

0 Since tho filing of tho transcript of appeal in this case, tho plaintiff haa instituted an notion in the Diatriot Court against tho defendant In which ho claim* Judgment for One Hundred Dollar* for rent for the months of August, sept* ember, October and Hovomber last and for all such additional rente as may fall due from month to month pending theyjf pro* oeedings and that the lease far the remainder of the term be cancelled and annulled and that he be put in possession of the leased premises.

The defendant and appellant thereupon brought this-pe tit ion to the attention of this court, and, construing said petition as an abandonment of the original suit for possession and incompatible therewith, moved this oourt to remand this oase to the Dletrlot Court for the purpose of inquiring into the effect tdf that suit for rent upen this suit for possession.

He think It unnecessary to take euoh action, as the Supreme Court has already settled the question. In the oases of Dubois vs. Xiques 14 A. 427, Fox vs. Mc Kee 31 A. 6; and Doullut vs. Rush 142 La. 443 (451) tits Supreme Court said that there was no inconsistency in the demand for the dissolution of a lease and for rant during the oeoupanoy of the lessee up to the time he surrenders possession of the leased premises. In the case of Delmar vs. Alberstadt 10 Ct. App. 148 this court decided that a notice to vacate and a suit for poeeassion are not -waived by reeeipt, during the pendenoy of the suit, of rent past due.

The oase of Deslonde vs. O'Hern 39 A. 14 relied upon by appellant is not in oonfllot with these opinions. In that case t$a Court maintained an injunction against the execution of a writ of eviotlon for the reaeon that, after the judgment of aviation, the lessor as a compromise, had 'agreed not to exeoute this Judgment and to permit the lessee to remain on the premise? if he (the leasee) would pay ooste and the entire rent". The faots in this case are different. The lessor has has only sued for the rent aocrued and to aoorue during the actual occupancy of the premises by the lessee. Surely the leasee oannot occupy the premises free of rent, nor does the lai? make the lessor forfeit his right to the rent as a penalty for suing for eviction for non-payment of rent, nor lose his right under a suit for eviction as a penalty for suing for rent due for occupancy.

The motion to remand is therefore denied, and as the petition for a reheating has not convinced ue of an error in our original opinion, the rehearing also is denied.

January 12th. 1920


source: Caselaw Access Project

author: By Dlnkelsplel, J.

license: Public Domain

text:
    No. 7779
    Court of Appeal - Parish of Orleans.
    Parish of Orleans vs Bernardo G. Carbajal and Minnie Reilley and Nicholas G. and Mrs. B. G. Carbajal, Executors of the Succession of Bernardo G. Carbajal.
    By Dinkelsvlel, J.
   By Dlnkelsplel, J.

This is a suit under the injunction and abatement act, being Aot Ho. 47 of 1918. The petition alleges that the premises Ho. 333 South Liberty Street, in''thés City, of which Mamie Reilley is the tenant and occupant, and the other defendants are the owners, was used on the 11th of June, 1919, for the purpose of prostitution and bore, the general reputation of being the resort of prostitutes, and a place where prostitution and assignation was carried on, conducted or permitted; hence, aots charged constitute a nuisance within the law and that a writ of injunction and abatement is necessary.

That Mamie Reilley, tenant and oooupant of said premises, on information filed August 36, 1919, charged with operating said premises as a disorderly house for the purpose of prostitution and assignation, when arraigned August 39, 1919, pleaded guilty to said charges.

The only answer filed in this case was by the owner; who after virtually declaring the unconstitutionality of the aot, which was overruled by the court below and referred to the merits, denies the allegations, and answering further says; "How further answering, defendí ant avers that the said premises is at the present time and has been sinoe August 1st occupied by a respectable family."

This suit was instituted by plaintiff on September 10, 1919. The aot charged was stated in the petition to have been committed on the 11th of June, 1919, some three months after the acts alleged had occurred, and the question presented in this case for determination is whether or not under these circumstances, and as disclosed by this record, the aot o&n or can not be enforoed.

A care ful study of the question involved leads us to the conclusion that this was a house of assignation and prostitution for some time prior to the month of June; certainly on the day mentioned it was conducted as a house of prostitution and bore the reputation of such a house. But the evidence further shows that some time afterwards notice to vacate was given to the tenant on the 7th of June, 1919, and subsequently within a few days the premises in question were vacated.

The title of the act, amongst other things, and the entire act itself; "to declare houses of assignation and prostitution, and the contents thereof, a nuisance and to provide means to enjoin and abate same; to declare the owner of any building, structure, land or other place, used for su.ch purpose, and the agent of such owner, and the lessee, sub-lessee, or other occupant thereof, guilty of maintaining a nuisance, and tc provide meansto enjoin them; and further providing for penalties for contempt of court and other clauses effect, imposing fines, payment of costs, etc."

Section 3 provides: "That any violation of the provisions of any injunction issued in a cause instituted under the provisions cf this act shall constitute a contempt of court ar.d a party found guilty of said shall be punished by a fine oi not less than or more than ft£5C-.C0 or by imprisonment in the parish prison for a period of not. lees than thirty days nor more than six -months, or by both fine and imprisonment ."

Section 7 provides: "That or. hearing in any action filed under the provisions of this act .evidence of the general reputation of the building, structure, land cr other ¿lace cr of the defendant or of the occupants thereof., or habitual visitors thereto, shall he admissible, and Judgment say be based on the general reputation so proved."

Under the provisions of this act and under the authorities, in cur opinion, the act must be strictly construed as quasi-criminal.

It has been held by our Supreme Court ir: the 31 Ann. 105, Paul Trevigne vs. School Board & W. O. Rogers, the syllabus of that case reading: "An injunction will not issue tc retrain the doing of a thing which has already been done which is an accomplished fact."

At page 1C6 in the same caíter the Court goes on tc say in the body of its opinion: "It would be as vague and unreasonable,to attempt to restrain action of an act which is juiicially admitted as having already been execut ed."

In the 133 La. at page 214, Dunham, et als, vs. Town of Slidell, the syllabus reads: "Under the rule that an injunction will not lie to enjc-int the doing of an act already done, an injunction inst a suit by taxpayers cf a town to restrain the carrying cut by the town of ur. criinsroe can issue only to prevent the further carrying out of the ordinance -nd will not interfsr with acts already dor.e under the ordinance."

Ard in the 105 La. page 179 it was held: "’There a nuisance has been abated before suit, no action will lie."

In the case cf People vs. Villeman, 174 Pac. 951 the syllabus reads: "In r proceeding under the 'Red Lights aot to enjoin the use of premises for immoral purposes, if it appears that the nuisance had boon abo ted before the action -was commenced, proceedings will be dismissed." And 1" the body of the same opinion, "Khere a nuisanoe has beer, c.hatei before the action to abate it was oom-r.-.enoed, and it does n-.t exist at the time, the action nidi be without foundation for its support and utterly barren of substantive results for in such case obviously there will be no nuisance to abete."

And in 39 Cyo. 1357: "The time to comrence suit. A suit to restrain or abatj a nuisanoe must be promptly brought, or the right to equitable relief may be lost."

It would in our opinion be an improper exercise of authority if. under the ciroumstanoes as disclosed by this record, the house in question would be condemned as a nuisance, when legal notioe had been given to the former tenants, who had violated the law to vacate who had vacated the premises, and to enforce this statute against the owners three months after this notice had been given and the house vaoated would, under the authorities, be without legal right of enforcement.

Defendants, the owners of the building, offered to prove the good character of the house in question and that of its ocoupants after the date of- the police raid, but prior to th6 bringing of this suit. One of the defendants in this case, Bernardo G. Carbajal, offered to prove by the tenant that she and her husband rented the premise^ in question on the 1st of August, 1919, moved in on that date, and are presently occupying the premises and that they are people of good moral character, and that the premises presently bear a good reputation.

Plaintiff objected to that proof and the court maintained the objection.

An objection by the District Attorney, which endeavored to prove the facts above stated, and was not permitted to do so, the object being to show, doubtless, that the nuisance in question had long since been abated and there was no offense.-being committed and the house was a reputable one. The court erred in. not permitting this and other testimony of a like character being put in evidence. The object of the law being to close for one year houses that had a bad reputation, meant nothing more or less than if otherwise the house had a good reputation long subsequent to the time that it had been shown its reputation was otherwise, was a matter of fact to be.determined by the court after the evidence was introduced.

For the reasons assigned, it is 'ordered, adjudged and decreed that the judgment of the court a quo be annulled, evoided and reversed, and tha.t this suit be remanded to the Court a quo to permit testimony to be introduced, if any there be, to show the character of the house prior to September 10th-, when this suit was


text:
    Court of Appeal — Parish of Orleans
    No. 7780
    Mrs. John A. Bass versus Metropolitan Life Insurance Co.
    By DlnKelsolel. J.
   By Dlnkelsplel, J.

The Issues presented in this cause are whether or not the defendant oompany under its polioy of lnsuranoe oan he held liable to the widow of the insured for the amount of the polioy.

Plaintiff alleges that heS husband, the late John A. Bas3, took out with said defendant oompany a polioy of lnsuranoe for §370.00, whioh polioy was made payable to the wife of said insured, and that proof of death was made and filed with the oompany by her; that the Insured died in the City of New Orleans on Ootober 11, 1917, and the oompany has declined payment.

The answer of the defendant oompany sets up, admitting the facts thus far stated by plaintiff, and'averring further that the policy in question was made payable to the executor or administrator of the insured, unless payment be made unddr the provisions of the euooaeding paragraph,.and upon surrender of the polioy and the premium receipt book. The clause alluded to in the answer reads:

"The oompany may make any payment or grant any non-forfeiture of privilege provided herein to the assured, husband or wife, or any other relative by blood or connection by marriage of the insured, or to any other person appearing to said oompany to be equitably entitled to the same by reason of having incurred expenses on behalf of the Insured, or for his or her burial; and the produotlon of a receipt signed by either of said persons, or of other proof, •of suoh payment or grant of suoh privilege to either of them, shall be oonolusive evidenae that all olaims under thie polioy have been satiffled."

The oomp^ny defendant, further avert that they paid to one Fannie Base, upon proper proof of the death of John A. Bass, she furnishing to the company satisfactory proof, together with the premium reoeipt book, being the amount stipulated id said sohedule and under the provisions of the polioy quoted and the conditions therein contained plaintiff was not entitled to avails of said polioy, she not having bean the executrix or administratrix of the insured, and having no right to stand in judgment in this cause.

An examination of the polioy and the stipulations and agreements therein oontained, which are binding on all parties in interest, convinces us beyond the shadow of a doubt that the payment made by the defendant company to the party in question was justified under the terms of the policy.

It has been frequently decided that industrial life insurance polioies,where payments were made, as in this case, weekly, and where no other provisions provided for in the policy whioh is a law of the parties in interest, the defendant company had the right to pay to the parties whom they deemed better entitled to such payment. This has been demonstrated by numerous decisions. In the case of Abraham Lewis vs. Metropolitan Life Insurance Co., 178 Mass. Rep. 52: "Where the party in question was the son of the deceased, had paid all the premiums on the polioy, but the polioy without naming anyone as to the person to whom the payment-was to be made, but under the olause authorized the oompany to pay this sum 'to any relative by blood or connection-by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reasons of having incurred expenses on behalf of the insured, or for his or her burial! might perhaps have been the discharge of the oontraot." Metropolitan Insurance Co. vs. Schaffer, 21 Broon, 72: "But that ..claus a does not entitle one to whom such a payment might have been made, but who ie not named as the beneficiary of the policy, or otherwiee designated ae the person vrho ie to receive the sum to be paid, to enforce payment of the aum due under it. Such a auit can be maintained only by the exeuutor or administrator of the insured, with whom the contract was made." McCarthy vs. Metropolitan Insurance Co. 162 Mass. 254: "neither does the fact testified to by the plaintiff, that he 'paid the premiums between the time of the issuance of the policy and the death', give the plaintiff a right to sue for the amount to be paid." Swan vs. Snow, 11 Allen, 324-326; Millard vs. Drayton, 177 Mass. 533.

And t'i the same effect we find decisions to be in Metropolitan Life Insurance Co. vs. Nelson, 170 Ky. 674. ill. E. a. 461-463; Bradley vs. Prudential Insurance Co. .m. 333; Thomas vs. Prudential Insurance Co. 148 Penn. 304 a. the case of Bradley vs. Prudential Insurance Co. of America, 77 N. E. R. 984, the same doctrine is announced.

For the reasons herein assigned, it is ordered, adjudged unu ueoreed that the Judgment of the lower court be and the . .e is her iby affirmed.

Judgment affirmed.


author: at. Paul, Juflvo.

text:
    NO. 7783.
    WALLE & COMPANY, LIMITED VS V. S. DANTONI & CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

at. Paul, Juflvo.

Plaintiff offered to lithograpl for defandants soma thousands of vari-oolored artistio labels in two sizes: and oJh \dafendants aooeptad tha offer delivered: so many thousands of eaoh siza monthly.

2_ The avidenoe satisfies us that within about sixty days after tha aooeptanoe, plaintiff had finished and ready for delivery tha whole quantity of the larger size-, and within another thirty days tha whole auantity of the smaller size: all of whioh dafondant refused to reoeiva as coming too late under the oontraot.

The avidsnoa also satisfies us that the labels were furnished and ready for delivery as promptly as was practical in the lithoeraping trade.

The question then is whether time was of the essence of the oontraot, and therefore what the parties intended by the provision for monthly deliveries.

Jfow it is well known that in the printing trade the main cost to the manufacturer is lnourrod before the work goes ta the press, and this is ten-fold true of the lithographing trade. Por Instanos, In this very oaee the evldenot shows that for the first fire thousand (large) labels plaintiff ankod ‡80, but was willing to furnish the next thousand for only *T0 additional. Bo that ohm tin mill m m the press. the msnuf actUrer'n interest is to run off the greatest possible number of .copies at. one time.

But of course the consumer's interest lies in paying for the product only as he uses it- so that this olause about monthly deliveries meant nothing more than that defendant was not to have'thrust upon him the whole order at one time, hut only so many thousands per month, as he mieht need them; in other words this olause was Intended to curtail deliveries not to hasten them, and hence cannot he strained into a renuirement that deliveries should begin within thirty days after the contract was entered into, something shown to have been wholly impractical.

There is therefore nothing in this contract which recuirod deliveries to begin ati any particular time and we think:, as the trial judge did, that they began within a reasohable time.

The judgment annealed from is therefore affiimed.

New Orleans, La, April 5th, 1920.


author:
      CHARLES F. CLAXBORMii, JUBGK.
      CHARLES F. CLAIBORNE, JUDGE. St. Paul, Judge.

text:
    Charla» ?. Claiborne, Judge.
    ALBERT MANCUSO VS JOSEPH CHALONA CO. Appellant.
    No. 7784.
    December 22d, 1919.
   CHARLES F. CLAXBORMii, JUBGK.

Plaintiff eued the defendant for $2563 damagee. There wao judgment In hie favor for $500. The defendant appealed to the Supreme Court. The plaintiff then answered _the appeal praying that the Judgment be amended by increasing It to one thousand dollars. The Supreme Court considered this petition to be an admission that the real amount In controversy was only $1000, of which the Court had no jurisdiction, and that the balance of the claim was fictitious. In accordance with their ruling in Reine vs RRd., 144 La., 750, they transferred the case to this Court. The plaintiff thereupon moved this Court to dismiss the apoeal on the ground that it appeared by the record that the amount olalmed exceeded $2000.00. Sihoe that motion was made the opinion and decree of the Supreme Court mentioned above have been filed in this Court. There remains nothing for us to do but to obey the mandate of the Supreme Court and to assume Jurisdiction of the case.

notion to dismiss denied.

April 19th, 1920.

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit for injury suffered by the plaint! ff by stepping upon a nail while walking along the sidewalk in front on defendant's property.

The plaintiff alleged that on December 21st at about 5:30 M. he was walking along South Front Street on his way to work; that while passing in front of the place of business of the defendant at 423-427 South Front Street he stepped upon a nail which was in a piece of box negligently swept upon said sidewalk by an employee of defendant in the regular discharge of his duties; that said nail penetrated deep into petitioner's foot; that he was compelled to seek the services of a physician, and took an injection of serum; •that he suffered great pain, and remained in his room for two weeks; he claimed $35 for physician's fees; $28 for loss of wages; $1500 for mental and physical suffering and $1000 for future suffering, making in all $2563.00.

The defendant denied each and every allegation of' the petition.

There ms judgment fir the plaintiff for $500, and the defendant has appealed.

The judge of the District Court gave written reasons as follows:

11 The plaintiff was walking up Front Street on his way to work in the latter part of December 1916, and, when in front of the store of the defendant stepped on an upright nail in a piece of wood concealed and invisible in a pile of debris being swept up by one Gray, an employee of the defendant. The nail from the weight of. his body penetrate d the sole of his shoe and his foot inflicting painful and dangerous injuries requiring the serum treatment to avoid tetanus and other treatment Until he recovered, the nail and piece of wood to which it was attached, the attorney to whom it is said to have been delivered being called to anas, was lost. The fact however is that the plaintiff is absolutely innocent of any contributory neglect and was within his legal rights on the sidewalk at the point where the injury, appeals strongly to the Court. Res rosa loqui-tur does not apply but it appears that defendant's employee in making up his pile of sweeping on the sidewalk, as was his duty and obligation, was negligent in the extreme in not taking sufficient care to see that no dangerous or concealed instrument was contained in the work he was doing. It is true that the point was a locus publicus, but it was used as a place of transfer b «^defendant and for the handling of its goods. The Bonuka place was too distant to furnish ordinarily such a nail and piece of wood as is indicated by the evidence. In my opinion the injury was inflicted by an upright nail concealed in a pile of sweepings on the sidewalk through the negligence of defendant's servant or perhaps in violation of instructions; but the act was one under which defendant is liable. I estimate the pain and suffering will be compensated by $500. C.C., 1934".

The defendant has appealed.

The defendant admits that if the nail was put upon the sidewalk by ws^risilwdept he is liable. 37 A., 27; 50 A., 280; 126 La., 594. But he denies that the evidence proves that the nail was plaoed there by him or by his servant; and admitting thatit was, he oo&jbends that the damages allowed by the District Court are excessive.

lo Does the testimony make it reasonably oertain that the nail was plaoed there by the defendant -iat the firwt question?

Plaintiff testifies that as he was passing defendant's place of business they were sweeping the place, sweeping some sawdust, and there was a nail in a piece of wood, and ha miked upon it and the nail went through his shorn and then through hie foot; at the time of the aooident there were present a oolorod man named Gray, Ur. Gondolfo, and a Ur. UMnm, now in the wngri Gray ms swteping the banquette, he was working for Ur. Chalona; the nail was a slim round wire nail with a sharp point; ho worked all that night as watchman and for three days after; then he saw the doctor, who cut his foot open because it was swollen and festering, and injected antitoxin into his side to prevent lockjaw; the defendant does a wholesale fruit, cabbage and potato business on his premises; the fruit cones in sacks, in boxes, or crates, or barrels; at the tine of the accident there was a lot of sawdust and broken wood of the stuff that is left over during the day, Gray and another nan were sweeping off the sidewalk to close up the business; it was dark at that tine of night; he stayed away from work fourteen days; he was treated by a society doctor; he was paid $14 s week; he was not paid during his absence from work; the injection of the serun was very painful for two or three days; he had no fever but felt stiff; his doctor sent him a bill for eight visits and serum $11,50; the nail was about the center of the sidewalk^' Bonura kept a place at the corner next to Chalona, and packed cabbages there; the piece of wood he stepped on was one of those pieces that goes on the edge of a Californis fruit box for strapping the box; one inch wide and half an inch thick and eighteen inches long; he gave the piece of wood to his attorney A. U> Frolick; but Mr. Frolick went j$to the army and when he came back he could not find it; the other side adjoining Bonura was a molhwses factory but it was then vacant; next to Chalona towards Poydras comes Segari then Bonura at the corner; if the wood came from a cabbage box it would be pine, and this wood was a kind of cotton wood; Bonura is in the fruit and cabbage business.

Dr. Roeling testified that he injected anti-tetanie serum into the plaintiff; it causes some suffering at the seat of injection for about twenty-four hours.

T. C. Gongolfo testified that in December 1916 he vías in the employ of the Consumer's-Buscuit Company on Front Street; he knows the plaintiff who was then night watchman for the Company; he saw the plaintiff when he was hurt; he had just passed him in front of Chalona's store and when ten or twelve feet away from him he heard him holloa; he turned around and saw plaintiff leaning against the wall and pulling something out of his foot; it was about six o'clock and it was dark; it "as about the middle of the store on the sidewalk in front of Chalona's; some one went up to plaintiff and helped him to pull the thing out of his foot; there are no commission merchants in that square besides Chalona; Bonura is at the corner; there are three stores between Bonura and Chálona; two stores were occupied and one was vacant; Bonura was not using it for his goods; the people around there pile up their boxes and crates and use the sidewalk; he passed that place six or seven times a aay in his business and dodged the boxes.

Paul Gray testified that in December 1916 he was employed by the defendant; he is now employed by John Bonura at the comer of Poydras and Front; that is about half a block away from Chalona; when he worked for Chalona his duty was to pack fruit and repack it and unload wagons; on December 21st, 1916 at about six o'clock he was sweeping Chalona'n banquette, when he saw the plaintiff passing the store; he saw him stop and squat, and leen towards the win-dnw; he had a niece of wood with a nail in it in his foot and he was trying it get it out; he pulled it out; this happened five feet from the main entrance of Chalona's store, while he was sweeping the debris off the1 sidewalk; this wood came iron an apple box or a California fruit box; he does not know where it came from; he does not "think it came out of any other place except Chalona's place because there isn't any other fruit end apple and orange place near there"; Bonura sometimes uses Chalona's sidewalk to pack stuff but he did hot use those cleats; he used them for cabbages; the same kind of nails are used in cabbage crates; there is a lot of debris on the sidewalk from packing things, and he always sweeps the banquet every evening; it consists of sawdust, old pieces of wood, and oranges and apples all around the banquette; every one along there sweeps the banquette off every evening,

Joseph Chalona, the defendant, testified that he was engaged in the wholesale fruit and produce business at 423 Front Street; tte store is swept every da.y and the debfis are swept inside and put in trash barrels; the sidewalks are swept every afternoon and are kept very clean, and no dirt from the inside of the store is ever swept outside; the store adjoining theirs was vacant and the banquette was being used by Bonura for packing cabbages;. Bonura worked there sometimes very late and then hi3 sidewalk was not swept off and was full of debris, witness packed cabbages in 34 inch crates and used the same nail that is used in orange and apple boxes, a round wire nail; he deals in all kinds of fruits and vegetables and cabbages, and oranges and apples; but he does not pack cabbages in front of the store; he uses the rear; sometimes they repack oranges and apples but it is always done in the rear of the store on Pulton Street; the samples are displayed in front of the store and very little,if any, debris accumlate there, the wood boxes in which apples and oranfees are packed are very thin, not more than l-8th of an inch; there is very little difference in cabbage boxes, they are a little thicker.

The defendant argues with much vehemence that plaintiff has not proved his case, bacause he alleged that the nail which-'injured him had been swept out of defendant's btore and that the' testimony fails utterly to sustain that allegation. It is immaterial whether the nail was swept out of defendants store; the crucial question is whether it got on the sidewalk by defendant's fault. The burden of the testimony was turned in that direction and we must pass upon it as we find it.

The defendant also objected strenuously to' the introduo-Citv archititir.a t'le tion of ordinance 3081 0. 0. S. of the/casiTiñg'bf any'object upon the banquette. We have not considered that ordinance as an element of our conclusions, inasmuch as the act was illegal prior and subsequent to, and independent of, said oridnance, as was said in the two authorities quoted by us-above.

Counsel relies upon the case of Ackerly vs Sullivan, 34 A., 1156, in which it was held that the mere fact that a piece of scantling extended in front of defendant's property ever which plaintiff stumbled and was injured was not sufficient to establish the fact that the scantling was placed there by the defendant. That is very true, because there were no circumstances corroborating the presumption that the scantling had been placed there by the defendant,/the testimony tended to refute that presumption. But we think the testimony in the present case presents an entirely different state of facts. The evidence is that the defendant was engaged in the fruit and vegetable business, contained in fita.wooden boxes or crates; held together by nails; that these boxes were handled on the banquette in front of defendant's store; that from such handling there were sawdust and debris, piece® of wood and nails that came from those boxes and fell upon the bamquette, and were swept up and gathered and removed every evening; whether these debris resulted from packing, or unpacking, or exhitition, is immaterial; the fact remains £ha£w£&e*e were debrie, and that those debris fell upon tbe. through défendant'e action; that the plaintiff in walking upon the banquette in front of defendants store, picked up a nail and was wounded. What other reasonable conclusion can the mind come tfc, than to presume that the nail was dripped upon that banquette by defendant in the course of his business? The defendant resists this conclusion because the nail could have come upon the banquette in other ways. But he does not make that probable. He does not destroy the reasonable conclusion and presumption that it came from defendants store. He says it might have come from Bonura. That is true, but it is only a remote possibility as Bonura was far removed^while it is more probable that it came from defendant. In the case of Simmonds vs Southern Rifle Club, 52 A., 1114, the Court said;

"Where the evidence excludes every other reasonable hypothesis than that the ball which struck the person injured was fired from the club grounds, by members or guests engaged in target practice, such person is entitled to recover from the Club". D

The defendant must chow that every reasonable hypothesis that the nail was put there by defendant's fault is excluded by the evidence. 105 La., 202.

The testimony and every reasonable hypothesis leads to the conclusion thst the nail was dropped upon the banquette by the defendant. The District Judge was of that opinion and we cannot say that he erred.

But we are inclined to believe that the sum allowed is in excess of the damages suffered. The plaintiff lost $28 in wages and will have to pay $11 to his doctor. The rest is for his sufferings. His doctor ssys that plaintiff did not suffer more than ordinarily, and that the serum caused pain during twenty-four hours only. This is a case for compensatory damages alone; no vindictive damages are allowed in any case, 140 La.,1038;144 La.,167,especially in a case where a principal is made liable for the fault of his employee. 49 A.,1170;47 A.,1656;11 A., 294;147 U.S., 101; 56 N.Y., 44.

It is therefore ordered that the judgment herein be amended by reducing the amount a.llowed from Five Hundred Dollars to Two Hundred and fifty Dollars, and that as thus amended it be affirmed, the plaintiff and aupellee to pay the costs of appeal.

Jud«:ne?*„í?dVS?£ (00

OH REH1SARIIÍG.

0PIHI01I.

St. Paul, Judge.

A re-examination of this case satisfies us that we were not in error in our conclusion heretofore reached as to defendant's liability.

It is quite immaterial whether the cleat and nail on "'Whioh plaintiff stepped ivas or was not swept out of defendants store, for it is sufficient that it came upon the sidewalk by the negligence of one of defendant's employees.

How, as no one saw the piece of wood when it fell there, the only question is whether the evidence is sufficient to oouclude that it could have gotten there only through soma such negligence.

As to this the evidenoe is abundant that the cleat came from a "california fruit box", and that Bonura Was at that time handling only cabbages: that defendant used the sidewalk for the display of samples of California fruit; that Cray was employed to "pack fruit and repack it, and unload wagons"; that there is always "a lot of debris on that sidewalk from paoking things"; that Gray swept off this debris every evening; that this debris consists of "saw dust and old pieces of wood, oranges and apples"; that this debris "remains there all day long"; £nd that the oleat with the nail in it was in a pile of debris whioh Gray whs sweeping up.after his days work.

Of course this is "not as '¡Kdfc'lusive as a mathematical \ \\ ~ " V. ' '•> . demonstration.; hut it ■iV-sufficient to satisfy us, as it did the district judge, that this cleat with a nail in it, on which plaintiff stepped was one of the old pieces of wood which fell to the sideWSIk whilst Cray was packing and unpacking fruit and loading it on wagons; for it excludes any other reasonable hypothesis on which to account for its presence there. Simonds vs Southern Rifle Club, 52 An 1114; also 144 La 640.

As to the quantum of damages, we think we allowed too little by our former judgment and that the amount allowed by the district judge is proper. /¿o

Our former decree is therefore set aside and it is now ordered that the judgment appealed from be affirmed.

Kew Orleans la, ¿lay 21st, 1920.


author: St. Paul, Judge.

text:
    NO. 7789
    ROSELAND VENEER & PACKAGE CO VS ILLINOIS CENTRAL R. R. CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION,

St. Paul, Judge.

This is a suit for a carload, lot of orates for packing and. shipping oranges which the consignee refused to receive when tendered to him by defendant.

The facts are that the orates were shipped about Sept 21st 1911 and were tendered to the consignee only in March 1912, although they viere to be carried less than 100 miles. Meanwhile (about Oct 15 1911) the consignee, after vain effort to obtain delivery, had notified defendant that he would no longer accept' the shipment when tendered, and had purchased elsewhere the crates needed to ship his crop and thereby avoid, the loss thereof. Ultimately (say in August 1912) the crateB were sold by defendant for'a fifth part of their cost, which amount it has tendered plaintiff.

The defense is tyra-fold; that the delay was due to a strike of defendant's clerical forces, and that the bill of lading relieves it of -all liability for damages or delay resulting from "riots or strikes"; and that in any event the consignee had no right to reject the shipment because of the delay but should have accepted the same and then looked to the defendant for such damages as he might have suffered by reason thereof-.

The first defense la without marit; wa have already hold that a alausa in a hill of lading exempting the carrier from liability for damagea and delays resulting from riots- and strikes h»g reference only to delays due to violence incident to riots and strikes* and not to unreasonable delays due only to temporary disorganization of the carrier's force of employees* (Interstate Electric Co vs I. C. R. R, 11 Orleans 238; see also Hutchinson on Carriers, Section 834)

In the case at bar there is no pretense of any violence incident to this strike outside of "personal encounters" between strikers and strike breakers, interfering in no way with.the discharge of their duties by the latter; and admittedly the cause of the delay was the inefficiency of the new corps of employees.

II.

As to the other defense, it is true that in general a consignee is not entitled to reject a shipment merely on account of delay in delivery thereof but must accept the same and look to the carrier for damages; and it has even been hild that the length of the delay does not affect the operation of the rule, nor the fact that the consignee has been obliged to buy other like goods and has no further use for the shipment (10 Corp Jur 308, Rote 2). On the other hand it has also been held that an exception to the rule ooours where heoause of unreasonable delay the goods become valueless, or In other words the delay has oaused what Is equivalent to a total loss to the owner; under these oircumstanoes a recovery of the full value of the goods is proper (10 Corp Jur 308, Note 7)

It seems then that there is soma conflict between the. authorities; and under the circumstances we prefer to follow the more liberal rule as last stated; and for these reasons;

I. The authorities upon which the rule As first stated is based are not-consistent with themselves. In Baumbach vs Gulf &c R R (4 Tex Ct App 650; 23 S. W. Rep 693) the shipment was still on hand when the rule was applied, so that it still might be sold by the consignee te fj.* the amount of his damages, and thus no injustice would result. But in Chicago &c R R vs Pfeifer 90 Ark 524; 119 S. W. Rep 642; 22 L R A N S 1107) the shipment, as in this case, had been disposed of by the carrier after having been rejeoted by the consignee, and hence (to avoid injustice) the court held that this amounted to a conversion entitling the consignee to recover all that he sued for. In I. C. R. R. vs Johnson (116 Tenn 624; 94 S. W. Rep 600) the court refused the very relief pointed out in the rule it laid down, viz, the difference in price of the articles purchased to replace the delayed shipment.

2. It is also in conflict 'With the Well settled principle that one who is about to STtETfaf damages through the fault of another must not sit supinely and allow the damages to run on, hut must take such steps as lie in his power to minimize the loss. Manifestly, as in this oase, he must supply the needed goods from some other source in order to avoid still greater loss which would result frim his inaction; and sinoe this is a duty laid upon him by law he should not be penalized for having done so.

2. The whole rule is purely artificial and teohnioal; the measure of damages in all such oases is obvious, and if in point of faot the prioe ultimately received for the damaged or delayed shipment is the same whether sold by the consignee or by the carrier, the actual effect of apllying it under suoh circumstances is simply to releive the oarrier of all liability whatever.

4. Our own Supreme Court has rejeoted the rule where the damages are more than slight, i. s. where they are material. Burkenroad- Goldsmith Co vs I. C., R R Co, 138 La 81 (83, 85, 89); See also So. Exp. Co vs Briggs, 1 Ga App 294, 57 S. E. Rep 1066; Lambert Murray 60 vs So. Exp. Co, 146 N. C. 321; 59 S. E. Rep 991.

The Judgment appealed from is therefore amended by increase ing the anount allowed plaintiff ‡420. with legal Interest from Oot 21st 1911, and ooats of both aourtd; and aaxthne amended. It is affirmed,


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles V. Claiborne,.Judge.
    W. A. Bahns vs E. A. Carrere Co.
    No. 7790
    April 19th, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for specific performance of a promise of sale of lands, or in default thereof for a return of the part pay ments made.

The contract is in the following words:

"I, Ernest A. Carrere, President of Ernest A. Carrere Co., Ltd. &c does hereby lease to ¥„■ Alex Bahns lots 9 and 10 in square No. 1583 x x for a term of _____ commencing October 25th, 1909. The present lease is made for and in consideration of a weekly rent of $2 payable weekly, x x Said leasee has the first privilege of purchasing said property on or before the expiration of this lease for the sum of Five Hundred Dollars provided the rent for the whole term of the lease is paid, x x x The act of said is to be passed by the Notary Public designated by the lessor at the expense of the lessee, when the last and final payment is made. Certificates at the expense of lessee should a sale be made before final payment".

Petitioner alleged that he complied with the tenns of the above contract and paid the full amount required to entitle him to a transfer of said two lots to him, and that the defendant has refused to make said transfer to him with the propercertificates; he prayed for judgment condemning the defendant to make said transfer, and in default thereof for judgment for the amount paid by him.

The defendant filed an exception of no cause of action based on the argument that upon the face of the contract the plaintiff had not paid an amount sufficient to entitle him to a title. This exception was maintained by the District Court. On apneal the judgment was reversed,and the case remanded. 13 Ct. App., 290.

Thereupon the plaintiff filed a supplemental petition in which he averred that there were mortgages inscribed against said two lots in the names of the vendors of E. Av Carrere Co. and that defendant should he condemned to give him a clear and unencumbered title.

The defendant filed an answer admitting the contract but denying all the other allegations of the original and supplemental petition.

Upon the trial of the case the plaintiff offered to file in evidence mortgage and conveyance certificates in the names of previous owners of said two lots showing.mortgages recorded against them. To which offer the defendant objected upon the ground that he was only bound to give the plaintiff a title and that he had tendered what to the plaintiff who had refused it. This objection was sustained. Thereupon judgment was entered condemning the defendant to transfer to plaintiff by deed the two lots mentioned in the petition.

It is not made clear by the pleadings what objection to the admission of these certificates was based on, nor on what ground the objection was maintained, nor what the judgment means. But in the argument and in the briefs in this Court the position of plaintiff is, that he has a right to the tender of a title clear of any encumbrances, and the defendant, on the other hand, maintains that he can only be condemned to a specific performance, or to the signing of an act selling whatever rights he may have to the two lots subject to whatever encumbrances might he recorded against them. This contention is hardly serious. The obligation of every vendor, whether by lease with promise to sell, or by bond for deed, or by simple promise to sell is to tender to the vendee an absolutely valid title free from clouds or suggestion of future litigation, and free from mortgages, privileges, or encumbrances of any kind. The authorities upon this point are too numerous to quote at length. 5 Ct. App., 96; 8 Ct., App. 73; 10 Ct. App., 234; 11 Ct. App. 302; 12 Ct. App., 378; 13 Ct. App., 161; 14 Ct. App., 160; 128 La,, 639. There is nothing in— the contract sued upon that exempts the defendant from this obligation.

The defendant has received plaintiff's money, and law and equity compels him to tender plaintiff a solid title and not an empty shell. Por these reasons the ruling of the District Court excluding testimony concerning the validity of defendant's title and the encumbrances recorded, against it, slid the judgment condemning the defendant merely £gg£j^isfer to plaintiff the ti» tie to the two lots without speo-üHM that the transfer should be with the usual clear mortgage, «aowfance and tax certificate were both erroneous.

But as it has been suggested bp defendant that it is in its power to tender such a title, the ends of justice will he best subserved by remanding the case.

It is therefore ordered that the judgment herein be reversed and set aside and that this case be remanded for judgment in accordance with law and the viewa herein expressed, and. that defendant pay the costs of appeal.

Judgment reversed and case remanded.

April 19th, 1920.


author: By Binkelspiel, J.

text:
    No. 7793
    Court of Appeal - Parish of Orleans.
    Thomas Wingrave vs. Gilbert D. Von Puhl
    By Dlnkelapiel, J.
   By Binkelspiel, J.

Plaintiff sues defendant, alleging employment under a letter received by him from defendant, which was dated February 16, 1918, and which reads as follows! "Mr. T. R. Wingrave,

888 .South Prieur St., City.

"On receipt of this letter, kindly call at our office, we have received a cable from Porto Rioo which authorizes us to employ you. It is necessary to secure passage and it will be advisable for you to arrange to have the papers prepared Monday, and to leave here in time to sail from Hew York next Saturday, today a week.

Yours respectfully,

(Signed) G. R. Von Puhl."

Plaintiff further alleges that he called upon defendant, made all necessary arrangements for employment, and that defendant contracted to engage petitioner for a period of five months, to journey to Porto Rioo to take off a sugar crop for the firm of Aboy & Hernández, and for which defendant was their agent at the time of said employment; further that defendant engaged to pay plaintiff $300.00 per month and guaranteed plaintiff for five months contract to begin on leaving the port of Hew York; that he sailed from Hew York on February 33, 1918, for Porto Rioo; when arriving in Porto Rioo, he was assigned as an engineer to St. Sebastian Planta-tion of Aboy & Hernandez; that the employment continued for three months, when he was informed-that his-services would be no longer neoessary. He .further allege*,' that after being discharged; the-firmheretof'ore mentioned pa>d him for four months servioe*.- and authorized him to return home and there arrange, if possible,with defendant Von Puhl for the fifth and last month, for the ther $300.00; that a demand on Von Puhl was without -ill; wherefore, this suit.

defendant filed exception that the petition dis-olosed no cause or right of aotion, and under those exceptions judgment was rendered by the court a quo in favor of the defendant;- henoe this appeal.

It is elementary that third parties disclosing agency can not he held without a written agreement eMwwtiw1 as fgéauiijjsaan^K sureties» MMriMMessHg K*! tin an aotion of this character. C. C. Art. 3013 provides: "Communication of authority to third person. A mandatary who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done it,. beyond; unless he has entered into a personal guarantee." Levy vs. Lans, 38 Ann. 252; Stehn vs. Fasnecht Bros. 28 Ann. 84; Rosenthal vs. Meyers, 25 Ann. 403.

The judge a quo in deciding this case uses the following language: "ITefendant in making the contract sued on with plaintiff, acted-for and as the agent Aboy & Hernandez, to the full knowledge of plaintiff. Plaintiff may have a oause of aotion against Aboy. & Hernandez, principals. He has none against defendant, who acted solely as agent."

We are satisfied that the reasons above given, together with the authorities heretofore cited by us, dispose of this case properly.

It is therefore ordered, adjudged and decreed that the judgment of the court a quo be affirmed at plaintiff's costs.

Judgment affirmed.


text:
    NO. 7794.
    MORGANS LA & TEX R. R. & S. S. CO. VS SOUTHPORT MILL, LIMITED.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0 P I SI O I

St. Paul, Judge.

This ia a claim for demurrage upon sundry carload lots '-sí cotton seed cake not removed within 24 hours alter notice of arrival. She defense is that the alleged notice of arrival ' was hut a preliminary notice intended only to advise plaintiff (in effect) that the oars were about to arrive.to the end that defendant might furnish the correct weights from its invoices, and was to he followed hy a final notice when the shipments had actually arrived; all as per special agreement between the parties.

Phis is of course in the nature of a special defense, and hence the burden of establishing it# rests on defendant. To do this it has produced only one witness, who oan not say with whom he made the agreement; whilst the testimony on behalf of plaintiff is that there was no one in tits employ who was authorized to make such an agreement.

There was indeed an agreement by which d fendant's invoice weights were to be aocppted as the correct weights, and the freight bill to be made out accordingly; but the testimony for defendant is that the alleged preliminary notice was intended for just what it purported to be, that it issued only when shipments had actually'arrived, and that the freight bill could have been made up from the weights given in the way-bill, which it had. And finally, defendant admits that the 'shipment would have been, delivered without payment of the freight bill.

On the whole wo think the testimony insufficient to establish tile special agreement relied upon, and believe thet defendant has simply misunderstood the purport of the agreement about accepting its invoice weights as correct. And this is all the mpre likely because under the interstate commerce law plaintiff was obliged to give notice within 24 hours after arrival of the shipment; and although the manner of notice was subject to agreement between the oarties, the law itself fixed the time within which the notice must be given, and evidently did not contemplate any deviation therefrom by particular agreements. For the whole purpose of the act is to put all shippers on the same footing, which would not be the case were one shipper to receive only one notice and another be entitled to a second one issued at leisure.

The judgment appealed from is therefore reversed and it idt now ordered that plaintiff have judgment against defendant for $261. with legal interest from judicial demand and costs of both courts/

New Orleans La, April 19th, 1920


author: By Dlnkelolel. J.

text:
    NO. 7796.
    Court of Appeal--Parish of Orleans.
    Mrs. Elizabeth Bryant Jackson. -vs-J. Aaron & Co. Inc.
    By_ Dinkelsoiel, J.
   By Dlnkelolel. J.

Plaintiff, widow of Isaao Jackson, olaims that deoeasdd while working in the employ of defendants at théir warehouse in this City fell into a hatch and falling through ua ' same his side struck the side of the open hatch breaking a rib, and that as a result of said accident the said Jackson was oonfined to his home and was attended by the physician of defendants company until discharged as cured some weeks later.

This accident occurred on June 36th. 1917, and on the 35th dáy^of the same year, he, Jackson, was discharged by Dr. Kay, and subsequently on October 16th. of that same y.ear again resumed the same character of work, that of a laborer, but afterwards he was confined to his home as the result of said injury and from whioh injuries he died on the 16th. January, 1930.

Plaintiff further claims that she is entitled to 35$ of the weekly wage due deceased, to-wit; Twelve dollars per week for three hundred weeks, or the sum of §900., and an additional sum of §100. for funeral expenses.

Exceptions filed by defendant never having been seriously pressed they answered substantially denying negligenoe, and asserting that Isaac Jackson had fully recovered on August 13th, 1917 from the injury received by him; had resumed work on October, 26th. 1917, that they. defendants, had paid all compensation afforded him possible relief in furnishing a Doctor to attend and treat him in this illness.

Further answering, defendants deny all the other alleg-ations contained in plaintiff's petition, exoept that Jackson was incapacitated from work for a few weeks after the injury complained of, but he had been attended, as stated, by the Physician appointed by defendant company 'and had been after a few weeks treatment discharged as cured.

An examination of the testimony adduced on the trial of this cause m^plaintiff, her daughter and Dr. Boud-ousquie, v/ho had treated the deceased, Jackson, up to and just prior to his death, has been made by us.

The testiony of Dr. liay, to whom Jackson had been sent for treatment by defendant company, who had made a thorough examination of his patient showsJ that the sole injury was a posterior fracture.of the eighth left rib, and that he treated him until the fracture was healed? discharged him in the beginin? of August 1917.

Dr. Derbofln who signed the death certificate which states that the man died of"undocarditis, nephritis and «a endoema of the lungs", which in accordance with the testimony of Dr. Duval, undocarditis is an inflamation of the inner lung of the heart; nephritis is an in-flamation of the kidneys,and endoema of the lungs is a fluenfe- in the lung tissues.

Dr. Charles Duval, an expert, testifed substantially, that there could be no relation from the fracture suffered by the deceased and the treatment that ¡'r. nay had given him, and no possibility that that particular fracture and treatment could have caused death, and it was utterly impossible from hie viste/point that the man died because of improper treatment.

It is attempted by plaintiff and through the testimony of Dr. Boudousquie to prove that the Injury which the deceased received at defendants warehouse was the broken rib on the right side of the body; on the contrary, Dr. Vay, thp attending Physician, who kept a record is. positive from hie record and his memory, that he treated the deceased for ar. injury to the rib on the left side of the body, and that when he discharged him this injured rib had been thoroughly healed and knit together, and that fact, to our minds, is conclusively estalftiahed by the further fact that the deoeased from about the middle of August until the following October worked oontinueoua^ doing the same character of hard work that he had done before, and if there were oomplaints during all that time it was not made known either to the superintendent of defendant oompany or to. anyother officers thereof until he had again left the company's employ, when on being notified by plaintiff of her husband's nines defendant again sent Dr. May for further examination, and he testifies that he found that the injury for which he had treated the patient had been absolutely oured, and he also found ftctfcu further, that since treating him tuberolo-sie had set in, but in nowise due to causes for which he, the Doctor, had treated the patient, and the other Physicians testifying in this oase, in our opinion, concurred affirmatively to what Drt,May testified to.

In the oase of Kohnke vs. Mc. Kowen, 105 La. Reports, 638, the Court says; " The Issues involved are those of fact. It is not deemed neoeesary to make a detailed resuméof the testimony offered' in the trial Court nor to enter further upon its decision".

It has been held by the Supreme Court^and by this Court, that; "the deoiaion of the trial Judge who heard and saw the wltnesses^wae in a better position to oorreotly appreciate the testimonyiand their findings will not >e disturbed in the absenoe of dear showing of error."1 la. Digest, Vol. 1, Sec. 634.

A reviStafof this oase, both from the pleadings and the evidence, has lead us to the oonoluslon that tl|e judgment of the lower Court was and le oorreot.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be affined with oosto of both Courts against plaintiff the Appellant. -Judgment Affirmed-


text:
    Court of Appeal -- Parish of Orleans.
    No. 7797
    S. A. Harvey vs. E. J. Garcia
    By Pinkels.-jlel, J.
   Plaintiff brings tfcl* suit for bis commission and attorney's fees substantially for this: That he made a contract with defendant on April 18, 1917, to sell for his account the property in accordance with written and private contract, signed by both parties and annexed to the petition. That in accordance with his duties as agent, he advertised the property for sale and finally claimed that having an exclusive contract for the sale of the said property, defendant sold it for §8700.00, his commission thereon amounting to §361.00, and the fee of his attorney §35.35, for which he prays judgment.

Defendant filed an exception claiming no causa of action and reserving the benefit of this exception, which was referred to the merits, answered substantially: Idmitting that on the day set forth in plaintiff's petition, he authorised him, plaintiff, to sell his property foj: the sum of §10,000.00 and defendant was to receive after the sale of the property in question was made three per cent commission. That under the contract, he understood that the term of plaintiff having this property in his possession for sala was SO days, and that time expired or. the 13th of July, 1017. That he never had an idea or intention tc pl=vce his property in plaintiff's hands for an indefinite period of time, and if there was any clause so indicated and signed by defendant, it was an error, but notwithstanding the written provisions of the written contract referred to, defendant subsequently, nn the Sth of July, 1S17, in a letter of that date, written at the office of plaintiff, advised that the contract had expired for the sale of his property, but if he still desired to make the sile, he, the defendant, was willing tc pay him the oom-"Hsion, but would not sign any further exclusive contract, and it was understood that plaintiff w-s only entitled to if he personally sold the property.

That plaintiff did not personally sell the property, nor was he in any sense a procuring cause in the selling of connection said property, nor had he any xmnutn directly or indirectly therewith, and therefore he is entitled to no compensation in the premises, and he prays judgment for dismissal kf ■plaintiff's suit and general relief.

The evidence in this record presents, first, the contract of agency given by defendant to plaintiff, of which there is no denial. Defendant swears that he did not understand that this contract went beyond its terms, ninety days, but’ notwithstanding this fact, whether a» true or not, we thinjc immaterial, because defendant's testimony satisfies us that plaintiff received the letter written cancelling the contract, made no protest, and it was after defendant and plaintiff had met on the street and plaintiff, was informed by defendant that he had placed this property in the hands of Krs. Wittenberg, another real estate agent, who had sold the property for §8500.00, had received her commission, and hence did not owe plaintiff anything.

Subsequently, on the 15th of October, defendant received a letter signed Eauthier 1 Chambers by S. A. Harvey, wherein commissions ware claimed for the sale of this identical property, and on page 3 of the transoript this question was ashed: "Q- Did you inform Hr. Harvey before this letter that you had sold the property? A- Yes sir, absolutely. Hr. Harvey knew it. I met him on the street. I*h'° m fY? bthiiTTij • n —n" "1 1 Mi ^ Ir. Harvey vías advised by me on the street. He didn't know that the residence was sold until I met him on the street and said to him, 'Harvey, Vrs. Wittenberg was luckier with my residence than you were. I have sold my residence.' He said, 'la that so?' And X said, 'Sfes.' And he said, 'I did'nt know it.' Q- Did you pay Mrs. Whitenberf to sail it? A- Yes, 3 $ on |8500.00."

This testimony above quoted, together with the letter referred to by defendant, was never disputed, and we are satisfied from it that the testimony so given is true in every part and that plaintiff had notioe, both orally and in writing, that the contrae** had termina-ted, and that he could only get his commission if he sold the property and not otherwise. Having deoided this oaso on the merits^ jlaprtitíjj» us W/M at this time passing on the exceptions.

Revised Civil Code, Art. 3038. Revocation of Mandate. " Except in the case of irrevocable powsss of attorney, as prescribed in the proceeding article, the principal may revoke his power of attorney whenever he thinks proper, and, if necessary, compel the agent to deliver up the written instrument containing it, if it be an act under private signature."

Revited Civil Code, Art. 3030. Appointment of Hew Agent. "The appointment of a nsw agan* Attorney to transact the same business produces the same effeot as a revocation of the first, from the day such appo-intment is notified to the first Attorney."

’ The boker in order to. be entitled to his commission, must have been the procuring cause of the transaction. He oannot recover unless he proves his authority to aot, and that he was the procuring agency in effecting the same. " Taylor et. al. vs. Martin, 149 La. p. 143.

Judgment Affirmed.


author: CHARLES f. CLAIBORNE, JUDGE.

text:
    Charles F. Clalborfie, Judge,
    JACOB STECKLER VS PEOPLE'S HOUSE-WRECKING CO.
    No. 7800.
    April 19th, 1920.
   CHARLES f. CLAIBORNE, JUDGE.

This is a suit for rent. It is based upon the following lease:

Jacob Steckler hereby leases to People's Housewrecking Co. the unimproved real estate Ho. 1123-25 Girod Street for the term of twelve months commencing on the first day of June 1917, and ending on the thirty-first day of Kay 1918.

xxx "It is hereby understood and agreed that unless the lesseó notifies the lessor of its intention in writing on or before December 20th, 1917 of its declaration not to renew this lease, the said lease will become ipso facto renewed and operative for an additional year, commencing June 1st,1918 and ending May 31st, 1919, at a monthly rental of Thirty dollars, upon same terms and conditions specified herein, xxx Should the lessee at any time fail to pay the rent punctually at maturity, as stipulated, the rent for the whole unexpired time of this lease shall, without putting said lessee in default, at, once become d„0 ;n exic-ible, and in case of suit the said lessee shall pay as counsel fees an additional sum of ten per cent on the amount so due and exigible".
"Sif-ned" People's Houbb Wrecking Co.,
Henry B. Eoicers, Pres."

The plaintiff averiad

"tnat the lessee, the defendant herein failed to notify him on or before December 20th, 1917 of its intention not to renew the said lease, and that, therefore, said lease became, ipso f,oto, renewed and operative, for an additional year com:encinf June 1st, 1918";

that trie rent for the six months of June, July, August, September, October, and November, 1918 t $30 por month, or $180, is now dun and unpaid, and under the terms of the lease- the rent for the remaining six months ending May 31st, 1919 is also due, making in all $360 with ten per cent attorney's fees.

In a supplemental petition the plaintiff averred that the defendant was not a corporation and he prayed for judgment against Henry B. Eckers,

Henry B. Eckers admitted that the People's Housewreck-ing Co. was not incorporated, and that he had signed the lease, but denied all the other allegations; he averred

"that he sent written notice to plaintiff of his intention not to renew the lease sued upon; that the said notice was written on the 15th day of December 1917 ahd put into a mail box dn the same day said notice was written; that the said letter of notification was addressed to plaintiff at his residence in the City of New Orleans, and was sent in an envelope with defendant's name and address on the corner of the said envelope; that said notice was written and sent after defendant herein had verbally notified plaintiff of his intention not to renew the said lease; that the son and agent of plaintiff subsequently brought notes for defendant to sign which he refused to do whereupon the said agent of plaintiff admitted that he had knowledge that defendant had declared his intention not to renew the lease".

Some months after this answer was made, the defendant filed an exception of no cause of action on the ground that the lease had never been signed by plaintiff and that, therefore, there was no mutual assent binding on both parties.

This exception does not appear to have been considered by the trial judge, and he rendered judgment in favor of the plaintiff against the defendant as prayed for.

The reasons for judgment were as follows:

"The defendant representing himself to be a corporation known as "The People's House V/recking Co'.' leased the property herein described for a term of 12 months at $2b per month. The written lease contained a stipulation that at the end of the year the lease would automatically renew itself unless defendant notified plaintiff in writing to the contrary. The defendant attempted to prove that this notice was written and nailed, and that the lease was not extended for the additional year. This burden is carried by defendant, and he avers that the notice was nailed. The plaintiff denied postively its receipt and I see no reason to doubt it.- The law requires it to be delivered in accordance with the contract and the mailing alone is insufficient. Judgnent for plaintiff".

It is not essential that the lessor’s consent to the lease be shown by his signature or other writing. A lease nay be verbal. C. C., 2683 (2653).

"Assent to contracts which the law does not require to be in writing is implied when manifested by actions". 2 H.D. 1002No, 22, C. C.. 1811 (1805); 122 La., 667; 33 Dalloz p 78 & 106; 24 Demol & 54; 15 Laurent a 482.
"A party need not accept a contract expressly or by his signature; he does so by availing himself of its stipulations". 2 H. D., 1002 No. 16.

The acceptance of a mortgage may be shown'outside of the act. 1 H. D., 938 No. 3; 35 A., 455.

Sven in sales of immovables the vendaste consent nay be shown otherwise than by his signature. 2 H. D., 1327 Nos. 4, 14; 35 A., 850; 116 La., 941; 140 La., 431.

A mandate acted upon is equivalent to an acceptance in writing. C. C., 1816 (1810); C. C., 2989 (2958); Pothier No. 32; 21 Baudry-Lac p 244 & 497; 24 Demol & 56.

In this case, in accordance with the lease, the lessee signed and delivered to the- lessor twelve notes representing the first year'3 rent. This constituted an assent to the lease and

"the entire contract between the debtor and the creditor". Ells vs Sims, 2 A., 251 (254).

A famil iar example of an acceptance of a contract is to sue upon it, as the lessor did in this case. 7 A., 349; 15 A., 428; 122 La., 667.

The defendant is not in a position to deny the lease, as in his answer he admitted it.

The defendant offered in evidence the following letter:

New Orleane, La., Dec. 15th, 1917.
Mr. Jacob Steckler,
1903 Robert St.
Dear Sir:
This will notify you that on and after May 31 - 18 we will canoel lease of ground No. 1123-1125 Girod St. which we have on rent at present.
Yours truly,
People's House Wrecking Co.
per Henry B. Eckers;

Henry B. Eckers testified that he caused the above letter to be type-written by his son; that he signed his name to the carbon copy and put it into an envelope addressed to the plaintiff and on the same day dropped it into a nail box, at the corner of Julia and Baronne Streets; he kept the original which is the one offered in evidence; upon the left hand corner of the envelope was the business card of the People's House Wrecking Co.; Mrs. Steckler rang him up about the rent; he told her that he had notified Mr.Steckler by mail that he was going to cancel the lease at its expiration, and not renew it; Mr. Steckler's son brought him a dozen notes to wign for the renewal of the lease; he told him he would not sign than as his intention was to leave the place; the son said/iPpj^-»^ /

"1 will leave the notes, you may change your mind and renew the lease";

these notes are still in defendant's possession.

J. W. Eckers, son of defendant, testifies that he wrote the above letter at his father's dictation on December 15th; that his father signed the carbon copy and mailed it on that day to the plaintiff in an envelope with defendants card printed upon it addressed to the plaintiff, 1903 Robert Street.

Jacob Steckler swears that he did not receive any notice from the defendant of his intention not to renew the lease.

William Stecklef, son of plaintiff, testifies that he did not receive any notice from the defendant that he would not renew the lease; some time in January, 191? he took twelve notes and a lease to the defendant's office; he was not in; he left the notes with his son; some time after

"he (defendant) said he would let it lay over for some time as they were negotiating for property elsewhere; "the property is still vacant; when he left the notes there, he did not say "nay be you would change your mind"?

Mrs. Jacob Steckler testified that they were living in the latter part of 1917 at 1903 Robert Street; that they did not receive any lejter from the defendant Company or from Henry B.Eckers regarding the lease of the property 1123-1125 Girod Street; that she received the mail; Mr. Eckers did not telephone to her that he was not going to renew the lease.

As the burden of proof, was upon the defendant to establish that he had notified the plaintiff of his "intention not to renew the lease", we think he has failed to do so.

William Stickler and Mrs. Jacob Steckler both deny his statements concerning a verbal notice that he did not intend to renew the lease. Not only does the testimony of these two witnesses nullify the testimony of the defendant, but his testimony upon this point was subject to objection; the contract requirement of "writtetf notice" was stipulated for the very purpose of avoiding this clash between the witnesses. The mere mailing of the letter containing the notice that the defendant did not intend to renew the lease, constituted only a presumption that the letter reached the it would have established the fact in the absence of contradictory testimomy; but the plaintiff and his wife both testified that they had never received any letter of that kind; this testimony destroys the presumption and leaves the defendant without any proof that his letter reached its destination. 2 Texas Appeals, Civil Cases, 463 Mo. Pacific R.Rd. vs Kuthman; Ault vs Interstate Assn., 15 Wash., 627 ( S.C. 47 Pacific 13); Abbott Proof of Facts ( 3 Ed) 665; 141 U. S., 25; 213; Abbott's Trial Bv.. 433, 803.

The clause concerning the renewal of the lease in the absence of notice from the lessee to the contrary is valid. Morris Build'y Co. vs Hughes, 9 Ct. App., 259; 8 Ct. App., 258; 12 Ct. App., 218.

In this oase there is no uncertainty about the clause far a tacit renewal of the lease as there was in Murrell vs Lion, 30 A., 255.

The clause concerning attorney's flies was continued in the renewal lease. 8 Ct., App., 123.

Judgment affiraed.

April 19 th, 1920.


text:
    Charles 7. Claiborne, Judge.
    JACKSON BREWING CO. VS. THOMAS TRAVIA
    No. 7801
    May 17th, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for the price of movables and licenses.

Plaintiff averred that it sold and delivered to the defendant a lot of bar-room fixtures contained in the premises JNo. 937 Decatur for the price of $240, and a State and City Ícense for the price of $201.77; in part payment of which the defendant has paid $160, leaving a balance due of $291.77, which the defendant’ refuses to pay.

The defendant filed an exception alleging that under the provisions of Section l'l of Act 176 of 1908 the plaintiff was prohibited from owning or selling the things mentioned in^its petition. But subseauent to the filing of thi question was decided adversely to defendant's contentions in the case of Jackson Brewing Co. vs Panno, 13 Ct. App., 336.

Th“ defendant men filed an answer in wnich he denied each and every allegation of plaintiff's petition and specially averred tnat:

"th“ premises No. 9o7 Decatur Street had been operated as a saloon and eating-house by some person unknown to respondent prior to September 1915; that respondent negotiated with the Jackson Brewing Company for the lease of the said premises for the purpose of reopenipg said place and conducting a saloon and restaurant therein;; that the agent and officers of the said Jackson Brewing Company, -.vith whom respondent negotiated, informed him that a subsidiary Company had been organized in corporate form known as the "Lafayette Realty Company", for the purpose of leasing and controlling buildings intended for use as bar-room* and beer saloons, ami that the lease would be «nde in the name of the "Lafayette Realty Company", through which Comuioy the tsaid premisas would be leased to respondent after being put in a habitable condition by the reconstruction of the roof and necessary repairs to the ceiling, floors, and walls. That your respondent agreed to lease the said property from said Brewing Company and agreed to buy the bar-fixtures, furniture, and utensils therein contained contingent upon a delivery to respondent of the premises in a habitable condition and -fit for the purpose contemplated. That, hwoever,the said Jackson Brewing Company and the Lafayette Realty Company failed to deliver to defendant the premises in a habitable condition and he was unable to move into same and accept the delivery of the fixtures, furniture, and license therein contained. That upon the default of the said Jackson Brewing Company and its said subsidiary Company, the Lafayette Realty Company, 'your petitioner refused to accept the said premises and refused to accept the delivery of the fixtures, furniture, and utensils, and the City and State license described in plaintiff's petition, and that the same continuously remained in the possession of the plaintiff, and were never delivered to respondent; that, therefore, fio sum whatever is due the plaintiff on account thereof. Respondent specially avers that the contract alleged by plaintiff, illegal, null and void and contrary to law in that the said Lafayette Realty Company was organized by the officers and-agents of the said Jackson Brewing Company for the sole purpose of evading the mandatory provisions of Act 176 of 1908 known as the "Gay-Shkttuck Law" and more particularly the provisions of Section 11 prohibiting Browing Companies or their officers, directors or stockholders from obtaining license for the business of conducting bar-rooms, beer saloons, etc., or to be financially interacted in any concern so engaged or to be the owner, or lessee, or to be -interested in any lease of premises used for any such bar-rooms or saloon business; that the said Jackson Brewing Company, its officer*, and directors, and stockriders and their agents are exclusively the officers, directors,, and stockholders of the said Lafayette Really Coapaay, which said Lafayette Realty Coapany was organised far the purpose of violating the provisions of said let 176 of 1808, regulating -Hie salooA business'.

There was judgment for the defendant, add. the plaintiff has appealed.

By consent of parties the licenses above mentioned were sold for $ 150.00, and the amount thereof credited to the price of the licenses claimed by plaintiff.

The Secretary-Treasurer of plaintiff Company swore positively to the sale and delivery of the fixtures and licenses as alleged in the petition.

The defendant, as a witness, does not deny that he bought the fixtures and licenses; but he testified that "on* man in the Godchaux Building" told him some one would com* and fix the building in a couple of days; that as no on* cam* he left the building, locked up the fixtures in it; that he occupied the building nineteen days.

There is not a line of testimony concerning the-Lafayette Realty Company or its relations to the plaintiff.

The defendant introduced in evidence the judgsent of this Court in the suit of the Lafayette Realty Company vs. Thomas Travia, 11 Ct. App. 275. The Court said:

"Plaintiff sued for and recovered in the trial court 12 months- rent, under an alleged oral leas* from month to month beginning September 18th. On appeal defendant's first contention is that no rant at all is due because plaintiff failed to put the premises in repair as it had agreed to do as a condition precedent to the taking effect of the lease. This defense is not sustained; for if there was any agreement at all upon the subject of repairs, the evidence shows that it was made during the term of the lease and while defendant was in possession and enjoyment of the property, aad conceding that plaintiff did, during the term of the lease, agree to repair the property, its failure to comply tharawith did hot tenaimmte tha laaaa, dafaftdaht'.a renedy baing tor ftotifjr hie landlord ahd to make tha rapairs himseLf if aha arttar should fell to do so*.

This dacis4«n leaves tha dafandaht without any defahso whatever, for it declaras that tha defendant did obtaift a laaaa of tha premises No. 937 Dacatur Street; that ha took possession of the premises; that no agreement for rapairs had baan made as a condition of tha lease; that ha left tha premisas of his own accord and locked up tha contents himself.

Tha judgment is therefore reversed and judgsefit is now rendered in favor of plaintiff condemning the defendant to pay to it tha sum of two hundred and ninety-one 77AOO dollars with five par cant, par annun interest from January 28th., 1913, till paid, and all costs of both Courts.

May 17, 1920.


author: By Dlnkelgplel, J-

text:
    No. 7806
    Court of Appeal - Parish of Orleans.
    Henry L. Hyman versus Continental Casualty Company
    By Dinkelsplel. J.
   By Dlnkelgplel, J-

Plaintiff uues defendant, being indebted to him in the sum of $l';893.80 with interest from judicial demand under a policy of accident and casualty insurance, insuring him against bodily illness and disease, contracted and begun whilst the rider of said policy was in foroe.

Defendant admits its liability in the sum of $478.47, whibb plaintiff admits to have received, but oontends that there remains due him the sum of $319.00 while he was ill, being- an indemnity for the periods between December 6th, 1916, and April 8th, 1917. The remainder of the claim being made up of attorney's feds claimed in the sum of $300.00 and double the sum of $319.00, which plaintiff alleges he is entitled to as a penalty because of the refusal of defendant to"pay said sum promptly without just and due reasonable grounds as provided for under Act 310 of 1910, at page 537.

Defendant admitting, as stated, its liability in the sum of $478.47, as above* set forth, denies any other liability whatever, claiming that it has oomplied with* all of the terms and conditions of its policy in making this payment, and prays that plaintiff's demand for any additional amount be rejected at his cost.

The judge a *uo rendered judgment in favor of plaintiff for the sum of $219.00 and in-his written reasons for judgment says substantially that plaintiff was entitled,to this sum because he vías convinced that plaintiff was absent and away from his business, unable to attend thereto except to draw checks, and coming to the City only to consult with his physician, which fact, :r has in his opinion, nadé defendant; liable for the 5319.00, but dismissed plaintiff’s cor.code for e.'-tjj and double p f appealed, 'and ? n,«iá^s«'íisa*'hae'pr.-ysd that his ..rJginal demand for end attorney's f-tss be added to the amount tint Court guvs judgment ?cr, to-.vit, Í-31S.00.

In our vies, it the d.’tjraination of the issues herein ..resented and upon an e,<d.sin»ti in of the policy of insurance apon .'.hioh this cl-.i.c is based, and more particularly that ,irt V-i-g ¿art 1 of the health and o. a ration rider of tv-e policy, •..•hi oh reads .-.a follows: "In the event that the insured shall suffer from any bodily eichr.ss-j or ;Ussás3 "’hioh is o-.-r.t racted and began •while this ri-iev is in force, as hsrsioafter provided, this company -.'ill pay for V. ;s of tine which actually and necessarily results from such oiciness ar.d disease as follows: A. for loss of time ••"'urins confinement 3'uid weekly indemnity. B. For Iocs of time luring convalss-esnee one-half of a&id-.weclOy indemnity." "Dose of time during confinement" as herein used means that period of time during which the insured is rendered continuously xxi unable to transact each and every pj.rt of his business duties and is ilso r.soeo warily confined within the house, and has therein g**g a legally qualified physician.

"Loss of time during convalescence" as herein used means that period of tiras during which the i ".sure! is rendered continuously unable to transact each and 3very -art of his business -duties and is under treatment by a legally qualified physician, although not necessarily confined to hi3 house.

An examination of the record convinces us that during the period beginning December 6, 1913, and ending April 9, 1917, plaintiff was not a well man. On the contrary, the evidence shows that during that period he was under the care of a legally qualified-physician whom he consulted two or three times a week, coming from his home, then at Eay St. Louis, "is3issippi, to the (Jity of Mew Orleans simply and 30lely for that purpose. The evidence also proves that while in the City of Hew Orleans, he visited his office, signed checks, conversed with his clerks, customers, transacting partially some business with each of them, and therefore under this evidence, as we view it, plaintiff is clearly unable to claim for', "loss of time during confinement ■KSÁlOBáácXxr-4d«e»«f»tn, as set out by the health rider, for -during that period he was certainly not confined continuously within his'home, nor was he there treated by a legally qualified physician.

Dlfcintiff, therefore, in order to recover for the period in dispute must clearly claim an a convalescent, and this he has done; so susing for one-half of the weekly indemnity which, together with the other portions of the amount due him, he has received.

Ac. e:u-.mination of all the standard authorities in order tc determine i^/’oy any possible chance, plaintiff could he brought within the class of "invalids" during the period for which he makes this claim, for unless he was in s. state of convalescence from December 3, 1916, tc April 5, 1S17, he cannot possibly recover under the terms of the policy sued on.

Convalescents under all the definitions given by the standard dictionaries, including Century, Worcester and v-ebster, covers that period only after an illness and could by no stress of the imagination be made to oover a period of time prior thereto.

The standard Century Dictionary, page 1339: "Convalescence. To grow better after sickness; make progress towards the recovery of health." "The gradual recovery of health and strength after sickness; renewal of health and vigor after sickness or weakness." And so, likewise, without further quotations from Worcester and Webster --.re all the definitions of convalsoenoe in all of the authorities therein quoted.

Thu3 it is seen that in order to be convalescent, one first must be ill, and this was in our opinion clearly the intention of the defendant company when it JtHr&itt itself liable for health insurance during convalescence.

For the reasons assigned, it is ordered, adjudged and deor^ed that 30 far as the Judgment of the"lower court in favor of plaintiff of §319.00, earns is annulled, ■avoided and reversed, but in so far as it dismisses the claim of plaintiff for double the amount of damage», together with-§300.00, additional as attorney's fees, said Judgment is affirmed. Cost of hoth courts to be paid by plaintiff.


author: Dlnkelspiel; J

text:
    Paul Berthelot. -vs-Lucien Montegut.
    No. 7807.
    Court of Appeal. Parish of Orleans.
    By Dlatelnttl. J.
   Dlnkelspiel; J

The amount involved, in this suit being the sum of $54.64., the ap plaintiff and appsllee has moved to dismiss his appeal on ths ground that the sum is not equal to the amount neoessary to give this Court jurisdiction in appeals from a District Oourt.

Defendant and appellant resist a motion to dismiss the appeal on the ground, that the suit involves the lnter--pretation of eleven judgments rendered by this Court and three by the Supreme Court in oases of a simlliar nature, and therefore, as this Court was one of the Courts which rendered final judgments in these eases it retains a supervisory jurlsdlot -ion over same in so far as the Interpretation Jkka of these judgments are oonoerned irrespective of the amount Involved.

While that proposition would, no doubt, be sound as a proposition of law had this Court been the only Appellate Court whieh had passed upon these suits, provided, ofsource, if ikame there was any interpretation of these judgments neoessary. But, in our opinion, neither of these fasts are borne out by the records, for in the first plaoe, not only this Court but the Supreme Court as well passed upon the same eases in whieh the Parish Committee of the Parish of St. John the Baptiste and others were east for eosts in those suits, and these eosts having been paid by Paul Berthelot, one of the members of that committee, puts an end to these particular suits, and this Court has no further jurlsidiotlon ovsr them in any manner or form; for we sannot possibly see how a separate suit by the plaintiff herein against this defendant, though it involves the recovery by him of a portion of the eosts paid out by him in those other suits eould give this Court jurisdiction when the amount Involved falls below the amount neoessary for this Court's jurlsdietlon on appeals from Distrlots Oourt*.

It was held by our Supreme Court in a case somewhat simlliar to this; " There is nothing in a* claim for eosts whieh by reason of its oharaoter should carry suoh a slain por eo for deeielon to the Supreme Court, without refereuse to the aaouat lavalmed'.

We are therefore of the opinion that wo are without aw appelate juriadletlon la this eaee. Wagner -vs- City of Monroe, 1113 Ann. 1074.

Tor the reaoons aealgned the aotion to dlealse the appeal for want of furladletlon la maintained.

Appeal Dlaalaaed.