text:
    Mrs Charity Davis,Appellant vs Lyon Lumber Co.
    No.8755
    Charles F.Claiborne,Judge.
    April 30th 1923

   Mrs Charity Davis,Appellant. vs Lyon Lumber Co.

No.8755

Charles F.Claiborne,Judge.

This is a suit under the Workman's Compensation Law.

The plaintiff alleged that she was married to George Davis on January 20th 1898;that her said husband while engaged in the discharge of his duties as a laborer in the employ of the Lyon Lumber Company at Garyville was killed on July 18th 1921 ^hat at the time of his death his average weekly earning was $9.60; that she was the sole depondent of her said husband, and that by his death she was deprived of his support,and that there is due her under the Employees' Liability Aot for a period of 300 weeks thirty per cent of his average weekly earnings, or $3.00 per week;an$¿she prays for judgment accordingly.

Defendant admitted the employment and the wages^ but denied all the other allegations,especially the condition of dependence.

There was judgment in favor of the defendant rejecting plaintiff's demand^and she has appealed.

The plaintiff’s claim depends upon the interpretation ot the following section of Aot.247 of 1920 p.470 ;

S 2 :f That injury causing death within one year after the accident,weekly compensation shall be paid under this act for a period of Three Hundred weeks to the following persons: ( A ) If widow or widower alone,and no children,then to such widow or «védense widower thirty per centum of wages, p 472 (1) No compensation shall be payable under this section to a widow unless she be living with' her deceased husband at the time of the injury and death,or be then actually dependent upon him for support."

p 472 s B or In all oases provided for In this section the relation of dependency must exist at the time of the injury and at the time of the death.”

Two questions therefore arise.

1st Whether the widow was "living with her deceased // husband at the time of the injury and death u r "

2nd or was then» actually dependent upon him for support.

I The evidence establishes that the plaintiff wife had abandoned her husband at least fourteen years before and had lived with other men from whom she begot three children.

This seperatlon lasted until his death and would exolude her from the benefits of the compensation act under its very terms.O.J. Advance Sheets P.59

II In 3 A 713 Armstrong vs Steeber,the Court denied the marital fourth to a wife who had abandoned her husband for several years to live in oonoubinage with another.

In Piokens vs Gillám 43 A 360b the court denied the marital fourth to a husband who had deserted his wife for seventeen years.The Court said they were strangers to eaoh other and it was as if they had not been married.In Richard vs Lazard 108 La 640 the Court denied the benefits of the $1000 homeste&d to a widow who had left her husband» to live in open conbu-binage with another man.The Court said p.644BHer situation was no more affected by his death than that of^the City. Ee did not therefore leave her in necessitous circumstances within the meaning- of the Article of the Code in which she relies and has no-claim.upon his suooesslon.”

" The test of dependency is always whether the contributions-were relied updn .by.the dependent as a means of 1'iVing * 93 Att 246 .

* Where it appear* ¡that the separation Bad not been by the.act of the hu&bandjtmt has been of. the wife's own accord,compensation will be denied.Thus where the evidence shews that the wife bad left the husband twelve years before the accident of her own accord and had been supported during that time by her own work and by the help of 'relatives and had never asked for nor received help-form the husband,she will not be g«anted compensation as a dependent." Mo Inroy vs Me Slashen (Eng ) 6 Negligence Compensation Cases Annotated.248 idem- Polled vs Great Northern BED.Co.p.248-idem Lee vs Bessie p.249 -idem p.249-idem Keeling vs Colliery 240-9 N.C.C.A.586 586-5 N.C.C.A.694.

In this case there is evidence that the deceased on few occasions donated small sums of money to his wife.But this is not sufficient support to create dependency.6 N.C.C.A.249 ..

Nor is it sufficient that the wife has,under the law,-the right to depend for support on her husband.6 N.C.C.A. 240 New Monokton Collieries vs Keeling (1911) A.C.648C.J.Advanee, sheet p.57-

In Negory vs Standard Oil Co. 151 La 229 the Court eaid:$ " The statute under whioh the suit is brought ( Act 38 of 1918 ) names two olasses of persons who are entitled to recover compensation for the injury and death of an employee. ®st Those who are conclusively presumed to be dependent; and- 2nd' those wno are actually dependent upon the deceased employee,to any extent .for support at the time of the injury and death.Those of the' latter class are required to make proof of their dependency.The plaintiffs belong to that efees class xx The statute does not attempt to define what shall constitute "actual dependence for.support to any extent",and the Coufct oannot make any definite inflexible rule to govern every case. Each oase muBt be considered in the light of its own facts and attending circumstances" C.J.advanoe sheet 1917 Workmen's Compensation Acts p.55-.

There is evidence that a short time before his death .the deceased husband authorized the owner of a Country Store to open an account in his name and, to sell groceries to his wife and charge them to his account;the items charged are small and not sufficient to establish a case of support; Davis paid on the acount once a while and his wife always came to pay.

It was financially impossible for Davis to have kej)t up his own home and another besides with $9.80 a week .

It is sufficient for us in this case to say that the plaintiff has not established that"at the time of the injury and death of her husband she was then aotually dependent upon him for support."

The evidence shows that at that time she had abandoned the conjugal home for many years before,and had been kept by other men in their homes,and even went by the name of one of them,and had been supported by them,or by her own efforts and that her husband did little or nothing towards her support and that by his death she was not deprived of his support and her situation was not affected for worse,and she lost nothing.

The judgment of the District Court is therefore affirmed.

April 30th 1923 .


source: Caselaw Access Project

author: Dinkelsplel; ,J

license: Public Domain

text:
    NO. 8758
    COURT OF APPEAL PARISH OF ORLEANS
    MOISE LEVY vs. DANUEL LEVY.

   Dinkelsplel; ,J

Plaintiff alleges that the defendant is indebted unto him in the sum of $100.00; that he is the holder and -owner for íalue and before maturity of four certain promisory notes, each for the sum of $25.00, signed by the defendant, who had acknowledged his indebtedness and promised payment. Wherefore he prays for judgment.

The defendant, admitting his signature pleads that he is in no way indebted to plaintiff in any sum whatbsoever; that the notes 3ued on are the property of the estate of Alexander H. Levy, and that the plaintiff is the holder of said notes in bad faith and is without interest in and to the same; that said notes v/ere aoquired by Alexander H. Levy during his lifetime, and he, the said Alexander, died and his succession has been administered by his widow, who claims the proceeds of said notes.

The widow of Alexander Levy files a petition of intervention and third opposition, showing that the succession of her husband ws.s being administered by her in the Civil District Court; that her husband died on the 17th of March, 1923, and he was the true end lawful owner for vs.lue of the notes in question; that the plaintiff nas instituted a suit against the defendant to recover payment of said notes, but she avers that same were the property Of her deceased husband and now belong to the succession; the the sold deoeased husband acquired said notes from plaintiff for a. vulueable consideration end that plaintiff is without right, title or interest in ?nd to said notes, and that the notes are the sole property of her late husband.

To this petition of intervention, plaintiff filed his answer, admitting the dea.th of his brother, Alexander H. Levy, and denying that the deceased, now represented by the administrs.trix, wife, is the owner of said notes, averring that he loaned the money represented by the notes to defendant and the intervention filed by the widow is a mere subter-defeating fuge for the purpose ojyjfee&ttfetfig payment of said notes.

le have thus minutely detailed.a substantial portion of the pleadings in this easel She testimony in this record is conflicting, but in the main it is proven by the testimony of plaintiff himself, in being questioned in what way he got possession of the notes in question he answered to the question:

Q. You took these notes out of Alexander H. Levy's desk did you not? A. Yes sir, Judge, I took them, he told me one mornr ing he was sick about three weeks and he told we 'to go s,nd get the notes in his desk; I had the keys always and I had my key for the door and desk and he e.sked me if I got the notes and I said yes and he said hold them, you need the money.

According to this witness's testimony this conversation took place in the bedroom of the deceased; no one else was present. He further testifies that the dotes were his property and he gave them to his brother, Alexander, to keep for him; that he had no safe place to keep them.

On oross examination he goes on to relate: "About a month before he died he was unable to go to his office, he was siok and he said, Moise, you had better go up and get your notes as taae porters are going in the office all the time and you do not know what they are doing."

He testifies in this same connection that he went about 6:45 in the morning to his brother's office in the Godchaux Building end he got these- notes out of the desk Of his brother; he further, testifies that he did not take anything except She notes end he paid no attention to any cancelled checks thet were in the desk.

Mrs. Levy, widow, knew that her husband hsd acquired these notes because he had bold her 30, she failed to put then: correctly on the inventory and in explaining that feet says it was an oversight; the defendant himself when on the stand swears that he w?3 well acquainted with the handwriting of his l&te brother, Alexander, and the stub book of his check, doted March 28nd, 5-931, showed that the deceased had paid plaintiff for these notes and he swears that the notes are the property of the succession of his brother.

The widow testifies thet the stub in her husband's checkbook was me.de in his handwriting, and that on the 23nd, of Ms.rch, 1923, it showed paid to JioisS Levy for account of Daniel Levy the notes in question; all of the notes in her husband's possession, save and except the ones in question, were found in the deceased's desk.

Another witness, a Mias Casey, who was at the office of the decessed every day, went to aid in taking the inventory. Q. Did you see anyone taking anything out of the desk! A. Hr. Dan Levy who talcing down all the numbers while Mr. Daniel Bevy Jr., called them off; I followed them up end Mr. Sydney Levy was taking all the papers out of the drawers, like cancelled checks and pamphlets, things belonging to the company; I could not s.ee what they ware.

She further testified she saw him take out of the drawers, cancelled checks but she could not identify who signed these checks, but says th'-.t most of them hod the deceased's -ig-nnture; the desk belonged to rue deceased, and was locked; she b>w Sydney Levy assorting papers and checks but she could not identify the checks in .question. This testimony is virtually oerreborrated by Daniel Lgy.y Jr.

Jan. 25th, 1923.

We have thus detailed substantially the main portions of the evidence in this case, which goes to prove that the deceased ,h?.d bought these notes during his lifetime from the plaintiff in this oase and he left them in hia desk to-gKhxasixsdtih gether with other pa-pers ana after his doíth, the desk was found in a very disordered condition but most of tfcKjajsKXsjowta the papers, checks. _.c. etc. were there, save and except the particular oheck paid to the plaintiff in this cese for these notes.

The testimony of disinterested witnesses clearly ocnfirms these fects.

The Judge of the lower Court saw and heard the witnesses and was m a better position to judge of their veracity than we are; he decided this cs.se in favor of the intervenor and we 'concur in this judgment.

For the reasons assigned, it is ordered, adjudged end decreed that the judgment of the Court a quo be and the same is hereby affirmed, costs of both Courts to be paid by plaintiff.

-Judgment affirmed.


author: Charlo* P.Claiboma, Judge,

text:
    Hess Bros. vs Frank M.Callaghan
    No.8761
    Charlea F.Olaibome, Judge.
    February 5th 1923

   Hess Bros. vs Frank M.Callaghan.

No.8761

Charlo* P.Claiboma, Judge,

Plaintiff of How Torky ciadme of defendant $161*80 for toadla* sold and delivered.

Sha ordor «as giran by dafandaat to Jír Pinskl,the looal representative ot plaintiff In Haw Orleans,during the and of September or the beginning of Oetobar 1919. The oandles were d*Xirered only on January loto 1920 .Tha defense is that the candles reached the defendant*tooiate for uee,and in the meantime,}** to* obliged,In order to supply the demand,to purchase fro® local dealers at a price, whioh caused a loss;that some time after the hill of goods reached Algiers,plaintiff's representative called en hita,and defendant informed him that the candles were of no two to him and that he could not use them» that the representative than proposed that defendant use as much of them as It was possible for him to use in his trade,and that whatever he would use he would pay for; that he did uee part af the candle*,and in July 1820 he paid plaintiffs $100,which feprssantcd the full, value of the candies used by him,that the balance of the candies were unfit for uee and he could not sell then;hence he ewed plaintiff nothing.

There was judgment for plaintiffs and defendant has appealed,

the defendant has received the candies,has sold some of them.and has not returned .nor offered to return the balenee. H* cannot keep the candy and the price.lt would eeam a sound •oneiusion pt law that he must pay for lt^tmlese he can ehow tonta eltor reason for set doing eo.Ve do not think that he hae ¡nada that proof.

There is no contention that at the time the order was given,in September or October,the candiea were to be delivered at any particular time.It is true that as a general rule,an order must be filled within a reasonable time and that 90 days was not such a time.But the plaintiff has testified,and it is not denied,that at the time the defendant gave his order he owed the plaintiff a bill for an anterior purchase and that it was r a rule,in plaintiff/Sbualness not to fill an order,unless all prior bllle had been paid,It does not appear either that defendant oomplaintd of the . delay either to the plaintiff or to his looal representative prior to the delivery of the candies.The evidence la that the qandles sold were not peculiar to the Christmas holidays,but were standard goods for sale at all seasons.

The plaintiff's looal agent denies all the allegations of defendant's answer.As the defendant is the only witness to support then by his testimony,It cannot overcome plaintiff's denial.

The'Judgment is therefore affirmed.

Judgment affirmed.

February 5th 1933.


author: Opinion by WIDlliH A. BSEt. Judge.

text:
    CITY OF NEW ORLEANS VS H. L. THOMPSON
    NO. 8762
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELLM JUDGE
    FEBRUARY 5, 1923.

   Opinion by WIDlliH A. BSEt. Judge.

The Oity of Bow Orleans, plaintiff heroin, olaima the aim of #2A2.86 fox damages allegal to have been sustained hy a oolllaion hetween ita and defendant1 a automobile at the ooxner of OanáL and. White Streeta, on Januexy 26, 1928, about 11 o'olook a.m. Defendant filed exoeptiona to plaintiff'a petition on the ground of vagueness and that asm# oiaoioeed no right or eanae of notion, and answering to the menta denied apeoifioally the several allegationa of the petition, There la no counter charge ef negligence tfh.any special defense. The above exoeptiona were overruled, and from a Judgment in favor of defendant plaintiff has appealed.

¿tí. We find the facta of this case,that on the morning of the accident plaintiff's oar, occupied only and Operated by the chauffeur, was going out Canal Street on the lower side in the direction of the lake; that at the intersection of lower Canal and Waite Streets plaintiff'a car was stopped and wee then driven at eibont five miles an hour a arose the railway tracks* all She while keeping to the left rather than to the rtgftt of Wald crossing, as required by the oity ordinances offered la evldenee; that while plaintiff’s ear was thus crossing the upper aide of Canal Street, at a point mors than half-way aoroaa upper Canal Street, defendant's self-driven ear wap going aoout 18 miles an hour in a direction towarea the river and on that part of upper Canal Street Where it had a right to he. It this point it collided with plaintiff'a car, damaging the hood, right running hoard, the right frod^Tfender, right splash guard and right front door of plaintiff's oar. Defendant's car sustained damages to the radiator, hood, front lamp, front axle and frame.etc. She extent of damages sustained to eaoh ear i« not in dispute and no reocnveatioml demand for dsmagee If claimed. Hiñe .wttv nesses have testified in this ease. Sheix tastlnonjr, in way raspeóte most oonflioting, need not he here disotmeed. fhe .*Ti'.“ denoe which lmpresees us is, that neither ear was violating the speed limit and that no other wehio3.es were going in either dir eat ion to hinder, impede or obstruct the proper driving of the oolliding ears. She praaenoe of the oandy-wagon standing at the upper lake oorner of upper Canal and White Streets did not, in any manner, cause the aooiasnt in mention. Plaintiff:, and defendant’s outlook was good from their respective oars, despite the oonflioting evidence ae to the rain our taina on-either oar being up or down, and, therefore, thie fact, furnishes no oausa far the accident. Wo find that plaintiff ’a-chauffeur at all* tintes bad a plain view of defendant.’a on-ooming oar, efeloh ha admits first having notlood When sans was about: ISO feet from the oorner at White and upper Canal Streets :snd when plaintiff’a ear wae in the' neutral ground and upon the rail* way traoks. We ere not convinced, although there is some teati-. mony to that affeot, that plaintiff's driver looked to the' left instead of to hia right while making the crossing, but we are quite satisfied that defendant was at all times duly attentive; in the driving of his oar and took evsry possible ébanos, even up to the moment of the sooident, to avoid the «ame. Share ..is no possibility of discussion that the defendant, had the righi-Of *: way; that he wsw not, under the sir earns tancas of this case, obligated to yield thie right even at the last moment, which. a« we appreciate the evidence, did-not afford him a olear or raS'r'' sonable ohanoe to avoid the accident. Plaintiff's ear being af all times in lowest speed *ile crossing and not .being, crowded. by any on-coming sida or rear ftJsfcSiFp and plaintiff's ohauffeur having seen defendant's oar no farther than half-a-hloet away, it follows that defendant's right-of-way should have been duly recognised ana that plaintiff's ohauffeur was guilty of negligence in not stopping his (tax until defendant had passed the intersections of White and upper canal Streets. We find that plaintiff's charge of negligence on the part of defendant is not supported by the evidence; that plaintiff's ohauffeur was negligent in violating at least one of the two ordinances which he Should have observed, and that defendant did all he possibly could to avoid the accident. She findings of the trial judge should not be disturbed, there being no patent error, as we see it, in his appreolation of the law or the evidenoe.

IT 18, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment appealed from be and the same hereby is affirmed at plaintiff's costs in both courts.

FEBRUARY 6, 1923.

JUDGMENT A RETRIED.


author: OHAS. F. CLAIBORHE, JUDGE.

text:
    C EARLES F. OLAIBOBRE, JUDGE.
    JAMES H. DUNCAN etc. vs R. B. FOWLER
    No. 8765
    October 16, 1922

   JAMES H. DUNCAN ETC vs RANDELL B. FOWLER

Ho. 8768

OHAS. F. CLAIBORHE, JUDGE.

On-motion to dismiss---

Judgment was rend«red in favor of plaintiff and against defendant on June 6th, and signed on the same day. From thiB judgment the defendant, on June 16th, obtained an order for a suspensive appeal. On June 20th he filed an appeal bond. Thus it appears that the. appeal bond was. filed fourteen days after the rendition of the judgment. Plaintiff and appelleemoveB to dismiss the appeal on the ground that the appeal was filed

"more than ten judicial days .from the signing of the judgment."

This ia a suit for $126.87 and was tried by the City Court of Hew Orleans under section 91 of the Constitution of 1921 p.65 — Aot 128- of 1921 p. S32 entitled: "An Aot to regulate the praotloe in the City uourts of How Orleans, and to carry- into effect sections 90, 91, and 92 of Article VII of the Constitution" and provides as follows:

"Appeals shall be allowed, and be returnable to the Court of Appeals within ten days/ exclusive of Sundays, from the rendition of the jadgment<4on.

It has been held tha.f

"every act required by law to perfect an appeal, when taken, must be performed within the delay allowed for taking the, appeal".
Heed vs His Crs 37 A. 907 and authorities there quoted--Psoples' Bank vs Aroeneaux 134 is. 29.2 and authorities He.: 8710 Ct. App,. Jane 19th, 1982.

It le therefor# ordered that the appeal herein he dlemlBeed.

Ootéher 16, 1928


text:
    HENRY L. HEYMANN vs. EDWARD L. MALONEY.
    NO. 8767,
    COURT OF APPEAL, PARISH OF ORLEANS.
    7/1LLIAII A. BELL, JUDGE:
    January 9, 1923.

   Garnishment process having issued herein against The Board of Commissioners of the Port of Hew Orl.eans, otherwise known as the Dock Board, the said garnishee has filed exception to said proceeding on the ground that it is an agency of the State of Louisiana, and that garnishment process will not 'issue against the State.

Further answering hy separate and later pleadings, the Dock Board reiterates the ahoye exceptions and in answer to interrogatories, admits that its clerk, who is one of the co-defendants in the suit under which this garnishment has issued, is an employee of the Board, and in whose favor the sum of $59.60 has accrued as salary due, hut which salary is as yet unpaid; and that until said amount is paid same is moneys in the treasury of Board as property of the Board and therefore is not in any legal sense property of the said employee.

The Trial Court over ruling all exception herein filed hy garnishee, issued an order from which this appeal is taken, wherein it was directed that the Board pay to the constable of the first City Court the sum of $39.60 or such amount thereof as would he necessary to satisfy the judgment rendered in said suit.

Under Act 70- of 1896 and the subsequent amendatory Acts, to wit: Act 56 of 1900., and Act 14 of 1915 the Board of Commissioners of the Port of Hew Orleans has been created as an agent of- the State of Louisiana with all powers and rights as set forth in the aforesaid Aots of the Legislature, In all three of these Acts it is evident that the fund out of which all salaries of employees of the Dpck Board whether they he classedjpublic Officials, or clerks,are to he paid from such fund or revenues as are created hy the operations of said Board.

In this case the questions as to whether the clerk of the Dock Board whose salary has been garnished is a Public Official or whether Act 184 of 1918 can he now construed as permitting the salary of a Public Officer to he garnished, a/l&not questions, which are pertinent to the matter before us for consideration. ■‘The reliance placed by plaintiff's counsel in the Act of 1918 and in the decision of this Court in the case of Heymann against Crooheron Eumher 8374, Orleans Court of Appeal, is' of no avail, for the reason that the issue here involved is solely w-hether the fund under seizure is a fund belonging to the State or its functionary the seizure of which would he against public policy and would result in hindering the adminstration of the Dock Board iii the performance of its contemplated duties.

We are of the opinion that the ruling of this Court made in the case of Phillip Reich vs. 1. W. Englehardt, 12 Orleans App. 304, and the authorities of our Supreme Court therein cited is the law which must govern our ruling in the instant case.

It is therefore ordered adjudged and decreed that the judgment herein appealed from he and the same is hereby reversed and that there now he judgment in favor of the Board of Commissioners -of the Port of Hew Orleans and against plaintiff Hy. L. Heymann. se-tfc*l£ide the garnishment herein issued and releasing the seizure effected thereby at plaintiff's cost in both Courts.

JUDGMENT REVERSED.

January 9, 1923.


author: BY: '..ILLIiil A. BKIiXi,, JÜDG3:

text:
      VICTOR GENNA, versus VOGEMANN-GOUDRIAN CO., INC.

      NO. 8772,

      COURT OF APPEAL, PARISH OF ORLEANS.

      WILLIAM A. BELL, JUDGE:

    November 13, 1922.

   BY: '..ILLIiil A. BKIiXi,, JÜDG3:

Plaintiff Brings this suit under Workmen's Compensation Act 2jOI of 1914 and amendments.

>■- — -""" It is alleged in tile petition that, he was in the employ of the defendant corporation on Decemoer IE, 1921, and engaged in the course of his employment with the said corporation as foreman looking after the loading of the S.S. "YoorBurg” at the river front and ilandeville Streets in Jew Orleans, and that while so employed"he was struck violently hy two Barrels of rosin Being thrown against his left leg while they were Being hoisted into the ship from the wharf or levee."

It is not necessary to note any other averments of the petition which, together with the above noted averments, fully disclosed the cause of action under which plaintiff might have recovered But for reasons herein after stated.

Defendant answers, and as a sp'ecial- response to the suit avers that at the time' petitioner was injured he was standing on the deck of the steamship directing the operation of loading said steamship and that he sustained accidental injuries through no fault, carelessness or negligence of respondent. Further answering, it is averred that if petitioner wap injured at the place and manner alleged By defendant, that there is no liability unto petitioner for workmen's compensation as provided By Act 20 of 1914 and amendments thereto.

In the course of the trial, the plaintiff while under examination, testified as follows:

ft. You were employed By the Yogeman-Gourdrian Go., Inc.?
A. 'Yes, sir.
ft. And in the course of your employment you were on the deck of the ship?
A. Yes, sir; I had just come from the wharf and went on the deck to tell the men what was dovni in the hold.
ft. Vflic.t were the men doing?
A. Storing rosin Between decks.
ft. From the levee to the ship?
A. Yes, sir.

At this point of the trial, counsel objected to any further proceedings in the ease on the ground that the testimony of plaintiff disclosed the fact that at the time of the accident he v/as performing under a maritime contract, and then being employed on a ship engaged in loading .cargo fox the defendant company, and that for this reason the trial court was without jurisdiction, ratione materias, the suit haring been brought under Louisiana 'Workmen's Compensation Act of 1914.

After consideration, the court maintained the objection and rendered judgment dismissing the suit at plaintiffJs cost, from which ruling an appeal was taken to' the Supreme Court of this State.

On June 82, 1922, counsel for plaintiff and appellant filed a motion in the Supreme Court admitting that the appeal had been taken to said court by error, and suggesting that 'the same be transferred to this court. An order to this effect was accordingly entered, and the case is now before us for consideration.

Among the hazardous trades, business, or occupations provided for in the Louisiana Workmen's Compensation Act, is loading or unloading the cargoes of vessels. Because of the fact that plaintiff was shown to have been engaged in the loading of the vessel upon which he was hurt, and 'because of the law as interpreted by the Supreme Court of the United States hereinafter oited, as well as the authorities of our Supreme Court, the petition herein filed was dismissed on the objections above narrated.

iff ■ ■ • Counsel for plaintiff argues that the to frisaKof the court ratione materiae was filed, too late and that the A.-~ issue of defendant's'liability to plaintiff for workmen's compensation should have been raised by exception of no cause of action and -not by answer. An examination of the pleadings makes plain that such procedure would have been futile and unnecessary, and that until the definite fact as alleged by resppndent was developed at the trial of -the case, the plea fatal to the petitioner could not have been properly urged. The prohibition itself in the Workmen's Compensation let against technical pleadings likewise justified the course pursued by respondent, and we dismiss plaintiff's contention on these points without further comment.

The ruling of the judge a iua in dismissing plaintiff's petition was particularly challenged by counsel for plaintiff and appellant, who cites the decision of the united States Supreme Court in the case of Veasey v. Peters, 142 La. 1013, but we find that this decision of our State Supreme Court has been overruled by the Supreme Court of -the United States, Peters et als. v. Veasey, 251 U.S. 121.

In this latter case; the court holding the ruling of our Supreme Court to be erroneous, said:

"By an act approved October 6, 1917, Congress directed that both of these clauses be amended by inserting after 'saving to suitors in alocases the right of a common law remedy where the common law is competent to give it,' the words 'and to claimants the right of remedies under the Yiorkmen's Compensation law of any state.'
The court below erroneously concluded that this act should be given retroactive effect and applied in the present controversy. There is nothing in the language n£ employed nor is there any circumstance- known to us, which indicates a purpose to make the act applicable when the cause of action arose before its passage; and we think it must be so construed."

Under the foregoing authority as just quoted, it is conclusive that any state Workmen's Compensation Act granting the right, of recovery under state procedure in maritime contracts, is unconstitutional and therefore to such extent unenforceable, and in as much as the plaintiff in the instant case is shown to have been acting at the time of his accident under a-maritime contract, he is barred from recovery under the Workmen's Compensation law of this State..

In the case .of Lawson v. N.Y. P.R. S.S. CO., 148 La. 290, the Court said:

"formerly the Admiralty Court oould alone have had original jurisdiction but by an act of Congress, an amendment to the judicial code, approved October 6, 1917, **** was passed.*.*** VJhile this case was pending in this court on appeal, the Supreme Court of the united States, in an opinion in Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, held the amending statute above referred to unconstitutional, null and void. On the strength'of that, decision, defendant's counsel filed a motion for rehearing acl companied by a plea to the jurisdiction of the State Courts.
As this suit is brought under a maritime contract over which the District Courts of the United States have exclusive original jurisdiction, -the suit will have to be dismissed." Monvoisin v. Plant, 147 la. 464.

Vie find no error in the judgment appealed from and same is therefore affirmed at plaintiff's cost in all courts.

JUDSMBETT AFFIRMED.

November 13, 1922


author: Charles F.Claiborne,Judge.

text:
    Higgins-Titus Co,Appellant. vs P.Louis Adams and Wife.
    No.8776
    March 5th 1923.

   Higgins-Titus Co,Appellant. vs P.Louis Adams and Wife.

No.8776

Charles F.Claiborne,Judge.

This Is a damage suit resulting from a collision of two automobiles.

The petitioners allege that on May 13th 1921 at about n 6 O'clock P.M. an automobile owned by them was riming on Napoleon Avenue in the direotion of the Lake on the right hand side of the street on the uptown side of the neutral ground of Napoleon Avenue between Frleur and JPohneon Streets 5 that the oar was running along the upper road of the .neutral ground for the reason that the neutral ground at Johnson Street was obstructed by repairs,and the plaintlffSwere An their way up Johnson Street? that as plaintiff's automobile had reached the middle of the blook between Prleur and Johnson Streets it was run into by •another automobile owned by the defendant P.Louis Adams,and operated by*his wife;that the defendant's automobile was running on the extreme left of the street close to the neutral ground at a speed exceeding 20 miles an hour;that when petitioner's car came within 150 feet from defendant's oar,petitioner blew his horn and seeing that the defendant did hot heed it,and in order to avoid an accident,he turned his car to the left,when defendant turned her oar to the right,striking petitioner's car and causing him a damage of $170.00 .

The defendant^ denied all petitioner's allegations. They alleged that the aooident was caused solely by plaintiff's negligence and violation of the traffic ordinances.

There was judgment for the defendants and the plaintiff's have appealed.

There were only two witnesses to the accident,the plaintiff Titus,and the defendant Mrs Adams.

The plaintiff's .testimony is practically a repetition of the allegations of their petition'.

The ohauffeur iras driving out towards the Lake on the Street on the uptown side of Napoleon Avenue close to the neutral ground on his right.The defendant was driving out on the same street,also close to the neutral ground on her loft}she was driving fastjhe saw her a hlook off and sounded his horn; she appealed not to notice it;when she came so near to him that a collision seemed inevitable he turned his car to the left to ayiid it/the cars ran into each other.

The defendant says that she was driving in the middle of the street,qp 10 feet away from the curbing,leaving ample space for the plaintiff to pass;that she first saw plaintiff's «• ear when it was about 60 feet from her;but^pointing to an object to exemplify^it .proved to be only 21 feetjthat she heard plaintiff's horn;that plaintiff was also driving in the middle of the street;that Just as she turned to her right to avoid plaintiff he turned to his left ^and brought on the collision;she"did the right thing;but he was not sure that I was going to do the right thing,so he took a chanee at doing the wrong thing;"

In deciding this oasa we must do so without regard to the traffic ordinance,as it has not been introduced in evidence.

In the absence of a traffic ordinance both sides of the neutral ground were two way streets and every vehicle running on either side of the neutral ground was governed by the common law of the road.

In weighing the testimony,our conclusion is that the scales lean towards the plaintiffs.If it was truecas plaintiffs say,that the defendant was driving on her left side near the neutral ground,then according to the law of the road,she was on the wrong side of the street,and all presumptions are against her,and she must suffer the consequences of the collision,as we have often decided.If she was ten feet from the neutral ground, as the defendant testifies,there was ample room for the plaintiff to pass,and it is not probable that the plaintiff would have •turned to his left to avoid her,nor that the defendant would have oon'Bidered it neoessary to turn to her right ^as both testified. She defendant first testifies that she was fifty feet from plaintiff when she first saw him;in that distance she had ample time to swerve to the right^ide of the road,out of plaintiff's wayj but i# only twenty one feet,then it would seem that she was at fault ror not seeing plaintiff's sobner.We cannot accept defendant's theory of the aocident.We cannot believe that defendant had left a space of ten feet between her and the neutral ground,for in that case the plaintiff,would have gone right ahead and would not have swerved to the left to avoid her.It was defendant’s fault if plaintiff turned to the left.

The husband has testified that he is willing to assume the.responsibilities of his wife.

It is therefore ordered that the Judgment herein be reversed and annulled,and it is now ordered that the Judgment be in favor of the plaintiff's^Higgins-Titus Oo. and g against the defendant^Mr and Mrs P,Louis Adams^in solido^for One Hundred and sixty five dollars with legal interest from September 7th 19S1 till paid and all costs of suit.

Judgment reversed.

Maroh 6th 1923.


author: Dinkelspie; J.

text:
    NO. 8781
    COURT OF APPEAL PARISH OF ORLEANS
    D. E. WILLIS versus A. G. DARDEN

   Dinkelspie; J.

f— Plaintiff brings this suit alleging that about the 1st lay of May, 1931, he entered into a verbal»agreement with the defendant, whereby the latter w'jc, bo pay plaintiff a com- . •mission of fifty p---r cent of the net profits on all lumber bought and sold by plaintiff, and further alleges that as a, result of the transactions mods by plaintiff unier this agreement, there was a balance due him of-$349*17, together Tilth the further sum of $51.01, for expenses paid out by him for defendant's account; claiming thrt defendant owed him the sum of $300.13, the righteen cents being wn-vied by plaintiff in order to bring the suit within th“ jurisdiction of the Court.

The answer denies th^t any agreement was made relative to i' commission on sales rnd alleges further that no agreement was made for the employment of plaintiff, but th°t a weekly salary was paid by the defendant to plaintiff for his services.

The reoori contains sundry aocounts annexed to plaintiffs petition, showing expenses paid by him during the course of his employment, also giving credit for various sums plaintiff claims to have received from defendant during the services rendered to defendant by plaintiff; he s'.ver.rs that defendant eii-tered into a contract with him May 1st, 1931, which was a verbal agreement and there was no salary to be paid him st all, and he states in his testimony various purohaee. he ms.de of lumber, a.s well as sales msde by him for the. defendant, in which he claims the profits were to be divided half and half.

Without entering into details of this testimony, we are satisfied from the major portion of it. that the lumber purchased and sold by plaintiff was the property of the defendant, end that he, the defendant paid all his employees v/hatever was due them, every Saturday night, and amongst the employees was plaintiff, who attempts to show that the money he received we,a money for expenses) hut reeding his own testimony and from his own lips we are convinced that that is not the case; he makes an attempt to prove the |51«01 for expenses and furnishes sn itemized statement of same, but we sre satisfied from the evidence in this record thst this money was the money of the defendant, given to plaintiff at such time as he required, viith or without salary, dxxxkix just as plaintiff demanded it.

Plaintiff would estimate the profits on «.mount of lumber sold, in hie statement» he did not include in this statement the lumber left on defend-.-nt'e hends; he did net attempt to make up v complete account, but admits thet the unscll pert of the lumber wos defendant1 e profit, whilst tils testimony troves tint tho unsold port of the lumber was of poor qu-lity in bod condition, unsold, at the time this pi' intiff wt :¡ eng-.ged -with ths defend r.t, end would not, from all the testimony in this record, produce anything like the price claimed by plaintiff. Hence it would be utterly impossible to predícete any statement of profits, without first getting t whet lumber v.,!.-s not sold end whet the price would be. Thi3 lumber, whatever it ws s, was ps.id for by defend-nt, vías in his possession, under his control, and plslntiff was in no wise interested therein. Plaintiff says th-“t when he first handid a statement to the defendant which is the statement annexed to his petition, that defendant, without looking at it, rejected it, paid no attention to it, refused to heve air-thing to do with it; yet, we find that subsequently, notwithstanding this cl'im of plaintiff, when undeniably, and admitted by plaintiff him-<elf, instead of receiving as he formerly did, his pey envelope on Saturday nights with twenty five dcll’-rs per week, he received thirty dollars a week, without any -agreement one way or the other; he simply found the money in his pay envelope, and ms.de no objection thxx* thereto, he accepted it without demur, without a word, and asked no explanation of any kind or ohe-racter.

On the other hand, defendant's testimony is positive, unqualified, admits of no doubt of its truthfulness, and its absolute veracity, and impresses us with the fact that he has stated fully, all that there wee in, this oase, so far as plaintiff was ooncerned. He swears thst plaintiff, who had been in the lumber business all his life was disengaged, was idle, doing nothing, and that he, defendant, knowing plaintiff to be an expert lumber man, employed him without any agreement of any kind or character, and from week to week, every Saturday night, plaintiff was handed his pay envelope, for a time containing twenty-five dollars per week; it was received by jMtiix plaintiff without a word of remonstrsnoe, without e.ny objection of any oharaoter, accepted by him. And we find also that when the plaintiff wanted any expense money he asked for and received it, and that without any question, so that when defendant was asked whether or not he kept books and he answered in the affirmative, and was asked whether the statement of plaintiff in this oase was or not correct, with the exception of the division of the profits, he said, virtually, yes he as sumad it to b.s correct; hut he ’disclaimed any agreement to shar-e profits upon which plaintiff has based his entire claim. Not only are these facts abundantly proven to our satisfaction, but beyond this, there are in this record two letters written by plaintiff to defendant, and we reproduce them here:

."N. 0. La. Deo. 28, 1921.
Mr. A. ¡3, Darden.
Sir:
Will you please let my .wife have Twenty Dollars ($20.00). I oan't work.
Set the shipment from Gum on the traok Public Belt, River Front between Iberville and St. Ann St,
Let the N. O. R. W. & E. L. Co. rest till tomorrow. I am not siok, but I oan't walk. Taxin brought md home.
Yours truly,
(Signed) D. E.■Willis."

Another letter was written by plaintiff which reads 38 follows:

"N. 0. La. 1st-6-33.
Mr. A. G. Darden, 3103 Carrollton Avenue, City.
Deer sir and friend:
I am in a oriticel condition, both physically and financially; my will power completely exhausted. I therefore send my wife vrith this letter to you for a little assistance for our actual needs, with a note th*t will explain itself.
In addition ple-,se let me have a. few dollars personally and if I can regain my health I will show my appreciation. If I don't then you are secured.
Sincerely yours,
D. E, •Willie."

The letter referred to contained a note for $75.00, peye-ble on demand, end hsd written on the back of it "secured by certs,in property in case of my death".

Defendant testifies that he gave back to the wife the letters in question, refused thxiaxK the loan asked for.

If defendant ’was indebted in any amount or in the amount plaintiff dK claimed by plaintiff he/oertainly had a right to demand the money due him, which was far in excess according to his ideas, of the amounts he wanted to borrow; the plaintiff swears that the only parties present at the time this fifty-fifty contract was entered into was he and the defendant; no one else there.

Under the well settled essentials of law, a plaintiff must make xxi his os.ee certain, and not leave it-indefinite i» XkBxmini and undetermined. In this plaintiff has utterly felled; hence his claim must be rejected.

Feb. 10, 1923.

"Ths essential allegations oontained in plaintiff's petition are not supported, hut negatived, even by his own testimony."

Seuer vs. Union Oil Co. 43 Ann. 699/
Viotoire vs. Moulon, 8th Martin 400.

For ths reasons assigned, it is ordered, adjudged, and decreed, that the judgment of the court aguo "be and the same is hereby annulled, avoided and reversed, and that there he now judgment in fsvor of ths defendant, dismissing plaintiff's suit, et his costs in both Courts.

Judgment reversed and- judgment in favor of dafendant.


author: DinkelspielJ J.

text:
    NO. 8783
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES EPSTEIN versus EDWARD A. CHAILLOT

   DinkelspielJ J.

Plaintiff institutes this suit, alleging that defendant As indebted unto him in the sum of $300.00, he being the holder . owner for value and before maturity, of eleven rent notes, equal to the sum claimed, the consideration being for lease of premises 3503 Port Street, at 3 monthly rental of $35.00. The notes in question represent rent due from January 1923 to December 1933, inclusive; alleging that defendant leased from the prior lessor the premises in question, and Flicker, the prior landlord endorsed said notes; ths-t the notes are identified with the lease and aot of 3ale annexed hereto, and that the defendant having failed to pay the rent for the month of January has abandoned the leased premises and has left the State; plaintiff has a lessor's lien and privilege for the payment of the rent due and Secured by the contents cf the leased premises, and fearing, end petitioner has good reason to believe, that lessee will remove the property upon which he has a privilege, out of the leased premises, hence pls.intiff may be deprived of his lien, prays for a writ of seizure and algo for the appointment of a. curator ad hoo to represent the absent defendant, and prays for judgment in the full amount of hie cleim, with legal interest thereon from judicial demand until paid, together with recognition of his lessor's lien and privilege on the contents of the leased premises, and that said contents be sold ana petitioner be sis paid out of the prooeeds thereof by preferenoe and priority over all other persons. This petition was sworn to by plaintiff and the writ of provisional seizure issued ap prayed for.

The return of the Sheriff annexed to the record, show ths,t defendant oould not be found; the contents of the premises in question were seized, and Thomas R. Rosier was appointed curator ad hoo to represent defendant. He answers, first pleading that on the face of plaintiff? petition the Court was without authority to appoint a oure.tor ad hoo, and further that the petition difdcses no cause or right of action. Finally answers with a general denial.

An intervention and third deposition was filed in this c&áe in behalf of the United States Slicing Maohine Company, who set up that they are the owners of a certain United States Slicing Machine, which was seized by the Civil Sheriff in this case; that they leased ss.id machine to William Flicker, end the ssid Flicker wrs in possession when the writ of. provisions! seizure issued and when the seizure in this ca.se was made, and that said Flicker held the said Slicing machine as a lessee under a- contract of lease between intervenor and Flloker, dated April 16th, 1931, annexidg a copy of the lease to petition; and alleging further that the slicing machine is not the property of the defendant; that plaintiff hss no lien or privilege of any kind upon said machine end thet sala plaintiff in this suit never had any rights or lien or privilege upon ssid machine either in law or in fact. Alleging further that there was no contract of lea-se between the defendant Flioker and the plaintiff, and that plaintiff has no right, title or claim against 3aid maohine s.nd is holding the same through fraud and contrary to -law; that demand was made upon said plaintiff end he was notified of this fact end requested to return the said maohine but refuses to do so, hence intervenor and third opponent prays that tfcsxs their petition hs of intervention and third opposition be filed and that there be judgment in their favor <iixa:Bi±ngx± decreeing them to be the owners of said silo-ing machine, and th"t same was not subject to provisional seizure herein, and finally prayed that the plaintiff's suit claiming a lien and privilege be denied and that the property in question be restored to interveners.

We find annexed to the petition, a copy purporting to be a sale or lease to William Flicker, and we quote therefrom the following provisions:'

"Provided said rent shall be promptly and fully paid in cash which shall include the payment 4>f any judgment secured with akssisxiiiA costs and attorney's fees, and s.ll the terms and conditions of this lease performed, the lessee may elect to become the owner of the property, snd such election shall rest title to said property in lessee."

The terms for said machine ss expressed' in this contract was the arm of |375.00, thirty four dollars of which was paid in cash snd the balance was on credit.

Plaintiff has fully proven his case in so far as the evidence shows, and there is no denial that he is the owner in good faith of the rent notes in question, and the only question presented to this Court is whether or not this was a sale of a slicing maohine seized, as snown in this record, among other artioles of property found in the premises msaiz stated, or whether it was a mere lease.

In the esse of Seeling vs. Dumas, found in the 48th Ann. at page 1499, the Court held:

"In the opinion heretofore rendered by us, we adopted defendant's construction of the contract between plaintiff and Theresa Hamilton that it was one of sale. We reached that conclusion from the fact that possession had been given to Theresa Hamilton, from the large amount payable weekly, which viewed from the standpoint of the contract being a lease-would be out of proportion to the ve,lue of its use, and from the clause in the act by whioh, on dsfait default of any payment as agreed, the whole value of the furniture as mentioned in the annexed promise of sale would be considered due."

4 In the case of Barber Asphalt Paving Co. vs. St. Louis Cypress Company, 121. La. 155, the Court in the body of its opinion says:

"Parties are at liberty to make contracts so long as they are legal, and to agree to accidental stipulations; but where they actually make a contract with fixed ldgs'l essentials they are powerless to control the legal effect of ths contract itself, The contract being made, the law governs its results." Citing numerous authorities.

Again: "In the case of Adams Mach. Co. Vs. Newman, 107 La. 703, ths facts were that the plaintiffs had sold certain machinery, pert cash end part on a credit represented by interest-bearing notes of the purohosar maturing at fixed intervals, and the machinery had been installed by their vendee on his plantation, end the plantation, with the machinery on it, hed been subsequently .mortgaged to the defendant, and the defendant had foreclosed his mortgage and bought the plantation, including the machinery. Plaintiffs contended that their sale of ths machinery had been conditional upon payment of the price, and that the price hsd never been paid, and that consequently they had continued to be Owners. The contract of the pilota plaintiff with their vendee recited that the vendee owed them certain notes given for the purohs.se price of the mochinery, and th-'t to secure the payment of the notes the vendee put the machinery in the hands of a trustee named in the oontrs.ot, and that in case of default on any one of the notes, then all the unpaid notes v/3re to become exigible, end that the trustee should sell the maohinery, and with the price thus obtained should pay the notes and give the vendee any balance that might remain. Said the court: "The contraot isa present sale intended to be end actually accompanied by possession on the part of the purchaser.*** It is impossible for a contract to be at- one and the same time a contract of entirely different and conflicting characteristics. *** It was beyond the power of plaintiffs to make a contract of absolute sale of the maohinery, and withdraw from suoh sale the effects fixed and flowing from it by virtue of the laví itself."

At page 163, "The essentials of a sale are: A thing, the property in which ie transferred fro/., the seller to tb® buyer; end a price in monev paid or promised. Benj. on Sales, p. 2 Civil Code Art. 3429. It rollows from this fchst to suppose a sale without a transfer of the property in the thing which forms the object of the saieüe simply to suppose an impossibility. Either, therefore, the ownership of this shovel w?..3 transferred to Hoyt, and the stipulation of continued ownership must be disregarded, or else there was no 3a.le made to him. The latter supposition is lnadmissable: because not only the KikaKxiims allegation is that there was a sale made, but the plaintiff company has in its pocket a pert of the price, and is not offering to restore it."

Civil Code, Art. 3363. The privilege of the vendor on movables sold by him, whicn are still in the possession of the vendee, yields to that of tne owner of the house or farm wnich they serve to furnish or supply, for his rent3. itocsisidxxySxs ftps See Art. 3360 Civil Code.

■tie ihaxsl are therefore of the opinion that the inter venors 3pld to William Flicker, the slicing raachiner seised by the piaintiif in this ce.se; that the consideration, price, delivery and everything in reference thereto shows that fr®* arid that subsequently Flicker transferred said property to tne defendant in this case. The defendant evidently left the ‘State, without paying either for the machine or the rent and plaintiff acquired the notes sued on and stands today with the transfers the notes to nim, to.vsüher with the lei^e, os the rightful ownn-r. nnd is entitled to the lcndlord* s lien and privilege on the property seized.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment in favor of plaintiff, against defendant Edward Challlct, in the stun of §300.00, with legal interest from judicial demand, until paid, with recognitifcú of plaintiffs lien and privilege on the contents of' the leased premises he affirmed, end that that portion of the judgment vihich excepts pls.intiff right to the sale of the united States Siloing Machine, and maintains intervener1s right thereto, is annulled, avoided and reversed, and the judgment herein rendered for plaintiff, include the United States Slicing Machine-, together with all the other effects seized in this cese; thet the intervention end third opposition herein filed by the United States Slicing Machine Company be dismissed at their costs, and they together with the defendant be condemned to pay costs of both Courts.

-Judgment affirmed in part and xsfxx reversed in part-


author: Charles F. Claiborne, Juage.. WILLIAM A. BELL, JUDGE.

text:
    George Olivier,Appellant, vs J.L.Lancaster and C.L.Wallace Receivers T.and P.Ry.
    No.8788
    Shanes F.Claiborne,'Judge.
    May 14th 1923.

   George Olivier,Appellant. vs J.L.Lancaster and C.L.Wallace Receivers T.and P.Ry.

No. 8788

Charles F. Claiborne, Juage..

■Sbis is a suit for damages for .physical injuries suffered in conaequenoe.of the derailment of one of defendant's trains by plaintiff employed thereon as a nail Service Clerk.

Plaintiff alleges that on February 20tli 1921 while engaged in the soope of his employment and while performing .his duties1- as a1 Railway Mail Service Clerk in the mail oar attached and making part of the Texas and Pacific train So.22 said .train derailed at RaringoMdn,Louisiana,causing the mail car to turn oyer and seriously injure petitioner- who was in said mail oar at- the moment or the aocident;"petitioner further •avers he has been informed and believes to b.e true and- so alleges that the wreck and derailment of tram No.22fe which caused the injury hereinafter described to your petitioner was due to defective rails on the main line of defendant's tracks’^he further avers that he received severe -injuries ©n the Keadjarm,t-high and back which necessitated his being confined in bed and prevented him from ,performing, His duties for a period of .twenty one days during which time-he-was tinder the /yu care Of a phys-ioia\;that since said acoident He suffered from constant headaches,and nervousness,and,that Bis health .has been permanently impaired¡that he Has suffered great pain and agony .-He olaims the following damages?

Physical pain and suffering #2,600.00
Rental .Suffering 2,200;00
aedifial Expenses &&$> 300.00
$ 6-,000.00

The answer wae practically a- genera:! denial.

The casgjras^ried by a jury and there was a Yerdiot^fojjT'the g^f.endant.The plaintiff has appealed.

The first question to:be determined' is what capacity did' the plaintiff occupy on the train,'wae he entitled to the rights' óf a passenger?

In 10 Corpus Juris p.,631 we read?

"Postal 01 erics .-Although it has. been held that a postal clerk while oh a train in the performance of his duties íh not a passenger,so that the railroad company is liable to him for an injury only in case of negligenoe which would render it liable to its own employees,by the weight of authority a postal clerk,employed in the service or tne government and engaged in its servtwe,traveling on a train,whom by contract with the government the Company is bound to carry, must be considered a passenger at least in so far as the Company’s liability for his personel injuries- through negli-genoe is concerned".

same, p,6.32 Hots 71 s

" It -is -settled law that in the carriage of the route agents or-'p’oetal oierke of the United'States-,charged with duties respecting'-the protection and proper distribution, of the mails .carried under- contracts in-accordance with law, the carrier is under the;, saíne obligation to them,as regards suitable and safe carriage,'that it is. to its ordinary passenger#"
"As a matter of,general law,aside .from any'looal statute,a railway mail clerk',while engaged in the performance of his duties,is unquestionably to.be regarded as a passenger,' and entitled to -.the rights and immunities growing out. of .that, relation.This; is decided by Courts of the highest ■ character,... the authority of which' is not. to be resisted",1143 Fed.665-537What•then'are the- responsibilities.of the carrier' towards the'-passengeri

.'.-'•-She answer/;is-.found-,in Gleason vs'Virginia RRD. '140 U.S.£3S-in which 'the. Court- said' ón p.443 s

'; *'-.Since'the-decisions in Stokes vs Saltoustall 13 Peters 181 (1864);and RED. Co. vs Follard 22 Wall 341,it. has been, set,tied'IgW.i in'this'Court that-the. happening of an injurious -.accident--is. .in.;passenger--eases-pr-ima. facie .evidence., of negligence, on the, part-.’of.-the/,carrier and that (the passenger himself in the exercise-of.-dáe 'pare) .the burden,/then rests upon, the - carrier to show -that;.its. whdl'e,duty-’was, .-performed-and that*. ¿the.; inj.ury. was unavoidable. by;..human ■ foreBigjbt',...

The 5ftle announced in those oases has received general acceptance and was followed at the present term in 551 Juland Coasting Co. vs Tolson 130 U.S. 851 -xxx The law is that the plaintiff must show negligence in the defendant.This is done prima facie by showing,if the plaintiff be a passenger, that the accident occurred.If that accident was in fact the result of causes beyond the defendant's responsibility,or of the act of God,it is still none the less true that the plaintiff has made out his prima facie case.When he proves the occurrence of the accident,the defendant must answer that case/feem all the circumstances of exculpation,whether disclosed by the one party or the other.They are its matter of defence".

The principle of this opinion was adopted by this Court in Frazier vs Squthern HED. No.8608 decided March 19th 1923,following numerous decisions of our own Supreme Court,

In that case we said:

" When the passenger is injured all he has to -yr allege and prove is a derailment^ tea. explosion,a collision,or other accident,and. an injury to himselfthe carrier is liable unless he explains that the accident was without his fault."We adhere to that decision.
In the case under consideration the plaintiff alleged that he was a passenger,that the train had derailed^, and that he had suffered an injury.In the language of the Supreme Court of the United States: " when he proves the occurrence of the accident,the defendant must answerthat case from all the circumstances of exculpation whether disclosed by the one party or the other."

But the defendants say that this rule does not apply when the plaintiff does not specifically"in ipsissimls verbis" charge the defendant with" negligence".

There is no merit in this contention.

First. When the plaintiff alleges that the defendants used defective rails,that their eross-ties were decayed,and that the spikes were missing,this sufficiently implies negligence without the use or the word-" The allegation that the death resulted from the derailing of the oars by reason of bad condition of track,consequential upon rotten ties and missing •spikes,is sufficient averment of negligance" Duncan vs Ey 51 A 1775

It is not necessary to allege fraud by name if the allegations imply fraud.117 La 16 -20 Cyo 98 .

As the presumption of negligence resulted from the accident,it was not necessary for plaintiff to allege it. Plaintiff need no't allege what he need not prove.

"Since the law relieves the owner of proving negligence,wherefore the necessity of alleging that which he does not have to prove? His cause of action is complete,under the law as it now stands,when he sets forth his animal has been killed by the defendant Company.where and when killed,and that its, value is so mhch." 106 La 425 (428) .

The defendants did not attempt any explanation of the derailment.nor exculpation of the presumption of negligence by witness*o£ their own.Neither the engineer,nor conductor,nor roadmaster.nor any other employee of the Company was called by them.

"Tne failure of ¿¡he railroad Company to introduce the testimony of its employees,who were on the train at the time of the accident.raises a presumption of, negligenoe against the company" 55 A 694 .
"When the existence of certain facts lies within the knowledge of me one of the parties and he fails to testify concerning it,the preswaption is against him- 55 A 694-1 L.D. 247-127 La 509-142 La 265-144 La 83 ..

The defendants rested their defense upon the proposition that inasmuch as the plaintiff had restricted his complaint to defective reails,unless he proved that fact his suit must be dismissed.In support of their position they quoted from 51 A 1776-: "The failure of the plaintiff to, establish the allegation that the death resulted from .the derailing does not throw upon the defendant the burden of acoointlng fob the // accident

.lilis court might have been misled'bv the 'quotation' hpd they not read- the opinion.But in that ease the plaintiff- ..." iras a hrakeman whose rights are entirely different.' from" those,.of a passenger.The Court says on p.1783,': " It is'.tfdé'%áatí the-defendant does not aooount for the accident,saye by 'thepr^fS-. propounded hy one oi* two of the witnesses,hut it, was not in the'" case presented bound' to, do ■ so, what ewer might have been itB obligation had the person injured been a passenger or perishable freight,instead of- an emplóyee-.A brakeman accepts the risks; V incident to his employment andt etc ".

The defendants-objected to any - evidence.--tending.to show the defectiye condition of the cross-ties,roa'd bed;,..- •- and track in general, or'of the - excessive bate or, spped of, the.;. train on the same ground that the plaintiff had.alleged defects only in the rails.The' objections were maintained »au the-evl-.. . dence exoluded.lt was not necessary, for the plaintiff,:io make ' proofs of those' facts £ on the contrary-.it, was incumbent’on . derenoants to prove that all those agencies were as sound - and'; safe as human ingenuity could- make- them';

A railroad-conductor of.- the-, defendant company swore that the spites,’ al'ong the- rails were -missing,or had,--been"-' removed rrom the oross ties with-the .intention of. wreoking the train.Eailroads are required to. make inspections of their belongings a*-reásonable times^to have track-walkers to inspect' their tracks.These'is-no . evidence in’,;, this case; teat -any pro-'cautions .of that -kind wero takenino . testimony tblshow when those spiked,-if any,were removed,; or-tmt.- they'.had been .removed ..so recently that.it was.not .neeli'genco -on the-part of,.-.the.- ’ railroad .-not’ to* have .known it,

. Thousands of • naseengers '.'travel; Ughh. raiaro.ape,-every ’day,and public ..policy r.eftuírfS' .that;their ;diity jt^íoaríyí their paasengei:s^:safely "Bhoul<í.-:;'be,1‘.strictly ,.enfprGed;,-’:i.

..'"The'’plaintiff swears' -.that, when.’.the . Car -ran -off.:-*lte-' track, the ear turned .pver'jand ,ne;was .knocked /aown.ana.tne v'fmaitura. £oi$-ao .^gnained-in;pshat: ;po-sition._ abpat thi.nty'minútes-yw■ was/uncoña&Ióuá'for ':15;pr,SO. minutes;.. he vías struck on the head and had contusions on his arm,and leg and .hack,hut they left no marksjhe went to hed for ten days; he remained away from work for 20 days for which the Government paid him compensation;he employed a doctor who treated him for about 15 days,hut there is no evidence that he paid him anything.

We think a judgment for $250 will do justice in the case.See Frazier vs Southern RRD.No.8608 Ct.App March 19th 1923 .

It is therefore ordered that the judgment herein he avoided and reversed,and that there now he judgment in favor of the plaintiff George Olivier and against the defendant the Texas and Pacific Railway Company for Tv/o Hundred and Fifty dollars,with costs in hoth Courts.

Judgment reversen.

May 14th 1923 .

GEORGE OLIVIER VS J. L. LANCASTER & C. L. WALLACE, RECEIVERS OF THE TEXAS & PACIFIC RAILWAY

NO. 8788

COURT OF APPEAL PARISH OF ORLEANS

APPEAL FROII THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, HON. COLUMBUS REID, JUDGE.

DISSENTING OPINION OF

WILLIAM A. BELL, JUDGE.

I concur only in that part of the majority opinion rendered in this case, whioh holds that the plaintiff, a postal clerk in the employ of the United States Government was a passenger on defendant's train and to whom defendant owed a high degree of caution while carrying him. However, from this conclusion it does not follow as a matter of law, that plaintiff, failing to charge defendant with general negligence, hut electing, on the contrary, to aver specific negligence, had naught to do in establishing a right or cause for recovery hut to prove that (1) while a passenger on defendant's train he was (2) injured hy an (3) accident for whioh (4) he was not himself at fault. I oannot subscribe to such a whioh seems to me opposed to overwhelmigg authority. It oannot he doubted that even without approval of text writers or courts, oommon sense would impel the doctrine both just and reasonable, that derailment of a railway train resulting in injury to a passenger establishes a prima facia presumption of some sort of negligence on the part of the carrier. Such a presumption, however, oannot and does not in any instance carry a fixed conclusion that the carrier has been guilty of every conceivable negligence, so that plaintiff is relieved of either alleging or proving negligence on the carrier's part.

It is a fundamental truth,for which authority need not he cited here, other than Article 2315 R. C. C., that in order to recover in this or other actions ex delicto, plaintiff njust both allege and prove defendant to have been negligent, or, in other words, at fault. Such allegations may be general or both general and specific, as in the Frazier case recently decided by this court, or there may be only allegations of specific negligence as i'n the instant case. Where the latter course is adopted, plaintiff is rightly held to the specific proof of the negligence as alleged and cannot substitute therefor proof of ether acts of negligence not averred in the pleadings. • In the Frazier case this court did not hold that under conditions' similar to those in the instant case no averments of negligence need be made by plaintiff against defendant to support the former's cause of action. There it was said:

"The plaintiff in this case does allege general negligence on the part of the defendant. Inasmuch as under our jurisprudence that allegation was sufficient to entitle plaintiff to recover, we consider specific allegations of negligence as mere surplusage and not essential to be prpven by plaintiff."

The majority opinion in the present case is predicated principally upon the ruling made by the United States Supreme Court in Gleeson v. Virginia Midland Railway Co., 140 U.S., 435, which cites with approval the earlier rulings, of that court in Stokes v. Saltonstall, 13 Peters, 181, and New Jersey R. & Transp. Co. v. Pollard, 22 Wall., 341; also Inland & Seaboard Coasting Co. v. Tolson, 139 U.S., 551.

It should be noted, however, that in Sweeney v. Erving, 228 U.S., 233, the court carefully reviewed its rulings made in the Sleeson case and particularly what had been previously, held in Stokes v. Saltonstall, and concerning this latter oase it said:

"A reading of the report shows that thé case turned upon the high degree of care owing by oarrier to passenger, and that the oourt did not rule that the circumstances of the occurrence shifted the burden of proof upon,the main issue. Such is the' effect that has. uniformly been given to the decision. New Hersey R. & Transp. Co. v. Pollard, 22 Wall. 341; Inland & Seaboard Coasting Co. v. Tolson, 139 N.S., 551; Gleeson v. Va. Midland R. Co. 140.
"In our opinion, 'Res ipsa loquitur' means that' the facts of the ooourrenoe warrant the inference of negligence, not that they oompel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may he lacking, hut it is evidence to he weighed, not neoessarily to he accepted as sufficient; that they oall for explanation or rehuttál, not neoessarily that they require it; that they make a case to he decided hy the Jury, not that they forestall the verdict. (Res ipsa loquitur,' where it applies, does not convert the defendant * s general issue into an affirmative defense. When all the evidence is in, the question for the Jury is, whether the preponderance is with the plaintiff."

The trial Judge's exclusion of evidence tending to prove excessive speed of the train in the present case, where neither this fact nor any general acts of negligence was averred, was, in my opinion, eminently correct and ha3ed upon the soundest rules of evidenoe. His charge to the Jury to the' same effect was in no respect reversible error and the Jury's findings are entitled, on appeal, to the highest consideration. It is-plain from the lánguage used in the Judge's charge that he.was convinced (as I am) that under the pleadings of this case the rule of Res ipsa loquitur could not he applied, saying:

"When the plaintiff himself alleges specific negligence on which he relies to recover, it is encumbent on him to prove that negligence hy a preponderance of evidenoe."

But applying the rule to the instant case, as has been done in the majority opinion, its. application, as was set out in Sweeney v. Erving, 228 U.S., 233, "does not convert the defendant's general issue into an affirmative defense." The burden in this case is ««athe/less upon the plaintiff to prove hy a preponderance of evidenoe that the derailment was caused hy defective rails. My appreciation of the evidenoe is that he has not oarried this burden and I think the Jury's evident conclusion to the same effect should not he disturbed.

I cannot agree with the opinion of my learned that it was incumbent upon the defendant in this case to affirmatively prove (as the opinion implies) that the railroad company had duly employed track walkers to inspect its tracks or that such inspection had been but recently made before the accident, or that the railroad spikes, which one of plaintiff's witnesses said had been removed, were in fact found at the time of the inspection to have been intact, or that the defect in the road-bed, cross-ties, fis.h-plate3, spikes, or any other parts — other than the railsfalone charged to be defective) was due to vandalism, etc. Under the circumstances of the instant case, X oannot agree that such affirmative proof of such precautions or the establishment of other defenses in avoidance of liability, was encumbent upon the defendant, If such be the doctrine applicable to actions ex delicto against carriers of passengers charged with specific negligenoe, tin. aw; ipleadings similar to those now before us, would automatically move the case towards inescapable liability against the defendant, upon the sole theory that it alone could know or must have known the cause of the accident and. therefore, must in every instance prove by affirmative preponderance of evidence that it was not at fault. This is n'ot my appreciation of the Haw or Jurisprudence of this or any other State of the union, nor was such a doctrine intended to have been announced in the case of Lykiardopoulo v. N. O. Ry. & L. Co., 127 La., 309; or in 142 La., 215, or 144 La., 83.

In Cooper v. Century Realty Co. (Missouri) 123 S.W., 848, it was held:

"In an action for injuries from a carrier's negligenoe it is sufficient to charge negligenoe in general terms; and under such a petition plaintiff need only to show that defendant was a common carrier, and that plaintiff was a passenger and was injured by the oarrier while being carried, from which it will be presumed that the injury was from the carrier's negligenoe; but if the petition charges specific negligenoe, the acts oharged must be proved as alleged before a prima facie case is made."

A like ruling was made by the United States Cirouit Court of Appeals in Midland Valley Railroad Co. v. Conner, 133 c.c.a., 628, in which Judge Sandhora, as the organ of the court, said:

"And in the absence of any allegation of general hegligence in a complaint or petition against a carrier for injuries to a.passenger, which oontains only specific allegations of negligence, it seems that, by the weight of authority, the presumption of negligence has no application to the case, as this presumption, when it arises, is. simply" of some negligence that caused the injury, and not a negligence in all things, and does not sustain allegations of specific negligence."

Corpus Juris, Vol. 10 p.p. 1028, 1029, in speaking of the lJc'.-'-'ne of Res ipsa Loquitur, says:

"She doctrine of Res ipsa Loquitur applies only where defendant's negligence is charged generally, and not where specific'acts of negligence which caused the injury are alleged, as in such a case plaintiff has the burden of proving the speoific acts relied on."

The Supreme Court of Alabama, in the case of Orr v. Boookholdt, 10 Ala. App., 331, said:

"So, where the complaint in an action' against a carrier for injury to a passenger declares upon a particular duty of the carrier, which is a mere incident of the general duty to use due and proper care, the plaintiff must prove a breach of the specific duty counted upon,and the complaint is not sustained by, nor can the plaintiff recover on, the presumption of negligence showing a breach of a general duty."

A like ruling wa3 made in Sullivan v. Capitol Tract. Co., 34 D.C., 358, when the court said:

"In an action by a passenger against a carrier, where the plaintiff in his declaration alleges the specific facts upon which he relies to establish the negligence of defendant — thus showing that they are within his knowledge— the burden is upon him to establish negligence as' the'basis for recovery; and he does not make out a prima facie ofise calling for rebuttal or explanation by the defendant'by merely proving that he was a passenger and the occurrenoe'of the accident by which he was injured."

See also M. K. & T. Ry. Co. of Texas v. Thomas, 132 S.W., 974; 140 S. W., 398.

The case of State ex. rel. Sorrel v. Roster. 106 La., 425, is cited in che majority opinion of this court as autaority for the rule that plaintiff need not allege what he need not prove., but examination of that cas&C*. fact that the court was therein applying and enforcing a particular rule of pleading authorized by a particular statute, to-wit: Act 70 of 1886, providing that in suits against railroad companies for the loss of stock killed or injured hy them, it should he sufficient, in order for the plaintiff and owner to recover, to prove the killing or injury. The language of the Supreme Court in Sorrel v. Foster, which immediately precedes that part of the court's decision quoted in the majority opinion, to which I now dissent, reads as follows:

"It will he observed that this statute changes in an important respect the rule which obtained prior to its enactment. Then, the claimant owner must prove the killing or injury and the fault of the company. How, it entirely suffices for the owner to recover, that he prove merely the killing or injury."

Surely, the rules of pleading and evidence recognized in the above-cited case cannot be applied to the instant case.

Por the foregoing reasons, I respectfully dissent to the majority opinion herein rendered and am of the opinion that the judgment of the lower court, predicated upon the findings of the jury, should be toa**, affirmed.

MAY 17, 1923.


author: Dinkelspisl'; J<

text:
    NO. 8789
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES DENNERY versus ZOROASTER W. HYVER.

   Dinkelspisl'; J<

Plaintiff alleges he 3old end delivered to defendant y.nria end merchandise which is set forth in the itemized account annexed to petition, claiming s. balance due of $115.15.

Defendant first filed »n exception, alleging that citation in this case v;rs not served on him in per~cn, hut vacs left at the olace where he works, handed to someone else. Subsequently, reserving the benefit of the exception, ■'•nawe'rs thst the amount due was for goods sold to his son, a minor, and that he alone dealt Tilth plaintiff and th°t defendant tas not responsible.

The testimony in this oe.se is conflicting, but it proves that the defendant w,\s in charge of and had sole control of the business both in Chartres Street r.nd subsequently Urse-line; the business carried on ••i?s * confectionery and bakery shop. Plaintiff's 'Witnesses prove that on several occa.ssicns the defendant called »t tnolr store, ordered seme goods there, '•vjjllst his son ordered other goods; the goods were delivered both :-t the Oh*ríres Street shop tnl at Urssline Street; tho driver of plaintiff's wagon who delivered thebe goods sirs'rs to their delivery it times stated, and he frequently saw the defendant in the shop together with his daughter and minor son; tnrt when the. receipts for the goods were given he paid no further .attention to the matter. It also appears that defendant acknowledged the indebtedness from tiras to time, at other times claiming that the goods wore sold to his son and that he was not responsible. Be that as it mb.y, the subsequent actions show that the business in its entirity was sold by the defendant to a Hr. Jchas for the sura of $850.00, $350.00 of which wsa in cash and the balance $600.00 to be p>:id nt c specified time; it was not paid and the defendant brought suit against Jchas for the difference, in the Civil District Court end there judgment was given to defendant against Joha.3 for the b^lanoe due $600.00. Besides this, on March 7th, 1932, vrtien defend-.nt vas pressed for payments both by plaintiri ana his counsel he wruue letter!

Feb. 8th, 1923.

"t am advised by my «.ttomsye ond compelled to at present to moke spplioption to the U. 5. Court for » petition in bankruptcy unless Oeo. Jonas mokes some orr^agem^nu m this matter within the next five days; cth--r"ise I »ra comosllesd to file petition within the next ten hays?} then to. J'one.3 will heve to settle this o-te with the ?ofer--s in Bankruptcy. Hoping that some thine- is done to prevent thi3 going ?ny further I remain
%, V. Hyver."

Therefore from all the evidence and surrounding circumstances in this oaee, we v.rs-cf she opinion th'-t defendant is liable the suit being aga-inst him and not igeinst his 3on, and plaintiff having fully made cut his cese. who The Judge of the Court >aquo/slsiw end heard all the ’'fitnesses in this otse end was in a better position to Judge of the truthfulness of this matter than vre are. His judgment was in favor of plaintiff and we concur therein.

For the reasons assigned-it is ordered, adjudged and deoreed, thet the judgment of the Court a.quo be end the seme is hereby affirmed, costa of both Courts to be paid by the defendant

-Judgment sffirmed-


text:
    NO. 8.790
    COURT OF APPEAL - PARISH OF ORLEANS

    STEINBERG & COMPANY, Plaintiff & Appellee vs. BERNARD (BARNETT) CUSACHS, Defendant & Appellant.

   On motion of SIEINBBRO & COMPANY, through their attorneys, HILLING, OODCHAUX, SAAB & MILLING, and of BARNETT CUSACHS, through his attorneys, DART, HERNAN & DART, and on suggesting tonthe Court that the appellant and appellee have reached a satisfactory cospromise -

IT IS ORDERED, that this case he, and same is hereby discon-tinned.


author: Charles F. Claiborne,Judge.

text:
    P.E.Barnes, Appellant Jos.A.Blythe and Al.
    Charles F.Claiborne,Judge.
    March 5th 1923.

      No. 8793
   Philip E.Barnes Joseph A.Blythe and Al.

Charles F. Claiborne,Judge.

This is a suit by a purchaser against his vendor to .recover the purchase price of land paid,on the ground of false representations alleged to have been made by the vendor.

The petition alleges that on September 22nd 1919 plaintiff entered into an agreement with the defendant,Blythe,to purchase the following property;

''Lots One to ten inclusive,in square No.4 in the highway tract of the City of New Orleans ««« as shown on Josepg A. Blythe's official map "that according to said map said lots are represented by Piety Street,and on the opposite side of the square* by Conrad Kolb's Model Far^A being apparently,according to said map fronting on said Model Harm on the North Side of the Louisville and Nashville Railroad tracks;that he recently discovered ( the petition herein was filed on March 21st 1922 ) that said lots are on the South side of said railroad tracks and about eight hundred feet from the nearest comer of said farm; U. /> that said lots instead of being habitable,as he was led to believe are wild undeveloped swamp lands,impossible of appraock-in wet weather;that said lands now belong to the Blythe Company ; that he Mas paid to Blythe and the Blythe Company Three Hundred dollars in monthly payments of Ten Dollars each;that,on account of the fraud and misrepresentation¿practiced upon him by Blythe ^ he is entitled to have his agreement of sale cancelled and the fyt-part payment .she made on account thereof reii^bursed.

The defendants admitted the agreement of salejadmitted that the boundary of the property sold is the property of Kolb'; admitted the payment of #500,but denied all the other allegations of the petition.

There was ¡judgment for defendants,and plaintiff has appealed.■

The questions therefore ares 7^^

syiS-Víate lots one to ten of square 4 on Blythe's map on the A North side of the railroad track,and were any representations /( 44 ’ made to the plaintiff that said lots were habitable,and even iji such representations were made,do they constitute a cause of Action?

1st The Plaintiff being sworn was asked!

a Was any map shown you at the time of making this purchase
A Tes,Sir.
a Look at this map and see if it is the map that was shown? Do you identiry the lots you bought on that map ?
A Yes,sir.Witness points out on map lots one to ten in square bounded by Powhatan,Hiawatha,Piety and Kolb's Model Farm property.
a Take this map again and indicate to me where #ou stood in regard to your last answer #
A Witness indicates on map,pointing to the fcatid L.and N. R.R.tracks,the property line of 0.Kolb's Model Farm,and looked in towards the City,where my lots is supposed to be located.
a As X understand you answer,you were standing with your back to the C.Kolb Model Farm which was North ?
ft Towards the Lake,
a And you looked towards the City ?
A Yes,Sir.
Q And the lots you bought were in that direction towards the City §
A Yes Sir.

Mr Frank J.Barnes father of plaintiff,says that be was present when his son made'the agreement to purohase these lots; that an official map was shown at the time;that he made a sketoh of it; Mr Blythe showed him the official map when he went into their office"to find out the location of the lots.He produced that sketch,and upon it are designated the ten lots fronting" Conrad Kolb Model Faim and Piety Street and also fronting Powhatan Street and bounded upon the other side e# by Hiawatha Street in square No.4 upon the South or River side of the L and N. RED.track.and upon the comer of the sketch, is the following writing.: " Lots 8j5 X 80 square 4 Highway Su.Div.-* Lots Nos 1 to 10 Upon the North of the RRIÍ.tracks,with some property Jines intervening,a roadway is traced some distance from the RRD.track and parallel to it marked " Gentilly Road "

This evidence establishes to our satisfaction that the plaintiff was informed and knew where the lots he purchased were located^and that there was therefore neither error on his part, nor fraud onthe part of his vendor.

11 The plaintiff testifies that at the time he signed the agreement of dale he was told that the lots were" high and dry and ready for building."The defendant denies that he made those statements.

But even if those statements had been made they do not constitute cause for annulling the sale .

0.C.Art.2476 (2451)

The warranty reenacting the seller has two objects; the firstw is the buyer's peaceable possession of the thing sold and the second is " the hidden defects of the thing sold mi its redhibitory vioes."

C.0.2521 (2407 )

" Apparent defects,that is such as the buyer might have /fuie-discovered by simple Inspection asinot among the numbeir of redhibitory vioes." C.N.1642

C.0.1847 S 3 : " A false assertion as to the value of that which is the object-of the contract,is not such an artifice as will invalidate the agreement,provided the object is of such a nature and is in such a situation that he,who is induced to contract by means of the assertion,might,with ordinary-attention,have detected the falsehoodjhe shall then he supposed to have been influenced more by his own judgment than the assertion of the other."

As early as 6 A 386,(1851 ) Poree vs Bonneval,the Supreme Court decided that a purchaser of a house could not refuse to pay the prioe on the ground that 'it was badly in need of repairs while it had been represented to him as in good condition,on the ground that the state of the premises was apparent to any person disposed to purchase."

See also A 390-10 R5-3A4-6A 491-6A 426- 52 A 1967 (1964 ) 111 La 32 -33 A 1364 and cases there quoted.

In the case of Sreat Eastern Oil Oo.vs Bulloclr 151 La 209 the Court said :

" On the other hand,parol evidence would be admissible to show any misrepresentation of conditions actually existing or which had existed before;for the vendor who misrepresents the thing sold is guilty of fraud.0.0.1847 .This,however^is not applicable where the purohaseyis in a position to find out for himslef whether the representations of the vendor be true 0.0. 2521,1847 No.3 .In the present case,aside from the fact that the evidence is conflicting as to any such misrepresentation,the sseend shows that by simply demanding the certificates of the Oil refining Co. plaintiff could ns*e found out for itseld exactly the amount of oil produced."

In Slaughter vs Oerson 80 O.S. 379 the Court said on P.386 :

^ The dootrine,substantially as we have stated it^is laid down in numerous adjudications.
Vl Where the means of information are at ah hand and equally open to both parties and no concealment is made or attempted,the language of the oases is,that the misrepresentation furnishes nc ground for a Court Of equity to refuse to enforce the contract of the parties.The neglect of the purchaser to avail himself in all suoh eases,of, the means.of 'information,whether attributable to hie indolence or credulity,takes from him all just claim for relief.Í

The facilities for investigation within the reach of .plaintiff at/the time of the agreement of sale were as great as at the time he discovered that the lots purchased by him were not“high and dry and ready for building purposes *.

' The oases in IIS' La 134 and 46 A 499^ relied on by the plaintiff,are not in poi^t.

Judgment affirmed.

March 6th 1923