author: Dinkelspiel; J.

text:
    NO. 8796
    COURT OF APPEAL PARISH OF ORLEANS.
    NICHOLAS ALPHONSO versus THE HOTEL GRUNEWALD CATERERS INC. and GEORGE FORSCHLER, in Solido.

   Dinkelspiel; J.

The substantial allegations in plaintiff's petition ai that he was engaged as a candy vendor, having in his possession, selling oandy, a oar$,whioh he w-s pushing along Oonti Street ¿bíjüksh going in the direction of the river in the block between Royal end Bourbon Streets in this city, end that he was run into ;nd knocked down by a horse end wagon belonging to the Grünewald Laundry, whioh yí£.s proceeding in the same direction on Conti Streep but was behind your petitioner, and that just prior to striking petitioner and his oert, the Grünewald Laundry Wagon was run into end struck by an automobile v?hich was also proceeding on Conti Street towards the river, and was the property of defendant, George Forsch-ler, and was then in charge of defendant's employee acting in the ,-oope of hie employment. This accident occurred on December 5th, 1931, and caused petitioner's wagon to upset, destroying the wagon, i cs contents and injuring petitioner, particularly his -hands, end that because of s, id injury he had not been ¡able to work and for the loss of oandy, his claim for Doctor's bills and the injury he sustained he filed this suit against both The Hotel. Grünewald Cat-, erers Inc., and George Forsohler, claiming demages in the sum of $5337.00 with legal interest from judicial demand.

To this ^sfctiiOHBXxCis petition there was first filed exceptions thvt same -was too vague ‘.nd indefinite, and further that said petition disclosed no right or cause of action. The exceptions being overruled, answers were filed by the defendants.

_The defendant, Forsohler, denied any indebtedness due plaintiff for causes cited in the petition, admits the injury hut denies the extent thereof, and proceeding to answer further, substantially says, that the maohine driven by his chauffeur was being -driven on Conti Street between Bourbon and Royal Streets, at xsjasssl a speed of from four to five miles a.n hour and further averring that in front of his machine and proceeding in the s'ame direction on Conti Street, were a horse end wagon being driven along the center of the Street at a slow trot, and near the South ourb and between the wagon and cmrb plaintiff was propelling a email oandy vendor's handoart; and alleging further, on oato'nlng up with the wagon and handoart, defendant’s chauffeur sounded hie horn as a signal preparatory to passing to the left of the wagon; the driver of the wagon thereupon pulled over to the right and defendant had almost oompletely passed by when either the wagon driver sixths feeding that he had pulled over too near to the candy oart pulled on the left rein and pulled into the right side of the defendant's automobile, or the horse shied to the left; that the left right hub of the wagon struok the right rear fender of defendant's automobile, the jolt throwing the horse and. with him the wagon against olaintiff' s- oart; snd further alleging that the automobile was being driven at a very slow speed snd in a oareful xtii manner; that said automobile was passing the wagon On the left -in acoordenoe with lagál requirements; that the oolllssion between his automobile and the wagon was in no way due to any negligence or went of skill on the part of his chauffeur, end that any question of negligence and responsibility in this case lies between plaintiff and the owner and operator of the horse and wagon. He prays that there be judgment in his favor and againet plaintiff, dismissing plaintiff's suit in so' far ?s it is against this defendant, with oosts.

The answer of the Hotel Grünewald Caterers Ino*, de*. nies all the allegations contained in plaintiff's petition, exoept that it is a corporation domiciled in the city of Hew Orleans; denies that the driver of the wagon ran into end knocked down the plaintiff,denies that the plaintiff was near the righth'-uid ourb at the time he was struok, averring that the automobile owned by George ForsohlaSr and operated by his chauffeur, struok the wagon owned by defendant, knocked same up against the oandy oart of plaintiff, and alleging Í35&1 the true cause of the acoident wa3 due to the negligence and carelessness of the driver or chauffeur in charge of the automobile which belonged to the defendent firstly, which said driver vís.3 at the time of the accident the agent, servant or employee of said Forschler, acting within the scope of bis authority and in the course of his employment for the said Forschler, end that the said 'driver or chauffeur of the said automobile wes not exercising due c.-re end caution at the time of the accident, end did not .have hie automobile under control, and simply ran into the re®r part cf defendant's wagon. They finally pray for judgment dismissing plaintiff1 a suit, for costs 'nd for general relief,

An ex&min-'ticn of,this record, and quoting only such portions n-f it ts we deem applicable to the facts in this case, the testimony of the driver of the Grünewald Hotel wagon, satisfies us that he was struck by the -;utomobile when he was going towfris the river between Royal end Bouibon Streets; that his wagon was in the center of the street on the downtown side and that he was pa«sing r man with r candy wagon, cnd that there w's an automobile parked, fnd th*t the automobile that struck the w'gon wcs on the leitht-nd side --nd thr-t the fire/fc knowledge he h-d v? e that it knooked him br.ck and hit his arm c-n the side .grabbed Ms horse of the wagon which holds the cover up, .and he/ end in doing so broke the shaft; the horse got frightened and he was struggling with the horse. In reference to whet occurred to the candy man, he goes on to say that the plaintiff was in the rear, shoving his little push oart "-nd the only way that fc* got hurt was his wagon upset him, and when this v/itness sew him he was holding his arm rnd si id his arm wes hurt.

On cross exímiuetion he says that hie horse never struck the candy men and whet h:^p.ned wf s th.t the 0 nfty man wes knocked back, the candy spilled out into the street, s-lso that e. portion of the broken glass on th-¡ W'gon vir. s- in the street,

The witness, ?hilips, wh; w.’3 the chauffeur for the defendant, Forsohler, describing what occurred at the time of the accident, was asked:

Q. Did the automobile hit the horse et all?
A Ho sir, the automobile did'not touch -the horse?
Q. Then if the automobile did not touch the horse, how in the world could you get it past unless the horse swung in front of you? In other words how could that wagon have got up where it could run into vour automobile without the horse swinging over towards youil
A. He did olose in on me, I had delivered the front part of my machine with the rear p&rt of the ws-gon with safety, when the rear / part of the automobile oame in conteot with the front part of the wagon thats how he closed in on me, and thats how I hsid room enough to get that far without any trouble at all.
Q. If .you had room enough to get -past him end you he-d got your automobile so that the rear of .the automobile was opposite the •‘front EfxihKini wheel of the wagon, in order to oillide with you the horse must have swung over, shifted to the left or toward the downtown side, must he not?
A. Yes sir, he closed on me.
Q. And yet you didn* t hit it?
A. I didn't hit the horse. Ho sir, . didn't hit the horse.

The testimony of Dr. Love, who is r practicing physioi-? in the ci-ty of Hew Orleans, and who examined plaintiff's hands, swears that he found a contusion on the right hand which upon being ex-rv,yecL showed no evidence of fr-cture; he sent plaintiff to Dr. Henriquss for ex-ray examination, and Dr. H^nriques reported tnrst there was no evidence of p, fr-aobure in the picture taken by hi®; Dr. Love further testified that the hand was badly bruised but he could not make out the injuries beyond the bruising of the Soft parts, without injury zo the bone. His fee for attending to plaintiff was ten dollars, which was paid; also the fee of Dr. Henriquee, seven dollars for the -ex-ray examination/

The plaintiff himself was a witness in his own behalf, and testifies substantially that he met with an accident on Conti Street near Royal Street; he was''going to North Peters and Canal Streets with his wagon, and behind there was a wagon and the automobile came froan Bourbon Street in fast running, stndxkaac&sii and the automobile ran into the wagon and the horse and wagon were thrown against him; he testifies that the horse hit him and knocked his wagon oyer and hit him on the right side of his hip and his index finger of the right hand; vuat he was out of wcjrk for two months and.ten days; that he could not hold his hand on the wagon, that at the ti»o «f the accident he had one hundred end twenty pounds of candy in his cart which he sola at thirty oents per pound, that Ms wagon oost him thirty five dollars, the showoase twelve dollars, and the wagon was so completely broken he could not fix it; his stook was entirely destroyed, it was during the Christmas week and he was making from seven to nine dollars s. day profit. He could not speak English .and was abo&t sixty one years of age and had. not been able to do work_of the same kind for several months.

the deieuaant, Forsohler, being examined as a witness in this oasé, testified that he was in the automobile at the time of the accident to plaintiff occurred. He- says "X was sitting in front with the chauffeur; we were coming in from Bourbon Street, we got in Royal Street, this man with hie esndy wagon was standing in close to the curbing".

Q. Uptown curbing?
A. On the uptown curbing; and the Crunewald Caterers' wagon in the center; we were coming ahead and there was just enough room for us to drive through and my chauffeur blew his horn and We .were half wxyxxktax way through,-'with the automobile when the wagon swerved towards us oaúsing his front hub to strifes my hind fender proving that we were almost through; there was no damage done to my oar or the wagon, we stopped immediately, -we were going five miles and hour and we stopped right 'ih' .front of the wagon and the horse swayed oyer , he tried to catch his wagon so thats how he got his band hurt. Witness took the patient to the hespitfel end the doctors there said there was nothing the matter with the hand, it might have been a little sprained.
Q. Bootor, you say you were only going four or five miles en hourj how do you aooount for that?
A-. Because I have an expert ohauffeur, it is a one wgy street, and there were three vehicles; there was just' enough space for us to go through; I never allow him to go fast.

We have thus endeavored to state what we believe to be the substantial part of the testimony in this record, and we are satisfied that the Grünewald Caterers laundry wagon oould not and would not have hit plaintiff's oandy wagon except for the faot that the automobile of Mr. Foreohler, the other defendant, in attempting to go through by an automobile whioh was parked near the accident, the laundry wagon, and the oandy wagon, took chs.noes to get through a very narrow space and in doing so was not successful; that if the automobile# had not been driven in the manner testified to but had. waited until both the plaintiffIs wagon and the Bxunewald laundry wagon had gotten out of the way, the accident would nevery have ooourred, but as it was, whether driving élow or not, in the narrow spaoe between the wagon and the auto, ' the accident ooourred, She wagon being a olosed wagon of oourse the driver oould not see, except in front of him. The accident was very unfortunate to the plaintiff in this oase, who in the o.spdy business with a cart on which was a glass oase containing candy made his lining; the oftrt wee destroyed, the oandy llxnt* of no earthly use; the hand of plaintiff was injured end from the testimony, we are satisfied that plaintiff was inoapable of working and we have fixed, the time of Ms. being ill at twenty days .and She amount that he is entitled to for that time at ifhree dollars a day Would make the sum Sixty Dollars; his medl-iJal M&jfc amounted lo Seyeotrae bollare;; *r$' place the value of tlie wagon end the glasé at fifty dollars; the oandy destroyed thirty dollars* and for the suffering and pain which plaintiff ssSis. had; unable to work, out of business, we think One Hundred and Fifty Dollars a .ditional is a reasonable allowance.

Tie are satisfied that plaintiff has made out his case against the defendant, Forschler, end that the Grüne-wald Caterers Inc., are not liable.

For the reasons assigned, it is ordered, adjudged end deorsed, that the judgment of the Court'aquo be and the same is annulled in so for as condemning the Hotel Grünewald Caterers Inc., in solido with George Forschler, and th°t there be judgment in favor of Bichólas Alfonso and against George Forsohler, in the full sum of Three Hundred and Seven Dollars, with interest at five per cent per annum from judicial demand.

It is further ss ordered, adjudged and decreed that plaintiff, Nicholas Alfonso, pay the cost of this appeal and that defendant, Georgs Forschler pe.y the oosts of the lower Court, and as thus amended, judgment affirmed.

Judgment amended in part and annulled in pert.


source: Caselaw Access Project

author: Charles F.Claiborne Judge.

license: Public Domain

text:
    LUCIEN GAYE VS MR AND MRS E.C.RICHARD
    NO.8,800
    CHARLES F.CLAIBORNE,Judge
    October 30th 1922

   Lucien Gaye vs Mr and Mrs E.C.Richard

No.8,800

Charles F.Claiborne Judge.

This is an ejectment suit by a lessor against the lessee for failure to pay rent due June 1st 1922.

Defendants admit the failure to pay rent when demanded but aver that subsequent to demand they made tender which was refused,and that prior payments of rent were not made at maturity thus changing the time of payment.

The answer was signed and sworn to by the attorney at-law for the defendant in the form prescribed by the practice act of 1912 Ho.157

On the same day the defendants filed an exception of no «Wee- right of action,on the ground that no relations submifet between landlord and tenant herein."

This exception was signed by the attorney-at-law of the defendant in the form preoribed by the same act.

Ho affidavit as required by Sec.R.S.2167 was made by the defendant.

There was judgment for plaintiff with lengthy reasons and defendant has appealed.

The defendant has not appeared in this Court nor has he filed any brief.

An attentive reading of the record disoloses So us no error in the judgment and it is therefore affirmed.


author: By WILLIAM A. BELL, Judge.

text:
    ROBERT P. NORTON VS AIMEE J. PONCET
    NO. 8805
    COURT OF APPEAL PARISH OF ORLEANS
    SIRRIAM A. HERR. JORGE
    FEBRUARY 19, 1923.

   By WILLIAM A. BELL, Judge.

Plaintiff sues defendant herein for the sum of $180.00, the alleged value of certain furniture and other household ef-foots sold to defendant. The is a general denial. From a judgment in favor of plaintiff, defendant appeals.

She extensive testimony taken in this case develops a controversy he tween plaintiff and defendant, not as to the arti~ oles or the value thereof said to have been sold by plaintiff to defendant, but upon the question of fact whether the said articles were in such condition as to justify defendant in rejecting the same and refusing to pay therefor.

She trial judge in this case wrote a careful, lengthy and exhaustive opinion in discussion of the issues of fact, which are alone Involved, and after careful consideration by us of said opinion, studied in diligent connection with all of the testimony which we have read and reviewed, we find that his reasons for judgment are clear and explicit and that nothing can be added thereto in support of the learned judge's conclusions. We adopt his views of .the oase.

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

JUDGMENT AFFIRMED

FEBRUARY 19, 1983.


author: By WILLIAM A. BELL, Judge

text:
    MRS. ROSA EDNA GERMANN, WIFE OF DR. ALBERT J. COHN, VS MRS. JEANNE BERGEROT, WIDOW OF JEAN NABOS.
    NO. 8808
    COURT OF APPEALPARISH OP OREEAHS
    WILLIAM A. BELL, JUDGE.
    JUNE 25, 1923.

   By WILLIAM A. BELL, Judge

Shis is a suit for damages by plaintiff against defendant for painful physical injuries sustained while plaintiff was •riding in an automobile. She accident happened at the corner of Burgundy and Elysian Fields Streets, in the City of Hew Orleans, on the 4th of July, 1918, at about 3:30 o'clock in the afternoon. efendant's milk wagon, driven by a young man, defendant's brother, was pulled by a large horse and was going down Burgundy Street in-the.same direction as was plaintiff, the latter at the time being in an automobile driven by her brother-in-law. The evidence áhowa' the wagon to have been slightly ahead of the automobile before either of those vehicles reaohed Elysian Fields Street, and that a moment after the milk wagon got on the first of the five tracks running along Elysian Fields Street, the driv- • er of the automobile blew his horn, and the driver of the milk ■wagon* according to the testimony of the four witnesses in the automobile, veered slightly to his right, showing that he had evidently heard the horn of the automobile, there is- no doubt that -the horse pulling the milk wagon was walking across the tracks and that the automobile was going at a slow rate of speed, not mire than four or f.ive miles an hour. When the wagon reaohed the middle of the railroad tracks, the automobile had begun to slightly overcome the wagon, and by the time the automobile reaohed the north-most track on Elysian Fields Street, the head of the horse appears to have been flush with the windshield of the automobile. At this point, the driver of the horse turned the horse and vehicle suddenly to the left, with the result that the shaft of the milk wagon hit the bow on the right side of the automobile, upon which' plaintiff was then resting her right hand and right arm. Ihe result of -this accident was that plaintiff had the bones, of .her right arm forced through the flesh and hoth hones of the arm were fractured, After more than four years of treatment,and at the tim° of the trial of this case, to~wit: April 15, 1928, the ulna hone, or smsCCe. hone of the arm, lp 5. not yet mended, and the testimony of the doctor who attended plain-1,;,.f was to the ef-feot that the hone would probaoiy not knit at all and that the only hope for getting it to knit would he through a grafting process, the ultimate good results of which would not he at all positive. After many months of pain and suffering, the plaintiff's arm was x-rayed several times and finding that the ulna hone would not knit, she was subjected to an operation, hy which the fractured ends of the hone were brought together and wired. The witness testifies that before the accident she was able to play the piano and to tto ell of her own sewing, none of which she is now able to do, and that she still suffers considerable pain from tie accident.

All of the allegations set forth in plaintiff's petition and supplemental petition are met by defendant with a general denial. and none of the testimony, as we appreciate it, and as exhaustively reviewed m the written opinion rendered by the trial judge, has been overcome. Only three witnesses have testified for the defendant, that is, herself, the young man who drove the wagon and a witness who was a by-stander viewing the accident, as he claims, from a distance of thirty feet at the lower river corner Of Plyeian yields and Burgundy Streets. We agree with the trial judge ehat inasmuch as the wagon was on this witness' side of the automobile, that his view of the automobile was bound to have been obstructed by the wagon- and that his statement that the automobile ran into the wagon oannot be taken as reliable evidence. There was some attempt on the part of the defendant to prove that the automobile ran into the wagon rather than the reverse facts, which are established by a preponderance of evidence. To this end defendant swore that the horse driven in the wagon died a few days after the accident from injuries sustained by the collision, but the young man who drove the wagon and who was not in the courtroom when defendant was examined, testified that the animal did not die for over three months after the accident. This fact, together with the fact that there was no demand in reconvention for damages which the defendant’s horse might have suffered, is convincing proof that the horse was not injured in the accident. The trial judge in his opinion noted the faot that these two witnesses were separated, and we assume also that all other witnesses for the plaintiff, though related to her, were also separated, the four occupants of plaintiff's automobile being plaintiff, her sister and the husbands of these two ladies. It is interesting to note how all of plaintiff's witnesses corroborate each other as to all of the circumstances leading up to the accident, and as no other evidence than that of the driver of the wagon has been offered in contradiction of their theory of the accident, we must conclude that the findings of the trial judge, who saw and heard all of the witnesses, are correct.

There is no question of law involved in this suit, and because of the lift lrni»i inffl permanent injury sustained by plaintiff we do not think that the damages herein awarded are excessive.

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

JUDGMENT AEEIRMED.

JUNE 25, 1923.


text:
    NO. 8811
    COURT OF APPEAL PARISH OF ORLEANS
    DAVID VICTOR COHN versus KAUFMAN & FLONACHER.

   Dinkelspiel; J.

Plaintiff institutes tills suit, alleging that defendants iaxindfe-s are indebted, to him foi the following items:

Wages commencing Dec. 17 to December 33 100.00
Five days storting Key. 31 83.30
Wages from Dec. 28 ?.hd 37 under act 33.33
Dec. 34th 16.65
Railroad fere back to Yew York 68.00
Making 5. total of 301.28

One dollar mi twenty eight cents is remitrea in order to bring it within the jurisdiction of the Court.

Defendant answers substantially admitting that plaintiff was employed by them at an agreed wege of One Hundred Dollars & xak wvek and thst he worked during the week beginning December 17th, 1921, end ending December 23rd, same year; admit they refused to pay him the sum of One Hundred Dollars bemuse he left their employ without serious ground of complaint or any reason whatsoever Mnd that being paid by the week he is not entitled tc recover for one de.y without performing services of 3&id week; denies wages claimed by plaintiff for Work 3!:id to have been done in Hew York for the re- sen that plaintiffs employment only cotomenoed with his work in the city cf Maw Orlesjce; they further aver that plaintiff under an agreement vr- s to work for six weeks on trial to see if hie services were satisfactory to defendants, and that his transportation from Hew York to this city wss paid by defendant under the agreement, end the agreement to pay the transportation back to Hew York was conditioned on plaintiff remaining in their fca employment for -six weeks;, that insteed of so doing plaintiff without cause or serious ground of complaint, quit his employment and refused tc- work after December 34th, 1931. Averring further that they offered to psy and tendered to plaintiff One Hundred Dollars for his services for the week ending December 33rd, lass the transportation paid by them from Maw York, to wit, Seventy Dollars, ana also offered to pay him #16.63 for December 24th, 1921, which offer was refused, and they now renew said offer and. tender.

Subsequently an amended answer was filed by defendant, •averring substantially that plaintiff before he quite his employment, deliberately and willfully destroyed what is known as two drafts end one. trial pattern v/hich were the property of defendant and which designs had been made by plaintiff for defendant whilst in their employ, and the value of said patfeiaxasratMt ps.t-terns amounted to $163.00, for which they preyed ¡judgment in re-onvention.

On these issues the parties went to trial.

It appears from an examination of this record that plaintiff applied for the position of designer in defendants' establishment, answering an advertisement which appeared in a New York paper. There is a great deal of correspondence in this record as to this employment, but we gather thst it finally terminated in plsintifftfs employment by defendants, at a salary of One Hundred Dollars a week, and that the conditions expressed by plaintiff in his letter of the SSth of October, 1921, addressed tc the defendant, stated fully the drift of the correspondence, and we quote from the letter, addressed to the defendant, the following:

.^Replying tc your letter of the-35th in»t. in reference to designer's position, beg to inform you that after giving your proposition careful consideration, have come to the conclusion ‘ that I would accept same if you would be willing to pay Fifty . Two Hundred Dollars fcf first year, giving you s six weeks' trie.1, s.fter which you Will be in a ppsition to know whether I am fit for the job and if satisfied to draw up a. little contract" .

Again, plaintiff writing tó defendant:

"Replying- your letter of the Sth inst. and read with interestjycur proposition is perfeotly satisfactory to me and can assure you I will give the concern all -that is in me. As you h-vs nc m'nticn regarding transport!.ticn, I beg to inform you thrt I will hrve to my t r-'n.^ort'. ticn both ways gucr>-nteed, and >.3 scon c.s I receive mes fleo with instructions how to- travel the shortest wí.y, *1 will sever Cl my connections in the city, which will take me a few isys and bs ready.
Anti-el..' ting ~n o,.rIy reply, 1 <-m,
7:3 /sctfuily yours,"

It -.np'.-.rs from the evidence t!.,t the transport'tion from Hew York to the city of Hew 'tel “¡.no, -"mount-d to :.?0.33, malt wee furnished to plaintiff, tMfehe arrived in due course and. took oh'-rg:' of the position being -iver. every facility in defend-nt's eetebli ehment to work. It, tops'. !<■ from tbs evidence, -vith-out quoting it either for plaintiff cr defendant, that after being in the. city for a little while, from time to time plaintiff «"is various sr.:l divtrs request-; of dt-.ísnd;;ut, v/hioh .vere given to him, but hft--r several w»f'ke of vvcrk performed by plaintiff he ixickx baos tie totally dissatisfied and gave various reasons therefor to the effect ths t he did not like the life in the city of Few Orl=-r-hs, wfcsltaibdOs did not wish to move from'Hew York.

All request'- m'-de by him were complied with by the defendants, but n^twithst-nding th°t he ■/;; s perfectly satisfied with a contract dr'vm up at his request, containing oil th> t he had -sked for, he declined, eftor keeping the document for ? while, to sign same; it being gathered from this record, that he was hk* dissatisfied, not with the work nor with the people that he met, nor with the actions of the defendants, but because for the reasons heretofore stated he did not wish to. remain in Hew Orleans, end he wqrked only for tjhree weeks, when he finally abandoned his work And demanded hjs return fare to Hew. York. During these demands, defendants suggested, as they were fin&n-oially responsible '\nd could respond to °-ny judgment, that plaintiff might get against them, they wanted some security in some shape which would protect them in some way vgsinat plaintiff's repef-ted demin&s. To this request pis intiff complied, by depositing v/ith the defendants, the sui- of One Hundred Dollars in cash, thus showing that up to this time he wts in perfect accord with his employer•- end tb?t there vrs no differences between them f t ell, but refused to sign the contract without sitting any reasons therefor, and within a fo-.v w<»eJc9 -.'-iter his arrival in the city of Hew Orleans, he suddenly and without say.notice to the defendants .whatsoever in person, but through many of their employees, determined to quite and did quit the employment for no ¡Ether reasons save and except those heretofore stated.

Feb. 15th, 1923.

It would serve no useful ourocse to go through this record 4ny further, Ufa have csrefully examined it and we have come to the conclusion th-.t th$ Judge of the Court e.quc who saw snd heard these witnesses and v/ho had a. better opportunity from the manner in which they testified, in seeing ;.nd hearing them, than we ho.vs tc decide this co.se, and who ¡t&Kxásd allowed plaintiff the sum of $48.16, dismissing the «conventional demand of defendants, ths t the judgment was correct in every particular.

For the res’sens assigned it is ordered, adjudged and decreed thnt the judgment of the Court s.quo be and the same is hereby affirmed, plaintiff to pay costs of both Courts,

Judgment affirmed.


author: Dinkelspiel; J

text:
    NO. 8816
    COURT OF APPEAL PARISH OF ORLEANS
    MILTON SHIELDS versus ROCCA TRAMONTANA

   Dinkelspiel; J

Plaintiff alleges that on the 16th day of «Tune 1931, his horse and buggy was proceeding along the right side of the gravel road from Raoeland iwaiias Junction to Bayou LaFourohe, when without warning, a large motor truok driven by defendant at a high rate of speed passed too cross to plaintiff's said horse and buggy, the right side of the body of said truok which protruded over the side striking said horse behind the left foreshoulder, cutting a deep gash, from the effects of whioh she died two days later; and alleging that defendant was entirely at fault for said accident because he was passing too close to plaintiff's horse and buggy, was driving at a too high rats of spga&Kx speed when passing, he did not give seasonable warning of his intention to pass, and finally in not stopping the truck before the horse was hit; claiming damages in the sum of Í196.80.

Defendant exoepted to plaintiff's petition because it was too vague and indefinite, and further beoeuse it disclosed no cause or right of action, and if these exceptions were overruled, after denying various allegations made in plaintiff's petition answered further that on the data of the accident, defendant was driving,his motor truok on the Raoe-land Road to Bayou LaFourohe, and that in so driving defendant drove his truok past the horse and buggy some distance on the side, the horse harrnessed to the buggy turned and ran into defendant's truok, that the driver of the horse drove his horse carelessly and did not watch the road and the horse he was driving, if he had done this he could have Kxxtdsd checked and stopped his horse before it ran into defendant's truck, therefore whatever injuries plaintiff sustained were .caused by the want of care and skill of the driver of the horse end buggy,

The witness ^^^'testiw2d substantially that he was the driver of the horse and buggy in question, that he was on the edge of the road going to Matthews and the truck was earning behind; that he pulled as near the ditoh as he oould, the horse wanted to Jump over the ditoh, he swung bade on the horse, the horse was on a suanv, vas vruoic continued on the road and that is how the horse cams in oontaot with the truok, the horse was standing still, the truok was ooming in the same direotion that tete the horse was going, nad no warning of the truok coming, the 'ohauffeur did not blow any horn, the horse was struck on the left shoulder, it carried him and the horse and buggy some distance, the harness broke loose from the buggy and the witness Junked out of the buggy, the horse was injured having a wound about ten inohes long, the shaft and the side and baok wheel of the bno-o-v were broken and the harness was broken to pieces.

On oross examination he described the injury to the horse, stating that this was a common buggy, very small sad used as doctors.' buggies are when they are driving, the truok was ooming at a pretty good speed and oame right straight along, the horse was walking «long slowly.

Alfred Gibson, another witness for plaintiff, who was on the road at the time the acoident' occurred, about one hundred and fifty feet' from where it happened, asked to describe* what he saw of this aocidsnt, substantially says that the truok and buggy were going in the same direotion, the truok oame right on behind the horse and buggy about fifty feet and struck, the horse, and when it struck the horse, the horse oame back that way and the man in the buggy Jumped'out and the horse broke the harness and started to run away and three of them ran after him and carried him baok up' to the truck, the witness aid not know the man that'owned the truck, he was then pioking up some boxes that were knocked off the tr.uok, he further testifies the truok was going pretty fast and that the buggy was on the right side of the road, the truok was in the oenter of the road, aid not teat* hear any' horn blow, the road where the ao-cident occurred was wide enough fojr two trucks to pass on '«x -blae same side and one in the middle, the truok knocked a xfc hole in the horse's breast and witness says he could see all the insides moving; he further testifies that the ■truok had to pass the buggy before hitting the horse, the truck did not hit the buggy, it hit the horse and by the horse going oyer that turned the buggy and caused the damage to the buggy and broke the harness.

Another witness, Murray, corroborated the testimony of the former witness in almost every detail.

Milton Shields who was the owner of the horse and juggy testified to its value, knows nothing about the accident, testified to the condition of the horse and that it had to be killed, had owned the horse about six months paying |85.00 for hlgi, the harness and shaft were oid and The estimates their value at from ten to twelve dollars.

' The testimony of the defendant in explanation of the aooident substantially says that he was going towards Raceland with his truok and about e. mat quarter of a mile ha ■ahead of him he saw a horse and buggy going in the same direction, he says he blew his horn, that he whs in the center of the road and passed about one foot sway, the horse got scared, swung into his truok, he hit right in the center of the truok, his truok had wings on the side, put there to place a load on .the truok, so when the horse swung into the truok the baok of the front shoulder got stuck on one of those 'wings, th6 horse was still going s-fter he got hit and still swung to the left and knocked- a box out from the tail gate of his truok with the shaft, the buggy upset, the horse broke loose and they' '«xcfc went after him, says he blew his horn about forty feet from where the aooident happened, he stopped after he hit the horse, he swears that before he hit the horse the horse swung into his truok towards the left,.he oould not stop . . ,in time, to prevent the aooident 'his 'truck/ but ^ stopped about ten feet frpm.whene the ao-oident' happened.

On cross examination:

Q. As a matter of fact jcgnuxfcxmBk you took a narrow ohanoe in passing that buggy? A. I had been passing so me.ny buggies or automobiles and if it had stopped still I would not have hit the horse or buggy.
Q. Did you hit this one? A. The horse swung into me.

He further testifies that he was going about seven miles an hour.

By the Court:

Q. What is the condition of that road? A. Pretty good road,
q. What kind of a truck Hits were you driving® A. International truck, you can only go fifteen miles an hour when you are speeding, I never speed a truck when I have a load.

The last witness, Champagne, knows nothing at all about the accident, one way or the other.

A careful examination of this reoord satisfies us that this truck, having boxes on its sides, going in the same direction as the horse and buggy, was going behind, had a perfect view of the situation, saw the horse and buggy going slowly along and instead of stopping, took chances going ahead at a rapid rate of speed, without blowing his horn, and evidently the boxes on the side of his truck must have hit the horse which witnesses testify they did, and so doing, damaged plaintiff to such an extent that the horse had to be killed xsi a day or two after the accident, it is certain that if this defendant had blown his horn, had taken proper precautions either by stopping or otherwise, the ao-oident would not hs.ve occurred; the driver of the buggy did everything in his power by turning the horse, he got as near to the dltáh as it was safe for him to do,to avoid the ao-oident, but could not. It is apparent therefore that defendant was to blame. The trial judge kiscxi saw and heard the witnesses and on questions of fact only when the evidence is conflicting, the judgment of the lower court will not be disturbed,

3rd Court of Appeal, Piazza vs. Ratitich, 396»

"The chauffeur of an automobile on approaching from behind a vehicle going in the same direction, and intending to pass it, should sound his horn to warn the drive.r ahead of such intention."

Hart et al. vs. John Bonura & Co. 12 Ct. of App. 171.

n1Shen a driver attempts to pass another on a public road he does so at his peril. At least he must be responsible for all damages which he causes to the one who he attempts to pass and whose right to the proper use of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as will bring disaster upon himself. "

Avegno vs. Hart, 35 Ann. p. 235.

"The mere fact that the driver of a horse-drawn vehicle do*es not get out of the way of an automobile approaoh-lng from the rear at a high rate of speed does not warrant a finding of ssntJtkhaiiisusjt contributory negligence on his part."

Sec. 406, p. 566, Berry on Automobiles.

The plaintiff has asked for an amendment to the judgment of the lower Court, claiming a greater amount of damages than allowed by that court, but we think maSax after a careful review of all the testimony found in this reoord, that the judge aquo has done substantial justice and hi 3 judgment will be ms.intained.

For the reasons assigned, it is ordered, adjudged and decreed, tha.t the judgment of the Court aquo be and the same is hereby affirmed, oos'ts of both courts to be paid, by the defendant.

-Judgment affirmed-


text:
    Lloyds' Appraisal Co. vs Louisiana Printing Co.

    No.8817
    Charles F.Claiborne,Judge.
   This a suit for servioes rendered.

Plaintiff alleges that by a contract dated February. 6th 19,31 It agreed to make an appraisement of defendant's plant for a fee of 14 cents for eaoh $100; that it completed said appraisal which amounted to $85,482.98 whioh entitled plaintiff to a fee of $119.68 which defendant refuses to pay.

For answer the defendant' admitted the contract,but denied that the plaintiff had performed his part of it.It averred •pecifically that its contract with plaintiff provided for the return to respondent of all appraisals,summaries,and data generally lent by it to the plaintiff for recheck purposes,which respondent is entitled to under the said oontract,needs,and desires ; and that the plaintiff nevertheless,declines to return the said data,thereby not .only not completing its oontract with respondent,whether otherwise completed or not,but actually being guilty of its breaoh with respondent" ; and it prayed in recon-vention for "the return of the said data lent plaintiff for recheok purposes.

There was Judgment for the plaintiff and rejecting defendants demand.

This oase turns upon the interpretation of the following clause of the oontract:

" In consideration of a reduced price made for allowance of any former appraisal and plans,we are hereby granted full use and possession of such data for recheok purposes;said plans and summaries to be returned to you,the book to be supplementary tC our field notes and filed in our fireproof vault'so as to make a complete reoord for your protection.

February 5th 1923.

The defendant,in accordance with its contract,delivered to the plaintiff a former appraisement of its plant for the year 1920 made hy the Lloyd Thomas Company.

The plaintiff contends that under the above clause of the contract it is entitled to keep possession of that apprai-sement. The writer thinks that he has not such right.But his colleagues are of a different oponion and think that even if the plaintiff has not such right,that the defendant suffers no injury from the plaintiff retaining the appraisement.

In the testimony of H.L.Hebert,President of the defendant Company,we find the following languages

Q So the only thing they have not returned to you is the actual inventory itself V
A That's it.
Q, And that was the only reason why you refused to pay this bill,as you stated to them,I believe i
A Yes,sir.

It is therefore ordered that the Judgment appealed from, be affirmed.

Judgment affirmed.


author: WIH.IA1Í A. mi, Msi.

text:
    COMMERCIAL PRESS & WAREHOUSE COMPANY VS MORRIS FEITEL
    NO. 8819
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
    FEBRUARY 5, 1923.

   Opinion >7

WIH.IA1Í A. mi, Msi.

SO.alzj.tiff sues defendant for 1 amago» to the roofB of it» two certain cotton warehouses in this city contiguous to §he old. water-works plant, which defendant was demolishing by dynamite blasts. It is charged that because of defendant's negligence in the conduct of the said dynamite operations, bricks and other debris were blasted and thrown on to plaintiff's property, resulting into-perforation of the roofing on plaintiff’s buildizige, the repairing of which cost plaintiff $118.17, the amount herein sued for* Exceptions of vagueness and no cause of aotion were coupled with defendant's answer, in which he admits conducting blasting operations on the locality mentioned and also avers that he offered to repair the damage claimed, if any were suffered, but denied that said damage was due to ary negligence on his part. He further alleges that had he been permitted to repair the damage, same could have been done for a nominal amount and for very much less than the sum sued for, whidh he olaims is sxoossivs. It is also urged by suppleiBental answer that plaintiff failed to nut him in default before having the repairs made, This is an action ex delicto and such oontontlon is without merit. Defendant appeals from a judgment as prayed for.

ffe find no vagueness in the allegations of plaintiff’s petition. Defendant's counsel argues that the petition fails to support a cause of action in that nsgligenoe, though averred, la not specified sufficiently to charge defendant with definite acts of omission or commission by which liability could arias. Where one, to the prejudice of his neighbor, engages in operation or works of suoh a nature as might ordinarily result in damages to others, the manner of conducting suoh work is peculiarly within the knowledge of the operator and necessarily imposes on him the burden of proving, without feeing charged with specific acts, that through no negligence or fault of his has the damage arisen. Lykiardopaulo v. N.O. & C. R. light & power Co., 127 La., p. 310. There is abundance of authority to the effect that while the use of dynamite is not in itself an aot of negligenoe -per se. he who elects to^ employ the same as a matter of convenience in demolishing buildings in a populated district must respond to damages resulting from the use of dynamite or other explosive whether or not said damages were due to negligence on the part of the user. This doctrine is clearly stated in 25 C.J., P. 192, as follows:

"One lawfully engaged in blasting operations, is, according to the weight of authority, liable without regard to the question of whether or not he has been negligent, whereby his acts in casting rooks or other debris upon adjoining or neighboring premises or highways, he causes direct injury to property-* * *"

See also 34 L.R.A. (N.S.) P. 211, 212; 11 R.C.L. , Section 27, P. 673.

The City Engineer, one of defendant's own witnesses, has conclusively established that the blasting operations which caused the damage in this case were improperly or at least injudiciously conducted, and the sole question for determination now is the amount which should be allowed as reimbursement for the nedessary repairs, lío evidence of which this Court should take cognizanoe has been adduced at the trial in the lower Court to support defendant's contention that the extent of the repairs were unnecessary or that the charge therefor was excessive. There is positive proof that almost immediately after the work was ooiipleted, defendant was allowed to have the same inspected and was given an opportunity to pay the Mil rendered for the repair». This is all the consideration whioh could reasonably have been accorded him, and he having failed in the trial of this case to 'prove the unreasonableness of the price paid for the repairs, we are of the opinion that he has been justly taxed therefor in the judgment of the trial Court.

XT 18, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment herein appealed from be and the same hereby is affirmed at defendant's costs in both oourts.

FEBRUARY 5, 1923

JUDGMENT AFFIRMED.


author: WILLIAM A. BELL, JUDGE

text:
    BROOKLYN COOPERAGE CO. PLAINTIFF vs. PAUL PIAZZA, DEFENDANT
    NO. 8820.
    COURT OF APPEAL FOR THE PARISH OF ORLEANS.
    WIDE I AM A. BEDD-, JDDGE
    January 22, 1923.

   WILLIAM A. BELL, JUDGE

This suit involves counter-actions for damages "by two owners of two certain motor trucks, arising from collision of said trucks at the corner of Burgflndy and Frenchman streets in the city of 2Jew Orleans. There is no dispute between the litigants as to the nature and amount of the damages sustained. The Trial Court dismissed the main action at plaintiff's cost and also the demand in reconvention at cost of defendant and plaintiff in reeonvention. Both plaintiff and defendant in the main action have appealed.

Questions of fact are mainly involved in this suit although it is to he determined as a point of law, which of these litigants had the right of way. Each charges the other with gross negligence, with excessive speeding, and each claims to have had the right of way. The plaintiff pleads especially the City Ordinance which is filed in evidence and made part of the record particularly section of the general traffic ordinance number 6173 C. C. S. and amendments thereto. The ordinance provides that vehicles traveling on Burgundy Street from Esplanade to Delery Street have the right of way over vehicles approaching on intersecting streets such as Frenchmen Street, and it further provides that all vehicles approaching right-of-way streets from intersecting streets shall, before crossing or turning into same, come to a full stop, nor shall any motor vehicle turn 'into any other street from an intersecting street at a greater speed than five miles per hour.

VJe find from the evidence in this case that the defendant's truck failed to come to a full stop as it should- have done upon reaching the intersections of Burgtíndy and Frenchmen Streets; that said truck, according to the evidence of defendant's own witnesses was going at the rate of about 15 miles an hour when it came into thé intersections of Burgundy and Frenchmen Streets. These facts are fatal to the defendant and plaintiff in reconvention and, clearly established that the driver of his truck was violating the traffic ordinance. We find on the other hand, that the plaintiff's truck while coming down Burgimdy Street, after passing the street above Frenchmen^was not going at any speed greater than 15 miles -an hour and that within 25 feet of the comer of Burgifndy and Frenchmen the driver of the plaintiff's truck slowed up,not exceeding 10 miles an hour. We further find that each driver of the respective trucks claims not to have seen the other's truck as the trucks approached each other at the intersections. Under these facts we must conclude that the excessive speed of defendant's truck when, reaching intersecting corners, and the further failure of defendant's truck to come to a full stop at said intersections precluded any possibility on the part of the plaintiff's driver to avoid an accident, dispite the evident negligence of the defendant's driver. In other words, there can be no application in this case of the doctrine of last clear chance.

For the above reasons we are of the opinion that there should be Judgment for plaintiff as prayed for.

It is therefore ordered, adjudged and decreed that the Judgment herein appealed from, be and the same hereby is reversed, and it is now oraerea that there be Judgment for the Brooklyn Cooperage Company, Plaintiff against Paul Pizza, Defendant, in the sum of One Hundred and Forty-eight Dollars and Seventy-one Cents (fl48.71) with legal interest on said amount from date of judicial demand and fo-r nil costs in both Courts.

JUDGMENT REVERSED

January 22, 1920


author: Dinkelspiel;

text:
    NO. 8821
    COURT OF APPEAL PARISH OF ORLEANS
    AMERICAN TRADING CO. versus UNITED FRUIT CO.

   Dinkelspiel;

Plaintiff institutes this suit against the defendant, alleging that he shipped through the Steamship Parismina, April lstj 1930, one oase of hardware, marked "A. T. Co, No. 4, Colon", and that defendant issued to plaintiff s, hill of lading covering _fhi^ shipment. Aiagg Alleging further that the case of hardware delivered to the defendant oompany was never delivered to plaintiff up to the time of the institution of this suit, and that the value thereof was $331,03. Thot plaintiff filed claim with defendant company for his loss and furnished an itemized statement, said olaim being acknowledge hy defendant and although amicable demand |iad been made defendant refused to pay the amount due, hence this suit.

Defendant in its answer admits that on April 30th, 1930, it accepted said goods belonging to plaintiff, which included one case of hardware for shipment from New Orleans to Colon, through the Steamship Parismina; further the defendant contends that said shipment was aooepted subject to the terms and conditions of the bill of lading issued by it covering said shipment, same being dated on April 30th, 1930, and being to the order of the shipper, consigned to plaintiff, and that the terms and conditions of said hill of lading were well known to and consented to hy the plaintiff Alleging further that the shipment was made subject to the terms and conditions contained in the bill of lading issued therefor, and without quoting from same it appears that the claim of plaintiff unless presented in writing within thirty days after delivery of the goods to the initial o&rriier therein, nor unless suit therefor is commenoed within six months after delivery of the goods to the initial carrier and the lapse of suoh period shall be deemed a complete bar to recovery in any suoh suit ax -and notwithstanding. the carrier would be a non resident at or a.foreign corporation, nothing shall he deemed a waiver of the conditions of this artiol'e, except an express written waiver slgnpd hy the carrier. And defendant avers th'-t no suit for loss of said shipment was brought within'six months after the delivery of the goods to defendants; hence plaintiff is barred from any recovery whatsoever. Defendant tendered to plaintiff the sum of Sixteen Dollars,.alleging that no further recovery can be hs.d for the rép-son that no valuation was cited in said bill of lading xxsx other than the sum of eight dollars per cubic foot, as .provided in the paragraph above quoted, and that said goods did not oooupy more than two cubic feet iffherefore prays that there be judgment in favor of defendant, disT missing plaintiff's suit at its oost.

The issues of fsot -presented in this oase are virtually admitted, but the question presents itself, first, s.a to whether or not defendants undertook direotly or indireotly to arrange settlement with plaintiff and lulled plaintiff to sleep or mislead plaintiff in promising settlement of his claim.

A oareful examination of this reoord oonvincee us that contention. there is nothing serious in this/

A claim of loss wa-s noi m'ade known to ’the defendant oom-pany for sometime after the loss was sustained and subsequent to prescription the / ■ period, which in this os.se was six months. Mr. Ellis, the Vice President of the Company, through his-letters 4n-desvored in a friendly way to intercede with the company's officers in Hew York to allow some damage’for the loss of the shipment. In this he failed, which fact was known to plaintiff. It was .in no spirit of waiver that Mr. Ellis undertook to get, after the claim prescribed h^d been/ something more fvom the company than they were willing to allow. Henoe we are of the- opinion tha.t the plaintiff** xarnc .claim took offeot as above stated; that Mr. Ellis or his oOm-pnny acknowledged an indebtedness has not been proven to our satisfaction/

The authorities are uniform and we quote them:

Civil Code. On the Privileges on Debts and Merchandise.

Art. 3237, Sec. 11. The .amount of damage due to freighters for the failure in delivering goods whioh they have shipped are for the reimbursement of damages sustained by the goods through the fault of the captain or orew.

An agreement fixing a limit of six months within whioh to oommence an action against the oarrier for damage done to a shipment is not unreasonable. It is in accord with the spirit' if not the letter of the Civil Code, v/hioh provides that the privilege granted upon debts for the damage done to cargoes shall be pre-scrdbed in six months.

Caraway vs. Insurance Co. 35 An. 298.

Edson vs. Insurance Co. 95 An. 353.

A olause in ?. contract between individuals neither being under any obligation to serve the oth^r, limiting the time withiA which suits may be commenced uoon a cause of action for the amount of said,oontrs.ot is not oontrsry to l«v/ or publio policy.

Bordelon vs. La. Ry. & Navigation Co. 12 Ct. of App. 405.

A pies of prescription is vslid and will be maintained when the facts justify its applies tion in. support of a- stipulation in the accident policy thst no suit shell be hxagghtxxga brought nor action commenced after two yesrs from the time when the right of action shall ocour.

Clars Martin vs. National Life and Accident Insurance Co. No. 8580 Ct. of App.

One who pie?.ds estoppel must show thefc he we.s mislead seeks to his prejudice by the act or conduct upon whioh he/ to found the estoppel.

Gallegher vs. Conner, 138 La. 649.

The next contention made by plaintiff in its brief was that the Federal Statutes 1930, that it shall be unlawful for any suoh common carrier to provide by rule, regulation or otherwise, a shorter period for giving notice of claims than ninety days, for the filing of claims than four months and for the institution of suits two years, such period for institution -of suits to he computed from the day &g when notice in writing is g'iven by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.

The act referred to in our opinion does not apply to the case we are deciding, for the reason that the shipment in question was made wholly by water, and that the act in question S«ES±d«x refers to shipments by rail and possibly shipments by ral .and water combined. It is beyond question that in this ca.se the defendant is a. carrier wholly by water and whilst this question h88 not been squarely presented to any courts so far as we know in the United States, there have been issues which to some affect have oonstrued the act as we contend.

Armour Packing Co. vs. U. S. 209 U. S. 56, 78.

We further find that the Act of Congress does not avoid the public policy of this State; hence in our opinion no application to the issues in this -case.

For the reasons assigned, it is ordered, adjudged and decreed, ths.t the judgment of the Court «.quo be and the same is hereby annulled, avoided and reversed, and that there now be judgment for the defendant, plaintiff to pay oosts in both Courts.

Judgment reversed and annulled and judgment m fe.vor of defendant.


author: Dinkelspielj J.

text:
    NO. 8824
    COURT OF APPEAL PARISH OF ORLEANS
    CERILLE ABADIE VS. R. LEE

   Dinkelspielj J.

This suit is for rent claimed fey plaintiff against the defendant, the amount involved being for three weeks rent at five i — .dollars per week.

yN__ A reoonventional demand was filed fey defendant claiming * ¿he sum of §395.40, and the first exception raised by plaintiff on 7 the reoonventional demand, there feeing no dispute virtually as to the amount of rent oiaimed fey plaintiff, is that the reoonventional demand under the la.w, is not within the control of the City Court under the Article of the Constitution of 1931, Seo. 91, Art. 7, which reads as follows:

"Said Court shall have exclusive Jurisdiction ,±s* in all cases when the amount in dispute or the fund to fee distributed does not exceed one hundred dollars, exclusive of Interest, including suits for the wh ownership or possession of movable property not exceeding that sum in value, and including suits fey landlords fcr possession of leased premises, when the monthly rent does not exoeed one hundred dollars, and in oases of lease for a longer term then a month when the price of the unexpired term qf the lease at the time of filing suit does not eioeed one hundred dollars in amount.
Said Court shall also have jurisidction concurrently with the Civil District Court of all suits for moneyed demands above one hundred dollars and not e'xoeeding three hundred dollars, exclusive of interest.*

The Artiole quoted la plain and unambiguous and gives the First City Court of Hew Orleans of suits of the ohara ter now in controversy.

Questions of fact, irrespective and íxáqasis independent of the Artioles quoted above are only involved in this case, and as usual much controverted testimony, end witnesses pro and con were heard ahd the Judge of the lower Court hc-vlng seen' and heard the witnesses was in a better position than .we are to judge of the truthfulness of their testimony.

March 4th, 1923.

Whether or not plaintiff had the sight to close up defendant's shop, whether he did so or not are matters in dispute, together with the fact whether or not he did this and under whet that plaintiff circumstances. Defendant contends,/without any authority or right, nailed hoards across the opening of his place of business, prevented him thus from entering his own place, dropped off the employees of the defendant and injured his business so that he was compelled to remove from the establishment and set up elsewhere in the city of New Orleans in order to do his business, and gjkhsxxxtau otherwise and in every way injured, in fact virtually ruined his business* On the other hand plaintiff-and his witnesses testify that it was only after the defendant had removed fxs all his tools and instruments and after he had abandoned the premiseo and a,fter the place had been rented to another tenant, that the tenant who rented the place in order to protect himself against any suit that might be brought, had the place nailed up and finally went into it; that there was nothing there except the property mainly belonging to plaintiff.

It would be futile for tat us to enter ini^o this contra-verted question of faot. The Court aquo heard and sa.w the witnesses and he was undoubtedly the better Judge, having better opportunities than we have, to know whether or not the parties in interest and their witnesses were telling the truth, and we are of the opinion that his Judgment in this case giving the plaintiff the fifteen doll art demanded for rent and deciding- that the reoon-ventionál demand to the extent of fifty dollars should be *hMtx allowed defendant was oorrect in every particular*

For the reasons assigned it is ordered, adjudged anu decreed that the judgment of the Court aquo be and the same is hereby affirmed, oos.ts of both Courts to be paid by plaintiff..

Judgment.affirm ed.


author: Dinirelspiei; J.

text:
    NO. 8829
    COURT OF APPEAL PARISH OF ORLEANS

    WILLIAMS BURDON and CORNELIA BURDON versus WEST NEW ORLEANS LIGHT & TRACTION COMPANY, and SOUTHERN COTTON OIL CO.
   Dinirelspiei; J.

This is the second appeal of the Southern Cotton Oil Company, in the a,hove case in this Court.

In the first case between the same parties, together with the West Hew Orleans Light & Traction Company, another defendant in this case, we decided:

"Miiinteining en exception of no cause of action based merely on defective pleadings, end not going to the merits of the controversy, does not form the bssis of res adjudica.ta."
14 Court of Appeal, page 310. Illinois Central R. R. C. vs. N. O. Terminal Co. 143 La. 537.

Exceptions of no cause of action if not passed-on in the lower court will not be considered by the appellate court.

Gaudin vs. B. M. R. A. 140 Ls. 674.
Cunningham vs. Penn Bridge Co. 130 La. 196.
8366 Court of Appeal.

The allegations of plaintiff's petition substantially charge that defendants, Southern Cotton Oil Company, were irw debted to them for this:

That plaintiffs were the parents of Simon Burdon and that his Injury, suffering and death were caused by certain acts, carelessness and negligence on the part of defendants, and it is also alleged that by reason of their loss, the parents were entitled to damages, and that they acquired their right of action by the death of their son resulting from the said Injury.

To this petition defendants filed exceptions of no cause of right of action, which was maintained by the Judge of the Court aquo, and kix* his res sons for judgment were as follows:

Plaintiffs allege thst as father and mother of the deceased, Simon Burdon, they succeeded to his right of action - whereas th;e law provides that suoh right of action is given to the father and mother in default and to them only in default of widow and minor children.

The exceptions were maintained and plaintiffs' suit dismissed.

In a recent case, William Brewer et al versus New Orleans Land Company, No. 8166 of the docket of this Court, we held, quoting C. P. 906:

"If the court shall think it not possible to pronounce definitely on the case in the state in which it is, either because the parties have failed to produce the neoessary testimony, or because inferior oourt refused to receive it, or otherwise, it may according to circumstances' remand the oase to the lower court with instructions as to the testimony which it shall receive to the end that it may decide According to law."

It has been held that a oase will be remanded when a party to the suit through oversight or otherwise has omitted to introduce and file necessery evidence in his possession*

1st La. Digest, 437, 715, 729.

130 La. 765; 138 La. 839; 51st Ann. 1133.

When the reoord of a suit discloses enough to mix satisfy the oourt that the whole story of the case ts not told, that essential facts have luuac not been given in evidenoe, and important documents ex have been omitted, and that substantial justloe cannot be done between the parties in the state of the reoord as filed, the oourt will in its discretion in the interest of justice, remand the oase.

Snyder vs. Aetner Life Insurance Co. 30th An. 1198.

On exception of no oause of action the allegations of the petition are to be taken as true, xi, on the assumption that on the trial of the oase plaintiff has established all the allegations of his petition by proof, and applioation -of the law:invoked by him to those facts would entitle him to a judgment, it cannot, be said that his petition discloses no oause of aotion, though it be faulted for vagueness.

Goldsmith vs. Virgin 122 La. 831.

We are therefore of the opinion that the court, erred in its judgment dismissing this suit.

For the reasons assigned, it is ordered, adjudged and decreed, that the.judgment of the court a quo he reversed and ■avoided^jmd^l^lj^ase rem|gded^bo^the^opurt of the first instance, in order ifcx to hear and determine the case upon its merits, iaxE*dsxx*« the costs of appeal to be borne by the- defendant, the Southern Cotton Oil Company, and all the other-costs to await.the final decision of this suit.

-Judgment reversed and remanded.


text:
    NO. 8834
    COURT OF APPEAL PARISH OF ORLEANS
    Gulf Finance & Securities Co. vs. Globe Indemnity Co.

   Dinkelspiel; J.

This suit is instituted by plaintiff, alleging that the defendant company issued policy of insurance, whereby thqr insured piaintiff against loss resulting-from the conversion of automobiles upon whloh the plaintiff held chattel mortgagee, given by purchasers for such automobiles, to secur-e the credit portion of the purchase price. The bond of the defendant read as follows:

"How. therefore, in considers,tion of the payment of an agreed premium, Globe Indemnity Company, (hereinafter called the surety; does hereby agree to indemnify said Automobile Finance & Securities Company, (hereinafter called the obligee) against such direct pecuniary lose as the obligee may sustain by any act of laroeny, embezzlement or conversion of the purchaser, whereby the obligee is deprived of the security of motor vehicles listed in any schedules made a part hereof, as hereafter'orovided, either directly or through the connivance with others on tne part of any purchaser named in the said schedules."

Plaintiff alleges that it aoqulred twelve chattel mortgage notes executed by one 0. J. Douoet on February 11th. 1920. in part payment for the purchase price of an automobiife'bought by him; that it oald the premium on its policy; that the debtor paid the first seven notes, but defaulted upon the payment of the last five notes; that the dbbtor, in August, 1330 , violated the condition of the ohattel mortgage by selling the automobile to one Hsnselman, without recognition of the chattel mortgage; that the automobile was placed beyond the reach of the plaintiff, could not be found, and that plaintiff is aooordlngly entitled to compensation thereby suffered, under the terms of tne policy. Plaintiff prays for a Judgment KX for §198,41, being the amount of the five unpaid notes-, plus interest at sight per cent thereon from October 11th, 1930, and for the sum of 110.46 detective charges.

The defendant claims, flrsi;, termination of liability under the policy as to its risk prior to the making of the claim. Seoond, failure to comply with the requirements of the policy as to the giving of immediate notice of the claim thereunder.

Defendant further contends that the policy in question is subjeot to the further conditions: "The liability under this obligation shall begin v/ith the day cf the purche-ae set opposite the name of the purchaser in any shhedule made part hereof, and 3hall end it the expiration of one year from date of purchase, as shown in said schedule”, end under clause seven contend "Upon disoovery by the obligee of any act which may be made the basis of 2, '■lo.im thereunder the obligee shall give immediate written notice thereof to the surety c.t its branch office in Hew Orleans, and affirmative proof of loss shall be filed with the surety at said jgranch office in How Orleans within three months thereafter. "

It would be futile and serve no good purpose to quote any portions of the testimony in this case, save such as mxi are material to the issues, in our opinion.

Plaintiff has offered in evidence, the act of sale of the automobile in question, which oontains the ch-ttel mortgage and in connection therewith has offered the five notes sued upon. The act of mortgage sho\vs that in addition to the notes sued upon bearing eight per cent interest from date until paid, there is also fifteen per cent attorney's fes3 part of the act.

The testimony shows that frequent letters and demands were made by plaintiff for payment of the notes given by the purchaser Douoet, and the letters contained the statement that if the notes were not promptly paid proceedings would be taken to enforce collection, and the privilege and lien'plaintiffs held against the automobile im question. It is further shows that when suit was instituted against Douoet by executory prooess to enforce the lien that the Sheriff failed to find the automobile in question in the premises of Douoet, who in the meantime had disposed of the car to one Hanselman, and the latter had also disposed of It to someone else, without stating anything In reference to tne mortgage and lien, ana every attempt mads to ascertain where tne car was located, both by the employment of the deteotive agenoy, by tne Sheriff, end by the plaintiff, proved unavailing. The evidence shows that notice was given in writing to the aeienaant oompany of these facts, there was some auestion as to wnetner nr not the first notice sent was or w»s not received by the defendant oom-ststed pany, on the one iwud it was^atosix that the letter was written and mailed, but the defendant's officer in charge of matters of this character denied receiving the letter. The detective's report was olso sent to the defendant company.

The witness Hanselman testifies-that he laxa bought from Doucet the car in question, he bought it in August, 1920, did not know there was a mortgage on the oar, haa paid cash for the car. he kept it for thirty days, then sold it, he bought the oar in the c-ity of New Orleans and sold it there also.

We take up for consideration, first the defends made that failure to comply with the requirements of the polioy as to the giving of "immediate notice"of the claim thereunder.

It is urged with great force both in the brief and in the oral argument of defendant's oounsel, that the notioe given of the lev-1 of this ms chine was not given as required by the stxp-ulati's-s in the insurance contract* where it is required that "the obligee upon discovery of any act which may be made the basis of a claim under the policy, shall give immediate written notice thereof to the surety st the branoh office No. 506 Liverpool & London & Globe Building, New Orleans, Louisiana, and affirmative proof of loss shall be filed with the surety st its said branch office within three months thereafter", and numerous authorities ere cited in support of this propositition.

Without quoting the decisions referred to by oounsel in this regard, we prefer to rest our opinion as to the words used, "Immediate notice to be given", cn the decisions of the Highest Court of the Land, together with others, in the same connection.

"In an action brought by the receiver of a national bank appointed by the Comptroller of the Currency upon a bond of indemnity given to hold the bank harmless against fraud of a specified officer, it was contended that the court erred in admitting in evidence a notice of the default of the officer, given to the surety company by the receiver within from ten to seventeen days after the discovery of the default, and in instructing the jury that the requirement in the bond that immediate notice should be given of 'i default was fulfilled by giving notice o.s soon as reasonably practicable and with promptness, or within a reasonable time. Held that the trial court did not err in refusing to instruct, :s a matter of lew, that the notice v;fn3 not given as soon as reasonably practicable, under the circumstances of the case, cr without unnecessary delay, and in leaving the jury to determine the question whether the receiver had acted with reasonable promptness in giving the notice."

In the body of its opinion the Court said:

"The notice by the receiver to the surety company that McKnlght was a defaulter was given on Februcry 18, 1897. It follows ths.t the notice was given within ten to seventeen days after the first discovery of s default. Both the trial court end the Circuit Court of Appeals, reviewing numerous authorities, held that the requirement in the bond "that the employer shall immediately give the company notice in wri ting of the discovery of any default or loss" ought net to receive the construction ths.t it was intended by the parties that notice of a default should be given instantly on the discovery of a defrult, but that what wss meant was that notice should be given within a reasonable time, having in view all the circuías cnees of the os.ee. In so deciding ws think the court did not err.. Indeed, this construction of the word "immediate" would SS3m to be apollad in practice, as is illustrated by the bond, of indemnity considered in the case of the Guarantee Co. vs. Mechanics' etc. Co. 183 U. S. 402, where one of the conditions was "that the company shall be notified in writing of any cot on the part of said employe which may involve a loss for which the company is responsible hereunder to the employe immediately or without unreasonable delay." Citing Ward vs. Maryland Casualty Co. 51 Atlantic Reporter, 900, where the court defines the word "immediate" as used in the policy "without any time intervenihg.; without any delay; present; instant; often used, like simil'-r absolute expressions, with less strictness then the literal meaning requires, as an immediate answer." It is evident th'-'t the word was not used in this contract in its literal sense» It would generally be impossible to give notice in writing of a fact the inst'-nt it occurred. It cannot be presumed ths.t the parties intended to introduce into the contract a provision that would render the contract nugatory. As immediate vies understood by them, it alloved the intervention of a period of time between the occurrence of the fact and the giving of notice mere cr les: 1-ngthy according to the circumstances. Ths object of the notice v/os one of the ciroumitsnces to b considered. If it was to enable the defendants to take steps for their protection that mu’t necessarily be taken soon after the occurrence of the fact of which notice wa3 to be given, a briefer time would be required to render the notioe immediste according to the understanding of the pi rties then would he required J>f the object could be equally well attained after considerable daisy. For example, s delay of weeks in giving notioe of the commencement .of the employees suit might not prejudice the defendants in preparing for a defence of the action, while e, much shorter delay in giving notioe of the accident might prevent them from ascertain’ng the truth about it. The parties intended by the language used that tne notice in eeoh case should he given so soon after the fact transpired that, in view of all the circumstances, it would he resson-bly immediate. If a notioe is given with due diligence under" the circumstances of the c.?.~e, and ■ ithout unnecessary and unreasonable del.°y, it will answer the requirements of the contract.1' Citing numerous authorities.
Fidelity & Deposit Co. vs. Courtney, 186 D. S. Reporter 343-45-46-47.
Conrad vs. Also g-e/Uhion Casualty & Insurance Co. 49 La. Ann. 636.
Also see Fisher vs, Globe & Rutgers' Fire Insurance Co. 147 La. 990. et seq.

Other authorities on the s-une subject matter, quoted in plaintiff's.brief, amongst then, American Surety Co. vs. Pruly 170 U. S. 133 et ssq. and authorities from the Supreme Courts .construing the of the different Stated of the union, panatruaingxiha word "immediate" are all to the like tener snd effect.

To the first objection, the termination of liability so to its risk prior to /.-.sting of the ol~ira.

The oh«ttel mortgage given by Doucet contained the pact "de non tli:ni.ndo". In .August, 1330, the proof shews, that Doucet in violation of the t-rms of the mort. age, -sold the oar to Eons el-man, who in turn diopos-d of it to someone else. The.testimony further shew th".t the pic intiff did not discover thl3 act of cen-versicn until the following limrch, 1931, and subsequently the notes being p*st due it filed its suit for executory process and endeavored to seize She c-'r; the Sheriffs return showed the o-sr could not be found; then the notice claiming the amount due under the policy w:.s given to defend».nt company.

1!'e ere of the c-in ion th--t .th-=> notice, given -:~3 in accordance with the terms required by the In-uworo? Coaprny, and was given in time under the policy. When pit-intiff .11s-covered its security on the c.r in q; action fexdxx h».d vanished, through the acts cf the our oh: ter, in the s-1? ts 13 -nvelm-.n, it .v-e covered under this policy, and defendants -.re liable under their bond for the loss. Every effort the t could Ir ve boon a.,ds by plaintiff in order to rcccvcr the property econ >;.3 they ascertained tiio facts, ond more then tV-t could not b ys- r the jyclicy defend -n ¡d, end vs th»t •-s If-ble.

The next objection, where the terms of each note provided for maturity of all notes on default'in payment of-any one note, end all notes bear interest from maturity, Interest will be allowed on all the notes from the date of the first default, it requires no special argument to show that natoikk notwithstanding letters contained a demand for payment of eaoh note, that thsxs that did not waive the fact provided for in the mortgage that the maturity of the several notes were thereby waived by the plaintiff» The.notes speak for themselves and together with the act of mortgage constitute the right to oolleot the eight per cent Interest on the notes in question.

The further objection is made, that where in the body of the petition a claim is made for fifteen per cent attorney's fees' in' addition to the principal demand, and the evidence shows that these fees are due;although the prayer of the petition may omit to-ask for judgment for them they will be allowed under a prayer for general relief.

In this connection there are many cases in the Supreme Court of this State, commencing with the '5th Ann. Police Jury vs. the Corporation of Shreveport, 661; the case of Overead Berney & Co. vs. Robinscn et al, 10 Ann. 738, Smith vs. Cocoran, 7th La. 46; Edwards vs. Smith 10th Ann. 536, and many other authorities to like effect covering this objection, and we are of the opinion that the mere omission in the prayer to a.sk for specific relief is ooverea by the allegation in the petition"which demands the relief covered both by the notes themselves, and the act of mortgage accompanying same.

Having reviewed hoth the evidence s.nd the law as we find it appertaining-to1 the questions herein involved, and construing them, ae we-helive jústioe demands, we are of the opinion that, the Court aquo decided" correctly the issues Involved in this case.

For the reasons assigned, it is ordered, -’ijudgsd and d'-.or 'Odj that the judgmem; of tha Coürt caquo be and the same is horabr ."f firmed, c-'vis of both court-, 6c be p-....id by the defendant.

-Judgment affirmed-