author: WILLIAM A. BELL, Judge

text:
    GUS MAYER COMPANY, LIMITED VS DR. PARK HOWELL
    NO. 8699
    MARCH 19, 1923
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
   WILLIAM A. BELL, Judge

This is a suit upon an open aooount for balanoe due on the price of goods alleged to have been sold and delivered to defendant. The answer is a general denial. From a judgment in favor of defendant dismissing plaintiff's suit, plaintiff appeals. The nited account sued upon and annexed to plaintiff's petition is shown to have run from October of 1918 to Hovember 6, 1919. Several cash payments, one in 1918 and two in 1919,appear to have been made on said aooount, leaving a balance due of $143.58. Plaintiff has offered no proof whatever showing delivery of the goods to the defendant, and because of this fact it may be that the judgment appealed from has been rendered. However, we are convinced from the testimony of one of plaintiff's witnesses and from the defendant’s own testimony and admissions, that he was fully aware of the existence of this aooount upon the books of the plaintiff company and that he made full and sufficient acknowledgment of the debt to legally obligate himself for its payment.

The evidence discloses that in October, 1922, the aooount was placed in the hands of a young man conductlng a collecting agenoy. This witness' testimony is to the effect that after making demands for payment through the mail, he finally phoned defendant ani d®a questedX‘. him to call at an appointed hour at defendant's office. The result of this interview is related by the witness as follows:

"ft,-Will you explain to the Court what transpired between you and Dr. Howell-?
"A.-I called on Dr/ Howell in regard to this aooount and he said the bill was absolutely correct and 'I acknowledge it and I want to pay the bill, but I cannot pay it right new. I have just obtained a position with the school board and have been practicing in the country and, therefore, have not built up a large practice in Hew Orleans,' and he said if I waited until June that he would pay it, and he said he did not dispute the bill, and he wanted the Sus Mayer Company to give him some time to pay it.
"ft.-So he never denied it, he acknowledged it?
"A.-Tes, sir, and I told him that my client ' would not give him any time, and he said they would have to take action."

Shis same witness on cross-examination further testifies:

"Q.-What did he say?
"A.-He said 9The bil'l ia dus and I am willing to pay it, and I de net want to beat the Gas Meyer Ce. out of a cent and all X ask them te do is te wait trntil. the summer months, or June, and X will make arrangements te pay.”

She defendant, on diroot examination, denies that the goods were ever purohased by er delivered te him or that ho had any knowledge of the existenoe ef the account upen plaintiff's books, or that he ever received the monthly statements which plaintiff's bookkeeper swears were mailed to his offioe address, but he admits the interview with plaintiff's collector and testifies concerning this iaterview as follows:

"Q.-You remember Mr. Cenfflery calling on you, the gentleman who just left the stand: '
"A.-Yes, sir. '
"Q.-Did Mr. Cenfjery make a demand on you for this account?
"A.-Yes, sir.
"Q.-What was your answer to his demand?
"A.-I told him just as he said, that I 'could not pay. _
"ft.-And that' you would pay it in June:
"A.-If the bill was correct and if it 'was a just bill and I owed it. X did not want te dodge it.
* a * *
"Q.-Well, what did you say in reference t® June; why .did you make that statement if you did net ewe than amount te the Gus Mayer Co. ltd?
"A.-Because up te this time X had be*n unable te pay.
* * * *
"Q.-Just explain what you told Mr. Gentry at the time he made demand on you?
"A.-I told him that I was unable te pay the bill; that I had been in difficult circumstances financially, but that I was getting in better circumstances new, and that in the summer time I would be able to pay the debt, and if this debt waB perfectly fair and just I would settle it.
"Q.-You never denied the debt:
"A.-I did not know anything about it.
"Q. -Why should you make an admission of it if you did not know anything about it? You dld.net deny it. Yen simply said you would pay it in June:
"A.“I did not knew whether it is a proper charge or net."

Ho ether oonolusien can be drawn from the above-quoted statement» than that the - defendant was fully aware of this account and undeuht edly recognised the same as due and owing, but attempted to preeure further indulgence from plaintiff for the payment of same.

Counsel for defendant stresses in his brief the oo&dl provision of Article 2278 against the admission of parole evidence to prove any promise to pay the debt of a third person. The ebjeetlo) is plainly not applicable to the case before ns for the reasons that there is no issue raised here that the account in defendant's muse, was in fact created by or upon the alleged verbal premise on his part" to pay any debt contracted by a third patty. There is nothing in the' record to disolose timely objections te the admission of any such testimony as would establish such faots, even had suoh evidenoe been offered, nor has defendant attempted to either plead or prove that the debt sued upon was contracted by seme third party in his name and without his sanction or authority or that the goods were sold or." delivered to anyone other than himself. His own testimony is clearly: to the effeot that he told the collector he was unable te pay the - debt at the time demanded, but that he would be able te de so at a later date and would settle if the debt was perfectly fair and just. It may be added that he has failed either te plead or prove that the debt is not fair nor just, but on the contrary that he has clearly admitted the same bo be due by him. We are not concerned as to defendant's willingness to pay, but only as to.his liability, which, in. our opinion, has beun clearly established by a preponderance of evidence.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DEGREED that the judgment herein appealed from dismissing plaintiff's claim'be and-the same hereby is reversed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that thert now.be judgment in favor of plaintiff, Gus Mayer Co. Ltd., and against Dr. Part Howell, the defendant, in the sum of $148.63, with Interest, on said amount from juddial demand until paid, and for all costs in , both courts.

judgment reversed.

MARCH 19, 1983.


source: Caselaw Access Project

author: Charles F.Claiborne,Judge.

license: Public Domain

text:
    May Lavigne vs Armour and Co. Ltd.
    No.8702
    February 19th 1923.
    Charles F. Claiborne, Judge.
   Charles F.Claiborne,Judge.

Plaintiff sues the defendant for damages done to her oar by defendant's truck in a collision.

The facts are as follows;

The plaintifg was driving her car " on the left hand tracks or near the track in the center of ” St.Charles Strset s defendant's truck was running ahead of her;when defendant's truck reached the comer of South Street, the plaintiff alleges that,without extending his hand,the defendant's ohauffeur turned his truck to the left and checked spged to go into South Street ; that in order to avoid a collision she steered her oar ■to the right in an attempt to stop;notwithstanding her efforts the hind left side of her car came in violent impact with the left hind .part of defendant's truck,with the result that her car was injured to the extent of |150.00.

A lady who was riding on the right side of the front seat of plaintiff's car,also testified that the chauffeur of the truck extended his hand only after he had partially turned.

The defendant's chauffeur,oh the other hand swears that he was driving up oh the right hand side of St.Charles Street,and when he reached Soule College he crossed over to the left or other side of the street,and within fifty feet-Df-South Street,extended his hand to indicate his intention of tsaning/r into that surest.

Another witness who was standing at the comer of St. Sharles and South Streets,saw defendant's chauffeur cross St. gharles Street and at a distance of fifty feet from South Street extend his hand.We see no reason to discredit the veracity of this witness.

It is to be noticed that neither the plaintiff nor the doThnda~it Irns introduced the City Traffic ordinance requiring o~mi4Teurs to extend their hands before turning into a side atr~aOt,anc~. that there i~ no oommon law of the road requiring such practice.

But if we were tp assume that it was the duty of the truck's cbau~Teuz,uuder any recognized.law,t,,o sO~xtefld his hand, the beat that could be e~1d waa that the t~.n wae left in ~oubt.Whi1e that Is t~ue,the law i~ that a~fix~m~tive testImony prepondovates over negative.It might well be that neither the p1a1nt1fi~ x~or her I,acly friend saw the extended hand,especially the 1att~r who was oooupy1~ug.a ri~it ~nd seat,an~ whoao view of the thauffeur,on the left of the truck w8e imperfect;and yet the bend might bave been extended.These ladies could not be proaeoute~ for perjury.But not BO. with the defendant'e witnesses who Bwore. to the e~d.stonoe of a faot,whioh,if true m±ght be the basis of a criminal proBeoution.l H.D.-857 ( D ) No.12 -~ A 800 36 A 84-39 A 955-344-332 A 39 A 352-40 A 741-45 A 331 -46 A 570 47 A ~B3 _3)7 A 2b8-14]. La 1~2-].~ A 318-172- 1 Breaux 378,-2 Evan's Pothier P.193,453 -107 a 402-30 A.E.E.Law 1071-26 A 676 (678) 38 A 952 (955) 123 La 696-124 La 769 (77~3) 126 La 263 131 La 211 (217) 51 A 168.

But 1rrospoot~vo o±~ that ooufllct,plathtlff,at th~ time of the accident was on the wrong side of the street.She was driving on the left side.In the case of Lee vs Foley 113 La 669 the Court said: " It is custom which governs,of which Courts can take judicial notice,for vehicles to drive to the right of the road.

And in Schick vs Jenevein 1454 La 338 the Court quoting Elliott on Roads said :

One ~ho vi~1atee the law of~ the road l,y driving on the wrong aide o±~ the way asaumes the risk of' ~11 such experiments, and must use greater care than if he had kept upon the right a~Ae or the roa.djf a ool]~iaion ta~s pLaoe,the presumption is generally against the party upon th~ wrong sid&'

Plaintiff must make her ease certain.If she was negligent as well as the defendant s,he cannot recover 35 A 1135-1191 39 A 790 -46 A 1556-47 A 25-721-1395- 49 A 588-2 H.D.1054 (C ) 26 A 72-33 A 1422-42 A 1053 .

The defendant was not upon the wrong side,as he had to get there to turn into South Street.

It is therefore ordered that the judgment herein he reversed and avoided,ana the' there he judgment in favor of defendant rejecting plaintiff's demand at her cost in hoth Courts .

Judgment reversed.

February 19th 1923


author: Dinkelspiel; J

text:
    NO. 8709
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES PITCHER ET ALS VERSUS BOYLAN'S DEFECTIVE AGENCY
   Dinkelspiel; J

This is a damage suit.

The pertinent allegations of plaintiff’s petition are that on or about April 14th, 1931, at about seven P. ?4. on Eighth and Coliseum Streets, in this city, plaintiffs' minor son, for absolutely no cause or reason, wa3 brutally assaulted by William White, an employee of the said defendant partnership,' was acting within the scope of his authority. Averring further that said partnership aot as watchmen and private policemen for the purpose of guarding the houses of those who employ the said defendant partnership , and that Willism'White was one of its watchmen or employees or private' policemen, and was engaged in his duties as private policeman or watchman on that day and hour set forth, guarding the houses in the. vicinity of Eighth and Coliseum Streets. And alleging further that at the time mentioned the said William White, while in the discharge of his duty as private policeman or vfstohman and acting for and being employed by said defendant partnership, he met four or five boys, all about the age of petitioners' min- or 'son, on the street, where they had a right to be, on the Corner of Eighth and Coliseum Streets, there .being nothing suspicious abotit the boys end the boys being engaged in no mischief or violation of the law, just waiting to go book to sbhool to study, were not making any noise nor doing anything to render them suspicious, when without any cause or reason or provacation of any kind or character, the said William White brutally assaulted and beat petitioners' minor son, rendering him unconscious and inflicting the injuries hereinabove cong>lained of; and th't said William White was drunk and intoxioeted and ■ that one of the residents of the neighborhood, Hr. Westfeldt whose home this men, Wllliem White, was' supposed-.to b.e guarding, telephoned to said defendant flelling them that said William White was drunk and in no fit condition focxihdqtx for 'duty and to perform the servioes required-of him.

The followed the usual allegation of suffering and the injuries alleged and prayer for a judgment.

To this petition defendants filed an.exception that petition disolosed no cause or righu of action against the defendant, Boylan's Detective Agenoy, and Protection Polioe, and preyed for judgment dismissing plaintiff's suit at their costs.

On the trial of the exception the Oourt • - sons orally assigned, considering the exception of '.v raise of action filed by the defendant to be well founu,. .. ....omissed plaintiffs' suit and rejected their demand at their costs.

Subsequently on motion for new trial the motion was overruled, and from that judgment there is this appeal.

The Civil Code, Art. 3517. "Liability for acts of others and things in our charge. We are responsible not only for the damage occassioned by our own act but for that which is oeused by the act of a person for whom we are en"bw enable or of the thing which we heve, in our custody."

Art. 3330 of the Civil Code provides: Masters end servants. Masters end employers are answerable for the damage oocassioned by their servants end overseers in the exercise of the functions in which they are employed.

■In the case of Williams vs. the Pullman Palace Company et sis, 40 Ann. 417, the questions presented snd decided were: 1st, Can .the Railway Co. be held liable for the e.ots of an employee of the Pullman Co. under any oironmsttnoes? 3~>,d, Was plaintiff a trespasser on the Pullman car when he was struck by the porter or was he entitled to the full protection of the Railway Company is one of its passengers?

And at page 419' the Court goes on to say in the body of its opinion: "The general principle is S3: well settled that to make one person responsible for the wggVfrggraey negligent or tortuous act of another, the relation of principal and egeht or master and servant must be shown to have existed at the time and inrespeot to the transaction, between the wrongdoer and the person sought to be ohe.rged. The defendant relies upon the-absence of this relation between the porter >-nd the company as conclusive against its liability for his acts, but we a-re of the opinion th?-t this dsfantonixi defense is not ave liable to the defendant, or rather that the persons, in charge .pullman of .the/di»taeac»D«jac car are to be regarded and treated in respeot to their relations with passengers,, as the ser.ye.nts of defendant end the defendant is responsible for ’their e.cts¿ the the same extent s-s if they were directly employed by the company." And the Court there, cites authorities both from the Supreme Court of the United States, together vd.th the highest courts of many states of the union, in support of the doctrine announced.

And sxxias gain at page 433, "The preponderance of the -evidence on tho.t point although very conflicting shows to our entire satisfaction’that plaintiff did ask permission of the porter to wash his hands, and after an exchange of a few unpleasant words, the porter struok him on the head with >. blunt Instrument while plaintiff was standing on.the threshold of the pulmsn; osx. He w-s stunned by the blow which felled him; he wes brought to the forward xaanx oar by one of his friends."

Also see in Williams vs. Pullman Company, 40 La. 87, where -the court held: "The earlier doctrine that, in general the a-- ster is liable for the fault or negligence of the. servant but not for bis wilful wrong or trespass has been greatly modified in modern jurisprudence which pieces the test of -the master's liability not on the motive of the servant or the charac-.. ter of the wrong hut in the inquiry whether the act done was something his employment contemplated end which if properly, end lawful! done would have been within the scope of his functions."

In the case of Vincent et ux vs. Morgan's La. and T. R. & S. S. Co. 140 La. Ann. p. 1037t "A master is liable in damages for any negligent or wanton, act of his servant jreby another sustains-injury in his mind, body or estate, and that is committed in connection with the- purposes of hie employment."

"Though there is some afliot in the decisions aa to the liability of a corporation for the iaxtojaiss torts of its officers and'agents, the following propositions are supported By the wiejgfefc of authority) (l) us a general rule a corporation is lisble- like a natural person for the torts cf its officers or agent-- within-the scope ar epp rent scope of their authority. (3) It is liable for -a tort sc- committed although it involves a speoifio intent or malice for the intent or .nalioe o.f its officers mxdisxTaji may 'be imputed to it." Citing numerous authorities0

Stacs On an exception of no c-use of sotion, the allegations of the petition are to be taken-as true, and if taken s-s true plaintiff oould legally recover a judgment on them as prayed for, the exception should be overruled and the.parties referred to a trlel on the merits for the determination of their respective rights end obligations.

Goldsmith vs. Virgin, 133 Ann. p. 833.

The isxnaá learned counsel for the defendant in his able brief haa cited numerous authorities, some of which we have quoted from and others whioh we do not think it necessary to site,

"If a servant goes outside of his employment without regard to his services acting with- malice and wantonly causes damage to another, the master is not liable".

And 9gain quoting from xneir briefs "An employer of a private we-tchinsn employed to guard property is not responsible for- the wilful or malicious, torts of that watchman whioh are committed on the streets or public highways os at places off of th‘e very premises whioh he is employed, to watch, and guard." Citing numerous authorities.

The abstract propositions of law .doubtless are oorreot, but ve find on the other hond that in order to determine whether or not the servant, the employee, is'not within the soope of his duties, whether or not he wes footing rt the time of the aot either as a polioeman or otherwise, is a question of fs-ot which oan only be determined as other facts on the tri-1 of the oase on its merits, hence we oonolude without entering into further dlsouseion of this matter, whloh would lead to no useful purpose, that it would be in the Interest of justice to remand this oase to the court aquo, there to be heard and determined on all the facts to be presented to it both pro end con,- so that justice will be done.

For these reasons, it is ordered, adjudged and deoreed that the judgment maintaining the exception of no cause or right of aotion be annulled and reversed and this oase be remanded to the District Court to be there sisxsfc&sxai proceeded with according to law, the costs of the appeal to be paid by the defendant company, and the other costs to awátt the final determination of the trial of this oase.

-Judgment reversea and remsnded-


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    NORTHERN PETROLEUM CO. VS LALLY & LALLY
    No. 8710
    June 19th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

The defendant hereih^Ralph C. Lally, doing business under * the name of Lally & Lally, was served personally - and filed an answer. Judgment'was rendered against him, and signed on Kay 1st, 1922 for the sum of $161.49. On the trial of the case defendant was represented by counsel. On May 15th, he obtained an appeal returnable to this Court on May 25th, 1922. The record was filed in this Court on that day.

Plaintiff and appellee, on Hay 29th, 1922, moved to dismiss the appeal on the ground that the appeal' was taken too late.

Article C. P. 1133 originally read as follows:

"If a. party -having cause to complain of a judgment rendered by a Justice of the Peace, allows twelve months to elapse after the 'time allowed for an appeal, without having taken one, he shall no longer be alloyed to appeal, but the judgment shall acquire the force of res judicata"

This article was amended by Act 28 of 1865 Sec. 11 p 52 as follows:

"No appeal shall be allowed from any judgaent rendered by.a Justice of the Pea.ce in the Parish of Orleans x x p if taken after the expiration of ten judicial days from the notification of the judgaent to the party oast". R. S. Sec, 2080.

Iii the Revised Code of Practice of 1870 this amendment was embodied in Article 1133 and made to read, as follows:

"Provided, no appeal' shall be allowed from any judgment" rendered by a Justice, of the Peace in the Parish of Orleans, after the expiration of ten judicial days from the signing of the judgment and its notification to the party cast"/

Article 1131 of the Code of Practice was amended by Act 103 of 1882 p 155, Act 129 of 1888 p 188, Act 45 of 1910 p 70, let 214 of 1914 p 410 and Act 97 of 1916 p 216.

By the Act of 1916 the Article was amended so as to read as follows:

"That no appeal from a judgment before a Justice of the Peace shall stay execution unless the said appeal be taken within ten^icaiendart days after the judgment. If it has been pronounced in the presence of the parties, or when the party cast was present, or represented by counsel at the trial, or within ten days after the notification of it, if it ;has been rendered on default of one of the parties; provided, that no notification shall be necessary if personal service was had on the defendant &c. Judguent shall not be final until action by the Court upon any motion for a new trial, which may have been made within the time now authorized by law or rules of Court".

The Articles C. P. 1131, 1132 and 1133 are upon the same subject matter and must be interpreted together.

The defendant herein was represented by counsel at the trial, the judgnent was not rendered by default, and personal citation was served upon him. Therefore no notification of the judgnent was required by law, and the delay for appealing began from the signing of the judgnent and not from its notification.

In State ex Rel Henderson vs Mc Crea, 40 A. 20. the Court said:

"It is only where the judgnent is rendered in the presence of the parties, that notification may be dispensed with; and it is only where the judgnent is thus rendered, or notified, that the delay to make it final begins to run".

In the case of Simonton vs Litchel, 113 La. 921 the Court said:.

"The record does not show that plaintiff was present when the judgment was rendered, which was three days after the trial of the case. The time for appealing commences to run from the date of judgment, "if it has been pronounoed in the presence of the parties, or within three days after the notification of it, if it lias been rendered’ in the absence or on default of one of the parties". C.P.1131. Article 1086 C. P. reads as follows:
"If the'two parties appear at the time appointed the justice shall immediately proceed to hear them and to render judgment, and in this case the judgment maybe executed without being notified".

In Cohen vs Otis, 127 La. 6, applying the Act of 1888, the Court said:

"The three days' delay for of the judgment, when rendered in the presence of the an aodeal runs from the date

In that case the appeal was dismissed because taken after the expiration of three days after notice of judgment.

In the case of Meyer vs Vasquez, 129 La. 632, the Court, interpreting the Act of 1910 said:

"The delay of ten days within which a suspensive appeal may be taken from a judgment of a City Court in Hew Orleans, "when the party cast was represented by counsel at the trial begins to run from the date of the rendition of such judgment".

In that case also the appeal was dismissed by the Court of Appeal and by the Supreme Court because the appeal was taken after ten days after the .rendition of the judgment, when no notice -of judgment wps required.,

IN Salvant vs Mercadel, 136 La. 248. the Court said that Act 214 of 1914 amended Article 1131 by providing that

"no notification of the judgment shall be necessary if personal service was had on the defendant" -,

and refused to dismiss an appeal where the order had been obtained after the expiration of ten days in a case where the defendant had been cited at domicile end where no notice of judgment had issued.

By Act 128 of 1921 p 332 entitled an Act to regulate the practice in the City Courts for the City of New Orleans, and to carry into effect sections 90, 91 and 92 of Article VII of the Constitution, it is provided:

"Appeals shall be allowed, and be returnable to the Court of Appeals, within wen days, exclusive of Sundays, from the rendition of the judgment &c".

This law effects no change in the former statutes .and,, jurisprudence relative to the delay for appealing,'^ from, judgments rendered jay City Courts except that instead of ten judicial days, ^excl^sive of Sundays, are allowed. /

The judgment in this case was rendered on May 1st, against the defendant who was cited personally, and who was represented on the trial by counsel, He was not, therefore, entitled to a notice of judgment. The delay for aj^aling^bigan on the day of the rendition of the Judgmentobtained the order of appeal on May 15th. This was more than ten calendar days, exclusive of Sundavs, from the rendition of the Judgment, and was too late. The appeal must therefore be-dismissed. 7 Rob. 60; 34 A. 315 (318).

"This law is imperative and it cannot be abrogated by the agreement of counsel to extend the delay for the taking of a suspensive appeal. No consent of parties can give this Court jurisdiction or enlarge its powers. If, in any given case, "no- appeal will lie", whether because of the amount in dispute,' or hecuase the time limited for an appeal has expired, the appellate Court has no jurisdiction, and every Court is hound, ex officio.to take notice of the want of jurisdiction patent on the face of the record, although the parties may he willing and may consent not to raise the question".

Appeal dismissed.

June 19th, 1922.


author: Charles F-. Claiborne, Judge.

text:
    Mrs C.Patorno, Widow Jos. David, Appellant vs Leon Bessarat and Al.
    No.8714
    Charles P.Claiborne, Judge
    April 16th 1923 .
   Charles F-. Claiborne, Judge.

ThlB is a suit for $5,818,50. for physloal injuries.

The plaintiff allegesHthat on the afternoon of December 5th 1981,at about 8.30 o'olook,while on field-duty,that is distriot nursing,she was standing on the Lake-side banquet of Bourbon Street,a few feet below the intersection of Governor Hioholls Street,talking to Mrs Drews,a friend-of hersjthat petitioner was standing with her back towards Governor Hioholls Street,facing towards downtown,when,without any previous warning she heard excited exolamations from some bystanders and then received a terrific blow whioh rendered her unconscious)that petitioner has since learned that she was stsnek by an automobile belonging to and driven by Leon Bessarat of this City, which was going down Bourbon Street at a high rate of speed and which, in swerving to avoid a collision with a truck belonging to one A.Riooobono,ran up onto the sidewalk and knocked petitioner down causing her the injuries hereinafter enumerated. Petitioner shows that she was entirely without fault and that her injuries are due solely to the gross negligonoe,oarelessness, and recklessness of the driver of Mr Leon Bessarat's automobile and to the negligence,oarelessness,and recklessness of the driver of the truok belonging to A.Riooobono}that the automobile was going down Bourbon Street and approaohing the intersection of Governor Hioholls Street at an unlawful rate of speed and that the truck of A.Riooobono was likewise being driven at an unlawful rate of speed out Governor Hioholls Street}that as the two vehioles approached in the manner above described it became apparent to the driver of eaoh that he oould not Btop in time to avoid a collision,and both the driver of - the automobile - changefli'the course of their vehicles .without warning^and in . ; • utter disregard of the safety of your petitioner and others, and the automobile,as hereinabove stated,ran onto the Bourbon ; Street side-walk just below the intersection of Governor Nioholls Street and inflioted the injuries on your petitioner hereinafter 'described.That the truck belonging to A.Ricoobono swerved around the oomer of Bourbon Street and ran up onto the River side banquette of Bourbon Street at a point between 75 and. 100 feet below the intersection .Your petitioner oharges specifically that the truok belonging to A.Riooobono,whlle in his servios and driven by his employee,approached Bourbon Street at a recklessly fast rate of speed, in violation of the Oity'Ordinances, and failed to observe the Oity ordinances with reference to stopping at such intersection 'and that the recklessness and want of skill on the part of the driver of the truok was a proximate contributing cause to the injury of your petitioner,arid your - ■ petitioner further avers that the careless unskillful,and unlawful aot of the aforementioned Leon Bessarat,owner of. the. ', automobile in running his oar at a high rate of speed, onto. the. banquette as hereinabove set forth was the proximate oause of plaintiff's Injury.Your petitioner shows that the automobile of Mr Leon Bessarat struok her in the manner above described with suoh force that it threw her violently to, the ground, and ,. rendered her unconscious ¡that she suffered severe bruises, of ..the body and the bon'os of her left foot wore broken.■.

■That 'she ¡fes- been under the doctor's care over ..since and •suffered., great painjthat th<inju^:tc,ier.le^;||||. •consisted of a frapture. of the head, of the • third'- Meta^r£»^»:il,gij!|,. bone and the external cuneiform" — --- ■* - by her physicians -.that she time to wear.á specially designed'arch ■ support and etc.*.' ’ .

. ^Plaintiff-oiaims as ,ifemHg«S''á^inst;’th.e tofo .-dsnts

1st Loss of two and one half' months'a salary $312.50

2nd Doctor's bill 500.00

3rd Injury and pain 5000.00 ■

$5312.50

The defendant Bessarat filed an answer.The oase. as to him has not .yet been tried.

The other defendant A.Ricoobono,flled the following exceptionsj

1st Misjoinder of parties defendants,

2nd No oause of action as to himj

3rd Petition is vague^ general, and indefinite. ■

These exceptions were maintained by the trial Court,and the plaintiffs' suit,against Riooobomywaa dismissed Prom that judgment the plaintiff has appealed.

I If it is true,as alleged by the plaintiff,that her,, injuries were caused by the fault of both'defendants,then they •ff-f T.I - J. * V» It*-* ' T ' are liable to her^j edged -a a- despéndante j¡jfsolldo,and they may be joined as defendants in the same suit. 52 A 124 (1247)

In Cline vs RRD. 41 A 1031-the Court, on page 1040 said:" In all suoh oases, (offenses or quaso offenses),the rigHfc'ViT of the plaintiff to' Join in one suit,all parties to the■ regrob^fi.* ted act,may be regarded as elementary.."

112 La 412-114 La. 266 .

But the illegal Joinder of a party defendant''will"?•'' not be ground for dismissal of the-notion as to the others 32 A 216.

II The theory upon which plaintiff JkíjS on the part of Rlooobono ‘"lb baso^ ^|i«fit.'the ajáoiént ‘ ¿ Squib oase,where the original caüé'e.^ofthe ■*-----J liable.

But the defendant argues that the doctrine, ■ •; . - - - •'■fiararass case was never adopted in this State.

In the case'of Latta vs N.O.Ry.Qo. 131 La 'g&gftS Court said!

"Further along in the opinion the Court gives the following excerpt from Bishop,Non-Cont.Law S 45,referring to the leading and approved case of Scott vs Sheppard 2 W.B1 892, 3 Wills 403; " The defendants threw a squib into an open market house where there wore many people.lt fell upon the standing of Yates,and another there instantly^to prevent injury to himself and Yates,threw it across the market house,and it fell upon the standing of Ryan,who instantly,for the same reason as before^sent it to another part of the mark'e^hóüso,and it there took effect upon the plaintiff(and put his eye out). The intermediate throwings,it is perceived,were from an impulse, fit natural and to be expeoted,so that the Hisastrous result, through remote,was deemed a product of the original cause."

In Walker vs Rodriguez 139 La 251<254) the Court said: "'Defendants deny that the automobile struok the plaintiff, and they argue that it may have struok her companion,who was thrown to' one side,and in galling,he struck the plaintiff,and that she received her injuries in that way.But the preponderance of evidence shows that- the automobil® struok the plaintiff and knoBked her down;and even if this were not so,and she was struck by her companion,who in turn,had been thrown to the ground by the machine of defendants,they the defendants,would still be liable." See also 13 Cyc. P.25 note 54 -29 Cyc.p 491 499-500-601- .

The plaintiff oharges that the defendant Riooobono^ in violation of City ordinances^rushed at full speed into Bourbon Street from a oross street and that in an effort to avoid him,Bessarat suddenly and impulsively swerved to the left, and in so doing without intention or fault,ran into the plaintiff and injured her.For the purposes of the exception we must admit that those allegations are true.If they are true,they establish a cause of action in the plaintiff against Rlccobono.

HI The petition sufficiently informs the defendant of the nature and amount of grievances complained of,and divides' Ms damagee^and claims specific amounts for each item.This is more than was necessary. 36 A 551-50 A 767-52 A 1442 .

It is therefore ordered that the Judgment herein he reversed and set asidejthat the exceptions herein filed he overruled,and that this cause he remandod to the District Court for trial upon the merits in accordance with law and the views herein expressed;the costs of Appeal to he paid hy defendant A.Riocohono^and the -oosts of the lower Court to await the final decision in this case.

Judgment reversed and case remandod.

April 16th 1923 .


author: BY: WILLIAM A. BELL, JUDGE:

text:
    MEXER KIERSKy versus PETER P. ROWAN COMPANY, LIMITED
    NO. 8715
    COURT OF APPEAR, PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    November 27, 1922.
   BY: WILLIAM A. BELL, JUDGE:

Hlaintlfí sues, the defendant corporation for ' '\Sita*§S^'Suff,ered to his auvomóbile by ¿ collision with-the def-'- ’ ®S|i^y¿.^t'o'%aolC4-: The-"' extent of'this damage was alleged and ¿gMÉK&»/!to.'ihave. been-; Two - Hundred and Dour Dollars and Twenty-Dive . 4HÜÍ &B04V2S)'.- .Additional"damages were olaime.d.in the sum of l)>3ÍÍ8K¿-. Hihn&red'-'-and'" Ten Dollars C$210i'OO) for resulting loss- of - '?'-Átí|í''«f-.pld'iht’íte,B' cñ'». liirii^'’ thirty-one days. The oáee was tried '#itbb,tali'; 3ttry (8nd. the ju,dge of bhe-trlal oourt -rendered judgment , In favor of plaintiff, in the sum’ of '$204.25. There were no reasons .g'íven..,fo» judgment,- - but from the amount allowed it is to ■ -be presumed that only, actual' damages to plaintiff's oar and not /those ola-iined .for loss of the use'of the oar, were allowed.

■ Upon appeal, plaintiff, as appellee, .prays for an ''amendment of the-judgment so as to allow the total amount -claimed,' to -wit, $514.25.

■Hlain'tiff * s petition- alleges that on. -September 25,-' 1920, about 11/si? clock A*H., at the' corner of Spruoe. aud Burr, ,-dette í'tréaís ua .'this'-City, a Peerless Sedan automobile owned by 'him-waa-'.'lá'jur&dfbjr O# auto truck-of'the defendant Corporation; ítSáf.thi» '**■ ihe time that petitioner's -auto had come'to.a stop,,to allow- a passenger'.to -alight, 'and was at a stand- ■ still 'and 'was' on-..the' lake side of Spruoe St. facing down, where it'.had a righ¥*t^^e'í'--bpt,thá,t ,-th'e: truqk -of defendant Was'backed ¡hsé',ltp-.driver 'o.ut -ó.f'-'Spruorf Bt. ■ into.-''thé 'riéa'r .right' side of plain-/ti'ff-'s, £uto, ,colliding; with and injuring same* • The usual allegations are-'made.;of-:íiégÍÍgbnos on-thb part of the-defendant qorporatj.o¿. ahd: it's'-employee,' or-.driver of -the auto'-'truck.- There is a .supplemental p.btitiob/eontai'ning'' allegations "which need no'j: be noted here.

.The Mefendant answers by admitting the 'date¿Hd-the place:of-,thb;.íftsd4dént;,. and- particularly-the. allegations 'donteinad^iR'’thevSS'0'9,iid'paragraph of plaintiff's petition,'- which . .. ''oó'riti¿ius'’tbS 'fd,dlK' f%t:-'abb've'-narrated. At the same'time, however,. defendant denies particularly that plaintiff's automobile had the right to be on the lake side of Spruce St. facing downtown, but that on 'the contrary, the position of said automobile was violative of the .ordinance of the City of Sew OrJ.eans-’goveming street traffic, and that the act of the plaintiff constituted negligence on his part, and on that,-of his employee, or'chauffeur, and that the collision and accident were due solely and entirely to the fault and negligence of plaintiff and hiB employee, and to the fao.t that plaintiff stopped his automobile at the place and in the manner mentioned, all in violation of the ordinance which prohibits vehicles from- stopping with their left sides to the curb exoept on a one v;ay traffic street.

.Defendant particularly alleges that Spruce St. on which the accident happened is not a one way traffic sti;eot. Defendant further alleges that while its auto truck was in the act. of backing out of Burdette St. into Spruce St. after being stuck in a hole in Eurdette St. that the said aut'o truck was half way around the turn, backing towards down town on Spruce St, and towards the lake-side of said street, plaintiff's automobile oame down Spruce St. and passed the truck to the right thereof and came to-, a stop, with its left side to the curb lake-side of Spruce St. facing downtown; that plaintiff in so passing the defendant's truck to the right violated the ordinance as pleaded and was thus guilty of negligence; that defendant's driver had the right to assume that plaintiff would obey the law, not passing him to the right nor stopping his oar, in violation of the said ordinance, on the wrong side of the street; that consequently, defendant's driver continuad to baok his truck slowly, in order to put it in position to pro- . ceed up Spruce St., as he had a right to do; that defendant's driver was without fault, and at all times acting within the law, and had his truck under full control aiid government.

She pertinent parts of the ordinance offered in evidence and pleaded by defendant in support of the allegations of negligence against the plaintiff, read as follows:

(a) "lío vehicle shall stop with its left side to the curb, except on a one-way traffic street and Then only for the '.purpose of loading or unloading'.'
(b) So vehicle shall stop in any public street except close to the right hand ourb; except as provided in parking rules, or in an emergency, or to allow another vehicle or pedestrian to cross its path, nor shall any vehicle stop in such manner as to impede the progress of other vehioles or of pedestrians."

She evidenoe in this case shows that on the morning of the accident, the defendant's auto truok was being used, with its consent for the accommodation of a friend, a past customer of the corporation, who was moving some of his household effects to his residence on Burdette St. between Spruce and Cohn St. in this City, end that defendant's auto truck driver in going' to this residence cane down Spruce St. from Carrollton and. turned into Burdette St. towards the river, and at a short distance from the upper corner of Burdette and Spruce Sts. the auto truok was stalled in Burdette St. which was unpaved, and in a muddy condition. The truok-driver, in order to get out of the hole in which the machine was stalled, backed from the upper side of Burdette St. from a point about 50 ft. from the corner of Burdette and Spruce Sts. end at an angle of about 45 degrees, backed into, down and towards the lake-side of Spruce St. and while in continuous motion, but going at a very slow rate of speed, the rear right end of the auto truok collided with the rear right end of plaintiff's automobile, at the moment that plaintiff's oar had come to a stop for the purpose of discharging a young lady passenger, who was riding with plaintiff at the time.

The evidence is conclusive that before the collision occurred ■&&& plaintiff was coming with -his. car from out of Spruce St. on the upper sidS of Burdette St., and while going in that direction of downtovni, thkt plaintiff crossed to the right of defendant's auto truok while the latter was backing into Spruce St. as above described.

Three witnesses for defendant, that is, the driver of the truck, a former employee of the defendant company, and a friend who was using the auto truck, all agree that plaintiff's car came from the upper side of Burdette and Spruce Sts. and crossed to the right -of the auto truck about three feet away from the truck and between it and the lower-leke corner of Spruce and Burdette.

We find as a fact that the truck driver in backing dorm into Spruce St. failed to look to -the rear, as- he might have done, but that every care and precaution was taken by . him, in sounding his horn several times just before getting into Spruoe Bt. The auto truok was equipped with a driver's oab having three windows, one to the front and two on either side of the driver. One of the witnesses, 3 colored man, a former employee of the defendant company,- was standing in the truck in the forward and left part thereof,' immediately behind the driver, but not in view of him because of the rear part of the dab being olosed."This witness at the trial drew a pencil sketch of t.he locality of the accident, and the position of bhe oars at the time of the accident.

The sketch was offered in evidence by defen- • d ant and while not containing any designated-measurements, we find it most helpful and corroborative of defendant's witnesses,, whom we believe have correctly and truthfully detailed the causes and circumstances of the accident. That plaintiff was' at fault in violating the City Traffic ordinances is beyond peradventure. -His oar should not have been at the place nor in the position jwe find .it at the moment of collision. While this fact, is admitted in argument and brief, it is contended that the proximate cause of th^1-.accident was the failure- of the truck-driver to look to the rear, and not forward while in the act of backing.- The evidence, however, shows that had he done so, he could not have seen plaintiff's car which had slipped' in between the truck and the curb at the .moment" - of contact.

The doctrine of last clear chance is not applicable to the physical facts plainly established by a preponderance of evidence. Counsel for plaintiff particularly relies upon the decision of this court in Vaughn v. If.O. Ry. & Light Co., 10 Orl-. Appl. 116. In the cited case, it is dear that the plaintiff was himself negligent in violating the city ordinance-in question, that defendant failed 'to avoid the accident when both carefulness and time veie available. In the instant case, we find that all reasonable care -was-exerted by the truck-driver, but that the collision and plaintiff's violation of the ordinances were..simultaneous, allowing no opportunity to defendant's employe?to avoid the accident.

Admi"tir;,', arguendo, that the truck-driver ’should' have looked to the rear while backing in that dfreotion (though we find that doin' so would not have-enabled him to see plaintiff's '"tri we are -f the opinion that the- law of this case is. found in "d r.t vo have .aid in Adams v. SAllaglier, 11 Orl.-Appl, 300:

"ííhon the evidence shows that plaintiffs negligence was'the proximate cause of his injury,.he cannot recover agt-jnst the defendant, although defendant's Eur/auts were guilty of prior negligence."

See also Myers v. Perry, 1 La. Ann., 372; Woods v. Jones, et als., 04 La. Ann. 1086; Clements v. La. Electric Light Co., 44 La. Ann. 692; Borell v. Cumberland Telegraph & Telephone Co., 103 La., 680; Legendre v. Consumers Seltzer & Mineral Water Mfg. Co,, 147 La., 122

After oareful consideration of the evidence in this C'.fe and of the authorities above olted. we are of the. opinion \!-at the judgment of the trial oourt-is erroneous,' and that plaintiff is in' no manner entitled to recover the damages

It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby'is reversed, and thf t there now be judgment in favor of defendant, dismissing pialntif :'s petition at plaintiff's cost in both courts.

JULSMEHT REVERSED.

Nov. 27, 1922.


author: Dinkelspiel; J.

text:
    NO. 8716
    COURT OF APPEAL PARISH OF ORLEANS
    MR. AND MRS. GEORGE STANDFIELD versus ARIEL FRANK, SNYDER FRANK and S. NATHAN, ETC.
   Dinkelspiel; J.

Plaintiff institutes this suit olaimlng the sum of $350.00, averring that in the month of December, 1931, she deposited with the defendant, one .seal cepe-with qquirohoker relwhich defendants took charge of for the purpose of repair and make over; that the value claimed by her for the articles in question was the amount she paid for them, to wit the sum of $250.00; and further averring that defendants unable, to deliver to her this property claiming that same was stolen, .offered her .the sum of $150.00, alleging that they had only insured the property for the stun of $135.00. Wherefore she prayed for judgment.

Defendants excepted to plaintiff's petition because same disclosed no right of notion and further that the petition was too vague and- indefinite for defendants to safely answer. The exceptions and the answer under the rules of the First Oity Court having to be filed together, the'a® ewer admits that plaintiff left with defendants, several pieoes of French seal skins and one pieoe of squirrel for the purpose of having same made into a oape and re-choker pairs on a^*ia*** and that the charge for doing this work was thirty dollars for the oape and five dollars for the Alleging that the os-pe and ooll&r in qaestion ware delivered to plaintiff; plaintiff asked permission of defendants to hold the' oape for her which defendants agreed to-do without assuming any responsibility; subsequently there was -stolen from defendants premises without their knowledge, fault or negligence, the articles in question together with a large amqunt of property belonging to de- ' fendants; they admit: having an insurance polioy ooverlng their property- and the property of plaintiff and agreed ' . iflth the consent of plaintiff to put in a claim under said 'polioy for the sum of ¡&Í35.00, they did put in the claim, but the amount was rejected by the Insurance Company end the amount they oolleoted due plaintiff was the sum of §65.00, which they allege was tendered to plaintiff, but she refused to aooept, henoe this suit.

The faote .are that plaintiff left her property, de~ soribed by her,in defendants' possession for the purpose of ,choker having same, 'particularly the oape pand/oollar changed to her satisfaction, and the amount -of bill for repairing was thirty dollars; plaintiff swears that there was to have been some Alterations made to the cape in question and that she left it for that purpose, while on the other hand defendsnts end their witnesses swear to the contrary, but state under oath that plaintiff not having sufficient funds in her puree to pey the thirty dollars due- on said debt asked permission to toa» ik am /MBiKx&Htxsxatawit leave same with them until she returned with the money, and that defendants consented thereto, but she took with her the choker and paid the price for repairs thereon,■ the sum of Five Dollars, It would serve no useful purpose to . enter'into the testimony pro end oon. The main faots are that the property woe left in the possession .••• the defendants and a robbery took place at their estsblienment and the loss of the articles in question together with other goods belonging to the defendants were stolen, without their fault nor'through any negligent act of the defendants. It was further stated in the ¡argument in this oaee.by defendsnts' attorney a.nd not denied by plaintiff's attorney, that the aisamifcsii amount col-, lected from the, insurance company on the open polioy of insurance on this particular cape was the sum of §65.00;' that plaintiff refused to accept same, but, insisted that a premise had been made to pay her the sum of §125*00, which, she had accepted prior to this suit. This reoord convinces us that the amount' .of §65*00 as stated. .In the argument was ,oolby the defendants and was therefore the property of plaintiff, and it was defendants bounden duty to hove turned this amount over to her and failing to do so, in. order to save oosts and other trouble, to have deposited same together with their answer in this oase, whioh thev failed to do. We see no object in going through the testimony as to whether the property in question was of a better quality as alleged and sworn to by plaintiff or'whether it was of inferior rpiaxi quality as sworn to by witnesses for the defendants. Be that as it may were it not for the feat that the property was oovered by insuranoe and the amount collected,•the sum of $65.00 by the defendants, under the authorities and the Olvll Code "The deposltarv is not liable when the contract with him beoomes a gratuitous deposit." 3937 Oivil CcSde. 25th Ann. 630. "A depositary who uses the same diligenoe in preserving the thing deposited with him es he uses in preserving his own property is not liable for the thing lost through'fire." would prevail-

But when as in this oase an open policy of insuranoe was had. by the defendants and a oertain amount oolleoted on same, part of whioh was on the property of plaintiff and the amount being $65.00, there would be no justloe or equity to permit the defendants to withhold the entire amount or part thereof, belonging to plaintiff. There wa3 no deposit of the sum in question made at the time the answer and exceptions .were filed, and we hold this should hove been done in order to avoid payment of oosts.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Court aquo, whioh gave plaintiff the sum of $350.00 be a.nd the same is reduced to the sum of 065,00, and to this extent there, will be judgment in favor of plaintiff, oosts of both Courts to be pa-id- by defendants.

-Judgment amended and affirmed-


author: Charles F.Claiborne, Judge

text:
    Walter S. Berwick vs C.A. Minor
    Charles F.Claiborne, Judge.
    No.8722
    January 22nd 1923
   Charles F.Claiborne, Judge

This Is a suit on an open account.

Plaintiff alleges'that the Travelers Insurance Company ..........»..................-...... Fred W.Sinclair,nanager^employed the defendant,O.A.Minor,on a oommlsslon basis to solicit Insurance ; that the Company was to advance Minor oertain sums of money which would be credited by the commissions whloh Minor would earn,and that in the event his commissions did not satisfy the amount of the advanoes,the said Minor was to reimburse the excess;that Minor's overdraft la($350.96 ) Two Hundred and fifty 90-100 for. whloh he remains Indebted and for which^petitioner Is the transfe^ree and subrogated to the Company^rights against Minor.

The answer was a general denial.

There was judgment for-plaintiff and defendant has appealed.

The defendant testified that ho was employed verbally at a salary of $350 per month for three months.He is corroborated by his wife.But ^¡he Mr Slnolair who employed him denies this •the three reoelpts signed by the defendant bear out Mr Slnolair. They are,"dated January 31st for $100 ; February 13th' gg $75 and February 14th,and read as follows*

"Reoelved of F.W.Slnolair,manager for Louisiana of the Travelers Insurance Company,Hartford,Oonn($ 76 ) Seventy five dollars to be charged to my-aooount.This advance shall be repaid by »o on demand,unless satisfied my commissions *a other oompeneatlon^aoorued or aborulng^under my agreement wltji the Company *.
'*• Signed* O.A.Minor

It is admitted that the amount claimed by plaintiff is correct,If otherwise due . We are satisfied that the defendant was mistaken as to the nature of his oontraot,and that the Judgment of the trial Court is- oorreot.lt is therefore affirmed.

Judgment affirmed,

January 22nd 1923.


text:
    NO. 8725
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. OLIVIA SCHUMBRECHT versus WEST NEW ORLEANS LIGHT & TRACTION COMPANY; and SOUTHERN COTTON OIL CO.
   Dinkelspiel; J.

This is a damage fault.

Plaintiff institutes this suit against both of the defendants, alleging that the West New Orleans Light & Traction Company owns and operates a street railroad in the Parish of Jefferson and oarrles passengers on their street oleo-trio oars from Etretna to Merrero, and that on the morning of June 34th, 1930, shout half past six, plaintiff boarded oar No. 9 of said oompany, paid the usual fare, and that said car took on other passengers both at the point where plaintiff got on and at other points along the road until the oar became very muoh orowded, and when the oar reached the point at the rear of the Southern Cotton Oil Company, it left the rails , swung out from the track or rails, struok the telegraph pole or other pole along the right of way of said street oar traoks, crushing one of the passengers to death and then ooming to a sudden atop, violently in and along a large oitoh on the North of e> ;d traok, and that as a result plaintiff was thrown from the seat on the left side of the street oar to the floor of the oar with great foroe, bruising her head, left knee and left hip, and sustaining bruises end oontusions about the body, causing her muoh pain, agony and suffering, s.nd causing her to faint, and as a result she had to go to her bed; alleging further that at the time of the accident she waa in good health end earned a salary of seventy five dollars a month, but as th6 result of her injuries she was confined to her bed for over one month, was unable to go to work until August 37th, 1930, being under the oare of Dr. Johnson during whloh time she suffered muoh pain. Alleging that she was not in any wise guilty of negligence or carelessness, henoe did not contribute to the cause of said accident» but that same happened solely through the gross feat, oarelessness, reoklessness, and wanton negligence and improper management and skill of the railroad oompany and their oriminal want of precaution, ae well as those of the Southern Cotton Oil Company» Alleging that at the point where the said street oar in whioh she was riding left the track, an excavation had bean made mi in and under the roadbed of said traok, and the mud and dirt had been removed from under and around the drosstles and rails by the Sauthern Cotton Oil Company, for the purpose of putting across the roadway and under the railroad traoks, a oonorete ditoh or oelvert, for the purpose of draining the water from from the plant of the Southern Ootton Oil Company fa one side or the railroad traoke to the other side on the publio road, and that the Southern Cotton Oil Company falldd and negleoted to replace said railroad traok in a safo and solid condition in order that the railroad oould be safe in running its ears, and further that the railroad as knew that the Southern Ootton Oil Company was passing said oonorete culvert under its traoke, saw the dirt removed from beneath the orosaties and under the rails, and also that the dirt whioh had been removed had not been properly replaced between the said railroad traoks for a-space of thirty or forty feet on each side, where said .oolvert had been put, and that it was in a dangerous and weakened oonditlon, and that notwithstanding this fast, the railroad oompany ran its oars, in one of whioh plaintiff was riding, over and aoross the said weakened spot, the ear left the rail, wfeishx the oause of whioh xxc it is olaimed was the Joint fault of both the defendants, resulting in damages to her for whioh she olaims, for two months salary #150,00; drug bSll $24.00, for pain,suffering, and agony as a result of the injuries #1750.00, praying for Judgment in her favor against both the defendants for #1924,00.

To this petition there was filed by the West Hew Orleans Light & Traction Company, a general denlal;and in the answer-it fax admits that in the month of June 192Ó one ' of its os.re .was derailed in the rear of the Southern Cotton Oil Company’s property,.and that said derailment was oauaed by the act of thira persone who had dug a culvert under Aefendant’s traoks without defendant's consent or knowledge and that said oulvert was dug a short time before the derailment of the oar, end that dirt and gravel had been thrown into the hole underneath defendant's traoks so that it was Impossible for them to detect or foresee that the traoks were unsafe or unpassable; that their traoks were inspected by experts and that it was through this trespass of third persone that its traoks and roadbeds were plaoed in a weakened condition, causing the derailment of its oar. Wherefore it prayed for Judgment in its favor.

The Southern Cotton Oil Company filed a general denial, alleging that there had been a drain on the road along whioh the street oar line ran, for a number of years, erected under authority of the Polioe Jury and that this defendant made no excavation -jt that point, but renewed the oulvert with concrete without in any way destroying the surfaoe or weakening or in any manner impairing the safety or stability of said traok, end that the street oar we.e not derailed because of any work done by It, Answering further admits thst the oar was de-. railed, whioh derailment was due to the dangerous condition of the traok, whioh extended for s distance in both directions, and further in the belief that the manner In whioh the oar was orowded end operated over said dangerous traok caused the accident. Wherefore prayed for Judgment in it? favor.

On the trial of this oase we find the following agreement:

"It is agreed that the testimony taken on behalf of the various parties in the suit of Henry Felcht versus the same defendants, Ho. 3361, will be considered as having been offered in this case, so far as pertaining to the facts herein, subject seme to the/objeotions, reservations and agreements as noted between she plaintiff and the defendants in the Kfifcfctícfes Feloht oase. »

A careful examination of this reoord oonvlnoes us that on the morning of June 34th, 1930 the defendant &shics* traotion oompany's oar, orowded with passengers to its guage, ran off of its traok on the publio road along the rear of the Southern Cotton Oil Company's plant, a short dist&noe above the city of Gretna, the wheels of the oar moved the r 4.11s, ran on top of same for about ten feet and then ran off into the gravel road, swinging around to the South so that the right of the rear platform struok a pole possibly some three or four feet to the Horth of the track, causing a terrific Jolt; in this aooident one man wa.s killed and a number of other passengers olaimed to have been more or leas seriously injured; the testimony is oonflioting, some of the witnesses testify that the oar vras going at the rate of four or five miles an hour, others eight or twelve miles scaait an hour, and others again twenty or twenty five miles an hour. Evidently the oer turned a.t an angle of possibly forty five degrees or more, swung is the rear platform around against the pole so that the vestibule post was broksn and the rear of the oar dragged past the pole, although the motorman endeavored to shut off the power a.nd apply his brakes.

Under the agreement entered into, quoted above, the transcript in this esse is to be considered in connection with all the other as evidence, exhibits,, subjeot to the objections, reservations and admissions made in the case of Henry J. Feioht against the same defendants, now pending on appeal in this court, Mo. 8734, KiSkx

We do not intend to quote any more of the cestimony in this case than is absolutely essential to its decisión.

One of the witnesses, Peter Catatich, who was a laborer working for Swift & Company and who was on the oar at the time of the accident swears thst the car was crowded pretty heavyily to the back, thar he wrs on the back, on the step, having one foot on the step and one on the platform, and was between a colored passenger and others. When he got up to the bridge and et the other side of the bridge he found the oar was leaving the rail, and the back end of the oar wes going to connect with that pole, tha-t ±kax he could not Jump off, and a passenger reached out and grabbed him around the neck, pulling him and the pcxfc post hit this man and knocked another passenger off the back of the car; the car was going at a pretty good speed, he had been in the habit of riding on that- car before.

Joseph Drumm swears that he was the foreman of the Southern Cotton Oil Company, and had been such for about thirty years, he further testifies that it was hi3 duty to look after the drainage .around the front and the back of the plant, there was an obstruotion that had dropped from the bottom part of the bridge aoross the dltoh, a piece of timber, about four by six that held a plank up, that he was oompelled to put in new tiles and oonorete the top, that the trafilo and wagons had broken through the oulvert, the top- of the drain and the xx* roadway was going down in the ditoh; he testifies further that that ,, . . /Wxxssc was on the far side, on the wood side.

Q. Who had the supervision of the repairs that were made end tSe new oulvert shat was put in?
A: Mr. Smypp.

He was present, shifted the wagons over to the far sdie while working on that side, and testifies that Mr. Smypp said it would be best for somebody to go down and run the wagons down the other road, and that he went down to Delonde Street and met the wagons on the frontjwhsxsxh* when he started to that side the traok then went through and the wagons oould not go over. As near as this witness can remember they were two days oompleting the job, xrom start to finish. He testifies further that a portion of the street was out up, half one day and the other half the next day, and all the undor oonorete on the South side that is the wood side and/out the railroad traok was completed; he testifies that the oars ran on that traok some seven days, possibly ten, after it had been completed, that any ordinary person oould notice what had been done, and that the motorman on the street oar would not have any trouble seeing it; he further testified that whilst the work was going on he noticed the slow down of the ears whenever they crossed but that it did not last very Ipgn when the oars would make rapid speed.

Douis Trauth swears that he is a trackman s.nd formerly worked for the Southern Paoifio Railroad Company; that he followed that occupation for about forty five yeare.

Q. Did you have oooassion to examine the traok of the West Hew Orleans Light & Traction Company on the public road near the point of the Southern Cotton Oil Company, in June 1930?
A. Yes sir, at the request of the Southern Cotton 011 Company.
Q. Did you go there the day the oar was derailed? A. I did not.
Q. How long afterwards was it? A. The day after.
Q. Ha Did you make an examination of the traok and the roadbed at that plaoe? A. A certain portion of it; yes sir.
Q. What portion did you examine? A. We examined a portion of the drain px east of the drain and a little west of the drain, and found it pretty badly surfaoed, and wide guage in oertain parte.
Q. At what plaoe was the traok wide guage? A. That was about three or four feet east of the drain, about an inch and something wide there; in other words it was foxx 4. 9 5/8 at the time, and it was supposed to be 4 feet eight tad a half standard guage.
Q. Was there a ourve in that neighborhood? A. Just west of the drain there is a ourve.
Q. What was the guage at that point of the ourve? A. X didn't measure that right at the drain; we measured it further on and found it an inch wide to the west of the drain.
Q. Was that within the area of the exoavatlon that had been made there? A. Yes sir. Well the worst part of the elevation was east of the drain, about thirty feet of it, there it was badly out of line and bad surface.
Q. At this pJotít point where the curve was to the west of this plaoe where they had been excavating, was the elevation of the rails? A. The elevation was mighty *****»^»*1«™ little there, it wasn't more than about 3/4 of an inch,alls were not uafrt'fftjiá uniform, or one was lower Or the other one higher,
<|. The elevation begins in the outer rail, 3/4 of an inch higher then .the inner rail.
Q. What was the condition of the orosties? if. The orosstie's were vpretty soft mdwnrtir» at the drain.
Q. Did you examine vne orossties to the east tad to the west of this drain? A. Ho sir; I did not.
_ .. . , .worse shape ’**.■ Was traok in tayAta^xfctófcftd when this excavation had been made to*aaatxi*xKsxKxk*xxxx them- it was on each side of itS
A. Where the exoavation was made the traok was in good shape; it Was east of the drain where the traok was bad.
Q. From your examination of that traok, is it your opinion that the oondition of the traok, where the six excavation was made, and the tile drain that had gone under it, h~d anything to do with the derailment of the oar? A. Hot at all, sir.
Q. In your opinion what weight could have passed over that traok, where the drain was, with safety? A. Y/lth the excavating that I oould see, I suppose forty ton could cross that rail without bearing on it; that is a six and a half or seven foot span, seventy five or eighty Sound rail.
On cross examination:
Q, 1 show you a photograph taken of this traok, marked D-7, and ask you if that is not a fair representation of the place -where that drain was put? A. Well, that is. You have •. good fair track there, but it is the west; east of the drain, this is out of line, the wide guage on that spot.
Q. In other words at the point marked "X”? A, Yes; that is about three or four feet east of the drain.
A. Yes, MSiexafxiflwx east of the excavation.
Q. It is Inside of the exoavation? A. Ho sir, it is outside of the exoavation, because the excavation starts on that point, and there is about seven foot of it; in other words, there is a join, as we would oall it, about three foot east of the ex-oavation, and that was wide guage, and this line is out of line, and out of surfaoe.
Q. It is shown on the picture? A. Yes.

This witness goes on further to testify that there was a differenoe of about one and one-eighth inches, that the Government standard guage is four fset eight and one half inches and this one is about four feet, nine and five eighths inches.

Witness examined by the Court:

Q. Mr. Trauth, in the deflection or curvature of that rail, at that particular spot, as you say three or four feet from the culvert that was constructed there by the Southern.Oil Comoany, could that have been oaused by the work being done on that culvert? A/ Ho sir, it hadn't been caused by the work on the oulvert, beoause it was east of the oulvert.
Q. It was three or four feet from the culvert? A. Yes air.
Q. Oould- that deflection, or that curvature of the rail, have beBn caused by the work being done on that oulvert? A. Mo sir, I don't think.
Q. By not adding sufficient dirt on the side of the oonoreta oulvert th-1 ríes placed in there? A. It couldn't very well, because the rt il h»d spread on the ties; it wasn't that two rails v/ent together, it vis.s thet the roils spread, what we call an opening.
Q. It wsb not at a. joint? A. It was at s joint it had opened up,
whet vie c -1" ■ spre-'d trr-ck.
On cress e-M.inEt.lon this witness was asked:
% You don't know whether or not where that joint was is the plaoe where the excavation •ve; mf.de, : 11 you know is that it was about thro® f-e t from the colvart? A. Where the drain was entered.
Q. Where did the oar jump? A. I couldn't tell that, but X oould see •■vhers she rode the r*il, ju~t as she reaohed the west side of the drain.
t. In other words, it jumped w»9t of the drain? A. She jumped to the right, th--t is to the left from here, as you oould see it from here. I, w s or used by the vibration of the oar striking that low SyOt east of the drain; it reds her up on the top of the track on the right hand side.
Q. That W..-9 west, w.sn't it? A. West where it .derailed, but the esat portion tub the couse of the derailing, east of the drain.
Q, Did the two oar wheels go in between the rails? A. Mo sir, not that I oould see; they v/ent over the top}. one went on the inside and one on the outside.
Q. Then it oould not have been from a spread rail? A. I didn't say so; I didn't say the derailment was caused by a spreading of the rail, I said the vibration of the oar, the lov/ trank, and out of line, oaused the oar to list; the vibration of the oar oaused it to list over the top of -the rail.
Q. And it was not from any spreading of the rail? A. That helped towards it, that spread track; that all helped.
On reexamination:
q. Do you know where this spreading joint was, vfaether it was on the east or west of this excavation? A. It was three foot or something like that on the east side of the excavation.
Q. Was this joint anywhere along the line of the excavation?
A. It was about three feet east of that.
This witness subsequently oorreoted and said the oar started to jump the traok, the listing of the cs,r, the drain being out of line and lower, the hind wheel of the oar surging on through, that raised the front wheels on the west side of the drain on top of the rail, and caused it to derail.
Q., Do you know how far that oar ran after it jumped the traok? A. I judge about thirty odd feet; between thirty five and forty feet, something like that.
By the oourt:
Q. Mr. Trauth, you are an experienced trackman; oould the oar list and ¿save the rail if it would be running, say about four miles an hour? ¡,, Yes, sir, it oould do that at most any speed, it depends on wha.t we oall the wrench of the traok. You find a traok level ten feet, and here it is elevated three or four inohes, and the wrench of the traok will list that wheel up, provided the load is not balanoed, whet we call properly loaded; if not properly loaded it would balanoe that oar and work it on a pivot, and it would ride off the top of the rail.
Q. Would a light oar be more apt to derail than a loaded oar?
A. A light car would do it* almost the same, but if the load is not properly distributed on a oar, what we call properly loaded, she will do it muoh quicker; she will list herself so much that she will ride off the top of the rail.
Charles E. Snypp testifies that he is the distriot engineer of the Southern Cotton Oil Company, and that he oaused photographs to be ma.de in the neighborhood where this derailment ooourred, and where the drain was, but he also testifies that he superintended the replaoement of the oulvert, examined it;and asked to describe its condition, said it was a deflection in the roadway, speaking of the street; the cross members had fallen down inside of the box, and there seemed to be a slight declivity in the street oar traok, as fax as he oould see$ there had been a wooden box put there by the Parish of Jefferson, had been there so far as this witness knows, slnoe the'railroad, was put there, the Parish had. never repaired, it; he was present while the work was being done on these repairs and supervised it»
Q. What kind of material did you use in making these repairs, or this renewal? A. We supplied crook dxwstat drain tile, twenty-four inoh diameter, and we laid two lines of those tile across the roadway, and under the traok, and we used for filling briok bats and.these nigger head rooks, and oonorete made from briok bats and stone and relnforoed with wrought iron bars, and two inoh plank laid on top of the oonorete. And we used the same surfacing material that oame from the road on the excavation. It was very hard to excavate; we had a good deal of picking to do, it went rather slowly, and the road material proper was sixteen inohes thick over the box and on each side of the box it was ten inches thick, showing it had been filled up from toxic time to time, and had give down that muoh. Also used river sand, such as is used in gardens; commenced to work on the roadway and were compelled to divert it to the ilorth side of the roadway.
He testifies that they began work on the 14th whloh was a Monday and on that ds.y we layed praotio&lly fifteen or sixteen foot of the road on the wood side, putting in the srasxKfcaxftK orook and putting in the oonorete, end the next day we continued and laid the two inoh plank on top of the oonorete, for fear the oonorete was too green, and we filled up and taa?>*d it with heavy timbers, and the trafilo oould gm then go over it. The work on the street ear traok was done on the 18th and was absolutely finished and no further work was done on the morning of the 17th. Q. What was the condition of the railroad traok when you began work? A. It. was absolutely necessary to fix the oulvert under the railroad track when we bagan the work. After we Btarted on the railroad traok side the ground broke through, parting the ties, and it was dangerous for'any animal or--automobile ■ or.even people to walk along and we couldn’t get at that immediately, and we were compelled to divert the trafilo.: That was on the 15th.
<!• ■ When you oame to excavating that part of the'street tundea; the railroad track what condition did you find the ties and rails of the street oar line in?
A. There were two ties, X think, th*'t we excavated from under, that were loose on the wood side, and they were hanging four inohes from the rail, and there was an additional tie on the side of the gutter we did not think we should move, for fear that we might disturb something, which was also loose, end four inohes from the rail, that was hard packed with material that had been there for some time, and the spikes were not holding.
Q. What did you do as to the ties and rail whioh you Say WKanatx was not spiked together at that portion of the traok over your exoavation? A. We took great oare in setting a js-ok under the south side rail, end shoving those ties up and looking them fast where they laid, and we took great oare on the North eidó;_, the North side was lower than the South side, and we took great care in putting a long timber under, say about is®* ten feet long, to hold them exactly where they were. However, this was an extra precaution, I believe, because the material around those ties and rails was so hard that I- do not believe you oould have budged that rail, no matter what you did to it, and I didn't think it good polioy to disturb that rail.
Q. You said a rail was loose from a tie near the exoavation that you didn't touoh; which side was that on? A. The rail was loose on the south side, on the road side.
Q,. What was the condition of the ties to the east of the exoavation? A, The one that was hanging loose was he.rd paoked under it at the time we left it, as we found it. We left it that way, beoe-use we did npt feel that we should disturb it.
He testifies that the work did not lnterfeee with the sohedule of the street oar company, warned the motorman to run slow whioh he did part of the day but later on when he was crossing very nioely he aotually forgot sometime to run slow. That was on the ISth.
Q. When you went there the day of the aooident, and subsequently had there been any change in the level of the street oar traoks over your excavation? A. Hone whatever.
Q. fir any ohange in the alllgnment of the traoks over this excavation? A. They were just exactly as we left them.
This witness being questioned about his experience in laying traoks answered he had been around industrial plants praotioally all of his life, he laid some industrial tracks and supervised the work. He further testifies that the traoks were ia a better condition so far as the culvert was concerned, after the work had been done, they took great pains in tamping up the ties hard enough to hold them with good material.
Questioned by the Court he said:
Q. The whole traok over that part of the oulvert; you say the oulvert was in better condition, but was- the traok over the oulvert in a better condition, or in as good condition as it was before you built this oulvert? A, It was praotioally just as it stood before I built the oulvert. I took great pftJnt pains to preserve everything e.s muoh as I oould, exoept that I fastened those ties, and those ties were about two inohee from this heavy oonorete and plank. There were- about two inohes allowed underneath them for filling,
Q. Was there anything above your concrete in the shape of filling or oonorete or anything else whi.oh would give way, because of rain or anything else? A. Ho chance. The road material I jammed in there consisted of gravel and shells, and they make a very solid tamping material.
Q. Did you disturb the traok in any respect the other side of your excavation? A. We did not disturb it; iu fact I don't believe we oould XXX have disturbed it unlees we would have went there with a piok and picked it up, and it would have been a good big job to do it. The ground is very hard.
Cross examination of this witness did not in any way materially vary from the testimony whioh he gave in his direct examination.

It would serve no useful purpose to .enter further into the testimony of other witnesses in this oe.se, and there are quite a number, but none of them in our opinion would materially change the testimony heretofore recited, and from the testimony quoted and from the exhibits on file, we are oonvlnoed that the xx Southern Cotton Oil Company, one of the defendants in this oase did nothing to oause the aooident in question, but on the oontrary did everything that could be done and that was required for the making of the oulvert in question which had no connection with the aooident.

The plaintiff in this case was working with Peniok and Ford and was a passenger of the traotion company on its' car on the morning of the aooident, had paid her fare; she describes the oar was running at a very high rate of speed and there were about sixty or more passengers, the oar skidded and finally ran off the track and the baok end of the oar hit the post, throwing her forward, the baok of her head was hurt, she was seated on the right side of the oar in the back and when she recovered she found herself in the front of the oar; she testifies further that Dr. Gelbke was there, she was injured on the left knee, and her left hip and the baok of her head, she suffered severe pains, Dr. Gelbke treated her from the day of the accident until August 9th, whe he discharged her, she went baok to his offloe several times after that, she goes on to describe the pains, her itmmm was bruised, but she suffered more from her side and head, she was laid up about two months, she received á salary of seventy five ,drug mil* dollars a month, she had a/obxxtoxx bill of twenty four dollars; she was.treated subsequently by Dr. Johnson and she says she weAt to hee at his offioe about her bill and he told her she owed him nothing. She xxkaxiti* subsequently went to work but could not get a position back but worked by the hour.

Both Dootors Gelbke and Johnson during the trial of this oase were in oourt frequently and were witnesses of various parties .in this litigation, but neither one of them was oalled to testify in behalf of plaintiff, and the only testimony to be found in this record is her own.

There have been repeated decisions of our Supreme Court end of this Court in just suoh oases as this, and we find that courts do not favor judgments for large amounts unless injuries are far greater than this plaintiff he a sustained have been proven..

As stated, we have only the testimony of plaintiff to be guided by as to the nature of her injuries, loss of time and we are satisfied that the amount she olaims is greatly exaggerated, she is entitled to receive the wages that she lost, §150.00, together with the drug bills she said she paid, §34.00, and in addition thereto we believe that $100.00 would be just and equitable.

Oxendine vs. La. Ky. & Navigation Co. 119 La. 191.

For the reasons assigned it is ordered, adjudged and deoreed that the judgment rendered in favor of plaintiff, Mrs. Olivia Sohlumbreolstand against the West New Orleans Light & Traction Oompany, and the Southern Cotton Oil Oompany, be and the same is hereby amended, and that there now be judgment in favor of plaintiff, Mrs. Olivia Sohlumbreoit and against the West New Orleans Light & Traction Oompany, in the full sum of $374.00, with legal interest from judicial demand, and that the judgment rendered against the Southern Cotton Oil Company be and the seme is hereby annulled and avoided, with oosts of both Courts to be paid by the defendant, the West New Orleans Light & Traction Oompany.

reversed -Judgment/araaxatii in part and-affirmed in part-


text:
    NO. 8726
    COURT OF APPEAL PARISH OF ORLEANS.
    WILLIAM R. WHITESIDE versus WEST NEW ORLEANS LIGHT & TRACTION COMPANY and THE SHOUTHERN COTTON OIL COMPANY.
   Dinkelspiel; J.

This suit in so far is the pleadings and the evidence is conoerned, is Identical with the case this day deoided in this ¿-^^llourt, of Mrs. Olivia Sohlumbreoht versus the West New Orleans Light & Traction Company and the Southern Cotton Oil Company, and we refer to the decision in that oase on all the points therein deoided, except the question of damages and the amount thereof.

In this oase plaintiff was a passenger on the oar of the West New Orleans Light & Traction Company, on' the morning of June 34th, 1930, and claims damages for injuries resulting from sold accident, testifying that he had fraotured his thumb, and of the right knee, severe bruises on his head, lasoeration and strain of his baok, just over the right hip, from which he continued to suffer even up to the day of the trial, on April 37th, 1933; he was treated by a physician, oonflned to his fromd bed for seven days, unable to work for thirty days and claimed he still suffered with jflat pains in his baok just above the right hip, he contends that his injuries are permanent. Prior to the accident he had never been siok, passed an examination for enlistment in the United States Navy, was accustomed to work as boiler-maker helper and eleotrlcian; he incurred a debt of fif'ty dollars for medical attention, he lost the sum of #160.00 during the time he was laid up on aooount of his injuries.

Dr. Oelbke was his physician and he testifies in this oase, and his testimony shows that he suffered Sxs contusion of the head, baok and hip and his right thumb was fraotured, that he was confined to his bed for seven days and under .treatment for thirty days.

It is further shown in this reoord that the plaintiff lost his job and was not able to do anything but laborer's work,, due to the injuries.

The trial Judge saw and heard the witnesses and therefore had a better opportunity to judge of the oharaoter of the testimony offered, than we have, and he rendered a judgment in favor of the plaintiff for the sum of $610.00.

It has been held that the District Judge who saw and heard the witnesses was in a better position than this court to judge of the ohsraoter of the testimony , and therefore we att&oh great weight to his judgment, whioh will not be disturbed unless clearly wrong or manifestly erroneous.

LaGroue vs. The city of New Orleans et el. 114 La. 253.

Also see Burke vs. Werlein, 143 La. 788.

Johnson vs. Milhas, 141 La. 468.

Plaintiff has prayed for an inorease in judgment in the sum of $1900.00. We do not think he is entitled to this amount or any amount beyond what the Judge aquo gave him.

We have examined the authorities and from the evidence in this record, we are of the opinion that the lower Court has done justice.

or the reasons assigned this day in the case of Mrs. Olivia Schlumbreoht against the seme defendants, Ho. 8735, it is ordered, adjudged end decreed, that the judgment against the Southern Cotton Oil Company be reversed, and the judgment against the West New Orleans Light & Traction Company for the sum of $610.00 with legal interest from judicial demand be affirmed, costs of both courts to be paid by the West New Orleans Light & Traotion Company.

-Judgment affirmed in part and reversed in part-


author: Charlee F.Claiborne,Judge

text:
    David H.Culligan vs Widow Ernest Gomez and Al
    No.8728
    Charles F.Claiborne,Judge
    January 22nd 1923.

   David H.Culligan vs Widow Ernest Gomez and Al Appellants

No.8728

Charlee F.Claiborne,Judge

Ibis is a suit by a real estate agent for a commission,

It is based upon the following contract:

■ Hew Orleans La.October 8th wq 1921
I hereby appoint David H.Oulligan my exclusive agent, and Authorise him to sell my property 7816 Poplar Street for $7,760.00 or for any other less «mount which I may hereafter accept .in consideration of his efforts I give my agent- sole authority to sell thfca property for a period of — to be released Hoyember 8th-1921 without farther notice- from date .and thereafter until revoked.by 30 days previous notice to him in writing;X also bind myself to refer to my agent all prospective purchasers or other, agents who come- to me regarding this property and I further agree not to interfere in the sale of the property during, the term of this agreement.I agree to pay David H.Oulligan,my agent,a commission of 3 per cent of the total sale price,which commission shall be considered .earned when the agreement of sale is signed and deposit made by purchaser,no matter by whom the property is sold.I authorize my agent to accept a deposit of 10fa of the purchase price,said deposit to he non-interest and non-penalty bearing."
"Signed" Mrs E.J.Gómez,Owner .

The petition alleged that the defendant Mrs Gomez for herself and her coproprietors signed the above contract;that on November 4th petitioner presented to.Mrs Gomez an offer of $7600 from M. de Lucas agent;that Mrs Gomez accepted said ftffer on two conditionsslat that the prospective purchaser should make the deposit of the ten.per cent in her hands,and 2nd that xne identity pf the purchaser should be dipclosed;that petititoner complied with both conditions and notified Mrs Gomez on the same damthat the purchaser was Itr Sizer and that he would deposit the $750 in her hands;that Mrs Gomez then declined to carry out the sale;that on November 20th after the lapsing of the contract urs Gomez sold said property to the same Ur Sizer for $7600 ; that Mrs Gomez was not serious in' resect-ing the $760.0 offer,but resorted to a subterfuge to evade the er.Therefore plaintiff - * % ' payment of a commission to,petitic_____ tyvtfáC' ,P >Í ‘ claimed three per cent comm^ésion on $76Q0/vor $286 frith In#ér and costs.

The following is a letter addressed by oulligan.on November 4th;

Urs E.J.Gomez and Others

Dear Madam

Relative to your request that we.furnish you the name of the prospective purchaser who has.made us an offer of $7600 for your property No.7816 Poplar Street,.which amount you state you are willing to accept but will not do so until you assure yourself that our purchaser would not' be a detriment to the neighborhood.In compliance with this request we beg to advise you that our prospective purchaser is Mr O.L. sizer.In the event that this party should subsequently purchase the property or be instrumental in this sale,we will charge you the uewié- commission of three per cent on the sale, Complying with your further request Mr Sizer is willing to malee the deposit of ten per cent of the purchase prlee with you as exeoutrix upon receipt of the deposit you to pay us our commission of three per cent On the sale.*

The defendants admitted the oontract alleged;they admltt ed the ofrer of $7fe00 in the name^ of de Lúeas,agent and averred that plaintiff withheld the name of Sizer for the reason that petitioner fcnew that Mrs Gomez had been negotiating with Mr Sizer anc that she would not accept an offer of $7600 from him.. They denied accepting the offer of $7600.because'any of Per less than $7760 wpuld necessarily have to be submitted to all the-defendant¿.They denied that Mrs Gomez refused the offer of $7500 as a subterfuge,but aver,on the contrary,that after the expiration of plaintiff's contract,they again refused a similar offer from Sizerjand they allege"that finally,throught the efforts of one White,to whom they paid the us/Sual real estate commission,an offer,q‡ §7600 was obtained from Sizer and aceept-ed by respondents j-táj&tvoharge that de Lucas was not acting as the agent of Sizer but of the plaintiff himself with a view of securing control of the property and selling it later to. Sizer for a larger price as they knew Sizer had already made an offer of §7500.

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

There is no preteilse that the plaintiff procured a purchaser for §7600.This purchaser was procured by White.The only pretense is,thaw plaintiff procured a purchaser for §7500 who was accepted by the defendants.Therefore he can claim a commission only upon §7500hmt the evidence was does not satisfy as that Mrs Gomez accepted the offer of §7600.

The best that can be claimed,is that when the offer of §7500 was tendered to her she expressed the intention to accept it on three conditions : First.-That the 45 days delay would bfe eliminated;Second- That the name of the purchaser would be divulged to her,and Third-That the deposit would be made in her hands.The plaintiff complied with the, first two conditions,jiut tied a string to the third condition when he tendered his check for the deposit with the following provision:

" Complying with your further request Mr Sizer is willing to matte the deposit .of 10 per cent pf the purchase price with you as executrix,upon receipt of the deposit you to pay us our commission- of three per cent on the sale.1-

This conditional compliance was not such compliance as was binding upon the defendants.

It further appears by the testimony of Mrs Gomez,as stated,and reiterated by h»r,that _er consent to accept the $7600 bid tras based upon the condition of its acceptance by her co-proprietors also.This they refused to do.

Besides no verbal acceptance was admissable against Mrs Gomez.Her counsel made timely objections» to oral testimony but was overruled.A written acceptance was in contemplation of the parties.At the bottom of Sizer’s $7600 offer to buy are the, following yof&Bt

11 The owner of the above.property,accept the above offer *nd agree to pay David H.Oulligan - % commission

Until the owners had signed this acceptance there was no Contract binding them^upon them and they could recede from 4jay pfier stipulation on the subject.S M .349-627-88 A 35-46 A ,650 Laroussini 68 A 424-106 La 310-116 La 810-144 La 927^/^^^

quiere is absolutely no testimony' fastening any fraud 1 upon*>Mrp' Gomez-She rejected Sizer's offer of $7600,during plaintiff‘..s contract .and again' after his contract ara^old .exclusively through IShite's offer of $5600 made the expiration -of plaintiff's offer .No offer of $5600 had. ever been made prior to that time by Sizer.

Mrs Gomez cannot be hied for the whole commission.

-She was the-.owner of anly. one fifth of the property,and plains tiff fcnew it.She never had any authority from her Co-propietors ■ to. sell the'property for less than $7760/and never represented herself as haying such authority.Therefore she pan1be held only for one fifth' of the commission.

But as Burning that she can be held for the whole of that'.; commission,it is not possible to hold her co-proprietors. 'There is no evidence in the record,verbal or written^that any * pi the co-proprietors authorized Jirs Gomez to sell for less than. $776.0-

But even, if Mrs Gomez and her oo-proprietors .are liable^ there is ad láwmakipg them liable in solido.

It'\'i%'. tháf©flore ordered. that the judgment herein be reversed,.and .. set aside and that there now be Judgment in. favor of defendants rejecting plaintiff’s demand at his costs in both courts.