author:
Honor John at. Paul. By CHARLES F. CLAIBORNE, JUDGE.
      By Dinkolspiel; J.

text:
    NO. 8105.
    STANLEY A. HARVEY VS MRS. W. T. NOLAN, ET AL.
    STATE LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

   opimos,

By his

Honor John at. Paul.

Plaintiff aliagas that on Horember 24th 1916 defendants ^§Ta him a ninety days aptlan on six certain lota of ground for $1900; that within said period he notified than of his intention#te avail bins aIf thereof and demanded of then a transfer; that defendants refused to abide by their obligation, but on the contrary sold the property to a third party for $2600, thus making a profit of $600 on his preparty; which profit plaintiff non claims sb damages.

Ilio defense set up in the answer is that said option was obtained by fraud; towit, that at the time thereof and prior thereto plaintiff had been employed by them as their agent to sell said property, and had actually than found a purchaser therefor, towit, the rery Bane party to whom they sola, and at the Tory same price for which they soldj and all of which he failed to disclose when he obtained said option. Defendants farther Bet up that the option was without consideration; and finally that it was an attempt by plaintiff to evade the provisions ef Aet 42 of 1908, relatire to real estate agents, with which plaintiff had net complied.

I.

'.Calcing those up in reverse order we will first dispose of the defense last made. Aot 42 of 190E requires real estate _ agents to furnish a certain bond; whioh plaintiff had not done. But whatever may or may not have been the case on other occasions, it is certain that on th&s one occasion at least plaintiff did his beat not to aot as real eBtate agent, and to that end merely exercised a privilege lawfully accorded tofc.ll, towit, that of purchasing an option, Aot 249 of 1910

In so doing he was obeying the law, not violating it. for it is not unlawful to do that which the lav/ allows, even when done for the express purpose of avoiding something whioh the latf <f-3 forbids. Reeves vs Harper, 4* An 516, 522;■Scottish Mortgage Co vs Ogdon, 49 AB 10,14.

II.

She option declares that It was given in consideration of |10, reooipt whoroof is acknowledged in the instrument itself; and It is testified and not seriously denied that plaintiff gave defendants a perfectly good oheok for that amount. Defendants howevsr did not collect the oheok, and have aot even attempted to do so. But the answer to thiB is 1» the maxim "Volant! non fit injuria," for the consideration agreed upon was certainly put within the power of the defendants!; and if they did not choose to grasp it, their voluntary inaction oasnot result to their own benefit and to the prejudice of plaintiffs

Ills

Tha defense that theeption was obtained by fraud is net horas out by the evidence. Plaintiff testifies that ha had had tha property fer sals for account of the defendants and had offered it to one Peyrefitte. to whom defendants afterwards sold it; that Peyrefitte had offered $600 for about one third of it (towit, 46 fast eut of 106 feet front on Q'Railly Street); that the offer was submitted to defendants but the latter refused it; that defendants wanted to sell the whole property and at once; and that it was not until December 6th 1916, or nearly two#weelce axter the option had been given, that Peyrefitte for the first time showed any inclination whatever to buy the whole property; and that on the same day he and Peyrefitte had agreed on a price and had closed a deal for $£600o

In all of which plaintiff is corroborated in substance and- in detail, by Peyrefitte; and there is not a line of evidence in the record, written oh oral, which contradicts this testimony in the slightest degree, or even suggests that it might be untrue.

3» auoh far the defensas aat up la the answer. Bat when the ease was on trial and the evidence helas take» a aew dafansa was developed, v/hioh though wholly untenablw in law, yet prevailed with the trial judge and formed the basis of his judgment; towit, that defendants when they gava the option did not know, or did not intend, that it should he a binding obligation, aooording to its true tenor, and merely thought or intended that it should serve as a formal constitution of agency.

But the physical ovidenoe in the record shows that this option was neither hastily nor thoughtlessly given. On the contrary it was the outcome and result of successive and different written propositions, all of which were submitted to a practicing attorney of more than 25 yaars experience in suoh matters, aoting for defendants, who made written suggestions of changas to bo nada and even assisted with his own hand in drafting the instrument as finally agreed upon and exeoutad.

But be all that as it may, the lav/ in this state, and the world over, is thoroughly well Battled, that one who voluntarily affixes his signature to a written instrument obligates himself aooording to the very tenor thereof; and^will not be permitted to say that he did not intend to obligate himself Taut meant to bind ¿himself a > only in some other way or oven not at all. DeSota Building Co vs Kohnstamm, Our No. 7267, and autheritios there cited; Bagneris vs Odde, Our No. 7471, and authorities there olted; also Boagui vs Fouchy, 26 An 694 and Advance Thresher Co vs Roger, 123 La 1067. Por signatures to an ohllgatlon are not mere ornaments, and parties will not he reliered therefrom simply because they did not know or did net intend what they signed. Boulet vs Sarpy, 30 An 494.

V.

But the $600 due plaintiff are subject to a credit of $260 reoelred by plaintiff as a deposit from Peyrefitte and dsduoted by hin from the purohase price; and also to a further oredit of $77.66 for the taxes of 1916 due by •plaintiff but paid by defendants. Hence the balance due plaintiff ly defendants is -)272o46, as stated in plaintiffs letter of Bobruary 1st 1917. And accordingly

The judgment uppealed from is therefore reversed, and it is now ordered that there be judgment in favor of plaintiff, Stanley A. Harvey, and against the defendants TJlysse Marlnoni, Jr. and Mrs. Olga liarinoni, v/lfe of William T. líolan, for the full sum of Two Hundred and Seventy-two u 45/100 Dollars (>272.45) and the costs of both courts.

S. A. HARVEY VS MRS. W. C. NOLAN & al.

No. 8105.

By CHARLES F. CLAIBORNE, JUDGE.

I owe it to the able District Judge and to our learned associate to give my reasons for differing from them in opinion in this case and concurring with the organ of this Court.

The instrument sued on is undoubtedly, upon its face, an option. But the defendants say that it was intended only as a power of attorney, and was nub in that form for reasons which it is not necessary to state. The plaintiff denies this. Wiom is it our duty to believe? The written instrument must incline the scales in favor of plaintiff. The intention of the parties and their risita and obligations must be found in that instrument. It is good and universal law that parol evidence shall not be admitted to contradict what is contained in an act. C. C. 2276. It is unassailable except for error or fraud. The defendants, through Mr. Ulysses Marinoni do not plead error, nor surprise, nor that he did not know what he was signing, nor that he thought that he was signing a procuration. He took an active part in the confection and writing of the instrument. His is not a simple, untutored, unsophisticated mind. He is a lawyer of learning and experience. His only defense is that the document does not contain his intentions nor those of the plaintiff. The burden of proof is upon him. The plaintiff answers that it contains the intentions of both parties. There is no other evidence in the case except the instrument itself. Defendant does not charge fraud in obtaining his signature; but if he does, he fails to prove it by the record. If Harvey had found a purchaser for only $1900 and the act of sale had been passed for that price, Marinoni might have refused to pay Harvey any commission, on the ground that he was merely carrying out the terms of the option and that Harvey was not acting a3 his agent. This Court cannot put such a construction upon this instrument which would enable either party, as his interests might dictate, to treat it as an option or as a procuration. The rights of the parties were transfixed by the instrument, and upon its unambiguous terms they must be judged. There is nothing in the law which prevents a real estate agent from reporting to the form of an "option" rather than that of a "procuration", for the purpose of effecting a sale for the owner. Indeed it is not an uncommon practice. There may be more money in it for the agent if he procures a larger price than the option,and a greater incentive for his exertions. He may even obtain this option after he has secured a purchaser. It is only where he has acted as agent and obtained a purchaser prior to the option that his action would be contrary to good morals and to law if he obtained an option for a less price than the one he had previously secured from his purchaser.

Defendant understood that an allegation of that kind was an essential foundation of bis defense. In his answer he alleges:

"That thereafter (after plaintiff had found a purchaser) and without disclosing to respondents this fact, and denying that he had found a purchaser, he thereupon fradulently obtained respondent's signature to the document sued upon".

No evidence supports that allegation.

It is proven, on the contrary, that although the relations of Marinoni and Harvey; as principal and agent, began prior to November 24th, when the option was signad, it was only on December 6th, that Harvey obtained the consent of the purchaser to buy the lots for $2500. There was nothing in the law which prevented Harvey, agent, from buying fresa Marinoni, principal, or from obtaining from him an option, unless, as we have said before, he had already secured the purchaser . on the date of the option. The evidence is to the contrary. I think therefore that the option was good and valid, and that the defendant must pay the profit he has .made in the sale. Doriocourt vs Lacroix, 29 A. 286.

NO. 8105

COURT OF APPEAL PARISH OF ORLEANS.

STANLEY A. HARVEY versus MRS. W. C. NOLAN, et al.

Dlnkelspiel; J.

-Dissenting opinloa-

By Dinkolspiel; J.

This litig'-tion arises from the following facts!

Plaintiff olidas tlwt On November 34th, 19Í8, de-fsnl.'nts granted unto him the right to purohase within ninety dt.ys from said date, certain property under the terms uni conditions mentioned in option.

jtirther olaims that the option in question was rexisted in Convey'..noe Dock 335, folio 543 on November 35th, }516; further alleges that within the said period of ninety days plaintiff notified defendant of his desire to avail him,elf of the terms of the said option to buy property in question and requested defendants to appear before l'.otury Dreifous to paso s!-id not of sele.

Alleging further that defe^nants announced their intention, after at first promising to pass the e,ct of sale, not to be bound by the terms of said option and felled and refused to sign the sot of sale to plaintiff notwithstanding emioabls demand and notwithstanding defendants having been put in default.

Alleging further that defendants have undertaken to sign what purports to be an aot of sale of said property to one G. A. Peyrefi :to and have caused the said alleged sale to be reoorded in the Conveyanoe Offioe and force alleging also that said sale is without/ beoause of the registry prior to the time- of the alleged sale of the option in favor of plaintiff.

Finally alleging that plaintiff had the opportunity in the event that defendants had performed their obligations under the terms of the said option and had sold the said property to plaintiff, to resell the same for the price and sum of Twenty Five Hundred Dollars, ¡paking a profit faxxiiw out of said option, oof the sum of Six Hundred Dollars and avers further in the alternative in the event that, speoifio performance as herein prayed for is not deoreed in hi? favor that theie should he a Judgment in the sum of Six Hundred Dollars as damages.

The prayer of the petition is that defendants be cited and that there be judgment in favor of plaintiff for the sum of Six Hundred Dollars, costs end for general relief.

To this petition defendants filed various exceptions, one, wait of jurisdiction rations materias, second for oyer of the notioe of accetjtanoe, third misjoinder of parties, fourth, petition discloses no ot-use of action.

These exceptions being referred to the merits answer was filed which substantially xxexXx asserts the following propositions:

That during the months of September and October, 1916 defendí jits employed plaintiff as their agent to sell the real estate described in plaintiff's petition; that plaintiff accepted the said agency and undertook to 3ell said property aa agreed and did actually find t. purchaser, one G. A. Psyrefitte, but failed to di ideas to defendants, this fact denying that he had found a purchaser and finrlly obtained defendants' signature to the document and that plaintiff's relation ae agent never terminated and as such agent he oould not under his oontraot Jas terminate same to his own enrichment*, without fully accounting to defendants for his agency and v/hioh he never did.

Alleging further that the act of plaintiff was a fraud upon defendants because he failed to give a full disclosure to them and attempted as agent to enrioh himself at defendants expense; further alleging that it was oontrary to the public policy of the State of Louisiana to act in the manner set forth and that it was an attempt by plaintiff to ohange the relation of agent to that of a third person, without rendering an aocount of the agency to defendants and alleging in reconventioh that plaintiff as their agent oolleoted from G. A. Psyrefitte on December 6th, 1916, the sum of $350.00 whioh he had failed to pay defendants^

Wherefore he was no-6 entitled to any commissions J on tills st-.le having noted in fraud of Ills prinolpuls,, rights and oontrary to their best Interest.

The prayer Is that plaintiffs suit bs dismissal at his- costs and for judgment in raocnvention in favor of defendant against pl..intiff in the sum of 1)350,UD v/ith interest from Deoember 6th, 1313 until paid, for costs and general relief.

Oh the trial of this c/ae .-It-intiff testified that on üóvembor 04gh, 1916, he obtained from the defendant an option v/hioh he identifies -ni which is annexed to his petition. Further testifies tint he exercised the option that was given hli.. «.¡id produced > nd annexed to his testimony said option of the date as stated in his petition and further tesiifiei th-.t the c..-tion was written at hr. II rinoni's Law Offios on his our. letterhead t-nd further testifies that defendants gave him a synopsis of all thj titles of the -property the option ofilled for ^.nd th-t notary Dreífoue examined the title and on January 5th notified defend.r.ta tl.: t he \n.s re.-dy to pass act of sale on January 9th but defendants failed to appear at -che notary's offios and tin. t Mr. Peyrefiite was the purchaser of the property and th-.t he bought under plaintiff's option and was to pay the sum of Twenty Five Hundred Dollars; also testified that he gave in connection v/ith his option to ilr. Us-rinoni, the sum of ten dollars in check.

He further testified:

Q. A long time prior to the date of this alleged option you noted í'-b Ur. llarinonl's agent, did you not?
A. Yea sir,
Q. Selling his real property?
A, Yea sir.
Q. Were you his agent up to the 34th of Jovea'oér?
A, Yes sir.
Q. You also was given this particular property to sell?
X« Tes sir.

He further testifies,’ without literally quoting, that Hr. Marinoni had a. lot of vaoant property and that he had sold to Hr. Peyrefitte, forty five feet of the property in question for the sum of Six Hundred Dollars but the Herinonis deolinsd the offer but dsoided to give plaintiff the option whioh he, Myrlnohi, did.

9. Tou know you were under no obligation to buy the property?
A. Ho sir. He- wanted mp to sell; said he needed the money, that he owed' the Bank ten thousand dollars and he wanted me to sell the entire property and not a part.
<J. Hr. Harvey, did you etfer disolose to Hr. Mrrlnoni that you had en offer of Twenty Five Hundred Dollars for this property?
A. I got the offer- oh December 6th for Twenty Five ¡faradmfd Hundred Dollars and X acoepted the offer promptly and I notified Mr. Marinoni I was going to exsroiae ay option.
9. Did you disoloee to Mr. Marinoni you he4 this offer of Twenty Five Hundred Dollars on Deoember 6th?
A. Ho sir,
Q. You thought you were under no duty wh&teyer to tell Mr, Marinoni what you were getting for this property?
A, Ho sir.
Q. As you were aoting ae Hr. Marinoni's agent for a long time why didn't you tell him?
A, Beoause on Deoember 6th, my agency peased and X considered he was dealing with me as an individual not as an agent when he- sold me the option. ‘

He further testified, without quoting, that he was dlokering with Mr, Peyrefitte for a period pf three months but not on this particular property but on other property belonging to other people.

He also teetifies that he had sold property for Marinoni- during 1916 and 1917 as agent.

He. goes on to testify that he oould not get anybody to buy those six lots as a whole and''then Marinoni offered to sell them to ;he witness and he wrote up the option on his own typewriter, in his own offioe, in his ovni words and offered some to me and I paid him ten dollars in a oheolc as a part payment for the option in question.”

On oross examination:

Q, Coming to the date that you had Ur. Marinoni sign this alleged option, had you terminated your agenoy with Mr. Marinoni?
A. The oontraot was only for a speoified time end I presumed it was terminated and evidently he considered it so and I considered it so.

And going on further to testify in this same connection he substantially says that he was representing Mr. Marinoni, trying to sell this property all the time for him as his real estate agent claiming in this oonnection that he was ft speculator and acted as an individual.

He further testified that when he got Mr. Marinoni to sign the option he had no prospective jmrohaser and that at that time he was not diokerlng with Mr. Peyrefitte for the six lots and only on the 7th of Deoember did Mr. Peyrefitte buy the lots in question.

Mr. Merinoni was called by plaintiff as on oross ex-mln; tion as under Act 126 of 1908 and substantially testified that he signed an option at the request of plaintiff who at that time and prior to that time was aoting as his agent, not only for the sale of the property in question but had aoted for him in other sales arid that plaintiff told him, Marinoni that he had sold the property) that he had a purchaser, but did not inform Marinoni of the name of the purchaser or the exact amount of the purchase prioe; always considered plaintiff as his agent and thought he was in duty bound to tell him the name of his purchaser and give him the aot purolv.se prioe; always considered plaintiff ae his real estate agent and had the utmost oonfidenoe in Mm, That plaintiff olalaed that under the rules of the Real Estate Exchange whioh allowed him only three per cent commission and that this was a very hard pieoe of- property sell, being unimproved property on Board Street; that he oouíd handle this property but for not less than one hundred dollars commission and suggested that in order to proteot plaintiff,for some reason or other, it would be better to write up some sort <S£ option so that plaintiff, as his agent could be better able to sell the property and witness having the utmost oonfidenoe in plaintiff told him to put the option anyway he wanted and throughout Hr. llarinonl's entire testimony he wwears constantly and repeatedly that plaintiff was his agent and that the option was given to him at his request for the reasons heretofore testified to and that was the only reason it was given to him at all.

Hr. G. A. Peyrefitte, the purchaser of the property in question testifies that he was the purohaser of the property in question and he signed the aot of sale before Hr. Henry P. Dart, Jr. líotory Public and that he was not induced to go to Hr. Dart's office to purchase this property, went there of his own free will and accord.

Q. Hr. Peyrefitte, will you tell the Court about what time it was when you started dickering with Hr. Harvey for the purohase of this property?
A. It was several weJcs before thE I made the deal; I anewered *-n a Vi about some other property whioh I could not get and then got Hr. H rinoni's lots; at first the prioe asked wc.e three thousand dollars and for several weeks I v/as dickering with plaintiff and finally he offered the property to me for Twenty five hundred dollars; I accepted the offer aid I gave hi... my cheok for ten per oent of the amount, $350.00; bh,.t was sometime in December but during the month of October Hr. IP'xvey w-..s always trying to sell ¡¿.rinoni's proferto'to witness; testified further that he never called upon Mr. Harvey but Harvey constantly urged him to buy this property but never would tell him who the owner was although he asked him several times.
Q. Did he leave the Impression he owned It?
A. ITo sir; I thought he was selling It for someone else. Consequently he bought the property dlreot from Mr. liarinoni for the same prloe.

On oross examination:

Q. Mr. Peyrefitte, when you first went to dee-l with Mr. Harvey.lt was the latter part of Ootober, 1916, id that a faot?
A. Yes sir; it must have been five or six weeks fully before ±ha I gave him the ohsok; he was weakokneed and was holding off all the time for a price.

The witness further testifies that he started to deal with plaintiff for two of the lots end when this offer was not aocepted and he could not buy the property that he wanted to buy, he finally bought the property in question.

A oareful investigation and olose study of this oase has oonvinoed/JHC^hs.t plaintiff had been the agent of defendants end as such successfully sold several pieces of property gaining the confidence of defendants.

Originally when this transaction began and defendants desired to dispose of the property in question they sought plaintiff and put in his hands the sale of the lots mentioned in this record. The prioe fixed was $1900.00, $100.00 of whloh was to be paid to plaintiff as his commission for the 3ale.

Plaintiff had oharge as agent for defendants, in this transaction, as he had oharge in former transactions ; had sought purchasers and amongst them was Mr. Peyrefitte who did not wish to buy but one- lot and one half and for that purohase offered Six Hundred Dollars, whioh offer was suomitted to defendants, who rebooted same; subsequent to this plaintiff endeavored time and again to dispose of the property in question as a whole,without success; he had met the present purohaser and endeavored to sell to him but the purohaser at the time refused to buy endeavoring to buy another piaoe of property whioh he considered too high for his use and was finally persuaded to buy the property in question for Twenty Five Hundred Dollars from plaintiff. In the meantime, whilst dealings were going on between plaintiff and Hr. Peyrefibte plaintiff Hugmaisi suggested to defendants thst an option be given him at the same prioe whioh they were willing to aooept from other parties and irrespective of the iafsadKEti* difference In the testimony of plaintiff and defendant on this point, the one that It wus sn option outright, irreapeotive of agency and the other the rever ;e, it ended in the sale of the property for Twenty-Five Hundred Dollars.

The purohaser has testified that he is disinterested us between the plaintiff end defendants, Shut he has became the owner of the property, title standing in his name and has paid Tienty Five Hundred Dollars; he swears and there is no contradiction us to his testimony. I','(my’|lopinion

It is absolutely true in^tfBopaiwtaBcthat during the time that ha wo3 looking for property in that neighborly od plaintiff w'-s insistent in trying to dispose of this property and during the ii term of his agency was urging purchaser to complete the trensaotion and finally oonvlnced that he had found a purchaser, being the same gentleman who has testified in this os.se he sought and / optained ojition in question, knowing at the time when he got the option that he was going to sell this property, not beoause he had the option, but simply because he saw a ohanoe and opportunity of making Six Hundred Dollars and when the defendants were notified to come to the Hotary1 Office, Hr. Dreifous, to sign the aot of sale, it was the first opportunity they had to know that their agent had mislaid them, virtually deceived them and declined as they has a right in my opinion, to sign, and subsequently sold the property direct to the purchaser.

Under these oircumstances I cannot oonoeive how plaintiff oan possibly expect to enrioh himself at defendant's expense.

In this opinion I am confirmed by the Judge of the Court aquo who saw and heard the witnesses and therefore had a better opportunity of judging not only from their evidenoe but having them before him and was therefore in a better position to decide this oase that I am. He has tal done so in a very able opinion which is herein made part of this, my opinion in this case.

We oopy in full verbatin the Judge's opinion:

"This is a suit by plaintiff to xascsac recover from the defendants the sum of six hundred dollars in default of a Judgment for speoiflo performance.
It appears that plaintiff had been acting for some time as the real estate agent of defendants, and was engaged in an endeavor to sell the particular property herein described as subject to ±5t his opition. He was particularly authorized to sell this property for the sum of #1900, but there was some hitoh in the negotiations.
On November 34 Harvey olalms to have obtained an iadixitaakij: option individually on the property for #10, which he olalms to have paid by oheok. He continued •to act as agent, and finally, after securing the so-called option, he undertakes to sell the property for #3500, to one of the prospective buyers with whom he was negotiating as the agent of defendants. When the defendants discovered that his agent was thus speculating upon him, he declined to acknowledge the validity of the so-called option and himself sold the property to the person who was the same individual with whom plaintiff had been conducting his negotiations.
The sale was mads for the sum of $3350, thus figuring the total of $3,500, allowing $250, She fee stipulated to he paid Harvey.
There is no evidence that defendant understood that there wa3 a distinct option given Harvey nor any evidence that the $10 was paid except the unsupported evidence of Harvey that he gave the check, and a denial by defendant that he received the money.
Agency requires the most careful conduct on the part of the agent. He is not, in good faith, allowed to speculate on a misunderstanding of his principal but is bound to disclose what he has learned in his agency to his principal, and cannot be allowed to privately reap a reward from his knowledge.
It appears to me that he is not entitled to a judgment for damages but must account for the money he has received on acoount of the sale.
Plaintiff has received $350, when, by special arrangement, he is entitled to withhold $125. He must account for the balance."

For the reasons assigned, I respectfully dissent the majority opinion rendered in this case.

-Dissenting opinion-»


source: Caselaw Access Project

author: By Dlnkelspiel i J.

license: Public Domain

text:
    No. 8115.
    Court of Appeal Parish of Orleans.
    Christine Davis, widow of Frank Whitfield versus City of New Orleans.
    By Dinkelspiel; J.
   By Dlnkelspiel i J.

Plaintiff as the widow of the deoeased has brought this suit under Aot Ho. SO, page 44 of 1914, known as the Employers Liability Aot, for injuries received by her late husband, Frank Whitfield, while in the employ of the defendant Company as a laborer.

The answer sets up, admitting plaintiff had been a laborer working for the defendant Company but that he had abandoned his work and involuntarily exposed himself to the dangerous hasard which was outside of the soope of his employment and which takes the case out of the protection of the Employers Liability Aot and is a bar to the right of the widow to recover damages and further defendant denies that plaintiff received jris injuries while performing services a.rising out of an. incidental to his employment in the course A of his employers' trade, business or occupation but on the contrary avers that the deoeased was engaged in some mission which was entirely foreign to his employment and not contemplated or expected by his employers.

A oareful examination of this record discloses the faot that plaintiff was a laborer engaged actively on the works laying rails, taking up old and putting down new rails for defendant company and that during the oourse of his employment and whilst thus engaged at the time specified in the petition, October 5th, 1913, he was run over by an engine of the Illinois Central Railroad, running on a track next adjoining the traok of the Publio Belt Railroad upon which plaintiff had been working and from which he had stopped temporarily to seek shelter on said adjoining tack, under a box oar in order to shield himself from a sudden and short rain squall, .ana alleging further that plaintiff was run over, and although taken to the Chatlty Hospital, where his legs had to be amputated, he died the same evening as the result of said injury. That he was married to plaintiff, having no ohildren, who was dependent upon him for her support; that he was earning Sixteen and 80/l00 Dollars a week and plaintiff» widow of the de-oeased was entitled under the law to twenty five per oent of that amount.

The Aot No. 20 is full and oomplete in itself; presorihes the liability of an employer to make compensation for injuries reoelved by an employee in performing services arising out of and inoidental to his employment, in the oourse of his employer's trade, business or occupation, abolishing defenses of assumption of risk, contributory negligence and negligenoe of a fellow servant, in actions of personal injury and death and in Seotion 8 (8) fixes definitely compensations thereunder.

This aot was amended and reaffirmed by the Legislature of 1918 but so far as this suit is oonoerned does not in anywise affeot this oase.

All the facts of this oase to our minds have been proven beyond reasonable doubt and the only question for interpretation whioh presents itself in this record is whether or not, leaving his work during a rainstorm, temporarily and for about only twenty minutes and seeking shelter under and within a box oar of another railroad, he was actually engaged in the service of defendant company.

We have been oalled upon in our own Court to pass on a similar question; in the oase of Carter Paoking Co. vs. Mrs. Elizabeth Reinhardt, 13 Court of Appeal Rep. page 463, it was held "where the aooident is the main oause of death, it is immaterial under the Aot whether or not the employee be or be not peouliarly subject to have such aooident befall him or to suffer therefrom more than another differently situated; the sole question being whether the aooident was the immediate oause of the injury."

Also see Myers against the La. Ry. & Navigation Co. 140 La. at p. 937, citing numerous authorities, pro and oon, but the Court finally held the oompany liable.

Also see Arthur vs. Alexandria Lumber Co. 143 La. 307, where an employee was killed whilst he went into a framed building on the premises to take refuge from the rain and was killed by an electric ourrent, the Oourt held that the exception of no oause of aotion beoause there was no allegation that the death was by accident arising out of and in the oourse of the employment, there the oourt did not consider whether or not going into another building would taxks break the employment; the deoislon was on the question growing out of the right of a oause of aotion and the oourt held that no oause of aotion was set out under the aot unless there was the essential allegation that the injured party was there in the oourse of his employment and While performing his duties as suoh.

Also see the oase of Northwestern Iron Co. vs. Industrial Commission, 160 Wis. p. 633, where the Court held that "to protgot himself from undue and unneoessary exposure to the oold was a duty he owed his master as well as himself and it does not follow that he left his master's employment beoause he negligently allowed a standing oar to run into him while he was washing himself."

To this same effect is the oase of Moore vs. Lehigh Talley Railroad 156 N. Y. Supp. p. 620.

In the oase of Bzipsowha vs. Superior Steel Co. 259th Pa. p. 578.

In the Sundines oase, 218 Mass, page 1, also reported in the 105th Northeastern 433, it was held that "an employee employed in a shop does not go outside of her employment merely beoause she leaves the shop for lunoh and that a temporary absence did not suspend the employment and the injury sustained during suoh time arose out of and in the oourse of her employment." & 7^ ó- ■

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Oourt aquo be and the same is hereby affirmed, with costs of both oourts to be paid by the defendant.

Judgment affirmed,


author: CLa^u./o • CL.J¿Cx_.j,

text:
    Charles']?. "Claiborne, Judge»..
    JACOB FABACHER VS L. BLUM Appellant.
    No. 8116
    October 17th, 1921.

   JACOB BABACH3IT vs BLIÍIu. Appellant.

?To. one

CLa^u./o • CL.J¿Cx_.j,

c, This is a dr:,ajo suit growing cut of a. collision of automobiles.

Petitioner avers tint while driving up St. Uñarles Avenue on tlx- weed side between Octavia crd Joseph Streets defendant's automobile ran into hie automobile and damaged it to the orient oí C219.ÓS for v.hich ho prays judg.'.ort.

For answer defendant alleged that at the time of the accident his car was being driven down St. Charles Avenue, also on the wood side, owing to repairs going on to the pavement on the river sido, which compelled traffic to the wood side; that he was driving nearest to the neutral ground and blew his horn twice to warn the plaintiff; that the plaintiff was noi'lookinr ahead, and inctead of driving ahead to the right crossed the street and drove into defendant's car end injured it, for which he clriioo da:cages.

There v.as judgment for plaintiff, rejecting’the recon-ventioncl demand, and defendant has appealed.

The reasons for judgment of the learned trial judge woro as follows:

"It appears that the plaintiff was going up St. Charles Avenue at a fairly good rate of speed and-when he reached a point near Octavia Street, he noticed ,3 vehicle standing near that corner and obstructing his straight (course); to avoid this wagon he turned hi 3. machine towards the neutral ground, 3till going $£ & legal rat'e of speed. Almost simultaneously ghd-for a like reason, the machine of defendant, 'by his-chauffeur, sv/erved to the right and pointed.tovra.rds the neutral ground. It is entirely probable that neither" chauffeur saw the other in time to avoid, the accident. The fact however remains that plaintiff, under the--o!rdi> nance,: was entitled to the right- of way and was. entitled to go at the speed he was going. The defendant¿-h®wev.er,. was not in the Road, where he was entitled- to he, d'. -e.,..' the right hand side of St. Charles Avenue; coming down' town, which at that poiiit was the. le¿al '£lace for him'to be. I therefore feel that plaintiff was within the law at tha time.-of the accident; that defendant was not, and that he was to blame. Judgment for plaintiff".

"He can add-but little to these reasons. The evidence of-plaintiff and of two witnesses, disinterested and uniaipeached, establish^that plaintiff was driving up St. Charles Avenue oh. the right side of the wood side;, when he reached Octaviad Street, there was a wagon standing in front of Daneel Park, which forms the comer of St. Charles and- Octavia Streets; - 'in order'to avoid the wagon and proceed ahead of it, the plaintiff swerved his car to the left; in so doing, plaintiff came'in contact with defen- . dant's caf which was coming down St. Charles Street on-the wood, side, but as near the neutral ground as possible; plaintiff had not seen defendant's-car, but the occupants of defendant'sysa'r had seen plaintiff's car; the traffic regulations reauir'e.autót j mobiles going down town to drive upon the rive side óf St.'Charlhe Street, and those going up town to take the wood' side; defendant-'? justification for taking the wood side of the street; is'-thet the-" i-iver side was undergoing repairs and that the street waVhlócked; the three witnesses just mentioned testify that the street .-was not blocked between Octavia and the street above.;-that it was blocked only beyond arl above Nashville Avenue;' plaintiff swfeffS. ilct when bo tuned to the left to avoid the wagon, he. did not áee tbe defendant's oar, - and that they crashed into each other,'

There were three passengers' in defendant's.ear, namely the defendant's Wife, another lady, a resident of New Jersey, and the chauffeur - defendant himself was not in it. The chauffeur did not testify because he could not be found. The two ladies testified. They say that the river side of St. Charles Street, in that square, v/as blocked on account of repairs to the street. We think tho ^epo;^ranc^of^t^timony on that subí ect is with the plaintiff^, we therefore come to the conclusion 'that the street was not blocked in that particular square, and that the defendant was on the wrong side ofthe street. Of course this fact could not excuse plaintiff Sfos running into his car, if it had been shown that by the exercise of reasonable care plaintiff could still have avoided the collision. But 210 such condition is shown. The presence of the wagon explains plaintiff's reason for not seeing defendant's car, and for swerving to the left. No fault can be imputed to him under the circumstances. The two ladies testified as to certain admissions of fault and liability nade by the plaintiff immediately after the accident. But we do not think they are established, with sufficient certainty-

Judgment affirmed.

October 17th, 1521.


author: Honor John St. Payl, Judge.

text:
    NO. 8119.

      NATIONAL CANDY CO. VS NEW ORLEANS CAN CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   opimos.

By his

Honor John St. Payl, Judge.

On May 6th 1915 plaintiff and defendant, each acting through its awn general manager, entered into a contract hy which the latter was to furnish and the former was to take, at certain prices, all the tin cans the former might need in its business from said date until June 1st 1917.

On June 3rd 1916 one Kenneth J. leach, a travelling salesman in tho employ of defendant, with no other authority hut to take orders for immediate shipment, and solicit "contracts" subject to approval hy his superior officers, exeouted a contract with plaintiff which was word for word and figure for figure the same as the contract of May 6th 1915, except as to date of execution and date of expiration; which latter date was fixed at June 1st 1918^ that is to say, one year beyond the expiration fixed hy the contract of I.Iay 1915; thus making the two contracts overlap for the year between June 1st 1916 and June 1st 1917, and in effect extending the first contract for one year, towit, from Juno 1st 1917 to June 1st 1918.

This contract of June 3rd 1916 was exeouted in duplicate, as follows: One oopj retained hy the plaintiff, ttS was signed on behalf'of plaintiff hy thp manager, and ’accepted" for tho defendant by Leach as "Assistant Sales Manager"; and the other copy, signed hy plaintiffs hut unsigned hy loach, and containing a blank space calling for acceptance hy defendant's "Seneral Manager", was sent or delivered hy leach to defendant without further information; nor did p]aintiff make mention thereof, at that time nor for a year afterwards.

So that defendant's general manager took the paper to he a more "offer” to renew in advance for another year the existing contract, whioh still had a year to run; and therefore merely laid it aside for future consideration^, hut never accepted it.

X.

Of course, as regards third persons, the authority of an agent is measured net alone hy his instructions, hut also hy the apparent scope of his duties. Clarke Co vs Mc Guirk, 11 Orleans App. 6. But no matter how extensive the apparent scope of an agent's authority nay he, it is always limited hy this, that tho contract which ho makes for his principal must appear reasonable in the light of the circumstances under which it is nado. Kramer vs Dixie Laundry Co, 8 Orleans App. 284.

JUtd. in view of the foot that, by reason of the groat war then gaging in Europe, the prioe of tin plate had already risen so as te make «Toa the existing oontraot an unprofitable one, and was almost certain to rise still farther, we think it was unreasonable that any one should hare then,, that another person had giran to an agent^especially a subordinate, unlimited authority t® bind him for prioes thereon from one to two years in advance, with practical certainty of loss resulting therefrom. In other words, Reach had no authority to close such a oontraot, nor had plaintiff any reasonable ground for then thinking that he had

II.

It is said herein that defendant is bound because it failed to repudiate the now contract when it was first received, and did so only one year afterwards, towit, after the expiration of the first oontraot. Citing, 7 N. S. 143; 11 La 288; 3 An 468; 41 An 425, But the answer to this is, as we hare said, that defendant did not know that Roach had -undertaken to close a contract in its behalf, and henoe it was not called upon to repudiate something of which it had no knowledge; but, as said by the Bistriot Jufgo, "it was repudiated instantly when sought to bo enforced", at which tins defendant first learnt that Leach liad undertaken to hind it by signing the contract in its behalf.

November 14th, 1921.

The judgment appealed from is therefere affirmed.

Mew Orleans La,


author: Bp: Dinkelspiel; J,

text:
    NO. 8120
    COURT OF APPEAL PARISH OF ORLEANS
    SEABRON O. BROCK versus SAM C. BRAND.

   Bp: Dinkelspiel; J,

This controversy presents a two fold attitude. The first on the allegations of petition is that plaintiff is the sole owner and proprietor of the Model Machine Works, looated in the City of Hew Orleans, at 1110 Camp Street, where he is in full and complete possession of a going concern. That defendant, a resident of this City, asserting some right, title or ownership in and to said Machine Shop, or some of its contents, threatens to take physical possession thereof and thereby destroy petitioner's active1business which will cause him irreparable Injury and that a writ of injunction is neoessary in the premises. Alleging further that defendant has no right of title or interest in or to said shop or any of its contents or any of its machines and he has no right to assert any claim thereto or to take possession thereof or any part thereof. Alleging further that during the early part of 1920 the defendant entered into a verbal partnership with petitioner under the terms of which he advanced certain amounts in the purchase o1 said machine shop's equipment and so forth, amounting to $772.54, and alleging further that said partnership was by mutual verbal consent of both parties, dissolved on the 25th day of May 1S20; that plaintiff was to take over said shop for Ms individual account together with its assets and liabilities, which he did; that amongst other assets due the said oo-partnership-and taken over by plaintiff was the admitted past due account against the defendant for work done by said oo-partnership for him, aggregating an amount largely in exfess of the amount due by said co-partnership to said defends,nt and for -which amount, $727.39, plaintiff claims judgment and finally praying that a writ of injunction restraining defendant from removing or attempting to remove any of the machines or machine shop equipment at 1110 Camp Street, from said premises, and that defendant remain so enjoined ending these proceedings and the.!; he be cited to appear and answer to aemcnd and that after due legal delays and prccee-ungs had, plaintiff recover judgment against defendant .•?rpesi»ting the injunction issued end further rendering judgment against him decreeing said machine shop together '.vith ell of its ■-quipment end machines therein to belong to him and for judgment against him for the sum of §737.39, with legal interest from; judicial demand, for costs and for general relief.

On the allege:lons of this petition sworn to by plaintiff the Judge ordsnd that upon plaintiff furnishing him. bond in the 3ura of $800.00, the injunction issue.

To this petition there ,vas annexed itemized st ? :e.:.ent3 of decite and creditj svi ■ er.cing according to 1.e the amount claimed as due by defendant to plaintiff.

To this petitioner there was filed by the defendant on exception shot being a resident and domiciled in the Parish of Jefferson, thst this Court r. 5 no jurisidicticn ever the person of this defendant end sz specially pleads exception of jur-isd’ v.-.'.i.r. of this Court "rsticnae uer-cnce".

On the prayer of this exception after hearing the parties, the Judge made the following order:

"lhe evidsr.oe discloses that the defendant is a resident and citizen of the Perish of Jefferson. This deprives this Court of jurisdiction as to the demand and the injunction issued. Suit dismissed."

From this judgment there is this appeal.

The first question presented to us in this case is that the exception as such was not sworn to as required by Act 300 of 1914, Section 6.

Our answer to this is that this was not specially and specifically in the lower Court as it should have been done under the Practice s,nd Pleadings Acts, henoe for the first time it was presented to this Court end we cannot maintain it under the circumstances.

The next question presented, whether the partnership having been dissolved some months prior to the filing of this suit for injunction, there can or cannot be a judgment against the defendant, a citizen and resident of the Parish of Jefferson.

The authorities are ample and in our opinion uniform and they hold, together with the Article 163 of the Code of Practice, which reads "It is a general rule in civil matters that one must be 3ued before his own judge, th't is to say, before the judge hsving jurisdiction over the place v/here he has his domicile or residence."

The partnership hsving been dissolved months prior to the filing of the petition the claim asserted must therefore be 3ued on in the Parish in which the defendant has his domicils.

Ranlet vs. Collier White Lead Co. 30 An. 56; David vs. Eloi, 4 La. 107; Lambert v. Veuter, 6 Reb. 137; Hobson v. Whittemore, 13 La. 433.

We are therefore of the opinion thst the allegations of the petition for an injunction alleged facts sufficent to justify its issuance and therefore believe th.‘ c the fimnfcXBX Court erred in that particular, but we s.re of the further opinion that the claim against defendant for the amount stated must be sued upon in the Parish of defendant’s ¡acee-exst domicile, which is the Parish of Jefferson under the evidence of this ci.se.

For the reasons a¡singed it is ordered, adjudged and decreed thst the judgment of the Court aqua in so far as the injunction is concerned be and the same is hereby avoided, annulled and reversed and further ordered, adjudged and decreed plaintiff that in all other respects as tc the claim of/' ' against defendant it must be sued upon in the Parish in which defendant h&8 his domicile.

This cause is therefore remanded on the question of the injunction for trier, to the Court aqua, costs to be paid by the exceptor the defendant in this cose, the ether costs to remain in abeyance until final decision cf this cause.

-Judgment reversed in part an L maintained in p.r:.-


author: BY: WIILIAH A. BEBI, JUDGE:

text:
    AARON ROSEN versus REMEDIAL LOAN SOCIETY
    NO. 8123
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    May 1st, 1922.

   BY: WIILIAH A. BEBI, JUDGE:

This is a suit brought by plaintiff against the jiafgnd&nt Company, alleging that plaintiff is the owner of two oertain United States of America Uar Saving Certificates, Series 1918, to which is attached thirty-four War Saving Stamps, of the value of $5.00 each, or a total of One Hundred and Seventy Dollars, ($170.00); that during February of 1919 petitioner received notice from defendant Company that the Company had in its possession a note signed by plaintiff, which would shortly mature, and that upon receipt of said notice plaintiff went to the Company's office, and to his surprise found that the note in question was one bearing his signature, which had been forged, and that in security of said note , which was dated in the month of November, . 1918, that defendant had taken as collateral to said note, oertain of the- aforesaid '.Tar Saving Stamps belonging to petitioner, which War Saving- Stamps had been, stolen from petitioner about three months previous; that the said War Saving Stamps in possession of defendant Company were not transferable, and could not legally be transferred to the defendant Company by anyone except petitioner, who was the true owner thereof, and that accordingly, petitioner made demand upon the defendant Company for surrender to him of the said certificates and stamps attached thereto.

Petitioner has prayed for a judgment against the Company in the sum of One Hundred and Seventy Dollars ($170.00), and that the Company be condemned in the alternative, to pay to petitioner the value of said War Saving Certificates at the date of the institution of this suit, said value being fixed at One Hundred and Forty-Bight Dollars and Fifty Cents ($148.50),, or for such additional amount as would represent the value of said War Saving Stamps at the time of judgment rendered.

Defendant answers the suit, and for want of sufficient information, practically denies all of the allegations of the petition, except that amicable demand had been made for the adjustment, as herein prayed for, and then further answering, the defendant avers that.he received two certain War Saving Certificates in pledge of a certain note, signed by one representing himself as A. Rosen, the said certificates being designated as líos. 07088577 and 30488433, to both of which are attached ten War Saving Stamps, of the matured value of §5.00 each, and having the value at the time of the filing- of defendant's answer, of $4.37, each.

It is unnecessary to here relate other averments in defendant's answer. The evidence in this case shows that plaintiff vas the undoubted owner of the two Certificates, find the War Saving Stamps attached thereto as above described, and that he never, at any time, as is admitted by the defendant, had any business transactions whatever with the defendant Company. l’he testimony offered by defendant is to the effect that the party knovn by him as A. Rosen, was not the petitioner, and it is evident that the transaction had with the unknown party arose from the forgery, for whioh petitioner is not liable, and of was which petitioner is wholly ignorant, until receiving written notice of demand for payment of the forged note.

The Certificates above described, appear to have been offered in the record by the defendant, but the record of appeal does not contain either the note or the said Certificates. At the trial before this Court .neither defendant nor his counsel appeared. In plaintiff's brief, as well as in his petition, the latter being duly attested by him, it is stated that the Certificates olaimed by him from the defendant Company contain on their face the following stipulation:

"This Certificate is of na value exoept to the owner named hereon, and is not transferable."

The Certificates not being before this Court for examination, and no appearanoe having been made by defendant and appellant herein, the Court will assume that the allegations of plaintiff's petition concerning the stipulation above quoted are true, and will therefore conclude, as a proposition of law, that the Certificates, not being transferable in any way, could not have been taken by the defendant Company as security for the alleged fradulent note, and that the defendant Company v;as charged with the duty of knowing the true owner of the Certificates at the time they were received in pledge.

This case is one involving purely issues of fact.

The judgment of the lower Court is affirmed, at defendant's dost in both courts.

JUDC1.EHT AiTIRME).

May 1st, 19£2.


author: H*a*r John at* Paul,

text:
    NO. 8124
    JOHN LAWRENCE VS AMERICAN BREWING CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

   osmbB,

By his

H*a*r John at* Paul,

Plaintiff was Bittio* on the d»ole of a ferry teat, at her landing, and out of the way af vehicles, in automobile truck, operated by defendant's' driver, cans rapidly down the incline and ran into the Bide of the ferry; whereby plaintiff was injured.

I.

is the bearding of a ferryboat by an automobile truck is usually accomplished with safety to both truok and ferryboat, it follows that something out of the usual order happened that day, And the witnesses agree unanimously in this; That the driver lost control of the truok in its desoent along the incline which runs from the landing to the ferryboat; but they disagree as to the cause of his losing control,

Plaintiff’s witnesses testify that the truok was heavily loaded; that although the driver attempted to apply the brakes he did not succeed in checking the truok; that the wheels continued to revolve during the entire desoent; that the incline was not wet or slippery; ana the truok did not skid or slide, but rolled down the incline.

Defendant's platform man testified that the truok was net loaded beyond capacity;. Its mechanic testified that the brake a en the truck were in good- «rdor;; and its driver testified that ha applied the brakes and that the wheels looked, but the truck skidded or slid down the incline because of the wet and slippery condition thereof,

The trial judge, who saw and heard the witnesses, thought there was a olear preponderance of evidence showing that the incline was not wet and slippery; that the wheels of the triok did not look; that the truck did net skid or slide down the incline, but rolled down: and we think so too. He also thought, and we do also, that under the circumstances it was immaterial whether the brakes were or ware not in good mechanical order; since it is a self evident fact that even if in good order they did not suffice to hold the heavy vehicle in its descent, along the incline, a3 they should have done.

XI.

Admittedly plaintiff lost $46 in wages and paid $56.50 to Doctors and Druggists. He was also badly bruised and lacerated; was detained at home ten days and suffered severe pains for some time afterwards. But the evidence does not satisfy us either that his injuries are of a permanent nature or that they tend to incapacitate him to any appreciable extant. We think that $ JOO'tar Ms sufferings ana $102.50 will fully compensate him for his injuries.

October 17th, 1921.

The judgment appealed from is therefora amended by reauoing the amount allowed plaintiff to with interest ato; and as thus amended it is affirmed, Plaintiff to pay costs of appeal.

Haw Orloaas, la,


author: Dinkelspiel, J.

text:
    NO. 8125
    COURT OF APPEAL PARISH OF ORLEANS.
    STANLEY A. HARVEY versus HENRY POHLMANN

   Dinkelspiel, J.

Plaintiff Institutes this suit to recover the sum of $450.00, plus twenty five per cent attorney's fees, under a oontraot said to have been made between him and the defendant, authorizing plaintiff to sell oertain real estate and to pay him in lieu of the commission of five per cent, all of the excess of the purohase price, over the sum of $4500.00. Further alleging that pSaintiff in every particular carried out and confirmed to all the covenants and considerations as agreed and whioh form the basis of the transaction whioh oa.uses this suit, and for whioh he is entitled to a judgment for the amount prayed.

The answer in the main sets up that defendant was suffering at the time that the signature,whioh is admitted, to the dooumsnt, in question, with defective eyesight and unable to read without glasses, ths.t when the document dated April 15th, 1918, was signed by the defendant, it was presented to him by plaintiff, that defendant wcs without gls3-ses and that he informed the plaintiff that he we 3 uneble to read s'.me ¿nd th-1 the plaintiff pretended to read to the defendant the terms incorporated in ssid agreement and at the time plaintiff read the se-id agreement 30 as to make it e pper.r that he was to receive an excess of eny price otfer Fifty Five Hundred Dollars; end that plaintiff fraudulently end intentionally misread the said document, or subsequently substituted the figures $4500.00 in lieu of §5500.00. And averring further that said a.ooept'-noe of s-id offer by s? id purchaser, Cerroll, who purchased the property for §5100.00 end that plaintiff agreed to reduce his commission by one hundred dollars, th't st the time of th3 acceptance of the offer by Carroll, olsintiff u?ds no claim for an exoess of commission end the aoceptenos was bsssd upon a oommisaion of five per cent; that th8 xeduotlon in the prioe of said property was due to a deficiency in measurement. That said plaintiff received the sum of Five Hundred and Fifty Dollars from said Carroll, whioh he has refused to aooount for, and that he was entitled to a commission of five per cent on $5500.00, less one hundred dollars whioh he had agreed to forego, or a total of One Hundred Seventy Five Dollars} that he is therefore indebted unto your defendant for the xmiaiaiai remaining Three Hundred Seventy Five Dollars. Alleging further that on account of defective eyesight, whilst admitting his signature to the document sued on, avers that the figures $4500.00 were fraudulently inserted therein in lieu of $5500.00 and finally assuming the character of plaintiff in zKaEsiintienatJE dtec reoonvention, prays that the demand of plaintiff be dismissed and defendant have judgment in reoonvention for Three Hundred Seventy Five Dollars.

The questions presented are almost entirely based upon the testimony of ple-intiff, together with the documents attached and that of his counsel, Hr. Perez.

Plaintiff's testimony substantially is in accord more or less, with the allegations in his petition, he swears •positively that the defendant signed the document appointing him, plaintiff, as the agent to sell this property; that he had his glasses on before signing;that he read every word air'd after reeding deliberately signed same.

Mr. Perez, his counsel,supports him in that portion of his testimony whioh simply asked for instructions in reference to the document and sundry other matters connected therewith and he, Mr. Perez, being ill at the time, gave certain adyioe to the plaintiff, but in no wise tendered to aid ns in the determination of the real questions in this esse.

un una other hand we have the testimony of the defendant end his wife, who positively swear that the defendant did not heve his glasses vb the time the agreement in question w?b presented to him; that seme was read by the plaintiff to him --nd thc-t he signed under representations made to him by the plaintiff, particularly in reference to his commission as to five per cent on the amount of the sale or whether or not he, plaintiff, was to receive the entire difference between Forty Five Hundred Dollars and whatever the property may have brought and especially denying that there ever was an intention on the part of the defendant to pay him anything beyond the five per cent commission, no matter what the property in question might have brought.

Independent and irrespective of the testimony of defendant end his wife, we have in this reoord the testimony of the purchaser of this property, Hr. Charles C-.rroll, s. respected member of the Bsx of this city, who dealt entirely with the plaintiff s-nd gives his testimony as to the occurrences from time to time from the beginning of the transaction until its final oonolusion and in answer to the question to state just whs.t dealings he had with Hr. Harvey with reference to the trs-nsfer of the property in question, the witness goes on to ste.te!

"Early in April, 1918, I wss hunting for some property on the belt, the railroad belt line, for the Simplex Flour Company. X sent out a circular to a number of real estate agents, stating this fact, and amongst other replies received one from the plaintiff", and without quoting the entire answer to the question put to this witness, he testified that plaintiff first asked him Six Thousand Dollars for the property and insisted that his client would not take less than that sum, that his commission on that would be three per cent, or five per cent, finally offering to pay for the property, provided the description and the titles were olear, the sum of Fifty Five Hundred Dollars, and finding that the sketch was not quite oorreot, another 3ketoh ws.3 given to him and the titles hfeving been examined a part of the property was found not to be oorrect and the prioe therefore was reduced to the sum of §5100.00, whioh was finally accepted and during the oourse of a. conversation he agreed to reoeive one hundred dollars less from the defendant for the oommission he we 3 to have received.
Q, Did he say what his oommission was?
A. He said five per cent on the amount and we figured the amount and he would knook off one hundred dollars from his oommission; my reoolleotion Is we made up a little memorandum, whioh I gave to Harvey and Pohlmenn and that showed how eaoh would stand and the net amount that Pohlmenn wjb to get under the new arrangement, knocking off one hundred dollars from Harvey's oommission; then we agreed on the sale and it was to be on the 39th of April; the aot was passed on April 30th.

This witness goes on to testify at grsat length the nature of the conversation whioh we do not think it neoessery to give in full.

Q. Did Mr. Harvey tell you his oommission was five per oent'í
A. Absolutely; not only thrt but it was in the paper th?t X signed.
Q. Did he tell you Mr. Pohlmann wouldn't aooept less than Fifty Five Hundred Dollars?
A. Yes sir, he told me it was a shame to out him down to Fifty Five Hundred, he told me the property was worth and had oost Mr. Pohlmann more and a lot to that effect and it was a pity to take advantage of Mr. Pohlmann and out him down to Fifty Five Hundred Dollars.

I never dreamed until long after tVt Hr. K- rvey claimed to heve some agreement «That Mr. Pohlman was to receive so much net and that list all the excess wes to belong to him; Harvey had never talked any other v-.y th.>n th.'t he was selling first for Six Thousand Dollars and then for Fifty Five Hundred Dollars end thvt he vr.s to get five per cent on the sale, he never ai-id that he .7o-s an owner or that Harvey hid An interest in it from beginning to end; if he had X would have known better, how to deal to get the property for much les3.

On his cross examination this witness corroborated and reaffirmed his testimony heretofore referred to, going into many more details then in the original exeminstion, but in no wise, in our opinion, effecting same.

One of the witnesses wee Oscar C, Oury, Who substantially testified that he visited plaintiff at his office in company with the defendant, that he heard the conversation between plaintiff end defendant in reference to the deposit .

Q. What did Mr. Pohlmsnn see Mr. Harvey with reference tot
A. It was for a deposit on some property.
Q. What did Mr. Pohlmsnn ask Mr. Harvey?
A. Asked him when? He went ihxxsi.there to get this money.
Q. From whom?
A. Mr. Harvey. Mr. Harvey told him as soon as everything was signed, all the papers, he would pay him.

Elias Pallet, 3 real est3te agent in this oity, familiar with the property -in question, giving its description, owns some property in that same neighborhood.

Q. About when did you see Mr. Pohlmsnn with reference to a sals of that property?
A, During the winter time.
Q. About what yeer?
A. About three ye"re ago.
O.Whe.t prloe did you try to buy the property at?
A. He asked me $6,00.00 for it. I told him I thought 1 oould get fifty-five hundred for it, bee-use I was trying to bunoh that property of his with mins end ? few othrr3 end submit it to some puroh'sers.
Q. Did he offer to sell it for that?
A. lie sir, he wouldn't sell it for fifty-five hundred.

A o..reful ex-.-mine.ticn of this record has convinced 113 th-it the document purporting to be a contract to employ the plaintiff in this Case, es re-.-l estate agent, to sell this property, defendant hid every right to believe and did believe the price to be obtained wc.s Fifty Five Hundred Dollars =nd thet the commission to be received by plaintiff was five per cent on thst amount and the douument or agreement presented in this record, signed by the defendant, was dons under the belief of the feots above stated and irrespective and independent of the testimony of the defendant and his wife in reference to defendant's defective eyesight, we have the testimony of three disinterested witnesses, one being the purchaser of the property, who swears positively and directly of whst plaintiff told him in reference to the 3ale of this property, his commission end they are absolutely in accord with the testimony of the defendant and negative to that of plaintiff. There can be no mistake about this. Besides ’ ' ■ that, the other witnesses, one stating that he went with the defendant to plaintiff's office and there in a conversation in reference to the property in question, the deposit of ten per cent of fifty five hundred dollars being then in plaintiff's possession and before plaintiff's signature to the deed of sale of the property, he went to see the/defoywmt with this witness to get him to return the oommission or that pe.rt of it belonging to him, which the dirtmrt plaintiff promised to do the moment he signed the aot, and added to this the xigx±££saoux significant faot that only a few years' prior to the sale in question, another witness, who owns adjoining property, wanted to get the defendant to permit him to sell his property and thought he might get fifty five hundred dollars, and defendant refused and would not entertain this offer, so that all the circumstanoes and the faots oonneoted with this case point directly to the confirming of defendant's testimony and to our mind presents clearly the faot that plaintiff took advantage of the defendant and oonoealed from him the true facts in connection with his agency,and that defendant signed the agreement in question under suoh circumstances as lead the Court aqua to believe, as we do, thot the grave misstatements made by plaintiff to defendant, produced his signature to the document in question and that being a fraud, in attempting to overreaoh, oannot prevail in this osse.

We find on examination, a oe.3e very much in common, Denson against Stewart et al, 15 Annf p. 456, and the syllabus there reeds:

"Where the agent, authorised to sell a thing for a. particular prioe, sells it at a higher price, the surplus will belong to the principe! end the agent is entitled only to his stipulated oommission."

The burden of proof being always borne by the party who alleges, we are satisfied that this burden has been properly carried and met by the defendant in this oese, on his recon^entional demand.

Besides, on questions of fact, where the Court aqua sew and heard the witnesses, his opinion is entitled to greet weight and it is not to be disturbed unless manifestly erroneous, and in this case we are satisfied that his opinion was justified and oorreot.

Por the reasons assigned, it is ordered, adjudged and desreed that the judgment of the Court aq.ua be and the same is hereby affirmed, with oosts of both Courts to be paid by plaintiff",

-Judgment affirmed-


author: CHAELES F. CLAIBOENE, JUDGE.

text:
    Charles J?. Claihome, Judge.
    Mrs. ROBERT CAILLIER VS N. O. RY. & LT. CO. & al.
    No. 8126
    November 14th, 1921.

   MES. EOBERT CAILLIEE VS N. 0. EY. & LT. CO. & al.

No. 8126

CHAELES F. CLAIBOENE, JUDGE.

Plaintiff ms riding in one of the street car® of the defendant company, when, by accident or inadvertence, her hand ,s extended beyond the window of the car; it came in contact with another car of defendant company going in an opposite direction, and was injured. Hence this suit in damages.

The plaintiff alleged that about eight twenty o'clock P. M. she was a passenger on a Tulane Belt car proceeding along Tulane Avenue going towards the lake; that she

"was seated in the third seat on the left hand side of the car, with her elbow on the window sill and her left hand resting against her cheek; that upon reaching a point near the coiner of Hagan Avenue, the said car^ 1 owing to the defective condition of the tracks of said street railway company, gave a sudden jolt and tilted or leaned towards the adjoining track which parallelled within very close proximity the track on which said Tulane Belt car was running; that upon reaching said defective spot and at the moment the said jolt occurred, a car of the St. Charles Belt line was passing along the adjoining track going towards the river; that said jolt caused petitioner's elbow to slip' from said window sill, and her hand sli^it^r protruded from the window of said car, and came in violent contact with said car of the St. Charles Belt line, resulting in the tearing of the flesh of her left hand at the lower part of the thumb, causing an incised wound of the left hand, which made her suffer great physical and mental pain; that her said injuries were caused solely and entirely by the negligence and carelessness of the railway company, and that plaintiff did in no wise contribute to the accident; that at the time of the accident there was and is now a city ordinance requiring the cars on the Tulane Belt line to be provided with screens for the protection of passengers; that at the time plaintiff suffered her injury the car in which she was seated was not so screened; that petitioner would not have been injured had the car been so screened".

She prays for $1000 damages.

The defendant answered that the plaintiff permitted her am to go outside of the body of the car so that it came in contact with some object on the adjoining track, and by so doing plaintiff's injuries were due to her own careless, negligent, and imprudent conduct.

There was judgment for defendant dismissing plaintiff's suit, and she has appealed.

Plaintiff's testimony is a practical reiteration of the allegations of her petition. She measures about 22 to 24 inches from her am to the end of her fingers.

A. Brignae, a brother of the plaintiff testified:

"We were sitting on the seat talking and she had her elbow on the window with her hand on her cheek, jm<d I happened to be looking out, and there was a jar t*r the car, or bounce, somehow or other, and it made an awful big bounce and her elbow must have slipped and her hand dropped, and just as soon as her hand dropped, I heard her holloa, and I reached for her am and pulled it in, and it was done already; at that time I saw a car passing the tracks at that point were in bad condition, it caused the car to tilt to the left; the distance from the ground to the window sill is about six feet; they repaired the track after the accident; neither hie sister nor himself made any complaint to tho conductor of her injury»

Officer Shelter swears that he knows about where the accident occurred; the connections of the two tracks were loose; it made the cars jolt towards the left; the track was repaired some two weeks after that»

Officer Friese testifies that Mrs» Callier came to him while on his beat and complained about getting her hand hurt, and he brought them to the Carrollton ham; the di stance between the two tracks is four feet, six inches from track to track; tte cars protrude about eighteen inches over the rails; the track was in bad condition and made tho cars lean towards each other; he noticed how the cars rocked; the top of the oar was brought six or eight inches apart, and the windows about sixteen inches; the 0» K. line of cars pass upon the same tracks; he did not «amine the track; lots of people ride with their elbows out of the window; it is the first time he ewer heard of any one getting hurt that way; when the cars go fast they swing very much from side to side»

W. F. Loan, chief clerk of the Claim Department of defendant company, testified that he was riding on the rear platform of the car on which the accident occurred with his mother; that on reaching the bridge near the Mew Basin, she informed him that an accident had occurred in the front part of the car; he went to the front part of the oar and informed the motorman and tried to collect witnesses, but every on® said they had not witnessed the- accident; he noticed no unusual jolt of the oar.

The witness produces sketches representing the measurements of the cars, of the seats, aid. of the windows. From these sketches it appears that the distance from the face of the rails to the outside top of the car is niaa feet, five inches; and the distance from the face of the rail to the molding below the windows is five feet, one and seven-eights inches; the distance fran back to back of seats, at the top is twenty-nine inches; the distance from the back of the seat to furthest side of the window in front is twenty-two inches; the distance from the top of the Beat to the sill or am rest of th® window is oigjit and one half inches; the arm rest is one and asven-ei^ite to the molding or rain shed which is four inches wid®, so that the distance from the inside of the window of the am rest to the extreme edge of the rain shed ia five and seven-eights inches.

The witness further states that he travels four time a day on this line ae he lives in Carrollton; after the accident he took particular notice and did not perceive that the cars swayed to any extent more than the natural motion of the car; the distance between the cars at ths molding board, as they pass each other is about sixteen inches.

Mrs. Maty S. Loan, mother of the last witness, says she was seated in the centre of ths car in which the accident occurred; she saw a commotion and was told a woman got hurt; she noticed no jolting of ths car, it was running smoothly.

B. A. Ainsworth was a conductor on the car when the accident occurred; he noticed no unusual movement or swaying of cars on that occasion; no one made any complaint of an accident except Mr. Loan; the track was in veiy fair condition, no rough places; he did not notice any repairs going on after the accident; he noticed a lady goBag out with her hand tied in a hand kerchief with some blood on it; she went to the bam foreman to make a complaint.

Felix Desmare was the motoman; he knew nothing of the accident until Mr. Loan told him of it; he noticed no unusual jolting or swajiing of the car; the road was in the usual condition, some places more or less rocking than others; no extensive repairs were made after the accident, they did work immediately after for several days.

It was admitted that J. Dunn, the track foreman of defendant, would testify that on July 17 there was work done on the Tulane Avenue track®, consisting of repairing joints and that there tos more work done on November 21th. to 25th.

City Ordinance No. 12677 Council Series, to which plaintiff refers, is in the following words;

"That the Commissioner of Public Works be directed to require all street railroad companies to place wire aereene on the windows of cars running on streets where the tracks are in close proximity to trees, or on Canal Street where the tracks are in close proximity to Clay Monument, of sufficient height to prevent accident to passengers; provided, that this ordinance shall not apply to cars which are so constructed as in the opinion of said Commissioner to protect the passengers".

The very language of this ordinance applies to

"cars ruining on streets where the tracks are in close proximity to tree*; or to Csnl Street where the tracks are in close proximity to Clay Monument";

therefore, the ordinance does not control the management of cars on streets like Tulans Avenue where there are no trees in close proximity to the tracks, nor to any part of Canal Street, since the removal of the Clay Monument. The Ordinance, however, serves the principle, that where cars run so close to any obstacle as to endanger the safety of passengers, it is the duty of the railroad under cannon law, to screen the windows or to take other preservative precautions.

The Judge of the District Court decided the case on the . following propositions of law: lo that a passenger cannot recover damages from a carrier unless he can show that the carrier has been guilty of some act of negligence; 2o the test of that negligence was when an experienced carrier could' and should have forsseen that a certain condition of things would possibly result in damage. The Judge held- that the two tracks of the railroad tore not in such close preadaity to each other as to suggest das- / ' vWOide^ihai-..oaeiufr*d during .the maqy :yeaxw dwi*N' which the can had haca running under the same condition»» The .*■ Judge further hold that the testimony failed to prove that the tracks^wiHifin such had condition as to injure a passenger. He failed to find negLigence on the part of the defendant and decid* od in its favor. ^

The judgRn appreciation of the foots and his statement of the lav are both correct. The defendant company can bo held only for negLigence ?)4jegLigence has been defined to be' the failure to use euch care as is necessary to avoid a danger which ~ should have been anticipated,by Reasons of which the plaintiff, has suffered injury. 114 La. 1011; 95 U. S. 439 (441).

A defendant can only be required to guard against a probable or anticipated danger. 49 A. 1184 (1196); 118 N. W. 812; 68 S. W. 6; 67 N. Y. Supp. 409; 111 Mass.136; 21 Minn. 211; 44 Penn St. 375; 85 N. Y. Sup. 472; 37 A. 288; 1 Thompson on Neg. 50, 58; 38 A. 159; 57 Kans. 499; 46 Pac. 941; 81 Ills. 76; 147 Mass. 315; 118 N. W. 812; 114 La. 1011; 53 Kans. 279; 36 Pac. 322; 43 A. 792.

* "Evidence that no accident had followed for a long time after the existence of a certain fact would not be determinative of its not being actually by a concurrence of special facts dangerous; but the existence of the fact without injury for a long time, with factors constantly present calaulated to produce injury if really dangerous from those factors, would go far to do away with the an-ticipadsn of resulting injury”. 114 La. 1005 (1017). Q)

The distance between the two cars was about sixteen inches; if we add to that the width of the window sill, -five and seven-eight inches, we have nearly twenty-four inches separating a pei-sonfc body in one car from the side of an adjoining car. The plaintiff testifies that she has a long reach and that the distance from her aim to the end of her fingers is from 22 to 24 inches. It would be the height of imprudence for any passenger to extend hen arm out of the car at full length; and the Company could not anticipate that a passenger's arm resting on a sill of the window would be extended to that length even when «lipping from the «ill. If it slipped owing to the passenger's fault, certainly the company could not be held liable; and if the slipping was caused by an ordinary jolting or jar of the car, incident to its operation, the company cannot be held liable. The passengers assume the risks of those unavoidable conditions. 104 La. 157; 106 La. 592; 134 La. 654; 139 La. 439.

The plaintiff relies upon the oases of Summers, 34 A. 139, and Clerc vs R. Rd., 107 La. 370. But in the first oase the defendant was held liable because the distance between the two cars on its lines was so small as to cause the cars almost >j^ \$o collide with each other in the curves, and that plaintiff's fl elbow projected out of the car only "a few inches". In the second case, the defendant had left a door of an adjoining box car opemys^ in such proximity to the passenger car as to collide with and break plaintiff's am.

The Court said on p 379;

"In this case it is not claimed that the plaintiff threw his hand or am out of the car, and in so doing struck some object on the outside, x x x At the utmost. the plaintiff inadvertently or forgetfully permitted his ti/bow to project somewhat beyond the outer edge of the sill*.

In the case Of Moore vs Edison Co., 43 A. 795 which osas a case of a passenger who put his head out of a car and was struck by a post standing at eight inches from .tho car window, lthe Court said;

"Although to some extent, as the Courts have held, he might, owing to custom and local exigencies of climate, have allowed his elbow reasonably to protrude from the inside out of the window, x x x If a passenger has the, right of putting out, besides his slbows, his head and chest, why should he not, also, have that of stretching out his ama, lega, and even hanging out hfs whole body"»;

It is inmaterial whether this stretching out of the arms is done intentionally or accidently. The crucial question is whether a reasonable distance was maintained between the cars so as to secure imriunity from injury to the passengers under normal conditions, or whether injury could hate been reasonably foreseen or anticipated from the relative distance of the cars? We think not, and the judgnent is therefore affirmed.

November 14th, 1921


author: Dinkslspiel; J.

text:
    NO. 8127.
    COURT OF APPEAL PARISH OF ORLEANS.
    LONGINO & COLLINS versus ORLEANS KENNER TRACTION COMPANY INC.

   Dinkslspiel; J.

Thi3 suit grows out of the following facts:

Plaintiff alleges that defendant is engaged in the oper-'tlon of street cars in the City of Hew Orleans^and said o?rs opere bed by eleccricityj and represents that on or about June 13th, 191S, at about eight o'clock in the morning, one of the employees of plaintiff attempted to cross the traoks of defendant at Tulsne Avenue and Cortez Street, when he was struok by a oar of the defendant, in charge of one of its employees^and further representing that the truck of pis intiff was driven in a lawful and careful mr¿nner when it attempted to cross the street and thst defendant'e oar -,vas far enough away to permit it to pass in safety if said oar had been operated in a lawful and careful manner^end that its said truck was in plain view of the motorman of the 3«ld oar^who knew or should have known that owing to the b=d condition of the street at that point it was necessary to drive slowly and carefully across their track^but that the motorman operated and continued to operate the oar at such an unlaviful and excessive rate of speed and made no attempt to stop said car until it was too late to avoid striking the truck of plaintiff and alleging further thst the damage accruing to said \ due to truck was entirely/the fault and negligence of defendant's mo-torraan^and not to the driver of the truokj damages in the sum of One Hundred SixtíP-six and 65/100 Dollars are claimed and judgment for that amount prayed for.

Defendant's answer oontends, after denying all the allegations of plaintiff's petition, except suoh as ware ad-averred mitted,/ that the accident happened and was oaused entirely by the negligence of plaintiff's employee who failed to stop, look and listen before attempting to cross said traok^and further plead contributory hegligenoe and prayed for a judgment in its favor.

We have carefully considered and read the testimony in this case and we quote only such portions thereof as we think essential to its decision.

The driver of the truok, the main y/itness for plaintiff on questions propounded to him by the Judge as to the nature of the aaaa: accident:

q. This oar was coming on the uptown track, coming into town?
A. Yes.
0,. You know thst this crossing was in had oondition, is that correct?
A.'Yes,
Q. You knew th/--t you oould not cross there as you could at any ordinary caressing?
A. At the same rats of speed; Yes.
Q. And you attempted to make th/t crossing when you saw the car coming?
A. I hed plenty of time to get over the traok.
Q. Th/-1 is your judgment, thct you thought you hod enough time to get across the tr..ck ahead of the car?
A. Yes.
Q. The accident proved that your judgment was not correct?
A. No. I had plenty of time if thst motorman had hl3 car under control, if he attempted to slow up at the next corner, the xaxklx next block from me.
Q. You wanted the motorme.n to cut off his power a block ahead of you?
A. No, it is usual for any motorman if he sees anything in front cf him he h?s got time to slow his car.
Q. Whether he did that or not you don't know?
A. No.

witnesses __ . The in other/ for plaintiff in no way oontradiot the testimony of the drivel of the truok and the various and sundry accounts, they give, eaoh one from hi 3 viewpoint, in no manner effect the drivers testimony*

Otto Katz a witness for defendant, a pc-sanger on the oar at the time cf the accident in testifying -.'.icongst other things:

q. Ste.te to the Oourt what you saw?
A. I was standing on the -platform reading •=. p^per ani .vhen we got about the middle of the block the motoru.i.n ss.-.rcad o..r:ging the bell and blue hia whistle at rather rapid r-ce *nd 1 looked up to sea what the cause w ..s I 3,.v, a crack coming from the Woods side going pretty font í.id wh n ha got in the tr?ok after practically he came to a stop, he st.. rted ever the treok and the consequences was that the car hit :.nd ran into him.

The metorouvn on the oar, T,eo Kertzlsr, testifying in behelf of the defendant:

Q. When the truck was approaching the- crossing .-/hat did you do?
A.. X jrtSB blew my whistle end applied lay breaks and the truck checked end nearly stopped when I ol=w my whistle ani I was under the opinion that he .re.3 going to remain stoppéd, end when he stopped I took my breaks off and I proceeded on, and as I proceeded on, he started up his truck and ran right up in front of me.
Q, When he started again what did you do?
A. I Jj-levr my whistle again and applied the emergency breaks,
q. Were you able to stop your oar in time -so avoid hitting him?
A/ No X was not in time, xatiathsnxlisxaczás I was creasing at that fcijw time when he me-de the second stop.
Q. What part of the truck did you strike?
A. The rear end and the wheel.
Q. About how far did your oar go after it struck the truck?
A. About fifty feet past the crossing where the accident was.

We have thus quoted in main the testimony of Tony Grlsaffi and that portion thereof which establishes the position of the trade together with all the facte connected with his driving^or attempting to drive on the treck of defendant without either listening or looking,in the early hour of the morning, daylight, to S3e the movements of the o---r, the ringing of the be'1 Is, the step of the osr(snd endeavored to cross the track that taking ohunoes, believing doubtless that he could cross in safety, in whioh belief the testimony proves he was absolutely mistaken; there osn be no denial of the facta he h=s testified to and from his eividence alone ,ta there would be sufficient i I in this record to render Judgment in favor of the defendantjout in addition to that there is the testimony of the motorman and that of defendant's witness, Katz, which proved undoubtedly the defense set up by defendant and makes the oase clear.

It h;..s been frequently held that -"street cars have the right of way."

139 La. 351, Walker vs. Rodriquez.

133 La. 185, Boylan vs. N. O. Ry. & Light Co.

145 La. 337, Schick vs. Jenevein.

"It is a recognized rule that before crossing a railway track a person should stop, look and listen; and it will not do to substitute therefor a rule to the effeot that being a distanoe from the crossing towards whioh he and the eleotrlo or steam oar ere travelling he may then pass an opinion as to whioh of the two will get there first and acting upon that opinion essay the crossing without giving himself further assurance upon the subject."

Heebe vs. N. O. & Carrollton Ry. & Light Co. 110th La. 970.

McShane vs. Ry. Co. 137 La. 832.

"The driver of a vehicle who sees an eleotüo oar ap- ■ proaching even as much as three hundred feet away and yet without looking again drives upon the track and thus comes into col-r lission with a moving oar is guilty of such negligence as to bar a recovery in the absence of evidence showing with legal oertainty that the motorman was operating his car at a dangerous rate of spaed or by the exercising of crdin..ry cere ‘..iter the discovery of the danger, ccild avoid the collision. ”

Anthony Bertucci vs. N. O. Ry. & Light Co.

No. 7383 Court of Appeal.

For the reasons assigned it is ordered, adjudged and deoreed that the judgment of the Court aqua be end the seme is hereby affirmed, costs of both Courts to be oaid by plaintiff.

-Judgment affirmed-


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    JENNIE SULLIVAN WIDOW J. R. MAYOL VS AMALGAMATED ASSN. OF STREET AND ELECTRICAL RAILWAY EMPLOYEES.
    No. 8130
    December 12th, 1921.

   JENNIE SULLIVAN WIDOW JAMES R. MAYOL VS AMALGAMATED ASSN. OF STREET AND RAILWAY EMPLOYEES OF A'a.

Ho. 8130.

CHARLES F. CLAIBORNE, JUDGE.

The plaintiff claims from the defendant a death benefit of $800. She avers that her husband wa3 a member in good standing of the defendant Association up to the time of his death; that her husband died by accident on June 23d, 1918; that under the Constitution of the defendant she is entitled to a benefit of $800 which the defendant refuses to pay to her.

The defendant denied all the allegations of plaintiff's petition and

"specially denies, if said allegations are true, that James E. Mayol, husband of plaintiff ms entitled to receive, at the time of his death, or his widow, after his death, any of the benefits provided under the Constitution and by-laws of respondent Association, for the re£=^ son that respondent alleges that the said James E. Mayol was a Boylp-n Policeman at the time he met his death, and that the engaging in the said character of work, forfeited his rights, if any he had, to the benefits of the Association".

Upon the trial of the case, evidence was introduced for the purpose of showing that the plaintiff's husband had committed suicide. Assuming that the evidence established a case of suicide^ the defendant argied that this fact precluded the plaintiff .fra» recovery.

There was judgment for the plaintiff and the defendant has appealed.

We do not find the evidence sufficient to establish suicide. Only one vdtness testified in relation to it. He was a motorman. His car stopped to allow the passing of the steam cars on Elysian Fields. He says:

"I looked ahead and saw James 1,'ayol standing by the electric pole, telegraph pole. Just a little while after, the train came, he moved towards the track, and he took a stooping position this way, looking under, and I saw him plunge forward, just as the rear truck - I don't remember whether it was the first or second coach; I do know it was the rear truck;he plunged forward and just about that far from his body was caught and was rolled almost across the street";

he was 75 or 100 feet from the train.

The burden of proof is necessarily upon the defendant to establish with certainty a case of suicide"to the r -'lusion of every other reasonable hypothesis;" the presumption is against suicide. 26 A. 404; 35 A. 1353; 46 A. 1189; 48 A. 1204; 49 A. 640; 51 A. 1251; 105 La. 202.

The testimony mentioned above does not exclude every other theory of accidental death. Something might have attracted his attention upon the track, and while storing to look at it, he might have slipped, or he might have approached the car too closely and been caught and dragged by it. The love of life is so strong and the cases of suicide are so rare and unnatural that proof of it must be conclusive. No motive or previous intention was shown.

The defense relies upon Sections 84 and 92 of the Constitution and By-Laws .of the defendant. They read as follows:

Sec. 84 - "Members retiring from street and electric railway seuvice and desiring to retain their membership in this association, shall have the right to do so x x Upon benefits they will be entitled to death benefits where death occurs from natural causes, but will not be entitled to death benefits occurring from accidents in other lines of employment".
Sec. 92 - "Ho death or disability claim shall be allowed or paid to a member or any beneficiaries of members whose death or disability has been caused while on duty as a soldier, volunteer militiaman,ppliceman, City fireman, or to any member being injured or killed while engaged in any other line of employment, except that of street and electric railway work in some department where the member is eligible to membership under this Constitution and the laws of this Association".

These two sections must be construed together.

The testimony is that James R. Mayol, at the time of his death and for many years prior thereto, was employed as a policeman, by the Boylan Police; that at the moment he was overtaken by death, at about three o'clock in the svening^,

"He had just left home going to work in the evening just after having his supper".

Of course, any provision in the by-laws or Constitution excluding a member from participating in benefits must be strictly construed. In the case of Schroeder Ho. 8065 of this Court, we said:

"We interpret it (Sec.92) however, to, mean that no death claim shall be paid to the beneficiary of any member whose death has been caused, by any agency or under any circumstances while performing the duties of a soldier, and other dangerous occupations mentioned; nor shall any member be entitled to a benefit who shall have been injured or killed while engaged in any other line of employment than that of street and electrical railway work. In simpler words, a member forfeits benefits absolutely while on duty as a soldier, while he forfeits benefits during employment otherwise than in railway work only if he be injured or killed in that other employment"

while so employed. We adhere to that interpretation, We have not found that Mayol was killed "while performing the duties" of a policeman, or”while engaged in any other line of employment1'. He was killed before he went on duty and before he wa3 engaged in other employment. He was going to work, and had not reached his place of work and ha^-not then aetually begun work. His duty or employment did not begin at the time he left his home, but only at the time he reached his place of work and began work, for it was only then that the greater or foreign risk began. We read on page 78 of the Corpus Juris Workman's Compensation Acts pamphlet:

"An accident befalling the workman on his way to or from work cannot be held to arise out of the employment, where he has not yet come within, or has left, the sphere of his employment. 111S0 where an injury arises out of the character of the way to or from the employment,which is not under the employer's control, it does not arise out of the employment &c".

The judgment of the District Court was in favor of plaintiff and it is affirmed.

December 12th, 1921.


author: Honor John st. Paul.

text:
    NO. 8133
    WIDOW CHAS. J. PAYNE VS JOSEPH LEE RHODES.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.

   opimos.

By Ms

Honor John st. Paul.

Plaintiff suss for three months rent, which she paid and now seeks to recover from defendant upon an agreement whereby ^he was to take over her le.ase on certain premises and pay the rent in her place and stead, i'he evidence shows that plaintiff herself was only a sub-lessee, who had subleased from the tenant in ohief, with the consent of the landlord* the original lease containing a stipulation by which said tenant in ohief was not to sublease without the landlord's consent. As the tenant in ohief had no right to sublease, it is clear that his own subleases has in turn no suoh right; for no one can transfer to another any greater right than he himself has. As the landlord refused to sanction the sublease between plaintiff and defendant it follows that plaintiff.was not in position to deliver possession of the leased premises and hence could not carry out her part of the agreement. Hence defendant is discharged from his obligations thereunder.

II.

Plaintiff further sues for certain sums at the rate of $6 per day, being liquidated damages for failure to complete and deliver a certain building by a certain day. "here is neither allegation or proof that defendant was ever put in default, and under the jurisprudence of the Supreme Court, os well ae that of this court (before the advent of the present Tiritar thereon), failure to complete a building by a given day is a passive breach of contract, for which damages feven though liquidated) cannot be recovered until after a formal putting in default. Godchaux vs Hyde, 126 La 187; People's Homestead vs Staub, 3 Orleans Appeals 93.

Por the present we hold ourselves bound by this jurisprudence. But, speaking for himself, the writer considered those two esses erroneously decided, and that they should he overruled. Por it has been held repeatedly that actual delivo-ry of defective machinory or buildings was an active breach of the contract, rendering a formal putting in default unnecessary. See Cable vs Leeds, 6 An 2931; Levy vs Schwartz, 34 An 209; Burt vs Laplace, 46 An 722; Payne vs Joubert vs Rent Lumber Co, 110 Ia 750.

And it is inconceivable that one who motes no attempt whatever to deliver^» hnil-’ing or other construction, when in fact he Is not in a position to do so because it is incomplete or d.e ’ ctive, can be in -uny better position-Indeed it hat rone-t-'-’l; been held that no putting in dgfrult is naoesaary whan- it is «lean; that A$ would be a vain and uaalass thing to do ^Dear. ,&8dft-aem, oeyit id vana sen lnutllia terajtaada ," Saa Robelot vs Gentilly Terrace Co. 10 Orleans Appeals 237, and Milam-Morgan Co vs Atlantic Fruit Co. 12 Orleans Appeals 306; and the authorities therein oited» But wa ara not in a position to overrule the two oases first above oited and henoe must follow them for the present.

December 12th, 1921.

Ihe judgment appealed from is therefore affirmed»

Hew Orleans la,