author:
      £7: WITJJAM A. BBSS» TODSS:
      Dintelspiel; J

text:
    LEON HOCHSTEIN versus AMERICAN AUTOMOBILE INSURANCE CO.
    NO. 8,240
    COURT OF APPEAL PARISH OF ORLEANS
    WILBIAM A. HEED, JUDGE:
    JUDGMENT REVERSED.
    June 19th, 1922.

   £7: WITJJAM A. BBSS» TODSS:

Plaintiff herein has recovered Judgment in the sum of $368.90 against defendant, Amerioan Automobile Insuranoe Company, unddt a fire clause in a oertain policy issued by the Company in plaintiff's favor, under date of May 13, 1920.

¡The petition alleges that on May 17, 1920, three days after the date of said polioy, plaintiff's automobile was damaged by fire, with the result that the blocks, pistons and rings, bushings and bearings were burned and completely ruined, the replacement of which cost the amount sued upon; that from no fault of p. titioner but purely from accidental causes, the damage was sustained; that notwithstanding amicable demand, defendant has refused to meet or recognize its liability under the policy, and therefore there should be Judgment for not only the amount of damages, but for twelve per cent additional damages upon the amount sued for, and also for reasonable attorney's fees.

Defendant admits the issuance of the policy and its existence at the date of the alleged fire, but denies that the damages if any, were due to any fii;e loss or other cause for which it could be liable under the terms of the polioy, and particularly denies that it is liable for damages or attorney's fees under Aot 168 of 1908.

¡There was Judgment rendered in the trial court only for the amount of actual damages to the automobile. Plaintiff has answered the appeal, to this oourt, and prays for all damages olaimed in the petition.

We find from the evidence that plaintiff's wife was driving the car on the morning of May 17, 1920, and that for some reason not shown by her testimony,pr that' of other witnesses, the maohine was not working satisfactorily. Por this reason she returned with the oar to plaintiff's garage, and not being able to again start the engine, she called to the colored mechanic then in or around the garage,

3he testifies that as soon as this man started to crank the oar, there was a dreadful oombustlon. sounding like the oar was going to pieces, and that when she saw flames coming from the "breather" she shouted to the mechanic, who told her to "shut the motor off guiok," which she did, and that thereafter they-were unable to re-start the car or to get the engine to turn over at all. Both of these witnesses testify that at the moment of the accident the hood of the car was raised. This fact convinces us that the fire, or what the mechanic terms as "a little flame coming out of the breather," was not confined or shut in against the mechanism of the car.

Plaintiff's, wife and the mechanic were the sole witnesses to the accident, and both agree that the combustion, if any, was but momentary, and explosive in its nature. Their evidence is corroborative that there was no visual evidence of a fire from the outward appearance of the-engine, radiator, or other parts, but that after the accident, when the crank case and blocks were removed or opened, the piston rods, rings, bushings and bearings, were found to be burned. They each agree when asked to describe the eatent or nature of damage to these parts, that they were all burned because they were covered with a black or brown soot, but that none of these parts were in any way melted. Mrs. Hoohstein says: "They had a sort of varped swelling," but the mechanic denies that they were warped, but only sticky, and full of soot. This man further testifies that he had been attending to the ear for about three years, and that about two months before the fire he had overhauled the car and put it in good condition, especially in respect to the several parts which he testified were damaged by the fire. He undertakes to say that as a result from the fire, these parts were worn below the normal standard (or size) of what they should have been, and did not fit anywhere, having about an eighth of an inch ¿.-lay in them after being burned. However, Just before giving- this kind of testimony, and after swearing that none of the parts were warped, he undertakes the additional statement that tire pistons were so tight in the blocks that he had to use all of his force to remove them . When cross-examined about the v/orn condition of these parts, he admitted that they could have beeh so by wear and tear, though he insisted that they were burned.

Mr. ff.D, pique v/as another witness for the plaintiff, the chief mechanic for the Cadillac Asrency in this City, the injured car being a Cadillac. This witness testified that at the request of plaintiff'«s wife he examined the car after the explosion, but only saw the blocks and pistons, which seemed scarred and burned beyond usage, which to him was evidence of burning, though he did not see the "blaae" himself, but had only heard of one through Mrs. Hochstein. On cross-examination, he testified in part, as follows:

Mr. X i que , in what sense do you use the word "burned'1?
A. Burned — it is pretty hard to say what sense you use it in, because it could be burned from fire, but other objections were made here and it is useless to ask me that.
Q. 7/ell, just tell me in what sense the word burned can be understood.
A. A car, 10 bo'burned beyond usage, as that car had been burned, had to happen at the minuto; in a fev;-probably about twenty strokes. There could have been a flare in the cranked car and burned, from the condi tions ,--because it could not have been run very long in that condition; a block scarred will not heat, and those blocks were scarred.
Q. The word burned is used in a dual sense; one burned from fire, and one burned from friction?
A. Yes, sir, it is.
Q. This evidence of burning, which you saw, was evidence of burning in vhat sense, from fire or from friction?
A. Well now, if the ease was put to me, as it was, to take a look at the blocks and say how they were burned, it wouia be impossible. There is no mechanic or engineer in this city or in the united states who could ever tell you, unless.they saw the flames, or what it originated from.
Q. How, what happens when you apply heat of high intensity to metal such as is used in the construction of those portions of an automobile?
A. A fire could not melt anything except — on an inside of a motor like that, couldn't melt anything, with the exception of the babbit inside of the bearing on the crankshaft.
Q. Why?
A. It is not that intense.
<¡, What is the first change which would occur as the result of the application of heat to metal such as cast iron or steel, what change would it undergo?
A. It would show signs of burning, the same as practically any fire of that kind would.
Q. It would not consume the metal, as wood would be consumed?
A. Ho, sir, ueoause it is not intense enough.
Q. If it vías sufficiently intense what would occur, would the metal actually be consumed, such as a piece of wood would be, or would the shape of the metal be altered because of the fact that the metal had begun to run? Would the metal be consumed, or would it run, granting there was sufficient heat?
A. If it was intense enough anything will run, no matter how great it is? If you get enough heat in it, but you can't get it inside of the motor.
Q. In this particular instance there was not a heat of sufficient intensity to cause the running of the metal?
A. Ho.
Q. How, as I understand your testimony, there was nothing in the appearance of these alleged damaged parts which would enable any engineer on earth to state from that whether or not that damage resulted frim fire or from friction; is that it?
A. That is correct.’1

Ibis witness being reoalled by plaintiff, on rebuttal, again testified under cross-examination, as folldws:

"Q. As X understood the general purport of your testimony at the last hearing you were unable to state with absolute certainty whether or not this damage was caused by an actual flame or fire?
A. Absolutely. Hobody living can tell you, either?

She testimony of this witness on behalf of plaintiff has been carefully reviewed by us for the reason that he appears to be a mechanic with expert knowledge oonoerning the construction and mechanism of automobiles, especially the kind of automobile involved in this suit, and we are impressed particularly with that part or his testimony in which he honestly declares that neither himself nor any other mechanic oould advise the Court, unless having seen the explosion, or flames, what the accident originated from. He not having seen the aooident, has not undertaken to say what was its cause, but in this case there are other expert witnesses whose testimony has been offered by defendant, who have testified under oath that in their opinion the condition of the parts claimed to have been injured distinctly shows that said condition oould not have been caused by a fire, but that the parts show scarring, due to inperfect lubrication, and are in no manner "sealed" as they would have to be had they been subjected to a fire of any duration or intensity. The rebuttal of the testimony of the witness Marquis, oalled by plaintiff, is in our opinion largely hypothetical, and has not in any way assisted us, for the reason that he does not appear to have examined any of the damaged parts of the machine.

We pass now to the further consideration of the testimony given by witnesses for the defense.

It is true that none of these witnesses examined the parts until a month or two after the alleged fire, but two of them are experts, thoroughly qualified to pa33 upon the cause of the alleged damage, as evidenced by .the results seen at the time of their examination.

Mr. Grevenberg, the local representative of the defendant Company, but not an expert, states that he called into consultation with him Mr. Sohayer and Mr. Jurgens, the other witnesses for the defense, who are experts. From this point in the reoord, the testimony for defendant is oonfined to what the experts found upon the examination authorized by Mr. Grevenberg.

We find that the testimony of these experts is consistent on the point that if there were any flame which followed the cranking of the machine by the colored mechanic, that it oould not have been of any duration or intensity sufficient to warp or melt, or materially injure the parts to the extent alleged in this suit, and that had such intense conflagration occurred, the aluminum motor base of the engine would have melted long before the pistons or cylinder block, and before these could have even become red hot, and that such intensity of heat would have resulted in complete destruction of the motor base made of aluminum, or softer metals constituting the piston rods or other parts in the cylinder blocks.

Each of these witnesses corroborates the other's testimony to the effect that there was no evidence of damage to these parts beyond scarring, and that it was evident that the scarring was caused by improper lubrication, and that if there were any warping on the pistons, causing loss of motion, that such warping was due to age of the parts. In accounting-, on a hypothetical basis for any explosion as claimed by plaintiff, and the colored mechanic, the witness Sohayer swears that in his opinion there might have been a back fire, but that this back fire would have been spontaneous, and of the shortest duration, causing no damage, or at least, no such damage as plaintiff's evidence would indicate.

IhiB same witness says that in all of his experience, over fifteen or twenty years, that he has never seen or heard of a fire in the "breather pipe" such as was claimed here, unless it were attended with complete consumption of the motor itself, and that then, under such conditions, the motor would be all sealed up. He denies particularly that the blocks said to have been burned were warped, and says further that there was nothing the matter with the blocks, which could have been U8ed, because the damage was not caused by any fire on them, though he admits that the machine needed repairing. Sohayer further states that Rockett, the colored mechanic, showed him the parts stripped from the engine, and that he, Schayer, put his hand inside of the motor and around the pistons, and examined all the bearings, and that he called Rockett's attention at the time, and showed him that there was oil in all the parts, and that there was no sealing.

He further swears that scaling must follow very intense heat, and that it is easily observable, even two months after being subjected to such heat. He further states that he took tlie piston itself, and put it in the cylinder block, and that there was nothing the matter with the piston outside of its being a little worn. Witness concluded his testimony with the statement that he asked Rockett to save the old parts, and that if these parts had been brought into Court ho oould have "backed up" what he said about them.

At this point, it is to be noted that tlie witness, Rockett, when asked about the parts on first hearing of the case in the trial court, said that they viere in the garage, and that he would be glad to bring them to Court if it was all right with Mrs. Eoekstein. These parts were never offered in evidence by the plaintiff, and when Rockett was again requested to account for them on the second hearing of the case, he simply stated that he had not brought them to Court, but that they were in the garage for inspection.

Mr. W. M. Jurgens, an inspector for the Insurance Company, arid also in the automobile repair business for over tv.enty years, was the other expert witness offered by defendant, who corroborated in almost every detail what was stated by Mr. Schayer, stating that he found no traces of fire v/hatsoever. It is true that he also examined the parts some time aftor the alleged conflagration, and that when ho first saw the car the mechanic was overhauling it, and that he, witness, began to examine the hose and wire connections, which, as he said, is the first thing that shows evidence of a flame, and that these parts seemed to be in first class condition, outside of v.ear and tear; that the engine shoved lack of lubrication. Ee further states that the babbit in the motor is the softest material used, and that to melt same would require 700 degrees of heat; that the babbit was not melted, and that by the time fire v/ould reach the babbit bearings, it vould destroy the aluminum cranking case on the outside, he having found the aluminum cranking case in this matter in first class condition, he was asked the question tfcut if a temperature of 700 and soné odd degrees rere obtained, vould it not burn the whole car, to v i.ich he replied that the whole car, the hoed, the whole front, and the radiator* would have been totally destroyed by the timo ube aluminum cranking case shored any developments of fire.

Ite further states that lack of lubrication would have caused the condition of the ¿istons and bearings, as he found them, that is "scarred," and that the cylinders vere all scarred, and the bearings all damaged, but not by fire.

Ke further says that the minute he locked at the cast iron, or cylinder walls, he was convinced that the car had been ojjerated for many an hour with lack of lubrication,and that even if the automobile had been run for several hours before coming to the garage, that no heat could develop in the cranking ease, suoh heat haying to develop from the outside by tire»

He furthei states that one of the babbited oqnneoting rods< was damaged, but only from lack of luhrioation» He gives as positive, expert testimony, that if an automobile is being cranked up, and a fire is on the inside of it, and it oontinues for a minute'or two, no damage oan be done because the flame goes out, and there can be no damage to any part of the motor, the flame being confined between-the carbureter and the hood.

Shis ease is one involving questions of fact, conclusions from which by the court a qua, should be given great consideration by the Appellate Court. But we have been much impressed with the fact that the preponderance of evidence against the probability of a fire, for which defendant should be held liable, is largely in favor of the Insurance Company in' this case»

We think that the weight of expert testimony is clearly in favor of defendant, and it is a-reasonable presumption of law that the failure of the plaintiff to produce the alleged damaged parts at the trial in the lower court, especially when called for, that the presumption must be that this evidence would have been unfavorable to the plaintiff. Ror these reasons, we are of' the opinion that there should be judgment in favor of defendant

It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby is reversed, and it is now ordereu. that there be judgment for defendant, the American Automobile Insurance Co,, dismissing the petition of león Hoehstein, plaintiff herein, at his coot in both courts.

JUDGHEtff EEVJBHSED AS PRAIHSIM1' S C03S IH BOSH OOURSS.

June 19th, 1922*

NO. 8240

COURT OF APPEAL PARISH OF ORLEANS

LEONARD HOCHSTEIN versus AMERICAN AUTOMOBILE INSURANCE COMPANY.

Dissenting ©pinion of Dinkslspiel; J-

Dintelspiel; J

Plaintiff institutes this suit against the defendant, alleging that the defendant company' is indebted to him in the sum of $358,90, with legal interest from judicial demand until paid, and twelve per cent on said amount of principal and interest for damages, and the further sum of $100,00, as Attorney’s fees. Averring further that on the 13th of.May, 1930, defendant company issued its fire and liability polioy, annexed to this petition and made part thereof, in favor of plaintiff, for the sum of Eleven Hundred Dollars, to cover any loss by fire, on the Cadillac Touring Car belonging to plaintiff; that said polioy was to be in force for a period of twelve months, commencing May 13th, 1930 and ending May Í3th, 1S31. That under the conditions Of said policy, defendant oompany bound itself as the insurer to Indemnify plaintiff for any loss to be incurred in accordance with the terms of its polioy; and continuing, plaintiff represents that on May 17tb, 1930, at about noon, a fire occurred, in which said automobile was damaged, and describing the damages states that the blocks, pistons and rings, bushings bearings were burned completely. Plaintiff had the damage repaired, paid the bills in order to put the automobile baok in proper shape and has complied with all the terms and conditions of the polioy, and notified defendant oompany, through its agents, of the loss and furnished proper proofs of loss,to the defendant. Thst subsequently defendant oompany, replying to pleintiff’s proofs of loss, denied all liability under seid policy. Plaintiff further avers that under the Act of the Legislature Ho. 168 of 1908, a fire insurance company which fails to pay its losses on a polioy of insurance shall be liable in addition to the amount of loss, for twelve per cent damages on the total amount of loss determined by a Court of competent jurisdiction, and a reasonable Attorney's fees, and in this si^it $1U0.00 is claimed as Attorney's fees.

citation and . The prayer of the petition is for/jadgMsoxtic &f-for judgment in ter due proceedings /xxíxaUU¿U)xji*jcx8ccix the gum .claimed.

The defendant answers admitting the insurance of said cor by the polioy sued upon, but denies that there was any fire c.s alleged, or that there was any damage done by fire; denies that the Act of the Legislature referred to has reference or relete3 to an insurance company of the ohsraoter of the defendant cop-pány; hence denies that it is indebted unto defendant in any sum whatever.

Finally .prays that plaintiff's petition be dismissed at his cost.

Mrs. Leonard Hochscein, wife of plaintiff, in her testimony in chief stated:

Q. Ttere you in oharge of the automobile belonging to Mr. Hoohstein on May 17th, 1920 abopt twelve o'cloojc noon?
A. Yes sir.
Q. Who was running the automobile?
A. I was.
0,. Did you try to start it?
A. Yes 3ir.
0. Ware you able to start it?
A. Hot o.t that time.
Q. What did you do?
A. X called for the mechanic who was usually around there and he csme to my assistance and when he attempted to start it by pranking it there uos an awful combustion, sounded like the cer 'tins going to pieces, and we saw flsms3 coming from the breather, which is the only pert from whioh flamas could come if th3 fire was in the crunkhead
Q. Did you see the fire coming out of the automobile? '
A. Yes sir.
Q. \V-:-3 there c-nybody else around there.
A. The méchenlo was Vfarren Lookett.
0. Vih.-.s did you do •■•bout the firo?
A. When I s;w the flume I called to him and he looked up ■. nd sold "shut the motor off .flick, which I aid". Vfe tried to rect_a-t it :r.d it would not ¡rove • t -ill, viotl. act turn over tt *-.11.
0. Did you examine the c.r then?
A. I hod the o rn.nk-0.a3e is’ken off -. nd- the bearings were burned?
Q. Did you see the orr ofter it vr 3 token to pieoe3?
A. Y23 sir.
Q. Wh-t did you see then as to damages?
A. All the pistons, rings end blocks, everything -.v-'S hurur-.l.

She further testifies that the Compon-.- .y 5 notified -*nd tn-.-t si hr. Singrsen told witness to have th* 0; 1- r..p ired . nd everything would be all right; further testified that the w-cunto p-id for the repair of the o-r trere the ¡.mounts claimed for s-ms in this suit.

On cross examination this witness does not in any wise waver la her testimony given in ohief.

The next witness is Vfarren Lockett.

0, On :Ieyl7th, 1300, were you in the garage of dr. Hoohstein?
A. Yes sir.
r'. Wo-rj ycv. c’.iled by m-.-s. Hoohstein?
A. Yes sir, she told rae to look and see wh”t vr1'.s the matter -with her nr.chinei
0. Wh.rt did you do?
A. I went to see what -.v:.s the matter with it, before th-t i.;-.chine Iv-d stopped so sts tried to or nk it by the self st'-rtel c..nd it -would not go so I cranked it end in cranking it there v..s an awful noise in the motor; I looked to see wn t ins trcuole ..-,s and X saw a little flams coming from the bre-. ther.
Q. Saw a fire coming out of the u.- chine?
A. Yes sir, so I tola her to close the motor off.
Q. What did j^ou do after she closed the motor off?
A. I knowed there was something.wrong then and when I had t taken the crenk co3e off X pulled out one of the pistons on the connecting rod and there was a dry skin of soot; you could wipe it off with your hand, hood
Q. Wes the/astas off at the time,
O., W® h d token it off.

Witness goes on to testify win t w?3 i:ne by him to the machine eubsequ'-nt to what he hod testified.

Witness testifies th=t he bed been repairing automobiles for five or six years; that he repaired this automobile r.fter the fire, that he had put in buehir.g3, be* rings, blooks, pistons end ring3, -r.d the old parts which they took* off could not be used, they were no good; also ths -.utomobile could not run.

This witness was asked by the Court:

tj. There is not doubt in your mind you s--.v fls-mOe coming cut from th..t plnoei
A. i.c sir, no. doubt.

Counsel then asked the questions

C. Could you 3wetr positively that the damage you sow r'suited from these fl..ats?
A. From the flame, yos sir.

He t'stifles that he had taken care of the o^rs of plaintiff for ths three years; ho is - colored msn;and the further orcss examination of thi3 witness was not in any wise materially different from his direct =xs.iinnticn.

Ur. Pique, an employee of the Revel Agency, testified that he'examined the automobile cf the plaintiff shortly after iky 17th, 1220; that after looking ft it, saw ths blooks were scratched and burned, he did not see the flame, but examined ths purt3 of the «.utomobile ?nd they oil showed signs of what you term a burn.

<?. They showed signs that they had met with fire?
A. Well, sure hr. Hochsrein said "X did'nt see the flame", she Bald "they Rad a fíame"; X saw the blooks and they looked burned to me, also the pistons,
Q. And there iras evldenoe of burning to your mind?
A, Yes sir,
Q. ilxs There was a charge made of 1358.00 for this workj do ypu oonsider thpt a reasonable charge?
A, Yes sir, I do.
On oross examination:
Q. Mr. Piquet,' in what sense do you use the word burned?
A.'Burned-It is pretty herd to say what sense you use it Objections in because it could be burned from fire, butyaíjijjeaííac were made so often here and it is useless to ask me that.
Q. Well Just tell.me in what sense the'word burned oen be understood?
A. A oar to be burned beyond usage is that the c?.r had been burned had to happen at the minute in a fevr-probably in about twenty stroks there could be a flare in the crank and it oould not be run very hard in that condition, a block soarred will not heat and those blooks were scarred. GJhe questions propounded to this witness on mross examination, which witness hays were more scientific than practical, and witness from experience stated that he was ojore practical a3 a ineohanic than soientifio. Further throughout hie entire testimony, we are satisfied from his evidence, taking it as a whole, that he was satisfied that this ogr had been burned as he had first described it.

As an example of witnesses knowledge on the question referred to, amongst other thing* asked was:

Q, If, in a case of this kind you were told that there was 'a fire, and you saw the blooks in the-condition in which you did and you believed the witnesses to be credible what would be your opinion?

After so** objection* to the question, overruled by the Judge, his answer is made:

A, tJpon ooming from people of th* class of ths*e people, raliabl* ptopla, my opinion wou3Ld be that the blocfca were burned by fire, that would be my decision if the Bitter was left for me to decide.

T. P. Marquis, a machinist, after stating that he-had been in business for thirty years testified:

Q. Have you had experience in regard, to heating of metal# or the degree Of heat that metals oan withstand?
A, I have had ooiieiderable experience. Yes sir.

And being ashed,' "Is it possible to heat a metal dry the oil and enough tcystop all flow of’it and allow the metal to oool off without any oil or water’and hate the metal not to «¡barí She witness answers: “It is possible."

On dross examination:

Hypothetical questions were propounded to this witness, and in our opinion have no bearing upon hi# prior testimony.

Mr. Piquet Was reoailed:

<4. It was testified by. Mr. Sohayer that the flairte that Was seen in this case was simply a backfire;from your experience in repairing automobile# and from your examination of this damage, will you testify whether ikisxlms there was any evidence of a backfire?
A. No, there was no evidence of a baokfire for the simple reason that a backfire would only burn the outside surfaoe, the paint from the carbureter, therefore it would take and soratoh or burn the the paint off, and unless the fire continued say fot a half hour it would b'e unable to reach the base of the motor.

Amongst other questions, the witness was asked:

Q. You did state that if a statement were made by oredible witnesses that yrat they saw a fire and upon your examination of the class they were, your opinion would be that the damage was caused by fire?
A. Absolutely, because ±h* I believe that there ie honor among human beings, and I always work to that end..

The testimony of Mrs. Leonard Hochsteln, recalled as a witness, in no ma,tter effects or Changes her testimony in chief

And so do X find she testimony of Icokstt, recalled, who reaffirmed in main the testimony given on his origin'1 examination.

Tlio first witness on beh-If of the defend nt ■■ Mr. Grevenberg, one of the local representativc-s of the defendant inoursneo company. He ’¿nr.,' nothing sf the fire itself, except he received a report there was firu, ve.s in the office at the time the report cue in; th:- f.re occurred on May l?th and he ext. inod the cvr on J,:n - ICth following. So that his knowledge of the f ota of thv cose his testimony does not prove anything rcr-. ri'nc the case.

The next .vitneas was c dr, ScV yer, ./he ---ft j s how many years he h?.d been in the business, Xift.cn or twenty years, and th»t he does all kinds of general r ire, manufacturing, and at the request of Mr. 3rsr-.,nb. rg :..-.da an examination cf the automobile in qu. colon; he c. w it either in the month if June or July foil icing the firs.

Q. V/r..s the -utomobile damaged by fir-?
A. Ho 'svidor.oe of fire.
Q. Wo a there any evidence of the met 1 h. vir:g run?
A, Do sir, the only evidence that w-s there would show there use a dust esused from no lubrication on the connecting rod betrings.
Q. V/.' s there t ny oortior. of this ■■ utomoblle ,vhi tever which showed there had beon ■■■ fire?
A. I hove s sen no evidence of my fire .hf-tover.Mow there might be an expl03ina-like :■■■ back firs, o-using an explosion, but it would be right out ,'nd bo nc re.
Q. You /¡oin the fire in she brscthfr, to which hr 3. .'C0..-s-ein has testified,might hove been Short.-, cut th t fire—
A. I wouldn't sty thrt — nothing is impooiiuls, ou: I huv never known it tc be.
Q. In your experience, you h.ve never seen : o.nditicn exist, fire in iho brestj-er pipe?
A. Only when the motor is burned up.

On oross examination the Court asked this question;

CJ, How do you explain that a fire was seen coming out of the maohine?
A. if there was an explosion it would flash up, and if you shut the motor down the fire would he down, it couldn't burn. And there was oil in the engine, even in the oránk case, and all the parts were lubricated, exoeptlng the connecting rods,.whioh were put in new— four I think. X asked the man to save the old'parts. If the oase came to court I oould baok up what I say. And I don't get paid by anybody whatsoever,.1 hire one hundred and twenty men, I don't have to.

Mr. W. M. Jurgens, testifies that he was in the automobile repair business and inspector for insurance 'companies, and he.s been so engaged in the repair business for twenty years and nine years.inspector for insurance companies. He further testifies that he examined the automobile of plaintiff in this case; this was about one month subsequent to the fire-and with-t out extending the witness's testimony more than is absolutely neoessary, for a decision in this case, he says;

Q. You found no evidenoe of fire, you say. What was the nature of the damage to the parts which you saw?
A. When I went to the oar to examine it, I found all the parts thoroughly olesned, the mechanic was overhauling the oar and I began to examine the hose and wire connections, whioh is the first thing which show evidenoe Of a flame, and that seemed to be in first class condition, outside of wear and tear. And he also mentioned to me about eylinders being scorched.

In other parts of this witness's testimony he states that the damage oourring to the automobile was not oaused by fire but was caused by laok of lubrication and he goes on to give his reasons fox this answer to this particular question.

On cross examination, being asked the nature of his business, he answered: "My business is inspector of insurance la «utoaoblle rapáis business and inspector .tai ¡(S3- isattranoe oompaniea; "and further on oros» examina— tioiv sit»M» testifies "1 investigate losses in this manner. I. *w&í'jí*t:U».te» on all damages, puoh as collisions, fires, BSSpWlUl' #**»**., and if the assured can agree to my figures, 5|&® immsetencre company direots the delivery of work to ray shop.

In answer to the question: You did find them soorohed? A,. Cylinders all soorohed and hearings all damaged, hut not by XiSf.

Q, And your oonolusion ip it was not by fire?
•A. Bp *jr oonolusion hut my experience in toa business.

An examination of this record proves that there was afire, witnessed by Mrs. Hoohstein and Warren lookett; im-msdiat* notioe of the fire was given to the defendant company, and about a month after the fire, having received the notioe.in question, defendant aompany sent their representative to examine the automobile in question. These tacx witter defendant nsesss/havs testified not from their knowledge of what occurred ths date pf the fire, but from their experience with 'losses snd repairs or other work to he done by the insurance oompony, and whilst affirmative evidenoe wa,s only contradicted by theories, which akia whilst displaying a great deal of knowledge and skill, (to whioh the testimony of Hr. Pique an expert, is contradictory,and affirmative to the- testimony give® by ths witnesses for plaintiff), yet does not disprove to 'my mind ; the. fact that the fire occurred on the day stated and under the ciroumstanoes sworn to by the two witnesses for plaintiff in this case.

? cannot under any circumstances, in a case of this oharaotar, aooapt expert testimony, no matter how intelligent these experts may be, as against the testimony of witnesses to facts, at the- time of the oocurrenoe. Particularly is thie the case when ths experts or other witnesses of the defendant company had not examined, for a month or more Piter the fire, the automobile in question.

Thp plaintiff has filed an answer to the appeal claiming damages allowed by Act 168 of 1908, same being fixed by the statute as against fire insurance cbnp'anie3 which do nbt pay their losses on a policy of insurance, end be bee prayed for twelve per cent damages together withthe sum of One Hundred Doliera as attorney's fees.

•I am not disposed to grant the damages prayed for under the lew cited, and X refer to the opinion'of the Supreme Court of this St^te, found in the 143 Le. Ann. at page 631, li/hiteside et al vs. Lafayette Fire Insurance Co., wherein quoting,the statute the Court goes on to say:

rt1ie find nothing in the statute to justify our limiting the imposition of the penalties tc casks where insurance companies willfully refuse to' pay what they owe. Vis doubt that the Legislature believed 'that insurance companies ever willfully or arbitrarily refuse to psy their losses; and vie are quite sure the statute was not intended to fix a price or penalty that an insurance obmpahy should pay for the privilege of with- ■ holding money due to aft assured until the end of an indefensible law Suit.
The plaintiffs have prayed, in ah3wer to the appeal, for damages for s frivolous appeal; but the ability and industry with which ihs appeal hs.3 been presented and prósscutéd convince us that the lee.rned counsel for the■appellant wsré very muoh in earnest, and that the appeal was not ts,ksn Aerely to delay payment of the judgment."

And sb sáy I in the present base.

For the reasons assigned, I respectfully dissent from the majority opinion in this dase.


source: Caselaw Access Project

author: CHARLES E. CLAIBOBiffi, JUDÍH.

license: Public Domain

text:
    Charles F. Claiborne, Judge.
    DR. JONAS W. ROSENTHAL VS DR. J. FRED DUNN
    No. 8245
    June 19th, 1922.

   dr? joras vi. roseiitkal yg DR. J. EKED DUNH

lío. 8245

CHARLES E. CLAIBOBiffi, JUDÍH.

This is a suit for carnages caused by the collision of tyro automobiles on July 25th. at 5:45 P. if.

There is no contest as to the facts essential to a decision and they are as follows:

The plaintiff was driving an automobile upon tho uptown side of the neutral ground of Canal Street going towards tho River when he reached Baronne Street he stooped to obey traffic re;oila-tions; upon the proper signal he resumed his advance; when he got to a point in front of the macheca Building, defendant'a oar hacked out from the neutral ground directly in front of him; plaintiff

"was about six or seven feet from Dr. Dunn's oar when he began to back out; there was only one car between them and the collision occurred right back of that car".

The defendant's car was parked a ;ainst tho uptown side of the neutral ground; he was in the car 1th hie wife; when they prepared to jack out from the curbing of the neutral ground, they both looked back and caw no car coming; they backed away from the line of the other oars parked against the same curbing when defendant's wife noticed plaintiff's car coning ronidly; she had no time to warn her husband who was driving when plaintiff's oar ftol-lidsd with theirs and shoved it back against the neutral ground in almost the sane position it had previously occupied,and threw it against a post there.

Of course, both machines were damaged. Each blames the other. The District Judge found for the defendant, and we agree with him. Plaintiff had the right to drive upon that street, and defendant had the -right to back away from the neutral ground, neither had the right of way oser the other. Each owed to the other the duty of care and caution. But' the City Traffic ordinance do. 1392 adopted Aoril 15th, 1914, which toss in force at the date of this accident, provides:

Section 2 (a): "A vehicle^ except when passing a vehicle ahead, shall keep as near the right hénd curb as possible".

If the plaintiff had conformed his driving to the ordinance, and if he had kept near the curb instead of driving in the middle of the street, he would have passed the defendant without colliding with him. His vi&lation of the ordinance was the immediate ■cause of the accident and under repeated rulings of this Court, he must pay for the damage. See tho casé of Cundiff vs Imbrigulia this day decided.

Judgment affirmed*

June 19th, 1922.


author: Dinkelsplel; J.

text:
    NO. 8246
    COURT OF APPEAL PARISH OF ORLEANS
    THOMAS H. KENDALL versus AUTOMOBILE SERVICE COMPANY INC.

   Dinkelsplel; J.

Plaintiff institutes this suit against the defendant, alleging that he was the owner of a certain automobile touring 7 __ 'oar; and that on the night of February 38th, 1930, his oar collided with a Laurel Street oar, with the result same was damaged to suoh an extent that it oould not move any further on its own power, and further alleging that finding this state of facts, he telephoned to defendant oompany, with a request that they send their mechanics to the scene of the accident, for the purpose of hauling petitioner's oar to their gere.ge. Subsequently two mechanics in the employ of defendant, arrived at the scene of the accident, inspected the automobile and plaintiff delivered his oar into their keeping and custody and instructed them to take same down to the garage of the defendant oompany; that, the possession of the said automobile was then and there accepted by the agents and employees of the defendant company, who agreed to follow out petitioner's instruotions, and petitioner went home. Alleging further that when he delivered said oar to the agents and employees of defendant oompany, his oar, excepting the parts broken by the collision, was intaot end. that all the broken parts, with the exception of the kit of automobile tools and the ohains, which plaintiff removed from the automobile and took home for safekeeping, were on the oar.

Plaintiff alleges further that defendant did not remove his automobile until the following morning, when he learned that it was still standing at the coiner of Laurel and Dafossat Streets and had been robbed of a number of parts during the night. He describes the parts stolen from' the machine and the gross negligence and want of oare and the axaxs failure to exercise due diligence, allowing his osr to remain all night without any protection or gaurds, hence defendants were liable for the property stolen, amounting to $144.80, and praying for judgment for that amount.

The answer admits various articles contained in plaintiff's petition, hut denies that plaintiff delivered the oar to their agents and employees and denies that same contained the parts claimed by plaintiff and in the Fifteenth Article of defendant's answer, avers that though they had been informed that plaintiff's automobile was 'waiting to be towed, when they arrived at the scene of the accident, they found it would be neoessary to get a" dolly" or truck in order to tow the machine, that they informed plaintiff that they would heve to get the dolly from the appurtenances shop and they were about to remove the parts and/aasbEksma from the machine when the plaintiff stated thst he, himself, would take charge of same; that respondent's workmen and employees thereupon proceeded be.ok to the shop to get the dolly and left plaintiffs machine, with all its parts and SDEakiems appurtenances in the possession and control of the said plaintiff himself; that if anything was stolen or taken from said machine, it wss while same was still under the control and in the oustody of the plaintiff and not while respondent wa.s responsible for same; and respondent denies specially, any negligence, responsibility or liability in the premises and prays thst plaintiff's suit be dismissed.

Plaintiff is a witness in his own behalf. He testifies substantially, that on February 38th, 1930, after an accident, he called up through the phone, defendant, at about eight fifteen P. M. that night. They sent two men to the place of the aooident, who stated they could not move the car without a dolly and they would go back to the shop to get it and would be back in about twenty minutes. He testified further that he took the tool kit and the chains and put them in his friend's oe.r and added "here is my oar, take it down to the shop and keep it until tomorrow morning and X will advise you what to do with it". The mechanics told him after an examination of the oar that they would have to return to the shop to get a dolly, because the steering gear was broken and that they would go baok and return in about twenty minutes. He then told them that he was going home, he was wet and cold; he testifies that he turned the oar over to them and said "I will take my tire chains and tool bag" and the rest of the oar they left with the mechanics.

Q. Did the mechanics take anything from the car themselves?
A. They did not take anything out of the oar but they did take the front tire that had been cut off in the collision and put it in their wagon and took it down; they did not say anything about taking anything else down and made no attempt atetramamk to take anything else.
Q. They were still with the machine when you departed?
A, Yes, they were on the ground picking up this tire when I turned my back and ivalked to get into another car and went home.
Q. IShen was the next time you heard anything about your automobile?
A. Seven o'olook the next morning; my mother in law went to Church and she found my car was still at Laurel and Du-fossat Streets; I immeidately called up the Automobile Service Company and asked why they had not moved the car and the clerk told me they were then on their way to feet it; I then went down to thst place, at about ten o'clock on Sunday morning and saw the night clerk.

And substantially further testifying to the conversation he had with the latter clerk, the clerk being asked why he had not moved the oar the night before, replied that one of their trucks had broken down and they had a lot of other jobs to attend to and simply could not get to it. "X then asked why he did not phone me so that X could make other arrangements or watch it myself? and he said he did not know that X had a telephone.

Q. Did he admit to you that he was the man you had spoken to the night beforeí
A. Yes sir, he said he had iaikeS taken the telephone message and that it was a negleoted duty not to bring the oar in that night and informed me that they could not get it after I turned the oar over to his meohanios.

This witness further testifies describing the condition of his oar, that on Sunday Morning, found two cushions and the spare tire on the back, with tube and rim, the headlights and the dash lamp gone; in fact everything detachable was removed. He further testifies that the items missing oost him 1144.80 which he paid.

On cross examination:

Q. The two men who came up and examined your oar and told you it would be impossible to tow the bar without a dolly?
A. Yes.
Q. These men informed you that they would have to go to the shop and get a dolly. Did you or did you not know the isngiJi location of the Automobile Servios Company shop?
A. I did.
Q. Then I assume you were in a position to. judge, were you not, the length of time it would take them on a rainy night, to return to their shop a,nd bring a dolly?
A. Yes.
Q. How long would it take?
A. Thirty minutes. They said they could make it in twenty.
Q. You say that these men picked up a tire whioh had been torn off in xhe collision and put it in their service car?
A. Yes.
Q, Did. or did not you are your other friends instruct them not to remove the cushions?
A. We did not, the ousions were not mentioned?
Q. Did or did not you tell these men you would take charge of the tar until they returned from the shop?
A. X did not, X told them I would turn the oar over to them; at that time I was hk wet and cold and had a severe cold end I was going home to get out of the wet.
Q. How did you turn over to them?
A. When they come up and said they were from the Automobile Servios Company, I said, there is my oar, take it down to the shop and keep it and I will come and tell you tomorrow what to do with it; I am going home and I got the bag and the ohains.

why This witness in testifying as to/whaiterxnrxnBixhe removed some parts of the oar and not others, particularly the tools, was asked by the Court:

Q. Do you mean that you feared the loss of the tools 4f the car went into the shop?
A. Yes, after it got to the shop; it is not a question of people stealing these tools, but I know how meohanios are, when they repair a osr, naturally they piok up the first tools they come to and he use it and misplaoe them.

In reference to what instructions the witness gave as to taking charge of his car, the Court asked:

Q. You instructed them to take care of the oar, but how they were to do it, you did not knowSt
A. Ho sir.
Q. It was not neoessary to remove the tire in order to repair the damage to the oar?
A. Ho sir.

The next witness who testified, is J. L. Swiller, He was one time a neighbor of the plsintiff and he testified that he remembered, meeting plaintiff on the night of March SO, at the corner of Laurel and Dufossat Streets; his oar had been in an accident with the railway oar and I went to see what the trouble was.

Q. Were you present with Mr. Kendall when two mechancis from Automobile Servios Company oame up there?
A. Yes, sir.
Q. D4d you hear any conversation between Mr. Kendall and those meohanios?
A. Yes.
Q. Relate to the Court what that conversation was?
A. Mr. Kendall phoned the Authmobile Service Company to oome and pull his oar in and they oame up, they didn't have a dolly, they said they needed a dolly end so both meohanios said they would go to the shop and get a dolly; Mr. Kendall said if they would not bsb be too long he would stay there and they said no and Mr. Kendall took the tool kit and the tire chain and I let him get in my oar and they said they would go to the shop and get the dolly and Mr. Kendall put the tool kit and the oheins in my oar.
0. Did the meohanios take anything from the oar?
A. One tire.

This witness, after describing the situation, was asked this question:

Q. After the conversation with Mr. Kendall, what' did these meohanios do.
A. They were both in the Automobile and drove up and Mr. Kendall said the oar was there end he asked if they were ready to take the oar and they said yes, but they needed a dolly and they said they would go back to the shop and ger a dolly; Mr. Kendall said, is there any use of my waiting and they said no, we will get the dolly and come baok and get the oar, and Mr. Kendall said, X will take my tools and go.
Q. I want to know what' they did after this conversation?
fellow A. One sat in the oar and the otheV got Out and took the tire that was lying alongside of the oar, and put ii in the truck.
Q. Where were you when they drove off?
A. Standing right beside them.
Q. Where was Mr. Kendall!
R. Right there.
Q. You are jmaiini positive of that?
A. Yes.
Q. How long did you stay there after they drove off?
A. We left the same time they ala.

He testifies that both the mechanics, witness and plaintiff drove off about the same time, the weather was rainy and oold.

CJ, You heard the mechanics tell Mr. Kendall it was no use for him to wait there?
A. Yes, X did.

Plaintiff on being recalled testified:

Q. Was it after the mechanics left the- scene of the accident and car, you and Mr. Swlller left?
A. they left after us, they were putting the spare tire whioh was oh the ground, in the oaf when ¡ir. Swiller and I went off and. got into his oar, which was a matter of thirty or forty mi feet in the rear of • the accidentJ they were both on the ground pioking Up the Spare tire and putting it in their truok.

He testified of his endeavor to have Mr. Diokersoa, to whom he had told his troubles, to replace the articles that had been stolen and he refused, stating that he would prefer to believe his meohanics than to believe me. He stated the impossibility of his taking the cushions and other SttisgsXffiS equipment in his friend's car, which was a small Ford; henos did not take anything except what he had testified to ,

The main witness for the defendant was Mr. Sonden-berg, who testified substantially that he was an automobile mechanic, had been so engaged for about five years, that on the night in question he was employed by the defendant oompany and that temas he went to the corner of Laurel and DufSJssat Streets to loo}: after plaintiff's troubles with hie oar where he had been ordered to go by the night clerk and described the trouble with the oar. A helper by the name of Harkness was with hj.m, and we went end found, -tjhe oar at on the River side of the street; tbe axel was Srafcsnt knocked baok and the steering rod was bent.

,Q. Tell the Court as briefly as you oan, just what conversation was had between the owner of the oar and yourselfT
A. I told Mr. Kendall that te we would have to in tow the oar and we did hot have any dolly and for him to take everything out of the oar which oould be stolen, to take thó extra tire off and he eaid no, he would attend to everything.
Q, Is is or is it not true that Mr. Kendall got into the Ford automobile and drove away while you and Harkness were still on the ground!,
sir, • A. Ho/stray Mr. Kendall was there when we left.

The reason this witness gave for not returning with the dolly or axtte otherwise, to take baok plaintiff's oar, was that he did not specify when he would oome baok, simply told him he would oome baok,

Q. Did you go baok!
A. In the morning about seven o'clock,
Q. üíhat reason, if there was any, caused you- to wait until the next morning before going back!
A., It was raining hard all night, we had lots of other service calls around the neighborhood and Mr. Kendall said he would take everything out of the car and so we did not worry about it.

On crosB examination, after deeoribing the distance between witness end lir. Kendall, the question was asked:

Q. Wh-'t did Hr. Kendall say to you when you arrived at the scene of the acoident?
A. He asked me if we come to take charge of the car and X told him yes.
Q. What did you then tell him?
A. We told him that we oould not tow the oar and we had to take it on a dolly.
Q. Did you pick up the tire that was lying on the ground?
A. Ho sir.
Q. Did Harkness?
A. Ho sir.
Q. Who drove away from the place firsts
A, We did.
Q. Did you let Hr. Kendall go away?
A. Ho sir.
Q. Did you tell Hr. Kendall you vvould be back in about twenty minutes?
A. Ho sir.
Q. What time did you go back actually to get that oar?
A. About seven o'clock the next morning.
Q. Did you expect Mr, Kendall to stay there all night until you came back?
A. Ho sir.

8Jy the Court:

Q. Why did you tell Mr. Kendall you would promptly return?
A, We did not specify what time we would return back to the oar.

litness knew the oar was on the street and made the report of that faot to his office, did not expect Mr. Kendall to stay there all night long, hut he said he was going to take care of everything or we would hove heon hack right away.

The testimony of Mr. Dyronte substantially was th-'t he was the night salesmanager for the defendant company and it was hie duty to attend to the truck cars, sending them out on calls; remembers having a call from plaintiff the night of the accident and that plaintiff notified him, gave him his license number, that he was in a wreck, had bent the fander, disabled the c=r and it could not run, hence witness sent the meo; -nice in charge of the tool wagon; he admits that tsstit v/3.3 cetvreen seven and eight o'clock the next morning before the oar was brought into the garage, that the night was rainy and stormy, he had calls on top of calls, and when the mechanics oame back on that night he sent them out to attend to other calls that were waiting for service and at five o'olook on Sunday morning he had sent them to get plaintiff's oar.

repetition The other parts of witness's testimony i3 a of what had taken place before and the denial of any responsibility.

The witness Mr. W. A. Dickerson, Manager and Principal Stockholder c£E the defendant company, knows nothing of the ao-oident itself. In a conversation with Hr. Kendall on the following morning, examined the oar and plaintiff showed him that cushions the were gone, the spare tire, head light, and asked witness what defendant company was going to do about it, and I told him that we were not responsible fsrxx because to do the business we were not engaged and perfectly olear of all blame. His information in reference to the entire matter was what he got from Mr. Damonte, otherwise knew nothing at ail about the matter except as to the value of the articles lost.

The deposition of D. Harkness, substantially states tha.t be was a mechanic's helper at the time stated, in the employ of the defendant company and that he was ordered hy Mr. Damonts, the night clerk, to accompany Mr, Sonderherg, the othsr witness, on the night of February 28th, 193Ü, to go after plaintiff's car; it was a very had night, it was raining, the wind was blowing very hard, the accident to plaintiff's machine was that it sea run into A street car and the machine was badly damaged. He testifies further to remove the valuables, including the cushions, tools and spare tires, as we had been instructed to do in all oases, but the owner of the oar objected to oür taking the valuables and stated that he had a' friend living bear by and he would take them to this friend's home, which he did,,or at least he did not allow us to take tab them to ihBgaxstga the garage.

We hate thus quoted the main portions of the testimony In this ease and the question presented to this Court is whether under the oircumstanoes and all the facts in this case, defendant can or oannot be held ¡responsible for the loss of plaintiff's property.

The testimony as in all similar caseB is conflicting and as frequently decided by the Supreme Court and this Court in such contingencies, when questions of fact are purely involved and the credibility of the witnesses must be inquired into, the Judgment of the lowór Court will be affirmed, unless manifestly erroneous.

Martinez vs. Fabacher, 118 La. 955; Williams vs. R. R. Co. 121 La. 438; Basile vs. Taranto, 124 La. 677; Ast. 3003 Civil Code.

"The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglett.

Nevertheless, the responsibility with redpeot to faults, is enforoed less rigorously against the mandatary acting gsatetjsaaiK gratuitously, than against him who receives a reward.8

It is proven and not denied that on the night in question, as stated in plaintiff's petition, plaintiff met with an accident to his automobile, and finid findu-ing it impossible to' use the machine, stopped at the j&SBsgl place mentioned and phoned to defendant oompany to tajee charge of his automobile;SES&xfcfcswpE to send for same, whioh defendant answered and sent two of its wen to plaintiff's issistapee. After an examination of this car, they found it so badly injured that it oould not be moved withput the aid of a dolly, henoe, being informed of this fact and being told by these men in the defendant's employ, that they would return and bring the dolly in order to take this automobile back to their shop, plaintiff contends that taking out his tools and some other portions of loose material, he left his csr in the hands of defendant's emplpyses and whilst the men were gathering up end taking into their possession, the tire whioh was on the street, plaintiff and his friend, in the Fprd oar belonging to the latter, returned to his home, believing , as he had a right to do, that the oar was in the possession of the defendant oompany, who would return for it as soon as they opuld oome bank with the dolly. There yrere two men, either one of whom opuld apd should have remained with th&s oar until the dolly was brought; they did not see fit to do so, they possibly believing that plaintiff would remain,whilst he positively asserts and testifies that ha was suffering from a very bad oold, that it was a rainy and °old night and he having left his automobile with these people, with his friend, went home.

The Oompany fs next heard of after plaintiff had been notified that his cap; was standing just where he left it, he immediately phoned to the defendant company,- who after this message, sent their men bsok to the seene of the accident arid removed the oar to its garage. In the meantime the property desoribed in plaintiff's petition had been stolen, when, no one knows, no one has testified, the oar remaining in the street all night without gaurd or oare-taker, it doss prove that defendant was negligent in not having sent for the oar and during the time that the oar stood on the street unprotected during the night, while one of the men employed by the defendant could easily have remained until the other returned, and thst being what they were employed for, would make defendant responsible.

The taking of possession by the defendant of the tire, which is not denied, proves that they intended to return with the dolly to get plaintiff's automobile. Else why take possession of the tire if they did not intend to do the other portion of the work?

The answer speaks for itself.

The property oould and should have been taken oare of by the defendant company; they did not do so; henoe, the loss must fall on them.

"The true measure of liability is that the bailee is bound to that degree of diligence which the manner and the nature of his- employment make it reasonable to expect of him and that anything less then this is culpable in him."

6th Ocrpus Juris, 1118, Seo. 57.

In the supplemental brief filed by the appellant in this ease, we are referred to the esse of Armistead versus the Shreveport and Red River Railroad Oo., 108 La. p. 171, as determinative of the present ease.

In that esse there was evidently a deliberate abandonment of the merchandise, henoe the judgment was rendered on tfc:-t partioular point.

In this the osee at Bar, if under the mixsüutra&uaxsa evidence, plaintiff abandoned his property deliberately, leaving it in the street, possibly the decision in the Armistead case would apply. But we are not inclined to that view. We believe, as stated in this opinion, that the evidenoe satisfied the Judge of the Court aquo that possession had been given by this plaintiff to the defendant and the automobile in question, therefore, was not abandoned. Tho whole question is one of fact and as we have stated the Judge of the lower Court had a better and dearer view of the matter then we have.

For the resscns assigned, it is ordered, adjudged and deoreed, that the judgment of the Court aquo is hereby affirmed, costs of both Courts to be peid by the defendant.

•Judgment affirmed*


author: CHARLES F. CLAMOME, JUDffl.

text:
    Charles IT. Claiborne, Judge.
    U. S. FIDELITY & GUARANTY CO., Appellant vs CHARLES MAUTHE
    No. 8249
    May 8th, 1922.

   ü. S. FIDELITY Sc GUARANTY CO., Appellant. vs CHARLES MAUTHE

No. 8249

CHARLES F. CLAMOME, JUDffl.

The plaintiff, having issued its policy in favor of Victor E. Hymel, to indemnify him for any damage to his automobile, and having paid $352.59 damages resulting from a collision of Hymel's automobile with that of the defendant, Mauthe, and claiming a subrogation to all the rights of Hymel against Mauthe, sues the latter for $352.59.

The plaintiff alleges that on or about April 19th, 1920 Hymel was driving his car down St. Charles Avenue, on the lake side road of the Avenue, owing to the fact that the river side road was undergoing repairs; that near Louisiana Avenue he met with the following accident: that Hymel was proceeding behind a truck at about eight miles an hour, when the truck turned into a side street; that Charles Mauthe, who was driving his car up St. Charles Avenue towards his left instead of his right, negligently ran into Hymel's car and damaged it to the extent of $352.59 which plaintiff paid for him; and that by the teims of the policy the plaintiff is subrogptel to the rights of Hymel against Mauthe.

Defendant simply denied each and every allegation in plaintiff's petition contained.

There was judgment for defendant and plaintiff has appealed.

The evidence is that plaintiff was driving down St. Charles Avenue in his automobile; he was driving on the side of the road towards the Lake because the side t-owafds the River was undergoing repairs; he was driving to the right of the road within a foot or two of the neutral ground; in the car with him vfere his wife and child and a friend R. A. Dubroca. Ahead of them was a truck loaded with cotton. \7heh they reached Josephine Street, the truck turned to its left into Josephine Street. Plaintiff's car had not at that moment reached Josephine Street; it was about twenty or thirty feet from it. At that moment plaintiff's car collided with defendant's. Plaintiff was on the right side of the roadway where he should have been, while defendant was on the left side where he had no right to be. This is the testimony of the plaintiff and of his friend Dubroca. They are corroborated by Jesso K. Rea a witness for the defendant who says;

Q. How long after the accident did you get there?
A. 1 suppose about two or three minutos.
Q. Where was Mr. Kauthe's automobile when you first 3a\v it?
A. Comer St. Charles and Josephine, facing going uptown.
Q. Was it near the neutral ground?
A. I Souldn't say. When I saw it, it was in the middle of the street about on the intersection of St.Charles and Josephine.
Q. But taking St. Charles Avenue.
A. Right about the corner post, at the neutral ground. That was after they hit. 1 don't know whether they v/ere rolled or anything, how far it was dragged after it was hit.
Q. Is that the back or front of the automobile that war at the comer?
A. The front.

The plaintiff was asked:

Q. On what side of the automobile did your automobile come in contact with Mr. Hauthe's machine?
A. On the right side of my machine.
Q. The right side of your machine hit the left side of his?
A. Ho; he hit right square in the front.
Q. Now with regard to the neutral ground and the sidewalk, where did this accident take place?
A. Eight close to the neutral ground.
Q. Eow far from the neutral ground were you?
A. 7/ell, about one and a half or two feet; running very close.

In weighing the testimony of this witness we must remember that he had no pecuniary interest in the result as the repairs had been paid by the insurance company; while the defendant was testifying to shield himself from responsibility.

Dubrooa did not have the benéfit of Hymel's testimony, because, at the inception of the trial,

"at the request of counsel for defendant, the witnesses in this case were ordered to retire from the court-fcoom until called".

He says that when the accident happened Hymel's car

"was within a foot of the curb, right near the curb, on his right".

Bert Hayes, a witness for defendant, who took Hauthe's car to the shop, being asked:

Q. Are you the one who repaired it?
A. Yes, sir.
Q. On what side of the oar was the damage done?
A. I think on the right hand side of the car. I am not positive, it is so long ago.

The defendant thus testifies:

"Both traffic was using the same street; as I got wo the comer, about eight or ten feet, there was a big cotton flop.t with cotton. As he was coming down it aopeared he forgot he had to go out Josephine, and made a quick sharp turn, all I could do to stop, I wasn’t going fast, but I just about stooped. Y/hen the big cotton float turned out Josephine Street, ma.de a quick turn, I was afraid he would drag me with him, right behind him was this Paige car. I was just possibly, at a standstill, I can't say, but I was moving very little if at all, and the Paige car, the left hand side of it, struck the left hand side of my car, removed my fender, my left light, and ploughed into my radiator. I was on the lakeside of St. Charles Avenue near the curto, possibly four or five feet from the curb, and in the middle of Josephine Street".

If the defendant means to say that he was traveling on the right side of the road, and that, while there, the left hand side of plaintiff's car struck the left hand side of his car, he is contradicted by the plaintiff and his guest, and especially by the witness Hayes who took his car to the shop and repaired it.

’fe rise from a. critical examination of the whole testimony with the conviction that the plaintiff was driving down the street on the right side near the curb, where he should have been. That the defendant occupied one of two positions: either he was drivirg up the street, on the left side of the road near the neutral ground, where he had no right to travel, or, driving on the right hand side, when he reached Josephine Street, and saw the track blocking his advance he swerved to the left to pass the track, and thus threw himself into the way of plaintiff's car. In both positions he violated the traffic ordinances, and, according to several decisions rendered by us, made himself liable for any damage caused thereby. Joseph vs Orleans Ice Man'g. Co. No. 8232.

In order to reconcile defendant's testimony with the facts, an attempt was made, in argument, to say that while defendant was running up the street, he was surprised by £he truck suddenly turning into Josephine Street, across his path, and that, in order to save himself from imminent danger and harm, he as suddenly, swerved to the left to avoid the truck and thus collided with plaintiff's car, and that the accident was not the fault of either the plaintiff or the defendant, but was the fault of the absent other party, the trupk. No such defense was made in the answer, which certainly would have been made if it had conformed to the facts. No such testimony or explanation was given by defendant. One the contrary, he denied it. He said:

Q. "Viere you able to see his car before the accident?
A. No, sir, this float turned so quick it scared me, 1 thought he would drag me out Josephine. All I could do vías to stop.
Q. Did you afempt to run in towards the neutral gsraund, to pass the float?
A. No, sir, I couldn't. There wasn't time enough to do it. All I could say, the vibration of my car was so str.ong as I was trying to stop.
Q. And you say you Viere going eight miles an hour. You mean at the time the accident occurred you had. almost come to a stop, hadn't you?
A. I did when he bounded off, I couldn't come to a dead stop, but I tried my best to stop.

Prior to filing his answer, the defendant had pleaded that plaintiff's petition disclosed no cause and no right of action- The plea was based on'the ground that plaintiff, Hymel, had no right to transfer his claim to the Insurance Company, because

"this isra suit for the recovery of damages and is not transferable".

No authority is quoted in support of the exception, and we know of none. It is said that the effect of the transfer is to deprive the defendant of his right to reconvene. But if the defendant suffered any damages he may bring a direct suit. 0. C. 2642' (2612) authorizes the transfer of all credits or claims, without exception. The validity of transfers of damage claims by the insured to the insurer aften payment of loss by the latter bs,s been recognized in Haviton vs N. O. Light & Power Co. 124 La. 562. See also 26 A. 447; 47 A. 1563 (1569, 1573);50 A. 1147 g (1151); 1 Woods 72; 27 Demolombe 6 ^

In the cese of Gordon vs Hilíaudon 16 A. 347 the syllabus reeds:

"Plaintiff being the purchaser of a balance of account due by defendant cannot be held, liable on a reconvention for any .amount due by hi s vendor".

In the course of the trial defendant objected to any testimony tending to establish a collision and damage on April 1,7th. at the comer of St. Charles and Josephine Street on the ground of variance between the proof and the petition which alleged that the accident had happened on April 19th at the comer of St. Charles Avenue and Louisiana Avenue. Again the defendant quotes no autnority. The trial Court properly overruled the objection. As to the date, the petition alleged that it vías

"on or about April 19th"

which sufficiently indicates the accident declared upon, as there was only one accident. The comer of the street was not of the essence of the suit, and the defendant was not taken by aurorise.

"Though the allegations be indefinite and informal, yet, if from the pleadings or proceedings before trial the opposite pary has sufficient notice of the nature of the demand or defense to be advanced and could not be surprised evidence thereof will be received!!. 2 H. D. 1155 (1); 15 A/ 501; 31 Cyc 72 (3) 682.
"Where an íiñstrumeát is not the gist of the action, a slight variance between that alleged and proved is not material". 3 N. S. 61.
"Evidence that a curator was appointed in 1813 will be admitted under the allegation that he was appointed in 1815". 4 N. S. 190.
"Every variance in point of time betwoen the allegations and evidence is not fatal". 6 H. S. 9.
"The date is not of the essence of the lease of labor; and evidence that it was made on a day different from that alleged is sufficient". 14 A. 793.
"When plaintiff alleges a contract for making 300,000 bricks he may offer one to make 200,000 if defendant is not surprised and can suffer no injury". 5 A. 575.
"But, in feenaral, the allegations of time, place, quantity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial, and need not be proved strictly as alleged". 1 Greenl. Bv. ^ 61; 31 Cyc 706 (10).
"A variance which does not affect the gist of the action as alleged is immaterial, x. x x It has been decided in a number of cases that a variance to be material must be such as to mislead or surprise the adverse paéty". 31 Cyc 702,703.

But under any conditions the plaintiff would have been permitted to amend his petition to state the corrsct date and place. 1 Greenl.6 73.

The amount of repairs to plaintiff's car paid by the plaintiff insurance company is shown to have been $352.59.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant Charles Mauthe be condemned to pay to the plaintiff the United States Fidelity and Guaranty Company the sum of Three Hundred and fifty-two 59/100 dollars with five per cent per annum interest from October 26th, 1920 till paid and all costs of suit in both Courts.

Judgment reversed. Judgnent for plaintiff as prayed for.

Hay 8th, 1922.


author: Dinkelspiel; J.

text:
    NO. 8250
    COURT OF APPEAL PARISH OF ORLEANS
    WILSON & COMPANY INC. OF LA VS. CRESCENT TRANSFER & SHIPPING CO. INC.
   Dinkelspiel; J.

claims damages, This suit/ in that plaintiff avers / • that the defendant oompany through its driver of an auto truck travelling Horth or toward downtown in Burgundy Street, the said truck of defendant being then about sixty or eighty feet removed from the intersection of Lafayette Avenue, when petitioner's wagon was in the aot of crossing asid street.

Alleging further that while the said vehicles were in the respective positions as aforementioned the defendant's truck driver endeavored to force the same ahead of petitioner's wagon as it was crossing the said street intersection and the speed of defendant's said truck being accelerated for that purpose.

That under the circumstances it becomming apparent to the driver of plaintiff's wagon th-it a collision was imminent;, said driver attempted to avoid same by swerving his mules to the left into Burgundy Street, hut that despite this action on his pert the defendant's truck struck the mule on the right of rear side of petitioner's said wagon, as the result of which the lag of said mule was broken, and it became necessary to kill him at the time of the accident; that the value of the mule was $375.00, the wa.gon was damaged in the sum of $34.50 and three dollars paid for the services of the veterinarian.

Alleging further that the collision and damage herein complained of was due solely and entirely to the negligence of the party driving defendant's automobile truck in that the 3-.i't party failed to timely exercise the duty of "lookout" in that he failed to give the right of way to petitioner's wagon as it star1-ed across the street intersection and thst he failed to avail hi...self of the last olear ohenoe to avoid the collision end drdve the truck at a high and negligent rate of sp-ei.

The answer of defendant denies that it is responsible for the doraage incurred and goee on (Art. 5) to allege that "admits thet when the collision w«.s imminent ..nu a; time when it could not be avoided that plaintiff's driver did attempt to avoid it; further alleging that the said accident was due wholly to the fault and negligence of psfcxii plaintiff's driver who attempted to cross Burgundy Street in such close proximity to the truck of respondent ths.t it was impossible to avoid striking the said mule, notwithstanding every effort mads by defendant's chauffeur and th;t had the driver of said wagon stopped and looked as he should have done, he would have seen the truok of respondent proximity in time to have avoided an attempt to pass when the/gxgxitmiwty of the truck made it impossible for the wagon to pass in safety. And finally defendant alleges that when the mules and wagon had crossed in Burgundy street or were near the intersection of the two etrests that it was impossible for the chauffeur of defend- • ant's truok to see him and had the driver of the wagon not attempted to cross at a time when it was impossible to do so without being struck, the said collision would not have occurred.

In behalf of plaintiff there were examined three witnesses, Joseph Harris, Patrick A. MoGill and John E. Soott.

Harris testified that he was the driver of plaintiff's wagon involved in *hls oollision at the intersection of Lafayette Avenue and Burgundy Street in this City on March 18th. 1930; that he vías in the act of crossing Burgundy Street in the direction towards the river; the truok was coming down Burgundy Street and that he was driving the wagon to whioh were attached two mules; he points out on the photographs annexed the exact spot where he first saw the truok and states he was in the middle of Burgundy Street and that he was about fifty feet from the truok when he first saw it right in the center of Burgundy Street and hie mules were walking and he saw the truok coming in the curve and saw that they were going to be hit, he swung his mules to the left and he did'nt toy to stop, he speeded and he did'nt have room enough and when he out short defendant's truok hit him and got tangled in his front wheel dragging him to ten or tweleve feet and threw both mulos to the ground. One of the mules was so that he ba-dly injured/rc-:S vas nubsequently killed and there was some slight damage to the wagon, the pole being broken»

On Crone examination amongst other things!

Q» And it is a faot.„ where you wore, when you say that you started aorose that you had a olear view of Burgundy Street?
A, Ho 1 had a clear view of about fifty feet until the curve out it off straight up»
Q. You could have stopped your Lillies?
A. Yon but if 1 stopped there was no room for him to pass,

Mr. McGill another witness for plaintiff who witnessed the accident at the time alleged, testifies that ho was standing right on Lafayette Avenue and Burgundy Street in the garage,

Q„ State to the Court, what, briefly is your observation of that occurrence?
A, I was standing right in the garage door facing Burgundy Street rah you can eee about ninety feet up Burgundy Street, there is a very bad curve there; plaintiff’s viagon was going out Laxayotte Avenue, and it me aboftt half way in the middle of the street of Burgundy Street, going towards the river, on Burgundy Street, tho truck ocming down Burgundy Street had plenty of time and sufficient time to check up and avoid hitting that animal, he .could not got aoross to owing his mules to go down Burgundy Street, and this truck struck the mule's leg juot above the fetlock, between the hoof and kneeg and the animal stood and could'nt move; the driver of the truck never stopped after hitting the aniicel for fully ninety f»et down Burgundy Street, I went after him. Being Biicssa shown a sketch of the 90ene of the accident he was asked if same was correct and whether the curve into Burgundy Street is as sketch shows up toward the river.
A. She curve is up Burgundy towe-rds Cantil; you have get to go around that ourve to go down.
Q. Suppose a wagon comes along going towards the point ues.ribed as X, Is it hot a fact that being between the point Y and the point X he could look up Burgundy Street in the direction of Canal Street and see anything coming down?
A. He could.

The witness Soott knows nothing of the accident save and except the value of the mule, damage to the wsgcn, amount paid to the veterinarian.

Witnesses for the defendant were Wiggins, Jules H. Caulfield, Charles Gatden, Jemes Perkins.

Wiggins testifies:

Q. Where you on a truok of the Crescent Transfer Company which had a collision with a wagon of Wilson & Company at Burgundy Street and Lafayette Avenue?
á. Yes Sir.

He was employed by the Custom House in the scaling department and going to the Ar_y Base to get scales, sitting in the middle of the trailor and going shout ten or tv,-eleve miles and seated on the left he,nd side being the Woods side and wss looking towards downtown, the way they were going.

0. Did you see the mules and wagon approaching the truok on Burgundy Street?
A. Yes, I saw them when they started to cross.
Q. About how far from the corner of Lafayette Avenue wia the truok bbx&sx when the wagon started to cross Burgundy Street?
A. I think they both started across at about the same time. There are three streets ocming in there, you can't tell very well the corner.
q. When the wagon starred across Burgundy Street did the wagon have time enough to cross in safety ahead of the truok?
A. Ho, he didn’t.
Q. When did the driver of the wagon firat stop or try to stop his mules?
A. To my knowledge he didn't try to stop; I didn't see him draw his lines at all.
Q. Suppose that when the truck was fifteen or twenty feet away from the point of ucoident, the man had stopped his mules, did he have time enough to do that?
A. Yes he hed time enough to do that.
Q, He swung over to his right in an effort to pass ahead of the mules.
A. The mules were still coming along and he kept to the right hadd side.
0,. He went over to the extreme right hand side to pass the mules? A. I suppose it wu.3 in an effort to pass the mules.
Q. What time of the day was this?
A. It was •'•-ft'-r lunch, we had lunch ?.t the Custom House and went right down; X oan't give you the exact time.

Jules A. C.-.ulfield, witness for the defendant testifies:

Q. Where «rere you at the time of the collision?
A. I was sitting on the truck, we were going to the Sugar Refinery after some scales. I was sitting on the trailer behind the motor, and this ws on of Wilsons, coming out of che direction of L‘ f&yette A-, snue ran into the wagon and hit the mules. The wagon was trying to pass this truck; vc were going a.t the rate of eight miles because when you get tc Lafayette in the junction of Music Street, you have tc slack for the curve; there is a water trough, and I don't know whether he came from the water trough, but he tried to pass us, p.nd he oould'nt.
Q. Wr-s he walking or trotting.
A. Ho, on a little gallop,
Q. Was there anything a.t that time to obstruct his view as he reached the lower pert of üurgundy Str'et, 30 a.s to prevent him seeing the truck coming down?
A. iiothing was in his way but the truck.
Q. When he attempted to cross in front of the truck, shout how many feet away from the truck at that lime was he from the point of collision?,
A. Right in the middle, midships, in the middle of the crossing there is üusio Street on one side and Lafayette Street on the other, and on this side of the Stress, ano. we were going in the center of the street when he hit us.

Reading of this witness's testimony on or os e-sx-imi nation in no wise changes in our opinion his evidence on direct examination.

Iir. Ch:.rles Gatden testifies:

He is employed e.t the Customhouse os one of the weigh-er's assistants, scale men, was on the truck then it collided with the mules attached to a wegon belong to V?i?, son & Con.o-.ny and was going to get some scales, left the Cusco.i. House about lunch time, ■vas sitting inxihKxirxiixx on the front sect on the right river 3iie going down, its a great big long track, open and could s:-s what was going on on the opposite side; the driver is in front, he is closed in, he is sittin; 'n front and the truck i3 something like a v-gon, the trailor is hitched to where the driver is The rear p'.-,,'t of the trailer is the highest.

0,. V/hsn 7/-„3 the first time you 3s.w this wagon -.-.nd these mules; how fur from the point of the accident when you first saw them?
A, V/hen X first saw the wegon it was coming in ftom one of those streets, I not f-.mili-.r with those streets down th;re; I think it \it.s Lafayette Avenue, I think he was ooming in as we were passing by. '
Q. At what 3peed wee this wagon trying to cross Burgundy Str-et; how were the mules going?
A. Trotting.
Q. Tftien they started to cross the str et down ,rich your truck was ocming how for vi s your truok from the point of collision?
A. The heed of the truck was past and this wagon came in and struck the mi Idle portion of the truck on the left side.
there Q. At the spped at which your truck yas going w-is/itaix time enough for the wtgon 6c stop in front of it?
A. Ho, the head part afxtk had done crossed over when this wagon came.

On oross examination.

Q. 'Cra didn't see this wagon until it went into the side of your truck?
A, Ho, I saw the wagon coming end the driver blew the horn before coming to the corner, and he crossed over, and the next thing I knew it came into us.

James Perkins, another witness for the defendant testifies:

C¡. Were you on one of his trucks at the time when it Collided with eome mules belonging to a Wilson & Company at Lafayette Avenue and Burgundy Streets.
A. Yes Sir.
Q. In whot part of that truck viere you sitting?
A. I w-.s sitting in front with the driver.
Q. At about what speed was that truck going down Burgundy Street?
A. About 8 to 3 miles an hour.
Q., When was the first time you saw the wagon?
A. We were on Burgundy Street, you see, one side is Music Street and the other Lafayette Avenue, we were going across and the wagon look id to ms like about ten to fifteen feet from us, and the .invar pulled up his mules and just as we crossed Ltuoyscbe Avenue the wagon w->3 on the other side of the gutter and I heard u lick, and chey hollered, and the driver stopped, we got down and came back and looked and saw the mule crippled, and the pole was broke, - nd it hit right in the side of the last whusi on the side of th-. truck.
0,. WsSthr.re anything when he re;-ched the lower property line of Burgundy Street to keep him from seeing th>r truck coming down?
A. Ho there was nothing it w&s a olear str-et.

the wagon He was seated with the chauffeur, was on r^e right side and/wns crossing Burgundy Street when he first saw it.

Q, When you first sa,w the wagon it was in the act of going across Bur randy Street?
A. Yes it vras going that way.
Q. There is a bend, in Burgundy Street as you come downtown where you ksk have to turn to the right?
A. Yes.

A oareful examination of the evidence in this case goes to show that drivers must obey the rules and laws of the road and there is in this evidence an ordinance, Ho. 5131 Commission Council Series, which distinctly gives the right of way and Seotion 3 page 3 speaking of wagons and trucks and other vehicles and describing atxsaataxaxd streets and avenues of the city cf Yew Orleans and the direction which drivers must take gees on and thus states:

"On all other streets and at intersections of above streets and avenues, all vehicles shall have right of way over other vehicles approaching' on intersection streets from the left -,nd shall give right of «'ey to those appro aching from the right!1

Commission And this rule cf ths/Sii? Council in our opinion, governs this case.

It has been frequently decided both by this Court and the Supreme Court that "the driver of a vehicle upon the wrong side of a. street assumes the risks of a collision with another vehicle unless he can she' that the party inflicting the injury could have avoided doing so by reasonable care."

Syllabus Jacob Fab ochar vs. L. Blum, I bol 8116/of thi3 Court13 ■decision in that case.

And to the same effect is the case cf Boston Insurance Company vs. Hosetrd 3. bloody, where the syllabus reu..i3"A chauffeur who disregards the provisions of the traffic ordinance and thereby cringe on a collision ana damage upon the .automobile he drives is guilty of negligence 'which dec-rs the owner of the damaged automobile from r-covering damages." This i3 found in Ho. 7891 of the docket of this Court, and there cited amongst other authorities applicable to thi.s oa.se, is the case c.f Schick vs. Jenevein, 145 La. at page 334, quoting from the syllabus:

"The law of the road requiring that s. driver shall turn to the right when meeting another upon the puhlio highway is not an inflexible one, but must be followed unless oircumstanoea and common prudence dictate a different course.
Where one is upon the wrong side of the traveled portion of a roa.d or has not conceded to the other party whom he has attempted to pass tha,t portion of the highway to which he is en-collision titled, end an/asaidSKt occurs,She burden is upon him who so violates the rule to show th;t hie act was not the proximate cause of the injury, or that there were justifiable circumstances which excuses his conduct."

If in this case the driver of the wagon had followed the rules of the road this acoident would not have occurred} in failing to do this he has brought about the result himself and the defendant cannot be held responsible for his gross negligence and violation of the traffic ordinanoe.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Court aqua be and the same la and this suit dismissed, hereby reversed,/costs of both Courts to be paid by the plaintiff.

Judgment reversed.


author: CHARLES F. CLAIBORNE, JOT®.

text:
    Charles F. Claiborne, Judge.
    LAZARD FALCON VS PAUL CORONA
    No. 8254
    April 24th, 1922.

   LAZARD FALCON ¶3 PAUL CORONA

No. 8254»

CHARLES F. CLAIBORNE, JOT®.

From a judgment agpinst him the defendant, on April 5th, 1921, took an appeal returnable to this Court on April 30th, 1921. that time to this, the defendant and appellant, from month to month has presented ten consecutive petitions for an extension of time to file the transcript, on the ground that the Clerk of the District Court was unable to complete the transcript owing to the continued failure of the stenographer to deliver the testimony taken by him in the trial Court, notwithstanding a rule taken against him and an order commanding him so to do. The stenographer then died.

On April 6th, 1922, appellant took, in this Court, a rule against the plaintiff and appellee to show cause why the judgment herein should not be set aside and why this case should not be remanded for a new trial owing to the absence of the testimony.

Plaintiff and appellee, on the other hand, moved to dismiss this appeal on the ground

"that the bond given by the defendant and appellant to suspend the execution of the judgment herein is defective, mill, and void, and insufficient to operate as a suspen-sive appeal bond".

This motion is too vague and indefinite to inform the appellant of the ©round upon which the bond furnished by him is not sufficient, and should not perhaps, for that reason, be noticed. But upon the argument of the motion, which it is our custom to permit, the appellant raised no objection; neither can we. The appellee explained, that the bond was "insufficient" because it was not accompanied by the affidavit of the appellant and the surety on the bond that the surety

"is worth, over and above all his debts and obligations, in assets that can be subjected to 'levy under execution, the amount for which said surety has bound himself in s'did bond"

in accordance with Section 4 of Act 112 of 1916 p 242. It is true that the bond does not contain such an affidavit. But according to the same act it is provided;

"Section 2: "That whenever any litigant in this State shall have furnished, in connection with any judicial proceeding, a bond and surety, and the said bond is insufficient in amount or incorrect by reason of, errors or omissions therein, such litigant shall have the right to correct such insufficiency, error, or omission in the Court of original jurisdiction according to law & c“. "Section 3; x x x if the adverse party, or any other party in interest shall cause to be served upon him, through the proper officer for service, a notice that such adverse party, or the party in interest, claims that a bond furnished in the proceeding to which he is a party or in which he has an interest, is insufficient either as to form or substance & c".
Section 4; "That no officer of any Court shall accept any bond"

unless it is accompanied by the oahh of the principal and surety required by the above section.

Section 9: "That no appeal shall be dismissed, nor shall any writ, or other process be set aside on account of-any error in the amount of the bond, or for any inaccuracy or omission in the bond, er for the insufficiency of any surety or sureties, on said bond, until the party fumish-i Mg atíeb bond shall have failed to correct the swft inaccuracy or omission, or to have furnished, supplemental or additional bond, or .surety or sureties, as hereinabove provided”.

In interpreting this statute the Supreme Court has decided as follows!

In White vs Maison Blanche 142 La. 265 the Court said: "Under Act No. 112 of 1916§s 3 and 9, an\ appeal will not be dismissed when it is not claimed that appellant was given any notice by appellee of the insufficiency of the bond of appeal either in form or amount".

In Hurry vs Hurry 144 La. 877 the Court said:

"Under Act No. 112 of 1916 §9, despite section 3, appellee in a divorce suit should have urged his complaint in relation to the insufficiency of appellant's appeal bond in the District Court, should have had it served on appellant* and should have given her opportunity to correct the errors, or to furnish a new bond within two legal days after service of the complaint; and appellee having failed to do so, the appeal cannot be dismissed on account of errors or omissions in appeal bond”.

In Durel vs Buchanan 147 La. 804 the Court said:

"Since the provisions of Act No. 112 of 1916 an appeal cannot be dismissed for insufficiency of the appeal bond without allowing appellant opportunity to furnish new and additional bond as required by Section 3 and 9".

In Bolich vs Mathe 89 So. Rep. No. 13 p 628 the Court repeated:

"In view of Act No. 112 of 1916 § 9 appeal will not be dismissed for any inaccuracy or error in the appeal bond or for insufficiency of security, where the defendant has not been put in default in the District Court tile1 Biratriet- Court in the manner directed by the statute".

We believe these decisions a.pply notwithstanding the provisions contained in Section 4 prohibiting any officer of Court from accepting any bond not accompanied by the affidavits of the principal and surety. The bond, when filed, does not cease to be a bond, although not sworn to, nor are the principal and surety released for want of their affidavits.

II. When testimony taken in the trial Court has been lost, through no fault of the appellant, and the Clerk is not able, for that reason to include it in the transcript, the judgment appealed from will be reversed and set aside and the case remanded for a new trial. 119 La. 225; 124 La. 820 and the numerous authorities quoted in the first case and specially 32 A. 646.

It is therefore ordered that the motion to dismiss the appeal be denied, and that the judgnent of the District Court be reversed and set aside and that this case be remanded for a new trial, all costs to await the final judgnent.

April 24, 1922.