text:
    229 La. 463
    Maurice A. CUCURULLO v. CITY OF NEW ORLEANS et al.
    No. 42271.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Henry B. Curtis, City Atty., Charles E. Cabibi, Asst. City Atty., New Orleans, for defendant-appellant.
    Guy J. D’Antonio, New Orleans, for plaintiff-appellee.
   HAMITER, Justice.

The City of New Orleans, in providing an approach to the Gentilly underpass which it constructed, lowered the grade of Bruxelles Street in front of plaintiff’s property some A' and built there a concrete retaining wall, with the result that a pre-ex-isting 8' 3" driveway into the premises was completely and permanently eliminated.

After attempting in vain through amicable demand to obtain payment for the resulting damages plaintiff instituted this suit against the city and the New Orleans Railway Terminal Board, he praying for a soli-dary judgment in the sum of $8,572.

The district court, following a trial of the merits, rendered a judgment condemning the City of New Orleans to pay to plaintiff the sum of $5,000 and dismissing the suit as to the New1 Orleans Terminal Board.

The City of New Orleans ■ appealed. Plaintiff neither appealed nor filed an answer to the city’s appeal.

Unquestionably, plaintiff’s premises were damaged by the complete and permanent elimination of the driveway. Even appellant’s experts testified that the loss of the driveway resulted in a diminution in the rental and sale value of the property.

Moreover, the city, having- caused the loss in connection with and necessitated by its construction of public works, is legally liable therefor. Section 2, Article 1 of the Louisiana Constitution, LSA, states: “ * * * Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.” And our jurisprudence recognizes the liability of public agencies for interfering with rights of ingress and egress respecting private properties. Harrison v. Louisiana Highway Commission, 202 La. 345, 11 So.2d 612 and Patin v. City of New Orleans, 223 La. 703, 66 So.2d 616. (Italics ours.)

As to the matter of quantum we are unable to conclude that the trial judge erred in awarding plaintiff the sum of $5,000.

The property in question is zoned “J” Industrial, and since 1942 plaintiff has maintained there a cleaning and pressing establishment. Of the two buildings situated on the lot, the front structure is used for the conducting of all business transactions and the rear one (containing.the necessary machinery and other equipment) for the actual cleaning and pressing operations.

The evidence relating to a diminution in value consisted only of the testimony of four realtors. The two experts called by the city estimated that the property with the pre-existing driveway was worth $20,-000 and that it now has a value of .$18,000 to $18,300. They determined the diminution to be from $1700 to $2000 by (1) using a 7% capitalization rate based on an assumed rental .value for the vacant strip and (2) concluding that plaintiff had in effect lost 8' 3" of his ;vacant ground which was worth a maximum of $200 per front foot.

' The two experts testifying for plaintiff, on the other hand, thought that the property initially had a value of about $27,000 and that a diminution of about 30% thereof ($8,100) had-taken place. One of these said that in making the estimate he took into consideration the present zoning regulations requiring the supplying of offstreet parking. (However, the record discloses that the lot is not sufficiently large to permit appreciable'parking.) Plaintiff’s other expert expressed the view that “a lot of people would not be interested in that property without that driveway.”

In view of the wide variance between the estimates furnished by the recognized experts of the respective litigants (which constituted the only evidence on the matter of quantum), and since none of the opinions expressed appear to have any appropriate factual basis, we do not feel warranted in disturbing the award of $5,000 made by the district court.

For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: PONDER, Justice. HAMITER, Justice

license: Public Domain

text:
    229 La. 467
    Vernon H. EDMONDS v. TOTEM STORES, Inc. et al.
    No. 42548.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      Morgan, Baker & Skeels, Shreveport, for applicant.
    Whitmeyer & Alexander, Shreveport, for third .opponents, respondents.
   PONDER, Justice.

We granted writs in this case to review a judgment of the Court of Appeal, Second Circuit, reported in 81 So.2d at page 431, wherein the court of appeal held that a lessor could assert his privilege on property that had been previously seized by the sheriff and removed from the pi'emises some 87 days previous to the filing of the third opposition by the lessor.

Relator, Vernon H. Edmonds, filed suit against Totem Stores, Incorporated, for wages due him as a clerk while employed by Totem Stores, Incorporated. A writ of sequestration issued under the authoidty of Articles 3191 .and 3214 .of the LSA-Civil Code and, in accordance ’ therewith, .the. movable property was removed from the premises on September 8, 1954. On October 20, 1954, judgment was entered by. default in favor of relator ordering that the writ of sequestration be maintained with recognition of relator’s lien for wages due and privilege and ordering that the property seized be sold and that .relator’s claim be paid out of the proceeds of the sale with preference and priority over all others. On December 4, 1954, the respondents herein, Joseph and Anthony Pernici, as lessors of Totem Stores, Inc., filed a third opposition seeking' to enforce their lessor’s privilege on the movable property of Totem Stores, Incorporated. The district court denied the claim of third opponents and, on appeal, the court of appeal reversed this judgment .and rendered judgment 'recognizing the claim of third opponents (respondents herein) as being, superior to that of.relator, We granted writs, upon. application by relator, to review this matter, and it is now submitted for ,our determination.

The validity of the claim of third opponents for rent is admitted as is relator’s claim for wages due, hence, the only question before this Court is whether the lessor’s privilege was lost .when the lessor failed to file his third opposition or take any steps to enforce his lien and privilege within fifteen days after the property was removed from the leased .premises.

The trial court relied upon Articles 2705 and 2709 of the LSA-Civil Code in deciding that the third opponents lost their lien and privilege by permitting more than fifteen days to elapse without taking legal action. The court of appeal in reversing this judgment relied solely upon the • decision in Union Securities Co. v. Neal, 9 La.App. 494, 121 So. 316, 317, and quoted at length therefrom.

In a brief filed in this ■ Court relator quotes the following language from that case, Union Securities Co. v. Neal, supra, in support of his position, viz.:

“No citation of authority is necessary on the point that the lessor who permits the property of his lessee to be taken out of the leased premises and remain off the premises for more than IS days, loses his privilege thereon. * * * Our holding * * * is that no actual seizure of the property was necessary by the landlord, and that, having intervened.and claimed the proceeds of the sale prior to the expiration of the 15 days from the date on which the property was removed from the leased premises by the sheriff, and having obtained an order directing the sheriff to hold the proceeds of the sale, he has done all that was necessary and his lien is preserved.”

The facts of that case show that the property was seized at the instance of the plaintiff and removed from the leased premises on July 28, 1927; eight days later the lessor intervened in the suit setting up his claim for rent. The defense to the suit was that the lessor’s lien and privilege were lost by the removal of the property from the leased premises inasmuch as the lessor was not the instigator of the seizure and had not caused same to issue at his instance. The holding of the court was that no actual seizure of the property was necessary by the landlord and “that, having intervened and claimed the proceeds of the sale prior to the expiration of the IS days from the date on which the property was removed from the leased premises by the, sheriff, and having obtained an order directing the sheriff to hold the proceeds of the sale, he has done all that was necessary and his lien is'preserved.”

In the course of the opinion in the above, quoted case, the decision in City of New Orleans v. Vaught, 12 La.Ann. 339 was discussed and relied upon. A reading of that opinion discloses that although more than IS days had elapsed from the issuance of the writ in favor of the plaintiff, and the opposition filed by the lessor, nevertheless the property had not been removed from the leased premises and the court correctly held that “the defendant had not been divested of his title to the property thus seized.”

It is argued by respondents that, although there is language in some of the cases referring to the fifteen-day period as a prescriptive period, such is not the case and the-fifteen days granted to the lessor by Article 2709 of the LSA-Civil Code is an extension of his right to seize the property of the lessee on the leased premises. They argue that since the necessity for seizure by the lessor under the statute is eliminated, as held in Robinson v. Staples, 5 La.Ann. 712; Case v. Kloppenburg, 27 La.Ann. 482; Robb v. Wagner, 5 La.Ann. 111; Arick v. Walsh, 23 La.Ann. 605, it necessarily follows that the necessity of the fifteen day extension is likewise eliminated and the provision therefor would cease to apply. In this interpretation of the law, respondents are mistaken for the provisions of Article 2709 of the LSA-Civil Code are clear and explicit: “In the exercise of this right, the lessor may seize the objects, which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified.”

Respondents contend that as long as the property was in-custodia legis that irrespective of the fact that 87 days had elapsed from the time the property was removed from the leased premises at the instance of the relator, until the respondents filed their third opposition, that they were still entitled to assert their lessor’s lien and privilege thereon. They contend that the removal of the property from the leased premises by the court is not such a removal as contemplated’ by Article 2709 of the LSA-Civil Code. Citing the cases of Robinson v. McCay, 8 Mart.,N.S., 106 and Conrad v. Patzelt, 29 La.Ann. 465. The facts in those cases make them inapposite to the conclusion herein that the provision in Article 2709 relative to the fifteen day period means that the lessor must assert that right before the lapse of that time when the movables have been removed from the leased premises.

Counsel for respondents cites language from Bistes v. Checker Cab Co., 13 La.App. 456, 126 So. 712, 713, which instead of upholding his contention destroys it, viz.:

“In the second place, it seems to us that the intention of the framers of the Civil Code, as expressed in articles 2705 to 2709 thereof, was that the essential requirement to the existence of the lessor’s privilege should he the presence on the leased premises of the movables to be seized. Article 2709 recognizes an exception, and permits a seizure under the lessor’s privilege for fifteen days after the removal of the movables. This article was inserted for the protection'of the lessor, so that the lessee, without the knowledge of the lessor, could not remove the articles and thus deprive the lessor 'of his privilege. But, even in such case, the privilege exists for only fifteen days * %

The case of Union Securities Co. v. Neal, supra, relied upon by the court of appeal is not decisive of this matter and in relying upon such decision the court of appeal was in error.. Under the very express wording of Article 2709, the lessor must assert his claim within fifteen days after the removal of the property from the leased premises or he loses his lien and privilege.

For the reasons assigned, the judgment is reversed and set aside and it is now ordered and decreed that there be judgment ordering the Sheriff of Caddo Parish to pay to Vernon H. Edmonds the proceeds resulting from the Judicial sale with preference and priority over third opponents, Joseph Pemici and Anthony Pérnici. All costs to be paid by respondents.

HAMITER, J., dissents with written reasons.

HAMITER, Justice

(dissenting).

The lien of a lessor- — his right of pledge —is created by LSA-Civil Code, Articles 2705, 2706 and 2707.

The enforcement or the exercise of such right of pledge, on the other hand, is provided for by the following provisions:

“In the exercise of this right, the lessor may seize the objects, which are subject to it, before the lessee takes them away, or within fifteen days after they aré taken away, if they continue to be the property of the lessee, and can be identified.” LSA-Civil Code, Article 2709.
“The lessor may seize, even in the hands of a third person, such furniture as was in the house leased, if the same have been removed by the lessee, provided he declare on oath that the same has been removed without his consent, within fifteen days previous to his suit being brought.” Code of Practice, Article 288. (Italics mine.)

Under these quoted provisions, as I appreciate them, the lessor may enforce or exercise his statutory lien (granted by the other articles mentioned above) by seizing-the objects which are subject to it, provided that he makes the seizure while they are on the.leased premises or within fifteen days after the lessee takes them away.

In the instant case the pledged objects were removed from the leased premises by the sheriff pursuant to a writ of fieri facias; they were not taken away by the lessee. They became in “custodia legis”, thereby rendering impossible an exercise of the lessor’s right of pledge by a seizure of them. For the lessor to make a seizure the enlistment of the services of the sheriff would have been necessary; and surely such official could not seize that which he already had in his custody.

As a consequence of the obstacle preventing an enforcement of the lessor’s lien the prescription of fifteen days (provided for in LSA-Civil Code Article 2709 and Code of Practice, Article 288) was, in my opinion, suspended. And the suspension endured to the day of sale, for the sheriff did not relinquish his custody of the property prior to that time. See Robinson v. McCay, 8 Mart.,N.S., 106.

. Accordingly, and since the right of pledge involved herein was in no manner adversely affected, the third opposition of this lessor, filed prior to the sale and in which he claimed preferential payment from the proceeds, was timely.

I am of the belief that the judgment of the Court of Appeal is correct. Therefore, I respectfully dissent.


author: HAMITER, Justice.

text:
    229 La. 476

    STATE of Louisiana v. Charles JOHNSON.
    No. 42670.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      Charles A. Byrne, New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Peter J. Compagno, Asst. Dist. Atty., New Orleans, for appel-lee.
   HAMITER, Justice.

In a bill of information the defendant, Charles Johnson, was charged with having committed in the Parish of Orleans on March 10, 1955 “aggravated burglary of the inhabited dwelling' No. 456 Audubon Street, belonging to one Laura T. Hobson, with the intent to commit a theft therein * $

After trial, a jury rendered a verdict of guilty as charged; and the judge imposed a sentence of ten years at hard labor in the State Penitentiary.

As a basis for this appeal the defendant perfected eleven bills of exceptions. Four of these (Nos. 4, 5, 8 and 9) relate to two oral statements allegedly made by the accused and which the court permitted the jury to receive. We shall consider these four initially and together.

The record discloses that at approximately 3:00 o’clock of the morning of March 10, 1955 someone forcibly entered the home of Miss Hobson by breaking a pane of glass in a door of the house and turning the lock from the inside. Wearing a mask the intruder struggled briefly therein with Miss Virginia Mitchell, who resided with Miss Hobson as an employed companion, and then left the premises. A few minutes later officers of the New Orleans Police Department, having been summoned by telephone, arrived on the scene.

Following a conference with the two ladies Officers' Anthony Polito and Edward O’Donnell went to the home of the defendant (who lived several blocks away and for a few days previously had been employed By Miss Plobson as a yard man) and brought him to the Hobson residence. Miss Mitchell, on observing the clothing he wore, concluded that he had been the intruder. Thereupon, the accused was taken to the Second District Police Station. However, before daylight of the same morning (March 10) he was returned to the scene of the crime, at which time and place he purportedly told the accompanying officers how he had broken the glass in the door and gained entrance to the premises.

The following day (March 11), at approximately .11:00 o’clock A.M., Miss Mitchell was in the police station for the purpose of making a statement. The accused'allegedly came nearby and confessed to her, in the presence of .Officers Polito and O’Donnell, that he was the person who had entered the room and grabbed her.

In the prosecution of this accused the state first offered the testimony of Miss Mitchell to show the facts and circumstances relating to the breaking and entering and to the struggle in which she was engaged. Then it proceeded to lay the foundation for the introduction of the confession allegedly made by the accused to Miss Mitchell about 11:00 o’clock of the morning of March 11 at the police station in the- presence of Officers Polito and O’Donnell.

While the jury was retired the last mentioned three persons testified that at such hour and place an oral confession was made to Miss Mitchell voluntarily and freely. However, they were not in accord respecting a question of whether the officers had left Miss Mitchell alone for some fifteen minutes immediately prior to the time the accused appeared before them.

In refutation, testimony of Dr. Samuel Karlin was offered, it having been to the effect that he examined the accused at 5:15 o’clock P.M. on March 11; that he found a small superficial abrasion of the skin on the outer side of the right thigh and, additionally, bruises on both legs (shins).about seven inches below the knees; that he was unable to say to what they were attributable, although he thought the leg bruises coulld have been caused by a policeman’s night stick; and that the " wounds were fresh, apparently having occurred within 24 hours prior to the examination. The accused also testified, he stating that the officers had beaten him (however, according to his own testimony, he made no complaint to anyone about a beating) and that he had not admitted to Miss Mitchell his having entered the Hobson residence.

After hearing such testimony in the absence of the jury the judge ruled that the alleged statement to Miss Mitchell was freely and voluntarily given. To the ruling defense counsel reserved bill of exceptions No. 4.

The jury, on its return to the court room, heard the same testimony. Immediately thereafter the court again ruled that such statement had been freely and voluntarily made. Defense counsel then reserved bill of exceptions No. 5.

Thereupon, Miss Virginia Mitchell was questioned, and she was permitted to answer, as follows; . : .

“Q. There is testimony that on the morning of March 11th of this year, the defendant made an oral .admission in your presence, and the Court has ruled it was made freely and' voluntarily. Can you tell the Court and the jury in your own words the statement made by the defendant, as you remember it, on March 11th of. this year? A. 'Charles Johnson looked at me and said T am the one that entered the room and grabbed you and threw you on the bed. I am sorry it was you Miss Virginia, I thought it was Miss Hobson.’
“Q. Was anything else said by this defendant in your presence? A. That’s all.”

In State v. Alexander, 215 La. 245, 40 So.2d 232, 233, the following was said: “The jurisprudence of the State is well-settled to the effect that a confession must be free and voluntary in order to bej admitted in evidence against the defendant in a criminal prosecution; that it is the duty of the State to prove that the confession is free and voluntary and that the admissibility of the incriminating statements or confession of the accused is a question of fact, that is, whether the confession was voluntary or not. The trial judge had to settle this question of fact within his sound discretion. * * * ”

And in State v. Wilson, 217 La. 470, 46 So.2d 738, 743, we observed: “The admissibility of a confession is determined by the trial judge and not the jury. The effect of the confession is to be determined by the jury after it has been held by the trial judge to be admissible. * * * ”

In the instant case, from our study of the evidence relating to bills of exceptions Nos. 4 and 5, we cannot, conclude that the trial judge abused his discretion in finding that the alleged oral statement made by the accused to Miss Mitchell on March 11 at the police station was free and voluntary. She, as well as the two officers who were present at- the time, testified emphatically that it was not given under the influence of fear, intimidation, threats or promises.

. The other oral statement attributed to the accused, about which complaint is made in bills of exceptions Nos. 8 and 9, was allegedly given (as above shown) to Officers Polito and O’Donnell before daylight of the preceding day (March 10) while he was in their custody at the Hobson home. The purported admission was testified to by Officer Polito (during the state’s examination of him with reference to events occurring immediately after the accused was first taken to the Hobson residence and identified by Miss Mitchell), and it was received by the jury, in the following manner:

“Q. Approximately how long did you remain at 456 Audubon Street with the defendant ? A. Maybe about twenty minutes.
“Q. Upon leaving 456 Audubon Street,, where did you go ? A. We took Charles to the station, second district.
"Q. Did you have occasion to go any other place from the police station with the defendant, Charles Johnson? A. We did.
“Q. Where, did ■ you go? A. Charles said he would show us where he had picked up a stick to break the glass. We took Charles to the house and he recounted hozv he broke the glass, how he got in the house.
“By Mr. Byrne: Object. 'No predicate has been laid. I ask it be stricken.
“By the Court: I have nothing before me now.
“By Mr. Byrne: I ask that portion of the testimony tantamount to a confession be stricken.
“By the Court: I refuse to strike anything from the record.
“By Mr. Byrne: Reserve a bill, making the officer’s testimony part of the bill.
“By Mr. Byrne: I ask the jury be instructed to disregard that.
“By the Court: Instruction refused.
“By Mr. Byrne:' Reserve a, bill.” (Italics ours.)

As to the bills of exceptions thus reserved (Nos. 8 and 9) the trial judge, in a Per Curiam, states: “At the time that ■officer Polito stated what the accused told liim * * * and the objection was -made, there had already been admitted a confession by the accused, for which a proper predicate had been laid. It was and still is my position that this additional statement was merely a repetition of the confession already admitted in evidence. In the confession which was admitted, the defendant confessed that he was the culprit, and the additional statement was simply a repetition of this.” '

In their original brief before this court counsel for the state took the following position: “The trial judge having admitted the oral confession [discussed above], the State was permitted to question witnesses as to the contents of the confession, and that is exactly what happened and what was objected to and is the basis of bills of exceptions numbers 8 and 9. Therefore, the defendant was not prejudiced, nor did he suffer any injury; for the jury had already heard the contents of the free and voluntary confession.' The questions involved in bills 8 and 9 were merely parts of the oral confession already admitted.” (Brackets ours.)

Obviously, the recounting ■ by the accused (referred to by Officer Polito), as to “how he broke the glass, how he got in the house”, was not merely a part of the oral confession already admitted. In the introduced confession allegedly given to Miss Mitchell he made reference only to his entering the room and struggling with her; whereas, in the other statement he was talking about his breaking and entering the house. Moreover, and of great significance in this consideration, the two statements (as above shown) were made at widely separated times and places and under entirely different circumstances. We must and do hold, therefore, that the remarks attributed to the accused by Officer Polito amounted to an independent confession. To say the least they constituted a separate admission of inculpatory facts which, under our jurisprudence, must be treated as a confession with respect to the requirement of laying a proper foundation for the introduction thereof. See State v. Robinson, 215 La. 974, 41 So.2d 848 and State v. Clark, 228 La. 899, 84 So.2d 452. Accordingly, particularly since no foundation had been laid therefor and no reference had been made to it in the state’s opening statement, such confession should not have been allowed in evidence; and it was error for the trial judge to refuse to instruct the jury to disregard it.

In a supplemental brief filed here counsel for the state now contend: “In the instant case in view of the fact that a confession, and a proper one, had already been heard by the jury, it is submitted that the gratuitous statement of the witness did not add much, if anything, to the state’s case, particularly since the prosecution did not pursue the point at all. Conceding that it would . have been better to instruct the jury to disregard, there. was very much else in the case [from] which the jury could, as they did, find the defendant guilty. * * * We think that the other evidence in the case was so strong, that this chance remark by officer Polito could not have had any substantive bearing on the final result.” (Brackets ours.)

Contentions similar to the one now urged 'by the state, i. e., that the improperly admitted confession did not prejudice the accused, have been made to and rejected by this court on previous occasions. , .

In State v. Ellis, 207 La. 812, 22 So.2d 181, 183, which involved a factual situation almost identical to the one here, there were two confessions — one oral and one written. In point of time the written one.had been given prior to the oral one. On the trial of the case the state initially proved and introduced the oral confession (the one made last) without any objection whatever. When the written confession was offered (the one made first) defense counsel objected on the ground that the state had failed to affirmatively show that it had been freely and voluntarily given. The objection was overruled and it was permitted to be introduced. On appeal we concluded that the written confession . (the one first made) was-not shown to have been freely and voluntarily given and that, hence, its admission in evidence constituted, error. But there, as here, the state contended that the introduction was not prejudicial. Of this contention we said: “The State is under the impression that the erroneous admission of the written confession did not prejudice the defendant’s rights. It is argued that there was ample evidence to support the verdict without the use of the confession and that its admission was harmless error.

“The use of the written confession by the State precludes it from .now saying that it was not used to the prejudice of the accused. * * * ”

The resulting prejudice in the instant case is even more apparent. As pointed out above the confession secondly made in the Ellis case was admitted in evidence without any objection on the part of the defendant — a ' circumstance which carried the necessary implication that it not only had been' made but also had been given freely and voluntarily. In the instant case, on the other hand, the confession secondly made was allowed to be introduced over the defendant’s strenuous objection,, he maintaining that it was never given at all.

The Ellis case was cited with approval and followed in State v. Ross, 212 La. 405, 31 So.2d 842 and State v. Wilson, 214 La. 317, 37 So.2d 804, both of which involved the question of whether the introduction of an inadmissible confession would prejudice the substantial rights of the accused. (The author of this opinion dissented in the last cited two cases, he having entertained the view that the factual situations involved therein were different from the one in State v. Ellis to the decision in which he had subscribed.)

But irrespective of the above referred to decisions, we are unable to agree that this accused was not prejudiced by the improperly introduced confession. As pointed out above the effect of a confession is to be determined by the jury. The jurors in the instant case might well have given no weight to the admitted confession allegedly made to Miss Mitchell in the presence of the two officers, particularly since the three were not in complete agreement as to the circumstances surrounding its making.

The remaining bills of exceptions perfected by appellant need not be considered for they relate to matters that likely will not arise in the course of a new trial.

For the reasons assigned the conviction and sentence are set aside and the case is remanded for the purpose of affording to the defendant a new trial.

FOURNET. €. J., and MOISE, J., absent.


text:
    229 La. 490
    Lawrence PRIMM et al. v. Philip J. ZOLLINGER et al.
    No. 42169.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Casey, Babin & Casey, New Orleans, for defendants and plaintiffs in reconyention, appellants.
    Charles Kohlmeyer, Jr., Thomas F. Jordan, John T. Chambers, Jr., Lemle & Kelleher, New Orleans, for plaintiffs and appellees.
   HAMITER, Justice.

In a written “agreement to purchase or sell”, executed June 8, 1951 on a standard form used by. the New Orleans Real Estate Board, Lawrence Primm contracted to buy from G. J. Pitre and Philip J. Zollinger (who agreed to sell) the pr-emises known as- 37 Egret Street, Lake Vista Subdivision in the City of New Orleans, a specific provision therein being that the act of sale would be passed on or prior to July 8, 1951. Later, by a supplemental ágreement,' such time was extended to August 8, 1951. However, the entire period expired without performance of the contract.

Primm,, thereupon, made demand - upon Pitre and Zollinger for the return of his de-posit'of $1,765 and also, pursuant to the terms of the 'written contract, for the pay-merit of - an equal amount as a penalty. When this was refused he, together with one Raymond B. Nunnery, Sr., who apparently was aiding ‘ Primm financially in the -proposed purchase, instituted this suit to recover the deposit plus the claimed penalty, • a total of $3,530. Alternatively, plaintiffs prayed -for judgment in the amount of the’deposit.

, In an answer and reconventional demand the defendants averred that plaintiffs had failed to tender performance within the time specified for passing the act of sale and that, by reason thereof and under the terms of the contract, the deposit had been forfeited. Accordingly, they prayed for judgment-in reconvention recognizing them as the owners of the deposit and condemning plaintiffs to pay the further sum of $908.48, representing attorney’s fees and costs incurred in connection with the transaction. >'

, Intervening in the cause was J. Clarence Hirsch, a realtor. He joined the defendants in urging their reconventional demand and, further prayed that he have judgment against plaintiffs in the sum of $806, being the commission allegedly due him on the sale of the premises.

After trial of the merits the district court rendered a judgment in favor of plaintiffs (on their alternative demand) for the sum of $1,765. The judgment additionally rejected the reconventional demand of defendants and the claim of intervenor.

’ Only the defendants appealed from the judgment. Plaintiffs have answered the appeal, praying that they he awarded not only their deposit of $1,765 but also an equal amount as a penalty.

Time was of the essence of the contract under consideration, the parties having agreed that the act of sale would, be executed on or prior to August 8, 1951. However, as before shown, that date passed without a fulfillment of the agreement.

Appellants as well as appellees assume the position and insist that the nonfulfillment of the contract was due to a failure on the part of the other to tender performance within the time specified (failure of the purchaser to offer to take title and of the sellers to tender a merchantable title). And on this assumption there is sought to be enforced the reciprocal penalty, provisions of the agreement insofar as they are favorable to the respective litigants (plaintiffs claim the right to recover double the deposit, while the defendants assert that they are entitled to have declared a forfeiture of the deposit and to recover damages).

But the invoked penalty provisions are immaterial, and cannot be considered, in a determination of this litigation. Contained in the written agreement was the following • important, stipulation: “This sale is conditiohed upon the ability of the purchaser' to borrow upon this property as security the sum of $10,000.00 by a mortgage loan * * *. Should the loan stipulated above be unobtainable by the purchaser,' seller or agent within 20 days from date of acceptance hereof, this contract shall then become null and void, and the agent is hereby authorised to return the purchaser’s deposit in full.” (The 20-day period was extended by the supplemental agreement to include August 8, 1951, the expiration date of the contract.) And such purchaser, seller or agent, as the evidence conclusively shows, was unable to obtain the desired and required mortgage loan within the extended period. Thus, the stipulated condition precedent for a consummation of the proposed sale was never satisfied; and consequently the entire . agreement, according to its terms, became null, void and ineffective — this including, of course, the penalty provisions which the respective litigants are here seeking to enforce. (Italics ours.)

It is true, as appellants point out, that the Equitable Mutual Homestead Association of New Orleans had agreed on July 20, 1951 to make the loan. But the lending agreement was not unqualified; it was conditioned on an approval, to be furnished by the Homestead’s attorney, of the title to the property which was to serve as security for the mortgage loan. And the attorney’s approval was not forthcoming, because of certain defects found in the title, until after the expiration of the mentioned extended period.

A'contract containing an identical mortgage loan stipulation was considered by this court in Roux v. Stassi, 225 La. 913, 74 So.2d 161. There we held that since the ■ loan was unobtainable within the specified time the entire purchase and sale agreement became null and ineffective and that, accordingly, the purchaser was not entitled to recover the prescribed penalty of a sum equal to the amount of his deposit.

For the reasons assigned the judgment appealed from is affirmed.

FOURNET, C. J., absent.


author: JANVIER, Judge.

text:
    Mrs. Renee Hebert BRYANT, wife of and Dennis Bryant, v. Horace J. PARR, Individually and Horace J. Parr, Administrator of the Estate of the Minor, Mary Lou Parr, and Marquette Casualty Company, Banner Laundry & Cleaners, Intervenor.
    No. 20436.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Carol B. Hart, Gertler & Hart, James H. Drury, Miazza & Drury, New Orleans, for plaintiffs-appellants.
    Morrison 8c Newell, New Orleans, for defendants-appellees.
   JANVIER, Judge.

The, rear end automobile collision on which this litigation is based resulted from the attempt of the driver of one car to back her car from its position at an angle alongside the curb into the center lane of the avenue just as another car was passing in the said.center lane.

The accident occurred at about 8:30 o’clock in the morning on October 3, 1952,-on St. Charles Avenue just below the corner of Napoleon Avenue, in the City of New Orleans, which‘is one of the busiest thoroughfares in this city.

Mrs. Renee' Hebert Bryant, wife of Dennis Bryant; had parked the family car alongside the curb-on the'river side of St. Charles Avenue about 25 feet below the corner of Napoleon Avenue. At that corner there are several commercial establishments on St. Charles Avenue, including that of Banner Laundry & Cleaners,' Inc. Just ahead of the Bryant car and also parked at the curb was a truck of the said Laundry Company, and immediately back of the Bryant car and between it and the corner of Napoleon Avenue was parked another automobile. The Bryant car was parked not exactly parallel with the curb, its rear end being two or three feet further from the curb than was its front end.

. Mrs. Bryant, having left her car on a family errand returned to it and intended to drive it in a downtown direction on St. Charles Avenue. Because of the laundry truck which was immediately in front of it, she could not drive it forward and enter the center lane of traffic which was to her left, and she decided to back it a short distance and then, having secured clearance between the front of her car and the laundry truck, to drive forward, turn to the left, and enter the center lane of traffic. As she entered her car another car belonging to Horace J. Parr and driven by his minor daughter, Mary Lou Parr, was approaching in the center lane of traffic, having crossed Napoleon Avenue.

Before the Parr car reached a point alongside the spot occupied by the Bryant car, Mrs. Bryant backed that car at an angle, which caused the left rear portion thereof to enter the center lane of the avenue as the Parr car reached that spot. There was contact between the left rear of the Bryant car and the right front of the Parr car, and, as a result of that contact, the Bryant car proceeded forward and struck the laundry truck "which, in turn, struck an - employee of the laundry company and injured him slightly.

Both the Bryant car and the Parr car were damaged. Mrs. Bryant was injured rather seriously, Miss Parr only slightly, if at all. Both Bryant and Mrs. Bryant brought suit for damages against Parr individually and against him as “administrator” of the estate of his minor daughter and also against Marquette Casualty Company, admittedly the liability insurance carrier of Parr. Bryant prayed for solidary judgment in the sum of $546.63, alleged to be the cost of medical, hospital and related bills required in the treatment of Mrs. Bryant and for the repair of his car, and Mrs. Bryant prayed for judgment for $12,500 as compensation for her pain, suffering, etc.

Plaintiffs allege that the accident resulted from the negligence of Mary Lou Parr in “failing to keep a proper lookout * * *; in failing to be attentive * * *; in travelling at an excessive rate of speed * * * in failing to have her automobile under control.”

The defendants admitted the occurrence of the accident, but denied that it was caused by any fault of Miss l?arr and averred, on the contrary, that it was caused solely by negligence of Mrs. Bryant in failing “to keep a proper lookout; * * * being inattentive to her surroundings; * * * backing up without being sure that the way was clear; * * * pulling away from the curb without due care for oncoming traffic * * *.”

All defendants pleaded in the alternative the contributory negligence of Mrs. Bryant.

Marquette, Casualty , Company further averred that its policy of liability insurance was limited to $5,000, for personal injuries and $1,000 for property damage.

Parr then, in his own behalf and as “natural tutor and administrator of the estate of his minor daughter”, assumed the position of plaintiff in reconvention and sought recovery in damages against Mr. and Mrs. Bryant. In his own behalf he prayed for judgment for $292.84 as the cost of repairing his car and on behalf of his minor daughter in the sum of $750 for her alleged physical injuries.

At this stage of the proceedings Banner Laundry & Cleaners, Inc., intervened, without objection of any of the other parties, and, alleging that the accident resulted from the joint negligence of Mrs. Bryant and Miss Parr, prayed for solidary judgment against both Mr. and Mrs. Bryant and against Parr, individually and as the- administrator of the estate of his minor daughter in the sum of $109.11, alleging that it had been required to pay $94.76 for repairs to its truck and $14.35 for medical- and drug bills required in the treatment of its injured employee.

There was judgment dismissing both .the main and the reconventional demand and in favor of the intervener as prayed for against all parties. Mr. and Mrs. Bryant have appealed and Parr, in his own behalf and for the benefit of his 'ininor:daughter, has answered the appeal.

The claim of the intervener has been settled by joint agreement with all other parties, and there remains only the question of whether there is liability in the main defendants in favor of plaintiffs or against the plaintiffs and in favor of the plaintiffs in reconvention.

While Mrs. Bryant says that, before attempting to-back her car away from the curb, she looked -to see if it was safe to do so, it is apparent that' she did not exercise the care demanded by so dangerous a movement. As a matter of fact, she very clearly states that it was not her. intention to back the car out into the center lane of traffic. She apparently did not realize that henear was parked slightly at an. angle and. not exactly parallel with the' curb aind her intention was to back -it a few feet along the curb so that the man in charge of the laundry truck ahead might put into it the bundles, which he was carrying and then would drive his truck away leaving her sufficient room to drive forward and, in that direction, to enter the center lane of the avenue. She says:

“Well, the car was at an angle, yes. I am not sure the car was at an angle, but I didn’t intend to back out anyway. I intended to go back in. I wasn’t going to go that far out * * * all I intended to do was to back up and let the Banner Laundry man get his things in and leave.”

However, when she did back it one, two or three feet, which she admits, instead of going backwards along the curb, since the car was not parallel with the curb, the rear of her car protruded into the lane of traffic.

There can be no doubt that this was negligence on the part of Mrs. Bryant. It is true that she said that she looked first to see that it was safe for her to do so, but surely she could not have devoted any care-in merely glancing to the rear of in looking in the rear view mirror. One thing is certain and that is, that the Parr' car-was on the street, was only a short- distance away, and was approaching at a moderate speed. All witnesses said that the speed of that car was between IS- and 25 miles per hour.

The City Traffic Ordinance, No. 18202, C.C.S., which is in evidence, in section 77, provides:

“Limitations on backing. The driver of a vehicle shall not back the same unless such movement can be made-with reasonable safety and without interfering with other traffic.”

The District Judge found that Mrs. Bryant was negligent as we have indicated for he- said:

’“Mrs. Bryant could have waited until the Banner truck left, but instead she was backing her car on an angle, in a' difficult position to see traffic proceeding down St. Charles Avenue.”

Mrs. Bryant, we think, was obviously negligent and her negligence had causal connection with the accident. There remains only the' question of whether on the part of Miss Parr there was negligence which likewise had causal connection with the accident.

Although the plaintiffs charged that Miss Parr had the last clear chance to avoid, the accident, the District Judge did not agree, for he said:

“Counsel for plaintiffs argued that the doctrine of last clear chance should be applied. The court is of the opinion that the doctrine o'f last clear chance does not apply, as the evidence shows that the Parr automobile was too close to the Bryant automobile when the Bryant automobile backed up; and, in the court’s opinion, Miss Parr had insufficient time and space within which to avoid the occurrence.”

It is true that the District Judge also found that Miss Parr was “either driving too close to the cars parked' ’¿gainst the curb, or was not as alert as she should have been, at a time when and place at which traffic was heavy and active.”

We cannot agree, however, that the accident can in any way he charged to the fact that Miss Parr was not alert and, at the same time, hold that she did not have the last clear chance to avoid the accident. In other words, if she was not alert and could, had she been alert, have avoided the accident, then her failure to avoid it was negligence and there would be liability under the doctrine of the last clear chance. But we agree with the other statement of the District Judge that the Parr automobile was too close to the Bryant automobile when the latter backed out into the traffic lane.

If we are so limited by the rules of evidence that we cannot take judicial notice of a fact of which we are actually well aware, still we may consider what is shown by the record that the roadway of St. Charles Avenue at that point has a width which, when there are cars parked at the curb, does not provide more than two, or at the most, three feet of clearance between the cars so parked and those which are in the center traffic lane. And since there is ample evidence to this effect and to the effect that the Bryant car backed out two or three feet into the center lane, it cannot be said that the accident resulted from the fault on the part of Miss Parr in driving too- close to the line of parked automobiles.

In their attempt to show that Miss Parr was at fault, counsel for plaintiffs place great reliance on the testimony of several persons who, they say, were actual eyewitnesses of the occurrence. One of those witnesses was Henry Broyard, an employee of the Banner Laundry, who is referred to by counsel for plaintiffs as a disinterested eyewitness. He was not an eyewitness at all, for when asked whether he had seen the accident, he said:

“No, sir . * * * I heard a noise. * * * I was in the place where I pick up work * * * and I’m telling you what my helper explained to me. I didn’t see it happen.”

There was on the neutral ground a street car of the New Orleans Public Service, Inc., which was going in the uptown direction-. Both the motorman and the conductor of this car are'relied upon as witnesses for plaintiffs. The conductor, when asked if he had seen the accident, said: “No, sir, I didn’t.” The motorman, in his testimony, claimed to have seen the collision. However, in a statement which he had made shortly after the occurrence, he said:

“I heard a crash to my left and when I looked I saw that there was a car in the right lane of the river portion of St. Charles Avenue, facing towards downtown, that had just- been struck on the rear by another car also in the right lane on St. Charles Avenue, headed towards downtown.”

Counsel for plaintiffs who rely on the testimony of this witness attempt to explain this statement in which he said that his attention was first directed to the accident by hearing the crash. They say that what the motorman meant was that he first noticed the Bryant car backing and saw the Parr car approaching in the center lane and realized that there was going to be a collision, but that then he turned his head away and did not actually see the crash but heard it. This .docs not seem to us to be the natural reaction of one who realizes that an accident is aboüt to occur. If he .saw the two vehicles before the crash and saw that they were about to come together, we cannot be persuaded that he looked in the other direction and then looked again only when he heard the crash. We think he did not see the occurrence and did not look until the crash had taken place, and this is what he said in his written statement.

There was some evidence to the effect that the Parr car crossed Napoleon Avenue in the face of a red light. The two occupants of the car, Miss Parr and a young companion, say that they stopped at Napoleon Avenue for the red light to change to green so that they might cross, and that they then crossed at a moderate speed and that just before they reached a' spot alongside the' point at which the Bryant car was parked, it suddenly backed out into their car. In this they are corroborated by am eyewitness who was on the neutral ground looking in that direction.

We think that this is exactly what occurred and we find no negligence in Miss Parr. Consequently there must be judgment against Mr. and Mrs. Bryant;- against her because of her negligent operation of the car, and against him because she was operating the car on a family mission with consequent liability in Mr. Bryant as head of the community of acquets and gains. See Brantley v. Clarkson, 217 La. 425, 46 So.2d 614; Paderas v. Stauffer, 10 La.App. 50, 120 So. 886.

It is stipulated that the cost of repairing the Parr car amounted to $292.84. Consequently there should be judgment in his favor for that amount.

Although it is alleged that Miss Parr received “bruises, lacerations and trauma of her legs”, there is practically no proof to show that her injuries were sufficiently serious to merit consideration.

In the testimony given by Miss Parr at the Discovery and Pre-trial hearing, she said that when the accident occurred she did not make any statement to Mrs. Bryant because “ * * * this gentleman took me to the doctor, — I mean to the druggist, and he put some medicine on my leg.” She also said:

“I had a minor injury. I didn’t go to the doctor, but I hád a sore leg, my right leg. * * 1 * I had a huge bump right on my knee, and this gentleman, you know I couldn’t walk, and so he took me to the druggist right at the corner.”

Her friend, Miss Holley, who was riding with her, in referring to the injuries sustained by Miss Parr, said:

“I know that she had an injured knee or leg. She had a bump on it. We were both limping, I know that.”

And later she said that the bump on Miss Parr’s leg was “around the size of a silver dime * *

The testimony concerning the injuries of Miss Parr does not convince us that they were sufficiently serious to justify an award. She did not go to a doctor. She merely went to a druggist who put some medicine on it and that seems to have been the end of her suffering. De minimis non curat lex.

The judgment appealed from is amended and there is now judgment in favor of Horace J. Parr against Mr. and Mrs.,Dennis Bryant solidarily in the sum of $292.84, with interest from judicial demand; in all other respects the judgment is affirmed at the cost of the plaintiffs-appellants. -

Amended and affirmed.


text:
    The BRIGHT LIGHT SPIRITUAL LOVE & CHARITY MISSIONARY ASSOCIATION v. Daniel WHITE, Sr., et al.
    No. 20485.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied April 2, 1956.
    Writ of Certiorari Denied June 11, 1956.

      J. L. Warren Woodville, New Orleans, for plaintiff-appellant.
    Graham & Graham and John J. Blasi, New Orleans, for defendants-appellees.
   JANVIER, Judge.

This most confusing litigation results from a battle between two factions of a church organization, — The Bright Light Spiritual Love & Charity Missionary Ass’n, to which we shall hereafter refer as “Bright Light,” is or was a corporation organized under the non-profit corporation statutes of Louisiana. It acquired a piece of real estate which seems to have been a double cottage on one side of which services were conducted and on the other side of which the pastor, a woman, with her liusband resided.

The suit was brought in the. náme of the corporation by a Mrs. Lúly’ Larson who, however, is referred to by her attorney as Mrs. Lawson. It is alleged that 'one Eunice Lee, purporting to be president of the corporation and purporting to be acting under a resolution of the “Executive Board”, sold the said property to First Homestead Savings and’Homestead'Association which, in turn, purported to sell it to Daniel White, Sr.

It is also alleged that neither Eunice Lee nor Polite Vincent, — whose connection with the said sales or with anything else connected with the litigation is not shown— are not officers or members of the said church corporation, ancl that one, Nettie Wheeler was President of the corporation until her death and that thereafter the said Mrs. Luly Larson or Lawson was elected by the Executive Board.

The said Homestead Association and the-said Daniel White, Sr., are made parties defendant and it is prayed that there be judgment decreeing that the transfers of the property in the church corporation to the-Plomestead Association and by the Homestead Association to Daniel White, Sr., were, null' and void and that the church corporation is the sole owner of the property.

The Homestead Association filed" exceptions of no right of action, lack of “legal capacity to bring this action,” and “want of interest in these proceedings.” The exceptions of the Homestead Association were-maintained and the suit as against it was. dismissed. Plaintiff did not appeal from, that judgment. The other defendant, Daniel White,-Sr., also filed various exceptions. There was an' attempt to liquidate the church organization, and the plaintiff in this suit obtained, an order from the District Court preventing the Secretary of State-fromat that'time issuing a certificate showing the liquidation of the corporation.

In another division of the Civil District. Court there was a suit by Daniel White,. Sr., to obtain possession of the property from the surviving husband of the deceased, former Pastor of the church, and that suit was consolidated with this for the purpose of trial. At that stage of the proceedings-the Judge of the .Civil District Court rendered what is termed.a Per Curiam, which, reads as follows:

'“I believe that the best way to presently dispose of this matter is:
“Firstly, to maintain the exception of no right of action in so far' as the First Homestead and Savings Association is concerned, and it is now so ordered, the costs to await the final determination of this case.
“Secondly, to overrule the exceptions filed by Daniel White, Sr.
"Thirdly, to order plaintiff to amend its petition praying for judgment against Daniel White, Sr., and the others claimed by him to have been members of the corporation.
“Fourthly, the other parties claiming to be members of the corporation should intervene in these proceedings, alleging and proving membership in the corporation.
“Fifthly, Alberta White and the others who received funds at the time of the sale of the property must justify the receipt of the funds by them, otherwise there will be a money judgment rendered against them in favor of those persons the court finds to have been members of the corporation.
“If any person who received money should be found to be due any money this matter can be taken care of in the final judgment.
“The plaintiff is granted 10 days within which to file a supplemental and amended petition, and the defendant, Daniel White, Sr., is granted the time prescribed by law from the time of service of the supplemental and amended petition to file his answer to the original and to the supplemental and amended petition.”

There was then a supplemental petition filed purportedly by the church corporation, the affidavit being signed this.time by Luly Lawson, and in this petition it was alleged that certain proceeds of the sale had been used by certain unauthorized persons who had “enriched themselves” and it was prayed that there be a moneyed judgment against these said authorized persons.

After a lengthy trial there was judgment dismissing the suit insofar as it. prayed for the nullity of the two transfers of property —one from the church corporation to the Homestead Association, and the other from the Homestead Association to ■ Daniel White, Sr. There was also judgment dismissing, as in case of nonsuit, the clainr for a moneyed judgment against the persons referred to, but reserving to the corporation all its rights in the event of the appointment of a judicial liquidator to institute action through the Attorney General of the State of Louisiana, and there was further judgment Recalling the judgment under which the Secretary of State had been ordered not to issue the certificate showing the liquidation of the corporation.

Two things are very clearly shown by this record — one''is that the person who brought the suit) purportedly on behalf of the corporation, has not been able to show her authority to act for the ' corporation. It is contended ‘ that the minutes of the corporation showing her authority were filed with* the Qerk of Court and have been lost. The other thing which is made very clear is that there is no proof of the legal authority of those who purportedly acted for the' corporation in selling the property. It is contended on their behalf that there are no minutes to show this authority because, when they attempted to, enter the church property to hold meetings, they were forcibly prevented from entering by the surviving husband of the former pastor and that, therefore, they went elsewhere to hold their meetings and no minutes could be presented.

We have carefully studied the record and have given particular attention to the lengthy per curiam prepared and handed down by the District Judge, and we think all the findings which he made and which are evidenced by that per curiam are justified by .the record.

The entire matter is so confusing, and this confusing is worse confounded by the absence of minutes, that we have concluded . that lengthy though. it is, the whole story can best be tolii by a reproduction of the per curiam handed down by the District Judge:

“The court has carefully and diligently reviewed the records in these cases, has read the evidence adduced in April, 1951, which it ordered transcribed and filed in the record, and has gone over the evidence taken in- March, 1954, not yet transcribed.
“Because of the complicated nature of this case, the court is writing and rendering this per curiam so that counsel will have the benefit of its views, and may take whatever additional proceedings they desire, before the actual rendition of a judgment herein. The court does not desire to do anything which would impair the rights of any parties claiming an interest.
“On October 3, 1950, under the No. 300,397 of the docket of this Court, The Bright Light Spiritual Love & Charity Missionary Association filed suit against Daniel White, Sr., and the First Homestead and Savings Association, praying for the nullity of two purported acts of sale of the real property known as 417-19 Socrates Street, in the City of New Orleans.
“On October 6, 1950, under the No. 300-521 of the docket of this Court, Daniel White, Sr., filed suit; against Henry Wheeler, praying for' a judgment ordering Henry Wheeler to vacate and surrender the premises 417-19 Socrates Street, which latter cause was ordered consolidated with the former for the purpose of trial, separate judgments to be rendered in each case, as per judgment of Hon. Frank J. Stich, Judge of Division E of this Court, rendered October 27, 1950.
“For the purpose of brevity, plaintiff in suit No. 300,397 will be hereinafter . referred to as ‘Bright Light.’
“Bright Light alleges that it acquired the property involved herein by act before Frank Macheca, Notary Public, August 4, 1939; that, by two purported acts of sale before Frank Macheca, Notary Public, dated August 16, 1950, Eunice Lee, appearing as President of Bright Light, sold the property to First Homestead and Savings Association, and said Association then sold the property to Daniel White, Sr.
“That Eunice Lee appeared and signed the said act under the purported authority of a resolution of the Executive Board of Bright Light, alleged to have been held at 419 Socrates Street on June 30, 1950, authorizing the said Eunice Lee, as alleged President, to sell and transfer the property to Daniel White, Sr.
“A certified copy of this resolution has been filed in evidence. It is signed by Polite Vincent only, as Recording Secretary. The evidence preponderates to the effect that it was not adopted at 419 Socrates Street.
“Bright Light avers that neither Eunice Lee nor the said Polite Vincent are officers or members of the Executive Board of Bright Light.
“That Nettie Wheeler, wife of Henry Wheeler, was president of Bright Light from the time of its organization until her death on November 15,. 1949; that, upon the death of. Nettie Wheeler, the executive Board of Bright Light elected Mrs. Luly Larson.
“Daniel White, Sr., filed exceptions challenging plaintiff’s legal capacity to bring these proceedings, want of interest, and no right of action, all of which were overruled on April 3, 1951.
“First Homestead & Savings Association filed exceptions of no right of action, lack of legal capacity to bring this action, and lack of interest by plaintiff in these proceedings. On April 3, 1951, the exception of no right of action was maintained, and plaintiff’s suit dismissed as to First Homestead & Savings Association. No appeal was taken from this judgment; it is final.
“On April 17, 1951, Bright Light filed a supplemental and amended petition, praying for judgment against Alberta Ruffin, wife of Daniel White, Sr.; and Daniel White, Sr.; Polite Vincent, Eunice Pierce wife of Rubin Lee, Venus Washington Robertson and Carrie Joseph, in solido, in the sum of $1173.-93, interest, etc., alleging that they illegally conspired to bring about the sale and resale under attack herein, and, in doing so, enriched themselves in said amount, dividing the proceeds among, themselves.
“On May 30, 1951, upon the petition of Bright Light, the court issued an order directing the Secretary of State not to issue an order of dissolution of Bright Light until the final decision of this cause.
“On February 23, 1953, Alberta Ruf-fin, wife of Daniel White, Sr., Polite Vincent, Eunice Pierce, wife of Rubin Lee, Venus Washington Robertson and Carrie Joseph, filed exceptions of no cause or right of action, and vagueness, which were referred to the merits on February 27, 1953.
“Said exceptors filed their answer on March 24, 1953, denying the allegations of plaintiff’s original and supplemental petitions. On June 5, 1953, Daniel White, Sr., also answered said petitions, alleging in effect that both the First Homestead and himself were innocent purchasers and acted in perfect good faith in the purchase and acquisition- of the property. That Bright Light is guilty of laches and did not institute this suit until a notice to vacate the property was served upon Henry Wheeler (husband of Nettie Wheeler), who was never a member of the corporation. Henry Wheeler is the surviving husband of Nettie Wheeler. White prayed for judgment rejecting Bright Light’s demands, and in the alternative for a moneyed judgment.
“When the case was tried on the merits on March 15 and 16, 1954, it was stipulated that the testimony taken on April 2, and April 3, 1951, would be transcribed and filed in the record as part of the evidence upon the merits. This has been done.
“The evidence shows that Bright Light was incorporated by act before George S. Graham, Notary Public, July 18, 1939; the original incorpora-tors being the following: -
Nettie Wheeler (wife, .of Henry Wheeler).
Emma Washington
Polite (Polete) Vincent
Venus Robinson
Alberta (Albirtha) White
Carrie (Carry) Joseph, and
Eunice (Unies). Lee.
“The evidence further shows that Nettie' Wheeler, wife of Henry Wheeler and mother of Mrs. Alberta Ruf-fin, wife of Daniel White, Sr., was the head of Bright Light from the time of its incorporation until the date of her death, November 15, 1949.
“It is contended by defendants that Henry Wheeler was never a member of Bright Light, and attended services as a visitor; he denies this; however, he lived on one side of the property with Nettie Wheeler, his wife, until her death, the other side being used as a church.
“Alberta Ruffin White testified that since the death of her mother she and the other members of the Bright Light have not been allowed to get into the church by Henry Wheeler; that Polite Vincent has been Secretary from 1939 to 1949 (see her testimony April 2, 1951). For that reason the congregation met after the death of Nettie Wheeler, her mother, at Bishop Watson’s church.
“After the sale of the property the homestead debt was paid off, and she and the others paid themselves the remaining funds.
“Polite Vincent testified that he did not attend any meetings of the church since 1943, and believed that he was the Secretary as he had never b.een removed. He never received notices of any meetings of the members where 'officers were to be elected. From" 1943 until the death of Nettie Wheeler he never attended a single meeting of the church. There was a meeting in January, 1950, to ‘dissolve the property and each one would get their portion.’
“Q. In other words, you and Alberta White and Eunice Lee and Carrie Joseph and Venus Robertson got together in January, 1950, and decided to sell the property and divide the money between you, is that right? ■ A. Yes, sir.
“Eunice Lee testified that she was President of the corporation, succeeding Nettie Wheeler. She testified that in August, 1950, the above persons decided to sell the church.
“Carrie Joseph, one of the witnesses for Bright Light, testified that William Mosely and Australia Mosely, his wife, are members of the church. This is significant, as they and others may have an interest in seeing that the funds are held or disposed of in accordance with the law hereunder cited. They can urge any claims in appropriate proceedings as hereinafter set forth.
“Alberta Ruffin White, Polite Vincent, Eunice Lee, Carrie Joseph and Venus Washington. Robertson, (some of the original incorporators) all testified. that Luly Larson was not a member of Bright Light.
“Luly Larson claims that she does not know the above named persons. The court was not impressed with the testimony of Luly Larson. When she was elected President, she did not aslc for the minute book to be shown to her so that she could read the minutes as to what took place in former years, and the court had to warn her that she was either not paying attention to the questions or purposely evading.
“No adequate and proper membership and minute books appear to have been kept.
“The charter provides that the officers remain the same until their successors are elected and qualified (Art. VII).
“Henry Wheeler, James Green, Reva May Martin and Carrie Green were heard on March 15, 1954. None are charter members.
“Wheeler testified on April 3, 1951, that he has been the pastor since his wife started the church. This is denied. On March 15, 1954, he testified to certain payments made by him, and as to when he first ascertained that the property was sold.
“James Green testified that he was the Treasurer. He is not corroborated by any minute entry. He appeared in court with a blue bag containing a lot of slip's purporting to be receipts he received when he turned over the money that he collected. He testified that he kept no books; that the only books kept were the receipts that he had in the bag; that he gave no receipts to the members from whom he collected dues.
“Reva May Martin testified that Green marks dues in a book arid that Green kept the books.
“Carrie Green testified that James Green would give a receipt to the members for their dues; that James Green keeps the books and records; that after Nettie Wheeler died the organization b.écáme more or less to a standstill.
“Wheeler and Green testified that the following were "members in 1950:
James Green
Carrie Green
Marie Cooper
Rachel Johnson, deceased,
Olla Wig-gins
William Mosely
Australia Mosely
Dorothy Bush
Helen Bush
Ed Thomas, and Reva May Martin
“No receipts were produced by Carrie Green and Reva May Martin for dues that they claimed they paid.
“None of the above mentioned persons were called to testify on March 15 and 16, 1954, except the Greens, Wheeler and Reva May Martin.
“It is not contended that Daniel White, Sr,, is in bad faith; he has not been charged with fraud.
“The following parties appear to have received the following amounts at the time of the sale of the property:
Alberts Ruffin White, over $700.00
Polite Vincent, ■ $150.00
Carrie Joseph, $150.00
Euüice Lee, $150.00
Venus Washington Robinson, $150.00
“Alberta Ruffin White claimed that the over $700.00' received by her was both as a creditor and a stockholder. •The others received the $150.00 as either stockholders' or ' shareholders. There is no evidence as to the issuance of stock. The charter'is silent; it is also silent upon which membership in the corporation is based, whether dues or shares.
.“Considering the evidence as. a whple, it appears to. the court that it is compelled to uphold the sale tp White through the First Homestead; tl;at, if the above parties claimed to be mem-, bers by Wheeler, the Greens and Reva May Martin have any rights, they must assert them in liquidation proceedings to be filed, prove that they were mem-, bers, and compel those who received the above amounts to pay back into the liquidation the amounts received, to be dealt with according to law.
. “The objects and purposes of Bright Light are set forth in Article IV of the charter.
“This appears to be a religious corporation, which must be organized on a non-stock basis. [LSA-]R.S. 12:111.
“[LSA-]R.S. 12:141, [subd.] E, provides that in the case of a religious corporation, any surplus in excess of the corporation’s outstanding liabilities shall be transferred to a public or private corporation, association, or agency having similar purposes.
“[LSA-] R.S. 12:142, [subd.] B, provides :
“ ‘.If the corporation is prohibited by R.S. 12:141 (E) from distributing any surplus to the members, the resolution (to dissolve) must provide for the disposition of any surplus.’ (Parenthesis by the court.)
“[LSA-]R.S. 12:145 provides for the appointment of a judicial liquidator, and refers to [LSA-jR.S. 12:142.
“[LSA-]R.S. 12:149 provides for the order or certificate of dissolution, and the filing of same. The attention of the parties are called to the above cited articles 'of the Revised Statutes, as well as the Secretary of State, to whom a copy hereof is being mailed. * *■ * ”

The Court then' rendered the following reasons for'judgment:'

“The; court. has reviewed its per curiam of May 3, 1954, and has carefully considered the briefs filed.
“The court refers to its said per curiam in connection with these reasons, and states that it is impressed with the following factors and circumstances :
“1. It is not contended that Daniel White, Sr., is in bad-faith; he has not been charged with fraud in the petition (per curiam, p. 6).
“2. The testimony of Luly Larson, with which the court was not impressed (per curiam, p. 5).
“3. No adequate and proper membership and minute books appear to have been kept (per curiam, p. S), and there is no affirmative proof that the parties mentioned on p.. 6 of the per curiam were members; none were called except the Greens, Wheeler, and Reva May Martin.
“4. The charter provides that the officers remain the same until their successors are elected and qualified (per curiam, p. 5).
“5. The conflicting testimony of Henry Wheeler, James Green, Reva May Martin and Carrie Green (per curiam, pi 5 and 6). If the parties claimed to be members by the foregoing persons have any rights, they must assert them as set out on p. 7 of the per curiam. See also Articles of Revised Statutes cited on p. 7. .
“Try as it will, the court cannot see where it should deviate from its opinion as set forth in the per curiam, except that, in cause No. 300,521, the judgment should not become executory until the judgment in cause No. 300,397 becomes final.
“The Minute Clerk has been instructed to make a sufficient amount of copies of the judgments to be rendered, to be mailed to counsel for the parties and the Secretary of State, with a copy of these reasons.”

Feeling that the judgment rendered is correct the' said judgment is áffirmed at the cost of appellant.

Affirmed.


author: McBRIDE, Judge.

text:
    Harold RYAN v. The ALL STATE INSURANCE CO., CHICAGO, ILLINOIS et al.
    No. 20577.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Rehearing Denied April 2, 1956.
    Writ of Certiorari Granted May 7, 1956.

      Maurice R. Woulfe, New Orleans;- for plaintiff-appellant.- '
    Porteous & Johnson, New Orleans, for All State Ins. Co., defendant-appellee.
    Bernard J. Tortomasi, New Orleans, for Christopher Evans and Leslie Evans, defendants-appellees.
   McBRIDE, Judge.

On October 22, 1953, at about 7 o’clock a. m., there occurred a collision between a Ford V-8 automobile-truck and a Pontiac sedan in about the center of the intersection formed by the outgoing traffic lane of Bien-ville Street and the downtown traffic lane of North Carrollton Avenue. Each Of these streets is a wide thoroughfare having two paved roadways bisected by a neutral ground. The front part of the truck, which was traveling on Bienville Street in the general direction of the lake, ran, into'the right side of the Pontiac.sedan at about its right front door with the result that the-sedan was toppled over on its left side;.and three persons who were guest passengers therein were injured, and they each filed a suit claiming a substantial amount as damages in solido from Christopher Evans, the owner of the truck, Leslie Evans, its driver, and The All State Insurance Company of Chicago, Illinois (the correct corporate name of this defendant is Allstate Insurance Company), which is the liability' insurer of John S. Bowers, the owner and operator of the Pontiac. The plaintiffs in their several petitions attribute the accident-to the joint negligence of the drivers- of both vehicles, and among other acts of negligence it is charged that each driver failed to maintain a proper lookout and attempted to negotiate a crossing of the intersection at a time when it was unsafe to do so. .Of-course, the allegations of negligence are denied by defendants. The three suits were consolidated for the purposes of trial -and a separate judgment.was rendered in each case.

Each one of the three plaintiffs recovered a judgment only as against Leslie Evans, the operator of the truck, and for an amount substantially less than the amount for which he prayed in his petition. The suits as against Christopher- Evans and Allstate Insurance Company- were dismissed.

A separate appeal was perfected by each plaintiff, and in this opinion we shall deal with the suit of Harold Ryan in which 'he claims $5,280.50 for his personal injuries, medical expenses and loss of wages. The amount of his judgment was $780.50.

This case is quite different from the ordinary damage suit arising from, an aittomo-bile collision in that the testimony of the witnesses is free from- the usual contradictions -apd, inconsistencies. Neither Leslie Evans, who operated the truck, nor Bowers, who was driving the Pontiac sedan, ever saw the other vehicle until the exact moment of the crash. They admit as much.

When Leslie Evans approached the corner of North Carrollton Avenue he was confronted with an official traffic sign which required that he bring his .vehicle to a stop before making entry into 'the intersection. Both he and Gillen, who was riding in the truck, stated that the truck was brought to a stop in obedience to the sign and then Evans shifted the gears and started forward into North Carrollton Avenue at a slow rate of speed. The trial judge was satisfied that Leslie Evans not only did not stop before entering the intersection but that he proceeded onward blindly without looking or listening. However, it would make absolutely no difference whether Leslie Evans did or did not stop his truck for he was guilty of negligence in either respect. If he brought his vehicle to a stop, there was the most wanton negligence on his part in proceeding from a position of safety into North Carrollton Avenue without ever seeing the approaching Bowers automobile; and if he made no stop, his negligence is too obvious to discuss. But howsoever great the negligence of Leslie Evans was, such is not to be imputed to Christopher Evans, who owns the truck, and he is not liable in damages for the reason that he had loaned the vehicle to Leslie Evans who was going about his own per-sonál- business and was not the agent or servant of Christopher Evans at the time of the accident.

As has been said, John Bowers was driving the Pontiac sedan on North Carrollton Avenue.toward downtown, tajid he had in his car Ryan, Breaux and Eiswirth as guest passengers having picked them up earlier that morning for a trip to the place of their common employment in St. Bernard Parish. The composite testimony of the four men is that as the Pontiac sedan approached Bienville Street it was traveling at a speed somewhere between 25 and 35 miles an hour, and the import of the testimony is that the attention of Bowers and his passengers was directed to something on ‘ the opposite side of North Carrollton Avenue or to their left. Bowers made the rather unimpressive statement that he looked to his right to see what traffic approached on Bienville Street but that he saw nothing. This forces us to the firm belief that Bowers did not make any observation into Bien-ville Street at all for had he looked surely he would have seen the Ford V-8 truck which was there to be seen and which easily could have been seen had he looked.

Breaux and Eiswirth also say that they never saw the truck until it- hit their car, but Ryan, who was seated on the right side of the rear seat, states that when the Pontiac was just about entering the inbound traffic roadway of Bienville Street, he looked across the neutral ground and saw the truck in the opposite lane. He estimates that when he first saw the truck in the other lane the Pontiac was about 49 .feet away from it and that the truck had already passed the stop sign and its front bumper was protruding into Carrollton Avenue. Ryan sensing the dangerous potentialities of the situation “hollered ‘Look out truck!’ ” The other occupants of the car, including Bowers, say they heard Ryan’s outcry. Bowers made no attempt to avert an accident with the truck and. he readily admits that up until the very moment of the crash he was totally oblivious of the other vehicle in or about the intersection and that the crash came as a complete surprise to him.

Counsel for the insurer argue that Bowers was free of negligence because he was operating his car at a lawful rate of speed and had proceeded to cross the intersection only after having made observation to his right which disclosed there were no vehicles approaching from that direction. In answer to that argument we can only say that we do not believe- that Bowers ever looked to the right because had he focused his eyes in'that direction he certainly could not have failed to notice the Ford truck on Bienville Street.

Counsel make the further argument that Bowers had the legal right to assume that the operator of the Ford truck would comply with the sign which faced him as he reached North Carrollton Avenue by bringing the truck to a complete stop before endeavoring to make a crossing of the roadway.

There is no question that in this state there is a well-settled doctrine that a motorist who is proceeding on a right-of-way street, upon approaching an intersection where traffic is required under a - city ordinance or warning sign to come to a complete stop before entering the intersection, should not be held to the same degree of care and vigilance as if no ordinance "existed- or no stop signs had been erected. The danger at such an intersection is not as great as at a corner where no stop signs have been erected, and it follows less care is required of the driver on the favored street. .The motorist on the right-of-way street, with knowledge of the existence of such a stop sign, has a perfect right to assume that any driver approaching the intersection from the less-favored street will observe the law and bring his car to a complete stop before entering the intersection. Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849; Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292; Murphy v. Rowan, La.App., 84 So.2d 743; Glen Falls Ins. Co. v. Copeland, La.App., 28 So.2d 145; Termini v. Aetna Life Ins. Co., La.App., 19 So.2d 286. See also Mayfield v. Crowdus, 38 N.M. 471, 35 P.2d 291; 2 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., sec. 1032, pp. 216, 217.

But this does not mean that a motorist may drive his automobile along with impunity a,nd without making the slightest effort to ascertain what the traffic cpndi-tions may be at intersections even if there he .stop signs on the intersecting streets. One driving an automobile is under the legal duty of being unceasingly vigilant and at all times attentive to what the conditions of traffic may be so as to permit him to act in the case of danger presenting itself. It would seem that Ryan, who was riding on the rear seat, was more observant than was Bowers who operated the automobile, and if Ryan from his position on the rear seat was able to see the Ford V-8 truck from a distance of 49 feet away, surely Bowers, had he been attentive, could also have sighted the truck in time to take measures toward averting the collision. Bowers was asked by the judge what he could have done to avoid the accident had he seen the truck, and his answer was that he could either have applied his brakes or swerved his car to the left or to the right.

While the cases we have cited above are to the effect that the motorist on the right-of-way street with knowledge of the location of the stop sign on the intersecting street has a right to assume that a driver approaching the intersection from the less-favored street will comply with the law by bringing his car to a complete stop before entering the intersection, the cases go further and hold that such assumption on the part of the motorist on the favored street can be indulged in by him until such time as he sees or should see that the driver of the other car has not observed or is not going to observe the law.

Bowers’ failure to see that the other driver had not complied with the law does not excuse his driving of the Pontiac sedan directly into the path of the truck and he was grossly negligent in doing so. Whatever the operator of. an automotive vehicle can see, he must see, and, in legal contemplation he does see, and his failure to observe what he could have’ seen by diligent exercise of the sense of sight does not absolve him from liability • for resulting damage to, others. Le Blanc v. Jones, La.App., 79 So.2d 750; Mansfield v. Toye Bros. Yellow Cab Co., La.App., 78 So.2d 544; La Rocca v. Dabria, La.App., 78 So.2d 541; Lewis v. New Orleans Public Service, Inc., La.App., 78 So.2d 76. Consequently, the defendant insurance company is legally liable for the damages sustained by the guest passengers in the Bowers automobile as a result of the negligence on Bowers’ part which was concurrent with the negligence of Leslie Evans who operated the truck.

As the result of the collision Ryan suffered some severe and painful injuries which were treated by Dr. George Berkett, but fortunately none proved to be of a permanent nature. They consisted of deep lacerations to the right ear, left arm, left elbow, and left ilium; his left arm remained in a plaster cast for a period of eight days and his incapacity lasted for two weeks.

Although the trial judge thought Ryan was entitled to $1,000 for personal injuries, pain and suffering, plus $52.-50 representing the medical bills, and $228 for the loss of two weeks’ wages, which aggregates a total of $1,280.50, judgment was rendered against Leslie Evans for the sum of $780.50 for the reason as stated by the judge that Leslie Evans appeared to be an impecunious Negro without any property or insurance. There is authority to warrant a court’s consideration of the defendant’s financial ability or responsibility in connection with the assessment of damages for personal injuries, and in a proper case the judgment may be rendered for a lesser amount than would ordinarily be awarded. However, this rule cannot have application in this case if for no other reason than that Allstate Insurance Company is liable in solido with Leslie Evans for the damages sustained by the plaintiffs. If one amount were to be assessed against Leslie Evans on account of his impoverished condition and a higher amount assessed against the other solidary debtor,- much confusion and legal difficulties might possibly arise in the future as at some time qr other the question of contribution as between the solidary debtors might come in for discussion.

We approve the trial judge’s idea as to the quantum of damage sustained by the plaintiff as set forth in' his reasons for judgment; however, this will entail an increase in the judgment to the correct aggregate of those items, to wit: $1,280.50.

For the reasons assigned that portion of the judgment appealed from which dismisses plaintiff’s suit as against Allstate Insurance Company be and the same is hereby annulled and avoided, and it is now ordered, adjudged and decreed that the judgment be amended so as to run against Leslie Evans and Allstate Insurance Company, jointly and in solido, for the full sum of $1,280.50, and as thus amended and in all other respects the judgment is affirmed; said appellees are cast for the costs of this appeal.

Reversed in part; amended and affirmed in part.


text:
    Gaston L. BREAUX v. The ALL STATE INSURANCE CO., CHICAGO, ILLINOIS et al.
    No. 20578.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Rehearing Denied April 2, 1956.
    Writ of Certiorari Granted May 7, 1956.
    Maurice R. Woulfe, New Orleans, for plaintiff-appellant:
    Porteous ,& Johnson, New Orleans, for All State Ins. Co., defendant-appellee.
    Bernard J. Tortomasi, New Orleans, for Christopher Evans and Leslie Evans, defendants-appellees.
   McBRIDE, Judge.

Gaston L. Breaux has taken his appeal from the judgment rendered in his favor for $4,663.39 in his suit for $42,340.49 for personal injuries, medical expenses and loss of wages against the same defendants im-pleaded in the case of Ryan v. All State Insurance Co., Chicago, Illinois, La.App., 86 So.2d 126, with which Breaux’ suit was consolidated. For the reasons stated in the opinion and decree handed down by us this day in Harold Hyan’s suit, Breaux is .entitled to a recovery for his damages against Leslie Evans and Allstate Insurance Company, in solido.

When the Bowers automobile was turned over as a result of the impact of the collision, Breaux’ left arm was pinned under the car. He was conveyed by ambulance to the Charity Hospital for emergency treatment and then he went to the office of Dr. Vincent P. Blandino, his own private physician. Dr. Blandino.-next saw him on October 26 and at that time Breaux had fever and experienced considerable difficulty in breathing, and Dr. Blandino being of the opinion that Bréaux was a “very sick” man had him “rushed” to Hotel Dieu where Breaux remained for a period of eighteen days. He was incapacitated in áll for about ninety days. Breaux’ injuries consisted of fractures of the left second, third, fourth, fifth, sixth and seventh ribs and internal injuries, of the chest and severe injuries to the left shoulder, hip and pelvis. The left lung collapsed ánd the matter of breathing became very difficult. At one stage of the treatment Dr. Blandino called in Dr; Sidney Char-bonnet for consultation as there was some question whether Breaux should be operated on or be treated conservatively because .of the great amount of hemorrhaging blood. It was necessary that there be three pleurocenteses (the insertion of a large needle in the chest cavity), and by'this process blood and fluid were removed. It was not until January 5,. 1954, about three months after the accident, that Breaux wa9 discharged by Dr. Blandino. The course of treatment entailed numerous visits to the doctor and his use of varied medical procedures. The trial judge was of the opinion that there is “no apparent residual injury” but we believe he erred in that finding. , Dr. Blandino’s testimony is that Breaux continued to. have' discomfort in tbe left shoulder and Dr. 'George Berkett, who examined Breaux on December 16, 1954, testified on behalf of the defendant insurance company that,Breaux;’ complaint was referable to the left shoulder and that Breaux claimed that there was] a certain amount of loss of, gripping power of the left hand to such an extent that he could not hold on to certain objects". Dir. Berkett. did not believe that Breaux’ condition caused any appreciable difference in the grip but he definitely was of the opinion that Breaux had acromion clavicular, which was explained as being a separation of the left shoulder and which would justify the complaint- of- discomfort when the arm was held up at right angles for a period of time.

The trial judge thought that Breaux had been damaged to the extent of $5,000 for the personal injuries, pain and .suffering; he found that the sizeable medical bills amounting to $602.49 had been proven and that Breaux’ loss of salary at the Foothill Electric, Company, where he is a foreman, was $117.90 per week for eleven weeks or $1,296.90, and that he also lost his pay at Delgado Trades School, where he is an instructor, which amounts to $264 for the eleven-week period of incapacity resulting from the injuries. We approve the amounts found to. be due for each of the particular items, but we believe that the sum of $1,000 should be added thereto for the acromion clavicular or separation of the left shoulder which is apparently a permanent condition. All of the above amounts total the sum of $8,163.39 and this should be the amount of the judgment.

For the reasons assigned, that portion of the judgment appealed from which dismisses plaintiff’s suit as against Allstate Insurance Company. be and the same is hereby annulled and avoided, and it is now ordered, adjudged and decreed that the judgment be amended so as to run against Leslie Evans and Allstate Insurance Company, jointly and in solido, for the full sum of '$8,163.39, and as thus amended and in all other respects'the. judgment is affirmed; said appellees are cast for the costs of this appeal. . ■ ■

Reversed in part; amended and affirmed in part.


text:
    Alvin E. EISWIRTH v. The ALL STATE INSURANCE CO., CHICAGO, ILLINOIS et al.
    No. 20579.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Rehearing Denied April 2, 1956.
    Writ of Certiorari Granted May 7, 1956.
    Maurice R. Woulfe, New Orleans, for plaintiff-appellant.
    Porteous & Johnson, New Orleans, for All State Ins. Co., defendant-appellee.
    Bernard J. Tortomasi, New Orleans, for Christopher Evans and Leslie Evans, defendants-appellees.
   McBRIDE, Judge.

This is the appeal taken by Alvin E. Eis-wirth from the judgment rendered in his favor for $901.01 against Leslie Evans in his suit for $10,501 for personal injuries, medical expenses and loss of wages. This is one of the three consolidated causes directed against the. same defendants arising out of the automobile accident which occurred on October 22, 1953, at the intersection of Bienville Street and North Carrollton Avenue. For the reasons assigned in the opinion and decree handed down by us this day in the matter of Ryan v. All State Insurance Co., Chicago, Illinois, La.App., 126 So.2d 86, Eiswirth is entitled to receive judgment against. Leslie, Evans and Allstate Insurance Company in solido.

Said plaintiff sustained' minor injuries to his head which caused headaches and some dizziness for which he was treated for an extended period; there is a suggestion that he lost some of his sense of taste and smell, but this does not appear to be a certainty; the recovery has been complete without residual complaints. However, Eiswirth was incapacitated for a time and lost 9% days from his employment, which at the rate of $22 per day amounts to $209. He incurred medical expenses with Drs. George Berkett and Joseph Schenthal amounting to $278.50 and expended $13.51 for medicines and ilrugs.’ We think that these items together with $750 for the personal injuries, pain and suffering, which in all total $1,251.-01, constitute the correct quantum..

For the -reasons assigned, that portion of the judgment appealed from which dismisses plaintiff’s, suit as against All State Insurance Company be and the same is hereby annulled and avoided, and it is now ordered, adjudged and decreed that the judgment be amended'so as to run against Leslie Evans an ' Allstate Insurance Company, jointly and in solido, for the full sum of $1,251.01, and as thus amended and in all other respects the judgment is affirmed; said appel-lees are cast for the costs of this appeal.

Reversed in part; amended and affirmed in part.


author: REGAN, Judge.

text:
    Robert JACKSON v. E. J. BAGNELL, doing business as Crescent City Motor Exchange or Crescent Motor Exchange.
    No. 20596.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    See also La.App., 80 So.2d 216.
    Lemle & Kelleher, Carl J. Schumacher, Jr., New Orleans, for defendant appellant.
    Joseph. A. Barreca, New Orleans, for plaintiff appellee.
   REGAN, Judge.

Plaintiff, Robert Jackson, as the owner of a 1949 Ford automobile, instituted this suit against the defendant, Edward J. Bagnell, conducting his business under the trade name of Crescent City Motor Exchange, individually and as agent for the General Engine Rebuilding Company, endeavoring to recover $238.40, representing the purchase price of a defective engine installed in plaintiff’s car by the defendant on or about September 9, 1954.

Defendant answered and generally denied the allegations of plaintiff’s petition and then specially pleaded “that the engine trouble of which plaintiff complains was not caused by any act or omission on the part of the defendant ***.** * that the engine trouble * * * was not the result of any ‘defects in material and factory workmanship’ as contemplated by the certificate of guarantee * *

From a judgment in favor of plaintiff as prayed for defendant has prosecuted this appeal.

The record reveals that the plaintiff and the defendant entered into an oral contract for the installation of a rebuilt engine in a 1949 Ford automobile for the price of $238.40. The work was completed by the defendant and paid for by the plaintiff on or about September 9, 1954, at which time he received a written guarantee, the pertinent portion of which reads:

“For a Period of One Hundred and Twenty Days from date installed or ten thousand miles (whichever occurs first) We Guarantee this assembly for passenger car service against defects in material and factory workmanship provided proper installation and operating instructions and procedures are followed. * *

On several occasions after receiving delivery of the car, plaintiff returned to defendant’s shop and complained that the engine was overheating. Defendant insists that he informed plaintiff that the reason therefor was a defective radiator and he had initially advised him thereof on or about the time that the rebuilt engine was installed in the vehicle. Plaintiff, on the other hand, disputes this assertion, and contends that after the installation of the engine it consistently overheated and in response to several complaints the defendant then suggested repairing the radiator.

In any event, the radiator was repaired on October 9th, and, during the first week in November the “engine completely broke down” and subsequent investigation disclosed that it had “thrown a rod.”

Plaintiff contends that the engine breakdown was caused by a defect in the material or fault in the workmanship.

Defendant maintains that the cause thereof was “overheating” due to a defective radiator and that the plaintiff deliberately operated the vehicle prior to the repair thereof when he knew or should have known that it would result in damage to the engine.

The only question which is posed for our consideration is one of fact, and that is whether plaintiff’s improper operation of the engine resulted in its damage?

The trial court answered this question in the negative and our examination of the record fails to reveal any reversible error in her factual conclusions.

The defective radiator was repaired by and in conformity with the defendant’s advice on October 9, 1954, and the actual engine failure did not occur until the- first week in November or nearly a month later. Surely if “overheating” had damaged the engine, the defendant would have been fully aware of it on October 9th, when he repaired the radiator. We are, therefore,, of the opinion that the cause thereof was not plaintiff’s improper operation or abuse of the engine, — but the engine failure which occurred was: such as was contemplated and encompassed by the terms of the guarantee issued to plaintiff by defendant.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.