author: LOTTINGER, Judge.

text:
    Marvin C. JOURDAN v. Eugene HUTTON.
    No. 4175.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      Ponder & Ponder, Amite, for appellant.
    Mary B. Purser, Amite, for appellee.'
   LOTTINGER, Judge.

This is a suit by Marvin C. Jourdan to nullify and set aside a judgment by default entered against him. The defendant is Eugene ITutton, the petitioner in the original action. The Lower Court dismissed petitioner’s action,, and petitioner has appealed. ■

The facts show that on 'April 23, 1948, the defendant, Eugene Hutton, filed suit against petitioner, Marvin C. Jourdan, claiming damages in the sum of $500 for timber cut from a tract of land belonging to .Eugene Hutton and others. Héaririg was set for an injunction which was sought in the matter, however,’ as' the' timber had already been cut and an injunction would have been "for nought, the trial of the matter was' reassigned for a later date. The hearing on the injunction was set for Amite, in Tangipahoa Parish, both Tangipahoa and St. Helena Parishes being in the same judicial 'district. The record shows a minute entry on June 14, 1948, continuing the case for reassignment. The next minute entry in the matter was on December 15, 1952, showing an entry of a preliminary judgment by default. The default was confirmed on December 18, 1952. On October 30, 1953, the present suit was filed,, wherein petitioner seeks to. have the judgment by default annulled. Petitioner claims as ‘his basis for nullity the facts as follows:

1st. That said judgment was obtained without proper legal citation in that petitioner was cited as M. C. Jordan whereas his correct name is Marvin C. Jourdan.
• 2nd. That a regular judgment by default was not taken against him- because the matter was removed to the Parish of Tangipahoa, Louisiana, for hearing on exceptions filed in the matter and under date‘of June 14, 1948; this case was continued for reassignment, and that said case was' never reassigned for trial, that the exceptions were never heard nor disposed of, and that petitioner was never ' notified of trial of the matter.
3rd. That the judgment in question was secured through fraud and improper practices, in that petitioner never did cut timber from the lands in question.

Of course all of the contentions of petitioner are based upon the provisions of Articles 606-7 of the Louisiana Code of Practice. As' to the first contention of petitioner, i. e. that he ' was not legally cited, he evidently seeks to come under the fourth section of Article 606 which provides: “If the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him.” Mr. Jourdan admits that he was personally served by the Sheriff. No exception to the service was filed, and, as' a matter of fact, Mr. Jourdan and his counsel, Mr. Ponder, appeared in open court when the continuance was granted. In addition a regular judgment by default was taken against him. The incorrect spelling of the name on the citation was a defect of form, and not of substance, and would not now justify a judgment of nullity. Defendant admits that he was personally cited by the Sheriff of St. Helena Parish, and certainly the error complained of did not injure the petitioner.

As to the second contention of petitioner, Mr. Ponder, the attorney for petitioner claims that he drew up exceptions of no right or cause of action which he filed in the matter. Miss 'Purser, the attorney for defendant, claims that she has no knowledge that any exceptions were ever filed in the matter. The record and the minutes of court do not show that exceptions or answer were ever filed in the matter. As was decided by the Lower Court, we are unable to go beyond the record and hold that exceptions were filed, when there is no evidence whatever that exceptions were filed in the matter by petitioner. It appears that, at the time, the parties had agreed to hold the matter in status quo until determination of a companion suit which at the time was before an appellate court. It might well have been a fact that the defense counsel did prepare exceptions, but withheld, filing them until rendition of the judgment by the appellate court. Be that as it may, we are unable to go beyond the record in reaching our decision, and as the record shows that no exceptions were filed, we must so hold.

As to petitioner’s allegation that he was not notified of trial of the matter, we know of no law which requires notice to a defendant that a default judgment is about to be rendered against him. The only notice required, under the peculiar set of facts before us, was the proper citation of the defendant. By his failure to file any appearance in the matter, the petitioner was free to secure his judgment by default.

It appears that, although the, record was transferred to Tangipahoa Parish for the hearing on the injunction, when said hearing was continued the record was transferred back to St. Helena Parish where both the preliminary default and the confirmation thereof were -taken. There is some evidence in the record that counsel for petitioner was present in Court both when the default was taken .and when it was confirmed. He does not recall same, however, and stated that if he was in Court he has no recollection whatsoever of same.

As to the petitioner’s allegation that the original judgment was secured by fraud, we feel that he has failed to prove same. There is testimony in the record of the original' suit to the effect that the petitioner did cut timber off the lands of defendant, and that the value of same was actually in excess of the sum of $500 which was the amount sued for and for which judgment was given. On this score, the Lower Court said: “Frankly, if the evidence had been .before the court on the confirmation that was before the court on the trial, I do not believe I would have given a judgment for the full $500.00, but in absence of any fraud I don’t see how I can upset the judgment on this account.”

We feel that the petitioner was duly notified of the action pending against him, and we can find no cause for. avoiding the judgment at this late date. Furthermore, defendant’s counsel testified on trial that she had written petitioner several letters in an attempt to collect on said suit without the necessity of reducing same to judgment after the appellate court’s decision. The facts, as a whole, indicate that petitioner was aware, or should have been aware, of what was going pn, and we are unable to find any error in the judgment below

Defendant appellee in the instant case, has answered the appeal and prays for an affirmance of the judgment and for judgment for an additional sum of 10% of the amount of judgment as damages for a frivolous appeal. Assuming that the appeal is frivolous, without so deciding, nevertheless this is not an appeal from a moneyed judgment. It is only where a frivolous appeal is taken from a moneyed judgment that damages therefor are allowed. See Code of Practice Art. 907 and Price v. Florsheim, 174 La. 945, 142 So. 135; Racoby v. People’s Furniture Co., 175 La. 383, 143 So. 334 and Jones v. Scott, La.App., 167 So. 117.

For the reasons assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by the petitioner.

Judgment affirmed.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Theresa LUSCO, Plaintiff-Appellant, v. Queenie Scroggs McNEESE, Defendant-Appellee.
    No. 4177.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      Talley, Anthony & Johnson, Bogalusa, for appellant.
    Plenry N. Richardson, Bogalusa,- France W. Watts, Jr., Franklinton; for appellee.
   TATE, Judge.

This suit is to recover three counters and a stainless steel coffee, urn hood allegedly removed by defendant from plaintiff’s premises. Plaintiff appeals from judgment sustaining an exception of no right and cause of action.

1. Motion to Dismiss the Appeal.

Defendant-appellee moved to dismiss the appeal because: (a) the original petition filed herein did not allege the value of the movable property involved in this suit; (b) the record reflects that prior to the present appeal, on April 12, 19S4, appellant moved for and was granted a devolutive appeal to the 22nd Judicial District Court.

As to the latter point, “It is well settled that an order of appeal has no effect unless the appeal bond required as a condition on which the order is granted is filed within the time required by law for taking an appeal (cases cited)”, Bannister v. Chisesi & Longo, La.App., 5 So.2d 145, at page 147; and the record indicates that no bond was filed perfecting the former appeal.

The Courts of Appeal have jurisdiction of appeals from city courts where the amount in dispute exceeds one hundred dollars, exclusive of interest; if a lesser amount is involved, the appeal is returnable to the appropriate District Court; Article VII, § 51, Louisiana Constitution of 1921, LSA; see also LSA-R.S. 13:2091, subd. E regulating appeals, specifically from Bogalusa City Court.

In appeals from District Courts, “the Courts of Appeal as courts of general appellate jurisdiction must accept jurisdiction of all appeals unless thé record affirmatively shows appellate jurisdiction in the Supreme Court”, Gaylord Container Corporation v. Stilley, La.App. 1 Cir., 79 So.2d 109, at page 110. Whether or not we are under the same duty to accept appeals from city courts unless the record affirmatively indicates the appeal should be returned to the district court, the present record contains a verified amended and supplemental petition presented to the lower court in connection with petitioner’s application for rehearing which shows the property involved to have a value of $295, of within oür jurisdictional amount. The motion to dismiss the appeal is denied.

2. On the Merits.

The allegations and prayer, of plaintiff’s original petition herein are as follows, in full:

“The petition of Theresa G. Lusco, of legal age and a resident of Bogalusa, Washington Parish, Louisiana, with respect unto this Honorable Court represents that:
I.
'.‘Queenie Scroggs McNeese, of legal age and a resident of Bogalusa, Washington Parish, Louisiana, formerly occupied the property of your petitioner at 510 Columbia Street wherein she ran a restaurant.
II.
“The said defendant, Queenie Scroggs McNeese, unlawfully removed three: counters and one stainless steel hood used for the coffee wn from the said premises.
“Wherefore, petitioner prays that defendant herein be duly cited according tor law that a copy of this petition, be served on her and that after legal delays elapse and due proceedings that there be judgment decreeing plaintiff, Theresa G. Lusco, the lawful owner of the three counters and the stainless steel hood used for the coffee urn and ordering , the . defendant, Queenie Scroggs .McNeese, to return the said counters and., stainless steel hood, for all general .and equitable relief in the premises and for all costs of this suit.” (Italics ours.)

Defendant’s answer was .a g-eneral denial.

At the trial on -April 12, 1954, after twq questions to the first witness (defendant called as of cross-examination), defendant objected to further questioning and filed an .exception of no right and no cause • of action, which was sustained and judgment signed the same date.

Defendant-appellee argues that this action must be a possessory or petitory action since for the ownership or possession of property, and that therefore plaintiff has no cause of action herein (where movable property is concerned) since these actions are by definition restricted to “claims made on immovable property”, Article 4, C.P.; see also Articles 5, 6, 60, C.P.

To the contrary, of course, since the subject matter herein is movable property, this action cannot possibly be a real action -(possessory or petitory or- otherwise.) “Actions tending to recover -an immovable, or a real right, or an universality of things, such as an inheritance, are considered as real; while actions for the recovery of a movable or of a sum of money, though accompanied with a mortgage, are not real actions”, Article 12, Code of Practice. (Italics ours.)

Among the multitudes of cases concerning recovery of movable property allegedly improperly retained by another, are the following in which the lawful owner recovered possession of the property from the possessor, Donnell v. Gray, 215 La. 497, 41 So.2d 66, (oil well equipment); Fontenot v. Johnson, La.App. 1 Cir., 77 So.2d 82, (two railroad jacks); Schutzman v. Munson, La.App. 1 Cir., 51 So.2d 125 (cows and calves) ; Crain v. Crain, La.App. 1 Cir., 29 So.2d 404 (mule.)

Defendant-appellee further urges that the exception of no cause of action was properly sustained because the petition did not allege that’ plaintiff was the owner of the movable property allegedly removed by defendant from premises owned by plaintiff, and recovery of which is sought herein.

Although plaintiff’s original petition above set forth may not be artistically drawn and was probably subject to an exception of vagueness, we believe evidence is admissible, under the allegations thereof to prove that defendant took certain movable property belonging' to plaintiff from plaintiff’s building. “In passing upon exceptions of no cause or right of action, the Courts of Louisiana have followed the rule that doubts as to the rights of a plaintiff to recover should be resolved in favor of the sufficiency of the petition, and unless the petition clearly discloses a lack of a cause of action, the exception should be overruled.” Meadows v. Preferred Accident Insurance Co., La.App., 49 So.2d 765, at page 767; see also, Johnson v. Graham, La.App., 35 So.2d 278; Columbia Oil Co. v. Police Jury of Natchitoches Parish, La.App., 194 So. 91.

Defendant is protected from surprise by the availability of discovery procedure, as well as of the exception of vagueness. Uncertainty and vagueness of the petition’s allegations “cannot be availed of by exceptions of no cause and no right of action.” Moore v. Moore, 192 La. 289, 187 So. 670, at page 672. “An exception of no cause of action cannot be made to serve the purpose of an exception of vagueness”. Fishman v. Conway, La.App., 57 So.2d 605, at page 606.

In our view, appellant is likewise correct that insofar as the exception of no cause of action was founded upon the vagueness or generality of the petition, it was a peremptory exception relating to form, under Article 344 Code of Practice, rather than one founded on law under Articles 345, 346, C.P.; see Sollie v. Means, La.App., 58 So.2d 286. While the latter may be filed at almost any stage of the proceedings, Article 344, C.P. provides:

“Peremptory exceptions relating to forms, are those which tend to have the cause dismissed, owing to some nullities in the proceedings.
“Such exceptions must be pleaded in limine litis, that is to say, at the beginning of the suit, and before answering to the merits.
“After the defendant has pleaded to their merits, such exceptions shall not be heard; all nullities are cured.” (Italics ours.)

After the trial court sustained the exception of no cause of action, plaintiff applied for rehearing and urged strongly that she be permitted to file an amended and supplemental petition amplifying the allegations of the petition and more clearly stating her cause of action, which petition was prepared and verified and offered to the trial court.

Even were the exception of no cause of action timely filed and proper, as our late distinguished predecessor Judge Doré stated, “it is now well established that amendments to petitions should be allowed in order to protect substantive rights when the original petition failed to state a cause of action because of insufficient allegations. Reeves v. Globe Indemnity Co., 185 La. 42, 168 So. 488, Douglas v. Haro, 214 La. 1099, 39 So.2d 744”. Doyle v. Thompson, La.App. 1 Cir., 50 So.2d 505, at page 509; also Bourgeois v. Le Blanc, La.App., 72 So.2d 777. Contrary judgments of the trial courts sustaining exceptions of no cause pf action were overruled in these cases.

For the above and foregoing reasons, the judgment of the City Court sustaining defendant’s exception of no right and cause of action is reversed, and the cause is remanded to the City Court of Bogalusa for further proceedings according to law and not inconsistent with the views herein expressed. Defendant-appellee to pay all costs of this appeal; all othér costs to await final determination of these proceedings.

Reversed and remanded.


author: REGAN, Judge.

text:
    Dick TRASATTI v. Marx JEFFER et al.
    No. 20708.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Reed, Reed & Reed, New Orleans, for plaintiff-appellant.
    Fishman, Reuter, Rosenson & D’Aquin, New Orleans, for defendants-appellees.
   REGAN, Judge.

The plaintiff, Dick Trasatti, instituted this suit against the defendants, Marx Jef-fer, and his son, Herman Jeffer, the “procuring” real estate brokers, endeavoring to recover the sum of $482.90, representing damages incurred by plaintiff in relying on defendants’ promise to “split the commission” resulting from the sale of his property, with the “listing” real estate brokers, Kleam & Glenn, Inc.

Defendants, in conformity with the rules of practice prevailing in the First City Court of New Orleans, pleaded the exceptions of “no cause” or “no right” of action and then simultaneously answered denying the pertinent allegations of plaintiff’s petition.

The trial court referred the exceptions to the merits, tried the case fully and then maintained the exception of “no cause” of action and, in conformity therewith, dismissed plaintiff’s suit. Hence this appeal.

Plaintiff, in substance, alleged that Herman and Marx Jeffer, both licensed real estate brokers, informed plaintiff, on October 5, 1953, through its agent, Herman Jef-fer, that they had a prospective purchaser for plaintiff’s “business known as Mansion Lounge,” located in “735-37 St. Joseph Street.” Plaintiff advised Herman Jeffer that “he was still bound on a contract with another realtor, Kleam & Glenn, Inc., * * thereupon Jeffer “quickly informed” plaintiff that “brokers had a working arrangement between them * * * to split the commissions and * * * that he would make the necessary arrangements with Kleam & Glemm, * * The business was sold on October 19, 1953, to Mrs. Helen Coffee for $3,000, through the efforts of Jeffer and, on that day “plaintiff reminded both defendants that a commission was to be split with Kleam & Glenn and again defendants reassured plaintiff that Kleam & Glenn would be taken care of * * *. After the sale plaintiff stopped by Kleam & Glenn’s office and notified Peter Kleam that the sale had been completed and that Marx Jeffer had' his share of the commission”; defendants, when requested, “refused * * * to pay Kleam & Glenn their share of the commission”; Kleam & Glenn then sued plaintiff for the full commission predicated on the “contract of listing” and recovered a judgment from which no appeal was taken, for the principal sum of $300, attorney’s fees in the amount of $75 and court costs of $19.10; plaintiff concludes his petition by asserting that he incurred the foregoing loss “in relying on the promise of defendants to split the commission with their brother realtor” and he is, therefore, entitled to recover the full' amount thereof as damages. ■

Defendants insist that if they have any obligation to plaintiff it could arise only out of their promise to discharge his debt to Kleam & Glenn, Inc.,; such an obligation to pay the debt of a third person is required to be in writing and no written promise was asserted by the plaintiff in his petition, LSA-C.C.Art. 2278, therefore the trial court was correct in maintaining the exception, and dismissing plaintiff’s suit.

It is our opinion that this case is fundamentally a very simple one and not complicated nor encompassed by the foregoing' rationale which, if permitted to apply to the-facts of this case, would result in plaintiff, having to pay a real estate broker’s commission twice for one sale of his property— obviously we cannot condone or affirm such a flagrant miscárriage ■ of justice.

We believe that the foregoing pe-, tition, the facts of which are accepted as true for the purpose of evaluating the validity of the exception, concisely set forth that the plaintiff has been damaged through the actions of the defendants and, therefore, such wrongful conduct is fully encompassed by LSA-R.S. 37:1447, the applicable portion thereof reads:

“Anyone who is injured or damaged by the agent or broker by .any wrongful act done in the furtherance of such' business or by any fraud or misrepresentation by the agent or' broker may sue for the recovery of the damage before any court of competent juris-' diction.”

We are, therefore, of the opinion that the exception of no cause of action should háve-been overruled.

We related hereinabove that the-trial court did not pass upon the exception of no cause of action until after the case' had been fully tried Upon its -merits. Obviously the court ■ could have passed upon' the merits rather that-'the exception if it had so desired. Since -the record is complete we now focus oür attentiori on-the merits thereof, a right which we, as an appellate court, possess. Ford v. Baird Bros., La.App.1935, 161 So. 45.

Plaintiff and his wife both testified that they fully informed defendants, through Herman Jeffer, that the property was “listed” with Kleam & Glenn, Inc., and Jeffer assured them that this broker’s commission would be paid.

Peter Kleam related that his office was “listing” agent for the property;. that on the same day, shortly after the sale had been consummated, plaintiff visited his office and informed him that the defendants had sold the property and were “holding” one-half of the commission emanating from the sale thereof for his account. He then contacted defendants’ office and spoke to Herman Jeffer, who ultimately informed him that he had no knowledge, that Kleam & Glenn had been the “listing” agent and, therefore, he refused to pay them one-half the commission.

Defendant, Marx Jeffer, testified that while he admitted knowing that Kleam & Glenn had requested division of the commission, he .denied that plaintiff had ever informed him that the property had been “listed” with those brokers prior to the sale of it to Mrs. Coffee.

The record reflects.that the negotiations for the sale of the property were handled, on behalf of defendants, almost entirely by Herman Jeffer. He admitted receiving a request from Kleam & Glenn for a division of the commission and likewise moré pertinently admitted reluctantly and evasively that the plaintiff had informed him that the property was listed with Kleam & Glenn prior to • the day that he sold it to Mrs. Coffee.

The evidence obviously preponderates in favor of the plaintiff, in fact the whole tenor of the record proves the allegations of plaintiff’s petition. It is clear that it was plaintiff’s intention and defendants’ understanding thereof, in conformity with the rule or custom of the business, that the commission would be divided between the “listing” and “procuring” broker,

We are, therefore, of the opinion that the plaintiff is entitled to recover from the defendants one-half of the commission or the sum of $150, which was retained by the defendants out of the funds emanating from the sale of the property, $75 representing attorney’s fees which plaintiff was required to pay by virtue of his contract with Kleam & Glenn ánd $19.10 court costs, or a total of $244.10.

For the reasons assigned the exception of no cause of action is overruled and it is now ordered that there be judgment herein in favor of the plaintiff, Dick Trasatti, and against the defendants, Marx and Herman Jeffer, in the sum of $244.10 and for all costs.

Reversed.


text:
    Peter R. LA FURIA, Plaintiff-Appellee, v. Jo Sidney TARVER et al., Defendants-Appellants.
    No. 4158.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      . Watson, Blanche, Fridge, Wilson, Posner & Thibaut, Baton Rouge,, for appellants.
    Huckabay, Seale, Keltoh & Hayes, Baton Rouge, for appellee.
   TATE, Judge.

This is an action for property damage caused when one of two ’vehicles involved in an intersectional collision caromed as a result thereof into plaintiff’s parked car. Plaintiff filed suit against the driver and liability insurer of only one of the cars therein involved, that driven by Miss Jo An’ri Tarver.

Immediately prior to the accident Miss Tarver was proceeding eastward on Europe Street in Baton Rouge, while Mrs. Vic-cinelli was driving’ the other car involved south on Maximilian Street, both ladies approaching the intersection of the two streets. Each street was 24 feet wide and hard-surfaced. There were no traffic control signals at the intersection. The accident happened at 6:30 p. m. in the late summer, September 22, 1953.

The, Tarver and the Viccinelli cars collided in the . approximate center of the intersection, and before coming to rest the Viccinelli vehicle struck plaintiff’s Dodge parked on Europe Street about fifty feel east of the intersection.

The District Court held that the negligence of both drivers contributed to the accident and awarded plaintiff herein judgment for $246.66 property damage against Miss Tarver and her insurer, defendants herein.

The real issue for our determination is whether the accident was caused solely by the negligence of Mrs. Viccinelli or concurrently by hers and Miss Tarver’s —that is, whether any contributory negligence of Miss Tarver was a proximate cause of this accident. For Mrs. Vicci-nelli’s negligence was clearly a proximate cause of the accident and of plaintiff’s damages, since she proceeded into the intersection without maintaining a lookout and in disregard of Miss Tarver’s right of way as the vehicle approaching the intersection from the right, LSA-R.S. 32:237, subd. A.

The District Court found that if Miss Tarver “had made proper observation at this intersection, she would have seen the ■Viccinelli car approaching the intersection .at such a close proximity that it would be .negligence on her part for her, Miss Tar-ver, to proceed into the intersection.”

It further found that neither automobile was- proceeding at an excessive rate of speed. Unlike the Tarver car which came "to rest within a few feet and .still in the ; intersection, the Viccinelli car turned left .and struck plaintiff’s car SO feet east of the intersection to cause the damage here sought. However, this fact is not so necessarily indicative of great speed as to require disbelief of sworn testimony found credible by the trier of fact. As Police Officer Watson testified, if the brakes are not continuously applied “A car will travel a good ways when it is out of control at a low rate of speed,” Tr-23.'

Thus both vehicles approached this unobstructed intersection almost simultaneously at moderate rates of speed, about 15-20 mph. Neither driver observed the other until immediately before the impact in the approximate center of the intersection.- ' The front end' of the Viccinelli vehicle struck the left side (front fender) of the Tarver car.

Under such circumstances both drivers have been held contributorily negligent, since had either observed the other an accident would have been avoided, Dodd v. Bass, La.App., 76 So.2d 572; Sustendal v. Weber, La.App., 76 So.2d 8; Comeaux v. Blanchet, La.App. 1 Cir., 69 So.2d 527. We have determined that the District Court’s determination in this regard is not manifestly erroneous, and the judgments will be affirmed.

It is argued by appellant that Miss Tarver pre-empted the intersection because she entered it slightly (within split seconds) ahead of the other vehicle. However, prior entry by a few feet or split seconds does not pre-empt an intersection since made without the reasonable expectation of clearing same without obstructing the oncoming vehicle in such close proximity thereto, Gautreaux v. Southern Farm Bureau Casualty Company, La.App. 1 Cir., 83 So.2d 667, Sonnier v. United States F. & G. Co., La.App. 1 Cir., 79 So.2d 635, see McClenaghan v. United States F. & G. Co., La.App., 79 So.2d 373.

Counsel for Miss Tarver most persuasively argues that her failure to maintain an adequate lookout so as to see Mrs. Vic-cinelli was not a proximate cause of the accident: For even had Miss Tarver seen the other car approaching, she was under no duty to expect it to continue to proceed without control or lookout and without regard for Miss Tarver’s superior right of way as the vehicle approaching from the right, citing Duke v. Malone, La.App. 1 Cir., 57 So.2d 711; Boullion v. Bonin, La.App. 1 Cir., 2 So.2d 535; Van Dyke v. Waguespack, La.App. 1 Cir., 198 So. 425.

The writer of this opinion must frankly confess that in his individual judgment this case falls within the explicit provisions of LSA-R.S. 32:237 subd. A: “When two vehicles approach or enter an intersection at approximately the same time, the driver approaching from the right shall have the right of way.” (Italics ours.) See such cases as Gautreaux v. Southern Farm Bureau Casualty Co., La.App. 1 Cir., 83 So.2d 667; Duke v. Malone, La.App. 1 Cir., 57 So.2d 711; Gulf Ins. Co. v. Robins, La.App, 1 Cir., 15 So.2d 552; Pender v. Bonfanti, La.App. 1 Cir., 13 So.2d 105; Van Dyke v. Waguespack, La.App. 1 Cir., 198 So. 425; see also such cases recognizing the rule but denying recovery to the right of way motorist because of excessive speed as Sampey v. Martin, La.App., 80 So.2d 551, McClenaghan v. United States F. & G., La.App., 79 So.2d 373, Prescott v. Rowland, La.App. 1 Cir., 32 So.2d 72.

Legislative provisions for right of way are to facilitate the passage of traffic; rather than requiring all traffic to stop at each corner before proceeding, traffic' with the right of way is generally entitled to continue towards and enter an intersection on the assumption that less favored traffic will respect said right of way, Gautreaux v. Southern Farm Bureau Casualty Co., La.App. 1 Cir., 83 So.2d 667, Van Dyke v. Waguespack, La.App. 1 Cir., 198 So. 425, unless the superior motorist sees or should s.ee the inferior traffic and should reasonably realize its approach will continue and will obstruct the superior motorist’s passage across the intersection in time to stop and avoid the accident, Miller v. Abshire, La.App. 1 Cir., 68 So.2d 143; Droddy v. Southern Bus Lines, Inc., La.App. 1 Cir., 26 So.2d 761; Termini v. Aetna Life Insurance Co., La.App. 1 Cir., 19 So.2d 286.

Since both cars approached the intersection at a speed of about 20 mph (29.2 feet per second), the writer individually doubted that Miss Tarver had time to avoid the accident after her duty arose to anticipate that the other car would continue into the intersection in disregard of her right of way.

However, in view of the infinite factual variations, increasing or decreasing the duties of the respective drivers in terms measured by split seconds’ and several yards’ differentiation, this Court is unable to hold manifestly erroneous the District Court’s apparent determination that Miss Tarver because of lack of lookout was unable to avoid the accident in question when under a duty to anticipate, the other vehicle’s continued approach toward and into the intersection.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed. Plaintiff-appellant to pay all costs herein.

Affirmed.

      . The absence of the other car’s owner and insurer as parties is explained in the record, since this latter liability insurer was also" plaintiff’s collision insurer liable for’ and subrogated to the claim for most of the damages sought herein. Present defendant is plaintiff in the companion suit against the driver and insurer of the other car, reported at 86 So.2d 235.

      . Cf.: “It is true that ho would have been entitled to the right of way had the vehicles entered the intersection at about the samo time and at reasonable speeds”, 80 So.2d 553.


text:
    Jo Sidney TARVER, Plaintiff-Appellant, v. FIDELITY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 4159.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Watson, Blanche, Fridge, Wilson, Posner, & Thibaut, Baton Rouge, for appellant... •
    Huckabay, Seale, Kelton & Hayes, Baton1 Rouge, for appellees.
   TATE, Judge.

This is a companion suit to LaFuria v. Tarver, reported at 86 So.2d 232. Since-for the reasons more fully set forth there-, in we found that the present plaintiff’s negligence was a contributory proximate cause, of her accident with defendants’ vehicle,, the judgment of the District Court dismiss-, ing plaintiff’s demand, of $102.07 is affirmed at appellant’s cost;

Affirmed.


author: McBRIDE, Judge.

text:
    Leonard WELSH v. Emmett W. HUME.
    No. 20672.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Byrnes & Wallace, New Orleans, for plaintiff and appellant.
    Louis B. Porterie, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

By written contract dated May 15, 1951, defendant, for the price of $550 undertook to paint both the exterior and interior of plaintiff’s property, 2743 Bay Street, inclusive of taping, roller texturing and sealing all cracks inside the premises. Defendant completed the job in about two weeks. The Third District Homestead Association, which financed the construction of the building for plaintiff, paid the contract price to defendant by giving him its two checks, one on Juné 14, 1951, for $200 and the other for $350 on July 9, 1951. '

On January 28, 1953, about eighteen months afterward, plaintiff instituted this suit. He alleges that in certain enumerated particulars the work performed by defendant on the inside of the premises had been done in a careless, negligent and unwork-manlike manner and that the cost of making the necessary corrections will amount to $250. He subsequently filed an amended petition which sets forth that the corrective work will entail an expenditure of $464 for which he prays judgment. Plaintiff’s chief complaint is that the seams between the sheet rock on the walls and on the ceilings are exposed because they had been improperly sealed. The defense is that none of the work was defective. The answer specifically sets forth that plaintiff paid defendant for the work without ever having made a complaint and that the first knowledge defendant had of any dissatisfaction on plaintiff’s part was when he was served with the citation. The matter was heard on its merits below after which the trial judge visited the premises in question and made a visual inspection thereof, and ultimately judgment was rendered in plaintiff’s favor for $50. Plaintiff has. appealed from the judgment and defendant has am-swered the appeal praying that the judgment be reversed and plaintiff’s suit be dismissed.

Lemoine, a contractor, testified that at plaintiff’s request he inspected the interior of the premises and found that there were exposed spots and that the joints had not been floated and were completely unfinished. He submitted a written bid to plaintiff for $464 for reworking the interior proposing to sand the joints, refloat, retexture and repaint the whole interior and sand the roughness on the natural finish of the doors and frames and revarnish them. Le-moine’s bid bears no date, but it clearly appears from his testimony that his inspection and the subsequent bid were made in 1954 or about three years after the completion of the contract for the painting.

Shafer, the building inspector for the homestead association, testified that expansion or contraction of the building or dampness could cause exposed seams. Shafer stated that during the progress of the work he visited the job on his regular tours of-inspection and was satisfied with the manner in which defendant was performing the work. After the job.was completed he, in company with plaintiff, made a final inspection and they were both satisfied with what defendant had done. In due course the homestead association paid defendant the contract price in the two installments above mentioned.

It was'also shown at the trial that about a month after the paint.job on.the Bay Street property plaintiff engaged defendant to do- some painting work on a building on Sage Street which plaintiff had purchased.

Under these circumstances we do not see how plaintiff is entitled to an increase in the amount of the judgment: The work could not have been as defective as plaintiff claims else Shafer, an experienced building expert, wotild not have approved it on behalf of the Third District Homestead Association, nor do we think plaintiff would have employed defendant to do the other job. The plaintiff himself was present almost daily as the work progressed and he admits there was no reason for him to complain óf its quality. He made the further admission that when defendant left the job he, without reservation, expressed his satisfaction with the work to Shafer. Now he seeks to excuse his conduct by saying that he lacks experience and knows little or nothing of construction work.

It is settled that a party for whom construction work has been performed under contract, who has accepted the work, has expressed his satisfaction therewith, and has settled therefor without objection or complaint, is estopped from claiming damages for alleged violations of the1 contract. Mouton v. Droz, 16 La. 111; De Lambre v. Williams, 36 La.Ann. 330; Shakspeare v. Ware, 38 La.Ann. 570; Templeman Bros. Lumber Co. v. Fairbanks, Morse & Co., 129 La. 983, 57 So. 309; A. M. Blodgett Const. Co. v. Cheney Lumber Co., 129 La. 1057, 57 So. 369; Concrete Construction & Contracting Co. v. Levis, 7 Orleans App. 397.

The plaintiff sought to show that he had registered. timely objections with defendant and that defendant acknowledged that his work was defective by writing in his own hand the following notation into the body of the original contract:

“August 28, 1951
In accordance with the above contract I, the undersigned, agree to redo and smooth all seams showing in sheet rock.
E. W. Hume”

Defendant explains that notation by stating that when he received the final check for $350 from the homestead association on July 9, 1951, he cashed the check and made a loan of the proceeds to plaintiff who gave him his I O U for said amount. Defendant stated further that at the time the notation was written he badly needed the money plaintiff owed him in order to pay for the paint he had used on the job and to settle with his partner for his share of the profits. He went on to say that plaintiff threatened to withhold payment of the loan unless he wrote the notation on the contract and that in order to collect his money from pláintiff he complied with plaintiff’s demand. Plaintiff denies none of this.

The statement of the defendant that coercion on the part of plaintiff led him to insert the above notation in the contract was never denied by Welsh, the plaintiff, and under these circumstances and in view of the fact that there was in reality no defective work to be redone, we do not think that plaintiff can enforce the so-called agreement made by defendant to do the painting job again.

Now as to the judgment for $50. This judgment cannot be sustained because first, the evidence clearly shows that plaintiff is entitled to no recovery, and in the second place the only evidence produced going to show the amount it will take to correct the alleged defective work was the one bid for $464 in globo submitted by Le-moine, and we cannot understand how the trial judge could have arrived at the amount of $50.

For the reasons assigned, the judgment appealed from is reversed. It is now ordered that plaintiff’s suit be dismissed at his cost.

Reversed.


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    NATIONAL MANUFACTURE AND STORES CORPORATION, Plaintiff and Appellant, v. Rufus W. FONTENOT, Collector of Revenue, Defendant and Appellee.
    No. 4152.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      Phelps, Dunbar, Marks & Claverie, New Orleans, for appellant.
    L. A. Himes, Jno. B. Smullin, Baton Rouge, for appellee.
   TATE, Judge.

Plaintiff appeals from dismissal after trial of its suit against the Collector of Revenue under LSA-R.S. .47:1576 to recover $284.70 of corporation franchise ’ taxes for 1950 paid under protest.

• The Louisiana Corporation ■ Franchise Tax Law, LSA-R.S. 47:6Q1-616, imposes a tax on corporations doing business in Louisiana for the privilege of so doing. The measure of this tax is the amount of the “capital stock, surplus, undivided profits, and borrowed capital”, LSA-R.S. 47:601, employed in Louisiana, determined as set forth in said Act. The rate of the tax is $1.50 per thousand dollars aggregate valuation of these items, thus determined.

The National Manufacture and Stores Corporation (hereinafter denoted as “National”), is engaged in the business of selling household furnishings and fixtures at retail. Ninety-two per cent of its national sales are made on the installment credit plan, mostly payable over a period of twelve to fourteen months. These installment sales are reflected on National’s books as “Accounts Receivable” on the “Assets” side of the ledger. Approximately 40% of the large balance shown as “Accounts Receivable” represent profits that will not be collected until the accounts are paid and are represented on National’s books ■ as “unrealized profits” on the Liabilities'and .Capital side of the ledger. ■ . ...

National’s 1950 corporation franchise return included the following valuations:

Under “Assets”:

“Accounts Receivable . $5,412,358.22 “Less Reserve for Bad
Debts” .!.... .402,624.27 (Net Value of “Accounts Receivable” Under “Assets” : $5,016,566.06)

Under “Liabilities and Capital”:

“Unrealized Profits” (on installment sales) . 2,215,794.13
Reserve for federal income taxes on “Unrealized profits” . 899,296.91

The legal controversy herein. revolves about the proper treatment for corporation franchise tax purposes' of these last two italicized items and amounts.

The practical effect of National’s entering these two items on the “Liabilities” side of the ledger was to reduce or offset the value of the “Accounts Receivable” by the amount of these deductions. Accounting-wise, the listing of these items on the corporate balance' sheet as “Liabilities” reduced by the amounts shown the “Surplus”, over the “Capital Stock”; as of course without these deductions to offset the total value of the 'corporation’s listed “Assets”, the surplus over capital is increased to this extent. This, of course, reduced the total sum of “capital stock, surplus, and undivided profits” which is the measure of the tax in question, and accordingly reduced National’s tax liability.

Both parties rely upon their interpretation of LSA-R.S. 47:605 “Surplus and undivided profits”, Subsection A, which insofar as applicable provides: : ■

“A. Determination of voltee. For the purpose of ascertaining the tax imposed in this Chapter; surplus and undivided-profits shall be deemed to have such vahee- as is reflected on the books of the corporation, subject to examination and revision by the collector from the information contained in the report filed by the corporation as hereinafter provided and'from any other information obtained by the collector; but in no event shall such revision reflect the value of any asset in excess of the cost thereof to the taxpayer at the time of acquisition; provided that in no event shall such value be less than is shown on the books of the taxpaying corporation. In computing surplus and undivided profits there shall be excluded such surplus as may be required by court' order to be set aside and segregated in such manner as not to be available for distribution to stockholders or for investment in properties, the earnings from which are distributable to stockholders; provided further that in computing surplus and undivided profits. there shall be included all reserves other than those for definitely fixed liabilities, .reasonable depreciation, bad debts and established valuation reserves, such reserves in all cases to be made under rules and regulations to be prescribed by the collector.” (Italics ours.)

The two items in question do not constitute part of the-surplus under the installment method of accounting by which National’s books are maintained. Therefore, National contends under LSA-R.S. 47:605, subd. A the Collector lacks statutory authority to revise for purposes, of , this tax the value of the surplus as reflected on National’s books by adding these unrealized profits which are “in excess of the cost” of the asset to the taxpayer.

In our opinion, the Collector properly recomputed National’s corporation franchise tax liability by adding to “surplus and undivided profits”, the two values on National’s balance sheet denoting (a) “unrealized profits” and (b) the reserve for federal taxes upon such “unrealized profits.” While “Surplus” is not defined -in the Corporation Franchise Tax Law itself, the Louisiana Business Corporation Law states this definition, LSA-R.S. 12:1, subd. Q: “ ‘Surplus’, means the excess of assets over all liabilities plus capital stock.”

In effect, as to the unearned profits, the Collector’s position is that the arbitrary labelling of a portion of the assets (“accounts receivable”) as a “liability” for the purposes of technical accounting practice, does not as a practical matter transform such assets into a liability. Despite the skillful argument by counsel for National that by definition under installment basis accounting practice, and by National’s corporate by-laws, such “unearned profits” cannot be considered as a surplus, we believe the Collector properly applied for purposes of computing the tax the general statutory definition applicable to all corporations doing business in Louisiana, rather than a specialized or parochial definition of “surplus”.

The Collector is under a mandatory duty to include for franchise tax valuation in “surplus and undivided profits * * * all reserves other than those for definitely fixed liabilities, reasonable depreciation, bad debts and established evaluation reserves,” LSA-R.S. 47:605, subd. A. (Italics ours.) The Collector held these two balance sheet items to be in the nature of accounting reserves other than those thus statutorily exempted from inclusion in the measure of the tax as “surplus and unrealized profits.”

National further asserts that it is impossible to value these long-term “accounts receivable” at their cash value, and inequitable to value them for tax purposes at their full face value due to the possibility of non-collection over their extended term. Based upon such reasons, our National Congress for federal income tax payments permits deferring pro rata by installments of income tax liability until the installment payments are actually received. However, no such provisions exist in our corporation franchise tax.

Further, considering the function of the corporation franchise tax as an excise upon the privilege of doing corporate business in Louisiana measured not by income, but by the net asset value of the corporate structure, such “accounts receivable” (less the bad debt reserve permitted by law) seem to us to be as definitely an asset as any other account receivable, and equally so as to unrecovered costs and unpaid profits.

In effect, National wishes to treat the 40% portion of these “accounts receivable” attributable to profits as having ábsolutcly-no value. This is patently incorrect as a matter of factual economic valuation.

We do not find persuasive in the interpretation of the Louisiana corporation franchise tax the authorities cited to us by National, which involve interpretation of the Texas corporation franchise tax or the “excess profits” provision of the federal income tax, within the context of their statutory intent and setting.

Likewise, the Collector correctly disallowed National’s deduction from the basis of the tax of the sum of $899,296.91 reserved for future income tax liability to be owed on such unrealized profits. National estimates such reserve according to current federal income tax rates. It does not claim that the current income tax rate will be applicable on the profits when realized, or that any federal’income tax liability’ will accrue until such profits are actually realized. The reserve is not for “definitely fixed liabilities”, nor is it within the category of any other reserve exempted from the franchise tax base under LSA-R.S. 47:605, subd. A; see above. The Collector properly included same in the corporation surplus for purposes of measuring the corporation franchise tax due by National.

For the above and foregoing reasons, the judgment of the District Court is affirmed; costs to be paid by plaintiff-appellant.

Affirmed.

      . The total effect ,of.these offsets or reductions claimed by National including the bad debt reserve (which last is not contested by the Collector), was to reduce the value of the “Accounts Receivable” for Corporation Franchise tax purposes from $5,412,858.22 to $1,814,642.-' 31.

      . The “installment” basis of accounting was devised especially for purposes of the federal ■ income tax, which in general permits the pro rata allocation of profits to the period during which installments are actually collected for purposes of federal income tax return. It is a variation from the straight “cash” basis of accounting, which is based upon the amounts actually paid and received, and the “accrual” basis of accounting which shows income earned and' expenses incurred during a given period, although such expenses or income may not have been actually spent or received in cash during the period. National’s books were maintained on the accrual basis as to expenses, but installment sales accrued as-income only as the installments became due.

      . This, we might add, the record reflects to be the usual accounting definition also ; although appellant’s experts alleged without contradiction that the “installment” basis of accounting, more or less by definition, excludes unrealized profits from surplus or undivided profits.

      . National alleges that the had debt reserve actually deducted above included only reserve for non-payment of costs, not of profits, and therefore affords it no relief.


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    GLOBE STORAGE COMPANY, Inc. et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 4156.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Polk & Foote, Alexandria, for appellant.
    Major & Ponder, Baton Rouge, for ap-pellee.
   LOTTINGER, Judge.

This suit was filed by Globe Storage Company, Inc. and other holders of certificates of public convenience and necessity issued by the Public Service Commission in order to nullify a certificate of public convenience and necessity issued by the said Commission to one _ Garland McManus. The Lower Court rendered a judgment rejecting petitioners’ demand. An appeal was taken by petitioners to this Court, however, both petitioners and defendants have since filed motions requesting transfer of the appeal to the Supreme Court.

Article 6, § 5 of the Louisiana Constitution of 1921, LSA, provides, in part, as follows:

“The orders of the Commission (Public Service Commission) shall be enforced by the imposition of penalties as hereinafter provided, and any party in interest may appeal from orders and decrees of the Commission to the courts by filing suit, within ninety days from the date of the Commission’s order, and not thereafter, against the Commission at its domicile. All cases contesting orders of the Commission, both in the trial and appellate courts, shall be tried summarily and by preference over all cases, and may be tried either in chambers, or at term time. Appeals from decisions of the trial court shall be direct • to the Supreme Court, and shall be returned within ten days after the granting of the appeal. When the Commission appeals no bond shall be required.” (Parentheses and italics ours.)

The clear wording of the Constitution is to the effect that this appeal should he lodged with the Supreme Court and not with this Court. Sufficient bond has been posted, as provided by law, and this appeal will be transferred in accordance with the provision of the Constitution.

For the reasons assigned it is ordered that the appeal in this case be transferred to the Supreme Court of the State of Louisiana, and that petitioners be given ten days from the date this decree becomes final in which to perfect and file their appeal in the Supreme Court, and on their failure to do so, the appeal to stand dismissed. .

Transferred to Supreme Court.


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    E. L. YOUNG, Plaintiff and Appellant, v. Robert Lee EDDY, Jr., Defendant and Appellee.
    No. 4196.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Horace R. Alexius, Jr., Covington, for appellant.
    . Guy L. Deano, Jr., New Orleans, for ap-pellee.
   TATE, Judge.

Plaintiff-landlord appeals from judgment dismissing his claim against a former tenant for a rent note unpaid for the term of the lease after defendant-tenant left the premises, and also for certain damages allegedly caused the premises through the acts of the tenant and his family.

Defendant-appellee moved to dismiss the appeal because the total amount demanded, including 10% attorney’s fees provided in the rent note, cumulates to a total of $2,192.90, or in excess of our jurisdictional limit of $2,000, Article 7, Section 10, La.Constitution, LSA. ’However, as admitted in oral argument and verified by review of the record, certain items of damage are totally without proof in the record. Elimination of these inflated or exaggerated items reduces the demand to the true sum in controversy, which is within our appellate jurisdiction. Wc may therefore retain appellate jurisdiction. See: Givens v. Town of Ruston, 219 La. 672, 53 So.2d 833, appeal transferred, La.App., 55 So.2d 289; Bensel v. Kuhlman, 154 La. 150, 91 So. 347; Beasley v. Glassell, 110 La. 230, 34 So. 424; Greco v. Live Oak Properties, Inc., La.App., 1 So.2d 841; and Turner v. Charlton, La.App. 1 Cir., 197 So. 187.

The motion to dismiss the appeal is denied.

In review of the merits, no useful purpose will be served to analyze each item of damage claimed, e. g., two window glasses, three large screens, twenty-one light bulbs, 2 keys, etc. It is sufficient to say that not only is there no proof of some of these items as damages to the premises, but that we are impressed as was the District Court that rather than damaging the premises during his occupancy, defendant-tenant greatly improved same, which when initially occupied were in disorderly shape, in this large house upon which no appreciable repairs had been made during twenty years of previous occupancy by the owner, plaintiff herein.

The original lease between the parties hereto was for a three-year term of the large house known as “Rosewood” in Cov-ington, Louisiana, at a rent of $80 per month. After sixteen months, defendant and his family left, complaining that the landlord (who lived in a small house approximately 150 feet distant) refused to repair the roof (which leaked in twelve places for fifteen months), the screens, or to give his tenants keys to the premises (claiming that burglars would damage the premises if the doors were locked), violated his tenants’ privacy by entering the premises without the tenants’ permission when they were away to use the telephone, to borrow a power mower, etc., and that he refused to remove his possessions from the cellars and storeroom spaces.

The District Court found as a fact that at least some of these omissions or commissions were committed by the landlord, and that the tenant left also in part because the landlord resorted to veiled threats against defendant’s family (defendant being away from home at work much of the time). It held that therefore the plaintiff-landlord had breached the obligations of the lessor under Article 2692, LSA-Civil Code, to maintain the lessee in peaceable possession of the premises, and also to deliver the leased premises to the tenant.

When (as here) the lessor breaches his obligation to afford his tenant peaceable possession of the premises, the tenant is relieved of his obligation to pay rent beyond actual occupancy of the premises, and the lease is considered terminated, Henry Rose Mercantile & Mfg. Co., v. Stearns, 154 La. 946, 98 So. 429; Maggio v. Price, La.App. 1 Cir., 1 So.2d 404; Pirkle & Williams v. Shreveport Jitney Jungle, Inc., 19 La.App. 729, 140 So. 837; Pelletier v. Sutter, 10 La.App. 662, 121 So. 364. See, also, Hitt v. Herndon, 166 La. 497, 117 So. 568; Wood v. Monteleone, 118 La. 1005, 43 So. 657; Rulf v. Von Schoeler, La.App. 52 So.2d 82. See to similar effect as to the landlord’s breach of obligations of repair and delivery under Article 2692, LSA-C.C., Siracusa v. Leloup, La.App. 1 Cir., 28 So.2d 406; Goldstein v. Stone, 12 La.App. 702, 127 So. 73.

For the above and foregoing reasons, the judgment of the District Court herein dismissing plaintiff’s demand is affirmed; cost of this appeal and of the proceedings below to be paid by plaintiff-appellant.

Affirmed.

      . Among others: (a) $75 alleged in petition as cost of cleaning yard; (b) $ '5 claimed for fireplace repairs admitted by plaintiff to have been needed prior to defendant-tenant’s occupancy; (c) Demanded cost ($75) to repair electric conduit in excess of testimony of greatest actual cost ($15)'; (d) Demanded cost ($120) to repair floors and ceilings and clean paint «pillage in excess of greatest estimate ($05) in record.


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    Johnnie O. BANKSTON, Plaintiff and Appellee, v. COMMERCIAL CREDIT CORPORATION, Intervenor and Appellant (Calvert Fire Insurance Company, Defendant).
    No. 4187.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Ponder & Ponder, Amite, for appellant.
    Carter, Erwin & Carter,,’ Franklinton, for appellee. ' .
   TATE, Judge.

Plaintiff-appellee Bankston ■ initially sued Calvert Fire Insurance Company, his collision insurer, to recover the cost of satisfactory repair of the insured car. (The initial repair job following a collision was unsuccessful.)

After Calvert filed answer, the Commercial Credit Corporation intervened requesting payment of any proceeds of the claim upon the insurance policy to itself, as mortgagee holding chattel mortgage on the damaged car. Simultaneously, the defendant insurer deposited in the, register of the court the sum of $1,200, which was accepted by Bankston and Commercial Credit as compromise settlement of their claims against Calvert. The conflicting claims of these latter parties to this sum are the sole matter now before us.

Intervenor, Commercial Credit, appeals from lower court judgment awarding this deposited amount to the ‘car, owner, Bankston. ■

Bankston deniéd that Commercial Credit, mortgagee, has any right to the amount payable for collision - loss because, soon after this present suit was initially filed, said mortgagee foreclosed upon the automobile owned by Bankston and insured by Calvert and purchased same -at sheriff’s sale without appraisement, but for the full amount of the indebtedness.

At this point, we should state that the appellate record is not in too satisfactory condition, since the foreclosure suit introduced in evidence and relied upon by plaintiff is not contained therein, nor is the insurance policy relied upon by intervenor therein, which apparently was not ever introduced. However, we will accept as correct certain factual findings and factual assumptions of the District Court pertaining thereto, since they are not challenged by either party.

According to the record, Bankston purchased the 1951 Ford car in question on September 18, 1952 for $635 down-payment plus a note in the sum of $1,802.40 secured by chattel mortgage of the Ford. Bankston paid $525.70 upon said note, both before and after the accident wrecking the Ford, which occurred about two months after its purchase. . Commercial Credit’s foreclosure suit against Bankston was for the balance due upon the note of $1,276.70, plus' interest and attorneys fees, or a total indebtedness of $1,659.09; Commercial Credit had itself purchased the Ford at sheriff’s sale without benefit of appraisement and for the sum of $1,659.09, or the total amount of indebtedness due it under the notes.

Under such circumstances, the District Court, correctly held that any claim of Commercial Credit' Corporation to the insurance proceeds of the collision policy under the clause making losses payable to the mortgage creditor “as its interest may appear” (standard clause, see cases cited below) was.totally satisfied, and said mortgagee was without further interest in such proceeds, which, were properly payable in full to Bankston, owner of the car insured.

Apparently Commercial Credit, inter-venor-app'ellant, claims the insurance pro-, ceeds on the theory that its right- as mortgage creditor and payee of the loss insured by the insurance policy (under the “loss payable” clause) became fixed at the date of the loss; Pearson v. Rapstine, 5 Cir., 203 F.2d 313 and other cases cited below; and that even though the mortgage creditor purchased the mortgaged property without benefit of appraisement and therefore lost its right to a deficiency judgment against the mortgage debtor, LSA-R.S. 13:4106, nevertheless this defense is personal to the mortgage-debtor and does not prevent the mortgagee from collecting the proceeds of the insurance policy from the insurer, a third party, under Guinn v. Houston Fire & Casualty Ins. Co., La.App. 1 Cir., 32 So.2d 613.

Appellant overlooks, however, that the present case is distinguished from the Guinn case (where the property was purchased at sheriff’s sale for substantially below the mortgage debt) in that the mortgaged property herein was purchased at the sheriff’s sale for the full remaining balance due of the indebtedness and all court costs. Further, of course, the interest of a mortgagee under a “loss payable” clause of an insurance policy extends only to the amount of the mortgage debt due at the time of the loss, the surplus being for the mortgagor, In re Clover Ridge Planting & Mfg. Co., Inc., 178 La. 302, 151 So. 212 and Adams v. Allen, La.App. 1 Cir., 19 So.2d 578. To argue that despite the payment in full of the balance of the debt after the accident, nevertheless the mortgage creditor is entitled to collect the proceeds of the insurance policy, over and above the total of the mortgage debt, overlooks that the primary purpose of the insurance policy, the premiums for which were paid by the named insured, is to pay the collision losses sustained by him, and the purpose or cause, Article 1896, LSA-Civil Code, of the “loss payable” clause is only to protect the mortgage creditor from loss of its security up to the amount of the debt through collision accident and dispersion of the proceeds by the insured, its mortgage debtor.

For the above and foregoing reasons, the District Court’s judgment herein will be affirmed; costs of this appeal and of the proceedings below be paid by intervenor and appellant, Commercial Credit Corporation.

Affirmed.


text:
    INLAND EMPIRE INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 4185.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Welton O. Seal, Bogalusa, for appellant.
    Porteous & Johnson, New Orleans, for appellee.
   LOTTINGER, Judge.

This matter is before us on an appeal taken by the plaintiff from a judgment of the lower court sustaining the defendant’s exceptions of no right and no cause of action. The issues presented, and the District Court’s reasons for judgment are set out as follows:

“The allegations of the petition in this suit show that on December 29, 1953, Mrs. Patricia Ann Jones was riding as guest passenger in a 1951 Olds.-mobile automobile owned and driven by her husband, John Freeman Jones, Jr., and • while this car was traveling on Louisiana highway No. 35 from Amite, Louisiana, to Franklinton, Louisiana, and approaching the intersection of said highway with Louisiana Highway No. 34, which travels from Franklin-ton, La., to Covington, Louisiana, it collided with a GMC truck owned and operated by Burris Brothers Ltd., and driven' by its employee in the course and scope of his employment.
“The truck belonging to Burris Bros. Ltd. was insured by the present plaintiff Inland Empire Insurance Company, who paid Burris Bros. Ltd. $875.45 as a result of property damage to the truck, and appear herein on one claim as plaintiff for the recovery of the $875.45 as a result of a subrogation by the said Burris Brothers, Ltd. Mrs. Jones, who was the occupant of the Oldsmobile automobile driven by her husband, was severely injured in the accident and she instituted suit in Federal Court’in Mississippi against the presenfplaintiff Inland Empire Insurance Company, the result of which the present plaintiff paid her $10,000.00 for her bodily injuries/and she in turn gave a subrogation to the plaintiff insurance company for said amount. Thus the other claim sought to bé recovered herein- by the present plaintiff is the'$10,000.00 under the subrogation from Mrs. Jones.
“The defendant in the suit is the State Farm Mutual Automobile Insurance Company, the insurer of the Oldsmobile automobile driven by John Freeman Jones, Jr., the husband of Patricia Jones, who, as heretofore stated, gave the subrogation to the plaintiff insurance company.
“From the allegations of the petition it is shown that the plaintiff is seeking recovery under a- subrogation from Mrs. Jones, from the insurer of John Freeman Jones for the acts of negligence alleged on the part of the said Jones in injuring his wife Patricia Jones/ The suit is, of course, under our direct action statute, [LSA-]R'.S. 22:655, against the insurer, and' recovery, of course, must be had under the terms and limits of the policy so long as said terms and conditions are not in violation-of the laws of this state.
“The basis of the exception filed herein is that the policy of insurance issued by the defendant company and upon which the plaintiff predicates, its cause of action does not apply to the insured or any member of the family of the insured residing in the same household as the insured. It is, of course, argued by Counsel for.Exceptor that Mrs. Jones, being the wife pf the insured, was a member of his household and, consequently, could not recover .under the exclusion provision of the policy. Counsel for Exceptor has cited many cases holding that this is a proper exclusion provision in a policy, but I note that all of them are from states other than Louisiana. It is, however, argued by Counsel for the plaintiff that, this provision in the policy is in direct conflict with Louisiana’s financial responsibility law as set forth in [LSA-JR.S. 32:900 requiring liability insurance coverage in favor of a party injured — as a result of this, Counsel for, plaintiff further argues that this household exclusion cjau'se in this policy is against, the public policy of this state.
“As I read the policy, it is not even necessary for this court to ¡determine whether or not the household exclusion clause in the-policy is in violation of the laws of this stgte-. A reading of the policy which was filed by the defendant and admitted without 'objection in connection with this exception by the plaintiff, shows that it was issued to Patricia Jones and John Freeman Jones, Jr., or either of them. Thus, under the very terms of the policy Mrs. Jones, who gave the subrogation to the plaintiff insurance company, was an insured under the policy at the ■time -of. the accident- — of course, she could give no greater rights under the subrogation than-she possessed. Coverage ‘A’ of the policy provides as-follows:
‘Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting-therefrom, sustained by any person, . caused .by accident and arising; out of the ownership, maintenance or use of the automobile.’
“Under the exclusions in the policy, it is provided' that the policy does not apply in paragraph ‘e’ under Coverage ‘A’, to any obligation for which the insured or any company as his insurer-may be held liable under any workmen’s compensation law; or to the insured or to any member of the family of the insured residing in the same household as the insured.’ (Italics, mine.)
“Thus, it is apparent that recovery for bodily injury as provided by Cov-. erage ‘A’ in the policy docs not apply to --the insured under the exclusion-clause of paragraph ‘e’ of said policy. Since the subrogor wife was an insured as shown on the face of the policy, then she could not recover under the provisions of said policy, and consequently, her subrogee, the present plaintiff, cannot recover under the terms of said policy.
“Counsel for plaintiff states in brief that it is well recognized under Louisiana Law that when an insured is riding as a passenger in his own automobile, driven by another with his authorization and permission, he has a right and' cause of action against his own insurer for personal injuries sustained by him. He cites in support of this proposition the case of McDowell v. National Surety Corporation, [La.App.] 68 So.2d 189; he then further argues Mrs. Jones, the subrogor, and the plaintiff subrogee have a cause and right of action hereunder regardless of whether the plaintiff subrogor be considered an insured or a member of the insured’s household. • An examination of the McDowell case shows that there was no exclusion clause in the policy as to bodily injuries received by the insured as there is in the present case. The Court of Appeal in the McDowell case was careful to point out that under Coverage ‘A’ of that policy that any person could recover for bodily injuries caused by accident and arising out of „the ownership, maintenance or use of the automobile insured. The Court was further careful to point out that had the insurance company cared to qualify the phrase ‘any person’ it could easily have done so, and stated as follows:
* * * Certainly had the insurer desired to relieve itself of liability for personal injuries to the named insured, it could easily have done só by inserting appropriate language to that1 effect into the policy.’
“Thus, it is apparent if there had been an exclusion clause in the policy in the McDowell case, such as paragraph ‘e’ in the present policy, the Court would not have permitted the plaintiff insured to have recovered.
“For the above reasons, I am of the opinion that the exception to the petition in this case is well founded in so far as the claim under the subrogation from Mrs. Jones, the insured, is concerned. Of course, the petition sets forth both a cause and a right of action under the subrogation from Burris Brothers Ltd. for the property damage to the truck.”

The appellant urges in its brief before this court that if the lower court’s decision is allowed to stand “ * * * an insurance company, by naming all members of the true insured’s family; as insureds under the policy, could circumvent in its entirety the Louisiana law authorizing .recovery , for guest passengers who are members of the. insured’s family.” Such an argument. is untenable. We agree, as did- the. trial judge, that it is unnecessary for us to pass on. the validity, vel non, of the “household exclusion clause” for the very, .simple reason that, as stated by the -trial.judge; Mrs. Jones was every bit -as much an insured as was her husband under the terms, of the policy itself.

Subsequent to the judgment of the lower court', the subrogation claim asserted by the’ plaintiff ,' from Burris. Brothers, Ltd., for property dámage, was by plaintiff’s motion dismissed without prejudice. The only question, therefore, presented to us on this appeal is the validity of .the subroga-;, tion claim asserted by the plaintiff from Mrs. Jones, which we have passed upon.

Finding' no manifest error in the judgment appealed from, the judgment is affirmed.

Judgment affirmed.


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    EMMCO INSURANCE COMPANY and Patrick J. Tyrell v. AETNA CASUALTY AND SURETY COMPANY.
    No. 20703.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.

      Morphy & Freeman, New Orleans, for plaintiff and appellant Emmco Insurance Company.
    Adams & Reese, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

This suit arises out of an automobile collision which occurred on August 15, 1954, at 6:45 a. m., in the intersection formed by the lane on Esplanade Avenue reserved for traffic moving toward the river and Decatur Street. Esplanade Avenue is a wide boulevard bisected by a neutral ground and has two lanes set aside for vehicular traffic. The automobiles involved were a 1950 Dodge sedan owned by Patrick J. Tyrell, and operated by Oscar C. Curry, and a 1950 Oldsmobile owned by Robert L. Roop, but driven by William Roop.

The Tyrell automobile sustained damage to the extent of $219.27, and this suit is brought by both Emmco Insurance Company and Patrick J. Tyrell against the Aetna Casualty & Surety Company, which is the liability insurer of Robert L. Roop’s car, for said amount. It is alleged that Emmco Insurance Company is the collision insurer of Tyrell and that it paid $144.27 of Tyrell’s damage and was subrogated to that portion of his claim. Tyrell bore $75 of the loss and he claims this sum.

The driver of the Roop vehicle is charged with negligence in several respects. The defense is that William Roop was not negligent but that Curry, who drove the other ■car, was and, in the alternative, Curry is charged with contributory negligence.

The matter was heard on its merits in the city court which gave judgment in favor of Patrick J. Tyrell against the defendant insurer for $75, but for some reason which the record does not disclose the suit insofar as the claim of Emmco Insurance Company is concerned was dismissed and the said plaintiff has taken this appeal.

The defense produced no evidence at the trial, and apparently the only eyewitness it could have produced was William Roop, and from a statement made in the récord by defendant’s counsel, William Roop was not produced because he is a member of the U. S. Navy Air Force and his whereabouts is unknown.

The evidence adduced by plaintiffs makes out a clear case of negligence against William Roop. It was shown that he had been driving the Oldsmobile car toward the lake on Esplanade Avenue, and that upon reaching Decatur Street he executed a left turn while traveling at 40 miles per hour and continued on across the neutral ground and then without stopping entered the lane in which Tyrell’s car was traveling with the result that the Tyrell car, which was in close proximity of Decatur Street, crashed into the Roop car. Curry had been driving at a normal rate of speed and in a careful manner and he could have done absolutely nothing to avoid running into the Roop car. He applied his brakes in the emergency but was unable to stop in time to avert the accident. We find no negligence on Curry’s part which could possibly have contributed to the accident.

Counsel for the defendant take exception both to the form of the subrogation upon which Emmco Insurance Company bases its claim and the time at which it was given. We are not in the least concerned with the contentions made by defendant with reference to the subrogation. It was not necessary for the plaintiffs to show what were the Emmco Insurance Company’s dealings with Tyrell. The petition alleges that said insurance company is Tyrell’s subrogee for part of the claim and both appear as plaintiffs, so there is no danger whatever that Aetna Casualty & Surety Company will be called upon to pay the claim twice and thus said defendant cannot be heard to complain. Defendant is not privileged to inquire into the business transactions of the plaintiffs inter se, or whether the subrogation is valid. See Hardware Mutuals Casualty Company v. Schreiner, La.App., 82 So.2d 861; Motors Ins. Corp. v. Peirce, La.App., 70 So.2d 217; Emmco Ins. Co. v. Erickson, La.App., 63 So.2d 747. See also John M. Walton, Inc., v. McManus, La.App., 67 So.2d 130; Hansen v. Hickenbotham, La.App., 61 So.2d 620.

With reference to the amount of the damage sustained by Tyrell’s' car, we find that there is a stipulation in the record to the effect that counsel agreed that the sum of $219.27, as per an estimate of the damages made by Ferrand & Danigole, be the “measure” ,o.f the judgment “in the event of liability.” This could only mean one thing and that is that counsel agreed if the defendant insurer is held to be liable for'Tyrell’s damage, then there should be a judgment in plaintiffs’ favor for $219.27.

The trial judge erred in not rendering judgment in favor of the plaintiffs jointly for the amount of the damage as prayed for in their petition. However, as the judgment insofar as it runs in favor of Patrick J. Tyrell is final and executory, we can make no decree which could in any wise or to any extent affect that judgment, so the result in the case must be that the appellant have judgment for the remainder of the $219.27 or for $144.27.

For the reasons assigned, that portion of the judgment which dismisses the suit of Emmco Insurance Company be annulled and reversed, and it is now ordered that the judgment be amended so as to provide that said appellant have judgment against defendant for the sum of $144.27, with legal interest from judicial demand until paid, and as thus amended the judgment is affirmed. . Defendant is cast for the costs in both courts. ■■■

Reversed in part; amended and affirmed in part.


author: ELLIS, Judge.

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    VON ZONNEVELD BROS. & PHILIPPO, Inc. v. Philip CARY.
    No. 4189.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Talley, Anthony & Johnson, Bogalusa, for appellant.
    Henry N. Richardson, Bogalusa, for ap-pellee.
   ELLIS, Judge.

A foreign corporation brought this suit to recover the purchase price of certain iris bulbs sold to the defendant by the plaintiff on March 14, 1951. An exception to the procedural capacity of the plaintiff was filed and referred by the trial court to the merits. The judgment makes no mention of this exception so it is considered overruled, although the appellant re-urges this exception on appeal.

The defendant answered, and, assuming the position of plaintiff in reconvention, claimed damages for labor, fertilizer and loss of profit in connection with the purchase of the bulbs. To this demand and reconvention the plaintiff filed an exception of no cause and right of action and a plea of prescription. The plea of prescription was sustained by the trial court.

A trial upon the merits resulted in a judgment in favor of the plaintiff in the amount prayed for, and the defendant has appealed.

The exception of lack of procedural capacity is based upon the provisions of Louisiana Statutes Annotated 12:211, which reads:

“A. No corporation doing business in this state shall be permitted to present any judicial demand before any court of this state, unless it has complied with the- laws of this state for doing business herein, and has paid all ' taxes, excises, and licenses due to the state. This Section shall not be construed to prevent the bringing of a cause of action against any corporation.
“B. The burden of proof shall rest upon the corporation to establish that it has complied with the laws of this state for doing business" herein. The only legal evidence of such compliance shall be the certificate of the Secretary of State or a duly authenticated copy thereof.”

- The defendant maintains that the plaintiff is a foreign corporation actually doing business within this State, without being authorized to do so, and thus is unable to prosecute this suit against the defendant.

The defendant relies upon the case of J. R. Watkins Co. v. Stanford, 52 So.2d 325, 326, which was decided by this Court. In that case we stated:

“The question of whether or hot plaintiff is doing business within this State is purely a factual one and must be determined from ■ all of plaintiff’s activities and transactions, * * *. It becomes necessary that we give an extended review of what the record discloses and our views and comments on the said record.”

In the present case there is nothing in the record to show the plaintiff was doing business in Louisiana, and as the exception was overruled for reasons orally assigned we do not know upon what basis the trial court founded his ruling.

In the Stanford case the evidence showed the plaintiff was doing a substantial business in Louisiana, unauthorized, and consequently was not entitled to sue in our courts upon matters arising out of its business in this State until it had properly qualified with the Secretary of State. Apparently, there was no evidence introduced upon the exception, and finding no manifest error, we agree with the ruling of the lower court.

The petition shows the defendant was engaged in the business of planting and growing flowers of various kinds for sale; that he submitted a written order to the plaintiff, signed by himself, dated March 14, 1951, for various kinds and types of bulbs to be shipped to the defendant in the fall of 1951. This written order is annexed to and made part of the petition and reads:

“General Terms and Conditions
“(1) All goods are sold V.O.B. our Warehouse New York, N. Y., unless otherwise written on face of order, and travel at purchaser’s risk and expense.
“(2) Terms: Prices quoted are net. Accounts are due 60 days from date of invoice; 2% discount for payment 10 days from date of invoice; 6% interest will be charged on overdue accounts.
“(3) Complaints and claims about quality of goods cannot be entertained unless made immediately upon delivery of same.
“(4) Von Zonnevald Bros. & Phil-ippo Inc. gives no warranty, express or implied, and will not be responsible in any way for the result of planting, forcing or flowering of any bulbs or roots they send out.
“(5) All orders accepted subject to prior sale and part delivery in case of partial or entire crop failure, or if for any reason beyond seller’s control full delivery cannot be made.
“(6) By plaing orders, buyers are considered to agree with these terms. Verbal agreements are not binding.”

There are further allegations that the merchandise was delivered to the defendant for the sum of $1,255, during the month of July, 1951, and that the sum of $400 was paid on the account, leaving a balance due of $855.

The answer admitted the receipt of the bulbs and the defendant reconvened for certain damages due to the fact that certain of the bulbs were not good and produced flowers with no foliage, blooming close to the ground, contrary to the representation of the plaintiff; that the bulbs were unsalable.

To this reconvention the plaintiff filed an exception of no cause and right of action and a plea of prescription, upon the basis the answer was filed more than a year after the date of the sale. The trial court sustained the plea of prescription, but in his written reasons for judgment concluded, ijorrectly, that the plea of prescription of one year was not applicable in this case and that the defendant was entitled to his defense based upon reduction of the price on the ground of the breach of warranty. Here, as in J. B. Beaird Co., Inc., v. Burris Bros., Limited, 216 La. 655, 44 So.2d 693, 697, the buyer is not bringing the action, which would prescribe after one year from the date of the sale, provided no defects were known, but is the defendant, and when a buyer uses a demand for a reduction in the price on the ground of the breach of warranty as a defense for an action for the balance of the purchase price, the Statute of prescription is not applicable and the defense will be allowed. Our Supreme Court said in the Burris Bros, case:

“The plea of prescription is not well • founded because the defendant is not using the demand for the reduction in price as a weapon of attack but using it as a shield or defense in resisting the payment of-.the balance of the purchase price. He is not precluded by prescription from urging this defense.”

An examination of the contract clearly shows the plaintiff gave no warranty, express or implied, and would not be responsible in' any way for the results of planting, forcing or flowering of any bulbs or roots which were sold. The defendant contends the bulbs sold were heated for forcing and were not the field bulbs he thought he was going to receive. The contract does not show whether the bulbs were to be forced or -field bulbs. Of course, under our law, a seller is bound, without stipulation, to warrant his goods. However, it has been held not to be contrary to public policy for the implied warranty to be excluded by the contract itself. See Landreth Seed Co. v. Kerlec Seed Co., 12 La.App. 506, 126 So. 460.

In the contract under consideration it was specifically stated that the seller would not be responsible for the results of planting, forcing or flowering of any of the bulbs that were sold. The defendant testified there was some verbal agreement with one of the plaintiff’s agents, but this agent was not called as a witness, nor did the defendant seek to take his testimony by deposition. Further, the contract states no verbal agreements were to be binding.

Considering the written contract and the record, in light of the foregoing reasons, the judgment of the District Court is affirmed.


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    Murray BRASHEARS v. Lawrence TYSON et al.
    No. 4170.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Iddo Pittman, Jr., Hammond, for appellant.
    Reid & Reid, Hammond, for appellees.
   ELLIS, Judge.

This cause arose from an intersectional accident which occurred in Hammond, Louisiana, on March 13, 1954, at about 9:45 P.M. at Southeast Railroad Avenue and East Hansen Avenue in the City of Hammond. The plaintiff’s car was being-driven by his wife and was proceeding south on the first mentioned Avenue, while the defendant’s car, driven by him, was traveling west on East Hansen Avenue. At the intersection there is neither stop lights nor stop signs, and the night upon which the collision occurred was clear and the street was lighted.

The suit was brought against the defendant. and his insurer, both of whom answered, denying any liability, and there was a reconvention for the damage to the defendant’s automobile, wherein it was alleged the accident was caused solely through the negligence of the driver of the plaintiff’s car. Contributory negligence was plead in the alternative.

The court below rendered judgment in favor of plaintiff and against the defendants in the amount of $234.47,, disallowing the reconventional demand. From this judgment the defendants have appealed.

Neither street forming the intersection was a right of way street’ and there are no signals or stop signs of any character. At such an intersection, under Louisiana Revised Statutes 32:237, subd. A, LSA, the automobile approaching from the right shall have the right of way. The testimony is clear that plaintiff’s car was traveling south and that the defendant was traveling west. Consequently plaintiff’s wife had the right of way at this intersection if the two vehicles approached or entered it at approximately the same time. We expressed and discussed this rule of law in Thibodaux v. Willett, La.App., 70 So.2d 728. Also see Sampey v. Martin, La. App., 80 So.2d 551.

Under the Statute cited it has been repeatedly held that the driver of an automobile who has the right of way at an intersection under the provisions of the Statute may assume that a motorist approaching from his left will respect this right of way. See Hochenedell, v. Heard, La. App., 188 So. 413; Meredith v. Arkansas-Louisiana Gas Co., La.App., 185 So. 498.

The defendant upon cross examination admitted that he was approaching the intersection and that there, was a blind corner on his right, since a building is almost flush with the corner; that he failed tó come to a complete stop but proceeded into the intersection, where he first observed the other car; that he could not see whether or not there was any traffic approaching from his right until he had passed the building on his right, which obstructed his view. He further testified that it was not necessary for him to stop as there were no stop signs. The plaintiff’s wife and a passenger in his car testified that the defendant not only failed to stop but came into the intersection at a rather high rate of speed. Both of these last witnesses evidenced that' plaintiff’s car was about in the middle of the intersection when she saw the defendant’s automobile coming toward her; and that she had already entered the intersection before the defendant came into it. The accident report and the testimony of other witnesses show the defendant's car hit the side of the plaintiff’s vehicle. The plaintiff, who reached the scene of the accident before the vehicles were removed, shows that his car was south of the center line of the road and close to the southwest corner of the intersection. His wife, who was driving, and whose1 testimony was corroborated by the passenger, is to the effect that she had already passed the middle of the intersection at the time of the impact. From all of the testimony it seems that plaintiff’s car had already pre-empted the intersection at the time of the accident. The defendant himself admitted that he was traveling at approximately 25 miles per hour and that he did not stop but entered the intersection, and the damage done to plaintiff’s vehicle seemed to show it was struck with quite a lot of force as it was turned from its path by the impact. No one has contradicted the speed of the .plaintiff’s vehicle, which was estimated at approximately 25 miles per hour. All of the facts, together with the evidence that the defendant’s view was obstructed by a building and still he did not stop to observe traffic, leads to the conclusion that the accident occurred solely through defendant’s negligence. He stated he could not see approaching traffic because of the building which blinded his view. The defense produced no witnesses other than the defendant himself although it appears that there was a passenger- riding, with him.

The defendants in their reconven-tional demand alleged excessive speed on the part of the driver of plaintiff’s car, but her contention that she was driving between 20 and 25 miles per hour and the corroboration of her passenger are the only evidence, and it has been held that a speed of 25 miles per hour on a right of way street is not excessive, and an ordinance of the City of Hammond sets this speed at 25 miles per hour. See Pender v. Bonfanti, La.App., 13 So.2d 105. There we held that such a speed was. not excessive and that the driver on a right of way street had the right to assume that a driver entering from the left would stop, look and listen for approaching traffic.

The defendants urge that the defendant driver entered the intersection at the same time as the car of the plaintiff or even a little ahead. Although the evidence does not substantiate this claim our attention is called to the case of Velasquez v. Murray-Brooks, Inc., La.App., 68 So.2d 681. There it was stated that the mere fact that a motorist traveling on a less favored street is able to enter an intersection ahead of a vehicle on a right of way-thoroughfare is ho indication that he has pre-empted' the intersection and is entitled to the right of way. In Porter v. DeBoisblanc, La.App., 64 So.2d 864, the legal duty imposed upon a driver entering an intersection from a less favored street is set forth. If such a driver -stops he has not completed the legal duty required, but this act must be followed by a careful examination of traffic on the favored street, and be should not enter the intersection unless he is certain he can do so without causing damage.

The defendant, however, mainly relies upon his plea of contributory negligence, and contends that the present case is similar to and should be governed by the same rule as laid down in Schech v. Pittman, La.App., 51 So.2d 119, and other cases with similar facts. In the present case the lower court evidently believed the testimony of Mrs. Brashears to the effect that defendant was not keeping a proper lookout in that he was a sufficient distance from the intersection when Mrs. Brashears observed him to have stopped his car and honored her preemption, whereas in the case cited the vehicles reached the intersection at approximately the same time and the defendant could have observed the excessive speed of the plaintiff and the absolute certainty of his being struck' if he proceeded into the intersection.

We cannot see that the Lower Court was guilty of manifest error in this case and it is accordingly affirmed.


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    Ellus JOSEPH et al. v. BATON ROUGE BUS CO., Inc., et al.
    No. 4154.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      L. C. Parker, J. Peyton Parker, Jr., Baton Rouge, for appellants.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellees.
   ELLIS, Judge.

The plaintiffs, husband and wife, have filed this suit against the Baton Rouge Bus Company and its insurer for damages allegedly arising as the result of the wife having fallen from the bus to the ground when attempting to open the door in order to step off the bus.

Plaintiffs alleged that on January 2, 1955 at approximately 8:30 P.M. the plaintiff and their three small children were riding on Bus No. 115, and that said bus was stopped for the purpose of unloading passengers and that when the wife first attempted to open the door of the bus it was stuck and did not open. When she pushed again on the door in order to get out of the bus the door came open suddenly causing her to fall out of the bus upon the ground on her stomach and into the mud and gravel, seriously injuring her. Plaintiffs alleged that the bus company was negligent in not keeping the doors of the bus in proper state of repair so as to render safe ingress and egress, and were negligent in permitting the bus to be operated in such a dangerous condition upon the street in carrying passengers, and that such a condition caused and created a “hazardous and physical trap for all fare paying passengers using same.” They further charge that the bus company was aware or should have been aware of the defect.

The- allegations of plaintiffs’ petition were denied and in the alternative defendant plead contributory negligence.

The case was duly tried and resulted in a judgment dismissing plaintiff’s suit at their costs, hence this appeal.

It is shown by the record that the plaintiffs together with their children had been to a picture show and were returning home on the bus and signalled the driver to bring the bus to a stop so that they could unload. The wife stated that she had a baby bottle and a purse in her left hand and that when the bus came to a stop she pushed on the door and it did not open, and she pushed again and the door came open suddenly and threw her on the ground. Evidently as she fell one of her feet was caught by the door as it closed and her husband pushed the door and released her foot.

It is proven that the door on the bus is known as a “safety door” and is in general use throughout the country. It can not be opened while the bus is moving nor can the bus be moved while it is open. It will serve no useful purpose to detail the expert testimony offered by the defendant which conclusively showed that the door on this bus was in perfect condition, had been regularly inspected and was demanded as equipment in the State of Texas. The day and night operators of this bus also testified that there had been no trouble or other accidents in which passengers had fallen while alighting from or getting on the bus. The driver of the bus on the particular night that the accident happened made another full round and could detect absolutely nothing wrong with this door. While expert testimony was offered as to the exact working of the door and inspection sheets to show that the bus and door had been inspected at regular intervals according to the rules of the company and found to be in excellent shape, a detailed description of the door as given by their testimony is not necessary. The plaintiffs admitted that they rode the bus often and were familiar with the operation of the door and with the fact that it had bars that people could hold onto when they were getting on or off the bus and which the evidence shows the plaintiff wife could not have done as she was pushing with her right hand and had her left hand full with a purse and bottle. She knew that it was necessary for the bus to come to a complete stop and for the operator to release the door before she was supposed to push on it. She testified that she heard the noise made by the release of the door, however, it is obvious that she pushed on the door either before the bus came to a full stop or the operator had released the door so that it could be opened, and the door failing to open she pushed harder. Prior to the second push the operator had evidently released the door so that it did open and she lost her balance and fell out the door. The plaintiff wife, when asked how she got out of the bus, frankly testified: “I had to open the door. I fell out to be frank.”

Plaintiff has utterly failed to prove the allegations of its petition which charged the bus company with specific negligence and the proof falls far short of showing any facts which counsel for plaintiff in his brief stated he believed to have happened, viz.: that the operator “failed to properly operate the control valve for unlocking the door * * * ” and, secondly, that “the door just failed to operate properly * * * ” Counsel does not state in his brief in what manner the driver failed to properly operate the control valve. According to the testimony there is only one way to do it and it is done mechanically by the driver. It is clearly shown that when the door is released the passenger must push it open.

Plaintiffs have failed to prove any negligence whereas the defendant has really proven no negligence on the part of the operator of the bus or any of its equipment as being responsible for the plaintiff wife having fallen out the door. Her accident was due to her own negligence and carelessness in the manner in which she performed an act with which she was perfectly familiar and had done bn many other occasions.

The judgment of the District Court is correct and should be affirmed. Plaintiffs are relieved of costs as the suit is one in forma pauperis.