text:
    Eugene R. CAZEDESSUS v. Antoine DUGAS.
    No. 4160.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Durrett & Hardin, Wallace R. Blunter, Baton Rouge, for appellant.
    R. Paul Greene, Fletcher T. Hinton, Baton Rouge, for appellee.
   LOTTINGER, Judge.

This matter is before us on a suspensive appeal taken by the defendant from a Judgment of the City Court of Baton Rouge, Louisiana, awarding the plaintiff damages in the amount of $118.83 for property loss arising out of an automobile collision.

The petition alleges that on November 5, 1954, at approximately 8:30 A.M. the plaintiff was driving his 1954 Ford west on Kleinert Street in the City of Baton Rouge in the traffic lane nearest the north line of the neutral ground at a speed of 25 miles per hour. It is further set forth that when approximately 50 feet from the intersection of Kleinert and Drehr Streets, he signaled that he was preparing to make a right turn; that while still giving such signal and when about 20 feet from the northeast corner of Kleinert and Drehr Streets, he slowed down to about 15 miles per hour; and that when approximately 5 feet from the northeast corner of Kleinert and Drehr Streets, he began executing a right turn into Drehr Street when he was suddenly struck by a Ford truck driven by the defendant. Negligence is charged against the defendant in various respects, among which are attempting to pass on the wrong side, attempting to pass at an intersection and attempting to pass without sounding a warning.

The answer of defendant denies any negligence on his part and sets forth that immediately prior to the time of the accident, he was driving west on Kleinert Street on the right side thereof and to the right of the automobile driven by the plaintiff. It is set forth that the plaintiff suddenly and without any warning, turned to his right directly into the path of defendant’s truck. Alternatively, it is pleaded that the plaintiff should be barred recovery because of his own contributory negligence.

The record reveals that Kleinert Street is a boulevard with lanes for east and west bound traffic, has a width of approximately 18 feet and is seprated by a neutral ground from 12 to 14 feet in width. The plaintiff testified that just previous to the accident, he was proceeding in a westerly direction on Kleinert Street at a speed of about 20 to 25 miles per hour and that as he approached Drehr, he slowed down to between 10 and 15 miles per hour. He stated that as he approached the corner, he applied his brakes but did not think that he gave any other signal. He stated further that he looked into his rear view mirror and did not see any cars coming. According to the plaintiff, he could not make his turn from the right side of the street for the reason that there was a car parked in the right lane of traffic about 150 feet from the corner. He was first aware of the defendant’s presence when he heard him and turned and looked back of his right shoulder and saw him approaching from his right. His car was struck in the center of the right front door. In addition to stating that the parked car necessitated making the turn from the left lane of traffic, the plaintiff further, testified that one could not make a safe turn into Drehr from the right lane of traffic. His reason for stating this was that as one turned into Drehr from the right, that he would “ * * * swing over into the right hand lane of Drehr Avenue * * He did admit, however, that Drehr is between 38 and 40 feet in width and is an exceptionally wide street of the City of Baton Rouge.

Without going into unnecessary detail, we feel that even assuming that the charges of negligence against the defendant had been proved, that the plaintiff himself was guilty of contributory negligence. He admits not having given any signal indicating his desire to turn to the right, and, further, admits that even though he looked in the rear view mirror, he did not see the defendant approaching. Even if there was an automobile parked in the right lane of traffic, it was, by the plaintiff’s own testimony, some 150 feet from the corner and there was obviously no reason why the plajntiff could not have passed this vehicle, proceeded in the right lane of traffic and made his turn from the right-hand as he was legally required to do. See LSA-R.S. 32:235(B). .It is clear that had the plaintiff made his turn from the right and given proper indication of his intention so to do, that the accident would not have occurred.

Having concluded that the plaintiff was guilty of contributory negligence, it necessarily follows that the judgment appealed from must be reversed.

For the reasons assigned, the judgment of the City Court is reversed and plaintiff’s suit dismissed at his costs.

Judgment reversed.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    NATIONAL SIMPLEX BLUDSWORTH, Inc. v. Dallas S. WOOD.
    No. 4169.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Reid & Reid, Hammond, for appellant.
    Dallas S. Wood, in pro-, per.
   LOTTINGER, Judge.

This is a suit in open account by National Simplex Bludsworth, Inc., against Dallas S. Wood in the sum of $462.76. From a judgment below in favor of defendant, the petitioner has appealed.

The evidence shows that defendant was the operator of the Ace Theatre in Hammond, Louisiana. He had purchased certain motion picture and sound equipment from the petitioner under an installment contract. A policy of insurance issued by Home Insurance Company protected the holder of the mortgage against loss of said equipment. During the' month of December, 1948, a fire in the theatre caused substantial damage to the moving picture equipment and the sound system was considered a total loss. ' Under the said policy of insurance, the petitioner received the sum of $2,162.78, plus a salvage of $150 for the sound system, and the other equipment was repaired by petitioner, for which repairs the insurance company paid petitioner the sum of $1,320.52. As stated, the projectors, lens, reflectors, etc., were repaired by petitioner at no cost to defendant, and a new sound system was installed by petitioner at a total cost of $2,775.54. This suit is for the sum of $462.76, being the difference between the cost of the new sound equipment and the amount received from the insurance company plus salvage on the old sound system. Said difference consisted in an advance in price of sound systems plus depreciation of 1% per month.

Defendant filed answer alleging that the repair bill paid by the insurance company was grossly excessive and furthermore that said repairs were defective. Defendant further claimed that all transactions relative to the insurance settlement were between the petitioner and the insurance company, and that he did not even know of a settlement until some months after it had been effected. He claims that said settlement should have been for at least the sum of $400 more, and that he should not be held liable for the difference as he was not a party to the settlement.

Suit wa9 tried by Judge Tycer who retired shortly thereafter. For reasons orally assigned, judgment was rendered by Judge Cornish in favor of the defendant, and the judgment was signed by his successor in office, Judge Burch.

Although we are not favored by written reasons for the decision rendered by the Lower Court, we are unable to find any obvious or apparent error in the said judgment which would justify our reversing the Lower Court. Testimony was introduced by the defendant to the effect that the repairs to the equipment were defective. The evidence shows that the lens, which were apparently repaired by the petitioner, were defective and were not usable thereafter. It was necessary for the defendant to purchase new lenses for the operation of his motion picture business. The projector was defective in that it rattled and made a terrible noise when operated. The reflectors were also defective. Defendant testified that he attempted to purchase new lenses from the petitioner, and that petitioner would not offer him anything for trade on the old lenses which petitioner had just repaired. It was necessary for him to purchase two new lenses for the sum of $150, and the best offer he could get for trade-in on the old lenses was $10.

All of the equipment in the theatre was only about ten months old. There is testimony in the record that the charges for repair of the equipment by the petitioner was excessive. Considering this fact together with the fact that the repairs allegedly made by petitioner were defective, we feel that the Lower Court was correct in dismissing its suit.

Furthermore, the evidence shows that the defendant was not a party to the insurance settlement. Although we do not know whether the amount of settlement would have been greater had he been consulted in the matter, certainly we feel that he was interested in the matter and petitioner should have consulted with him in the matter. He was the party who paid for the insurance, and he certainly had an interest in same as the insurance was for the full value of the equipment destroyed, and not only for the amount still due to the holder of the note. Certainly the defendant cannot now be held liable for the difference in cost of the new sound equipment, when he knew nothing whatever of the insurance settlement.

We feel, as apparently did the Lower Court, that the petitioner has failed to sustain his burden of proving liability on the part of the defendant, and, accordingly, the judgment of the Lower Court will be affirmed. All costs of this appeal to be paid by petitioner.

Judgment affirmed.


author: TATE, Judge.

text:
    J. R. WATKINS CO., Plaintiff-Appellee, v. J. C. BRUMFIELD and W. D. Mizell, Defendants-Appellants.
    No. 4181.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      France W. Watts, Jr.' Franklinton, for appellants. .
    Talley, Anthpny & Johnson, Bogalusa, for appellee.-
   TATE, Judge.

Defendants appeal from judgment holding them liable in solido in the amount of $550.

On December 4, 1950 a written contract-was entered into between plaintiff company and Claude D. Brumfield (not a party to this suit), under which the former was to advance merchandise at wholesale prices to the latter for resale at retail prices. Defendants bound themselves therein in solido as sureties to guarantee the payment by the principal of sums (up to a certain limit) due by him under said contract. It is alleged that under the terms of the contract merchandise was delivered to the dis-tfibutor in the total amount of $2,066.31, upon which payment was received only of $1,489.24, leaving a balance due of $577.07.

Although defendant sureties testified -that their agreement with plaintiff company, as explained by the plaintiff’s agent^ 'was to guarantee only payment of the 'first' $1,000 of purchases, the surety agreement signed' by them clearly provides only that their liability shall not exceed thesum of $1,000 under the agreement; It does not limit liability to the first thousand dollars’ worth of merchandise purchased by the principal under his distributorship.

Although the principal to the contract, Claude Brumfield, was discharged from the debt in bankruptcy, the Bankruptcy Act itself provides: “The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt”, 11 UjS.C.A. § 34. See also 6 Am.Jur. 1000, Verbo “Bankruptcy”, § 772.

The only substantial' question raised by this appeal is whether the plaintiff proved by competent evidence the alleged balance of the indebtedness due by Claude Brum-field, for which the defendants herein are liable as sureties.

The defendants themselves testified that any balance due on the contract did not exceed eighty cents. Claude Brumfield, the distributor and principal of the contract, did not remember what, if any, balance was due. Plaintiff’s field supervisor, A. K. Soileau, was called to verify the balance due under the contract; but with commendable frankness admitted to no personal knowledge whether the account as stated was correct and that his duties did not pertain to maintaining plaintiff’s books or records of purchases and payments. The District Court correctly held that this testimony was insufficient to prove the account.

However, we believe our learned brother -below erred in admitting into evidence over defendant’s objection and accepting as competent proof of the balance due, the schedule of debts filed in his bankruptcy proceedings by Claude Brumfield, who is not a party to this action. This schedule listed plaintiff as a creditor in the amount of $550.

“The filing of schedules by a bankrupt is an ex parte proceeding and binding on the bankrupt as an admission, but it is not res judicata, either as to creditors or the bankrupt, and the listing by the bankrupt of debts or property in the schedules is not binding on one not a party to the proceeding.”- 8 C.J.S., Bankruptcy, § 39, p. 463. See also 6 Am.Jur. 780, Verbo “Bankruptcy”, § 389.

Even a bankrupt himself was held not to have judicially admitted the validity of, or estopped himself to contest, two judgments listed on his schedule of debts in bankruptcy, King v. Pickett, 32 La.Ann 1006, wherein it was stated as to such listing, 32 La.Ann. 1007: “We regard this as merely descriptive of the claim against him. When a bankrupt knows of the existence of a claim against him, though he may believe it to be unfounded, prudence requires him to place it on his schedule to secure his discharge therefrom, and to give the claimant an opportunity of asserting whatever rights he may have against the estate.”

Further, as the chief purpose of the schedule of creditors and liabilities is to list the creditors entitled to notice of the proceedings, and somewhat to limit the discharge only as to those creditors with notice, “Accuracy is not so important in stating the amount of the delbt, its consideration, or when and where contracted,” Collier on Bankruptcy (12th Edition) 261; see 8 C.J.S., Bankruptcy, § 39, Subdivision Purpose, p. 463. The amount of a claim is determined not by its listing on the schedule prepared by the bankrupt debt- or, but by the proof of claim submitted by the creditor, 8 C.J.S., Bankruptcy, § 425, p. 1285. Such schedules therefore often reflect general rather than exact balances allegedly due, see above citations; cf. In re Stansbury, D.C.W.D.La., 97 F.Supp. 250; and especially third parties not involved in their preparation are not bound thereby.

The acts of a partner in listing certain obligations as partnership debts in a partnership bankruptcy proceeding were held not to bind another partner from denying in another proceeding that such debts were those of the partnership, and then proving such denial, when this latter partner took no part in preparing such schedules, Horner v. Hamner, 4 Cir., 249 F. 134, L.R.A. 1918E, 465. The listing of an obligation as due by the bankrupt on a schedule of debts by an “ex parte statement, without right of cross-examination, is not binding on the trustee or the other creditors”, In re Haynsworth, D.C., 34 F.2d 334, at page 337, affirmed on appeal as to this point, Jones v. Kendall, 4 Cir., 34 F.2d 344, at page 347.

Although the bankrupt’s 'debts as listed by him on his schedule of debts may be competent evidence against the bankrupt himself, or his trustee who stands in his shoes, for certain purposes, In re Weissman, 2 Cir., 19 F.2d 769, 53 A.L.R. 644, even as to the bankrupt himself it is not necessarily competent to prove correctness of items of an account listed for which recovery is sought in a subsequent action, Rossie v. Julius Levy & Sons Co., 145 Miss. 426, 110 So. 864.

We therefore do not believe that the bankruptcy schedule of debts prepared by Claude Brumfield was competent evidence to prove the outstanding balance due by Claude Brumfield in another and different proceeding against others than Qaude Brumfield.

Thus, we do not believe plaintiff has proved by competent evidence the amount of the balance due to it by Claude Brumfield, for which defendants herein are liable as sureties. However, we agree with the District Court’s determination that plaintiff has proved defendant’s liability for any valid balance outstanding against Brumfield.

Plaintiff sought unsuccessfully to verify the correctness of the stated account sued upon by testimony of A. K. Soileau. Admissibility of the substitute proof, the bankrupt’s schedule of debts, has been rejected on appeal. However, in reliance upon its erroneous admission below, plaintiff did not produce other and competent evidence of the balance of the debt, by continuance or otherwise. Under these circumstances, we think it appropriate to remand the case for the restricted purpose of permitting introduction of competent evidence as to the balance of the account due, if any, Art. 906, Code of Practice; Lavergne v. Indemnity Insurance Co., La.App. 1 Cir., 84 So.2d 617; Williams v. Fisher, La.App. 1 Cir., 79 So.2d 127.

For the foregoing reasons, it is therefore ordered that the judgment of District Court herein be set aside, and the cause remanded for the restricted purpose of receiving evidence as to the balance of the account due by Claude Brumfield, and for- further proceedings according to law. Costs of this appeal to be paid by plaintiff-appellee; all other costs to await final determination of these proceedings.

Affirmed in part; set aside in part and remanded for restricted purposes.

      . See 11 U.S.C.A. § 25, Annotations, note 24: “But as the chief purpose of the statute is that the creditors shall receive notice of the proceedings, the strict accuracy which is required in the statement of the names and addresses is relaxed in the description of the debt, though it has been held that the amount and consideration must be stated correctly. Steele v. Thalheimer (1005) 74 Ark. 516, 86 S.W. 305; Armstrong v. Sweeney (1905), 73 Neb. 775, 103 N.W. 436; Matter of David (1904), 44 Misc. 516, 90 N.Y.S. 85; Bernheim v. Bloch (1904), 45 Misc. 581, 91 N.Y.S. 40; Delta County Bank v. McGranahan (1905) 37 Wash. 307, 79 P. 796.”


author: PER CURIAM. DICKINSON, Associate Justice

text:
    Legatha B. WEST, Appellant, v. Willard W. WEST, Appellee.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
    Harry M. Hobbs, Tampa, for appellant.
    Lewis É. Purvis, Arcadia, for appellee.
   PER CURIAM.

Affirmed.

DREW, C. J., and TERRELL, THOMAS, ROBERTS and THORNAL, JJ., concur.

O’CONNELL, J., and DICKINSON, Associate Justice, dissent.

DICKINSON, Associate Justice

(dissenting).

This matter is here on appeal from a final decree granting a divorce to appellee husband, ordering him to pay appellant wife $25 per month alimony “during her disability”, and prescribing payment of attorneys’ fees and costs. The wife has appealed on the ground primarily that the amount of support is inadequate. The other assignments of error are inconsequential. The chancellor allowed the appellant $25 per month permanent alimony.

The testimony shows that this was a turbulent marriage lasting only a little over four years. The wife has grown children by a previous marriage. The husband earns approximately $335 per month. After the wife left the marital domicile she suffered an accident while she was working, as the result of which she and her doctors say she is permanently disabled. The Chancellor awarded her only $25 per month alimony. The testimony shows her doctors’ bills to be approximately $800 per year not considering anything for her living expenses.

I am cognizant of this Court’s ruling in Longino v. Longino, 67 So.2d 203, wherein it affirmed a ruling of the Chancellor denying alimony to the wife, but in that case the wife was not disabled. While the -husband may not have been responsible for the disability of the wife, nevertheless he is responsible for taking care of her. A marriage is for better or for worse. In this case had the Chancellor denied alimony en-. tirely it would have come with better taste,, but a mere pittance of $25 per month indicates to me that the Chancellor was following literally the Longino case rather than actually giving her an award based on her need and her husband’s ability. An ability, of $335 per month warrants an allowance of more than $25 a month, especially if the, wife is totally disabled. Hence I feel that the learned Chancellor erred in such a small. award.

Accordingly, I cannot agree with the majority opinion except insofar as it affirms the Chancellor on the divorce. I would reverse the decree as to the amount of support for the wife with directions to the Chancellor to take additional testimony as to her needs,, if necessary and her counsel so desires, and revise the amount necessary and award her an amount adequate for her support commensurate with her husband’s ability to pay. In all other respects I would affirm the decree.

O’CONNELL, J., concurs.


author: O’CONNELL, Justice.

text:
    SMITTY’S COFFEE SHOP and Great American Indemnity Company, Petitioners, v. FLORIDA INDUSTRIAL COMMISSION, Workmen’s Compensation Division, and Robert Forbes, Respondents.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.
    Rehearing Denied April 13, 1956.

      Wm. McHardy Berson of Sanders, Me-' Ewan & Berson, Orlando, for petitioners.
    Heskin A. Whittaker, Orlando, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   O’CONNELL, Justice.

This is a petition for certiorari to review an order of the Florida Industrial Commission.

Two questions are necessary to be considered when determining whether the petition should issue. First is as stated in the order of the Deputy Commissioner to which the petition is directed, “Is there a statutory basis for awarding compensation for an additional total disability period after the final award of temporary total and permanent partial disability compensation has been fully paid.”

The second question, as stated in order of the full Commission approving the order of the Deputy Commissioner, is as follows: “It appears to us that the primary question presented by the application for review is whether the employer and carrier are'entitled to credit against such compensation for temporary total disability any part of the compensation theretofore paid to the employee for permanent partial disability under an award which had long since become final.”

The pertinent facts are as follows:

The claimant, Robert Forbes, sustained a compensable injury to his left leg on August 30, 1951. A claim was filed after which the Deputy Commissioner, by order Rated July 30, 1952, found that the claimant had reached maximum medical recovery on May 26, 1952, that as a result of his said injury claimant has suffered permanent partial disability of 50% loss of use of his left leg, and that claimant would need further medical treatment and observation as long as he lived. By said order, which was affirmed by the full Commission and by this Court, the employer and carrier were ordered to pay the claimant compensation for 100 weeks at $27.60 per week, commencing May 26, 1952, in a lump sum, with discounts, and to furnish such further medical treatment as might be required by the injury. The carrier, after this order was affirmed by this Court, did in May 1954 comply with the order and pay the compensation to claimant in lump sum and continued to furnish medical treatment. On July 20, 1954, at the instance of the carrier an operation was performed on claimant’s injured leg. The carrier paid the cost of the operation and post-operative care, but paid no compensation to claimant for the period of disability following the operation.

Claimant filed a claim for the period of temporary total disability following the operation. The Deputy Commissioner treated the claim as being under the provisions of Section 440.28, Florida Statutes, F.S.A., and after a hearing on the claim issued an order dated March 30, 1955, in which he found among other things that: “In April of 1954 the employer/carrier placed claimant under the treatment of Dr. Robert Zellner of Orlando, Florida, who advised a further operation on. claimant’s leg. Claimant was employed up to the date of the operation, which was performed on July 20, 1954. Following the operation, claimant sustained a period of temporary total disability from July 20, 1954, through September 10, 1954, a period of seven weeks and four days. As the result of the operation, claimant’s left leg improved to such an extent that he is now suffering from a 10% permanent partial disability of the use of the left leg.”

The Deputy Commissioner in his order required the carrier to pay temporary total disability for a period of seven weeks and four days at the rate of $27.60 per week and to pay claimant’s attorney $75 for legal services.

Tire carrier contends that claimant did not make a showing of change of condition such as to entitle him to further compensation, and further that, even if claimant did make a showing of change of condition which would entitle him to temporary total disability, the employer and carrier were entitled to deduct from such unpaid compensation payments theretofore made in excess of the decreased rate from 50% to 10% disability of the left leg.

In determining the question as to whether an employee under such circumstances as found here would be entitled to payments for temporary total disability after a final award of permanent partial disability had been made, we believe that the Deputy Commissioner and the full Commission properly found that the claimant was entitled to such payments. The Act involved does not prohibit such awards. It defines the various classes of disability as being: (1) Permanent total; (2) Temporary total; (3) Temporary partial; and (4) Permanent partial. It does not prescribe that they must occur in any specific order. While this Court has not heretofore ruled on the exact question, we now subscribe to the view that an employee may be awarded compensation for temporary total disability after an award of permanent partial disability has been made for the same injury. The question was decided in the same manner in the case of Colbert v. Consolidated Laundry, 31 N.J. Super. 588, 107 A.2d 521.

The Deputy Commissioner made no mention in his order of the carrier’s claim for setoff or credit because of its overpayment for permanent partial disability, but the full Commission in affirming the order of the Deputy Commissioner did consider this question as indicated by that portion of the order quoted in the third paragraph of this opinion.

We feel that the full Commission decided the question properly. Under Section 440.-28, F.S., F.S.A., it is provided that the Commission may within specified time limits review a compensation case on application of either party or on its own motion and may issue a new compensation order. This section further provides that “ * * * Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the commission.” (Emphasis ours.)

We construe this section of the Act to mean that overpayment or excessive payment shall arise only when an award decreasing the compensation rate is made effective from the date of the injury or is made effective at a date prior to a date or dates on which payments were made at the rate set in the order modified.

In other words it must be determined that the compensation rate set initially was too large and that the payments made were in excess of the compensation to which the claimant was entitled. In the instant case it is not contended that the claimant had a disability of less than 50% of the use of his left leg during the period of 100 weeks following May 26, 1952, the period in which the permanent partial disability payments were to be made, nor did the Deputy Commissioner make any award decreasing the compensation rate effective during that period, it being obvious from the facts and the orders reviewed that the decrease in disability occurred after the period of 100 weeks from May 26, 1952.

It therefore appears that there was no overpayment.

For the reasons above cited certiorari is denied.

While it is not the practice of this Court to write an opinion in denying a petition for certiorari, it will do so in those cases where points are raised which have not been decided by this Court and on which points an opinion of this- Court would assist the bench, administrative agencies of the State, and the bar in the administration of justice. We feel that this is such a case.

DREW, C. J., and TERRELL and HOBSON, JJ., concur.


author: PER CURIAM.

text:
    Max ROSENBLUM, a/k/a Max A. Rosenblum, Appellant, v. Earmia A. TATHAM, Executrix of the Estate of Victor J. Tatham, Deceased, and Thomas L. Tatham, Attorney for the Estate of Victor J. Tatham, Deceased, Appellees.
    Supreme Court of Florida. Division A.
    March 14, 1956.
    Courshon & Fink, Miami Beach, for appellant.
    Joe Creel, Miami, for appellees.
   PER CURIAM.

This cause came on to be heard on the motion of appellees to affirm the judgment appealed from pursuant to Rule 38 of the Rules of this court, 30 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted, and the judgment is

Affirmed.

DREW, C. J., and TERRELL, HOBSON and THORNAL, JJ., concur.


author: THOMAS, Justice.

text:
    EGLIN VILLAGE, Inc., a corporation, Appellant, v. BARNETT NATIONAL BANK OF JACKSONVILLE, as Ancillary Administrator with the Will Annexed of the Estate of Algernon Blair, Deceased, Appellee.
    Supreme Court of Florida. Special Division B.
    March 14, 1956.

      Wm. Fisher, Jr., of Fisher & Hepner, Pensacola, for appellant.
    E. Dixie Beggs of Yonge, Beggs & Lane, Pensacola, for appellee.
   THOMAS, Justice.

The appellant has appealed from a summary judgment entered in favor of the ap-pellee, administrator with the will annexed of the estate of Algernon Blair.

The testator contracted with the appellant to construct houses in a project known as Eglin Village. The contract, so it was alleged, contained the general conditions compiled by the American Institute of Architects as well as “FHA Supplementary General Conditions.” It was alleged that certain defects in construction arising from faulty material or workmanship appeared within one year of substantial completion of the contract and required correction; that the contractor failed to remedy them; and that the reasonable cost of the repairs was $8,689.75. Claim was filed against the estate and the appellee objected to it, so this suit followed. A copy of the Supplementary General Conditions of Federal Housing Administration was made a part of the complaint, and the pertinent conditions prescribed by the American Institute of Architects were incorporated by amendment.

The defendant, now appellee, denied that any defects mentioned in the complaint were due to faulty material or workmanship or were ones the contractor was obligated to correct. As an affirmative defense, the appellee cited provisions in the Supplementary General Conditions of the Federal Housing Administration that the Administration should have the right to interpret the “Contract Documents and to determine compliance therewith,” and that all “items of construction and the exercise of any option, alternate or equivalent permitted by the Contract Documents, whether or not subject to approval by the Architect, shall be subject to prior approval and final acceptance by the FHA.” The appellee, in its affirmative defense, asserted that in accordance with these provisions the appellant submitted to F.H.A. the items upon which this suit was based for decision of the question whether they were defects resulting from faulty materials or workmanship appearing within one year after substantial completion, and F.H.A. determined that all the defects related to maintenance and none was the result of defective materials or poor workmanship.

The appellee later moved for summary judgment on the ground that it appeared from the pleadings, the deposition of the resident manager of Eglin Village, and the exhibits that no notice of defects was given to the contractor as was required by Article 21 of the “General Conditions” of the American Institute of Architects. The movant asserted that there was, therefore, no genuine issue of fact and, being none, the judge should dispose of the litigation on matters of law. The circuit judge after considering additional affidavits on the issue of waiver of the notice requirements in the contract, agreed and this appeal followed.

By Article 20 of the “General Conditions” of the American Institute of Architects the contractor was obligated to remedy defects appearing within one year after substantial completion of the work and the owner was required to “give notice of observed defects with reasonable promptness.”

Article 21, to which we have earlier referred carried the provision that if the contractor failed to prosecute the work properly or to meet his obligations under the contract, the owner, “after three days’ written notice to the Contractor” could correct deficiencies and deduct the cost from future payments, but this right of the owner was conditioned on approval by the architect both of the action and the amount of the charge.

The architect’s decision was subject to arbitration and it was agreed that the decision of arbitrators should be a “condition precedent to any right of legal action that either party [might] have against the other.” There is no need to explore this point further because there was no notice as a basis for decision of the architect, consequently there was no occasion for arbitration.

The appellant admits the failure to give notice and with admirable candor says that there is no genuine issue of fact as to that element, but he argues that there is a question of fact as to whether or not the contractor by suggesting that a different procedure be followed or by failing to object to the method of correction of defects by the appellant with the knowledge of the contractor’s superintendent waived the requirement of Article 21, and became es-topped.

How this issue could be said to have been introduced in the case, we do not understand. In the complaint the appellant ignored the provision of the agreement with reference to notice. The appellee moved to dismiss on the ground, among others, that there was no allegation in the complaint that notice was given. The appellant resisted the motion and prevailed at that hearing. Parenthetically, the appellee has filed a cross-assignment challenging the propriety of this ruling but we will not discuss and decide it because we think the ultimate decision was correct.

Considering together the stipulation in Article 21 with reference to notice and the decision of Federal Housing Administration, permitted under the F.H.A. Supplementary General Conditions, that the items related to maintenance and not construction, we conclude that the basic facts were not in doubt and that no relevant issue required the taking of testimony.

It was plain that notice should be given before defects could be corrected by the appellant and equally plain that the appellant could proceed only if that action was approved by the architect and that the eventual charge would be valid only when it, too, had the architect’s sanction. Even had these requirements been observed, the obstacle or interpretation by the F.H.A. against the appellant would remain. We have found nothing in the record to substantiate the assertion of waiver or estop-pel. There was no occasion for trial by a jury.

The judgment is affirmed.

DREW, C. ]'., ROBERTS, J„ and PATTERSON, Associate Justice, concur.


text:
    Minerva Ann COOPER and Van Cooper, her Husband, Appellants, v. ARROW CABS, Inc., a Florida Corporation, and Irving Saidman, Appellees.
    Supreme Court of Florida. Division B.
    March 7, 1956.
   PER CURIAM.

Affirmed.


text:
    Alfred D. GRIFFIN, Harry J. Griffin, Howard A. Griffin, Richard A. Griffin, Gerald J. Griffin, Ralph R. Hammer, and McLoyd Ranson, Appellants, v. Johnson Bruce GARLAND, Appellee.
    Supreme Court of Florida. Division B.
    March 9, 1956.
   PER CURIAM.

Affirmed.


text:
    Odie SMITH and Jack Smith, her Husband, Appellants, v. ARROW CABS, Inc., a Florida Corporation, and Irving Saidman, Appellees.
    Supreme Court of Florida. Division B.
    March 7, 1956.
   PER CURIAM.

Affirmed.


text:
    Maxine G. JOHNSON, Appellant, v. Robert I. JOHNSON, Appellee.
    Supreme Court of Florida. Division B.
    March 7, 1956.
   PER CURIAM.

Affirmed.


author: SIMON, Justice.

text:
    229 La. 611
    Luther A. WHITE v. Owen LOCKHART and Annie White.
    No. 42219.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      Jesse Hunter Inman, Baton Rouge, for appellant.
    George S. Womack, Baton Rouge, Erlo J. Durbin, Denham Springs, for defendant and defendant on call in warranty, appel-lees.
   SIMON, Justice.

Plaintiffs instituted this suit in the Twenty-first Judicial District Court for the Parish of Livingston against defendant, á resident of said parish, to recover 31.68% of the value of timber cut and removed by defendant from land located in East Baton Rouge Parish.

Defendant answered alleging title to said timber by virtue of an authentic act of sale from Mrs. Annie L. White and therein called her in warranty.

The warrantor filed exceptions (1) of want of “procedural capacity”, (2) of lack or want of interest, (3) of no cause or right of action, (4) of prescription, and (5) to the jurisdiction ratione materiae. On the trial of these exceptions the district court rendered judgment overruling the exception of want or lack of interest and the pleas of prescription, maintaining the remaining exceptions, and dismissing plaintiffs’ suit, reserving to them the right to bring an appropriate action in the Parish of East Baton Rouge, Louisiana.

Plaintiffs appeal from said judgment.

We note that the district court ruled on all exceptions filed, notwithstanding their varied natures. It is our considered opinion that the district court should have first passed on the exception to' the jurisdiction before considering the merits of any other exception. To proceed to try the merits of any other exception after sustaining the exception to the jurisdiction was manifest error.

In the case of Davis v. Arkansas Southern R. Co., 117 La. 320, 41 So. 587, we discussed the creation and classification of exceptions and declared that when the lawmaker in the Code of Practice established and classified exceptions of different kinds to be advanced at different stages of cases, and to be followed by announced consequences,'it was intended that they should be resorted to under the circumstances stated. Courts should see that each exception should be made to perform the function properly appertaining to it, and not be allowed to have another substituted for it, and thus be lost, merged, and confused.

Manifestly, the effect of the judgment sustaining the exception to the jurisdiction is that the action is defeated in the court in which it is filed, but with liberty to the plaintiffs to bring another suit in a proper forum.

In the case of Lavergne v. Roussel, 139 La. 915, 72 So. 453, 455, we held:

“ * * * Having maintained the defendants’ plea to his jurisdiction, the judge was without authority to render judgment on any other pleas or exceptions in the case.”

However, we are called upon to pass upon the correctness of the trial court’s judgment insofar as it maintains the plea to the jurisdiction. In the event of holding that the district court had jurisdiction, we shall also determine the correctness of the judgment maintaining the exceptions of want of “procedural capacity” and of no cause or right of action.

Petitioners allege that they are owners in indivisión of 31.68% of certain timber land having a net acreage of 75.32 situated in the Parish of East Baton Rouge and that defendant is the owner of the remaining 68.32% of said timber. They allege that the defendant is a resident of the Párish of Livingston; that he entered upon and cut timber from the entire tract of land for his own account, and that the aggregate value of the timber so cut and removed is the sum of $10,200.00; that the defendant was a trespasser in bad faith, thus entitling them to a money judgment in a sum equal to 31.-68% of $10,200.00, the manufactured value of said timber. • ■

It is to these.allegations that the warrantor filed the various exceptions and raised the question of title to the timber. The gravamen of warrantor’s plea to the jurisdiction is that the Twenty-first Judicial District Court of the Parish of Livingston cannot entertain the suit as to the subject matter, for the stated reason that plaintiffs have allegedly attempted to convert this matter from a suit in damages for timber cut to that of a petitory action, and that having so converted the suit to a petitory action the proper forum is in the parish where the property is situated or in the parish where the defendant resides.

The purpose of plaintiffs’ suit is clearly expressed in the allegations of the petition, which allegations, in disposing of the exceptions must be taken as true. In a cursory examination we find that this is a suit for damages for an alleged tortious act committed in the Parish of East Baton Rouge by the defendant, a resident of the Parish of Livingston, and we shall consider it as such.

It is a crystallized principle of law that the defendant must be sued before the judge having jurisdiction over his place of domicile or residence.

Article 162 of the Code of Practice declares :

“It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence, * *

Article 165 of the Code of Practice enumerates ten exceptions to the rule that a civil suit must be brought at the domicile of the defendant, the ninth exception being as follows:

“In all cases where any person, firm or domestic or foreign corporation shall commit trespass, or do anything for which an action for damage lies or where any domestic or foreign corporation shall fail to do anything for which an action for damage lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicil of such person, firm or corporation.”

In interpreting Paragraph 9 of Article 165 of the Code of Practice, we said:

“The word ‘trespass,’ as used in the ninth paragraph of article 165 of- the Code of Practice, is used in its broad sense of committing any wrongful act that injures another, and not in the technical sense of committing a trespass upon the property of another. State ex rel. Morgan’s La. & L. R. & S. S. Co. v. Judge, 33 La.Ann. 954, 955; Heirs of Gossin v. Williams et al., 36 La.Ann. 186, 187; St. Julien v. Morgan’s La. & T. R. & S. S. Co., 39 La.Ann. 1063, 1064, 3 So. 280; Caldwell v. Vicksburg, S. & P. R. Co., 40 La.Ann. 753, 754, 5 So. 17.” Tripani v. Meraux, 184 La. 66, 165 So. 453, 456.

In the case at bar, under the clear provisions of our law and jurisprudence, the district court in which this suit was filed has jurisdiction to hear and determine the merits of plaintiffs’ claim for damages against the defendant herein. Accordingly, the exceptions to" the jurisdiction ratione materiae should have been overruled.

The warrantor’s exception of want of “procedural capacity” arises out of her contention that since this is not a petitory action, plaintiffs are without the necessary capacity to institute and prosecute this action, or to stand in judgment therein. This exception is further based on the complaint that neither plaintiff Luther A. White nor any of his co-heirs (co-petitioners) signed the petition, and that plaintiffs failed to annex thereto a power of attorney or other instrument authorizing them to institute this suit for and in behalf of their co-heirs.

■ The preamble of plaintiffs’ petition reads as follows: ■

“The petition of Luther A. White, individually, and on behalf of his co-heirs Curtis White, Allen White, Mrs. Mary Lee Beard, Everette White and David White respectively show: ”

The first several paragraphs allege that petitioners 'are the children of Green B. White, who died in 1921 possessed of only the property herein involved; that the Succession of Green B. White, bearing probate No. 8257 of the docket of the Nineteenth Judicial District Court, Parish of East Baton Rouge, was opened on August 11, 1953; that - Mrs. - Annie Smith White, surviving widow and third wife of decedent, was gratuitously permitted to occupy said property to the date petitioners were recognized as heirs of decedent and as such entitled to be. sent into possession as owners in indivi-sión in the following proportions:

The contention that plaintiff Luther A. White is without capacity to prosecute this claim and stand in judgment therefor is without 'merit. He brings this action as an owner in indivisión to' recover his proportionate interest of the manufactured value of the timber cut and removed, in addition to the proportionate interests of his coheirs,'as above stated.

Plaintiff Luther A. White’s right to institute suit for the recovery of damages as ah undivided co-owner for himself and for the benefit of his co-owners is authorized by our law. Pearson v. Grice, 6 La. Ann. 232; Becnel v. Waguespack, 40 La. Ann. 109, 3 So. 536; Richardson v. Posey, 120 La. 223, 45 So. 111.

The complaint that the petition was not signed by any of the plaintiffs is equally without merit It was signed and duly verified by counsel for plaintiffs and consequently falls within the permissive authority granted under the provisions of LSA-R.S. 13:3601.

The exception of no cause or right of action is based on the contention that plaintiffs do not own 'and are without title to the property described in Paragraph 2 of said petition. Warrantor’s attempt to raise the issue of title by way of exception of no cause or right of action is unwarranted by law. Such exception must be disposed of on the face of the petition. The question of title is one which must be resolved in a hearing on the merits. These principles are so' well recognized in our law that citation of authorities would be biir-densome. ’

In disposing of this exception, we conclude that the allegations contained in plaintiffs’ petition clearly set forth a justiciable right or cause of action.

Accordingly, for the reasons assigned, the judgment of the district court insofar as it maintained the. exceptions of lack of procedural capacity, of no right or cause of action and" to the jurisdiction ratione. mate-riae is hereby reversed, annulled and- set aside, and said exceptions are overruled.

It is now ordered that this case be remanded to the Twenty-first Judicial District Court for further proceedings in accordance with law and not inconsistent with the views herein expressed.

FOURNET, C. J., absent

HAMITER, J., concurs in the decree.


author: ' JANVIER, Judge.

text:
    Rhea L. ALANA v. David V. BURNSTEIN et al.
    No. 20077.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    C. Cyril Broussard, New Orleans, for plaintiff-appellant.
    David Gertler & Jesse S. Guillot and Jesse S. Guillot, New Orleans, for defendants-appellees.
   ' JANVIER, Judge.

Miss Rhea L. Alana, a saleswoman who, at the time of the accident on which this suit is based, was in the employ of a store known as “Maxine’s”, owned by David V. Burnstein and Joseph Burnstein, brought this suit for damages against the former and against the widow of the latter whose husband, Joseph Burnstein, had died, alleging that while in the performance of her duties in the store she “slipped, and fell” and sustained physical injuries as the result of the condition of the floor which, at the time, “had either an oiled, soapy or slippery substance on the surface.” She prayed for solidary judgment against the two defendants in the sum of $10,500 and, in the alternative that it appear that her recovery should be under the Louisiana Workmens Compensation laws, she prayed for judgment for $19.50 per week fo-r. a period not in excess of 400 weeks and for $500 for medical expenses.

The defendants, admitting that at the -titne of'the-occurrence plaintiff was in the employ of the partnership which operated the store, averred that there was no substance on the floor which could cause the plaintiff to slip, and that the fall of plaintiff '“was’ caused by her own carelessness or physical condition!” Defendants denied that plaintiff was entitled to compensation, averring that“tv®r employment .did not .require her to perform any hazardous work.” ,

From a judgment dismissing her suit plaintiff has appealed.

The record shows that plaintiff was a "stout woman about 55 years of age at the time df the! accident !and that she “walked with a limp” and also 'that since-she found it difficult to go- over inclines or' to climb stairs because of her physical impairment, she and her family thought it advisable to always' have someone accompany her to and from her work.

It further appears that the accident occurred on a Thursday afternoon and that the floor had been cleaned with a floor cleaner some days before the occurrence, probably on the preceding Saturday night and that, during the ■ several days which intervened between the cleaning of the floor and the fall of plaintiff, many customers had passed over the very spot at which the accident occurred.

The record leaves, no doubt that the cleaner which was used contained no soap and all .of the witnesses who testified on behalf of defendants stated that there was nothing slippery about the floor and that the cleaning substance left no slippery residue.

The plaintiff had sustained a fall some 22 or 23 years prior to the time at which this accident occurred and, .as a result, walked with a slight limp.

As a matter of fact, the evidence offered on behalf of plaintiff fails to' show that there wás anything slippery 'about the floor. All that she and her witnesses were able to testify to was that the “floor looked slippery” and that its condition was “different.” When asked what caused her to slip, she answered:

“Well, the floor was .* * * I can’t say if it was waxed or if it was oil, but it had never been that way before. The day before they had oiled it, and I was home, sick.”

As a matter of fact, the record leaves no doubt at all that it had not been oiled at any time and that the cleaning had taken place certainly several days before and that plaintiff herself had been home not only the day before but for several days.

Plaintiff’s niece who came for her after the accident was' asked whether she had seen any oil on the floor and she answered, “No.” She was asked whether she had seen any wax and she answered, “I don’t know,” and, when pressed for an answer as to whether there had been any wax, she said, “No, sir.”

Seldom do we find a case in which the facts are so nearly identical as the facts here are with those which we discussed in Hays v. Maison Blanche Co., La.App., 30 So.2d 225, 227. There a customer slipped on the floor. It was contended that merely as a result of the slip, by the doctrine of res ipsa loquitur, the burden was placed upon the defendant to show that there was no negligence on its part. We said:

“The law is well settled that the doctrine of res ipsa loquitur does not apply to a storekeeper, and his obligation to his customers and invitees is to use ordinary care to keep the aisles, passageways and floors of his premises in a reasonably safe condition. Powell v. [L.] Feibleman & Co., Inc., La.App., 187 So. 130; Bartell v. Serio, La.App., 180 So. 460; Battles v. Wellan, La. App., 195 So. 663; Greeves v. S. H. Kress & Co., La.App., 198 So. 171; Lawson v. D. H. Holmes Co., La.App., 200 So. 163; Joynes v. Valloft & Dreaux, Inc., La.App., 1 So.2d 108; Relf v. Aetna Casualty & Surety Co., La.App., 1 So.2d 345.”

We followed this with this statement:

“In the case before us there is no proof that there was any grease, soap, water or other foreign substance on the floor at the spot where plaintiff fell.”

There, as here, “several employees * * * testified that * * * they made an examination of the floor but -did not discover anything thereon which might have caused plaintiff to fall.”

In that case we said:

“We are unaware of any case in which the operator of a store has been held liable for accidental injuries to a customer without proof of negligence based on some act of commission or omission on the part of the store operator. Plaintiff has not made out her case, as there is no proof in the record even remotely indicating that there was any foreign substance'located upon the floor such as would have caused her unfortunate accident. * * * ”

If there was no liability there, surely there is none here, for here in addition to the failure of plaintiff to show with the slightest certainty that there was any foreign substance on the floor, there is the additional evidence which indicates that without any doubt at all plaintiff fell because of her unfortunate physical condition.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: HAWTHORNE, Justice.

text:
    229 La. 622
    STATE of Louisiana v. Alex WILLIAMS.
    No. 42678.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    John P. Dowling, New Orleans, for appellant. ■
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Aubert D. Talbot,, Dist. Atty., Napoleonville, Charles S. Bec-nel, Asst. Dist. Atty., Vacherie, for appellee..
   HAWTHORNE, Justice.

Alex ■ Williams, found guilty of simple battery, was sentenced to one year in the-parish prison. He has appealed.

Appellant in this case was tried in the-Twenty-third Judicial District Court for the Parish of St. James before Judge Clyde V. St. Amant. Before trial appellant filed a motion for recusation of Judge St. Amant,. which was overruled. To this ruling he reserved and perfected a bill of exception upon which he relies for reversal of his conviction and sentence.

The record discloses that Judge St. Amant signed a restraining order and a rule-nisi for a preliminary injunction in Colonial Sugars Company v. Arthur Arceneaux et al., a civil suit, No. 8289 on the docket of the Twenty-third Judicial- District Court. Judge St. Amant did not try the rule nisi,, which was argued before another judge assigned to that district by this court. In his motion for recusation appellant alleges that the information in the instant case was founded upon the same allegations as those in a paragraph of- the petition in Colonial Sugars Co. v. Arthur Arceneaux, supra, in which Colonial Sugars was seeking a temporary restraining order against the members of a labor union. Although it is not made clear in appellant’s motion, he was apparently a member of this union at the time of the injunction suit, b.ut was not a named defendant in that suit. Appellant contends that these facts were sufficient cause for recusation of the trial judge under the provisions of Paragraph 5 of Article 303 of the Code of Criminal Procedure, R.S. 15 :303, which reads:

“The causes for which any judge in any. criminal case shall be recused, shall be as follows:
******
“(5) His having performed any judicial act in the cause in any other court.”

This contention isilLfóunded.

Of course the signing of the restraining order and rule nisi in the Colonial Sugars case was a judicial act by Judge St. Amant. However, to-be grounds for recusation under Article 303(5) 'the judicial áct-must be in the same ,cause in some other . court. That Colonial Sugars Co. v. Arthur Arceneaux and State v. Williams are not the same cause is obvious. Moreover, the instant case" was tried in the same court as Colonial Sugars Company v. Arthur Arceneaux, and thus.two of the three requirements of Article 303(5) are lacking.

Under the provisions of Article 7, Section 35, of the Louisiana Constitution, the district courts throughout the state (the Parish of Orleans excepted) have jurisdiction of both civil and criminal matters," but it does not follow- that a district court is two courts instead of one simply because it has jurisdiction of both civil and criminal" matters. The- Twenty-third Judicial District Court is only one court. -

It is clear -that the signing of the orders in the civil suit was not a judicial act “in the cause in any other court”. See State v. Yokum, 155 La. 846, 99 So. 621.

The conviction and sentence are affirmed.

      . In State v. Tanner, 224 La. 374, 69 So.2d 505, decided in .1953, this court evidently overlooked the fact that Paragraph 5 of ’Article 303 of "the Code of Criminal Procedure, which formerly read “(5) His having rendered definitive judgment in the cause in any other court”, was changed to read as- quoted, above-when- it was incorporated in the Revised Statutes of 1950. -


text:
    Clifton NEWMAN v. FIDELITY MUTUAL INSURANCE COMPANY.
    No. 4139.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      Navarre & Ryder, Oberlin, for appellant.
    Plauche & Plauche, Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a tort action instituted by Clifton Newman against the Fidelity Mutual Insurance Company, for damages resulting from an accident which occurred : in the City of Lake Charles on December 29, 1953.

The petition alleges that on the day :of the accident the petitioner, while a guest in a 1952 Pontiac automobile owned by one Dalton J. Breaux, suffered a -fractured arm and other injuries when the car door on the right front side suddenly opened and he was'thrown from the vehicle. Negligence is charged against the car owner, Breaux, in failing to warn petitioner of the defective condition of the door when he had full knowledge of same, in driving at a high rafe of speed in reverse gear, in suddenly and violently applying his brakes and in failing to check the right front door when he knew of its defective condition and that plaintiff would be seated' near same. It is set forth that Breaux had in effect at the time of the accident a policy of-insurance whereby, defendant insurance company agreed to pay all damages up to the amount of $5,000 caused by tire, negligence of Breaux or anyone . using the vehicle with his permission .pjus medical payments up to $500 per person injured in the vehicle. The prayer is for damages for loss of earnings, medical expenses, disability and pain and suffering in. tiie .total amount of $5,500.

Following the filing of an exception of vagueness the plaintiff amended his petition alleging that he was informed by defendant’s insured after the accident that the right front door of the vehicle' was defective and would open; after having been properly closed, without the application of any pressure to the door handlés and that while he believed the door to be defective he did not have the technical knowledge so as to be' able to - name the specific mechanical defects which existed. ’ In addition he re-itemized and particularized his damages and alleged that as the failure of defendant to pay medical expenses was arbitrary and capricious he was, under LSA-R.S. 22:65S, entitled to attorney fees and penalties as therein provided.

The defendant’s answer is in the form of' a general denial and, in addition, the following alternative defenses are urged:

..(1). That the policy of-liability insurance sued upon had been rendered null and-void, by the insured, Dalton Breaux, in-that he violated, that certain clause in the policy. requiring that he co-operate with' the defendant at all times with respect to accidents and claims arising out of the policy.

(2) That the door in question was in excellent condition and was inadvertently opened by plaintiff himself who was leaning against same.

(3) That if in fact a defect did exist in the door, it was hidden to Breaux and unknown to him.

(4) That the plaintiff was contributorily negligent in not closing the.door properly and in leaning against same.

During trial in the court below defendant’s counsel admitted medical expense liability in the amount of $500 and judgment was rendered against it in said amount together with the sum of $150 for attorney fees, or a total of $650 and costs. Plaintiff’s claim for damages for personal injuries, loss of earnings, disability and pain and suffering was disallowed. The matter is now before us on a devolutive appeal taken by the plaintiff. The defendant has answered the appeal seeking that the judgment be reversed insofar as it awards attorney .fees, on the ground that same were not prayed for in either the original or supplemental petition.

The record discloses that there were three witnesses who saw the accident — the plaintiff, Dalton J. Breaux, the former’s brother-in-law, and Mrs. Dalton J. Breaux, plaintiff’s sister. An analysis of the testimony of those who took the stand discloses the following version of how the accident occurred:

According to Newman, just before the accident he was seated on the right hand side of the front seat of Breaux’s 1952 Pontiac some four to six inches from the door. Neither his arm nor any part of his body was touching the door. He had previously ridden in the car and the door had never opened. On cross examination he testified that he had never told anyone he had leaned on the door. He testified at one point that he did not remember discussing the matter with an adjuster, but then stated that he did recall going to the office of the W. L. Gaynor Claims Adjuster Service and telling an adjuster there all about the accident. He further stated that he did not remember telling the adjuster he had been leaning against the door and denied that such was a fact. Dalton J. Breaux and he discussed the matter shortly after the accident and Breaux told him that the door had opened with his wife before. Breaux did not, however, tell him how many times this had happened.

Mrs. Breaux stated that she was standing in her front door at the time of the accident and saw its occurrence. While she did not know what caused the door to open, it had opened when she was in the car on previous occasions. This witness declared that the door had opened on her twice, at intervals of about one month apart, the last time having been three or four months before the plaintiff’s accident. The door was finally fixed by her husband some time after the accident.

Dalton J. Breaux, the remaining person who was present when the accident happened, was not called to the stand by counsel for plaintiff. Counsel for defendant, who had had this witness summoned, sought permission to call him under cross examination as a hostile witness. His request was disallowed with the result that he never testified during the trial of the case.

The trial judge stated orally that while he thought the plaintiff entitled to the sum of $500 for medical payments that he would not allow damages for loss of earnings, disability or pain and suffering as the plaintiff’s testimony had been impeached on many scores and on account of the presumption arising against him for the failure of the only other eyewitness to the accident, his brother-in-law, to take the stand. The trial judge further stated that he felt plaintiff had failed to make out his case with that degree of certainty required by law and further that he was guilty of negli-fence' himself such as to bar recovery.

The record fully substantiates the trial judge’s observation to the effect that the plaintiff was impeached on several counts. Briefly, they are as follows:

(1) As stated previously, during the trial of the case the plaintiff denied that he was leaning on the right front door of the car or touching it in any manner when it flew open. However, in a statement taken by an insurance adjuster named Hon Ellis, the plaintiff stated:

“ * * * I had got in the car and closed the door myself. As far as I could tell, the door was closed good. I had been leaning against it when it flew open. * * * ”

While it is true that this statement was not signed by Newman, the adjuster testified that the plaintiff had read it over and said it was true but that he did not want to sign it because “someone told him not to sign anything.”

(2) Sometime after the accident Newman worked one day for the Coastal Water Well Company of Welsh, Louisiana. He denied that in seeking this employment he used the assumed name of “Jack Kelly.” However, James Osterlin and Ralph V. McGowen, both officials of the company, testified that Newman, when seeking the employment, introduced himself as “Jack Kelly” and allowed himself to be referred to under such name.

(3) In the discovery deposition taken of Newman by defendant’s counsel he stated that he was discharged by Coastal Water Well Service because of his arm. Then, during the trial of the case. he reversed himself completely and stated that he was discharged “because of the name.”

In view of the above and foregoing it is apparent that the trial judge was eminently correct in concluding that the plaintiff’s testimony is not worthy of belief.

In regard to the testimony of Mrs. Breaux, we note in same where she states that she was standing at the front door of their residence while her husband and her brother were backing out of the driveway. She specifically stated that her brother was not leaning against the door of the car. How she could tell this when the car was backing from the driveway is questionable in our opinion,- but she appeared to be eager in her testimony to help her brother by her unresponsive answers to direct questions. Except to say that the door had opened with her three or four months previously, Mrs. Breaux could give no details as to where or how or when and under what circumstances the said door had opened. It appears to us that she should have been able to provide some of the details of those incidents. The Lower Court appears to have given small credence to her testimony.

The Lower Court in holding for the defendant except for the medical payments, stated that plaintiff had failed to make out its case with that certainty required by law. It stated:

“The only other eye witness to the accident in the opinion of the Court was Dalton J. Breaux, brother-in-law of the plaintiff, who is present in Court this day but has failed to testify. The law presumes that his failure to testify would be against plaintiff’s right in this case.”

Dalton J. Breaux, of course, is the insured of the defendant, and ordinarily, it would be defendant’s duty to call him. However, under the circumstances that prevailed in this case, we are of the opinion that defendant was justified in not so doing while plaintiff must bear the stigma of his failure to call Breaux. Some time after the accident ' the insurance company’s adjuster interviewed Dalton Breaux at his home, and in this interview the adjuster elicited the information from him that the door had never come open before this particular occasion. A written statement to that effect was made to the insurance company. However, some two weeks later the insurance adjuster contacted Mr. Breaux and he gave a different story entirely to the effect that the right front door of the car had come open two or three times before with his wife. Thus in Breaux’s first statement, he stated that the door had never come open before and only two weeks later he told a directly contrary story. According to the adjuster, Mr. Breaux’s explanation for the change of statement was that Mr. Breaux had forgotten about the incidents. The adjuster stated that when he obtained the first statement from ■ Mr. 'Breaux, Mr. •Breaux was very cooperative, but at the time the second statement was taken, the adjuster stated that Mr. Breaux “was very reticent, wouldn’t hardly discuss it.” The defendant, being confronted with this type of witness as their insured, moved to call 'Breaux as a hostile witness on cross examination. The trial Judge denied this request however. We think.,the defendant has proved a justifiable reason for not calling Breaux as a witness vouching for his credibility.

Plaintiff, on the other hand, had no such excuse for failing to call Mr. Breaux. Mr. Breaux presumably knew all of the alleged occasions in which the door of his car had come open with his wife riding in it. He had heard her. testify that she did not know when or where this had taken place. Breaux also heard the adjuster testify on the two conflicting statements. If plaintiff wanted to prove that the car door was defective on earlier occasions, we are of the opinion that he should have called Mr. Breaux.

.We are of the opinion that this situation was very much similar to a situation which arose in the case of Stewart v. Herrin Transportation Company, La.App., 37 So.2d 30, 36. In that case Mr.' and Mrs. Frank Robbins were witnesses to the accident involved. For very important reasons, defendant did not take the. testimony of the Robbins and explained why they had not done, so. The record reflects that the Robbins had threatened defendant’s counsel with unfavorable testimony unless he •yvas paid .a substantial amount to testify. In this,connection the Court stated:

•" “Counsel for defendants strenuously and', we believe, ‘ properly offered to prove the1 reason-that he1 had not obtained the testimony of Robbins and his wife. Counsel for plaintiffs just as strenuously objected throughout the-' record'tó defendants’ offering; yet made ! no offering nor gave any reason as to why plaintiff had not secured or attempted to secure the testimony of Robbins and his wife. The record contains sufficient to exonerate the defendants for not attempting to take the testimony of Frank Robbins or his wife. Therefore, such failure on the part of defendant cannot be construed against them. However, we believe that the failure of the plaintiff to attempt to secure the testimony of Robbins and his wife, or to offer a valid reason for not so doing should be taken into consideration, and the Court would be justified in presuming that the testimony of Robbins and his wife ■would have been unfavorable to plaintiff. * * * ”

See also the case of Chapman v. Travelers Indemnity Company, La.App., 45 So.2d 557.

In view of the fact that Mrs. Breaux’s testimony is not sufficient to prove the condition of the car with that certainty as is required bjf law, coupled with the failure of plaintiff to have Mr. Breaux to testify, it logically follows that the plaintiff has failed to prove his case by a preponderance of the evidence and we cannot ■say that.the Lower Court was manifestly erroneous.

The only question remaining'concerns the award for attorney fees and 12% penalty. As stated previously, while the allegation was made in the supplemental petition that plaintiff was entitled to the penalties and attorney fees provided in LSA-R.S. 22:658, the defendant answered the appeal stating that as they were not prayed for in either the original or supplemental petition, they should not be awarded. We note, however, in plaintiff’s supplemental petition that he closes his prayer with a plea- “for all general and equitable relief.” We think the answer to this problem is well settled in the jurisprudence of this state and we quote with approval what Justice Brunot stated in the case of Le Goaster v. Lafon Asylum, 159 La. 855, 106 So. 329, 330:

“Appellants contend that they prayed for an injunction only, and therefore no other issue was before the court. The prayer of their petition concludes with the words ‘and for' general and equitable relief.’ The purpose of a suit and the matters in dispute are to be ascertained from the averments of the petition in conjunction with the prayer, and, where there is a prayer for general relief, the court may act on the averments.
“‘The object or purpose of a suit or the matter in dispute should be determined not by the prayer of the petition alone, but from the body of the petition in conjunction with the prayer.
“ ‘Even if the prayer does not ask in plain terms the decree that the allegations of the petition would clearly warrant, such omission will not prejudice the petitioner’s right to recover on the averments of his petition, where they are sufficient to sustain the proper action and decree, and there is a prayer for general relief.’ State ex rel. Levet v. Lapeyrollerie, 38 La.Ann. [912] 913.
“This has been the rule in Louisiana.
As far back as 1834 this court held that—
“ ‘The prayer for general relief will enable the Supreme Court to examine the case on its merits.’ Gottschalk v. De la Rosa, 6 La. 219.
“In later cases the court said:
“ ‘While plaintiff may not be entitled to the specific relief prayed for, his prayer for general relief authorizes all ordinary decrees which the pleadings and evidence may justify.’ Stark v. Howcott, 118 La. 489, 43 So. 61.
‘A prayer for general relief authorizes all ordinary decrees which the pleadings and evidence may justify.’ Legier v. Braughn, 123 La. 463, 49 So. 22; Kinder v. Scharff, 125 La. 594, 51 So. 654.”

See also Stanga v. Lake Superior Piling Co. 214 La. 237, 36 So.2d 778.

As stated previously defendant’s counsel admitted medical expense liability in the amount of $500. There is no question that a demand for the payment of same was made against the insurance company. A copy of the insurance policy in question was filed in the record and we note in Section 10 under Conditions the following:

“10. Medical Reports; Proof and Payment of Claim — Coverage C:
“As soon as practicable the injured person or someone on his behalf shall give to the company written proof of. claim, under oath if required, and shall, after each- request from the company, execute authorization to enable the company to obtain medical reports and copies of records. The injured person shall submit, to physical examination, by physicians selected by the company when and as often as the company may , reasonably require.
“The company may pay .the injured person or any person or organization rendering the services and such payment shall reduce the amount páyable hereunder for such injury. Payment hereunder shall not constitute admission of liability of the insured or, except hereunder, of the company.”

We believe that LSA-R.S. 22:658 is the applicable statute in regards to penalties and attorney fees for medical payment insurance found in automobile combination policies as was stated in the case of Wagner v. Hartford Accident & Indemnity Co., La. App., 81 So.2d 580. Said LSA-R.S. 22:658 provides as follows:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 above shall pay the amount of any claim due any insured within sixty days after receipt of satisfactory proofs of loss from the insured or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefore when such failure is found to be arbitrary, capricious or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twelve per cent damages on the total amount of the loss, payable to the insured, together with all reasonable attorney’s fees for the prosecution and collection of such loss.”

The record before us is absolutely devoid of any evidence to the effect that the insurance company requested of plaintiff to furnish written proof of claim under oath nor was plaintiff ever requested to execute authorization to enable the company to obtain medical reports and copies of same for the doctors treating and attending to plaintiff. Therefore under the circumstances we are of the opinion that plaintiff has complied with all of the provisions as provided in the insurance policy and that the action of the defendant under the circumstances was arbitrary, capricious and without probable cause in so far as the medical payments provision of said policy. See Sims v. National Casualty Company, La.App., 43 So.2d 26. Therefore under those circumstances we are of the opinion that plaintiff is entitled to the 12% penalty and to the $150 attorney’s fees as granted by the Lower Court. The bulk of the record is made up in attempting to prove plaintiff’s tort claim and not the claim due under the medical payments provision of the policy and for that' reason we think that the $150 attorney’s fee awarded by the Lower Court is adequate.

For the reasons assigned, the Judgment appealed from should be amended so as to include the 12% penalties as provided in the statute and in all other respects the same is affirmed.

Judgment amended and as amended affirmed.


author: McBRIDE, Judge.

text:
    CITY OF NEW ORLEANS v. Francis A. WILLIAMS.
    No. 20717.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.

      Frank P. Krieger, New Orleans, for defendant and appellant.
    Henry B. Curtis, City Atty., and Posey R. Bowers, Asst. City Atty., New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

The sole question presented by this appeal is whether defendant is entitled to have the case tried by a jury. The suit was. brought by the City of New Orleans under art. 305 of Sec. 1 of Ordinance 17,525, C.C.S. (the Building Code of the City of New Orleans), which makes it incumbent upon an owner to keep his building in a safe and sound'condition. The City alleges that the structure bearing Municipal Nos. 626 to 628 Mande-ville Street is in a dilapidated condition, is hazardous, and is unsafe for human occupancy and it prays for a mandatory injunction against the owner, Francis A. Williams, compelling him to repair the building, or upon his failure to do so, to demolish it or .cause the same to be demolished. The City further prayed for an order on defendant to show cause why he should not be prohibited from occupying or permitting said building to be occupied until it has been repaired so as to render it safe. Thereupon a rule was issued ordering defendant to show cause why an injunction should not be issued as prayed for in the petition. This rule was made returnable on March 11, 1955.

On the return day of the rulé Williams made no appearance and the judge issued a preliminary injunction restraining him from occupying or permitting the building to be occupied until the necessary repairs are made.

Subsequently, in a supplemental and amended petition the City prayed for a mandatory injunction ordering and directing that the defendant repair the building or demolish it, or that alternatively, the City be given the right to have the building demolished at defendant’s cost. Williams was regularly cited to appear and make answer to this supplemental and amended petition.

The defendant then made appearance and answered, both petitions setting forth various defenses which need not be discussed, and prayed that the case be tried by a jury. The judge below summarily refused to issue the necessary order for jury trial and the defendant has taken this appeal from such refusal. There is no question of defendant’s right to the appeal. Wilson Sporting Goods Co. v. Alwes, La.App., 17 So.2d 382. The record does not affirmatively show that the Supreme Court has appellate jurisdiction and the appeal was properly taken to this court. See State v. Cook, 197 La. 1027, 3 So.2d 114.

A litigant’s right to have his case tried by a jury flows from the provisions of art. VII, Sec. 41, Const. 1921, LSA which niandates the Legislature to enact laws providing for the election and drawing of jurors for the trial of both civil and criminal oases. But nowhere does the Constitution define just what is the province of juries in civil cases and it follows that the Legislature .is vested with that right. See City Bank of New Orleans v. Banks, 1 La.Ann. 418. We know of no statutory provisions in Louisiana setting forth in what particular types of civil actions the parties may demand a trial by jury and the only law which in anywise bears upon this subject matter is C.P. art. 494, which reads :

“The plaintiff who wishes for a jury must pray for the same, either in his original petition, or by a supplemental petition, which must be presented before the suit be set for trial; provided, that all suits against makers and in-dorsers of promissory notes, drawers, indorsers and acceptors of bills of exchange, and generally all suits brought on unconditional obligations to pay a specific sum of money, shall be tried' without a jury, unless the defendant' shall' make oath that his signature to said note, or other obligation, is not genuine, or that he expects to prove that the same had been obtained through fraud or error, or want or failure of consideration, or in cases where the defendant in his answer may set up a plea of compensation or reconvention, and make' oath to the truth of all the allegations in said plea or answer.”

Under the terms of C.P. art. 495, the defendant may avail himself of the same privilege as the plaintiff and pray in his answer for a jury trial provided it be done previous , to the suit being set down for trial.

The exception contained in C.P. art. 494, “that all suits against makers and indorsers of promissory notes, drawers, indorsers and acceptors of bills of exchange, and generally all suits brought on unconditional obligations to pay a specific sum of money” shall be tried without a jury, is not the sole exception for in the Code of Practice there are provisions to the effect that oases which are to be tried in a summary manner, save in cases in which the right to hold or exercise a public office or franchise is involved, are to be decided without the intervention of a jury. C.P. arts. 97, 98, 756 and 757. The Supreme Court excepted still another type of case from the province of a jury trial. In Bickham v. Pitts, 185 La. 930, 171 So. 80, the Court declined to order a jury trial in a partition suit for the reason that the Court believed that a jury of laymen would not be competent to pass upon the issues necessarily involved in partition suits. In Love v. Banks, 3 La. 480, the Court said that the only difference it could gather between the summary and the ordinary trial is that the former need not await its regular term on the docket, but that any, and an early date, may be selected and that a jury is not required. In Palmer v. Palmer, Woolf & Gray, 183 La. 458, 164 So. 245, it was held that a suit by which the liquidation of a partnership was sought was a summary proceeding triable without a jury.

To be included among those matters which are to be heard in a summary manner are cases where the debtor by injunction arrests the sale of a thing seized and no security is required to be given. No jury trial may be had in these. See C.P. arts. 739, 740, 741. King v. Gayoso, 8 Mart.,N.S., 370; Dabbs v. Hemken, 3 Rob. 123; Amacker v. Smith, Harris & Co., 16 La.Ann. 361; McCracken v. Wells, 26 La.Ann. 31.

In Lea v. Orleans Parish School Board, 228 La. 987, 84 So.2d 610, it was held there could be no jury trial in a suit brought under the provisions of the Teachers Tenure Law, LSA-R.S. 17:462, because that statute by vesting in the court the right to conduct a. full hearing to review the action of the school board with the corresponding right to affirm or reverse the action of the -said board, necessarily indicates the legislative .intent that a district judge of a court of competent jurisdiction would be the sole arbiter in the re-examination of the action taken by the school board and to thereby either reverse or affirm said action.

The usual suit for an injunction is not by its nature a summary proceeding which must be tried and adjudicated by the court without the intervention of a jury. We are not cognizant of any statutory provision or jurisprudence which places suits for injunction in the category of summary proceedings, except when the injunction is granted in arrest of the sale of the thing seized and is issued without bond. It is quite true that under LSA-R.S. 13:4062-4071, Act 29 of 1924, temporary restraining orders and preliminary injunctions are summary proceedings and the procedure and practice to be employed and the powers of the court in respect thereto are regulated, but these statutory provisions do not pertain to the suit so far as the issuance of a permanent injunction is concerned, permanent injunctions being final judgments issued only after citation in the regular form and after a trial on the merits of the controversy. See Lambert v. Lass, La.App., 25 So.2d 913.

While we have been able to find nothing in the law which can be construed as .having the effect of designating an injunction suit as a summary proceeding, we do find that there are two decisions of the Supreme Court which appear to be affirmative authority for the proposition that a trial by jury may properly be had in an injunction suit.

In the early case of Cumming v. Police Jury of Rapides, 5 La.Ann. 634, the plaintiff enjoined the sale of a tract of land seized for the payment of a special'tax levied under an ordinance of the police' jury and furnished the bond and security as required by law. Plaintiff subsequently amended his petition after issue was joined and prayed that the matter be heard by a jury. The lower court determined that the case was one ¡which should be tried summarily and without a jury. The court then proceeded to try the case and rendered judgment against plaintiff. On -appeal the Supreme Court reversed the judgment and remanded the case for further proceedings with directions to the district judge to allow the plaintiff a trial by jury as he had requested. The Court said:

“ * * * The only cases of injunction which are to be tried summarily are those in which no security is required to be given. C.P. 739, 740, 741. This not being such a case, the trial by jury is a legal right, of which the plaintiff .could not be deprived. *■ * * ”

In the much later case of Reynolds v. Egan, 123 La. 114, 48 So. 764, 765, the defendant assailed the validity of a judgment and sued out a writ of injunction to restrain its execution which was issued on a $1,500 bond. The defendant requested a jury trial which was granted and the judgment creditor made application to the Supreme Court for an order directing the district judge to rescind his order for the jury trial and to proceed with the.case in a summary fashion. The relator’s application was denied. The Court said:

“ * * * As bond was required, jury ' trial was 'properly granted. Cumming v. Police Jury, 5 La.Ann. 634.”

This case as it now stands is no more or less than an ordinary suit, and there are no issues in it which are so unusual or complicated that a jury of laymen could not understand them or properly pass upon them. The City of New Orleans seeks the aid of the court to have defendant’s property condemned and for an order that he make extensive repairs thereto or else demolish the building in its entirety. We know of no rule of law or any good or valid reason which would deprive defendant of having the case heard by a jury which is a legal right. The trial judge below erred in refusing defendant’s request for the jury.

For the reasons assigned, this case is remanded to the Civil District Court for the Parish of Orleans with instructions that it be placed on the jury docket for trial upon defendant’s compliance with the rules of the court, the matter thenceforth to be proceeded with in accordance with law.

Remanded.