author: SIMON, Justice.

text:
    228 La. 975
    Julieta CARDOS, Wife of Wade I. Elliot, individually and on behalf of Manuelita Munos Brenes Cardos et al., and Jorge Mario Cardos v. John CRISTADORO and Radio Specialty Corporation.
    No. 41916.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      See also, 226 La. 351, 76 So.2d 392.
    Alcide J. Weysham, New Orleans, for defendant-appellant.
    Herbert J. Garon, New Orleans, Nathan Greenberg, Gretna, for plaintiffs-appellees.
   SIMON, Justice.

Plaintiffs-appellees filed this suit against John Cristadoro and the Radio Specialty Corporation for specific performance of a private agreement wherein the five incor-porators obligated themselves to purchase the stock of a deceased stockholder in the' Radio Specialty Corporation. On written motion by the parties, the suit against the Radio Specialty Corporation was dismissed.

Plaintiffs-appellees are the heirs of the late Fernando Cardos who was one of the five .incorporators of the Radio Specialty Corporation. At the time of the death of Cardos on August 6, 1950, he and the defendant John Cristadoro were the sole remaining parties affected by the said private agreement, the others having disposed of their respective stock interests. Upon demand by the heirs of Cardos, John Cristadoro refused to purchase the decedent’s shares of stock, contending that the said agreement had never become effective among the parties thereto, and that, if it was ever enforcible, the obligation of purchasing the stock at book value had been abrogated and repudiated by the parties thereto. Defendant further contends that the plaintiffs herein are entitled to receive no more than the par value of the stock left-by decedent,' or $100 per share.

The private agreement herein sued upon, bearing the signature of the five incor-porators, was dated March 29, 1932, and provided in part as follows:

“Now Therefore, it is agreed between the said parties as follows, to-wit:
“(1) Upon the death of any one of them,, the remaining parties shall and are hereby obligated in solido within ninety days to purchase the stock of the decedent in the Radio Specialty Corporation at its book value as determined by the last fiscal audit of the company, or last quarterly statement if one has been prepared.
“(2) The remaining parties are bound as among themselves to purchase the stock of the decedent party in the proportion of their then ownership of stock in the company, but should any of said parties refuse or fail to purchase his proportion upon demand, the remaining parties shall be entitled but not bound to purchase the stock in proporation to their ownership of .stock, provided, however, that nothing contained in this paragraph shall prevent the decedent’s estate from enforcing performance of their obligation to purchase against' any or all the surviving parties.
“(3) The estate of the decedent party is bound and obligated to sell the stock owned by the decedent to the surviving parties on the terms and conditions above stipulated.” (Emphasis ours.)

Upon trial of the matter, the district court rendered judgment in favor of plaintiffs, ordering and condemning the defendant to specifically perform the agreement dated March 29, 1932, and thus purchase at book value the 50 shares of capital stock of Radio Specialty Corporation from the estate of Fernando Cardos, fixing their book value at $146.43 per share. The said judgment further decreed that in the event John Cristadoro failed to so perform within 15 days from the date of the signing of said judgment, that then there be judgment in’ favor of plaintiffs and against John Cristadoro in the sum of $7,321.50, which amount represents the total book value of said shares, together with legal interest from date of rendition of. judgment. The defendant appeals and the plaintiffs answer said appeal, praying that the judgment be amended so as to award legal interest from date of judicial demand.

In order to "sustain his contention that the agreement herein sued upon was never put into effect, and hence unenforcible, defendant and his witnesses testified that other co-signers of said agreement sold their shares of stock at par value, and further, that Fernando Cardos purchased shares of stock at their par value of $100 per share and verbally agreed to resell and transfer said shares to the corporation at the same price, irrespective of its book value.

Defendant’s son, who had been a stockholder óf the corporation since 1946, testified that he had no knowledge of any agreement by which his father was obligated to purchase stock at book value. He further testified that there was a verbal agreement among officers of the corporation to purchase the stock at par value, although the charter calls for book value. Defendant testified that Fernando Cardos participated in. various meetings when stock “transfers were made or turned back to the corporation and sold” and that these “transactions were always on a par value basis”.

Fundamentally, legal agreements have the effect of law upon the parties, and as they bind themselves they shall be held to a full performance of the obligations flowing therefrom. In determining the rights, obligations and relationships arising from an instrument, such 'as a commutative contract presented in the instant case, courts are bound to give legal effect to the true intent of the parties, and when interpreting or construing such an instrument, all facts and circumstances relevant and pertinent are to be weighed and considered.

As a general rule, parol evidence is inadmissible to vary, modify, explain or contradict a writing. This general rule, as is true with most general principles, has been made the subject of certain exceptions. The pertinent exception applicable here is that where thei words used in an instrument are not clear and explicit and may in their application lead to absurd consequences, or where its contents exhibit ambiguity and uncertainty, or where the mutual intention of the parties has not been fairly explicit, the courts may consider all pertinent facts and circumstances, including the party’s own conclusion of its meaning, rather than adhere to a forced meaning of the terms used.

At the outset it is observed that the private agreement herein under consideration imposes obligations which become effective and enforcible only upon the death of one or more of the co-signers thereto. The words “Upon the death of any one of them, the remaining parties shall and are hereby obligated * * * to purchase the stock of the decedent * * * at its book value * * * ” are clear, positive and explicit. There is no uncertainty or ambiguity as to what the mutual intention of the parties was at the time they incorporated this quoted language in the instrument. There is no uncertainty that the parties intended to and did obligate one another, upon the death of any one of them as a stockholder and co-signer, to purchase at book value the decedent’s stock interest from his estate. With this obligation to purchase was the corresponding obligation of the estate to sell this stock interest to the surviving parties to the agreement. This mutuality of obligations, undoubtedly executed for the benefit of the contracting parties, is also clear and unambiguous. Such mandatory obligations were expressly intended to keep the ownership of these shares of stock within the original incorporators.

In the case of Standard Oil Co. of Louisiana v. Futral, 204 La. 215, 15 So.2d 65, 75, this court in quoting from an earlier case stated:

“In Rodgers v. S. H. Bolinger Co., 149 La. 545, 89 So. 688, 690, this court held that:

“ ‘When parties reduce their contracts to writing, and when the terms of the writing exhibit no uncertainty or ambiguity as to the nature, the object, and the extent of the agreement, it is presumed that the writing expresses the true and complete undertaking of the parties.’ * * * ”

Defendant contends that the pa-rol evidence submitted by him amply demonstrates or establishes a repudiation and abandonment by the parties .of this, private agreement now sought to be enforced. We do not agree with his contention. In view of the fact that this private agreement became effective only upon the contingency of the death of a co-signer, whatever private dealings may have been conducted by the parties can give no comfort to the defendant as a basis for. repudiation of this contract. Manifestly, they cannot affect the clearly expressed obligations which become enforcible upon death of one of the parties. Unambiguous contracts cannot be destroyed by ambiguous circumstances. Ker v. Evershed, 41 La.Ann. 15, 6 So. 566.

Further, the record is silent as to any agreement between the parties which would in the slightest affect the validity and enforcement of this private agreement. Assuming that there was such an agreement, we find no evidence to support the requirement that the subsequent agreement, in order to constitute a modification, be clearly defined, and that the party sought to be held thereby did in fact actually agree and authorize the modification. In the case of Byrd v. Babin, 196 La. 902, 200 So. 294, 299, we said:

“We do not think that the rule permitting a written contract to be altered or modified by a subsequent pa-rol agreement can be successfully invoked, unless the alleged subsequent parol agreement is clearly defined and unless it be shown that the party sought to be held actually agreed to or authorized the subsequent contract. * * * ”

At all events, the trial judge concluded that the private agreement sued on was a legal, valid and forcible contract, the evidence of the defendant notwithstanding, and we find no evidence which would warrant a different conclusion from that reached by him.

In their answer to this appeal, plaintiffs-appellees urged that the judgment of the district court should have awarded interest from the date of judicial demand in lieu of interest from the date of judgment. Appellant offers no opposition to this amendment as prayed for. The record reveals that though plaintiffs-appellees originally failed to pray for legal interest from the date of judicial demand, leave of court being granted, they supplemented and amended their original and first supplemental petitions so as to include interest from date of judicial demand.

Article 157 of the Louisiana Code of Practice provides that if, in an action of debt, the plaintiff fails to claim the interest ■ due to him, or to amend his petition, in order to include it, he cannot after judgment demand such interest by another action, for the reason that he is thus considered as having remitted it. This article, however, gives him the right at any time before judgment to amend his petition and thus claim the interest.

Under these circumstances and codal provisions, the plaintiffs are entitled to receive legal interest from date of judicial demand until paid.

Accordingly, for the reasons assigned, the judgment of the trial court is amended so as to award interest thereon from the date of judicial demand; and in all other respects the judgment herein appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    228 La. 987
    Herbert S. LEA v. ORLEANS PARISH SCHOOL BOARD et al.
    No. 41991.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Samuel I. Rosenberg, New Orleans, for appellants.
    Richard Dowling, New Orleans, for ap-pellee.
   SIMON, Justice.

On April 23, 1953, the Orleans Parish School Board found plaintiff and appellee herein, Herbert S. Lea, one of its employees, guilty of incompetency and suspended him without pay for the remainder of the 1952-1953 school term. Beginning in September, 1953, he was assigned to the principalship of a school of less than 300 students, at the scheduled pay scale of such a school and with a consequent reduction in salary. This action was taken after a public hearing by the School Board and admittedly conducted in conformity with the provisions of LSA-R.S. 17:462, known as our Teachers Tenure Law. On April 28, 1953, appellee petitioned the Civil District Court for the Parish of Orleans for a full hearing to review the action of said Board. After issue was joined, a supplemental petition was filed by appellee, praying for a trial by jury, and an order to this effect was issued.

A motion to remove the case from the jury docket was filed by the appellant School Board, which after hearing, was denied by the'trial court. Hence this appeal.

This appeal presents hut one question, and that is whether or not the appellee is entitled to have this cause tried by a jury.

We have often expounded the proposition of law recognizing the right of a school board to employ and discharge its employees, in the absence of restrictive legislation. This inherent right of a school board, however, has been restricted by the adoption of the Teachers Tenure Law LSA-R.S.1950, 17:462; sec. 66 of Act 100 of 1922, as amended by Act 250 of 1944, which in part provides:

“If a permanent teacher is found guilty by the school board, after due and legal hearing as provided herein, on charges of * * * incompetency, * * * and ordered removed from office or disciplined by the said board, the teacher may * * * petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. * * * ”

The right of a trial by jury springs from the provisions of Article 7, section 41 of the Louisiana Constitution LSA: “The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; * * *.” Manifestly, this provision is nothing more or less than a constitutional mandate to the legislature to provide for the election and drawing of jurors. Article 19, section 9 of the Constitution provides that juries in criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, and by its very-terms applies exclusively to criminal cases. There is no provision in our Constitution defining the province of a jury in civil cases, the legislature alone having been vested with that right. The City Bank of New Orleans v. Banks, 1 La.Ann. 418.

Nowhere in our statutory law (Louisiana Revised Statutes of 1950) is there set forth the type of civil actions wherein the plaintiff has the right to demand a trial by jury. The only law which, in some measure, provides for jury trials is that found in the provisions of Article 494 of our Code of Practice, reading:

“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 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, 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.”

This article merely establishes the procedure to be observed by plaintiffs in civil cases who desire a jury, but does not set forth the type of civil cases which can be heard. It specifies causes of actions which must be tried without a jury. On several instances we have recognized the fact that these specified exceptions are not exclusive.

We have held that a partition suit, though not included within said specified exceptions, was not triable before a jury. Bickham v. Pitts, 185 La. 930, 171 So. 80, 85.

Jn the Bickham case, supra, the reasons advanced by us for the denial of a right to a trial by jury in a partition suit are as follows:

« * * * A partition suit does not fall under.the provisions of that article of the Code, nor does it fall under the provisions of any other law so far as we know. One reason why partition suits should not be tried by juries is that juries, which are necessarily composed of laymen, are not competent to pass upon the issues necessarily involved in partition suits.”

Hence, the specified exceptions contained in said article not being exclusive, other civil suits, though not expressly excluded therein, may be heard which, by their very nature, do not warrant the intervention of a jury. Such is the nature of the case at bar.

Under the provisions of our Teachers Tenure Law, a permanent teacher aggrieved by the action of the school board may petition a court of competent jurisdiction for a full hearing to review the action of the board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter.

This statute recognizes and grants specific rights and privileges to persons falling within the classification of permanent teachers. It, being a general statute affecting all persons within that class, must be given a liberal construction. In interpreting and construing this statute the words used in defining the rights and privileges of the plaintiff must take color from each other and be construed according to their context. By its terms, the vesting in a court of competent jurisdiction the right to conduct a full hearing to review the action of the school hoard, with the corresponding right to affirm or reverse the action of 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.

Accordingly, for the reasons assigned, the judgment of the district court is reversed, annulled and set aside, and it is ordered that this cause be remanded for further proceedings in accordance with law.


author: FOURNET, Chief Justice.

text:
    228 La. 994
    Succession of David D. BISHOP.
    No. 42156.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      Charles F. Fletchinger, New Orleans, L. S. McClaren, McComb, Miss., for appellants.
    Bernhardt C. Heebe, New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

Mrs. Alma Ruth Bishop Farmer, individually and as administratrix of the succession of her late father, David D. Bishop, joined by her mother and brother, instituted this suit against Mrs. Billie Hall Bonan-singa and Mrs. Esther Davis Hall Bishop, to have (1) set aside as a simulation a sale of property made by Bishop and Mrs, Esther Bishop on November 14, 1949, to Mrs. Bonansinga, or, in the alternative, revoked as a fraudulent transfer; (2) cancelled and erased from the public records the sale and resale of this property by Mrs. Bonansinga to the Home Building and Loan Association in December of 1950; (3) judicially recognized this property belongs to decedent’s estate and decreed that it be inventoried and administered as such, and (4) an accounting of rents and revenues arising from the use and occupancy of the property by defendants. They are appealing from the judgment of the lower court dismissing their suit on the merits.

The property in question, which is located at 1533 Erato Street in New Orleans, Louisiana, was acquired jointly by David D. Bishop and Esther Davis Bishop on December 30, 1936, for $9,000, only $200 of which was paid in cash. It was operated by them as an apartment-rooming house until November 14, 1949, when they jointly sold it to Mrs. Billie Hall Bonansinga, daughter of Mrs. Esther Davis Bishop, for a recited consideration of $11,000, $3,500 of which was stipulated as being paid in cash and the balance represented by a $7,500 note.

The record reflects that Bishop and Mrs. Esther Davis Bishop moved to New Orleans in 1922 and continued to live here until his death in 1952. Up until 1934, when she and the first husband whom she had married in 1932 moved away from the home, Mrs. Bonansinga (who was born in 1909 and was then approximately 25 years of age) lived with her mother and stepfather. She returned to live with them upon her separation from her husband in 1937 and remained there until her second marriage in 1947. Bishop, who was a heavy drinker, was, during this time, rarely employed. It was only in May of 1950 that he secured work in the record room of the Civil District Court for the Parish of Orleans. Mrs. Bishop had difficulty maintaining the family on her earnings as a waitress and some time operator with a friend of a small restaurant. For this reason it became necessary for Mrs. Bonansinga, even during high school days, to work on Saturdays and during the summer months to help out in implementing the family income. From the time of her graduation from high school in 1926, she advanced to her mother and stepfather a good part of the money she earned. At the time of the trial she was still employed by the firm she went to work for in June of 1929, and, during this entire time had, in addition to turning over to the Bishops regular amounts from her earning's, advanced to them additional large sums, including (1) $300 in 1932 to help Bishop and his daughter, the plaintiff Mrs. Alma Ruth Bishop Farmer, open a restaurant so that Bishop might have some employment, a venture that failed within a few months; (2) the $200 down payment made at the time the house on, Erato street was purchased in 1936; (3) $500 for the construction of an additional bathroom in 1940-1941; (4) $700 for repairs to the house in 1947; (5) $600 on one occasion and $360 on another to help them pay the mortgage assumed on the property at the time of its purchase; and (6) $400 for medical expenses during a three year period when her mother was ill.

There is no testimony in the record with respect to the transaction of November 14, 1949, other than that of Mrs. Bonansinga, who was called by the plaintiffs under the act to be a witness on cross-examination. Mrs. Bonansinga readily admitted the cash consideration of $3,500 stipulated in the deed had not, in fact, been paid at the time of its confection, explaining, as she is authorized by law to do, that this consideration was represented by advances she had made to her mother and stepfather over a period of some twenty years, and which far exceeded the $3,500 figure agreed upon by them. She further testified the $7,500 note given in payment of the remainder of the purchase 'price showed on the reverse side a credit of $2,500 signed by her stepfather on March 8, 1940, and a similar creditor on August 25, 1950, signed by her mother. The August credit, according to her testimony, was in settlement of rents Mrs. Bishop had collected in managing the house for Mrs. Bonansinga following the sale, and the March credit was in consideration of her agreement with her stepfather that her mother and stepfather would be permitted to continue using and occupying, rent free during the remainder of their lives, the apartment in which they were then living, ‘and, in addition, that Mrs. Bonansinga would continue to help them in the future as she had done in the past. She further testified she paid $1,000 to her mother on the $2,500 balance from the $2,000 she borrowed from the Homestead in December of 1950, at which time the $7,50.0 note was legally cancelled as paid, and the understanding she had with her mother at that time was that Mrs. Bishop was to retain sufficient out of the rents, after meeting the monthly mortgage payments of $23-45, to liquidate the remaining balance of $1,500.

This testimony of Mrs. Bonansinga is not only uncontradicted, but impressive. She was able to itemize in some detail the sums given her mother and stepfather over the years, showing, as above analyzed, they far exceeded the $3,500 which forms the basis of the first payment on the property. Counsel for appellants were also obviously impressed with her testimony, for they offered no countervailing evidence. We therefore conclude, as did the trial judge, the sale was not a simulation.

In brief here counsel for appellants concede the sale may not be avoided as a simulation. They argue, nevertheless, that inasmuch as Mrs. Farmer and her brother are forced heirs 'of their father, the sale was in fraud of their rights as “creditors” of his estate and the sale is, therefore, vulnerable to attack under Article 1978 et seq. of the LSA-Civil Code of 1870. They cite in reliance Maples v. Mitty, 12 La.Ann. 759; Sullice v. Gradenigo, 15 La.Ann. 582; Perrault v. Perrault, 32 La.Ann. 635; and Jones v. Jones, 119 La. 677, 44 So. 429.

Whatever consolation appellants may derive from isolated passages quoted from these decisions, an analysis discloses they are not authority for their contention. The Maples, Perrault, and Jones cases were suits by forced heirs under Articles 1502-1518 of the code to have allegedly excessive donations made by their ancestors reduced in so far as they infringed on their legitime. Article 1504 in this group specifically provides that such donations may be reduced in court action by forced heirs, or by their heirs or assigns only, and that “neither the ■donees, legatees, nor creditors of the deceased can require that reduction nor avail themselves of it.” (Emphasis supplied.)

The Sullice case was not instituted by forced heirs as “creditors” to have revoked a conveyance allegedly executed in fraud ■of their rights .as such. On the contrary, it was a contest between a curator representing bona fide creditors of a decedent to ¡have avoided as a simulation a sale purportedly executed in plaintiff's favor in fraud of their rights as creditors. When the transferee urged that these creditors were without right to question the sale inasmuch as the contract had been made prior to the accrual of their debts, Article 1993, the court held such a rule inapplicable in the case of a simulated sale pure and simple,’ since such a sale, if simulated under the proof, was considered as never having been made and the property, therefore, to be that of the debtor; consequently, that the revocatory action- could be instituted to avoid simulated sales without regard to the date or origin of the claims of the creditors.

Articles 1968-1994 of the code, to be found in the section dealing with the effect of obligations and the manner in which they may be avoided by creditors not parties to them, has no reference to forced heirs as “creditors” of successions as contemplated in the jurisprudence, but to creditors as ordinarily understood. The method of enforcing the rights there given are very explicit and the prerequisites essential. The suit may be instituted only by a creditor whose debts have been liquidated by judgment of court, unless the defendant in such action is made party to the suit for the liquidation of the debt. Articles 1968 and 1972. The conveyance must have been made in fraud of the rights of other creditors and for the specific purpose of preferring one creditor over others. Article 1978. The debtor must have been insolvent at the time of the transfer and the conveyance must have resulted in injury to the complaining creditor. Articles 1971 and 1984. Consequently, even if counsel are correct in their contention that plaintiffs, being forced heirs, are entitled as creditors of Bishop’s succession to institute the revoca-tory action to annul this sale under Articles 1968-1994 of the code, it is obvious they could not prevail since there is no allegation that Bishop was, at the time of the transfer, insolvent, and there is not a scintilla of proof in the record in this respect. It is, therefore, unnecessary for us to discuss and analyze the evidence in so far as it may seem to support the contention of appellants that it discloses there exists a presumption of fraud. Nor is it necessary for us to consider the argument that this was not, in fact, a sale, but a dation en pai'ement, and as such invalid under Article 2658 of the code, for this article provides that when the debtor is insolvent, he may not “give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due.”

For the reasons assigned the judgment appealed from is affirmed at the cost of the appellants.

      . This association was joined as a party defendant but made no appearance.

      . Appellants have sought throughout to establish, largely by innuendo, that Bishop never divorced his first wife, and, consequently, was not married to Mrs. Esther Davis Bishop, who asserts such a marriage ceremony took place in Vicksburg, Mississippi, on February 12, 1921, and that she lived with Bishop from that time until his death in 1952 without knowledge of any legal impediment thereto, if such in fact existed. However, this is not an issue in the case and is not material to a decision of those raised inasmuch as the property was purchased by these parties jointly, and counsel for appellants concede in this court, as they must, that whatever rights the appellants have are, of necessity, limited to the decedent’s half interest in the property.

      . Article 1900 of the LSA-Civil Code of 1870; Citizens Bank & Trust Co. v. Willis, 183 La. 127, 162 So. 822.

      . Two co-employees of Bishop testified they had paid for him, out of money he gave them (on one occasion out of money derived from his pay check that had been cashed) mortgage payments made subsequent to the time of the sale, but in view of the understanding Mrs. Bon-ansinga had with her mother and stepfather about these payments being made out of the rents collected, this testimony does not serve to prove the contentions of appellants.

      . The statement in Maples v. Mitty, 12 La.Ann. 759, to the effect that in so far as their legitime is concerned, children are creditors and not heirs of their father’s succession, is traceable to Rchal v. Rachal, 4 La.Ann. 500. In the Radial case forced heirs attacked a sale as a disguised donation and under a peremptory exception witnesses testified they believed the vendor’s object in selling the property was to put it beyond the reach of a pending suit, which was contrary to public policy. It was urged in defense that since the contract had for its object a fraudulent purpose the heirs could no more recover under it than could their father. The court, holding the proof warranted the conclusion the sale was avoidable as simulated, stated the alleged object of the vendor in making the sale could not affect the rights of his forced heirs since their rights aj such were not derived from him but from the law and, so far as their legitime “is concerned, they are not heirs; they are creditors.”

      . It is argued that there are in the record facts that are usually regarded as presumptive evidence of fraud, i. e., (1) the sale was ominium bonorum; (2) the closeness of the family relationship; (S) retention and continued occupancy of the property by the vendors; (4) monthly payments on the mortgage by the vendors after the sale; (5) a vile price; and (6) the listing of the property as their own by the vendors after the sale.


author: ELLIS, Judge.

text:
    Joseph H. LAVERGNE v. INDEMNITY INSURANCE CO.
    No. 4106.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Fusilier & Vidriné, Ville Platte, for appellant.
    Dubuisson & Dubuissón, Opelousas, for appellee.
   ELLIS, Judge.

Plaintiff is seeking to recover alleged damages to his 1941 Studebaker sedan as the result of a collision with a 1941 Ford Coupe owned by Lucy Auzenne which occurred after dark on January 25, 1954 on blacktopped Louisiana Flighway, No. 219. It was shown on the trial below that on the date above set forth the plaintiff was driving his Studebaker sedan in an easterly direction on the blacktopped highway when he noticed approaching him or stopped, a motor vehicle with only its right light burning. The plaintiff approached this apparently one lighted motor vehicle at 30 miles per hour but pulled as far to his right as possible without running off on the black top, then, when it was too late to avoid the accident plaintiff observed that there was a car with a portion of its front end across the center line in his lane of travel and what he had been taking as a motor vehicle approaching or stopped with only one light was, in reality,.a pickup truck parked to the rear of the stationary motor vehicle so that the left light of the pickup was hidden by the parked motor vehicle.

It was plaintiff’s contention in the Lower Court as well as in this Court that the case came under the exception to the general rule that one must operate his vehicle at night at such a speed that he is able to bring it to a halt within the distance illuminated by his headlights. Plaintiff relies upon Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377; Taylor v. Fidelity & Casualty Co. of New York, La.App., 55 So.2d 307; Achord v. Great American Indemnity Co., La.App., 68 So.2d 643; Woodley & Collins v. Schulsters’ Wholesale Produce Co., 170 La. 527, 128 So. 469; Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238; Warnick v. Louisiana Highway Commission, La.App., 4 So.2d 607; Central Manufacturers Mutual Insurance Co. v. Linkenhoger, La.App., 41 So.2d 472.

Judgment was rendered in favor of defendant dismissing plaintiff’s suit and the latter has appealed to this court.

The facts are practically undisputed. It is shown that shortly prior to the collision, which occurred at approximately 6:45 p. m. on January 25, 1954, an automobile belonging to Lucy Auzenne, mother of Bertrand Auzenne, and which was insured by the defendant company, was being driven by Bertrand Auzenne from Frank’s Service Station to his home. In the car as a passenger was his aunt, Alzie Auzenne. The car gave out of gas and Auzenne secured gas from Bennie Pitre, approximately one mile from where the car stopped, and the latter brought Auzenne back in his Ford truck. After the gas had been put in and the car still failed to start, Auzenne thought that if it was pushed on level ground the gas would possibly reach the carburator and it would then start, and they therefore pushed Auzenne’s car in such a position that the front end was over the center line of the highway. The car was sitting at an angle with its front end in the plaintiff’s lane of travel. Pitre’s truck had been parked behind Auzenne’s car and after the latter had been pushed into the position stated, it still would not start and Pitre then intended to push the car with his truck. Before doing so, however, Auzenne stepped back to Pitre’s truck to pay him for the gas, whereupon the plaintiff, approaching from the opposite direction in the south or east bound traffic lane, collided with the left front portion of the parked car, knocking it to the rear so that the left front headlight on the Pitre truck and a portion of the left front of the truck was damaged. According to one witness, the two cars after the accident came to a stop with their left front portions still locked together.

According to the plaintiff’s version of the accident, as well as that of two relatives who were passengers in his car at the time, the first thing they noticed as they approached was a motor vehicle either coming toward them or parked with its right light burning. They never did see the left light or any sign of it, nor did they see the Auzenne automobile pushed crossways of the road with its front portion protruding in their lane of travel until they were evidently very close to it as shown by skid marks approximately 20 feet in length, which the police officer testified were made by plaintiff’s car. There seemed to be some doubt thrown upon the police officer’s testimony on this point as plaintiff and his two witnesses stated they did not see the parked car until they collided with it, however, some parts of the testimony reveal that the plaintiff did not understand English too well and it is possible that when he stated he did not see it until he hit it, he meant just prior to or approximately at the moment of impact. Whether he saw it too late to avoid the accident or did not see it at all is more or less immaterial to the question to be decided. We must decide whether there were any unusual facts or circumstances which would excuse the plaintiff from failing to see this parked automobile.

It is proven that plaintiff was driving at a most reasonable rate of speed of 30 miles per hour and was under no duty to bring his car to a complete stop merely because he saw approaching him or parked a motor vehicle with one light burning. He slowed down and pulled his automobile as far to the right as possible so as to give plenty of room to the approaching motor vehicle with one light burning. This was the action of a normal, careful driver. It is contended that plaintiff should have seen the automobile partially blocking his lane of travel reflected in the headlights from Pitre’s truck. From the evidence, the parked automobile was situated so as to completely cut off the left headlight of the truck parked to its rear and made it appear to approaching traffic that there was a motor vehicle with simply a bright right light burning. In other words, according to the testimony of plaintiff and his two passengers, who were his uncle and aunt, all three of whom were sitting on the front seat, it appeared to them that they were approaching a motor vehicle with one light, which they took to be the right, burning. Not any one of them saw the automobile parked in front of the motor vehicle with the one light burning. The fact that the three occupants of plaintiff’s car, all with normal eye sight as far as the record is concerned and all of whom were on the front seat and enjoyed an unobstructed view ahead and none of whom saw the parked motor vehicle, is strong evidence that the latter was so parked that it cut off any reflection of the left headlight that would silhouette same. There is no question but that the parked automobile was protruding into the plaintiff’s lane of travel with no head light or parking light burning, nor that the plaintiff had slowed down and pulled as far to his right as possible. This is borne out by the fact that plaintiff’s car did not go any appreciable distance after the collision and by the fact that plaintiff struck the left front portion of the parked automobile, missing the right side.

The plaintiff has shown by the facts and circumstances of the case that the parked automobile was so located and situated with particular reference to the lights of the truck parked slightly to its rear that it could not be seen and it only gave the appearance to the plaintiff and the occupants of his car that they were approaching a motor vehicle with only one right light burning.

The negligence of Bertrand Auzenne is established by the fact that he pushed his automobile crossways of the highway with its front end protruding into the plaintiff’s lane of travel. Auzenne’s aunt, who was a passenger in his car and who jumped out of the parked automobile when she realized it was going to be hit by plaintiff’s approaching car just prior to the collision stated that the car was pushed crossways of the road with its front end across the-center line but she thought that it would! be moved prior to the approach of any traffic.

Plaintiff has borne the burden of proof necessary to establish the fact that he comes under the exception to the general rule and that he should recover.

On the question of quantum, plaintiff failed to offer testimony by which the lower court could definitely fix the amount of damages to his car. There is nothing in the record to show that he asked that the case be reopened prior to judgment or for a new trial in order that he might produce such testimony, and we surmise that that is why the district judge dismissed the suit. No written reasons were given.

An attempt was made to prove the damages to plaintiff’s car but the witness was unable to specifically designate by name the damaged parts. It was proven, however, that the car originally cost $125 and that plaintiff had purchased a second-hand motor for $250 which had been placed ins the automobile and had further spent $70,. evidently in repairs, prior to the collision. It was definitely established also that the front end of plaintiff’s car was “all beat up, the front, the whole front of it.” It is further stated that: “Generally it looked like the whole front end was gone to me.”

We thus have a case in which the plaintiff has established the negligence and! therefore the liability of the defendant for damages to his car as the result of the collision, and further the plaintiff has established that his car was actually damaged but has failed to prove specifically the value of the damaged parts, and on this appeal in the alternative in his brief asks that the case be remanded to establish the damages so that a definitive judgment may be rendered herein.

We believe that it would be proper in this case to exercise the right given us by Article 906 of the Code of Practice of remanding the case to the trial court so that the defendant might produce definite evidence of the quantum of damages to his automobile within the bounds of the allegations and prayer of his petition. We base our remand upon many cases decided by the appellate courts of this state. In the recent case of Dietz v. Dietz, 227 La. 801, 80 So.2d 414, 417, the Supreme Court exercised the prerogative given to appellate courts under Article 906, Code of Practice. In this case it stated:

“Since defendants have failed to come forward with proof to rebut the presumption that the sale to John Dietz was simulated, we would be justified in annulling that transaction. On the other hand, although the circumstances surrounding the sale to William Dietz cast suspicion on its genuineness, the evidence adduced is too scant to shift the burden of proof onto that defendant. Hence, a final adjudication of the cases on the record in its present state would require that we annul the deed to John Dietz and uphold the deed to William Dietz. But such a result might not be consonant with justice which no doubt could have been dispensed had the defendants elected to produce the evidence readily accessible to them. Under these circumstances, although defendants have not requested a remand of the cases in order to adduce further testimony, we think it appropriate to exercise the prerogative - given us by Article 906 of the Code of Practice of remanding the case to the trial court for the purpose of permitting the defendants to produce the notary and the witnesses to the acts so that their testimony may be heard, together with all other additional evidence which may be tendered by any of the parties litigant on the issues presented.”

Applying the language of the Supreme Court in the cited and quoted case, a final adjudication of the case at bar on the record in its present state would require that we affirm the judgment of the Lower Court by dismissing plaintiff’s suit but such a result might not be consonant with justice which no doubt could have been dispensed had the plaintiff produced specific proof of quantum.,

In the case of Willis v. Berry, 104 La. 114, 28 So. 888, it was held that the authority to remand a case for further evidence is manifest when a vital question pf fact may be made quite clear by further testimony.

Again in the case of City of New Orleans v. Ryman, La.App., 79 So.2d 573, 575, our brethren of the Orleans Court of Appeal in dealing with Article 906 stated:

“Article 906, Code of Practice, grants an appellate court the discretion to remand a case wherever such action is consonant with the ends of justice. This article very plainly authorizes a remand not only where the parties have failed to adduce the necessary evidence or where the inferior court has refused to receive it, but it also uses the words ‘or otherwise’ plainly indicating that a cause may be remanded for any other reason which the appellate court may deem sufficient. McClung v. Delta Shipbuilding Co., Inc., La.App., 33 So.2d 438. A case may be remanded not only on a new question of fact but on a new question of law as well. City of New Orleans v. Grosch, La.App., 49 So.2d 435.”

A case quite similar to the case at bar is Manget Bros. v. Henry, 13 La.App. 57, 127 So. 51, 54, decided by our brethren of the. Second Circuit. This case involved an automobile accident in which the court stated that it thought the defendant was clearly liable. The district judge rejected the plaintiff’s demands because the latter had failed to prove the quantum of damage. It was found that the testimony in the record as to the damage sustained to the plaintiff’s car was not such as to warrant the court in fixing any specific amount, but in that case, as in this, the testimony did ■show that the car was almost completely wrecked but there was no testimony to •show when it was purchased nor the extent to which it had been used. It was shown in that case, which is not true in the case at bar, that the plaintiff made a strenuous ■effort to have the case reopened for the purpose of showing the damage sustained which he had failed to prove accurately, hut the court refused to permit him to introduce the further testimony. While it would possibly have been a much better practice for counsel for plaintiff to have done the same thing in the case at bar, the ■fact that he did not does not deprive or preclude this court from exercising its prerogative under Article 906 of the Code of Practice, In the cited case it was stated:

“We think the court should have reopened the case in order to permit further testimony as to the damage ■done, or should have dismissed plaintiff’s suit as in case of nonsuit. We think, in the interest of justice, the judgment appealed from should be set aside and the case remanded for the restricted purpose of permitting testimony to establish the quantum of damage. Such has been the practice of the Supreme Court and of this court, and is authorized by article 906 of the Code of Practice. See Favrot v. Chappuis, 147 La. 1054, 86 So. 492; In re Tucker, 153 La. 47, 95 So. 396; Brasher v. Grant, 1 La.App. 457; Traylor v. Murphy, 2 La.App. 593; (Gunn 3d Opponent) Bordages & Tierney v. Staggers, 3 La.App. 343.”

See also Russell v. Producers’ Oil Co., 138 La. 184, 70 So. 92; Hazel v. Williams, La.App., 80 So.2d 133.

For the above reasons, it is therefore ■ordered that the judgment of the District Court be set aside and the case remanded for the restricted purpose of permitting testimony to establish the quantum of damages, the cost of this appeal to be paid by plaintiff-appellant, all other costs to await the final determination of the case.

TATE, J., recused, M. D. MILLER, Jr., Judge ad hoc.


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    TEXAS MUTUAL INS. CO. v. Dallas STUTES.
    No. 4118.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    See also 77 So.2d 43.

      Voorhies & Labbe, Lafayette, for appellant.
    Mouton & Mouton, Lafayette, for appel-lee.
   ELLIS, Judge.

' Plaintiff bases its case upon a subrogation clause in one of its policies and seeks to recover a subrogation claim against Dallas Stutes arising out of an automobile accident.

The defendant had borrowed the vehicle of Mr. and Mrs. Lewis A. Domingue, and while driving to work in it the vehicle was badly damaged in an accident. When amicable settlement was not possible, suit was filed by Mr. and Mrs. Domingue against Texas Mutual Insurance Co., which filed answer and made a legal tender by depositing $1,264.37 with the Clerk of Court. When the Texas Mutual Insurance Company became insolvent, Domingue accepted the legal tender. A judgment in the amount of $3,095.84 was secured against the insurance company after the’ instant suit had been filed. Under the aforementioned subrogation clause the Texas Mutual. Insurance Company became subrogated to all the rights of its insured, Lewis A. Domin-gue, against the driver, Dallas Stutes, and accordingly filed the instant suit to recover from Dallas Stutes, who had allegedly caused the accident by his negligence, the amount of the legal tender which had been accepted by Lewis A. Domingue.

Upon plaintiff being placed in receivership, the Court recognized the receiver, Will G. Knox, as party plaintiff. Judgment was rendered in favor of the defendant in the trial court and the plaintiff appealed. Defendant filed a motion to dismiss the appeal on the grounds that Will G. Knox had actually resigned his position as receiver for the plaintiff company prior to the trial on the merits and J. D. Wheeler had succeeded him as receiver. Therefore, the defendant urged that no proper party plaintiff was before the court. The court of appeal sustained defendant’s motion and remanded the case so that J. D. Wheeler might be joined as party plaintiff, and the case was once again submitted for trial on the merits. The lower court again gave judgment in favor of the defendant and the plaintiff now appeals from this judgment.

The facts seem to be fairly clear .and undisputed. Several weeks before the accident the defendant bought an automobile from Lewis A. Domingue, the Hudson dealer in Lafayette, La., and when the new automobile was brought in for repairs and a general check-up, the repairs were not completed before the defendant had to return to his work at the Rigoletts. Therefore, Mr. Domingue lent his own automobile to the defendant free of charge, until the repairs should be completed. The defendant was driving to work alone after daylight on the two-lane concrete highway leading from New Orleans to the Mississippi Gulf Coast. There were no other automobiles in sight and having just negotiated a slight curve he was approaching a draw bridge, when suddenly his right front wheel ran off the pavement. The shoulder was narrow and the defendant became frightened of the expanse of water to his right and the presence of large pieces of concrete on the shoulder which had been placed there to protect the roadbed from the tides. He jerked the wheel hack onto the highway with such force that the car was thrown sideways and skidded to the other side of the road where it somersaulted twice and came to rest near the water at the base of the roadbed.

The defendant testified on cross-examination as follows:

“Q. How did you happen to run off the highway? A. Well, I would not know that. I mean it surprised me when I did. I been driving for over thirty (30) years and that is the first time it happened to me.
“Q. In other words, you just drove off the highway without noticing you were driving off the highway, is that it? A. I was watching the bridge at the time that I made the curve.
“Q. When did you first see those rocks you are talking about that was on the right side of thfe highway? A. Well, they was stacked along there from the bridge a good distance just before I went off there.
“Q. And you had seen them before you went off? A. Yes. I seen when I first made the curve.”

By defendant’s admission it is apparent that he was aware of the presence of the concrete blocks before he ran off the road. He also admitted that he was not keeping the proper lookout for he said “I was watching the bridge at the time that I made the curve,” and that he was “surprised” when his right front wheel ran off the pavement. The defendant admittedly had driven over this same. highway several days before the accident occurred. It was daylight at the time of the accident and no cars were in sight and the defendant offers no valid reason for allowing the front wheel to run off the pavement at such a dangerous point, in fact, he urges the very dangerous nature of the locale, i. e., the narrow shoulder, the presence of the concrete blocks and the water at the base of the roadbed as a defense to the present suit. He contends that had he run off the road under normal conditions he would have been able to slow down and regain control of his car with little difficulty. However, the defendant is bound to take the stationary factors into account and these factors did not present an emergency such as would relieve him of negligence. If anything, these factors increase the degree of the defendant’s negligence. In failing to keep a proper lookout and allowing the front right wheel to run off the pavement under the circumstances presented amounts to negligence per se. Hamburger v. Katz, 10 La.App. 215, 120 So. 391; Lawson v. Nossek, 15 La.App. 207, 130 So. 669; Monkhouse v. Johns, La.App., 142 So. 347; Gomer v. Anding, La.App., 146 So. 704; Galbraith v. Dreyfus, La.App., 162 So. 246; Harrelson v. McCook, La.App., 198 So. 532.

There is no need to apply the doctrine of res ipsa loquitur as was done in the very similar case of Fetterly v. McNeely, La.App., 77 So.2d 757, since the negligence of the defendant is clearly proven without the need of employing a legal presumption. There is no dispute over the question of whether or not the defendant’s use of Lewis Domingue’s car amounted to a loan for use under Article 2893 of the LSA-Civil Code of 1870 or a bailment. It is not necessary to determine this question, for even if the defendant is considered a bailee, which is the view most favorable to him, he is still answerable for his negligence, as:

“ * * * The return of the automobile by the bailee in a damaged condition raises a presumption of negligence, and makes a prima facie case, and puts the burden on the bailee, or justifies an inference of negligence when the damage is such as does not ordinarily occur without negligence * * Blash-field, Cyclopedia of Automobile Law and Practice. Vol. 7, p. 661, Sec. 4673.
“Ordinarily a borrower or bailee of a car is not liable for the usual wear and tear on the car, or damage to the car which was not caused by bailee’s fault or negligence, but he is liable for damages arising from his negligence, misuse of the car or from gross want of skill in its use * * Blashfield Cyclopedia of Automobile Law and Practice, Vol. 7, p. 638, Sec. 4665. See Meine v. Mossler Auto Exchange, 10 La.App. 65, 120 So. 533.

For the reasons assigned the judgment of the lower court is hereby reversed and it is ordered that there now be judgment for the plaintiff .as prayed for.


author: LOTTINGER, Judge.

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    MOTORS INSURANCE CORPORATION v. Joseph L. GUIDRY.
    No. 4117.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rdbt. Adams, Roderick L. Miller, Lafayette, for appellant.
    J. Donald Aaron, Crowley, for appellee.
   LOTTINGER, Judge.

This is a tort action arising out of an in-tersectional collision which occurred in the City of Lafayette. The petition of the plaintiff, Motors Insurance Corporation, alleges that its automobile was being driven by one of its employees, James O. Crout, in a northerly direction along St. John Street when it was run into by an automobile driven by the defendant, Joseph L. Guidry, at the intersection of this street and West Convent Street. It is averred that the sole and proximate cause of the collision was the negligence of the defendant and, alternatively, that the latter had the last clear chance to avoid the collision.

The answer of the defendant admitted the occurrence of the accident and certain other facts but denied any negligence on the part of the defendant. It averred that the accident was caused solely by the negligence of the plaintiff’s employee, Crout, and alternatively, that ‘ the latter was contributorily negligent. A reconventional demand asked that the' plaintiff and Crout, who was thus made a part to the suit, be condemned to pay the total amount of damages caused his automobile.

After trial in the Lower Court, judgment was rendered dismissing the petition as well as the reconventional demand from which judgment the plaintiff has appealed. The defendant has neither appealed nor answered the appeal taken by the plaintiff.

The trial judge has favored us with written reasons for judgment which we herewith set out in full:

“This suit stems from an intersec-tional automobile collision occurring on January 26, 1954, at West Convent and St. John Streets, in the City of Lafayette. An employee of Motors Insurance Corporation, plaintiff, Mr. J. O. Crout, driving a company vehicle, was proceeding in a northerly direction with his wife a passenger in the car, and defendant, Joseph L. Guidry, was proceeding in an easterly direction along West Convent Street, with his mother and small sister riding with him. St. John Street is a through street having the right of way at this particular intersection.
“Photographs offered in evidence showing the vehicles involved in the collision show damage to the front end of the defendant’s car, with more damage to the right side than to the left side thereof, and damage to the left side of plaintiff’s vehicle commencing about midway of the left front fender to the door post between the -front and rear doors. The damage to this car, from the photographs, appears to be more severe toward the - rear than at the front.
“The collision occurred almost in the center of the intersection. Officer Francis Hebert testified that the front bumper of the Guidry car was about even with the manhole cover which is approximately in the center of the street, then later qualified his statement to state that the water was running out of the radiator óf the Guidry car on the manhole. He further testified that there were skid marks about three feet long behind Guidry’s car, and that it had been moved north so that it rested at an angle of approximately 45 degrees across the road. ' This officer also, measured the distance from the front end of Guidry’s car and the east side of the intersection and found it to be eighteen feet three inches, and from the plat introduced in evidence as exhibit P-1 it will be seen that St. John street is 36 feet in width at the intersection. (The measurement of 3T 6" on the plat as the overall width of the street is not explained and is not taken by the Court as controlling.)
“It is plaintiff’s theory that defendant Guidry drove into St. John street without stopping and at a high rate of speed, and ran into the side of his automobile, and. that .he had no opportunity to avoid .the accident. Mr. Crout states positively that he was driving at a speed of from 20 to 25 miles per hour, and was on the right hand side of the road, in his proper lane; and he states further that there were no obstructions to his view of West Convent street, except for some cars parked on the west side of St. John street,'and ‘you can see over the hood of a parked car as you approach.’ Mr. Crout also testified that he looked to his left and did not see the defendant when about 75 feet from the intersection, then he looked to his right, and finally saw defendant’s auto when he was right on him, a split second before the impact.
- “Defendant, on the other hand, says that he was not familiar with Lafayette, that he was looking for a doctor’s office and as he approached St. John street he looked for a stop sign, that he stopped his car before going into the intersection and then started again when he heard brakes screeching and observed plaintiff bearing down upon him at a speed he estimates to be forty or forty-five miles per hour. That he then immediately applied his brakes and came to a dead stop on the west side of the intersection, but plaintiff, who was actually in the middle of the street, straddling the center line, swerved his car to the right and struck the front of his car while it was standing still, dragging him to the north. He also states that he did not, see plaintiff’s car until’he heard his brakes, when it was ten or twelve yards away. He is' corT roborated in this testimony by his mother, and Mr. Crout is more or less corroborated by his wife.
“The Court will observe that the physical facts indicate that Guidry had stopped his vehicle at the time of the impact, and that the front end of his car was at or very near the center line of St. John Street when he did so. It also appears that Mr. Crout could not have been driving at an excessive rate of speed, but was probably traveling at about 25 miles per hour, a little to the left of the center line of St. John street.
“Regardless of these facts, however, the Court cannot see how this accident would have occurred if either Crout or defendant Guidry had been keeping a proper lookout as they were required to do. Mr. Crout says he did not see Guidry’s car until the moment of the impact, and that he looked to his left and the intersection was clear. Apparently he relied too heavily upon his ability to see into West Convent street over the hoods of the automobiles on the west side of St. John Street, which must have obstructed his vision. In either event, even though he was on a favored street, had he kept a proper lookout after approaching within 75 feet of the corner, he could easily have avoided the accident by passing to the east of Guidry. Guidry, on the other hand, was negligent also in entering the intersection without making sure that his way was clear.
“The Court is of the opinion that this accident and resultant damage, as in most intersectional collisions, was brought about and proximately caused by the joint and concurring negligence of the drivers of the two vehicles, and will deny recovery to either.
“For the foregoing reasons, it is ordered, adjudged and decreed that there be and is hereby judgment herein, dismissing plaintiff’s suit, and rejecting and dismissing the reconventional demand made by defendant against plaintiff and James O. Crout, for the damages sustained by him.” ■

A review of the transcript, the plat filed in evidence and the photographs fail to disclose any manifest error in the findings of the trial judge. Indeed, it appears clear to us, as it did to the trial judge, that had either party been keeping a proper lookout, the accident never would have occurred, and thus was caused by the concurrent negligence of both drivers.

Finding no manifest error in the judgment appealed from, the judgment is hereby affirmed. Appellant to pay cost of appeal.

Judgment affirmed.


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    Gus J. LABARRE v. J. W. BOOTH, Jr., et al.
    No. 4120.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.

      Elton A. Darsey, Houma, for appellant.
    Bienvenu & Culver, H. Foster, III, New Orleans, for appellees.
   LOTTINGER, Judge.

This is a suit for property damages resulting from an automobile accident. The Lower Court gave judgment in favor of petitioner, and the defendant has taken this appeal.

The accident occurred on December 25, 1947, at about 3:00 o’clock P.M., on Louisiana Highway No. 29 at the intersection of said highway with Trinity Road. Louisiana Highway 29 is a highly traveled artery, whereas Trinity Road is a private plantation road. The site of the accident is in Assumption Parish, about two and one-half miles below Napoleonville, Louisiana. The automobiles of petitioner and defendant were proceeding northerly from Thibodaux, Louisiana, toward Napoleonville, Louisiana. Petitioner was proceeding at about ten or fifteen miles per hour with the intention of turning, left into Trinity Road. Defendant was in the rear of petitioner and claims that he was traveling at about forty-five or fifty miles per hour. As defendant attempted to pass petitioner, petitioner executed his left turn, and the rear left of petitioner’s car was struck by the right front portion of defendant’s car. The damages to petitioner’s car was agreed upon at the sum of $472.92 by stipulation of counsel. Petitioner filed suit against defendant, J. W. Booth, Jr., and his liability insurer, General Accident Fire & Life Assurance Corporation, Ltd. Damages were awarded to petitioner, and defendant has appealed.

Louisiana Highway No. 29 is a paved highway of 18 feet in width. Trinity Road is a private unimproved road. The ■accident occurred on a clear day and on a straight stretch of highway. The parties admitted that the highway was straight for a distance of at least one-half mile south of the point of impact, and there was nothing to obscure the vision of either of the parties.

Petitioner testified that he looked before ■he turned left, but did not see anyone in his rear. He stated that he did not give a left-hand turn signal because it was a cold day and the windows were up, and, furthermore, he saw no one coming. As to the position of his car at the time of the impact, petitioner said:

“I think I was straddle of the black line with the front end aiming to get off the highway. I think I was fully on the highway at the time but I was trying to get off. I was straddle the black line. I probably was in the middle of the road.”

On this score, petitioner’s testimony is corroborated by Patrolman Waguespack, who investigated the accident. Patrolman Waguespack testified that the impact took place in the left, or western, lane of Highway No. 29. In connection with his testimony, petitioner drew a sketch of the position of his car at the moment of the impact, and the said sketch shows the extreme front right and extreme left rear portions of his car to be on the center line of the highway. In other words, according to the admissions of petitioner, his car was in the very center of the highway at the time of the impact.

We feel that the evidence presented shows without any question of a doubt, that the petitioner, at the very least, was guilty of contributory negligence.

.Let us assume that petitioner was traveling ten miles per hour at the time of the accident. According to Blashfield Cyclopedia of' Automobile Law and Practice, a car going ten miles per hour would travel 14.5 feet per second. Assuming that the defendant was traveling at a speed of 60 miles per hour, he would travel 88 feet per second. To be generous in favor of petitioner', if we were to assume that it took him a distance of twenty feet to make the arc prior to the impact, then defendant would have been only a distance of about 132 feet from the point of impact at the time petitioner commenced his turn, or about 110 to 120 feet behind the petitioner at the time. Certainly then, according to the figures, the defendant was only a short distance behind the petitioner and there was no reason whatsoever for the petitioner to have failed to notice the proximity of defendant’s car. Blashfield further shows that a car going at a speed of 60 miles per hour would take a total distance of 226 feet to come to a dead stop. This distance is made up of 66 feet reaction time and 160 feet actual braking time.

The only conclusion we can make, in the face of the above distances, is that the plaintiff was guilty of attempting a left turn when he knew, or should have known, that the defendant was only a short distance to his rear.

Counsel for petitioner has cited Spencer v. Crain, La.App., 53 So.2d 416 and '.Roberson v. Rodriguez, La.App., 186 So. 853, in support of their claim of negligence on the part of defendant: The Spencer case was a city case and may be distinguished from the present case in that the present accident occurred in wide open country. The speed limit in the present case was 60 miles per hour, and defendant had a right to be proceeding at said speed. In the Spencer case, the city speed limits were invoked, and defendant was found to be driving at an excessive rate of speed. The Roberson case involved a rear-end collision, which, of course, has nothing to do with the present situation.

We furthermore do not believe that the doctrine of last clear chance is applicable under the present' factual situation. The evidence shows that defendant was only a short distance from petitioner when petitioner commenced his turn. Blashfield shows that it was impossible for defendant to come to a stop. We do not believe that the defendant had any opportunity whatever to attempt t'o avoid the accident. He had absolutely no warning that the petitioner intended to turn left until the turn itself was executed, and the -testimony of petitioner himself shows that he had just begun his turn when the impact occurred.

The Statutory Law of this state appears to be very clear as is provided in LSA-R.S. 32:235, subd. A as follows:

“The driver of any vehicle on the highways of this state shall ascertain, before turning around upon any highway, that there is no traffic, vehicle or pedestrian, approaching from either direction which will be unduly delayed and shall yield right-of-way to such approaching traffic and shall not attempt to make a turn unless the way- is clear.”

It is likewise provided in LSA-R.S. 32:236, subd. A as follows:

“The driver of any vehicle upon a highway of this state, before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and, if any pedestrian may be affected by such movement, shall give clearly audible signal by sounding the horn; and, whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this Section, plainly visible to the driver of such other vehicle, of the intention to make such movement.”

It is further provided in LSA-R.S. 32:237, subd. E as follows:

“The driver of a vehicle entering a public, highway from a private road or entering a private road.from a public highway shall yield the right of way to all vehicles approaching on the pub-lie highway and to all pedestrians prop-' erly walking thereon.”

It is the well settled jurisprudence of our state that a person who attempts to make a left turn on the public highways of the ■state must ascertain before turning that the turn can be made safely. The defendants have properly pleaded the contributory negligence of the plaintiff and we feel'that the facts in this case conclusively show that the petitioner was guilty of at least contributory negligence, and that the judgment of the Lower Court should be reversed.

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

’ Judgment reversed.


author: TATE, Judge.

text:
    J. Azare LE BLANC, Plaintiff-Appellant, v. Lloyd J. ROCK and W. J. Minor, Sr., Defendants-Appellees.
    No. 4110.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.

      Jerome E. Domengeaux, Lafayette, for appellant.
    James R. Parkerson, Franklin, for ap-pellees.
   TATE, Judge.

This suit upon a promissory note is for deficiency judgment. Previously, by execu-tory process, plaintiff had seized and sold at sheriff’s sale (with appraisement) certain property mortgaged to secure this note. No appearance was made in these earlier proceedings by defendants, comakers of the note and copurchasers-mortgagors of the equipment mortgaged to secure same.

Defendants answered the petition for deficiency judgment, however, affirmatively alleging that they are not obligated to pay the balance of the note given for the purchase price, since the beer cooler and condensing unit purchased by them from plaintiff did not properly cool their beer and were subject to such redhibitory defects or breaches of warranty as to be utterly worthless for the purposes for which purchased. This defense was sustained by the District Court, which rendered judgment after trial dismissing plaintiff’s suit.

In seeking reversal of this judgment, plaintiff-vendor-holder first urges that the defendant-purchasers, having failed to appear and raise these defenses in the earlier executory process foreclosure proceedings, are estopped herein to assert such defenses — in short, that the order issuing the writ of executory process to seize and sell the property is res judicata between the parties, defendants having failed to appeal from or seek injunction against same.

Executory process, Code Prac. arts. 732-753, is a procedure of seizure and sale of property mortgaged by “confession of judgment”, executed before a notary and two witnesses, Article 733, C.P., “on a simple petition, and without a previous citation of the debtor,” Article 734, C.P. However, at least three days notice of this order of seizure must be given to the debtor, Articles 735, 736, C.P. While technically executory process is not an in rem proceeding, it seeks immediate foreclosure of property thus solemnly mortgaged and does not assert any demand for personal liability of the debtor over the value of the property. For instance, herein the prayer in the previous executory process proceedings does not seek monied judgment against the mortgagors; it simply seeks immediate seizure and sale of the property mortgaged. The District Court correctly held that defendants’ failure to contest the seizure and sale of equipment by executory process does not estop them from asserting defenses on the merits in a subsequent suit by the vendor for a monied deficiency judgment.

The cases cited to us by appellant are not determinative of the present question. Succession of Whitner, 165 La. 769, 770, 116 So. 180, and Ludeling v. Chaffe, 40 La.Ann. 645, 4 So. 586, concern the failure to raise defenses to the merits in earlier suits which proceeded to judgment on the merits. In the present case, there was no judgment on the merits, simply seizure and judicial sale of property pursuant to order;. strictly speaking, the issue was not the validity of the obligation, but the validity of plaintiff’s privilege upon the property and his right to reclaim same by executory process (which are not denied by defendants-herein). Reichard v. Michinard, 33 La.Ann. 380, held that defendant could not urge in the subsequent deficiency judgr ment proceedings the alleged invalidity of the earlier sheriff’s sale under executory process (for selling the seized property en bloc, rather than by lots) when he had failed as was his .right to protest the defects at time of sale. Brown v. Freret, 10 Orleans App. 150, held that a defendant who permits without opposition the execution of judgment, cannot thereafter contest its validity. While these latter two cases ¡might be authority for the proposition that present defendants, having permitted the seizure and sale under executory process without opposition, cannot subsequently attack the validity of the order for seizure and sale, the seizure, or the sale; they are not authority for the proposition that defendants are estopped to assert defenses to monied judgment against them, sought for the first time in the present deficiency-proceedings.

Plaintiff-appellant, vendor, further urges that the evidence does not sustain the District Court’s finding of a breach of warranty on the part of vendor, since the alleged defect was not in the' beer cooler and condensing unit sold by him to defendants, but in the coin meter affixed to this property to provide a convenient method of making and collecting the installment payments due thereupon; and, further, that such vice or defect was not in the coin meter, so much as in the defendants’ improper or careless usage of same.

When plaintiff-vendor installed the electrically-powered beer-cooling unit, by mutual agreement an auxiliary coin meter (of which the vendor retained ownership) was also installed. It was necessary for purchasers to place 7 quarters ($1.75) during each 24 hours to maintain the continuous flow of electricity necessary to operate the cooling and condensing unit. These daily payments deposited were to be collected by the plaintiff-vendor to pay the monthly installments of $52.50.

On at least five different occasions during the month or two that defendants maintained the machine, it was necessary to secure the services of plaintiff-vendor or his agent to unjam the meter. During the time the meter was jammed, the electric current was cut off, and on two or three occasions the beer in the kegs was spoiled. Defendants claim that they could not rely on the beer-cooling unit to operate and it was completely worthless to them because of this inconstant operation, the danger of spoilage, and their inability to get prompt service from plaintiff to clear the meter and prevent loss of business and spoilage of beer.

Although plaintiff argues that the meter itself was not defective and that the jamming was caused by defendants’ failure to follow instructions as to the insertion of the quarter coins, we do not find manifestly erroneous the District Court’s conclusion that the meter itself failed to function, or “was a non-operating meter”, thus rendering the entire cooling unit useless. Although technically the meter belonged to the plaintiff, and the defect may not be strictly speaking a redhibitory defect under Article 2520, LSA-Civil Code, we likewise agree with the District Court’s conclusion “that it makes little difference to the proper operation of the unit which of the parts failed to function. The result is the same.”

Therefore, “although it be agreed that the seller is not subject to warranty, he is, however, accountable for what results from his personal acts”. Article 2504, LS A-Civil Code. Also, when the plaintiff sold the defendants the cooling unit, the law bound him to warrant that the unit would operate, Article 2475, LSA-Civil Code. The District Court observed in conclusion that the “situation was brought about by his [the seller’s] own act in insisting upon the use of the meter so that he could more easily collect his installments. Permitting the plaintiff to recover in this action is to assist him to enrich himself as a result of his own neglectful acts.” Since purchasers can annul the sale on such grounds, J. Alfred Mouton, Inc., v. Hebert, La.App. 1 Cir., 199 So. 172, likewise for such reasons purchasers can avoid liability for the balance of the purchase price; see J. B. Beaird Co., Inc., v. Burris Bros., Ltd., 216 La. 655, 44 So.2d 693.

For the above and foregoing reasons, the judgment of the District Court herein dismissing plaintiff’s suit is affirmed. All costs to be paid by plaintiff-appellant.

Affirmed.


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    Guy G. GAUTREAUX et al., Plaintiffs-Appellees, v. Leon ORGERON et al., Defendants-Appellants.
    No. 4122.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Porteous & Johnson, New Orleans, for appellant.
    A. Deutsche O’Neal, Houma, for ap-pellee.
   TATE, Judge.

This personal injury aiid property damage suit by Guy Gautreaux and his collision insurer (as subrogee) arises from a collision by Gautreaux’s passenger automobile with a large cane truck. Made defendant are the truck’s owner, driver, and liability insurer, who appeal from adverse judgment.

The negligence of defendants’ driver in turning a long (42-45') cane truck so as to block the entire highway is not disputed. The chief defense is that -Gautreaux, driver of the automobile, is barred from recovery by his contributory negligence in smashing into the broad side of the- truck.

'■ The accident occurred in open, country in Tafourche Parish. Louisiana' Highway 78 at-the place of the accident is approximately 18 feet in width, black-topped, and' with ■shoulders of approximately 12 feet on' each •side.. The east shoulder drops abruptly into the bayou. The west shoulder is bounded by a ditch and sugar cane fields.

The accident occurred at about 5:30 a. m. ■on November 10, 1952, at dawn (“between •daylight and dark”). It had been raining .during the night, and at the time of the accident, a light rain or sprinkle was falling, requiring the use of windshield wipers. However, as the District Court found, the record does not indicate that visibility was unduly obscured, and motorists could see at least 200 feet ahead.

'Gautreaux was driving “not exceeding <60 mph”, with his lights on bright. Before the accident, the cane truck (headed south, as was Gautreaux) had pulled across the highway to the driver's left (east), or the bayou side, and parked partly on the left •shoulder. The, truck driver pulled back across the highway immediately prior to the accident at a speed of 4-5 mph, in order to cross to a hoist in a cane field on the right ■(west) side of the highway. When struck in the middle of the trailer, the front end of his cab had cleared the highway and was on the right (west) shoulder thereof.. The right side of the trailer was struck by Gautreaux approaching from the north. It is admitted there were no truck lights whatsoever on this side or visible to oncoming traffic.

The District Court in an excellent review of the facts herein and the applicable jurisprudence held that the act of the truck driver in turning his unlighted truck so as to block the entire highway, without warning and without observing oncoming traffic was the sole proximate cause of the accident; and that if plaintiff Gautreaux’s speed was excessive under the circumstances, such speed was not the proximate cause of this accident and of the damage for which relief is sought.

Calling our attention to the weather conditions somewhat limiting visibility and certainly making it more difficult to, stop on the wet- asphalt, defendants forcefully urge that plaintiffs are barred from recovery by •the contributory negligence of- Gautreaux in driving at a speed (60 mph) excessive under these weather conditions; that, further, plaintiff was "overdriving” his headlights in that in,-the dawn hours and with a light rain, he was not able to stop within a range of his headlights.

Defendants cite to us such cases as Geoghegan. v. Greyhound Corporation, 226 La. 405, 76 So.2d 412; Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238; Cooper v. Boudreaux, La.App. 1 Cir., 80 So.2d 873; Mickens v. F. Strauss & Son, La.App., 28 So.2d 84; Hogue v. Akin Truck Line, La.App., 16 So.2d 366; Horn v. Barras, La.App. 1 Cir., 172 So. 451; Pollet v. Robinson Lumber Company, 10 La.App. 760, 123 So. 155. This jurisprudence indeed supports the legal propositions relied upon by defendants.

However, as the District Court observed, most of ,these cases concern a more or less stable object stopped or parked in the traffic lane of the approaching vehicle, of such size, shape or .color as to have been readily seen by an approaching careful and observant driver; or an object which might be an-, ticipated by a reasonably prudent driver.

In the- present case, however, the obstructing truck moved from a parked position on the far shoulder, or bayou side, .from which no traffic could normally be .anticipated, without warning and without any vehicle lighting equipment whatsoever, and crossed into the plaintiff’s lane of traffic approximately 3 seconds before the impact. The bare skeleton outline of the empty cane truck, with its very light frame work and very widely spaced pickets and slats, blende'd into the dark background. Even had plaintiff observed this long truck parked on the far shoulder or moving slowly in the left lane reserved for traffic coming from an opposite direction, he could not reasonably anticipate the sudden crossing of this long vehicle into his path, and obstructing the entire highway.

By the time the truck crossed into his own lane, and plaintiff Gautreaux had a reasonable opportunity to . evaluate this entry, Gautreaux was unable to avoid the accident in the situation created by the gross negligence of the defendant; and, as the District Court held, would have been unable to do so even approaching much 'more slowly. Therefore, plaintiff’s - speed was not a proximate contributory cause of the accident.

Whether plaintiff’s hitting an object in his path is in fact contributory negligence depends upon all the facts and circumstances existing in each case, which determine whether or not the approaching motorist had sufficient reason for not seeing the object or obstruction in time to stop, depending not only on whether the object is difficult to see, but also whether it is unusual or not reasonably to be anticipated so as not to alert the driver’s attention, Gaiennie v. Cooperative Produce Company, 196 La. 417, 199 So. 377. See also Lynch v. Fisher, La.App., 41 So.2d 692 (skeletal body of logging truck parked in driver’s own lane of traffic “not easy to be perceived by driver of a vehicle approaching from the rear”, “not of such nature as to impel and focus his attention”, 41 So.2d 694, 696). See also Achord v. Great American Indemnity Company, La.App. 1 Cir., 68 So.2d 643.

We likewise agree with the District Court that Gautreaux could not avoid the accident within the short period of time it took for defendant’s truck to have entered plaintiff’s lane of traffic and to block the entire highway and a portion of both shoulders thereof. All plaintiff could do was slam on his brakes to minimize the impact, which he did.

The property damage sustained by the collision insurer, co-plaintiff,' is admitted, as well as plaintiff’s special damages for slight medical expense and for loss of wages.

Plaintiff answered the appeal seeking an increase of the award of $250 for pain and suffering sustained by him as a result of the collision, being chiefly knees skinned, minor bruises on chest and arm, a sprinkling of slight glass pricks on the neck. We do not feel the amount awarded was •manifestly insufficient, and it will not be disturbed.

For the above and foregoing reasons, the judgment appealed from is hereby affirmed at appellants’ cost.

Affirmed.


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    Fred H. RHYMES, Jr., et al., Plaintiffs-Appellees, v. Raoul P. GUIDRY and Marquette Casualty Company, Defendants-Appellants.
    No. 4113.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.

      Dubuisson & Dubuisson, Opelousas, for appellant.
    Peter C. Piccione, Lafayette, for appel-lee.
   TATE, Judge.

The sole remaining issue on appeal is the quantum. The amount and nature of the damages were the chief issues in a three-day trial on the merits.

This suit is for the damages sustained by Fred H. Rhymes, Jr., his wife, his 18-year-old daughter, and his 10-year-old son, all of whom were riding in the Rhymes’ car when - it was involved in an accident caused through the undisputed negligence-of the insured, co-defendant Guidry. Defendants seek decrease, and plaintiffs (by answer to the appeal) increase, of the District Court’s award of damages for personal injuries sustained by all four mem-, bers of the Rhymes family, and of the additional award to Rhymes individually for loss of earnings caused by injuries sustained -in the accident. All parties acquiesce in the award to Rhymes of $642.50 special damages for medical expenses and property damage, etc.

1. Personal Injuries.

We find equally forceful authorities and reasons cited to us by defendants that the awards for personal injuries were excessive, and by plaintiffs that such awards were insufficient. The award of damages for pain, suffering, shock, etc., for personal injury, of necessity somewhat arbitrary, depends to a large extent upon the facts and circumstances of each cáse, and we find neither manifestly insufficient nor manifestly excessive the following awards:

(a) Fred H. Rhymes, Jr., $2,000 for: lacerations, brush burns and severe bruises on body, back, neck, forearm, and hand; fractured rib; temporary nerve root damage; confined to home for approximately 4 weeks; completely disabled to do any physical work with his hands or otherwise for 2 months to 10 weeks; fairly severe pain for a week and unable to move without pain for approximately 2 months;

• (b) Mrs. Inez B. Rhymes, wife, $750 for: ruptured blodd vessel in right forearm; laceration of the upper lip; severe bruise to the chest and multiple bruises to both legs; almost invisible tiny scar in cupid of lip; three weeks pain and suffering;

(c) Elizabeth Ann Rhymes, daughter aged 18 years, $350 for: small laceration to right upper eye lid; bruise of tissues around right eye; multiple bruises to left thigh and hip;

(d) James H. Rhymes, son aged 10, $200 for: brush burns on back; severe bruise to left side of neck; black eye.

2. Loss of Earnings by Rhymes.

Plaintiff Fred H. Rhymes, Jr. was awarded: (1) loss o-f earnings as piano tuner and repairman, for loss of 10 weeks wages at $85 per week, or $850 total; (2) loss of wages as band leader of $576; (3) net loss of the crops on land actually planted by plaintiff Rhymes before the accident in the amount of $1,669.54 for loss of cotton, and $2,146 for loss of sweet potatoes.

(a)Loss of earnings as piano tuner and repairman:

Defendants urge that this award should be disallowed in toto since the sole testimony supporting the amount of this award is the self-serving statement of Rhymes that he averaged $85 per week in this one of his three occupations. His wife also testified that he earned additional income of unspecified amount as piano tuner in addition to his other earnings.

Loss of earnings due to injury, may of course be awarded to one in business for himself based on plaintiff’s testimony as to average weekly earnings, Brady v. Avenue Theater Corporation, La.App., 194 So. 721 (nurse); White v. Halliburton Oil Well Cementing Co., La.App., 1 Cir., 183 So. 537; 185 So. 68 (doctor); ordinarily the discretion of the trial court in accepting such testimony will not be disturbed, Anagnosti v. Toye Bros. Yellow Cab Co., La.App., 56 So.2d 166 (bond salesman); Lynch v. Fisher, La.App., 41 So. 2d 692 (real estate salesman).

However, although Rhymes stated that he kept books and records of these earnings and had filed income taxes thereupon, he did not bring such records to court (although he had brought records of other earnings, see Tr-305). We have therefore decided to disallow the award in this instance, on the principle that plaintiff could have easily brought corroborative evidence (his records, etc.) but failed to do so, Jenkins v. A. R. Blossman, Inc., La.App. 1 Cir., 60 So.2d 131; Scott v. Davis, La.App., 56 So.2d 187. Thus unsupported by such available records his testimony was more in the nature of an estimate than proof, Horrell v. Gulf & Valley Cotton Oil Co., Inc., 16 La.App. 90, 133 So. 394.

Further, Rhymes himself frankly admitted that his piano tuning activities were fitted to slack seasons as farmer and musician (Tr-305), and we believe the evidence indicates that during the 10 weeks of disability following the accident, plaintiff would necessarily have been fully occupied with his alternate occupations as musician and farmer, for which we believe he is fully compensated below.

(b) Loss of earnings as musician.

The District Court awarded Rhymes loss of earnings as musician (band leader) during 8 weeks’ disability, at 3 nights per week at $24 per night, or a total of $576. Defendants do not complain of this award.

Rhymes seeks increase of this item of damages, arguing both that he was disabled for a longer period and also that due-to his admitted incapacity during the 8 weeks he missed employment for a long-run engagement. We do not find manifestly erroneous the District Court’s disallowance of a longer period of disability based-on the medical testimony in the record; nor its disallowance as speculative of the alleged earnings Rhymes might have received from a long-run engagement at which he might have been employed if it had not been for the accident.

(c) Damages for loss of crops.

The District Court awarded Rhymes damages for the loss of crops on 25i/¿ acres of cotton and 7 acres of sweet potatoes which Rhymes had planted before the accident.

Despite defendants’ argument that damages for loss of crops is limited to the cost of seed and labor expended at date of injury and cannot be the speculative profits which would have been received when the crops were matured and gathered, Boudreaux v. Thibodeaux, 149 La. 400, 89 So. 250, we believe the District Court correctly applied the more modern rule that in determining damages to growing crops “the proper criterion to be used in arriving at the approximate loss suffered by the plaintiffs would be the average-yield and market value of crops of the same kind of .[crops] rice planted and cared for in the same manner in the same community”, Dubois v. Phillips Petroleum Co., 221 La. 161, 59 So.2d 107, at page 108, “less the cost of marketing, harvesting and maturing”, the market value being “what the crops would have brought in a matured state at a sale in that community”, Watkins v. Gulf Refining Co., 206 La. 942, 20 So.2d 273, at page 281.

It should be further stated that plaintiff produced convincing proof that he had unsuccessfully sought to minimize his losses by securing tenants (which he was .able to do for a small portion of the land) and by seeking the assistance of others in securing day laborers to perform the work he and his family would have done if not incapacitated. Under such circumstances, an injured person unable to care for and harvest his crop by reason of injuries negligently inflicted upon him and unable to procure anyone else to do so, can recover as damages the loss of income .from such crop, Alengi v. Hartford Accident & Indemnity Co., La.App., 167 So. 130, 131; 162 So. 218.

Defendants urge in the alternative various factual reasons why Rhymes could not have raised the crop for which the District Court allowed damages based on the average yield, price, and cost of production and harvesting of crops in the neighborhood, and why such figures as found by the District Court were not correct. The reasons for judgment rendered by the District Court indicate careful study and analysis of the 346-page record, and we see little point in detailed repetition of the evidence. We find supported by the record the Court’s findings as to yield, price, and cost of production and harvesting of crops in the immediate neighborhood of plaintiffs, and we do not find manifestly erroneous the court’s determination ■of the crops, expenses, and net profits that Rhymes would have made from his already planted crops but for the injuries •sustained in the accident with the'defendant-insured.

For instance, defendants' produced an expert who owned and managed a 3000-acre plantation in a neighboring parish and who testified from detailed records and obviously expert knowledge as to yield, costs, etc., of the tenants on his plantation. We believe the District Court correctly accepted in preference the testimony of small farmers in Rhymes’ immediate neighborhood as to the yield that year of land in Rhymes’ immediate community and as to the costs of a small family-size farm, owned or partly owned by the man actually farming it, even though such small farmers did not maintain elaborate records.

Defendants further urge that plaintiff cannot recover damages as to the 15(4 acres of cotton planted on land rented on third-shares from Messrs. Blanchard and Servat, because plaintiff did not produce a lease or the testimony of lessors. However, the record indicates-that two of plaintiffs’ neighbors, Hanks (Tr-195) and Gotch (Tr-224), testified, as did plaintiff and his wife, that Rhymes had rented and actually planted the land in question, and this testimony is somewhat corroborated by a crop lien executed to the People’s Cotton Oil Company (P-6) before the accident. Plaintiff’s damages in this respect are sufficiently proved in the record.

Although the record supports the District Court’s greater award, plaintiff’s recovery for loss of his sweet potato crop is limited by the demand of his petition to $150 per acre for 7 acres, or $1050; less $150 actually harvested, or a net award of $900. (See Articles XX, XXVI, petition.) The judgment must therefore be reduced to omit the excess inadvertently awarded.

Plaintiff seeks recovery not only for loss of profits on acreage already planted, but also for loss of profits on acreage he intended to plant in cotton and potatoes but was allegedly prevented from doing so by the injuries sustained in the accident. He forcefully argues that since this is a loss of revenue occasioned by injuries sustained through the defendants’ negligent act, he is likewise entitled to this recovery, see Annotation, “Measure of Damages for lesser earning capacity of a person engaged in business for himself,” 12 A.L.R.2d 291.

However, we do not find erroneous the court’s disallowance of such damages as speculative or uncertain. Rhymes himself frankly admitted that he intended to plant the extra cotton land only if he had the opportunity to do so, and admitted that the planting of additional acreage in cotton and potatoes was somewhat dependent on weather conditions, etc. “Plaintiff, not having any crop, lost none, and therefore suffered no damages from the loss of crops”, Boudreaux v. Thibodeaux, 149 La. 400, at page 401, 89 So. 250; although had he sought it, plaintiff might have recovered the alleged expenditures incurred in preparing the land for planting.

Thus, as to crops already planted and growing, the anticipated yield and profits can be approximated with reasonable certainty based on the average crops in the immediate neighborhood. It was not unreasonable to conclude on the basis of the record that once time, effort and expense had been invested in the planting, such crops would be attended with the same average attention and success or failure as other qrops in the same neighborhood. But as to crops not yet planted, particularly in the circumstances of this case, it may be speculative to assume that the intention would be father of the deed — when the weather, mere “spring fever”, or the alternative economic activities might have deflected the ambitious farmer from his contemplated expansion in acreage.

3. Decree.

For the above and foregoing reasons the judgment herein is amended to reduce the award to Fred H. Rhymes, Jr. in his individual capacity to $5,788.04 with legal interest thereupon from date of j'udicial demand until paid, and as thus amended, the judgment of the District Court herein is affirmed in all other particulars, respects, and awards. Cost of this appeal is to be paid by plaintiffs-appellees.

Amended and affirmed.