author: PONDER, Justice. HAWTHORNE, Justice

text:
    232 La. 786
    Aurelia JONES v. L. B. Jack HENNESSY and O. C. Hennessy, Inc. (two cases).
    Nos. 42915, 43013.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    Fusilier & Vidrine, Ville Platte, for plaintiff-relator.
    Guillory & Guillory, Eunice, for defendant-relator.
    Dubuisson & Dubuisson, Opelousas, for defendant in call in warranty-respondent.
   PONDER, Justice.

We granted writs to review a judgment of the Court of Appeal dismissing a suit under the Workmen’s Compensation Laws for total and permanent disability on the ground that the relationship between the plaintiff’s employer and the defendant was that of vendor and vendee and hence plaintiff was not within the scope of LSA-R.S. 23:1061, formerly Section 6 of the Workmen’s Compensation Act.

Plaintiff brought suit alleging that he was employed by one E. H. Malone, who was a contractor working for the defendant, the principal, and that the contract with Malone was necessary and incidental to the business of the defendant so as to place plaintiff under the provisions of LSA-R.S. 23:1061. The defendant answered denying liability and alleging the relationship of vendor and vendee between himself and Malone.

After trial on the merits, the lower court gave judgment for plaintiff and against the defendant and its insurer, who had been called in warranty. On appeal, the court of appeal reversed this judgment on the ground that the defendant was solely a purchaser and, therefore, not responsible for the compensation due the plaintiff relying upon the decision of the court of appeal in the case of Kline v. Dawson, 84 So.2d 76. Upon application we granted writs and the question presented for determination is the relationship between the plaintiff and the defendant.

The evidence shows that the plaintiff, an illiterate Negro of 31 years of age and a resident of Houston, Texas, was brought from Houston to Basile, Louisiana, by L. B. “Jack” Hennessy. Hennessy was an agent ■of O. C. Hennessy, Inc., a Texas Corporation. The plaintiff was employed to take ■over the logging operations on the tract in Basile on which O. C. Hennessy, Inc. (a purchaser of cross-ties) owned the logging rights. Hennessy (who was the son of O. C. Hennessy and a stockholder in that corporation) moved the plaintiff and his family to Basile, rented the necessary power saws and trucks at so much per tie to plaintiff and in addition made arrangements for plaintiff’s groceries, oil, gas, and even rented a house for him. Mr. Hennessy supervised plaintiff’s operation on this tract and computed the pay plaintiff was to pay his employees since plaintiff was illiterate. There is no dispute about the fact that on this operation the plaintiff was the employee of the defendant.

After the timber at Basile had been cut, plaintiff was approached by Hennessy who asked him if he would like to move to Evangeline Parish where E. H. Malone had the right to cut timber on the Fontenot tract. Hennessy moved the plaintiff and his family to St. Landry and again paid some rent, grocery bills, gasoline and other expenses and plaintiff was told by Hennessy to cut the timber and take it to the Malone Mill. It is on this operation that the accident disabling the plaintiff occurred and which the defendant contends changed his relationship with the plaintiff.

By credit sale Hennessy sold to Malone one Corley Tie Mill to be used for the purpose of manufacturing railroad cross-ties. This so-called sale contained the following provisions:

“Vendee and Mortgagor agree to use the above machinery exclusively for the cutting and manufacture of railroad ties, until the note herein stated is paid in full. * * * As a further consideration of this sale and chattel mortgage Vendee and Mortgagor agrees to first offer for sale to vendor and Mortgagee, before selling to any one else, all ties manufactured by him.”

The price of the Corley saw mill was $1,-908.76 and was represented by a note dated August 15, 1951 payable at so much per tie. The plaintiff never saw Malone before he arrived at the St. Landry location and never talked price with him, the price agreed to be paid plaintiff was fixed by Hennessy before plaintiff’s arrival at St. Landry. Hennessy paid two months rent in advance when he moved the plaintiff to this operation and guaranteed him a line of credit so that plaintiff could purchase groceries. The record shows that on this operation the plaintiff was paid by Hennessy except for the payment due him after the accident, which payment was made for the first time by Malone.

It is significant to note that Malone, by the so-called credit sale, on August 15, 1951 purchased the Corley saw mill. The accident to plaintiff occurred on October 13, 1951 and the mill was then sold to a man named Carpenter on October 26, 1951 when there remained a balance due of $1,657.82. The original note signed by Malone and dated August 15, 1951 was never surrendered by defendant to Malone which corroborated Malone’s testimony in the record that O. C. Hennessy, Inc. did not settle with him before transferring the mill to Carpenter, thus disregarding any alleged ownership of said mill by Malone. In this regard Hennessy testified that the unpaid balance which Malone owed to O. C. Hennessy, Inc. on the mill was “dropped”. It is also significant that shortly before the date of the accident Hennessy advanced $360 to Malone for some ties to be made out of lumber on the ground at the mill but after the accident this sum was paid back to Malone and the ties shipped to someone else.

The conclusion reached by the court of appeal that the defendant was a purchaser is erroneous. Furthermore, the case of Kline v. Dawson, 84 So.2d 76, relied on by the court of appeal, was reversed by this court in 230 La. 901, 89 So.2d 385. In that case this court held that there was no vendor-vendee relationship since Kline made arrangements with the foreman of the Dawson Lumber Company and not with the middle-man, Negocia, and was paid for his services by the lumber company and not by Negocia. So here plaintiff was hired by Jack Hennessy, acting as agent for O. C. Hennessy, Inc., and paid by him. The plaintiff in the instant case did not meet Malone until he was moved to St. Landry by Hennessy, who told him to work on the Fontenot tract and deliver the lumber to the Malone mill. Furthermore, the plaintiff was using the defendant’s truck and power saw which the defendant rented to him.

As to the sale of the Corley mill to Malone, the trial court aptly stated:

“It is apparent that these ‘sales’ were regarded by O. C. Hennessy, Inc. as mere devices to enforce exclusive control of manufacture by the ‘Mortgagor’, to be entirely disregarded when O. C. Hennessy, Inc. desired to utilize the machinery with the services of a different agent. It is further manifest that by virtue of its option agreement the O. C. Hennessy, Inc., actually had the exclusive rights to the products of its machinery, and that should any of its agents feel the price too low and attempt to dispose of the products elsewhere, then that agency would be swiftly terminated.”

We think the decisions on the cases of Kline v. C. W. Dawson Lumber Co., 230 La. 901, 89 So.2d 385, and Belaire v. Elders, La.App., 49 So.2d 508, are controlling herein, and the contract with E. H. Malone was necessary and incidental to the business of the defendant corporation so as to place plaintiff under the provisions of Section 6, Paragraph 1, of the Workmen’s Compensation Act. Owers v. Louisiana Long Leaf Lumber Company, La.App., 14 So.2d 275; Seabury v. Arkansas Natural Gas Corp., 171 La. 199, 130 So. 1; Thibodeaux v. Sun Oil Company, La.App., 40 So.2d 761.

It has been called to our attention by the defendant’s insurer, who was called in warranty and cast in judgment by the lower court, that under the express terms of the insurance contract liability is limited to cases arising under Texas law. We have examined the contract and find this to be true, hence the insurer should be discharged.

For the reasons assigned, the judgment of the court of appeal is reversed and set aside and there is now judgment in favor of plaintiff Aurelia Jones, and against defendant. O. C. Hennessy, Inc., condemning it to pay to plaintiff $30 per week beginning on October 13, 1951, for a period not to exceed 400 weeks in all, together with legal interest on each past-due installment; plus $500 medical benefits. The defendant’s demand calling the United States Fidelity •& Guaranty Company in warranty is rejected. All costs to be paid by the defendant.

HAWTHORNE, Justice

(dissenting).

I am of the opinion that the judgment of the Court of Appeal is correct and should be affirmed. See 85 So.2d 693.


source: Caselaw Access Project

author: HAMITER, Justice.

license: Public Domain

text:
    232 La. 794
    Domenico FAZZIO v. RIVERSIDE REALTY COMPANY, Inc.
    No. 42975.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      Steeg, Shushan & Pradel, New Orleans-,, for defendant and appellant.

      Comiskey & Schaff, Norman Prender-gast, New Orleans, for plaintiff-appellee.
   HAMITER, Justice.

Plaintiff, Domenico Fazzio, is the operator of bowling alleys. Defendant, the Riverside Realty Company, Inc., is the owner and lessor of portions of a shopping center located on Franklin Avenue in the City of New Orleans. In the early part of 1949 T. A. Pittman, president of the defendant corporation, began negotiations with plaintiff with the view of constructing for and leasing to the latter a building in such center suitable for bowling and restaurant purposes. After numerous conferences (at which plaintiff was assisted by his sons Sam and John Fazzio) plans and specifications, prepared by the defendant’s architects, were agreed upon; and on August 29, 1949 a written lease contract was signed. Following completion of the building in April, 1950 plaintiff installed his equipment therein (including eighteen bowling alleys), and he commenced operations under the name of “Sugar Bowl Lanes”.

On July 23, 1954 this suit was instituted by the lessee against the lessor. Among other things the petition alleged:

“That, in addition to the failure of the defendant to comply with the lease, its plans and specifications, as outlined above, the defendant has likewise failed to deliver the leased premises to the plaintiff in good condition and free from vices and defects in the original construction of the leased premises.

“That the leased premises were not delivered in good condition and the leased premises are structually defective and contain vices in the original construction, to such an extent that said premises are becoming unusable and inadequate for the purposes for which the premises were leased, in the following particulars, among others, to-wit: water is entering the leased premises through the floors and walls of the building, causing the bowling alleys, installed by the plaintiff, to become damaged and rendering certain electrical equipment, used for bowling, inoperative.

“That the entrance of water into the leased premises began in about April, 1951 and is due to the failure of the defendant to properly design and construct said building and likewise the defendant’s failure to adhere to the plans and specifications by omitting the exterior stucco on the outside walls.

“That since April, 1951, the water penetration and dampness have increased; that the plaintiff was able to offset the water penetration somewhat in the beginning by using heaters, fans and pumps to dry the premises, but the constant water penetration and an increase in the water penetration have rendered any efforts by the plaintiff to keep the premises dry without avail.”

Plaintiff demanded damages in the total amount of $25,747.50. He further prayed for judgment condemning the defendant corporation to correct the omissions, vices and defects complained of or, on its failure to so perform, authorizing him to make the corrections and to deduct the cost thereof from the rent.

The defendant excepted to the petition as being vague and as stating no cause of action. On the overruling of the exceptions an answer was filed in which it denied that the building was structurally defective and it affirmatively averred that under the terms of the lease plaintiff was obligated at his expense to make all repairs necessary to prevent dampness in the premises.

After a lengthy trial judgment was rendered, based on the verdict of a jury, reading in part as follows: “It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff,' Domenico Fazzio and against the defendant, Riverside Realty Company, Inc., condemning defendant to do the following work on the premises bearing municipal No. 2909 Franklin Ave. identified as Sugar Bowl Lanes:

“(1) Apply stucco to the exterior surface of the walls of said buildings, and

“(2) Make said building free from vices and defects causing water to enter the leased premises through the floor and walls of the building.

“And in lieu of the said defendant doing the aforesaid work promptly the plaintiff, Domenico Fazzio, shall have the right to do same, and deduct the cost thereof from the rents due defendant, Riverside Realty Company, Inc., under the terms of the lease existing between the parties.

“It is further ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Domenico Fazzio, and against the defendant, Riverside Realty Company, Inc., for the sum of $15,000 together with legal interest thereon from judicial demand until paid and all costs of suit.”

The defendant appealed from the judgment. Plaintiff has answered the appeal asking for an increase in the damages awarded.

Defendant’s first complaint here is, to quote from the brief of its counsel, that ■“The action of the Court in overruling the exception of vagueness prior to trial and of overruling the objection of defendant to broadening the pleadings during the course of the trial, were reversible error.” We find no error in the rulings. The above ■quoted allegations of the petition were definite enough for properly pleading thereto; they stated a cause of action; and they were sufficiently broad to permit •plaintiff’s introduction of evidence to prove that the leased premises were structurally •defective, as well as to show the nature and cause of the alleged vices, particularly since the defendant had constructed the building, using plans and specifications prepared by its own architects.

Considering now the question of ■defendant’s liability, Revised Civil Code Article 2695 (invoked by plaintiff as the 'basis for his damage claim) provides: ’“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.” In our opinion these provisions are clearly appropriate to the facts of the instant cause and, hence, plaintiff is entitled to recover whatever damages he has sustained.

The record discloses that the portion of the building on which the bowling alleys rest was constructed and is known as a floating slab. Its top or surface is located about two and one-half feet below ground level. Between edges of the slab and three chain walls there is a space in which was placed a material or product (known as Flexcell) to form a mastic or expansion joint. The purpose of this joint is to permit the slab to expand without causing damage to the abutting walls. Above the ground level are concrete block walls, the exterior of which were not coated with waterproof cement stucco as required by the plans and specifications.

In April, 1951, following a heavy rain, plaintiff discovered that water had entered the building and was standing about three inches deep in the rear thereof, particularly in the pit where the pin boys stand. With the aid of pumps plaintiff removed it. Pittman, defendant’s president, was notified of the occurrence, but he did nothing to determine the cause or to remedy the condition. Also, plaintiff caused the digging of some ditches on the outside of the building so as to drain off the water standing there.

No further indication of trouble was noticed until in 1953 when the alleys were undergoing a routine refinishing by employees of the Brunswick-Balke-Collender Company, one of the few organizations in this country that specialize in servicing bowling installations. The employees then informed plaintiff that moisture was entering the building in the area of the alleys, and he in turn complained in vain to Pittman.

Thereafter much warping of the bowling equipment occurred, and on July 13, 1954 the secretary of the New Orleans Bowling Association notified plaintiff by letter that the alleys would not pass the requirements of the American Bowling Congress unless certain manifest imperfections were corrected. The official instructed: “Under these conditions, it is going to be necessary to resurface your alleys and have your approaches adjusted.”

In the performance of the required extraordinary resurfacing undertaking, which included the removal of certain parts of the alleys, it was found that considerable quantities of water had been entering the building from two sources and that large portions of the sub-flooring (it rested on the floating slab) had rotted because of an almost constant condition of wetness. Most of the water had come through the underground mastic or expansion joint between the slab and chain walls (or where it should have been, for in some places no mastic compound was present); the remainder had seeped through the above ground concrete walls which were not waterproofed.

In contending that the defendant is not liable for the resulting damages its counsel argue in part: “The evidence is that eighty-five (85%) per cent of the water is coming through the mastic joint between the chain wall foundation and the floating slab. The evidence is also clear that Sam Fazzio requested the floating slab. It is also clear from this record that Fazzio wanted this slab in its depressed location. This was to enable the patrons to enter upon a level for the bowling alley without going up a large number of stairs or without having to build this alley above the floor level. * * *»

According to the record, as we appreciate it, no request was ever made by plaintiff or his sons (none of whom is an architect or engineer familiar with construction problems) for a floating slab located below ground level. In fact, the other alleys operated by plaintiff are not below grade and some are on second and third floors. Plaintiff wanted and requested only that the alleys’ level be lower than the ordinarily used floor so that “the people walking in could look down and see * * And the manner of obtaining that result was left entirely to the discretion of defendant’s architects who alone decided on the below grade, floating slab construction.

Also, we cannot agree with the-further argument that the damage to plaintiff’s property was caused solely by ani extremely heavy and unforeseeable rainfall in 1951 which resulted in a hydrostatic-head (tantamount, defendant asserts, to am act of God or an unnatural phenomena for which no liability attaches) that forced, the water through the mastic joint a distance of two feet ten inches. The evidence discloses that at various times during other rainfalls water was observed entering the building through the mastic joint (or where it should have been) and also-through the concrete walls. Too, experts offered by plaintiff, whose testimony was-not successfully refuted, stated that water in excess at the level of the mastic joint was a common occurrence in the City of New Orleans; and that, from a waterproofing standpoint, the type of joint construction used by defendant was not designed or appropriate for below ground application. One of them referred to its use as being “very unfortunate”.

Likewise unimpressive is the defense argument that a vermiculite or brunscalite product which plaintiff placed! between the alleys and the slab for insulation purposes contributed largely to the-rotting of the sub-flooring in that it absorbed and retained the incoming moisture.. According to the record the mentioned material is customarily employed in installing bowling alleys, and plaintiff had the right to assume that the building would be waterproof and fit for the use for which it was constructed and leased.

The further contention that the written lease obligated plaintiff to remedy the defective condition at his expense is also without merit. The provision relied on recites: “As a further consideration of this lease, Lessee agrees and binds himself : (a) To maintain the property in good condition; to make at his own expense all repairs of any kind, whether ordinary or extraordinary, it being understood, however, that any structural alterations shall be subject to approval of the Lessor.” A mere reading of this provision convinces us that the repairs contemplated to be made by the lessee related to imperfections arising after the commencement of the lease, not to inherent structural vices. Besides, in previous decisions we have held that similar clauses are not so broad as to encompass structural defects. Pierce v. Hedden, 105 La. 294, 29 So. 734; Bennett v. Southern Scrap Material Company, 121 La. 204, 46 So. 211; and Knapp v. Guerin, 144 La. 754, 81 So. 302.

Again, on the question of liability, it is said that plaintiff cannot recover herein because he has failed to minimize damages. We are satisfied that he has done everything that he could do (short of undertaking to make the needed structural changes) to protect his equipment from deterioration. To this end, in addition to performing the aforementioned protective acts, he employed a waterproofing expert at an expense of $390 in an attempt to seal off the water.

For the damages sustained plaintiff was awarded, as aforementioned, $15,000. Defendant complains here: “The amount of damages determined by the jury was arbitrary and capricious and without any relationship whatsoever to the proof in this record.” Plaintiff, through an answer to the appeal, maintains that the damages should be increased.

Certainly the award was not arbitrary; it is amply justified by the evidence. The record conclusively discloses that a suitable restoration of the alleys would require an expenditure of $20,350 which, when accomplished, would render them the same as a new installation. However, at the time of the institution of this suit plaintiff had enjoyed their use for some four years and three months, and this should be taken into consideration in determining his damages. By employing a use expectancy period for the alleys of fifteen years (which the evidence shows is proper), and by making allowance for their operation during the mentioned four years and three months, plaintiff would be entitled to receive approximately $14,600 of the stated restoration cost. Adding to this the $390 that he spent in attempting to seal off the water (obviously other funds were expended also to provide protection) there results a total of about $14,990 — or only a few dollars less than the quantum arrived at by the jury.

Nor do we find that plaintiff should he granted in this cause the additional amounts which, in his answer to the appeal, he demands: $5,606.08 for business losses and overhead cost during a period of thirty days in which he might be required to close for making the repairs, and $5,400 for an anticipated “accelerated depreciation” of the bowling alleys. At this time the claims are purely speculative.

There is merit, we think, in the objection of defendant to that part of the judgment condemning it to specifically perform its obligation to correct the structural defects in the building and, in lieu of its doing so, authorizing plaintiff to make the corrections and deduct the cost thereof from the rent. Under the title “Of Lease” in the Revised Civil Code we find no provision permitting a lessee to resort to a specific performance action in obtaining fulfillment of a lessor’s obligations. And in none of the cases relied on by plaintiff’s counsel did the court order performance under circumstances such as are present here.

True, Revised Civil Code Article 1927, found under the title “Of Conventional Obligations” and heavily relied on by plaintiff’s counsel, recites: “In ordinary cases, the breach of such a contract [to do or not to do] entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has' the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.” But assuming that a lease contract is of a type contemplated by that article we do not believe that its provisions are authority for ordering specific performance in the instant caiise, for this plaintiff can’ be adequately compensated in damages. (Brackets ours).

Accordingly, we must reject plaintiff’s demand for specific performance. His request for judicial authorization to correct the structural defects at the expense of defendant on the failure of the latter to so perform is necessarily refused also. That request is merely incidental to and for the enforcement of the specific performance demand. Besides, our presently passing on the question presented by it would amount only to the giving of an advisory opinion which, of course, we cannot do. However, whatever rights plaintiff has or may have with respect thereto, as well as to recover additional damages, will be and are fully reserved to him.

For the reasons assigned the judgment appealed from is reversed and set aside, and the suit is dismissed with the above announced reservations, insofar as plain-tiff’s demand for specific performance is ■ concerned. In all other respects the judg- , ment is affirmed at defendant’s costs.


author: SIMON, Justice.

text:
    232 La. 811
    Cliff PROBST v. Mr. & Mrs. Anthony DI GIOVANNI and A. L. Dammerau.
    No. 42003.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    See also 226 La. 625, 76 So.2d 909.

      McDonald & Buchler, Metairie, Patrick E. Carr, New Orleans, for plaintiff-appellant.
    Eugene J. Morel, William J. Daly, Frederic C. Querens, Hyman Mithoff, Guy L. Deano, Jr., New Orleans, for defendants-appellees.
   SIMON, Justice.

Cliff Probst, a real estate agent, instituted this suit against the prospective purchaser and the owners of certain real property to collect a commission allegedly earned on the transaction of the offer and acceptance to purchase said property negotiated through said realtor.

On May 15, 1952 A. L. Dammerau and Mr. and Mrs. Anthony DiGiovanni executed a written agreement, the tenor of which is that Dammerau offered to buy and the DiGiovannis agreed to sell the Plaza Motel Court, the said property having been previously listed for sale with Probst. The sale price agreed upon was $65,000, cash, conditioned upon the ability of the prospective purchaser to negotiate a loan of $35,000 within thirty days from, date of said contract, at a rate of interest not to exceed six percent per annum, and payable over a period not to exceed ten years. It was provided in said agreement that should the loan be unobtainable within said thirty-day period the agreement would be null and void.

The contract further provided that ten percent of the purchase price, or the sum of $6,500, be deposited with plaintiff by Dammerau, the initial deposit of $1,500 to be made simultaneously with the execution of the contract, which was done, an additional sum of $1,500 to be made on May 30, 1952, and the balance of $3,500 to be made on June 30, 1952.' It provided that the act of sale was to be executed on or before November 15, 1952 before the notary public designated by the one making the loan aforementioned.

The contract further provided that the seller would pay to plaintiff a commission of five percent on the first $10,000 of the purchase price and four percent on the balance, or a total of $2,700; and that either party who failed to comply with the terms of the agreement would be obligated to pay the said commission and all fees and costs incurred in enforcing collection and damages.

Though having paid part of the total ■deposit stipulated, Dammerau failed to pay the second deposit of $1,500 due on May 30, 1952.

It appears that Dammerau, being unable to secure a loan of $35,000 on the property, on June 2, 1952, which was within the thirty-day period provided to obtain said loan, obtained a commitment from a loan association for the sum of $32,000 at six percent interest per annum, payable over fifteen years.

On June 2, 1952, Dammerau addressed a letter to plaintiff notifying him that the Guaranty Savings & Homestead Association had agreed to make a loan of $32,000, which loan was acceptable to him, Dam-merau. In the left-hand comer of said letter there is a written notation dated June 3, 1952: “We agree to extend payments on $6,500.00 deposit as follows: $1,500.00 on 6/15/52, $3,500.00 on 7/31/52.” This notation is signed by Dam-merau and Mrs. A. DiGiovanni. Manifestly, this notation constitutes an extension of the date for payment of the deposits.

However, Dammerau failed to make any deposit as called for therein.

On June 14, 1952 he notified plaintiff that he did not intend to go through with the sale and requested the return of the initial $1,500 deposit made as aforesaid. Plaintiff relayed this information to the DiGiovannis.

On September 18, 1952, under private signature, Dammerau and Mrs. DiGiovan-ni, without the knowledge of plaintiff, executed a mutual release of all obligations flowing from the agreement to buy and sell.

The record discloses that the DiGiovan-nis sold and conveyed the said Plaza Motel Court by authentic act dated October 21, 1952 to third parties not here involved.

On October 29, 1952 Probst thereupon instituted this suit against the .DiGiovannis and Dammerau, in solido, for payment of his commission. By first and second supplemental and amended petitions Probst alleged the liability of Dammerau as a result of his noncompliance with the terms of said contract and against the DiGiovan-nis for their failure to have consummated the sale in accordance with said agreement.

The DiGiovannis filed an answer and reconventional demand wherein they admitted the listing of their motel with the plaintiff as well as the terms and conditions of the agreement executed on May 15, 1952. They denied liability for plaintiff’s commission for alleged failure on their part to consummate the sale. Reconvening against Dammerau and Probst, in solido, they sought recovery of the full deposit called for in the contract, namely $6,500, allegedly forfeited by the purchaser’s noncompliance with the terms of the agreement and attorney fees in the sum of $400, together with interest and cost.

Dammerau filed exceptions of no right of action, want of proper verification, improper filing of supplemental and amended petitions, and oyer. The trial court overruled the first three exceptions and, in response to the demand of oyer, ordered the plaintiff to produce and file in the record a certain letter dated June 27, 1952 addressed to plaintiff and signed by Dam-merau’s attorney. This letter demanded the return of Dammerau’s $1,500 deposit and states that due to his failure to have obtained a $35,000 loan that said agreement was null and void and that Dammerau was therefore entitled to be reimbursed the initial deposit of $1,500.

Dammerau also filed an answer and reconventional demand, denying all liability, and in reconvention demanded against Probst and the DiGiovannis the return of the $1,500 deposit.

The district court rendered judgment dismissing plaintiff’s demand and the re-conventional demand of the DiGiovannis. The trial court sustained the reconventional demand of Dammerau and rendered judgment in his favor against Probst alone for the sum of $1,500 and costs.

Pi-obst has appealed and seeks the reversal of the judgment denying him recovery of his commission.

On this appeal Dammerau reurges his exception of no right of action contending that since there was no genuine meeting of the minds of the parties that no enforceable contract was entered into, and further that the validity of said contract, having been suspended and conditioned upon the attention of a $35,000 loan to be used in the payment of the purchase price and said loan not having- been negotiated within the period of time fixed therein, became unenforceable

Alternatively Dammerau contends under said exception that, if the said $32,000 loan obtained by him shall be considered as being a valid substitute in lieu of the $35,000 loan, the record fails to disclose that said substituted amount was actually approved and accepted by him or his prospective vendors. He urges that any written modifications of the original contract require the written approval and consent of all parties to be effective.

Obviously there is no merit to this contention. True, the legal effect of the entire contract was conditioned upon the purchaser obtaining a $35,000 loan. However, this condition was clearly personal to the prospective purchaser, and operated solely in his favor, who upon failing to .obtain said loan had the unquestionable right to declare the contract null and void and to demand the return of his $1,500 ^deposit. He also had the unquestionable right to waive this stipulation or condition flowing in his favor, but not those in favor of the other party. Cuna v. Elton Lumber Co., Limited, 148 La. 1097, 88 So. 493.

Thus, we are constrained to hold that when Dammerau obtained a loan of .$32,000 and having notified the interested parties to the effect that this loan was acceptable to him, he thereupon alone modified the suspensive condition which operated in his favor, a right which he undoubtedly had, thereby making the contract as thus modified valid and binding on him.

Dammerau’s contention that both the DiGiovannis would have to be parties to any written modification of the amount to be borrowed by him as part of the purchase price is equally without merit. The fact that Mrs. DiGiovanni signed the modification is deemed by us to be only incidental in view of the fact that the DiGiovannis had no privity of interest in how much money Dammerau borrowed, from whom he borrowed it, the rate of interest payable thereon, or the terms of its repayment. The essence of the contract and its ultimate end insofar as the DiGiovannis were concerned was the sale of their motel for the sum of $65,000, cash, on or before November 15, ’ 1952

The question whether the DiGio-vannis would have a right to declare the contract breached and demand specific performance and damages from Dammerau for failure on his part to make the second deposit on June 30, 1952 as originally agreed is not before us. They did not assert such a right, nor did they demand from Dammerau the full amount of the deposit called for by the contract prior to having been made defendants herein. On .the contrary, by the execution of the document of September 18, 1952, wherein they and Dammerau mutually released each other from all obligations flowing from said contract executed between them necessarily estops them, the DiGiovannis, from •any claims interposed against their prospective purchaser. The singular fact that Mr. DiGiovanni did not sign this mutual release is of no moment, he having full knowledge of the acts of his wife in connection therewith and giving his full approval thereof. Furthermore, the sale of the property in question on October 21, 1952 to third parties is conclusive as to their right to demand the deposit which they seek in their reconventional demand.

Dammerau, in an effort to evade his obligation flowing under said contract, contends that his signature, though genuine, was attached to the document setting forth the acceptance of the $32,000 loan as a result of misrepresentation on the part of plaintiff. The testimony of Dammerau in that respect is unsupported by other proof and contradicted in all respects by plaintiff, a reputable realtor of this City.

Citations would be burdensome in support of the principle that fraud is never presumed but that it must be alleged and proved by cogent and competent evidence.

The agreement with its terms being valid and binding on Dammerau obligated him to deposit'the sum of $1,500 on June 15, 1952. His failure to make the deposit constituted a breach of his obligation.

In the case of Samuelson v. Bosk, 219 La. 477, 53 So.2d 239, this Court held that by the terms of the contract of offer and acceptance to purchase of real property, the failure on the part of the prospective purchasers to make the agreed deposit constituted a breach of their obligation.

In the instant case the contract provides that either party who fails to comply with its terms is obligated to pay the realtor’s commission and all fees, cost and damages incurred in enforcing collection. On June 14, 1952 Dammerau notified Probst that he would not “go through” with the purchase of the property and he failed to make a deposit of $1,500 on June 15, 1952, as agreed. Under the terms of his agreement he breached the contract and thereby became liable to Probst for the amount of his commission.

In the case of Kenney v. Wedderin, 220 La. 285, 56 So.2d 550, 552, we find the following expression:

“While it is true, as stated, that the plaintiff’s offer to purchase was conditioned upon his ability to secure a loan of $12,500 at a rate of interest not to exceed 5% per annum and for a period of not less than 15 years, and that this was clearly a stipulation in his favor, placed in the contract to’ insure his ability to finance the purchase, and that such stipulation could be waived by offering cash instead of securing a loan, Weingart v. Delgado, 204 La. 752, 16 So.2d 254—however, the limitation of time to a period of fifteen days from acceptance of the offer was obviously inserted for the protection of the vendor, placing a limitation on the condition in the vendee’s favor, upon the expiration of which period the contract terminated.”

We quote with approval the case of Blache v. Goodier, La.App.Orleans, 22 So.2d 82, 85:

“It is settled that a broker is entitled to his commission as soon as he has obtained a purchaser ready, willing and able to buy at the price agreed upon by the owner, and that the commission is due by the prospective purchaser if, after binding himself, he refuses to comply with his agreement. See Brugier v. Ritchie, 7 La.App. 179; Broomes Printing Office v. Louisiana Margarin Co., 8 La.App. 188; McWilliams v. Stackhouse, 1 La.App. 253; Palmisano v. Stewart, 3 La.App. 66; Dauterive v. West India Transportation Corporation, 3 La.App. 319; Prince v. St. Aurin, 5 La.App. 567; Stoer v. Pearson, 5 La.App. 609.

“In Clesi v. Thacher, 12 La.App. 55, 125 So. 194, 195, we held that where the purchaser has definitely withdrawn and has stated that he would not comply with his offer, there is no necessity that he be put in default and that he is liable at once for the commission of the agent.”

Our adjudication of the merits of the asserted rights and obligations as between the litigants as is reflected by this opinion is obviously decisive of and disposes of the merits of the exception of no right of action.

Accordingly, for the reasons assigned, the judgment of the lower court insofar as it dismisses the claim of Cliff Probst and recognizes the claim of A. L. Dammerau’ is reversed, annulled and set aside; and it is now ordered, adjudged and decreed that there be judgment in favor of Cliff Probst and against A. L. Dammerau in the full sum of $2,700, with interest thereon from date of judicial demand, together with attorney’s fee in the sum of $400; all other costs to be paid by A. L. Dammerau. In all other respects the judgment of the trial court is affirmed.


text:
    232 La. 824
    Succession of Mary Stevens BAILEY.
    No. 42958.
    Supreme Court of Louisiana.
    May 6, 1957.
    James E. Courtin, New Orleans, for appellant.
    Bennett Meyers, New Orleans, for plaintiff-appellee.
   SIMON, Justice.

On the day this appeal was set for argument counsel for the appellant appeared solely for the purpose of informing the Court that no brief had been or would be filed in support of the appeal, and that the case would not be argued. He submitted his appeal on the record, and thus has not pointed out any error in the judgment of the lower court, but has left to this Court the task of ascertaining whether it was correct in law and in fact. Under these circumstances an appellate court may affirm the judgment of the district court under the presumption that it was correct. See Perkins v. Buchler, 223 La. 179, 65 So.2d 130 and authorities therein cited.

Nevertheless, we have examined the record and find no manifest error of law or fact and shall accordingly affirm the judgment.

Accordingly, for the reasons assigned, the judgment of the district court is affirmed; all costs to be paid by appellant.


text:
    232 La. 826
    Edward J. NAGIM v. deLesseps S. MORRISON et al.
    No. 43086.
    Supreme Court of Louisiana.
    May 6, 1957.

      Frederick P. Heisler, William C. Crais, III, New Orleans, for plaintiff-appellant.
    Henry B. Curtis, City Atty., Beuker F. Amann, Asst. City Atty., New Orleans, for defendants-appellees.
   HAMITER, Justice.

In this libel action plaintiff, Edward J. Nagim, seeks to recover $10,000 from de-Lesseps S. Morrison and Joseph L. Scheur-ing, Mayor and former Superintendent of Police of the City of New Orleans, respectively, the suit having been brought against them in both their individual and official capacities. It results from certain specific charges of law violations on the part of plaintiff contained in a proceeding before the Louisiana Board of Tax Appeals, instituted by the defendants in their official capacities on June 21, 1953, in which there was sought and obtained the revocation of beer and liquor permits issued to plaintiff for operating a retail saloon at 211 Canal Street in the City of New Orleans.

For a cause of action plaintiff alleged: “That the said charges and allegations and each and every one of them were and are false and untrue, since petitioner had, on May 18, 1953, sold all of his interest in the said premises to one Benjamin L. Levy, Jr., and was no longer using the said licenses and permits nor was he in any way connected with the operation of the premises located at 211 Canal Street, City of New Orleans.

“That the said petition and the charges made therein were published maliciously, with gross, wanton recklessness and without probable cause or even the slightest effort to ascertain the true facts, it having appeared as a matter of the defendant, City of New Orleans’ records that on the date of the alleged misconduct and at all times, since, petitioner was in no manner concerned with the said licenses or permits or the said premises.”

Answering, defendants denied those allegations and affirmatively averred that they acted in their official capacities and according to law.

The suit was dismissed on the merits by the district court, and this appeal followed.

Plaintiff concedes, to quote from the brief of his counsel, that “ * * * for recovery to be had herein, it was necessary for him to show that the defendants caused the publication of the libelous statements, that said statements were untrue, that their publication was malicious and without probable cause, and that plaintiff was damaged thereby. * * * ”

The record discloses that plaintiff obtained permits from the City of New Orleans and the State of Louisiana to operate during 1953 the Ship’s Bell Bar at 211 Canal Street in that city. On May 19, 1953 he went to the New Orleans Miscellaneous Revenue Department and informed an employee therein that he would no longer operate such establishment, at which time a notation to that effect was made on the department’s records. Similar information was not given to the State Revenue Department, however; nor did he ever surrender any of his permits.

In the early part of June, 1953 officers of the New Orleans Police Department made a routine investigation of the Ship’s Bell Bar and discovered violations of the liquor laws for which two persons working there were arrested and later convicted. Operation of the establishment at the time was under permits (which the officers located and examined) issued in the name of plaintiff. On making inquiry at the City and State Revenue Departments they were informed that all licenses for the conducting of a retail saloon at 211 Canal Street were still held by plaintiff. Thereupon, the officers filed written reports reciting the foregoing information. Later, the defendant officials instituted the permit revocation proceedings before the Louisiana Board of Tax Appeals, the petition in which (containing the charges forming the basis of this libel action) was prepared from and predicated solely on such written reports.

The evidence revealing this factual situation, together with the testimony of defendants that they were unacquainted with plaintiff and that they handled the revocation of his permits in the same manner as some fifty odd other similar matters about that time, indicates that the proceedings before the State Board of Tax Appeals were not instituted maliciously and without probable cause. Apparently conceding this, plaintiff (again quoting from the brief of his counsel) “ * * * contends that, although direct evidence may not have been adduced on this point, that malice, being subjective in nature, can be shown by corroborating circumstances. In the instant case it was shown that no steps had been taken, by either defendant, to rectify the gross injustice that had been done to this plaintiff, and plaintiff respectfully submits that, had the defendants acted in good faith throughout, they would have initiated some action to right this grievous wrong. * * * ”

The answer to this contention appears to be that at no time did plaintiff request of defendants a retraction of the charges. The only demand made on them, contained in a letter written by his attorney, was that they pay to him $10,000 to compensate for damages which he sustained as a result of the accusations.

Since plainiff failed to establish that the allegedly libelous statements were made maliciously and without probable cause the district court correctly rejected his demand for damages.

For the reasons assigned the judgment appealed from is affirmed.


text:
    232 La. 831
    Harold RYAN v. The ALLSTATE INSURANCE COMPANY OF CHICAGO, Illinois, et al.
    No. 42965.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      F. Carter Johnson, Jr., of Porteous & Johnson, New Orleans, for defendant-appellant.
    Maurice R. Woulfe, New Orleans, for plaintiffs-appellees.
   SIMON, Justice.

This cause comes to us on certiorari addressed to the Court of Appeal, Parish of Orleans, and involves three cases in tort arising out of the same accident.

The judgment of the Court of Appeal, Parish of Orleans, reversed the district court and held that John S. Bowers who was driving his car on the right-of-way street, with knowledge of the existence of a stop sign on the corner of the intersecting street, was grossly negligent in driving into the path of a truck which had been negligently driven into the right-of-way street with a resulting collision with the car operated by Bowers.

The record discloses that on October 22, 1953, at about 7 o’clock A.M. at the intersection of North Carrollton Avenue and Bienville Street a collision occurred between a Pontiac sedan being driven north on Carrollton Avenue by John S. Bowers and a Ford V-8 truck being driven west on Bienville Street by Leslie Evans. Both thoroughfares have paved two-lane roadways bisected by neutral grounds. A stop sign controls traffic entering North Car-rollton Avenue from Bienville Street. The neutral ground on North Carrollton Avenue is 27 feet wide; the one on Bienville Street is three feet wide. The point of impact was where the north lane of Bien-ville Street intersects the east lane of North Carrollton Avenue. The Pontiac sedan was struck at about its right front door and was toppled over on its left side.

The three passengers in Bowers’ car, Gaston L. Breaux, Alvin E. Eiswirth and Harold Ryan, received personal physical injuries and as a consequence each filed suit for damages jointly against The Allstate Insurance Company of Chicago, Illinois, the public liability insurer of Bowers, and against the operator of, and Christopher Evans, the owner of the truck. Bowers also filed suit for damages against the operator and the owner of said truck. These four suits were consolidated for trial.

After trial on the merits the trial judge rendered judgment in favor of the respective plaintiffs and against the defendant Leslie Evans and dismissed the respective claims as against The Allstate Insurance Company of Chicago, Illinois, holding this defendant to be not liable for the reason that Bowers was free from any primary or contributory negligence in the operation of his car. The claims against Christopher Evans were dismissed by the trial court for the reason that Leslie Evans was on a personal mission and that Christopher Evans had no responsibility, personally or legally, as a result of the use of the truck by the said Leslie Evans.

The trial judge, finding the defendant Leslie Evans to be impecunious, reduced to one-half the damages awarded to the respective plaintiffs for their personal injuries, allowing, however, the full award for damages as to medical charges and property damage.

Plaintiffs Breaux, Eiswirth and Ryan appealed to the intermediate appellate court which reversed the judgments of the trial court insofar as they dismissed plaintiffs’ suits against The Allstate Insurance Company of Chicago, Illinois and thereupon rendered judgment condemning the said insurer in solido with Leslie Evans to pay the damages awarded below on the ground that its insured, Bowers, was guilty of contributory negligence in having failed to observe that the driver of the truck had not complied with the law requiring him to stop at said intersection before entering North Carrollton Avenue. The court of appeal, having concluded the liability of the insurer of Bowers further concluded that irrespective of the impecunious condition of Leslie Evans the plaintiffs were entitled to be paid the full measure of damages sustained by them respectively and accordingly amended the judgment rendered by the trial court.

We are in full accord with the reasons and conclusions reached by the trial court and the court of appeal in respect to the negligence of Evans in the operation of the truck wherein the latter court observed:

“When Leslie Evans approached the corner of North Carrollton Avenue he was confronted with an official traffic sign which required that he bring his vehicle to a stop before making entry into the intersection. Both he and Gillen, who was riding in the truck, stated that the truck was brought to a stop in obedience to the sign and then Evans shifted the gear and started forward into North Carrollton Avenue at a slow rate of speed. The trial judge was satisfied that Leslie Evans not only did not stop before entering the intersection but that he proceeded onward blindly without looking or listening. However, it would make absolutely no difference whether Leslie Evans did or did not stop his truck for he was guilty of negligence in either respect. If he brought his vehicle to a stop, there was the most wanton negligence on his part in proceeding from a position of safety into North Carrollton Avenue without ever seeing the approaching Bowers automobile; and if he made no stop, his negligence is too obvious to discuss.”

However, the issue of negligence on the part of Bowers resulted in a conflict of opinions rendered by both courts. The trial court, who had the benefit of observing the witnesses, found the pertinent facts to be:

“All of them (Plaintiffs) agree that Bowers was a careful driver; that they had no occasion to complain about his driving or his speed, and that neither of the three had any inkling that an accident would happen until just before the crash when one of them saw Evans’ truck on Bienville Street approaching and yelled: ‘Look out!’, followed almost immediately by the crash.

“Bowers was travelling 25 to 30 miles an hour when he entered the intersection. When he approached Bienville he looked to his left to see if traffic was approaching him on the south lane of Bienville or from the lake, and then looked to his right to see if anything was approaching on the north lane of Bienville or from the river. He saw nothing coming from either direction. A motorist approaching Bienville Street on North Carrollton, when reaching 30, 40 feet from the intersection, can glance to his left and see ISO or 200 feet down Bien-ville Street towards the lake.

“When Bowers reached the property line of Bienville Street and looked to his right from which Evans’ truck was approaching, he could only see ISO feet up Bienville because the building on the southeast corner (or the Canal Street river side) is set back twelve feet from the curbing. After entering the intersection the Bowers car travelled the width of the south lane of Bienville Street (about 15 feet), plus the width of the narrow strip neutral ground (3 feet), and an additional S feet (or a total of about 23 feet) when it was struck amidships on its right side by the Evans’ truck. In view of this, it cannot be said that Bowers entered the intersection blindly without looking.

“Whether he should have looked left and then right, or right and then left, is a matter of discretion; but even assuming that he did not look, but entered the intersection going 25 to 30 miles an hour, he would have been in no better position than if he had been looking because the Evans’ truck was either coming to a stop or had stopped, and under the law Bowers would have had a right to believe that the Evans’ truck would obey the ‘Stop’ sign and accord him the right-of-way.

“The fact that the Evans’ truck struck the Bowers car broadside after the latter travelled 23 feet, indicates that the Evans’ truck illegally entered the intersection.

“The fact that the Evans’ truck overturned the Bowers automobile is not necessarily evidence of great speed, because of the law of kinetics dealing with the dynamics of motion, it is much easier to overturn a moving object than one that is still; so that the Evans’ truck could easily have turned over the Bowers automobile while it was travelling 25 to 30 miles an hour across the intersection merely upon a slight contact.”

In its analysis of the evidence the court of appeal reached a contrary conclusion from that reached by the trial court, finding Bowers negligent, saying:

“One driving an automobile is under the legal duty of being unceasingly vigilant and at all times attentive of what the conditions of traffic may be so as to permit him to act in the case of danger presenting itself. It would seem that Ryan, who was riding on the rear seat, was more observant than was Bowers who operated the automobile, and if Ryan from his position on the rear seat was able to see the Ford V-8 truck from a distance of 49 feet, surely Bowers, had he been attentive, could also have sighted the truck in time to take measures toward averting the collision.”

We are in accord with the principle announced by the court of appeal which exacts from the operator of an automobile vigilance and attentiveness. This general rule of law, however, does not control or apply to the particular circumstances involved in this suit. The court of appeal obviously placed great reliance and weight on the testimony of Ryan that he saw the truck in motion moving out into North Carrollton Avenue immediately before the collision while Bowers’ car was about an estimated 49 feet from the truck.

The record discloses that in an effort to estimate the distance between the two vehicles when he first saw the truck Ryan designated a similar distance in the trial court room, by which designation the distance so estimated was fixed by the trial judge to be about 49 feet. His testimony reveals that upon his realizing the danger of the presence of the truck he called out a warning and that almost simultaneously with his call the collision occurred.

It is to be noted that the testimony of Ryan was received by the trial court at a time remote from the date of the accident, being about 14 months later, and his estimate that the vehicles were 49 feet apart when he first noticed the truck is apparently an exceedingly rough estimate on his part in view of his comment that he could not tell definitely whether the car driven by Bowers was in Bienville Street or whether it was still approaching and had not intersected Bienville Street at the time he saw the truck. Further evidence of the uncertainty of his observation is the fact that in a prior trial had in connection with this accident in the Traffic Court, Ryan testified and by his designation and description of the distance between the vehicles the Traffic Court judge fixed his estimate to be about 31 feet. In order to explain Ryan’s reference to the Traffic Court trial, his attorney stated to the trial court: “He is referring to his testimony in the Traffic Court case. When he saw this truck and holloed, he was about 31 feet away when he saw (the) truck and he holloed to the driver, Bowers.”

The record establishes with certainty that each of the roadways of Bienville Street is 15 feet wide, separated by a three-foot neutral ground; and therefore to traverse the width of Bienville Street a motorist must travel a distance of 33 feet.

Our appreciation of these salient facts is that if Ryan had observed the Evans truck moving out into North Carrollton Avenue when a distance of 49 feet away, at that moment Bowers’ vehicle would not have reached the intersecting Bienville Street; and we believe under these circumstances the truck would have either cleared the roadway, or would have been in plain front view of Bowers and thus afforded him an opportunity to attempt to avert the accident. Otherwise, if the truck had been in plain view of Bowers and had not cleared the roadway of North Carrollton Avenue, it would probably have been struck broadside by the automobile. Further, if Ryan had observed the truck at a distance of 31 feet, that observation would haye been made at the time or after Bowers' vehicle ‘ entered the intersecting Bienville Street; and while it is shown that Bowers was proceeding at a lawful rate of 25 to 30 miles per hour, under such circumstances he could not have brought his car to a stop within less than 44 feet and consequently could not have avoided being struck amidships by the truck which, as was conclusively established, had negligently entered the intersection.

The evidence overwhelmingly preponderates in favor of Bowers to the effect that he entered the intersection at a lawful and reasonable speed; that he looked to his left and then to his right as he entered the intersection and saw no vehicle in view; that he knew that there was a stop sign on Bienville Street requiring vehicles to stop before entering or attempting to cross North Carrollton Avenue and, therefore, had the legal right to assume that any vehicle which approached that intersection while he, Bowers, was travelling on North Carrollton Avenue at or reasonably near the intersecting Bienville Street would comply with the “Stop” sign, come to a full stop and remain in that safe position and yield to right-of-way traffic on North Car-rollton Avenue before attempting to enter or cross that roadway.

We are impressed with the high degree of care Bowers exercised in operating his car and do conclude that there was no act which could or should have been performed in order to avoid this accident.

In the case of Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849, 851, we held as follows:

“The law in this state is well settled that a motorist who is proceeding on a right-of-way street, upon approaching an intersection where traffic is required under a city ordinance, and is warned by stop signs, to come to a complete stop before entering the intersection, should not be held to the same degree of care and vigilance as if no ordinance existed or stop signs were erected. The danger at such an intersection is less than that at a corner where no stop signs have been erected, and therefore less care is required of the driver on a favored street. The motorist on the right-of-way street, with knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed or is not going to observe, the law. See Termini v. Aetna Life Ins. Co., La.App., 19 So.2d 286; Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292; Glen Falls Ins. Co. v. Copeland, La.App., 28 So.2d 145. See also Mayfield v. Crowdus, 38 N.M. 471, 35 P.2d 291; 2 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., Sec. 1032, pp. 216, 217.”

It appears that as a result of the collision the automobile was toppled over on its left side, resting upon the northeast corner of the neutral ground of North Carrollton Avenue. This physical fact strongly persuades the conclusion that Bowers had not only legally pre-empted the intersection, but had almost completed full passage of the intersecting lanes of Bienville Street.

In gauging the fault which plaintiffs seek to attribute to Bowers who was then operating his car in obedience to positive law we are not prepared to hold him guilty of any dereliction. Were he to be found amenable to fault, surmises giving rise thereto would be unsubstantial and surely not a direct factor, that, without it, the accident would not have happened.

We deem the negligence of the truck driver Leslie Evans to be the sole and only cause of this accident.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal, Parish of Orleans, is reversed and set aside and it is ordered that the judgment of the district court be reinstated and made the judgment of this Court; plaintiff to pay all costs of this appeal.

      . Established by the Research Laboratories Division of the Technical Data Department of General Motors — reaction time is %ths of a second, during which time the car travels 33 feet.


text:
    232 La. 845
    Gaston L. BREAUX v. The ALLSTATE INSURANCE COMPANY OF CHICAGO, Illinois, et al.
    No. 42966.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    F. Carter Johnson, Jr., of Porteous & Johnson, New Orleans, for defendant-appellant.
    Maurice R. Woulfe, New Orleans, for plaintiffs-appellees.
   SIMON, Justice.

This is one of the three cases in tort that comes to us on certiorari, or writ of review, to the Court of Appeal, Parish of Orleans. The issues herein presented arose out of the same accident involved in the case of Ryan v. Allstate Insurance Company of Chicago, Illinois, 232 La. 831, 95 So.2d 328, both cases having been previously consolidated by the district court for purposes of trial and appeal.

Accordingly, for the reasons assigned in the .case of Ryan. v. Allstate Insurance Company of Chicago, Illinois, the judgment of the court of appeal is reversed and set aside and it is ordered that the judgment of the district court he reinstated and made the judgment of this Court; plaintiff to pay all costs of this appeal.


text:
    232 La. 846
    Alvin E. EISWIRTH v. The ALLSTATE INSURANCE COMPANY OF CHICAGO, Illinois, et al.
    No. 42967.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    F. Carter Johnson, Jr., of Porteous & . Johnson, New Orleans, for defendant-appellant.
    Maurice R. Woulfe, New Orleans, for plaintiffs-appellees.
   SIMON, Justice.

This is one of the three cases in tort that comes to us on certiorari, or writ of review, to the Court of Appeal, Parish of Orleans. The issues herein presented arose out of the same accident involved in the case of Ryan v. Allstate Insurance Company of Chicago, Illinois, 232 La. 831, 95 So.2d 328, both cases having been previously consolidated by the district court for purposes of trial and appeal.

Accordingly, for the reasons assigned in the case of Ryan v. Allstate Insurance Company of Chicago, Illinois, the judgment of the court of appeal is reversed and set aside and it is ordered that the judgment of the district court he reinstated and made the judgment of this Court; plaintiff to pay all costs of this appeal.


author: PONDER, Justice.

text:
    232 La. 847
    STATE of Louisiana v. Jolande ALMERICO.
    No. 43366.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      Leonard A. Calcagno, New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist. Atty., New Orleans, for appellee.
   PONDER, Justice.

The defendant was charged in a bill of information in that she did “willfully, and unlawfully violate [LSA-]R.S. 26:88(7) in that said Jolande Almerico being the holder of a retail dealer’s permit for engaging and while engaging in the business of dealing in alcoholic beverages at the Manhattan Club, located at 1310 Canal Street, did willfully and unlawfully employ and permit females to solicit patrons and said females did solicit patrons for drinks and to accept drinks from patrons on or about the licensed premises and to receive therefor a commission or remuneration.” The defendant was tried, convicted and sentenced to pay a fine of $305 and serve three months in the Parish Prison and in default of the payment of the fine to serve an additional sixty days. The defendant has appealed.

During the course of the trial, the defendant reserved seven bills of exceptions, some of which were taken to the overruling of a motion to quash the information, the overruling of a motion for a new trial, and the overruling of a motion in arrest of judgment. Counsel for defendant is only urging, on this appeal, three grounds for a reversal of the conviction and sentence.

The defendant’s first contention is that the bill of information does not disclose the particular acts and things relied on as constituting the offense charged. She takes the position that since the offense may be committed in more than one way that the acts and things relied on as constituting the offense must be charged specifically. In support of this contention she cites State v. Mines, 137 La. 489, 68 So. 837; State v. Verdin, 192 La. 275, 187 So. 666; and State v. Hebert, 205 La. 110, 17 So.2d 3.

LSA-R.S. 26:88 provides that “no person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises: * * * (7) Employ or permit females, commonly known as ‘B Girls’, to solicit patrons for drinks and to accept drinks from patrons and receive therefor any ■.commission or any remuneration in any other way.”

From a reading of Section (7) of LSA-R.S. 26:88 the offense set out therein is stated in the conjunctive and not in the disjunctive. However if it were stated in the disjunctive the bill of information charges the offense in the conjunctive in one count and under the provisions of LSA-R.S. 15:222 and the holding in the case of State v. O’Brien, 226 La. 807, 77 So.2d 402, the information would not be vulnerable to the objection.

LSA-R.S. 15:227 provides “the indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.” The bill of information in this case meets these requirements.

In the case of State v. Mines, supra, it was stated that where a charge contained in an indictment even though in the language of the statute is so general as not to disclose particular acts and things relied ■on as constituting the offense, the defendant may require further information by means of a bill of particulars or by demurrer or motion to quash. The statute in that case is specific and sets forth the acts that constitute the crime.

In the case of State v. Verdin, supra, the defendant was prosecuted for disturbing the peace and the conviction was reversed on the ground that the indictment merely charged the defendant with disturbing the peace without specifying one of the several ways by which the peace could be disturbed as set forth in the statute itself, therefore, this case is not in point.

: In the case of State v. Hebert, supra, the defendant being over the age of 17 years was charged with committing indecent behavior with a named individual, a juvenile under the age of 17 years. The court held in that case that the indictment was defective because it did not convey to the defendant the nature of the acts or the way or manner in which the defendant violated the law.

In the case before us the statute sets forth the acts constituting the crime and it is set out in the bill of information these acts constituting the crime.

The second contention urged by the defendant is that the bill of information is insufficient to inform the court as to the offense charged, to inform the accused of the nature of the accusation and to support a plea of former jeopardy. It is argued that the bill of information fails to state the names of the persons who allegedly solicited drinks, whether defendant employed such persons or permitted them to solicit and accept drinks, the time of day such acts occurred and in which they allegedly received a commission or remuneration.

What the defendant is seeking to do here is to force the State to divulge evidence that it relies upon to prove the offense.

It is further contended that the information fails to charge that the females were members of the class or classification set out in the statute, viz.: “females, commonly known as ‘B Girls’.” It was not necessary to include this language in the bill of information because the statute sets out what constitutes the offense and merely refers to such females as being “B Girls”.

While the defendant sets out the three tests to support a plea of former jeopardy, as stated in the cases of State v. Ward, 208 La. 56, 22 So.2d 740; State v. Pizzollotto, 209 La. 644, 25 So.2d 292; and State v. Pullen, 210 La. 918, 28 So.2d 609, and also LSA-R.S. 15:227, she does not advance any reasons or any arguments in her brief why the bill of information is not sufficient on its face to support the plea of former jeopardy.

The defendant’s third contention is to the effect that the State failed to prove an essential element of the offense, viz., that the females who solicited the drinks received a commission or remuneration.

It would he very difficult to prove that the females received a commission or remuneration by direct evidence and in most instances the State must rely on circumstantial evidence to prove this fact. We do not inquire into the sufficiency of the evidence and it is only where there is a total lack of evidence of an essential element of the offense that we are justified in setting aside the conviction. There were circumstances proved in this case that leads to the conclusion that the females did receive a commission.

It is charged in the bill of information that the offense was committed on August 4, 1955. It appears that the New Orleans Police Department, believing that these unlawful activities were being carried on in defendant’s night club, sought to discover proof of these violations by sending a member of the Department dressed in plain clothes into this establishment about 2:30 a. m. on August 3, 1955. Upon entering the club the officer was met by Mae Thomas, a waitress, who asked him if he wanted to sit at a table or a booth. He sat at a table at her direction and ordered a bottle of beer. Shortly thereafter, he was joined at the table by a female by the name of Dolores Span, who solicited this officer to buy her a drink. The officer, at the request of Dolores Span, purchased for her a champagne cocktail for which he paid $2.60. Dolores Span then asked if Honey Lee, another female, could join them and Honey Lee solicited the officer to buy her a drink, which he did and for which he paid $2.60 to the waitress who was serving them. Then the two females suggested it would be cheaper for him to buy a bottle of champagne for $14.55. Thereupon the officer started to identify himself and Dolores Span quickly left the table and ran to the back of the club. The officer followed her unsuccessfully and when he returned Honey Lee had made her departure.

About the same time, on August 4, 1955, another officer in plain clothes went into the establishment, at which time the accused, the owner of the place, was standing in the front part of the room. The officer was accosted by Swannie Connors, who conducted him to a booth, whereupon the officer ordered a bottle of beer. The waitress returned in a few minutes with Ruth Johnson, who solicited the officer to buy her a drink. The drink was ordered and the officer paid the waitress $1.30. In the meantime, another policeman in plain clothes entered and seated himself in an adjacent booth. At this point, the first officer identified himself as a police officer and the second officer summoned other police officers who were waiting nearby with agents of the department of revenue. The officers obtained three order pads from Mae Thomas, which designated the females by number. Order pads were hidden in a flower plant box when found by the officers.

Upon examination of these order pads, it appears that the number of the females is listed and opposite the number is the figure undoubtedly received for drinks they solicited. It is the theory of the State, and it so contends, that these records were kept in order to determine the commission or remuneration.

With these circumstances in view, we cannot say that there was a total lack of evidence that these females were receiving a commission or remuneration.

For the reasons assigned, the conviction and sentence are affirmed.


text:
    232 La. 856
    Curtis NICHOLS, Individually and Doing Business as Nichols Motor Company v. IOWA MUTUAL INSURANCE COMPANY.
    No. 42843.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    Hayes, Harkey & Smith, Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh, Monroe, for defendant-appellee.
   PONDER, Justice.

The plaintiff, Curtis J. Nichols, Individually and doing business as Nichols Motor Company of Monroe, brought suit against its insurer, Iowa Mutual Insurance Company, for the recovery of $2,065 plus penalties and attorneys fees, for damages sustained as a result of the theft of two automobiles. The defendant, insurer, answered denying liability under the policy because of certain exclusion clauses. From a judgment in favor of the defendant the plaintiff has appealed.

The case was tried upon an agreed stipulation of facts which sets out: that the policy was in full force and effect; that plaintiff a dealer in Monroe purchased two cars from Nichols Motor Company of Chicago (the similarity of names being coincidental) and that under the terms of the sale the Chicago company agreed to make arrangements on behalf of plaintiff for the transportation of the said automobiles from Chicago to Monroe; that an advertisement was placed in the Chicago paper and in response thereto two men, verbally agreed to drive the cars to Monroe for the price of $25 which was to be paid by the plaintiff upon delivery; that all expenses relative to the driving of the cars to Monroe, including gasoline, oil, service, minor repair and other personal expenses were to be paid by the drivers; that no exact time of delivery nor exact route was designated but it was agreed that delivery was to be made as expeditiously as possible by the most available route; that no further control was attempted to be exercised over the drivers. As a result of this agreement the cars were delivered to the drivers and they failed to deliver same, one being apprehended in Miami and the other being apprehended in Las Vegas. One of the men was charged and convicted of theft and one was arrested on a charge of first degree burglary.

The policy in question is referred to as a dealer’s policy and contains the following exclusion clauses:

“2. Exclusions. Said policy does not cover:
******
“(d) Under the Theft, Larceny, Robbery or Pilferage Coverage (if such Policy covers these periods) — loss suffered by the Insured in case he voluntarily parts with title to or possession of any automobile at risk hereunder, whether or not induced so to do by any fraudulent scheme, trick, device or false pretense or otherwise;
“(f) Theft, Larceny, Robbery or Pilferage (if such Policy covers these perils) of any automobile by any person or persons in the Insured’s household or in the Insured’s service or employment, whether the theft, larceny, robbery or pilferage occurs during the hours of such service or employment or not.”

The issues raised on this appeal are three fold. The first issue presented is whether or not the cars were stolen. The evidence is to the effect that the drivers were guilty of theft. See also Gulf Finance & Securities Co. v. National Fire Insurance Company, 7 La.App. 8; Miller v. Newark Fire Insurance Company of New Jersey, 12 La.App. 315, 125 So. 150.

The second issue presented is whether or not the plaintiff voluntarily parted with possession of the automobiles so as to be excluded under the provisions of Section 2(d) of the policy.

It is stated in 109 A.L.R. at page 1080 that “with the exception of those in Texas, the Courts have unanimously held that a provision in a theft, robbery, or pilferage automobile insurance policy, excepting loss occasioned by an insured’s voluntarily parting with title or possession, whether or not induced so to do by fraudulent scheme, trick, device or false pretense or otherwise, does not preclude recovery from the insurer where the owner of the automobile had merely placed its custody temporarily with another person for a specific purpose such as shelter or repair, without intending an actual transfer of possession.” Louisiana has adopted the temporary custody theory. See Miller v. Newark Fire Ins. Co., 12 La.App. 315, 125 So. 150; Gulf Finance & Securities Co. v. National Fire Ins. Co., 7 La.App. 8 and Beene v. Southern Casualty Co., 168 La. 307, 121 So. 876.

Blashfield in his Cyclopedia of Automobile Law & Procedure states in Section 3524: “However, where there is a mere custody entrusted to another, possession remaining at least constructively in the dealer, as where the car is merely parted with by the owner temporarily, subject to be recalled at any moment and with no intention of passing title such provision in dealer’s policy against theft has been held, in view of the ambiguous meaning of the word ‘possession’ and of other provisions in the policy expressly declaring the insurance on any car void in case of lease or rental, not to withdraw the car from the terms of the insurance.”

Defendant cites no cases to the effect that in a situation such as here presented, possession or title was intended to be parted with by the owner. It is obvious from the facts that the plaintiff placed the cars in the temporary custody of the drivers and never intended to surrender possession. See McConnell v. Fireman’s Fund Ins. Co., 5 Cir., 178 F.2d 76; Fireman’s Fund Ins. Co. v. Boyd, Fla., 45 So.2d 499; Gibson v. St. Paul Fire & Marine Ins. Co., 117 W.Va. 156, 184 S.E. 562.

It has been held that when loss occurs after the insured has delivered the car to a garageman, or other bailee having a similar status, with the understanding that the car is to be returned to the insured after the desired service has been rendered by the bailee, the insured is viewed as not having parted with true possession of car, but nierely with custody or as is sometimes said, “custodial possession.” Bennett Chevrolet Co. v. Bankers & Shippers Ins. Co., 58 R.I. 16, 190 A. 863, 109 A.L.R. 1077. See 48 A.L.R.2d 80.

The third issue presented is whether or not the drivers of the automobiles were in the service or employment of the plaintiff so as to come under the provisions of the exclusion set out in section 2(f) of the policy.

It is strongly urged by the plaintiff that the drivers were independent contractors and that no dominion or control was exercised over them by the plaintiff. On the other hand, the defendant vigorously contends that the drivers were in the service or employment of the plaintiff.

In the case of Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 this court laid down the test of an independent contract relationship. Therein the court pointed out that this relationship presupposes a contract, a specific piece of work to be done by the contractor according to his own methods without being subject to the control and direction, in the performance of the service, of his employer, except as to the result of the services to be rendered, and the payment of a specified price for the job.

Some of the Louisiana cases dealing with similar exclusionary clauses are as follows: Gulf Finance & Securities Co. v. National Fire Insurance Co., 7 La.App. 8; Bordelon v. Guaranty Fire Ins. Co., 17 La.App. 255, 135 So. 678; Dairy Fertilizer Co. v. American Ins. Co., 18 La.App. 502, 138 So. 154; and Standard Chevrolet Co. v. Federal Hardware & Mutuals, La.App., 178 So. 642.

In Gulf Finance & Securities Co. v. National Fire Ins. Co., supra, the court allowed recovery for a car stolen by a friend saying that the words “service or employment” in the policy apply to one working for a remuneration or compensation and not to one acting gratuitously. In Bordelon v. Guaranty Fire Ins. Co., supra, the car was stolen by the insured’s salesman who had been discharged at the time of the theft but had not returned the car to the insured. The court denied recovery and held that the salesman was a servant or employee within the exclusion clause.

In Dairy Fertilizer Co. v. American Ins. Co., supra, relied upon by the defendant herein, a truck belonging to the insured corporation was left at the home of the corporation’s president and the president instructed one whom he employed as his yardman and chauffeur to drive the truck to the insured’s garage. The chauffeur instead stole the car and the court held that there could be no recovery under the policy since the loss fell squarely within the exclusionary clause. The chauffeur was held to be in the service of the insured corporation since the act of the insured’s president in directing the taker to drive the truck to the insured’s garage for safekeeping was for the benefit of the insured and one undertaken by the president in his official capacity.

In the case of Standard Chevrolet Co. v. Federal Hardware Implement Mutuals, supra, the agent of an automobile dealer took a boy along with him for the purpose of driving a repossessed automobile back to the dealer’s place of business, and a few hours later, after he had delivered the car, the boy went back, took the car from the dealer’s parking lot, and wrecked it. Therein the boy was held not to be in the employ of the dealer at the time the car was wrecked. The court noted that the terms of the boy’s previous engagement was not disclosed nor was there any proof that the boy ever rendered any other service to the insured hence the boy was not within the exclusionary clause and recovery was allowed.

None of the Louisiana cases above discussed involved the problem of an independent contractor relationship.

In Home Ins. Co. v. Henderson Lodge, 201 Ky. 522, 257 S.W. 422, relied upon by the plaintiff, recovery was allowed and the court found that an independent contract relationship did exist. The car in that case was taken by one whom the plaintiff had engaged to conduct an automobile contest under a contract by which that person was given complete charge of the contest provided that a committee appointed by the plaintiff .should assist such person, have power to sign any contract or other papers for the plaintiff that might be required, and to inspect the books of the person in charge. The court stated that the question to be decided was whether the person who took the car was under the terms of the contract an independent contractor. Recovery was allowed on the theory that the person who took the car was in fact an independent contractor since the plaintiff’s committee did not have the right to manage and conduct the contest but had only such rights as were deemed necessary for the accomplishment of the desired end. The right of the plaintiff, through its committee, to control the conduct of the individual who took the car was held not sufficiently established to make out a master-servant relationship.

In the case of Shelton v. National Fire Ins. Co., 115 W.Va. 268, 174 S.E. 887, it was found that in order to be in the service or employment of the insured, within the meaning of the exclusionary clause, it was essential that the person taking the car be subject to the control or direction of the insured and bound to render personal service to him. The insured herein had given his car to a car washer for the purpose of cleaning and the car washer was held not to be in the service or employment of the insured.

Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 6, section 3719 at page 329 states: “ ‘Service’ and ‘employment’ are words of common use, and therefore ought to be received when they appear in this connection, according to their meaning as they are understood in common parlance. So considered, they are generally associated with the idea of selection and compensation which are common incidents of service and employment, in their usual and normal significance; and hence, where the insured neither selects' nor pays the person unlawfully talcing the machine, the latter will not be deemed within his service or employment under the ordinary circumstances.”

The test of whether a master-servant relationship or an independent contractor relationship exists is the right of control the owner of the car has not only as to result, but also as to means and methods adopted to accomplish that result. Thus if the contract of employment is such that the owner may not only prescribe the result desired but may also control or direct the means and methods by which the work shall be done, the relationship of employer and employee, or master and servant exists. But if under the contract the owner has specified the results only and the other party is left to his own election as to the means and methods, the latter is an independent contractor and not an employee. See the cases of Amyx v. Henry & Hall, supra; Rogers v. Boyers, 114 W.Va. 107, 170 S.E. 905; Oakley v. Thornbury, 114 W.Va. 188, 171 S.E. 426 and Shelton v. National Fire Ins. Co., supra.

Plaintiff argues that the drivers herein were engaged to do and perform one particular specific job, that is to drive the automobiles in question from Chicago to Monroe. No control whatsoever was retained over these people other than that they were to do the jobs in accordance with the least possible time and by the most expeditious route. They had not been hired or employed previously by either plaintiff or Nichols Motor Company of Chicago, and the plaintiff was not to give them employment upon their arrival in Monroe. They were to be paid a certain set specific price for doing one certain set specific job and out of that price they were to pay all the expenses incurred on the trip. Therefore, it is apparent that these people were independent contractors performing a contract on a lump sum basis. The means by which the result was to be accomplished was not under the control of plaintiff, but was entirely under the control of the drivers of the cars.

Under the facts of the case, we must conclude that the drivers were independent contractors and hence not within the exclusion of the policy.

Plaintiff prays for 25% statutory penalties and $500 attorney’s fees as provided for by LSA-R.S. 22:658. This statute provides that the insurer shall pay claims within sixty days after receipt of proof of loss, and failure to do so after demand therefor, when such failure is found to be arbitrary, capricious or without probable cause, shall subject the insurer to a penalty, in addition to the amount of loss, payable to the insured, together with reasonable attorney’s fees for the prosecution and collection of such loss. We cannot say that under the facts of this case the refusal to pay by the insurer was arbitrary, capricious, or without probable cause and hence the penalties and attorney’s fees cannot be allowed. LSA-R.S. 22:658 is a penalty statute and subject to strict construction. Wright v. National Sur. Corp., 221 La. 486, 59 So.2d 695.

We will have to reduce the amount claimed by plaintiff by $300 for the reason that the policy expressly excludes insured’s prospective profit or overhead charges of any nature whatsoever.

For the reasons assigned, the judgment of the lower court is reversed and set aside and there is now judgment in favor of plaintiff, Curtis J. Nichols, individually and doing business as Nichols Motor Company, and against Iowa Mutual Insurance-Company in the sum of $1,765 together with legal interest from judicial demand.. All costs to be paid by the defendant, Iowa. Mutual Insurance Company.

SIMON, J., absent.