text:
    233 La. 291
    RUDOLPH RAMELLI, Inc. v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company. Dr. Lee C. SCHLESINGER et al. v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company. Eugene J. LILLIS v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company.
    Nos. 43102-43104.
    Supreme Court of Louisiana.
    June 28, 1957.
    McCloskey & Dennery, Moise W. Den-nery, New Orleans, for appellants.
    Lemle & Kelleher, Harry B. Kelleher, Milling, Saal, Saunders, Benson & Woodward, M. Truman Woodward, Jr., Alvin J. Liska, City Atty., Charles E. Cabibi, Asst. City Atty., New Orleans, for appellees.
   HAMLIN, Justice ad hoc.

Plaintiffs in these consolidated cases appeal from a judgment of the trial court dismissing their suits for damages alleged to have resulted to their properties from the construction of the Broad Street Overpass. The issues are identical, and, although separate decrees will be rendered, the reasoning of this opinion applies to all three cases.

We are of the opinion that the findings and conclusions of the trial judge are correct, and we quote with approval from his reasons for judgment:

“In these consolidated suits, the plaintiffs seek to recover damages against the City of New Orleans, the Illinois Central Railroad, Louisiana-Arkansas Railroad, in various amounts, claiming that the plaintiffs are owners of property abutting on the South side of Poydras Street, City of New Orleans.

“The petitions, which are identical, all recite that as a result of the adoption of an ordinance on July 11, 1952 by the Commission Council of the City of New Orleans and by the signing of a contract by all defendants on August 25, 1952 and the execution of various agreements and com-mittment therein contained and of the construction of the South Broad overpass by the defendants, City of New Orleans that,

“(a) Poydras Street has been moved by the City of New Orleans, a distance of approximately 100' from the South side of the Poydras yard railroad tracks to the North side of the railroad tracks,
“(b) The destination of the roadway immediately in front of the adjacent property owned by the plaintiffs has been changed by the City of New Orleans,
“(c) That the City of New Orleans has narrowed the effective width of the roadway by some 17' to a width of approximately 25',
“(d) That an elevated embankment for a railroad bank and tracks has been constructed by all the defendants in a portion of said roadway,
“(e) That the property is, or shortly will be no longer accessible to the nearest north-south arterial streets to the East and West,
“(f) That ingress and egress from said property is, or shortly will be available only by means of a non-arterial alleyway which has a roadway of only 25' in width and then only after crossing the heavily utilized Poydras yard railroad tracks,

“that the property of the plaintiffs is presently in cul de sac and that the means of ingress and egress to the property has been unreasonably seriously impaired, and obstructed and that the plaintiffs no longer have reasonable access from their property to the general street system of New Orleans, that vehicular traffic on the roadway immediately in front and adjacent to the property has been seriously interfered with and that the view to and from the said property has been seriously impaired and that it has suffered diminution in its fair market value, that this diminution in the fair market value is special and material damages” (and) “is exclusive to the plaintiffs” (and) “that they will” (be) “deprived of this property without due process of law in violation of Article 1, Sec. 2 of the Constitution of the State of Louisiana [LSA] and the Fifth and Fourteenth Amendment of the Constitution of the United States, and by virtue of the rights granted by Article 1, Section 2 of the Constitution of Louisiana of 1921 as amended, plaintiffs are entitled to recover damages from the defendants.

“The evidence shows that prior to the construction of the Broad Street overpass that Poydras Street was paved on the South side of the then existing railroad tracks or yards and that it was an East and . West traffic artery 41' in width, that it had its terminal at South Broad Street into which traffic on Poydras could proceed by turning left up South Broad or by turning right down South Broad and by the same token, traffic on South Broad Street could enter Poydras. Since the building of the overpass, the roadway of the Poydras Street in front of plaintiffs’ premises has been narrowed from 41' to 25' and one more railroad track has been added in the bed of what was formerly part of the existing roadway of South Poydras Street. At Poydras and South Broad where the overpass was built, this section of Poydras Street comes to a deadend. On the North side of Poydras Street, another roadway has been built that is .North of the railroad-tracks which according to the exhibits which are in the record, has access to the Broad Street overpass and connects with Broad Street by a route beneath the overpass when traffic is proceeding uptown. In order for the plaintiffs to reach this North Poydras Street roadway, it is necessary that they proceed several blocks in the direction of the Mississippi River or West to South Galvez Street to cross the railroad tracks at South Galvez Street to the North side of Poydras Street and turn and drive directly East to reach the Broad Street overpass. The difference in the number of feet that any of the plaintiffs must now traverse in order to get tp Broad Street is some 3,000 feet. In other words, there are no streets crossing the railroad yard from Broad at Poydras to Galvez at Poydras. The record shows that at times, boxcars are left on the tracks in front of the property belonging to the plaintiffs. This condition also existed prior to the improvements. The plaintiffs submitted as an expert witness, Mr. Max Derbes, Sr., a realtor in the City of New Orleans who gave the Court his opinion of the diminution of the value of the property of the various plaintiffs. He testified that all of the property had suffered a 20% diminution value made up as follows:

“Loss in value due to the fact that trucks and automobiles take a circuitous route to reach the plaintiffs’ property being in a cul de sac.... 7% "Loss of direct access for foot traffic.1% "Narrowing of the street from 41' to 25'.2% "Loss of view because of boxcars and loss of advertising value to the plaintiffs.2% "Loss due to re-routing of the traffic.8%

“Each and every item composing the twenty percent estimated diminution value testified to by Mr. Derbes is due to the rerouting and diversion of traffic.

“There can be no recovery of damages by property owners because of the diversion of traffic by a municipality.

“The record shows that the access to and from South Claiborne Avenue to the East of the plaintiffs’ property is the same as it always was. Plaintiffs lay great stress upon the fact that the roadway of South Poydras Street was narrowed from 41' to 25' and contend that the ingress and egress to their property has been impaired because of the narrowing of the roadway. The evidence shows that many streets in the City of New Orleans in J industrial sections are 25' in width. * * * ”

Plaintiffs’ principal contention on appeal is that the trial judge was in error in finding that each item composing the 20% estimated diminution value was caused by rerouting and diversion of traffic. As stated; supra, we believe that the trial judge was correct in his conclusions, and the only question presented for our determination is whether such damages are compensable.

We have repeatedly held that under its police power a city may divert traffic without subjecting itself to liability. Patin v. City of New Orleans, 223 La. 703, 66 So.2d 616; Thomas & Warner, Inc. v. City of New Orleans, 230 La. 1024, 89 So.2d 885; Britt v. City of Shreveport, La.App., 83 So.2d 476; Jarnagin v. Louisiana Highway Commission, La.App., 5 So.2d 660. This ruling applies to the instant controversy, and the diversion of traffic to plaintiffs’ property brought about by the construction of the Broad Street Overpass is not such damage as to subject the defendants to liability under Article I, sec. 2, of the Louisiana Constitution of 1921.

There is no doubt that plaintiffs have suffered inconvenience by the narrowing of Poydras Street and by the diversion of traffic some three thousand feet, but this inconvenience is common to all other property owners within the same vicinity.

“ * * * This is an inconvenience suffered by the public generally and not specially sustained by plaintiff’s property. It follows that any loss suffered falls within the realm of ‘damnum absque injuria.’ Jarnagin v. Louisiana Highway Commission, La.App., 5 So. 2d 660; Patin [v. City of New Orleans, 223 La. 703, 66 So.2d 616].” Thomas & Warner, Inc. v. City of New Orleans, 230 La. 1024, 89 So.2d 885, 889. See, 18 Am.Jur., sec. 139, p. 765.

The trial judge concluded that plaintiffs’ damages were damnum absque injuria. We see no manifest error in his findings and are not prone to disturb them. Heintz v. Heintz, 231 La. 535, 91 So.2d 784; Barrett Division of Allied Chemical & Dye Corporation v. Kennedy Saw Mills, Inc., 230 La. 143, 88 So.2d 5; Southwest Gas Producing Company, Inc. v. Hattie Brothers, 230 La. 339, 88 So.2d 649.

For the reasons assigned, the judgment of the trial court dismissing the suit of Rudolph Ramelli, Inc. is affirmed. Costs to be paid by Rudolph Ramelli, Inc.

PONDER, J., absent.


source: Caselaw Access Project

author: HAMLIN, Justice ad hoc.

license: Public Domain

text:
    233 La. 300
    Dr. Lee C. SCHLESINGER et al. v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company. RUDOLPH RAMELLI, Inc. v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company. Eugene J. LILLIS v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company.
    Nos. 43102-43104.
    Supreme Court of Louisiana.
    June 28, 1957.
    McCloskey & Dennery, Moise W. Den-nery, New Orleans, for appellants.
    Lemle & Kelleher, Harry B. Kelleher,. Milling, Saal, Saunders, Benson & Woodward, M. Truman Woodward, Jr., Alvin J. Liska, City Atty., Charles E. Cabibi, Asst. City Atty., for appellees.
   HAMLIN, Justice ad hoc.

For the reasons assigned in the case of Rudolph Ramelli, Inc. v. City of New Orleans, 233 La. 291, 96 So.2d 572, decision this day handed down from the bench,, the judgment of the trial court dismissing the suit of Dr. Lee C. Schlesinger et al. is affirmed. Costs to be paid by Dr. Lee C. Schlesinger et al.

PONDER, J., absent.


text:
    233 La. 301
    Eugene J. LILLIS v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company. RUDOLPH RAMELLI, Inc. v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company. Dr. Lee C. SCHLESINGER et al. v. CITY OF NEW ORLEANS, Illinois Central Railroad Company, and Louisiana and Arkansas Railway Company.
    Nos. 43102-43104.
    Supreme Court of Louisiana.
    June 28, 1957.

      McCloskey & Dennery, Moise W. Den-nery, New Orleans, for appellants.
    Lemle & Kelleher, Harry B. Kelleher, Milling, Saal, Saunders, Benson & Woodward, M. Truman Woodward, Jr., Alvin J. Liska, City Atty., Charles E. Cabibi, Asst. City Atty., New Orleans, for ap-pellees.
   HAMLIN, Justice ad hoc.

For the reasons assigned in the case of Rudolph Ramelli, Inc. v. City of New Orleans, 233 La. 291, 96 So.2d 572, decision this day handed down from the bench, the judgment of the trial court dismissing the suit of Eugene J. Lillis is affirmed. Costs to be paid by Eugene J. Lillis.

PONDER, J., absent.


author: FOURNET, Chief Justice. HAMITER, Justice PER CURIAM.

text:
    233 La. 302
    Robert Pendleton BAILEY v. Claire Mixon BAILEY.
    No. 43161.
    Supreme Court of Louisiana.
    June 10, 1957.
    Rehearing Denied June 28, 1957.
    Seale, Kelton, Hayes, Baton Rouge, and Donald V. Organ, New Orleans (substituted for Julian B. Humphrey who withdrew as counsel), for defendant-appellant.
    James H. Drury, Felicien P. Lozes, New Orleans, for plaintiff-appellee.
   FOURNET, Chief Justice.

The defendant prosecutes this appeal from a judgment granting her husband a divorce as well as the permanent custody of their infant daughter, contending there was not a sufficiency of evidence on the trial of the case to establish the act of adultery upon which the action for divorce was predicated, and, in any event, that the custody of the small child should be awarded the mother under the law and jurisprudence of this state.

A detailed analysis of the sordid facts of this case will not aid in our decision here. Suffice it so say that because of the nature of the case we have carefully examined the record and find there is ample evidence to support the conclusion of the trial judge that the husband was entitled to the divorce. And while the courts of the state are loathe to take a minor child from its mother, who, under the law, is preferred to the father, inasmuch as the law also considers the welfare and best interests of the child to be paramount, we cannot say, under the particular facts of this case as developed during the trial, that the trial judge abused the discretion vested in him in such cases in awarding the custody to the father.

For the reasons assigned, the judgment is affirmed.

HAMITER, Justice

(dissenting).

From my careful study of the record herein I am unable to conclude that the evidence adduced preponderately discloses the commission of adultery on the part of the defendant.

Appropriate to this cause are the following observations contained in Hayes v. Hayes, 225 La. 374, 73 So.2d 179, 180: “ * * * While it is well settled that the unfaithfulness of a spouse may be established by indirect or circumstantial evidence forasmuch as, in the nature of things, it can seldom be proven by direct or positive evidence, [cases cited] the facts and surrounding circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. [Cases cited.] In other words, the circumstantial proof in these cases must be so convincing as to exclude any other reasonable hypothesis but that of guilt.” In my opinion the requirements thus enunciated, for warranting a holding that adultery has been established, are not satisfied in the instant cause.

Applicable here also is this comment contained' in Savin v. Savin, 218 La. 754, 51 So.2d 41, 46: “* * * True, the mass of circumstantial evidence under consideration causes us to entertain a suspicion of her guilt; but * * * that alone cannot serve as the basis for a judgment of divorce and a denial of the mother’s right to the care and custody of her child.”

I respectfully dissent.

On Application for Rehearing

PER CURIAM.

Insofar as we affirmed the judgment of the district court awarding plaintiff a divorce, a rehearing is refused.

The incidental question of the custody of the minor child Elizabeth Kay Bailey, however, should be given further consideration. As we pointed out in the original opinion, the law considers the child’s best interest and welfare to be paramount in awarding custody in a case of this nature. Unfortunately, the record in this case is not sufficient for us to determine whether the trial judge acted wisely in awarding the child to her father, and thus a rehearing to resolve this question would serve no useful purpose. Therefore in the interests of justice we have decided to remand this case to the district court for the exclusive purpose of receiving additional evidence on the question of whether it would be more advantageous for this little girl to be entrusted to the care of her mother or of her father. Art. 157, La.Civ. Code.

This case is therefore ordered remanded to the Civil District Court for the Parish of Orleans solely for trial and decision of the issue of custody of the minor child Elizabeth Kay Bailey.

HAMITER, J., concurs in the order of remand; otherwise he dissents.


author: FOURNET, Chief Justice.

text:
    233 La. 307
    EVANGELINE IRON WORKS, Limited, v. Lucius L. LYONS et al.
    No. 43089.
    Supreme Court of Louisiana.
    June 10, 1957.
    Kaufman, Anderson, Leithead & Scott, Lake Charles, for plaintiff-appellant.
    Griffin T. Hawkins, Selby & Lawes, Lake Charles, for defendants-appellees.
   FOURNET, Chief Justice.

The plaintiff, Evangeline Iron Works, Ltd., alleging the defendant E. J. Smith had assisted and encouraged its former employee and officer Lucius L. Lyons to illegally obtain funds upon checks payable to plaintiff’s order, with full knowledge the funds thus fraudulently secured were not being used for plaintiff’s business or benefit, but, instead, for the gambling and drinking of Lyons in Smith’s place of business, instituted this suit against Lyons and Smith seeking an in solido judgment against them in the sum of $40,000, with recognition and enforcement of a mortgage given it by Lyons as partial reimbursement for the funds thus obtained.

The defendants, after their exceptions of no cause and no right of action were overruled and Smith’s plea of prescription of one year was referred to the merits, answered, generally denying the allegations of the petition. Smith further answered, averring that although he had cashed the checks, he had no knowledge of wrong doing on the part of Lyons and had not profited in any way from the transactions.

Following trial on the merits there was judgment in favor of the plaintiff and against Lyons in the sum of $18,726.05, with recognition of the lien and mortgage. As to Smith, the suit was dismissed, for the reasons as stated by the trial judge that (1) plaintiff conceded it failed to make out a case against him under Article 2324 of the Revised Civil Code, and (2) failed to prove with the certainty required by law its right to recover under a subsequently advanced theory that, having received money due plaintiff either knowingly or by error, Smith was required to restore it under Article 2301. The plaintiff prosecutes this appeal from the judgment in favor of Smith.

The record reveals the plaintiff, a small corporation composed almost entirely of its own employees, operates in the city of Lake Charles, Louisiana, a machine and welding shop for the repair of oil field and general contractor equipment. The defendant Lyons, a trusted employee for many years, originally joined the company in a bookkeeping and clerical capacity, being made vice-president in 1943 and secretary-treasurer in October of 1950. After his election to the vice-presidency, Lyons, from April of 1944 through October of 1950 systematically cashed customer checks payable to the company, retaining the funds thus secured and altering the books to conceal the resulting shortage. These defalcations were revealed when D. J. Schanz, an. employee-officer of the corporation, became suspicious that the profit shown on the statement of operations prepared by Lyons covering October was incorrect, being far short of what it should be as the result of a sudden increase in business activity. Lyons, faced with discrepancies in the statement and also those revealed by a hasty check through the accounts for the month, admitted he had taken two checks during October to tide him over a little difficulty and gave in settlement thereof the check and mortgage referred to in Footnote No. 2. When this same employee-officer found still further evidence of error while trying to learn how to keep the books and accounts, a complete audit was made by a competent accountant, revealing a shortage of $20,426.05 during the period from April 1944 through October 1950, checks, totalling more than $16,000 having been cashed by the defendant Smith, a resident of Texas who owned and operated a bar and restaurant in Calcasieu Parish on the highway between Lake Charles and Beaumont, and, in connection therewith, cashed, as a convenience and without charge, checks of employees working in the plants in the vicinity, handling in a night as much as $10,000 in this manner.

After carefully studying the record, we are constrained to conclude, as did the trial judge, that the plaintiff totally failed to prove any conduct on the part of Smith that could have brought him within the purview of Article 2324 of the Revised Civil Code and the jurisprudence thereunder, upon which plaintiff’s suit is predicated and which provides: “He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.” See Little v. Campbell, La.App., 20 So.2d 627.

Counsel representing plaintiff nevertheless argue here, both orally and in brief, that (1) inasmuch as Smith cashed these checks without inquiry as to Lyons’ authority to endorse and negotiate them, a fact he could have easily ascertained, this constituted “negligent ignorance” on Smith’s part, which had the effect in law of actual knowledge, and thus placed him in the position of having aided and assisted Lyons in embezzling funds, for which he is answerable in solido under Article 2324, and (2) in any event, the money received by Smith under this unauthorized endorsement was not money due Smith and he is, therefore, obliged to restore it to plaintiff whether he received it througlr-error or knowingly under the provisions of Article 2301 of the code.

There is clearly no merit to the first contention since plaintiff, as stated by the trial judge in his written reasons for judgment, has already conceded in the lower court it failed to establish its case so as to bring it within the purview of the provisions of Article 2324. Furthermore, taking plaintiff’s own brief, wherein it is admitted that in order to prevail on this theory it was required to establish that Smith, in cashing the checks, had knowledge of Lyons’s appropriation of the funds and himself profited by the transactions, we find the concession that “the record fails to prove that Lyons lost a substantial part of the proceeds from the checks in gambling with Smith.” In fact, the record fails to establish that Lyons lost any money gambling with Smith or in a place operated by him, or that Smith, in fact, derived any benefit or profit of any kind from Lyons’s manipulations. Moreover, as will be shown hereafter, the checks were cashed by Smith in good faith, for full value, and without knowledge of any defalcation.

The second argument is equally without merit. Plaintiff having elected to sue in tort, a quasi-offense, under Article 2324, waived any right it may have had to recover in quasi-contract under Article 2301. Morgan’s Louisiana and T. R. & S. S. Co. v. Stewart, 119 La. 392, 44 So. 138; State v. Younger, 206 La. 1037, 20 So.2d 305. But if we were to concede that under the pleadings this particular action has not been waived, Article 2301 must be read and considered together with the negotiable instrument law of this state' — particularly R.S. 7-52 and R.S. 9:3804 et seq. — and plaintiff still cannot recover under the facts of this case.

It is unmistakably shown that the authority of Lyons to endorse checks payable to the corporation in the course of its business had never been previously questioned. He had full and complete charge of the business office, including the handling of the mail, keeping of the books, auditing, preparation of income tax returns and statements, and banking. The fact that after endorsing the checks he cashed them and converted the funds to his own use instead of depositing them in the bank to the credit of his principal is of no moment. Smith, in cashing these checks, did so as an accommodation in due course of business, without knowledge of Lyons’s defalcation and for full value. The checks were then deposited in Smith’s bank and by that bank sent to the maker’s bank, where they were duly honored. Besides, it is revealed by the evidence that many of the checks Lyons cashed with other parties than Smith were negotiated through the Calcasieu Marine National Bank of Lake Charles, where plaintiff kept its account, and the endorsement of Lyons was not there questioned. In fact, Lyons actually cashed one of the checks at the bank himself and retained the money there given him upon his endorsement.

We think, as did the trial judge, that “if plaintiff sustained its loss, it was because of its failure to have audits of its books frequently enough and its undue confidence in its officer, Lyons, and the further fact that they encouraged him in his gambling activities,” the evidence disclosing further that Lyons habitually engaged in card games with other members of the corporation both at the office and at home, with stakes running considerably higher than is generally encountered in a friendly game. He apparently lost to these members most, if not all, of the sums he secured by cashing the checks with Smith.

Under these conditions we find particularly applicable the following quotation from American Jurisprudence: “Where the prejudicial situation has resulted from the wrongful act of a third person, the decision must be against the party whose conduct made possible the wrongdoer’s act, breach of trust, fraud, or negligence. It is said: ‘As between two innocent persons, one of whom must suffer the consequences of a breach of trust, the one who made it possible by his act of confidence must bear the loss.’ * * * Thus, where the owner of a negotiable instrument has intrusted the note or check to another and the latter, in violation of instructions, has transferred the instrument to one who has taken it innocently or without knowledge of the breach of trust, the loss must be borne by the owner rather than by the transferee.” Volume 19, page 335, Section 484. See, also, Young v. Gretna Trust & Savings Bank, 184 La. 872, 168 So. 85; Whittington Co. v. Louisiana Paper Co., 224 La. 357, 69 So.2d 372, and the authorities therein cited.

The conclusion we have reached renders it unnecessary for us to consider the prescriptive plea of one year.

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

      . Smith died on May 13, 1954, shortly after trial on the merits, and his widow, Mrs. Bernice Smith, was substituted as party defendant in his stead.

      .Shortly after the defalcation was discovered, Lyons gave plaintiff a check for $1,700 and a $4,000 mortgage on property belonging to him as a partial restitution of the funds secured, stating this would cover all amounts embezzled. Subsequent check disclosed funds in excess of $20,000 had been thus secured over a 6-year period.

      . Schanz succeeded to the presidency upon the death of his brother shortly after the shortage was discovered.

      . The record also shows Smith rented out a part of the establishment to various persons who operated gambling in the rented space.

      . Article 2301 provides: “He who receives what is not due to him, whether he receives it through error or knowingly, obliges liimself to restore it to him from whom he has unduly received it.”


author: PER CURIAM.

text:
    STATE ROAD DEPARTMENT OF FLORIDA, an agency of the State of Florida, et al., Petitioners, v. Ira NOBLES et al., Defendants.
    Supreme Court of Florida.
    July 24, 1957.
    Charles W. Luther, Daytona Beach, Bryan Henry, Miami, Ross H. Stanton, Tallahassee, and Charles T. Boyd and Richard B. Austin, Jacksonville, for petitioners.
    Fred R. Brannon, New Smyrna Beach, for defendants.
    Alex D. Littlefield, Jr., Daytona Beach, amicus curia:.
   PER CURIAM.

A motion has been made to quash the following certified question because it fails to fall within the terms of Supreme Court Rule 27, 31 F.S.A.

“Does Section 74.07, Florida Statutes, as amended Laws of 1955 [F.S.A.], authorize upon application the withdrawal by a defendant of the face amount of the appraisal paid into the registry of the court where the property has been taken under the provisions of Section 74.05, Florida Statutes [F.S.A.]?”

We decline to answer the question certified, for the reasons stated in the opinion of Mr. Justice Thornal prepared for the Court in Gordon v. Norris, Fla.1956, 90 So.2d 914, 915. It was suggested to the Court upon the presentation of this matter that unless the Court accepted the certified question and answered it, there would be no way in which the question certified could be reviewed by an appellate court. The answer to this contention was suggested in Howard Johnson, Inc., of Florida v. State Road Department of Florida, Fla.1956, 90 So.2d 306.

HOBSON, Acting Chief Justice, DREW, THORNAL and O’CONNELL, JJ., and WIGGINTON, District Judge, concur.


author: CARROLL, CHAS., Chief Judge.

text:
    BILTMORE VILLAGE, Inc., a Florida corporation, Appellant, v. Dave BACON and Claudia Ownby Bacon, his wife, Appellees.
    No. 57-24.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1957.
    Redfearn, Ferrell & Simon, Miami, for appellant
    Jack M. Turner, So. Miami, for appel-lees.
   CARROLL, CHAS., Chief Judge.

This is an appeal from a summary final decree of the Circuit Court of Dade County, removing deed restrictions and a right of reverter incident thereto from a lot owned by the Appellees, who were the plaintiffs. The Appellant is a successor in interest to the subdivider who originally imposed the restrictions. The question of the correctness of the ruling granting the plaintiff’s motion for summary final decree is raised under the Appellant’s first four assignments of error.

Allegations of changed circumstances and conditions relating to the property and surrounding area were denied in the answer, which averred some facts to the contrary.

The motion for summary final decree was opposed by defendant with an affidavit of one J. J. Lamb, setting out certain facts relied on by defendant to establish the absence of any changes which would warrant or require removal of the restrictions.

The answer and the Lamb affidavit raised genuine issues of fact on that material feature of the suit, and, therefore, the motion for summary final decree should not have been granted. See Wilson v. Bachrach, Fla. 1953, 65 So.2d 546; Johnson v. Studstill, Fla.1954, 71 So.2d 251, 253; and Jones v. Stoutenburgh, Fla.1957, 91 So. 2d 299, 302.

In view of this disposition of the appeal in this case, other questions presented are not required to be determined.

Reversed and remanded for further proceeding consistent herewith.

HORTON and PEARSON, JJ., concur.


author: HORTON, Judge.

text:
    Otto C. STEGEMANN, Appellant, v. Catherine HITE and Richard Hite, her husband, Appellees.
    No. 57-22.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1957.
    L. J. Cushman, Miami, and Otto C. Stegemann, Miami Beach, for appellant.
    Enight, Smith, Underwood & Peters, Miami, for appellees.
   HORTON, Judge.

This appeal is to review a final judgment for the appellee, Catherine Hite, entered by the Circuit Court of Dade County, Florida. The appellee, a pedestrian, sustained personal injuries allegedly caused by the negligent operation of an automobile at the intersection of Jefferson Avenue and 17th Street in the City of Miami Beach, Florida. The appellant made a general denial to the charge of negligence and interposed a plea of contributory negligence. Upon these issues, the cause was submitted to the jury, resulting in a verdict favorable to the appellee.

The appellant has urged three grounds upon which he seeks a reversal of the judgment below, all of which challenge the sufficiency of the evidence, i. e.: (1) The sufficiency of the evidence of the ap-pellee to support a finding that the appellant was guilty of negligence; (2) Sufficiency of the evidence as a whole upon which conclusion could be based that the appellee was injured solely by her own contributory negligence; and (3) Whether or not all the evidence is sufficiently clear to show that the verdict was wrong and that the lower court was in error in denying the appellant’s motions for directed verdict and a new trial.

The entire record in this cause has been carefully reviewed and considered and we find that there was adequate basis upon which the jury could have arrived at the conclusion reached in this case. The test is not what an appellate court would have decided had they been on the jury, but whether or not they can say, after-viewing the case in its most favorable aspect toward the successful litigant, that the jury as reasonable men could not have found the verdict that they did. Merchants’ Transport Co. v. Daniel, 109 Fla. 496, 149 So. 401; Parrish v. Clark, 107 Fla. 598, 145 So. 848; Jennings v. Pope, 101 Fla. 1476, 136 So. 471.

We therefore hold that the factual dispute as to the existence of negligence was resolved by the jurors under appropriate instructions by the trial judge. Williams v. Smelt, Fla.1955, 83 So.2d 1. Accordingly, the judgment of the lower court is hereby affirmed.

CARROLL, CHAS., C. J., and PEARSON, J., concur.


author: SIMON, Justice.

text:
    233 La. 317
    GARDEN DISTRICT PROPERTY OWNERS ASSOCIATION, Inc. v. CITY OF NEW ORLEANS et al.
    No. 43158.
    Supreme Court of Louisiana.
    June 10, 1957.
    Louis Fenner Claiborne, New Orleans, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, Alden W. Muller, Acting City Atty., Posey R. Bowers, Asst. City Atty., New Orleans, for appellees.
   SIMON, Justice.

Plaintiff-Appellant, Garden District Property Owners Association, Inc., a nonprofit corporation organized under LSA-R.S. 12:101 et seq., seeks a permanent injunction directing the City of New Orleans to revoke a certificate of use or occupancy which authorizes the co-defendant, Julius Szodomka, the right of use and occupancy of the premises as a four-apartment dwelling situated at 2717-19 Chestnut Street in the City of New Orleans and to further prohibit the said Szodomka and his successors in title from so using the said premises, contending that said property, being classified as “B — two-family” under Ordinance 18,565 CCS, known as the Comprehensive Zoning Law, has lost its legal nonconforming use status as a result of six months’ vacancy.

In answering, the City denied the essential allegations of plaintiff’s petition. Defendant Szodomka filed several exceptions, among them an exception of no right of action. The lower court sustained the exception of no right of action and dismissed plaintiff’s suit as to him. It is from that ruling that the present appeal is prosecuted.

On the day this case was called for argument before us plaintiff-appellant filed a motion to transfer this appeal to the Court of Appeal, Parish of Orleans, on the ground that there is no affirmative showing of the amount in dispute or the value of the right asserted so as to vest us with jurisdiction.

After a careful examination of the record we fail to find that it contains a scintilla of proof affirmatively showing that the amount in dispute or the value of the right asserted exceeds the sum of $2,000.00, exclusive of interest, nor does it appear that this case falls within any other of the classes of cases of which this Court is given appellate jurisdiction. LSA-La.Const. of 1921, Art. 7, Sec. 10; Louisiana Board of Pharmacy v. Smith, 221 La. 1026, 61 So.2d 513; City of New Orleans v. Ryman, 225 La. 1092, 74 So.2d 386; City of New Orleans v. Langenstein, 227 La. 770, 80 So.2d 402.

Accordingly, by virtue of the authority vested in this Court under LSA-R.S. 13 :4441 and 13:4442, it is ordered that this case be transferred to the Court of Appeals, Parish of Orleans, the transfer to be made within thirty days after this decree has become final; otherwise the appeal is to be dismissed; the appellant to pay the cost of this appeal; all other costs to await the final disposition of the case.


author: HAMITER, Justice.

text:
    233 La. 320
    J. Claude KELLER v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    No. 43162.
    Supreme Court of Louisiana.
    June 28, 1957.

      Sevier, Yerger & Sevier, Tallulah, and Hunt & Spencer, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein, Monroe, for defendant-appellee.
   HAMITER, Justice.

Herein, J. Claude Keller is seeking to recover from General Motors Acceptance 'Corporation (sometimes referred to in this ■opinion as GMAC) the sum of $2,463.39, plus 8% per annum interest and 25% attorney’s fees. His demands were rejected by the district court and he is appealing.

The pertinent facts are not disputed. 'On May 20, 1954, plaintiff sold to one Cedell Dye (a resident of West Carroll Parish) .-a Pontiac automobile for a total consideration of $4,030.39, and he accepted the purchaser’s promissory note of $2,763.39 which evidenced the unpaid portion of the sale price. This note, secured by a chattel •.mortgage and vendor’s lien on the car, was ■payable in monthly installments, the last 'being for $2,463.39 and due December 20, 1954. On completion of the sale plaintiff • endorsed the note and transferred it, together with his written personal guaranty .for payment thereof, to GMAC.

All of the installments were paid by the ■ debtor at their respective maturities except •the last one of $2,463.39. When default as to it occurred GMAC called on plaintiff, as endorser and guarantor, for payment. Plaintiff paid the installment by a check ■ dated January 7, 1955, to which was attached a written request that the note and •the car’s certificate of title be forwarded :to him. Instead of complying with this request GMAC inadvertently marked the note paid (or cancelled) and mailed it, along with the title certificate, to the maker, Dye. The latter refused to surrender the instruments which he received, notwithstanding amicable demand therefor having been made on him.

On March 8, 1955, this plaintiff instituted suit against Dye, by ordinary process, for the purpose of foreclosing the mortgage and vendor’s lien on the car. No immediate seizure of the vehicle was therein demanded. Three days after service of the citation Dye sold the mortgaged property to an innocent purchaser in East Baton Rouge Parish, one Bidwell Pace, surrendering to him the erroneously cancelled note and the title certificate.

Later (April 30, 1955), this plaintiff and this defendant joined in an action in the East Baton Rouge Parish District Court in which they sought to enjoin the State Vehicle Commissioner from transferring the automobile’s title to Pace, as well as from cancelling the mortgage affecting it, on the records of his office. The action was voluntarily dismissed when it appeared that the purchaser had been in good faith.

On October 10, 1955, the instant suit was instituted. Among the allegations contained in the petition are the following:

“That the negligent act of defendant herein, in not mailing the note and certificate of title to your petitioner as guarantor thereon, has caused petitioner to lose the security held under the chattel mortgage above referred to, thus causing petitioner to suffer a loss of the amount as paid to GMAC as heretofore set forth.
* * * * * *
“That the promissory note above referred to provided that in the event of default of the debtor and in the event suit was necessary for collection thereof, that 25% on principal and interest would be due as attorney’s fees. That the loss of this amount has been sustained by plaintiff through the negligent act of the defendant as set forth above.”

Plaintiff prays for judgment in the sum of $2,463.39, the amount paid by him to GMAC, plus 8% per annum interest from December 20, 19S4 and the above mentioned 25% attorney’s fees.

Defendant, GMAC takes the position that plaintiff should have seized the car, under a writ of sequestration in the suit that he brought against Dye, before it was sold to the innocent purchaser; and that his not having done so constituted a failure to minimize damages, such as the law requires, and prevents recovery herein. Defendant insists that plaintiff had that remedy because, by operation of law, he became subrogated to all of its rights in and to the note and mortgage when he paid the indebtedness.

Conceding for the sake of argument that plaintiff was entitled to sequester the car (we entertain some doubt as to this, since the note had been cancelled and delivered to Dye), responsibility for taking legal action to prevent injury rested primarily on GMAC, for the difficulty was caused solely by its negligent act. On the occurrence of that act it could and should have proceeded against Dye (by enjoining the sale of the vehicle, if necessary) with the view of protecting the interest of plaintiff, particularly of obtaining for him possession of the note, who had paid the indebtedness. And having failed to perform this obligation GMAC must reimburse plaintiff the amount which he expended. “Where one of two innocent persons must suffer, he who makes it possible for the injury to occur must bear the consequences.” Haley v. Woods, 163 La. 911, 113 So. 144, 146. See also Young v. Gretna Trust & Savings Bank, 184 La. 872, 168 So. 85; Ideal Savings & Homestead Ass’n v. Kerner, 208 La. 513, 23 So.2d 200; Clark-Kelley Livestock Auction Co. v. Pioneer Bank & Trust Co., 228 La. 224, 81 So.2d 868.

However, plaintiff is not entitled to also recover the 8% per annum interest and the 25% attorney’s fees herein demanded. He claims these items by reason of certain stipulations in the mentioned note. But the instant suit was not brought on that instrument.

Defendant’s exception of no right of action, overruled by the district court and reurged here, is without merit. It is predicated on the following language contained in the personal written guaranty given by plaintiff to GMAC: “The liability of the undersigned shall not be affected * * * by the discharge or release of the obligation of the mortgagor or any other person interested, by operation of law or otherwise.” Defendant argues that this provision continued the personal liability of plaintiff even though it had released Dye from his obligation. Manifestly, the “discharge or release” contemplated by such provision is one resulting from some occurrence over which the defendant had no control—such as bankruptcy of the mortgagor, destruction of the mortgaged property, etc.—not from its voluntary or negligent act.

For the reasons assigned the judgment appealed from is reversed and set aside, and there is now judgment in favor of plaintiff, J. Claude Keller, and against the defendant, General Motors Acceptance Corporation, in the sum of $2,463.39, together with legal interest from judicial demand until paid and all costs of this suit.

PONDER, J., absent.


author: McCALEB, Justice.

text:
    233 La. 328
    Ivan Chester KOTTEMAN v. Lee C. GREVEMBERG, The Board of Tax Appeals, State of Louisiana, The Louisiana Board of Alcoholic Beverage Control of the State of Louisiana, and the City of New Orleans.
    No. 43364.
    Supreme Court of Louisiana.
    June 28, 1957.
    See also 233 La.-, 96 So.2d 604.
    Thomas M. Brahney, Jr., Amos L. Ponder, Jr., New Orleans, for appellants.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, William P. Schuler, Henry J. Roberts, Jr., Asst. Attys. Gen., James C. Gulotta, Parnell Hyland, Alvin J. Liska, City Atty., Beuker F. Amann, Asst. City Atty., New Orleans, Lee C. Grevemberg in pro. per., for appellees.
   McCALEB, Justice.

This is a proceeding to revoke a permit to sell beer and other beverages of low alcoholic content issued to appellant, Ivan ■Chester Kotteman, proprietor of an establishment located at 620 Conti Street in the City of New Orleans, known as the Salle D’Arms Bar or Montmarte Lounge.

Under registered letter dated October 26, 1956, Kotteman was notified by the Board of Tax Appeals for the State of Louisiana of a hearing to be held before that body with reference to the revocation of his permit to sell beer and other beverages of low alcoholic content and also of a hearing to be held before the Board of Alcoholic Beverage Control concerning the revocation of his permit to sell beverages of high alcoholic content. Attached, to and made part of the notice and summons was a list of specific charges made by a private citizen, Mr. Lee C. Grevemberg, which were fully set out in a petition to the board by Mr. Grevemberg, wherein it was prayed that Kotteman’s permits be revoked because of his violation of certain provisions of Chapter I of Title 26 of the Revised Statutes and “that the general conduct of this establishment and the type of patrons who frequent same are not conducive to an orderly, law abiding establishment”.

Following a hearing before the Board of Tax Appeals, Kotteman’s 1956 retail beer permit was revoked and it was further ordered that no other permits for the sale of beer or low alcoholic beverages be issued to him for a period of one year from November 19, 1956.

Conformably with the provisions of R.S. 26:302, Kotteman instituted suit in the Civil District Court to have the decision of the Board of Tax Appeals reviewed, by trial de novo, and he named as defendants thereto Mr. Lee C. Grevemberg, who had initiated the proceedings against him, the Board of Tax Appeals, the Board of Alcoholic Beverage Control of the State of Louisiana and the City of New Orleans. These latter two parties were joined as defendants for allegedly having caused Kotteman’s liquor license for the year 1956 to be revoked without affording him a. hearing.

In his petition Kotteman pleaded that the Board revoked his permit although none of the actionable charges alleged against him. was proved; that the other charges alleged did not constitute grounds for revocation of his permit and that the Board improperly permitted evidence to be introduced, over objection, of violations which had not been alleged and of which no prior notice was given.

On the date fixed for the hearing of Kotteman’s petition, Grevemberg appeared in the district court and denied the contentions made therein and, under authority of R.S. 26:302 (see footnote No. 2, supra),. asserted additional grounds for the revocation of the permit. The substance of these new charges was that Kotteman had violated R.S. 26:285(5) and that 250 arrests. had been made by the police on his premises during the period from January 1, 1954 through November 12, 1956; that he had violated R.S. 26:286(1) by not stating that he had a manager for his establishment and that he also failed to state in his application for a permit that he had been previously convicted of selling beer and whiskey without a license.

The other defendants also appeared and filed exceptions of no right or cause of action, simultaneously with their answer.

The judge referred all exceptions to the merits and, after a trial de novo, he affirmed the order of the Board of Tax Appeals. Kotteman has appealed.

In this court, the Attorney General initially contends that the Board of Tax Appeals has been improperly joined as a party to the proceeding, being a quasi judicial body created by R.S. 47:1401 et seq. and not an agency of the State which can sue or be sued.

This position appears to be well taken (see State ex rel. Bringhurst v. Zoning Board of Appeal and Adjustment, 198 La. 758, 4 So.2d 820 and State ex rel. Hurley v. Zoning Board of Appeal and Adjustment, 198 La. 766, 4 So.2d 822) but, in view of the conclusion we reach in the case, it is unnecessary for us to make a specific ruling on the plea, which was apparently not called to the attention of the trial judge.

On the merits of the appeal we find little to discuss. Kotteman specifies three complaints in this court — (1) that the board and the district court allowed, over objection, testimony to be offered of charges not contained in the notice and motion; (2) that the district court erroneously allowed testimony to be adduced in support of the allegations contained in the answer of Mr. Grevemberg, which was filed on the same day as the trial of the case, and (3) that the court erred in rendering judgment on these charges of which he was never apprised in advance of the hearing.

None of these complaints is substantial. Respecting the first one, as to the admission of evidence before the board and the district court of violations not specifically charged, it is enough to say that, even if the allegations of Mr. Grevemberg’s petition relative to the disorderly manner in which the establishment has been conducted are considered to be too general, these averments have been supplemented and elaborated on in the answer filed in the district court wherein detailed charges were set forth of numerous (250) arrests made by police on the premises during a period of approximately 2J/£ years. Many of these arrests were made while Kotteman was personally on the premises and witnessed the acts upon which the arrests were founded, some of which involved immoral conduct. The police officers who testified stated that the bar operated by Kotteman was notorious as a place in which perverts and sex deviates congregated, so much so, that they were required to check it at least once each hour. All this evidence, which was adduced at the trial de novo as well as before the Board of Tax Appeals, was clearly admissible under the specific charges made in Mr. Grevemberg’s answer.

The second objection as to additional charges which were made on the trial de novo is likewise without merit. R.S. 26:302 expressly permits new charges to be made, old ones amended and new evidence to be heard concerning them on the trial de novo.

The same may be said as to the other alleged error, that Kotteman was not given advance notice or an opportunity to prepare for the hearing in the district court. The trial de novo was not held on the same day as Mr. Grevemberg’s answer was filed and appellants’ averment to the contrary is not correct. The answer was filed on November 30, 1956 and the trial was held on December 4, 1956. Appellant was charged with notice of the additional allegations in the answer and he evidently was fully aware of them. In any case, he at no time sought a continuance on the ground that he was taken by surprise.

The judgment is affirmed.

PONDER, J., recused.

      . R.S. 26:288(B) gives the right to any citizen who has resided in the parish for six months where the licensed establishment is located to petition for revocation or suspension of a permit.

      . R.S. 26:302: “Any party aggrieved by a decision of the board of tax appeals to withhold, suspend, or revoke a permit or of the collector or local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant’s or permittee’s place of business, proposed or actual, as the case may be. Such appeals shall be granted by the clerk of court on written petition together with a bond for costs. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard.
      “Within ten calendar days of the signing of the judgment by the district court in any such appeal cases, any aggrieved party may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil! eases but shall be devolutive in their nature and effect.”

      . Although the hearing before the Board of Alcoholic Beverage Control on the revocation of Kotteman’s liquor permit was never concluded, those proceedings; being ordered continued indefinitely, it appears that Kotteman- voluntarily surrendered his liquor permits, both city and! state, upon suggestion by city officials-after rendition of the judgment on the beer permit by the Board of Tax Appeals. However, the liquor licenses have since been restored to him and, since no complaint relative to these liquor permits has been raised by counsel for appellant, the point is no longer an issue in the case.

      . R.S. 26:285: “No person holding a retail dealer’s permit and no servant, agent, or employee of the permittee shall do any-of the following acts upon the licensed premises: * * *
      “(5) Permit any disturbance of the peace or obscenity, or any lewd, immoral, or improper entertainment, conduct, or practices on the licensed premises.”


text:
    233 La. 336
    Ivan Chester KOTTEMAN v. Lee C. GREVEMBERG, The Board of Tax Appeals, State of Louisiana, The Louisiana Board of Alcoholic Beverage Control of the State of Louisiana and The City of New Orleans.
    No. 43422.
    Supreme Court of Louisiana.
    June 28, 1957.
    Amos L. Ponder, Jr., and Thomas M. Brahney, Jr., New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, William P. Sculer, Henry J. Roberts, Jr., Asst. Attys. Gen., James C. Gulotta, Parnell Hyland, Albin J. Liska, City Atty., and Beuker F. Amann, Asst. City Atty., New Orleans, for appellees.
   McCALEB, Justice.

This appeal, which was consolidated with the appeal of Ivan C. Kotteman from the judgment of the Civil District Court affirming the order of the Board of Tax Appeals revoking Kotteman’s beer permit, 233 La. 328, 96 So.2d 601, was taken by Mrs. Irene R. Pomes and Mrs. Marjory P. Scherf, who are the owners of the premises in which Kotteman operates a barroom and lounge.

These appellants contend that the revocation of Kotteman’s license to sell beer on their premises for the space of a year has deprived them of a valuable property right without due process of law in that they were neither cited nor given any notice of the pendency of the proceedings against their lessee, either by the Board of Tax Appeals or in the Civil District Court and they claim the right of appeal under Article 571 of the Code of Practice.

There can be no doubt as to the right of these appellants to appeal from the judgment which affects the complete use of their property for barroom purposes for a period of one year. Plowever, Article 571 of the Code of Practice, which pertains to appeals in ordinary civil suits by persons aggrieved by the judgment even though they are not parties to the suit, is not applicable to this case. The right of appeal and the method of procedure in matters involving orders of the Board of Tax Appeals withholding, suspending or revoking permits to sell beverages of low alcoholic content, which have been reviewed on a trial de novo in the district courts, has been specially provided for by the Legislature in R.S. 26 :302. The portion of that statute pertaining to review by the appellate courts reads:

“Within ten calendar days of the signing of the judgment by the district court in any such appeal cases, any aggrieved party may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil cases but shall be devolutive in their nature and effect.”

This appeal being governed by the above quoted provision, we are unable to consider it, as appellants have failed to take the appeal within the time prescribed by law, that is, within ten calendar days of the signing of the judgment by the district court. The judgment was signed on December 13, 1956 and the petition for appeal was not filed until March 8, 1957.

This is a jurisdictional defect which strikes at the foundation of the right of appeal. Hence, the order granting it was absolutely null and could not vest this Court with appellate jurisdiction, the lack of which it is our duty to notice ex proprio motu. Untereiner v. Miller, 29 La.Ann. 435; Lafayette v. Farr, 162 La. 385, 110 So. 624; Mount Olive Baptist Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 144; Dickerson v. Hudson, 201 La. 915, 10 So.2d 700; Arnold v. Arnold, 217 La. 362, 46 So.2d 298 and Thompson v. Bamburg, 231 La. 1082, 93 So.2d 666.

The appeal is dismissed.

PONDER, J., recused.


author: HAWTHORNE, Justice. FOURNET, Chief Justice HAMLIN, Justice ad hoc

text:
    233 La. 340
    Charley PLUMMER v. MOTORS INSURANCE CORPORATION.
    No. 43186.
    Supreme Court of Louisiana.
    June 10, 1957.
    Rehearing Denied June 28, 1957.

      Edwin C. Schilling, Jr., Amite, Tucker & Schonekas, New Orleans, for defendants-appellants.
    Richard Kilbourne, Clinton, for plaintiff-appellee.
   HAWTHORNE, Justice.

Plaintiff Charley Plummer instituted this suit to recover $4,154.50, the alleged value of a GMC truck. Named as defendant is Motors Insurance Corporation. This defendant in its answer invoked the provisions of the Third-Party Practice Act, R.S. 13:3381 et seq., and made General Motors Acceptance Corporation a third-party defendant. Defendant prayed that any judgment rendered in plaintiff’s suit be against the third-party defendant, but that in the event there was judgment against it, the insurance company, it have judgment for the same amount against the third-party defendant, General Motors Acceptance Corporation.

Pleas of prescription and exceptions filed both by the defendant and by the third-party defendant were overruled or referred to the merits, and after trial on the merits there was judgment in favor of plaintiff and against defendant Motors Insurance Corporation for $2,500, and judgment in favor of Motors Insurance Corporation and against third-party defendant General Motors Acceptance Corporation for the same amount. Both defendant and third-party defendant appealed suspensively.

In September, 1953, plaintiff bought a 1953 GMC truck from Johnson-Cefalu Buick Company of Amite for $4,154.80. The credit portion of the purchase price was evidenced by a promissory note for $2,854.80 payable in monthly installments and secured by a chattel mortgage on the truck. The vehicle was insured by the defendant Motors Insurance Corporation against fire, theft, etc.

On June 29, 1954, the truck was damaged by fire. The next day, at plaintiff’s request Butler Motor Company in Clinton notified the insurance company that the truck had been damaged by fire and asked that it send for the truck and repair it. The following day, pursuant to plaintiff’s request, a representative of the insurance company came to Clinton and removed the truck from Butler Motor Company, where it had been stored, to Lewis Chevrolet Company in Kentwood to be repaired. While the truck was stored by the insurance company in Kentwood with Lewis Chevrolet Company, a representative of the insurance company requested that plaintiff sign a document styled “Loss or Damage Agreement”. This representative explained to the plaintiff that the insurance company required the execution of this document so that the necessary repairs could be made to the truck. The plaintiff refused to execute this agreement because of a clause releasing and discharging the insurance company from any and all liability under the policy. Due to the language of the document and a clause which the representative testified he proposed to insert in it, we think the plaintiff was justified in refusing to sign the document.

After the fire plaintiff failed to pay the July, August, and September installments on his note for the balance of the purchase price. The finance company, third-party defendant, which was the holder of the note, without the authority and the knowledge of the plaintiff and without instituting legal proceedings took possession of the truck and caused it to be moved from Lewis Chevrolet Company in Kentwood, where it had been stored by the insurance company, to Johnson-Cefalu Buick Company in Amite, and obtained from the Buick company a receipt for the truck dated September 7, 1954.

According to the testimony of a representative of the finance company, the truck was delivered to the original seller, Johnson-Cefalu Buick Company, under a repurchase plan, by which a- motor vehicle repossessed by the finance company is returned to the selling dealer, who repurchases the contract and pays the finance company the balance due under the contract. According to this representative, the Buick company, the original seller of the truck, paid to the finance company the balance due under plaintiff's contract. Consequently at that time plaintiff’s obligation on the purchase contract was satisfied as far as the finance company was concerned.

Johnson-Cefalu Buick Company in due course filed formal proof of loss with the insurance company under the loss payable clause of the policy. The insurance company authorized the repair of the truck, Johnson-Cefalu repaired the truck, and the insurance company according to its answer paid to that company $773.53 for these repairs. The Buick company thereafter sold the truck to some person whose identity is not shown by the record.

The present suit was instituted by Plum-mer against Motors Insurance Corporation on October 7, 1955, and this defendant made General Motors Acceptance Corporation a third-party defendant on February 3, 1956.

As shown in argument and in brief in this court, all counsel seem to be in doubt as to the nature of plaintiff’s cause of action, and, in fact, plaintiff’s counsel stated in argument that he himself was not entirely sure of the nature of the action. However, we think a fair and liberal construction of the petition is that the suit is one for a breach by the insurance company of its obligation to return plaintiff’s truck to him.

Under the petition and the established facts, it is clearly shown, and is even admitted by the defendant insurance company, that the insurer obtained possession of the truck at plaintiff’s request for the purpose of having it repaired. Under these circumstances its possession was a legal possession. Plaintiff seeks to recover the value of this truck on the basis that defendant insurance company has refused either to repair and return the truck or to pay him its value.

Defendant made no offer or effort to return the property, evidently because it was not in a position to do so. As admitted in its answer and shown by the facts, it no longer had the control and custody of the vehicle which had been entrusted to it for the purpose of making repairs, for the truck had been “repossessed” by General Motors Acceptance Corporation, the finance company, whose representative had taken control of it.

When defendant Motors Insurance Corporation took possession of Plummer’s damaged truck for the purpose of repairing the fire damage to the vehicle, the company became a depositary under Article 2926 of our Civil Code. Under Article 2937 as depositary it was bound to use the same diligence in preserving the vehicle, the deposit, that it uses in preserving its own property, and under Article 2944 as depositary it was bound to return the vehicle to plaintiff. This is the obligation which the insurance company breached.

The only defense offered for the breach of this obligation is that the motor vehicle was, as expressed by defendant, “repossessed” by the finance company; but, as we have pointed out in our statement of the facts, this finance company took possession of the truck without the knowledge and consent of the plaintiff and without instituting legal proceedings. This action by the finance company was illegal and improper. Neither the defendant nor the third-party defendant disclosed any of the facts and circumstances surrounding the taking of the truck by the finance company, except merely to state that it was “repossessed”. Thus we are unable to state whether the finance company took the truck with the knowledge and consent of the main defendant and under some agreement between them, or whether it took the truck without the main defendant’s knowledge or consent. These facts are certainly within the knowledge of the insurance company and the finance company, but neither made any effort to disclose them.

The defense offered by the insurance company is no defense either in law or in fact, for it cannot justify its actions in this case by simply stating that the vehicle was “repossessed” by the finance company. Consequently the main defendant is liable to plaintiff for the breach of its obligation to return the vehicle. See James v. Greenwood, 20 La.Ann. 297; Paterno v. Kennedy The Cleaner, Inc., 18 La.App. 649, 138 So. 531; Royal Ins. Co., Limited, of Liverpool, England v. Collard Motors, La.App., 179 So. 108; Koerner v. Firestone Tire & Rubber Co., La.App., 17 So.2d 839.

On the theory that plaintiff’s suit is one in tort, defendant insurance company filed a plea of one-year prescription under Article 3536 of the Civil Code, which provides that the action resulting from offenses and quasi-offenses is prescribed in one year. The provisions of this article have no application here since, as we have pointed out above, plaintiff’s action is not one in tort.

On another theory, that plaintiff’s suit is one on the contract of insurance, the insurance company filed exceptions of no right and no cause of action. These exceptions were levelled at the proposition that plaintiff had not complied with certain provisions of the insurance policy which state in substance that no action shall lie under the policy unless as a condition precedent the insured shall have filed proof of loss with the company. Plaintiff is not suing here under any provision of the insurance policy. Certainly it cannot be said that he is suing for the damage to the truck caused by fire or for what it would cost to repair the vehicle. Consequently, since the action is not on the policy, there was no requirement for him to file proof of loss before instituting this suit.

Third-party defendant, General Motors Acceptance Corporation, contends that its exception of no cause of action should have been sustained because Motors Insurance does not have a cause of action against it under the provisions of the Third-Party Practice Act, R.S. 13:3381 et seq. R.S. 13:3381 provides in part:

“In any civil action presently pending or hereafter filed the defendant in a principal action may by petition bring in any person (including a co-defendant) who is * * *• or may be liable to him for all or part of the principal demand. * * * ”

For a discussion of this statute see Bourree v. A. K. Roy, Inc., 232 La. 149, 94 So.2d 13; Ferrantelli v. Sanchez, La.App., 90 So.2d 351; Motors Securities Co. v. Hines, La.App., 85 So.2d 321; Automotive Finance Co. v. Daigle, La.App., 80 So.2d 579.

Although the Louisiana Third-Party Practice Act is new, having been passed in 1954, the idea of third-party practice is not a recent one. The device has been used for many years in the English courts and in Admiralty practice, and had already been adopted in half a dozen states in 1938 when it was incorporated in the Federal Rules of Civil Procedure, 28 U.S.C.A. See Willis, Five Years of Federal Third-Party Practice, 29 Va.L.Rev. 981 (1943).

One of the purposes of the third-party action is to allow a defendant in a civil action to implead one who will be secondarily liable to him if plaintiff’s suit against him is successful. It is an important procedural device, the purpose of which is to avoid needless multiplicity of actions.

We believe that the instant suit is an excellent example of the validity of the third-party action. If General Motors Acceptance Corporation had not been brought into this case as a third-party defendant, Plummer’s recovery from Motors Insurance on the ground that the insurance company breached its obligation as a depositary by failing to return Plummer’s truck would enable Motors Insurance in turn to file a separate suit against General Motors Acceptance Corporation to recover in quasi-contract or tort the amount it had been ordered to pay Plummer in the earlier suit.

It is our opinion, therefore, that in the instant case Motors Insurance stated a cause of action against General Motors Acceptance Corporation under R.S. 13:3381 by alleging in answer to Plummer’s petition that his damaged truck had been taken from it by General Motors Acceptance Corporation, that the Acceptance Corporation was liable to Motors Insurance for all or part of any sum it might be ordered to pay Plummer, and that therefore General Motors Acceptance Corporation should be named a defendant in the case and cited in accordance with R.S. 13:3381.

In addition to its exception of no cause of action, the third-party defendant has filed a plea of prescription of one year. In connection with this plea it points out that although the finance company repossessed the truck on September 7, 1954, plaintiff’s suit was actually filed on October 7, 1955, and third-party defendant was not sued until February 3, 1956, and that therefore both actions were begun more than a year after the repossessing. Under these facts third-party defendant asserts that the claim against it by Motors Insurance is one for unlawful conversion of plaintiff’s truck and is an action in tort which is prescribed under the provisions of Article 3536 of the Civil Code.

The wrongful and illegal taking of the vehicle by third-party defendant and the subsequent sale to another made it impossible for the defendant insurance company to comply with its obligation to return the truck to plaintiff, and in this third-party action what the insurance company is saying to the third-party defendant is, in effect: “Your act caused the breach of my obligation to plaintiff, and as a result of this breach you should pay or indemnify me for any sum for which I may be cast.” In other words, the insurance company in its action against third-party defendant is not seeking an award in damages for the wrongful and unlawful conversion of the property, but is only seeking indemnification in quasi-contract for any sum for which it may be cast in plaintiff’s suit because of the breach of its obligation. See Kramer v. Freeman, 198 La. 244, 3 So.2d 609; Importsales, Inc., v. Lindeman, 231 La. 663, 92 So.2d 574. Under these circumstances the prescription provided in Article 3536 is without application.

To avoid liability in the instant case third-party defendant relies principally on the technical pleas which we have discussed above. On the merits it attempts to justify its taking of plaintiff’s truck without resort to legal process by showing only that it tried repeatedly to reach the plaintiff by telephone and letter and through its representative but, being unable to do so, concluded that plaintiff had abandoned the truck.

As we view this matter, there was no justification under the facts of this case for any such conclusion, and the act of the finance company was, to say the least, highly improper, illegal, and unjustified, and this defense amounts to no defense whatever.

To establish the value of the GMC truck, plaintiff called as a witness a GMC truck dealer who had been in the garage and automobile business for some 35 years. This witness stated that he was familiar with the truck in question; that at the time of the fire it was in excellent condition and had not been driven many miles; that he would allow $2,500 for the truck on a trade for a new truck but might have to take a little less than that for it on a sale. On the other hand, the adjuster of the defendant insurance company, a man experienced in the field of automobile and truck appraisal, fixed the value of the truck before the fire at $2,100. Under these circumstances we think a fair value of the truck at the time of the fire would be $2,300. Of course the truck did not have this value after it was damaged by fire. It was subsequently repaired, however, as shown above, by the Buick dealer for $773.53. Accordingly at the time the truck was delivered to the defendant insurance company to be repaired and returned to the plaintiff, it had a value of $1,526.47. Under the facts and circumstances of this case, since defendant insurance company is not in a position to return the truck to plaintiff, plaintiff is entitled to a judgment for this amount. Accordingly the judgment will be amended by reducing the amount of the award to plaintiff against the insurance company to $1,526.47, and the amount of the award to the insurance company against third-party defendant, the finance company, to this same sum.

General Motors Acceptance Corporation says that the lower court erred in not allowing as compensation or credit on the judgment against it the amount of the balance due on the purchase price of the truck. The finance company is not entitled to credit or compensation for any balance that may be due by plaintiff because, according to the record, the seller of the truck, Johnson-Cefalu Buick Company, has repurchased plaintiff’s contract from the finance company and paid the company the balance due.

The judgment is accordingly amended by reducing the amount of the award in favor of plaintiff, Charley Plummer, and against defendant, Motors Insurance Corporation, to $1,526.47, and by reducing the amount of the award in favor of Motors Insurance Corporation and against General Motors Acceptance Corporation to $1,526.47. Third-party defendant, General Motors Acceptance Corporation, is to pay all costs.

FOURNET, C. J., HAMLIN, J. ad hoc, and SIMON, J., concur in part and dissent in part.

FOURNET, Chief Justice

(dissenting in part and concurring in part).

The defendant, Motors Insurance Corporation, having taken possession of plaintiff’s truck in order that it might discharge its obligation under its policy of insurance to repair the damage caused by the fire, was obligated “to restore the precise object it received” (Article 2944 of the Revised Civil Code) “in the state in which it is at the moment of restitution” (Article 2945), and having failed to timely make such restitution, it is liable to plaintiff for the full value of the truck as repaired, which, according to the findings of the majority, is $2,300.

The majority in fixing the amount plaintiff is entitled to recover here on the basis of the value of the truck in its damaged condition at the time it was deposited with the defendant insurance corporation, evidently overlooks the fact that although the law of bailment universally obtaining requires a bailee to return the object in the condition in which it was received, subject to ordinary wear and tear, failing which the bailee becomes liable for its equivalent in value, it is equally true that by special contract a bailee’s obligation may be either limited or extended, i. e., made more or less onerous. Consequently, each case must be decided in accordance with its particular facts and the agreement of the parties.

Under the facts of the case as I understand them from the majority opinion, there is neither basis nor logic to warrant the deduction of the amount the insurance company extended in repairing the car. — ■ $773.53 — an obligation it undertook to and did in fact carry out, and for which it was fully compensated. Its obligation was to return the truck to the plaintiff fully repaired, as contracted, and not in the damaged condition in which it was received. It necessarily follows, therefore, that the defendant, for its failure to timely make restitution of the fully repaired truck, is liable to plaintiff for its value in the condition it had obligated itself to return it.

I am in full accord with the majority holding that whatever judgment be rendered against the defendant insurance company, .a similar judgment should be rendered in favor of it and against the General Motors Acceptance Corporation.

HAMLIN, Justice ad hoc

(concurring in part and dissenting in part).

I concur in the opinion and decree to the extent that is in favor of plaintiff. However, I believe that award is insufficient.

I am of the opinion that, the value of the truck at the time of the fire on June 29, 1954 being $2,300, its value at the time of delivery to the insurance company the following day was $1,526.47, plus the obligation of the insurance company to repair it, amounting to $773.53, or a total of $2,300.

If the insurance company had caused the truck to be promptly repaired and returned to plaintiff, its value of $2,300 would not have been affected. This sum should be the amount of the award.


text:
    233 La. 359
    George C. HAMMACK, Jr. v. The RESOLUTE FIRE INSURANCE COMPANY.
    No. 41236.
    Supreme Court of Louisiana.
    June 10, 1957.
    Rehearing Denied June 28, 1957.

      McIntosh, Hester & Gilfoil, Lake Providence, for plaintiff-appellant.
    Pipes & Pipes, Monroe, for defendant-appellee.
   McCALEB, Justice.

This is a suit on an automobile collision and comprehensive coverage insurance policy for the full cash value of a Willys-Jeep-ster automobile which was severely damaged and burned in a collision with another car on October 6, 1950, allegedly resulting in a total loss. Plaintiff, asserting that defendant failed to settle his claim within 60 days after it was furnished with proof of loss, also seeks recovery of statutory penalties and attorney fees provided for under R.S. 22:658.

Plaintiff avers in his petition that, shortly after the accident, the adjuster for defendant insurer prevailed upon him to enter into an agreement whereby defendant was to cause the car to be repaired for $980.39, of which he would be responsible for $50 under the deductible clause contained in the insurance policy; that he was fraudulently induced to sign this agreement by the misrepresentations of representatives of defendant insurer; that, in any case, the agreement is not binding as defendant failed to have the car repaired within a reasonable time and that the car has never been placed in the- same- good working order and condition,as it was prior to the accident.

Defendant filed an exception of no cause of action, which was overruled, and pleaded, among other things in its answer, the validity of the alleged settlement with plaintiff for $930.39 which was purportedly paid by draft. After a trial on the merits of the case, the judge sustained the defendant’s plea of compromise and settlement notwithstanding his finding that plaintiff was “out- maneuvered and overpersuaded into signing a document or documents that bound him legally although he might not have realized the legal consequences”. Plaintiff has appealed.

The litigation arises out of the following state of facts. Plaintiff was the authorized Willys-Jeep automobile dealer in Lake Providence, Louisiana. All of his purchases of new automobiles for subsequent resale were being financed under a floor-financing arrangement made by him with a corporation named Motors Securities Company, Inc. This finance company had a close affiliation with defendant, Resolute Insurance Company, the two’ companies being operated by the same personnel and out of the same offices in Monroe, Louisiana. Mr. J. Leon Dennis, who was the manager of the finance company, was also the authorized agent of the insurance company and the adjuster for the insurance company, Mr. H. H. McManus, was employed and paid by the finance company. Apparently, whenever the finance company lent money on automobiles, it would, in turn, require the mortgagor to take out a policy of insurance in the defendant company and, on September 10, 1950, when plaintiff purchased a new Jeepster to be used as a demonstrator in his business, the policy covering the car for its full cash value (which was stated in the policy to be $1,530) was issued to him by defendant. This policy contains a loss payable clause running in favor of Motors Security Company, Inc., for any unpaid balance of its mortgage which amounted to $1,495 at the time of the issuance of the policy.

On October 7, 1950 (the day following the accident), plaintiff notified the offices of the insurance and finance companies of the extensive damages sustained by the Jeepster in the collision and the ensuing fire. Before the claims adjuster for defendant company, Mr. McManus, made his investigation on October 18,1950, plaintiff had independently caused two garage and repair establishments in the Lake Providence area to appraise the extent of the loss. Both of these firms concluded that the Jeepster could not be economically repaired and, consequently, the loss was total. Accordingly, plaintiff took the position that the insurance company should reimburse him for the face amount of the policy less $50, as provided for in the deductible clause. McManus, however, disagreed with plaintiff’s claim of total loss and refused to make' a settlement until repair shops in Monroe would have an opportunity to appraise the extent of damage to the car. After some discussion, plaintiff consented to release the car to the insurance adjuster so that it could be towed to Monroe, some 90 miles away, to have garages in that area determine whether the damage constituted a total loss. When the car arrived in Monroe, McManus brought it to garages in that city. Those garages were of the opinion that the car could be repaired, one of them estimating the cost of repairs to be $1,080.-23 and the other $980.33. On receipt of these bids, plaintiff was called on the telephone and requested by McManus to come to Monroe to discuss a settlement of his claim.

Plaintiff and McManus met on November 10, 1950, in the joint offices of the finance company and defendant insurance company to discuss the loss. What transpired at this meeting is disputed. Plaintiff testified that McManus offered two propositions of settlement which were unacceptable to him and that he reluctantly indicated that he would consent to another offer of McMan-us, under which defendant was to have the car repaired by Mizell Paint & Body Shop, of Monroe for the amount of its low bid ($980.33) and that $50 of this amount was to be paid by plaintiff.

On the other hand, the testimony of Mc-Manus is that the only proposition offered, plaintiff was to pay him $980.33 (less the $50 deductible amount due by plaintiff) being the amount of the bid given by Mizell Paint & Body Shop for repair of the Jeep-ster.

At any rate, no final agreement was reached at the Monroe meeting. Plaintiff refused to sign the statements of proof of loss or the subrogation agreement or any other forms which McManus requested that he sign but he told McManus that he would take these forms with him to Lake Providence and give the matter more thought before deciding to accept or reject defendant’s offer of settlement. He testified that, despite the two bids of the Monroe garages, he was convinced that the car could not be properly repaired and that defendant should compensate him for a total loss. However, on the next day when plaintiff returned to Lake Providence, he acceded to what he believed to be defendant’s position, that it would exercise the option granted it under the policy to have the car repaired at its expense. Accordingly, he signed various forms which had not yet been filled in by McManus and which McManus had directed him to sign in the event he decided to accept defendant’s offer to have the car repaired. These forms are entitled “Statement of Loss”, “Order to Take Possession of Automobile”, “Details of Car Ownership”, “Proof of Loss or Damage Agreement” and “Receipt and Subrogation Assignment”. Upon affixing his signature, plaintiff dispatched the forms to McManus in Monroe, their transmittal being accompanied by the following letter, which sets forth plaintiff’s understanding of the agreement:

“Lake Providence, Louisiana
November 9, 1950.
“Mr. H. H. McManus
Insurance Adjuster
% Motors Securities Co.
Monroe, Louisiana.
“Dear Sir:
“I am enclosing herewith proof of loss in re the damage to my Jeepster Demonstrator, signed as you have suggested.
“I am signing but still feel that you people are squeezing me too hard on this adjustment. This car was my demonstrator and had only a few miles on it. At the time it was wrecked, I could have sold it at a profit but now when I get it back from you, I will suffer considerable loss. I feel that since the car was insured for actual cash value then that means at the time of loss and I should be allowed settlement accordingly. That would have given me enough to settle with Motors Securities Co.
“You are the people (you and Motors Securities) whom I am depending on for financing my operations and insuring my customers. I am giving you all my business that I can and I had certainly hoped that when and if I had a loss that I would be reimbursed the full amount of loss and not have to dig into my scant reserves to pay part of a loss.
“If you can see your way clear I would certainly appreciate your giving me a more liberal settlement. But if not, you may go ahead with repairs.
“Yours truly,
George C. Hammack, Jr.”

Although there was no formal acknowledgment by McManus of receipt of the above quoted letter with the enclosed forms, it is evident from the record that the communication reached him in the usual course of the mail for, on or about November 15, 1950, McManus caused the damaged automobile to be delivered to the Mizell Paint & Body Shop in Monroe for repairs. And, on November 22, 1950, J. Leon Dennis, purportedly acting as its authorized agent, drew a draft on defendant insurance company payable to the order of plaintiff and Motor Securities Co., Inc. This draft was not delivered to plaintiff nor was it ever presented to defendant for acceptance. Actually, it was simply deposited in the files of Motors Securities Company, Inc., although, according to the testimony of Mc-Manus, plaintiff was informed and understood that the draft would be kept by that company because the amount to be paid on the insurance claim was less than the amount owed by plaintiff on the mortgage. Plaintiff denies that he had any such understanding and stated that he never even knew that the draft had been issued until this suit was filed.

Several weeks after the damaged Jeep-ster had been delivered by McManus to the Mizell Paint & Body Shop for repairs, plaintiff, not having heard from defendant, made inquiries at the joint offices of defendant and the lienholder respecting the progress of the repair work on the car. Being unable to obtain any information from that source, plaintiff went to Monroe on January 13, 1951 and visited the Mizell shop where he discovered that the repairs on the car had hardly commenced as the necessary parts had not yet been received. Realizing, then, that, even if the car could be eventually repaired, the work could not be completed within a reasonable time, plaintiff returned to Lake Providence and consulted his attorneys.

On January IS, 1951, plaintiff’s counsel made formal demand oil defendant for payment of the full value of the automobile. After receiving this demand letter, it appears that defendant made a serious effort to have the garage secure the necessary parts for the car which had not yet been obtained. Nevertheless, the repairs had not been completed on May 8, 1951, when plaintiff instituted this suit.

We do not agree with the district judge that the execution of the various forms signed by plaintiff constituted a valid compromise of plaintiff’s rights under the insurance policy within the meaning of Article 3071 of the Civil Code. And we further find no merit in the claim of defendant’s counsel that plaintiff, by bringing suit on the policy, is attempting indirectly to avoid the settlement of the parties, which is not permissible under our jurisprudence.

Plaintiff is not making a collateral attack on the purported settlement. On the contrary, he directly assails in his petition the binding effect of the forms he executed in blank, alleging that, if it should be found that the agreement was for a cash settlement, as defendant contends, and not for defendant to cause the car to be repaired (to which he agreed), then the forms were signed by him in error and through fraud and duress practiced by defendant.

The forms signed in blank by defendant do not evidence a compromise agreement within the meaning of our law. It is well settled that, in order for a compromise to be legal and enforceable, it must be unambiguous, perfect and complete in itself so that nothing is left for ascertainment by parol proof. Lampkins v. Vicksburg, S. & P. R. Co., 42 La.Ann. 997, 8 So. 530; Francois v. Maison Blanche Realty Co., 134 La. 215, 63 So. 880 and Misuraca v. Metropolitan Life Ins. Co., 199 La. 867, 7 So.2d 167.

The only forms signed by plaintiff in this case which could possibly relate to a settlement of his claim are those entitled “Proof of Loss or Damage Agreement” and “Receipt and Subrogation Assignment”. The first of these documents contains a statement of the assured that he agrees that his loss amounts to $980.33, less $50 deductible, it being set forth that the sole purpose of the instrument is to fix the total amount for which claim is made and it is specifically provided therein that the insurance company is not committed to liability or to pay any such amount on said claim. In other words, it is nothing more than a one-sided commitment on the part of the assured which is of no binding effect on the company. It is not complete in itself and, therefore, is not a compromise. Compare Misuraca v. Metropolitan Life Ins. Co., supra.

The other form, styled “Receipt and Sub-rogation Assignment”, is exactly what it purports to be. However, it was not binding in this case as plaintiff had received nothing from the defendant at the time he executed it and, therefore, subrogated nothing. The best that can be said is that the validity of this release and subrogation was conditioned on defendant’s ability to have the car repaired and restored to its former good condition. Indeed, as we have stated above, the true agreement, so far as plaintiff was concerned, was that contained in his letter of November 9, 1956, in which he protested defendant’s adjustment of the loss but, being dependent upon Motors Securities to finance his operations, nevertheless acceded to defendant’s position, concluding “You may go ahead with repairs”. And this, we believe, is what defendant, through its adjuster, McManus, undertook to do and failed to do within a reasonable time.

Plaintiff has at all times contended that the car was a total loss and we think the evidence establishes the correctness of his position. At least it is clear that, if it be conceded that the car could have been restored to its former condition, it was not feasible to do so within a reasonable time, possibly because of the inability of defendant’s agent, Mizell Paint & Body Shop, to secure the parts indispensable to making the repairs. The record shows that it took Mizell Paint & Body Shop over ten months to complete the work and it was not until August of 1951 that defendant made a tender of the car, which plaintiff justifiably refused. It should have been perfectly evident to defendant, long before suit was filed, that its agent was either dilatory or could not do the work with dispatch. As early as January 13, 1951, plaintiff investigated and, on discovering that the repairs on the car had not even been commenced, consulted his attorney, who notified defendant of this fact and made demand for payment of the full value of the car otu January 15, 1951. Yet defendant did nothing thereafter to effectually remedy the situation and, as we have above stated, repairs had not been completed on May 8, 1951, when this suit was filed.

We think that the foregoing circumstances warrant the conclusion that the conduct of defendant’s agent in handling the adjustment of this loss has been arbitrary and that defendant’s failure to pay or to restore the car to its previous condition within a reasonable time was clearly without justification. Therefore, it should be assessed with the 25%, penalty and reasonable attorney’s fees provided for by R.S. 22:658.

Plaintiff is claiming the full retail value of the Jeepster, approximately $1,800, and he offered evidence showing that a prospective purchaser tentatively agreed to buy the car for such amount on the day prior to the accident. However, since the actual cost of the car is stated in the policy to be $1,530, this, in our opinion, is the limit of defendant’s liability, less $50 deductible, or $1,480, plus the 25% penalty, amounting to $370. In addition, we think that plaintiff’s demand for $400 attorney’s fees is reasonable and allowance will be made therefor.

■ The judgment appealed from is reversed and it is ordered that there be judgment herein in favor of plaintiff and against defendant for $1,480, with legal interest thereon from judicial demand until paid, and all costs of court, plus the statutory penalty of $370 and $400 attorney’s fees.

      . Plaintiff paid a total of $448.36, as of February 8, 1951 on the mortgage.

      . It provides: “A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      “This contract must be reduced into writing.”

      . Moreover, even if the allegations of the petition should be regarded as a collateral attack on the so-called compromise, this circumstance would not entitle defendant to have this suit dismissed and-plaintiff relegated to a direct action for annulment before seeking recovery under the policy. See Russ v. Union Oil Co., 113 La. 196, 36 So. 937; Hindelang v. Collord Motors, 200 La. 569, 8 So.2d GDO and Chapin v. Federal Transp. Co., La.App., 70 So.2d 189.

      . Of course, defendant contends that plaintiff received credit for the $930.33 when the draft made payable to plaintiff and the lienholder was delivered to the lien-holder. However, we find that no real delivery was made. We do not think that plaintiff had any knowlédge of the execution of this . draft ■ and the asserted delivery, which consisted of merely transferring the draft from one file to another in the same office, seems fictitious to say the least.

      . The policy provides that the insurer is afforded three options in settling the loss, (1) pay actual cash of the loss or damage; (2) repair the automobile or cause it to be repaired, or (3) replace it with another of like kind and quality.