text:
    231 La. 923
    Mrs. Emma WEEMS et al. v. Mrs. Marie MEDAK et al.
    No. 42773.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Kehearing Denied Feb. 25, 1957.

      Theus, Grisham, Davis & Leigh, Monroe, for defendants-appellants.
    Dhu and Lea S. Thompson, Monroe, for plaintiff s-appellees.
   HAMITER, Justice.

In this nullity action Mrs. Emma Weems, widow of William R. Weems, deceased, and five of her six children (born of that union) are attacking certain recorded instruments affecting an 80-acre tract of land described as the Wy5 of NWJ4» Section 21, Township 18 North, Range 1 East, Oua-chita Parish. Made defendants are Mrs. Marie Weems Medak (the sixth child), John W. Adkins (her mineral lessee), and Stanolind Oil and Gas Company (assignee of the Adkins’ lease).

Initially, the property was acquired in the name of Mrs. Emma Weems through a credit deed, dated September IS, 1923, in which her husband (William R. Weems) appeared to authorize the purchase. Thereon the couple made their home until the marriage of Marie Weems (their youngest daughter and a defendant herein) to P. J. Medak, at which time (in the fall of 1941) they moved to West Monroe and shared a dwelling with Mr. and Mrs. Medak. They returned to the 80-acre tract in the spring of 1942 when Mrs. Medak and her husband left West Monroe for the duration of the baseball season, he being a professional baseball player. Subsequently, in the fall of 1942, they again went to West Monroe to live with their daughter and son-in-law. Mr. Weems died there in 1946, and for some time thereafter Mrs. Weems continued to reside with Mrs. Medak.

Meanwhile, on April 3, 1945, Mrs. Weems executed a deed purportedly transferring the involved land to Mrs. Medak, but retaining all mineral rights thereto. In the instrument Mr. Weems appeared “to aid and authorize his said wife”. Subsequently, on May 4, 1951 (after the death of her husband), Mrs. Weems sought to convey by deed to Mrs. Medak all of the reserved minerals in the tract. And on July 13, 1954 Mrs. Medak granted a lease affecting those minerals to John W. Adkins which he later assigned to the defendant Stanolind Oil and Gas Company.

This suit was instituted on November 15, 1954 by Mrs. Weems and the sisters and brothers of Mrs. Medak to have annulled the land conveyance instrument of April 3, 1945 and the mineral deed of May 4, 1951, both of which were executed in favor of the latter. The attack is grounded on the allegations that the transfers were without any consideration and constituted attempted donations which prejudiced the rights of forced heirs and left nothing to Mrs. Emma Weems for her subsistence. Plaintiffs also prayed to have set aside the lease granted by Mrs. Medak to Adkins, along with his assignment to Stanolind Oil and Gas Company, in order that their ownership will appear free and clear of those encumbrances.

The district court rendered a judgment on the merits which set aside the conveyances, as prayed for; it recognized Mrs. Weems to be the owner of a one-half interest in the land, but subject to the lease executed by Mrs. Medak to Adkins and assigned by him to Stanolind Oil and Gas Company; and it recognized the six children (the other plaintiffs and Mrs. Medak) .as the owners of the remaining one-half interest (each having an undivided one-twelfth interest in the entire tract) free and clear of the lease. The judgment additionally reserved to Mrs. Medak the right to demand an accounting from all plaintiffs for taxes and other expenses incurred in connection with the property and an accounting from the mother for expenses incurred in her behalf.

Both plaintiffs and defendants appealed from the judgment. However, as stated in the brief of counsel for the former, “Plaintiffs were granted a devolutive appeal with reference to the judgment which held that the oil and gas lease was good on an undivided half interest in the land, but have filed a formal disclaimer as appellants without prejudice to their rights as appel-lees, and appear herein as appellees only.”

The defendants first reurge here their exceptions of no right and no cause of action which were overruled by the district judge.

Those tendered by Stanolind Oil and Gas Company appear to question only the right of Mrs. Emma Weems to assail the oil and gas lease insofar as it affects her asserted community one-half interest in the property. In brief counsel argue: “* * * Mrs. Weems has not alleged any facts which would entitle her to repudiate this mineral sale which she had voluntarily executed in favor of Mrs. Medak, to the prejudice of Stanolind Oil and Gas Company, as the mineral lessee of her vendee; and that this defendant’s exception, as to the action asserted by Mrs. Weems, should have been sustained”. There appears to be considerable merit to this argument; however, in view of the judgment on the merits respecting the lease on the mentioned interest of Mrs. Weems and about which she does not now complain, as above shown, the exceptions need not be considered or further discussed.

Under the exceptions of defendant John W. Adkins, assignor of the lease to Stano-lind Oil and Gas Company, his counsel point out that the prayer of plaintiffs’ petition “does not ask for any relief whatsoever against him.” At the same time they state : “ * * * in his ‘Reasons for Judgment’ by which the case was finally disposed of, the trial Judge rendered no judgment whatsoever against this defendant. Likewise, no decree of any kind against this defendant will be found in the judgment as it was finally signed.” Under these circumstances there is no necessity for our passing upon the exceptions.

The exceptions of Mrs. Marie Weems Medak, as we appreciate them, are leveled solely at those portions of the petition in which Mrs. Emma Weems makes claim to an undivided one-half interest in the property. The allegations appear to be adequate, for therein are set forth facts which disclose attempted donations omnium bon-orum, as to both the land and the mineral rights, in violation of Revised Civil Code Article 1497 which recites that “The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.” In support of the exceptions Mrs. Medak’s counsel cite and rely on Jeansonne v. Jeansonne, 187 La. 939, 175 So. 626. No question of a donation omnium bonorum was involved in that cause and, hence, it is without application here.

On the merits defendants originally contended that the land in dispute was the separate property of Mrs. Weems. Apparently, however, they have since abandoned the contention. Be that as it may, Mrs. Weems, having acquired the property during the existence of the community of ac-quets and gains (and by a credit deed which made no mention of her separate estate), is presumed to have purchased it for the community; and Mrs. Medak and her co-defendants have utterly failed to establish facts necessary to overcome this presumption. Houghton v. Hall, 177 La. 237, 148 So. 37; Betz v. Riviere, 211 La. 43, 29 So. 2d 465; Succession of Land, 212 La. 103, 31 So.2d 609; and Johnson v. Johnson, 213 La. 1092, 36 So.2d 396.

We consider now the assailed deeds. The first, signed by Mrs. Emma Weems with the authorization of her husband on April 3, 1945, recited a transfer of the land to Mrs. Medak, with reservation of all minerals, for a cash consideration of $900. The second deed, executed by Mrs. Weems on May 4, 1951 (subsequent to the death of her husband), declared a conveyance of the reserved minerals to the same daughter for $90 cash. But, admittedly, no cash was paid by the transferree on the confection of either instrument. Defendants sought to show that the transfers were made as reimbursement for board, lodging and general support, furnished to Mr. and Mrs. Weems by Mrs. Medak and her husband, throughout several years; but they failed in the attempt. The evidence preponderately discloses that while all of those persons did live together during the mentioned period the father and mother supported themselves and took care of their share of the living expenses. Even the defendant daughter testified that the deeds were not executed to pay for what she had done; and the son-in-law stated that Mrs. Weems never owed anything for board, lodging or subsistence — that there was never any agreement or obligation to pay. The transactions, therefore, were donations in disguise.

Since the attempted conveyance of the land with reservation of the minerals was of the mentioned character the plaintiff children, who are forced heirs of the decedent Mr. Weems, could successfully attack it. Revised Civil Code Article 2444. Moreover, the interests of those children in the minerals, inherited from their deceased father, were unaffected by the second attempted donation of Mrs. Weems. They were not parties to the instrument. And it follows that the oil and gas lease granted by Mrs. Medak to John W. Adkins was likewise ineffective with respect to those mineral interests.

As to the demand of Mrs. Weems the trial judge found as a fact that by the attempted donations she and her husband were divested of all of their property without a reservation of enough for subsistence. Accordingly, he concluded that the transactions violated Revised Civil Code Article 1497 (above quoted) and were absolutely void insofar as Mrs. Medak is concerned. With such finding and conclusion we agree. It appears from the record that Mr. and Mrs. Weems owned no property other than, that involved here, and that when the first attempted donation took place they were on welfare relief receiving therefrom about $35 per month. True, in the first transaction the mineral rights to the land were reserved. But those rights were then of little value, they producing delay rentals-of only $80 per year and the property not being in or near a proven oil and gas field.

In its answer the Stanolind Oil and Gas Company specially pleaded the prescription of ten years as to the mineral reservation contained in the instrument of April 3, 1945. The plea pointed out that there was no exercise of the servitude during such period and recited that, therefore, “any rights of servitude created by the original 'mineral reservation have reverted to Mrs. Marie Medak, defendant’s ultimate lessor, as the owner of the property.” Of course, the answer to this recital is that the instrument under which the defendant lessor claimed title was of no force or effect.

While the judgment of the district court recognizes the validity of Stanolind Oil and Gas Company’s lease as against the undivided one-half interest of Mrs. Emma Weems (about this she now makes no complaint, as shown above), it fails to give similar recognition as against the undivided one-twelfth interest inherited by Mrs. Marie Medak who granted the lease and is clearly bound thereby. To the extent of this failure the judgment is incorrect.

For the reasons assigned the judgment appealed from is amended by recognizing the validity of Stanolind Oil and Gas Company’s lease as against the undivided one-twelfth interest of Mrs. Marie Weems Medak in the property involved; and, as thus amended, the judgment is affirmed.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    231 La. 934
    C. W. GREESON COMPANY et al. v. HARNISCHFEGER CORPORATION.
    No. 42787.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Bullock & Bullock, Shreveport, for plaintiff s-appellants.
    Hayes, Harkey & Smith, by Thos. M. Hayes, Jr., Theus, Grisham, Davis & Leigh, by Thomas W. Leigh, Monroe, for defendant-appellee.
   McCALEB, Justice.

This suit, here for the second time, see 219 La. 1006, 54 So.2d 528, is for recovery of $31,226.62 damages allegedly resulting from a breach of a written sales contract by Harnischfeger Corporation whereby it sold to C. W. 'Greeson Company, an ordinary partnership, a large piece of machinery described as one P. & H. Model 1055 L. C. Dragline for the sum of approximately $55,000. Plaintiffs (the partnership and its individual members) originally asserted the claim against defendant corporation in a reconventional demand to a suit filed by defendant on an open account against them. This reconventional demand was voluntarily dismissed as of nonsuit by plaintiffs and reasserted by them against defendant corporation in the present litigation.

The allegations of fact upon which the cause of action is founded are that the dragline was delivered to plaintiffs in a damaged condition in violation of the warranty that it was fit for the purposes for which it was purchased; that, pursuant to the contract between the parties dated September 7, 1945, the machine was shipped by defendant from Milwaukee, Wisconsin to Bradley, Arkansas; that defendant agreed to furnish an expert operator to superintend the unloading of the machine, to track it about 9 miles from Bradley, Arkansas to the place where plaintiffs were to put it in service and also to supervise its operation for 7 days; that, in accordance with its obligation, defendant sent its employee, Hank Carlton, to Bradley, Arkansas for said purpose and that, after the machine was unloaded from the railroad car on which it was shipped, defendant sent another representative from Milwaukee, Wisconsin, one Pete Bartlett, to take charge of and track it to plaintiffs’ job site where the machine was to be put in service; that, in that operation, on or about November 3 and 4, 1945, Bartlett, who was in full and exclusive charge of the machine, ran it over a steep embankment into a drainage canal 10 to 12 feet deep where it came to rest at an angle; that, in endeavoring to remove the machine on its own power from the drainage canal, the water failed to circulate in the starting motor thus overloading, burning, damaging and rendering it useless and that other parts of the machine were so badly damaged in said operation that, when it was delivered to the job site, it was unfit for the purposes for which it was manufactured, intended and purchased, the claimed defects thereof being specified by plaintiffs in detail.

To this petition, defendant filed various dilatory and peremptory pleadings including an exception of no cause of action and a plea of prescription of one year. The exception of no cause of action was grounded on the premise that defendant was not in any wise responsible for the alleged damage sustained by the machine while it was being tracked from Bradley, Arkansas to plaintiffs’ job site for the reason that the written contract, which is the law between the parties, specifically provided that the equipment was delivered “f. o. b. cars at Milwaukee, Wis. * * *” and that, from that time on, the property was at the risk of plaintiffs. The basis of the plea of prescription was that, if it be conceded that defendant’s employee, Bartlett, had negligently damaged the equipment while tracking it from Bradley, Arkansas to the job site, plaintiffs’ sole cause of action for redress of that wrong was in tort, which action was barred by the liberative prescription of one year.

In passing on these contentions of defendant in our previous decision, we concluded that, in view of the fact that plaintiffs had alleged that there were manufacturing defects in the machine known to defendant rendering it unfit when delivered for the purpose for which it was purchased, these charges were sufficient in themselves to sustain a cause of action and that, without considering the allegations relative to the damage sustained by the machine in the delivery thereof, the exception of no cause of action would have to be overruled as a suit will not be dismissed on exceptions “where the allegations of fact set forth a right and a cause of action as to any part of the demand”. See 219 La. at page 1020, 54 So.2d at page 532.

In considering the plea of prescription, we examined the written contract of the parties and, finding that there were certain clauses contained therein which seemed to be somewhat contrary to the provision that the equipment was to be delivered f. o. b. Milwaukee, Wisconsin, we deduced that the place of delivery was not fixed with certainty by the the contract. Concluding that it was not possible to determine under the circumstances presented whether the plea of one-year prescription was well founded, we referred that plea to the merits to be disposed of on the trial of the case.

Conformably with our judgment, the case was remanded to the lower court at which time defendant filed an answer and, later, a supplemental answer. In these pleadings, defendant admitted plaintiffs’ purchase of the dragline pursuant to the written sales, contract 'but denied any breach thereof, alleging that it had fully complied with its obligation by delivery of the machine to plaintiffs f. o. b. Milwaukee, on or about October 22, 1945. Defendant denied that any warranty with respect to the machine was assumed by it, other than the written warranty specially set out in the sales contract, which warranty was restricted to parts of its own manufacture, and further denied that it had assumed any responsibility for the movement of the machine after it was unloaded at Bradley, Arkansas, averring that, if the machine was damaged by one of its employees while it was in the process of being moved (which defendant denied), then said employee was acting pursuant to the instructions of and under the control of plaintiffs and their superintendent rather than defendant. In addition, defendant asserted that the Diesel engine on said machine and the starting engine therefor, damage to which plaintiffs are alleging in this suit, were manufactured and supplied by the Buda Company of Harvey, Illinois; that these engines were not warranted by defendant nor did it ever assume responsibility for any repairs to or replacement thereof; that, after the machine had been used continuously by plaintiffs from October, 1945 to the middle of February, 1946, the bearings in the Diesel engine burned out due to causes beyond defendant’s knowledge but for which it was not responsible; that all work and repairs on said Diesel engine and starting engine were made by the Buda Company and that defendant never assumed any responsibility with respect thereto, other than to refer plaintiffs to the manufacturer thereof.

On the issues thus formed by the pleadings, the case proceeded to trial at which voluminous testimony was taken comprising almost 1000 pages of the transcript. The greater part of this evidence is irrelevant and opposing counsel agree that much •of it has no probative value with respect to the issues presented for determination.

Stripped of the many claims and counterclaims that have been made in this litigation, it will be seen from the foregoing statement of the case that the principal issue for decision is whether the damage ■complained of by plaintiffs was occasioned while defendant was performing an obligation imposed upon it by the contract with respect to the delivery of the machine or whether the damage resulted after delivery had taken place and the machine was under the control of plaintiffs.

In considering this question, it is pertinent to initially observe that we are assuming, for the purpose of this discussion (notwithstanding that the evidence is far from convincing), that the dragline was damaged, at least to some extent, when it partially slipped over the side of the drainage ditch which it was required to negotiate when it was being tracked from the station at Bradley, Arkansas to plaintiffs’ job site some 9 miles away. Further, it is to be noted that the contract herein specifically excludes all warranties except the special warranty given by defendant as to parts, machinery, tools or equipment of its own manufacture and it is not now contended, nor is it shown by the evidence, that any part of the drag-line sustained damage in the drainage ditch accident, other than the starting motor (which was replaced by Buda Company on December 27, 1945) and the Diesel engine (which was also the product of Buda Company). Hence, it is manifest that, but for one other provision in the contract to which we shall later advert, the all-important issue is the place where delivery of the machine was effected as that was the place where plaintiffs assumed the risk of loss. See Articles 2467 and 2468 of the Civil Code.

The written contract specifically provides that the place of delivery is “f. o. b. cars at Milwaukee, Wis.” The general rule is that when goods are delivered “free on board” pursuant to contract, the presumption is that the property passes thereupon. See Williston on Sales (Rev. ed., 1948) Vol. 2, Sec. 280(b) and Swift Canadian Co. v. Banet, 3 Cir., 1955, 224 F.2d 36. But this rule is inapplicable to this case because we have heretofore held that, due to other provisions in the sales contract, the place of delivery is not fixed with certainty in the agreement and that parol evidence was necessary in order to ascertain the true intent of the parties. The plaintiffs contend that the place of delivery was its job site, 9 miles from Bradley, Arkansas and the defendant asserts that, in accordance with the contract, the place of delivery was Milwaukee, Wisconsin.

To support its position, plaintiffs submitted testimony by one Lee M. Cauble, who was a salesman in the employ of defendant at its Memphis, Tennessee office during the time that the sale of the drag-line was being negotiated, and the evidence of Messrs P. D. Holley, A. Breitling and C. W. Greeson, of plaintiff partnership, who confirmed Mr. Cauble’s statement that he represented to them that the machine would be shipped and delivered by the defendant to the job site near Bradley, Arkansas.

Since all of the purported representations made by Cauble to plaintiffs respecting the place of delivery occurred prior to the confection of the contract, defendant contends that they were not only unauthorized but without legal effect and, in this claim, it relies in part on the Ninth paragraph of the written contract providing that the agreement shall not become effective until accepted, executed and approved in writing by certain named officers of defendant at its office in Milwaukee, Wisconsin and, further, that “ * * * you represent that this contract sets out all agreements concerning this transaction, and agree that all prior writings, verbal negotiations, understandings, representations, warranties, conditions, or agreements upon which you may rely, but which are not herein expressed, shall not be binding; that this agreement shall not at any time be modified except in writing executed by you and executed and approved by one of our aforesaid officers”.

It seems dear that the foregoing provision of the contract effectually nullifies any previous understandings between Mr. Cauble, as salesman for defendant, and the representatives of plaintiff partnership, particularly as it is shown that Cauble was never authorized before, at the time of or since the confection of the contract to bind the defendant. The written proposal was submitted through defendant’s Memphis office to plaintiffs and the latter accepted it on September 7, 1945 without any changes whatsoever and it was finally approved by defendant corporation on October 11, 1945, at which time it became a binding and executory contract. It appears that at no time prior to the confection of the contract were the officers of defendant or its responsible agents advised of the alleged representations of Cauble concerning delivery at the job site. Mr. R. M. Calkins, defendant’s District Manager at Memphis (Cauble’s immediate superior), testified that he knew nothing of any verbal agreement to deliver the dragline to the job site either from Cauble or anyone connected with the plaintiff partnership. It is shown that, on September 27, 1945, Calkins sent a letter to Mr. C. W. Greeson confirming the order for the dragline and, in a postscript thereto, Calkins requested that he be advised of “the rail point to which you want this machine shipped, and also give us the wording of the sign which you desire painted on the cab of the machine”. (Emphasis ours.) In his reply of October 4, 1945, Mr. Greeson states, among other things, “Please ship this machine to Bradley, Ark.” If he had understood that the place of delivery was to be the job site, some nine miles distant from Bradley, it would appear that this would have been an opportune time for Mr. Gree-son to make known his intention and understanding.

It is thus manifest that plaintiffs have fallen far short of exhibiting with any reasonable certainty an agreement for delivery of the machine at the job site. Not only is there nothing in writing to substantiate this contention, but we think that the prior action of the parties discloses that neither one nor the other believed that defendant would undertake the risk of tracking this large, cumbersome and complicated piece of machinery weighing approximately 200,000 pounds over unknown terrain in the absence of a clear written agreement to do so whereby the purchaser would undertake the added expense attendant to such a movement. Indeed, it is shown that the responsible agents of defendant corporation had no knowledge as to the location of the job site.

Judging all of the testimony given on the question of delivery in connection with the written agreement of the parties, we are satisfied that the intended place of delivery was f. o. b. Milwaukee, Wisconsin, as stated in the contract. However, there is another factor which must be considered in determining the important question of delivery, this being the form of the bill of lading.

It appears from the record that the drag-line excavator was consigned to the order of defendant, the bill of lading covering the shipment being a “Shipper’s Order Notify” or negotiable bill of lading. This bill of lading and defendant’s sight draft for the unpaid purchase price were sent to the Bossier Bank and Trust Company of Bossier City, Louisiana, where, on October 25, 1945 (prior to the arrival of the dragline in Bradley, Arkansas), plaintiffs paid the draft and received the bill of lading.

Section 40(b) of the Uniform Bills of Lading Act (Act 94 of 1912), now R.S. 45:940(2), states that:

"Where by the bill the goods are deliverable to the seller or to his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.”

Prompted by a reluctance to countenance any sort of splitting of the incidents of ownership, our courts have construed this provision to mean that, where goods delivered f. o. b. to a carrier are consigned to the vendor, risk of loss remains in said vendor during transit unless there is an express agreement between the parties that the risk is assumed by the vendee upon delivery to the carrier. Gerde-Newman & Co. v. Louisiana Stores, La.App., 144 So. 756; see California Fruit Exchange v. John Meyer, Inc., 166 La. 9, 116 So. 575.

Accordingly, we are convinced that the risk of loss passed from defendant to plaintiffs, at the very latest, immediately following the arrival of the machine in Bradley, Arkansas when it was unloaded and assembled under the supervision of defendant’s employee. It was at this juncture, if not before, that the dragline was delivered to plaintiffs.

In view of this conclusion, plaintiffs’ case must fail as the dragline was its property and at its risk during its movement from Bradley, Arkansas to the job site. In connection with the movement of the machine to the job site, we take note of paragraph 6 of the written contract under which defendant agreed that “An expert operator will be furnished to superintend unloading and starting the machine in operation for a period of 7 days”. Plaintiffs’ counsel maintain that this provision sustains their position that delivery was not effected until after the machine was brought to the job site or until such time as its operation was under the sole control of plaintiffs’ agents and employees.

We do not agree with this construction of the contract. In the first place, the provision has nothing whatever to do with the question of delivery of the machine to the purchaser. It simply obligates the seller to have an expert on hand to superintend the unloading of the heavy and complicated equipment, to reassemble it, start the machine in operation and, generally, to instruct the personnel of the purchaser in its operation and care. This service was available at the expense of defendant for a period of 7 days.

In the instant case, defendant fully complied with this obligation, first sending Mr. Carlton from its office at Memphis, Tennessee to Bradley, Arkansas to unload the machine where he was relieved a day or two later by Pete Bartlett, who was sent from the home office. The equipment was unloaded, the machine assembled and placed in operation for plaintiffs’ use within three to four days after its arrival at Bradley, Arkansas where delivery was complete. The fact that Mr. Bartlett consented to track the machine from Bradley to the job site and that the machine was allegedly damaged during this operation avail plaintiffs nothing for, insofar as he participated in moving this machine to the job site, Bartlett was unquestionably acting under the instruction and control of plaintiffs and not of defendant. In other words, we are convinced that, to the extent that he assisted in tracking the dragline from Bradley, Arkansas, Bartlett was a borrowed employee of plaintiffs and, consequently, defendant is not liable for any damage to the machine that might have been caused by Bartlett in this capacity. See B & G Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369 and cases there cited.

In determining the place of delivery, we have already discussed defendant’s contractual obligation with respect to this machine after its arrival in Bradley, Arkansas, i.e., “to superintend unloading and starting the machine in operation for a period of 7 days”, and have concluded that this provision did not require or even contemplate that defendant would be responsible for moving the dragline to the job site. It is Bartlett’s testimony that he had no instructions from defendant to move the dragline anywhere and that he was requested to help track it the 9 miles to the job site by Mr. Keene, plaintiffs’ superintendent, the latter supervising the general operation and selecting the route to be taken. We find this testimony highly credible and in accord with the reasonable probabilities of the situation. Indeed, it was not contradicted as Mr. Keene was not called by plaintiffs as a witness.

Hence, even were we to assume that Bartlett was guilty of some sort of negligence in his participation in the movement of the machine from Bradley, Arkansas to the job site (a generous assumption from our appreciation of the record) and that the machine was damaged as a result thereof (which is also a matter of considerable doubt), defendant would not be liable ex contractu, having performed all its obligations under the contract.

The judgment appealed from is affirmed.

      . The provisions referred to were those in which the plaintiffs were requested by an amendment to the original contract to advise the rail point to which it wished the machine shipped and another provision declaring that “an expert operator will be furnished to superintend unloading and starting the machine in operation for a period of 7 days”.

      . Of course, under Louisiana law, the sale is perfect, as between the. parties, “as soon as thero exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.” Article 2456 of the Civil Code.

      . It is evident from a reading of the cases construing the Uniform Bills of Lading Act that the courts of this state are of the opinion that that statute has modified Article 2456 of the Civil Code with respect to the passing of title from vendor to purchaser when the subject of the sale is consigned to the vendor under a bill of lading. See State v. Federal Sales Co., 172 La. 921, 136 So. 4.

      . This is the testimony of Mr. Erie L. Nelson, the general service manager of defendant, as to the duties of Bartlett, the service engineer, which is corroborated by-Bartlett himself. This evidence, we think, represents a fair interpretation of the promise of defendant, as set forth in paragraph Six of the contract.

      . Plaintiffs did produce as a witness an employee named M. H. Weems who was on the dragline as an oiler during the trip from Bradley to the job site. Weems, who testified at some length as to the cause and effect of the drainage ditch accident, attributed to Bartlett the remark: “this machine belongs to the P. & H. people (i. e., defendant) until I put it in the job”. (Words in parenthesis ours.) Bartlett flatly denied having made this statement and, without imputing any improper motives to Mr. Weems, we are not inclined to give his testimony much weight in view of his fantastic and obviously exaggerated account of the accident and the events immediately preceding and following it. For example, in describing conditions in the dragline’s cab after the accident, Weems testified that:
      “When the light plant went out, the motor was so hot until you could just see everything in the back end of the cab by the heat of the motor. The manifold and everything was so red it was just like you had a lamp lit back there. (Laughter) That’s just the way it was, and I wouldn’t say nothing wrong in this Court.”


text:
    231 La. 953
    FORCUM-JAMES CO., Inc. v. DUKE TRANSPORTATION CO. et al.
    No. 42695.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1967.

      Roger M. Fritchie, Baton Rouge, for plaintiff-appellant.
    Albin P. Lassiter, Monroe, Tooke, Tooke & Gallagher, Shreveport, for appellees.
   McCALEB, Justice.

This suit was instituted by Forcum-James Company, Inc., against J. C. Duke, doing business as Duke Transportation Company, and his liability insurer, Fidelity and Casualty Company of New York, to recover the sum of $2,396.90, this being the alleged damage sustained by a temporary bridge constructed by plaintiff on the Alto-Monroe Highway (Louisiana Highway No. IS) across Bayou Lafourche in Richland Parish, Louisiana, when it collapsed under the weight of an overloaded truck owned by Duke (hereinafter called “defendant”).

On May 28, 1953, defendant’s employee, one Doyle Flurry, was driving the truck in an easterly direction on Louisiana Highway No. 15. He had in his possession an Overweight Hauling Permit issued to defendant by the Department of Public Safety, Division of State Police, allowing the truck a gross weight of 78,000 pounds for this particular haul which included in the route to be traversed Louisiana Highway No. 15. In attempting to cross a temporary bridge across Bayou Lafourche, Flurry negotiated approximately three-fourths of the length of the trestle when three spans of the bridge collapsed under the truck. Plaintiff repaired the bridge at an alleged cost of $2,396.90.

In its petition, plaintiff avers that it constructed the temporary bridge for the Louisiana Department of Highways pursuant to the terms of a contract designated as State Project No. 26-10-06 and sets forth seven distinct allegations of negligence on the part of Flurry, the driver of the truck. The substance of the charges are that it was imprudent for Flurry to cross the temporary bridge with such an overloaded truck and, further, that his attempt to cross the bridge was executed in a careless manner. In addition to seeking a recovery in tort, plaintiff also contends that defendants are liable ex contractu, reproducing in its petition the following language contained in the Overweight Hauling Permit issued to defendant:

“The applicant (i. e., defendant) assumes responsibility for and obligates himself to pay for any damages caused to highways, roads, bridges, structures or any other state-owned property while using this permit.” (Words in parenthesis ours.)

Plaintiff asserts that the contractual liability assumed by defendant in obtaining the permit runs in its favor and alleges that it has been legally and conventionally sub-rogated to any of the rights, actions, claims, warranties and guarantees belonging to the State of Louisiana and the Department of Highways.

Defendants filed a motion for plaintiff to elect its remedy, either in tort or in contract. The motion was overruled and defendants answered generally denying the allegations of negligence, alternatively pleading that plaintiff was contributorily negligent in not maintaining the bridge in a safe condition for traffic and in not posting warning signs to inform the travelling public of the load limit of the bridge (ten tons).

During the trial on the merits, after plaintiff had rested, defendants filed an exception of no right or cause of action. The judge referred this exception to the merits and, at the conclusion of the evidence, he rendered judgment in favor of defendants, holding plaintiff to be guilty of contributory negligence on its tort claim and further finding that plaintiff did not sustain a cause of action ex contractu against defendants. Plaintiff has appealed.

At the outset, we direct our attention to defendants’ contention that plaintiff has failed to show a right of action. The theory of their exception is that the bridge in question was the property of the State of Louisiana at the time it was damaged and that, therefore, the State of Louisiana alone has a right of action for the cost of repairs, it being further asserted that plaintiff was neither conventionally nor legally subrogated to the State of Louisiana.

We are in accord with defendants’ view that the temporary bridge at the time of its collapse was the property of the State •of Louisiana. It had been built for the .State and accepted by it as part of its highway system and even plaintiff in its brief makes the unequivocal statement that “it is unquestioned that this trestle was the property of the State of Louisiana and part •of its highway system”.

Despite the uncontroverted evidence, the trial judge resolved that the bridge was the property of plaintiff at the time of the accident. This ruling was founded on the judge’s analysis of certain provisions of the construction contract between plaintiff and the Department of Highways, particularly one which obliged plaintiff to maintain the bridge in a safe condition for traffic until the new permanent bridge would be in operation and another specifying that, on completion of the new permanent bridge, plaintiff was to remove the temporary bridge and that all materials therein were to remain plaintiff’s property.

We find nothing in these contractual provisions to support the judge’s conclusion that plaintiff retained ownership of the temporary bridge after it had become a part of the highway system of the State. They simply mean what they say — that plaintiff, pending the completion of the new bridge, was to maintain the temporary structure and was entitled to the salvage therefrom upon its demolition when the new bridge was completed.

Since we find that the bridge belonged to the Department of Highways, it would seem to necessarily follow that plaintiff is without a right of action ex delicto against the defendants as the alleged quasi offense damaged only one piece of property and gave rise to but one right and cause of action in favor of the party sustaining the damage, State of Louisiana through the Department of Highways. However, it is plaintiff’s position that, since it was obligated to maintain the bridge and became contractually responsible for the repairs, it has sustained injury as a consequence of defendant’s fault and is, therefore, entitled to reimbursement under the comprehensive provisions'of Article 2315 of the Civil Code.

This postulate cannot be maintained. It is a basic principle of the law that a tort-feasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation. See Foret v. Board of Levee Com’rs of Orleans Levee Dist., 169 La. 427, 125 So. 437, citing, among other authorities, Sutherland on Damages, Vol. I, p. 127. And see also D. R. Carroll & Co. v. New Orleans, J. & G. N. R. Co., 26 La. Ann. 447. This appears to he the general rule, to which the Supreme Court' of the United States has given its stamp of approval. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 135, 72 L.Ed. 290. In that case, Justice Holmes remarked that “ * * * no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong. * * * The law does not spread its protection so far.”

Even the board language used in Article 2315 of our Code does not justify a departure from the above stated doctrine. Indeed, to permit a person to proceed against a wrongdoer in every instance where such person has sustained damage by reason of his contractual obligation to the injured party would open the door to the prosecution of claims for damages indirectly and remotely connected with the tortious act and encourage a multiplicity of suits from which numerous conflicts of interest might ensue. Parties situated in plaintiff’s position can readily protect themselves by obtaining from the injured person a conventional subrogation of the latter’s rights and, thus, the tort-feasor can be made to respond for the direct and foreseeable consequences of his act in a single suit.

We therefore hold that, unless plaintiff has been subrogated to the rights of the Department of Highways, it has no right of action against defendants, either ex delicto or ex contractu. As plaintiff alleges in its petition that it has been legally and conventionally subrogated to the Department’s rights, let us examine that phase of its case.

The trial judge resolved that the claim of legal subrogation has no merit and he also refused to admit evidence to support the allegation of conventional subrogation.

We think the judge was correct in holding that the mere fact that plaintiff repaired the bridge in conformity with its contractual obligation did not legally subrogate it to the rights of the Department of Highways against the defendants herein. The cases in which legal subrogation take place are set forth in Article 2161 of the Civil Code. Four instances ar.e given, none of which appear to be at all applicable to this case. Since plaintiff' simply takes the position that he has been, legally subrogated without pointing out any basis for the contention, further discussions of the matter would be inutile.

With reference to plaintiff’s claim that it has obtained a conventional subro-gation from the Department of Highways, it appears from the record that plaintiff attempted to offer in evidence a document purporting to be such an act of subrogation. Defendants objected to its introduction, mainly on the ground that the subro-gation is legally ineffective under the specific provisions of Article 2160 of the Civil Code since it was dated February 5, 1954, some eight months after plaintiff had repaired the temporary bridge.

The trial judge sustained defendants’ objection and refused to admit the act of subrogation in evidence.

We think that he clearly erred in this regard. The fact that the document is dated some eight months after plaintiff repaired the temporary bridge did not necessarily render the act of subrogation null. But, even if it did, this did not affect the admissibility of the act, as it was essential to receive it in evidence in order to adjudicate as to its validity. In connection with the date upon which the subrogation was executed, it is apt to observe that plaintiff’s witness, Cooper, who identified the document, explained that the reason why the subrogation was placed in writing • at a date much later than the completion of the repair work was that “The Highway Department agreed to us that they would collect this damage for us * * * they were to collect, and repay us, and they promised to do that”.

The requirement of Article 2160 of the Civil Code that the subrogation be expressed and made at the same time as the payment has not been rigidly adhered to by the jurisprudence. In fact, it is now well settled that parol evidence may be admitted to prove an agreement for subro-gation. In the leading case of Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766, it was found that an oral agreement for subrogation, coupled with the mere subsequent sending of a check, was sufficient to sustain a conventional subrogation. Whether the subrogation in this case is valid or not can only be determined from an examination thereof in connection with the surrounding facts and, as we have stated, it was error to refuse its introduction in evidence.

For the foregoing reasons, the judgment appealed from is annulled and set aside and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed. The costs of this appeal are to be borne by defendants; taxation of other costs to await final determination of the case.

        . Furthermore, Mr. J. A. Cooper, general bridge superintendent, testified that the State of Louisiana owned the temporary-bridge all during the construction of the new permanent bridge which was being built by plaintiff in the nearby vicinity. To the same effect is the evidence of Mr. R. B. Richardson, Director of Louisiana Department of Highways, who stated that the temporary bridge was a part of the State Highway System and that it had been inspected and accepted by the Department.

      . “Every act -whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; * * *

      . And this, notwithstanding the ruling apparently to the contrary in London, Guarantee & Acc. Ins. Co. v. Vicksburg, S. & P. R. Co., 153 La. 287, 95 So. 771, which was used to buttress the opinions of the Court of Appeal for the Parish of Orleans in Universal Automobile Ins. Co. v. Manisalco, 148 So. 731 and Hansen v. Hickenbotham, 61 So.2d 620 and that of the First Circuit in John M. Walton, Inc., v. McManus, 67 So.2d 130.

      . It provides:
      “Subrogation takes place of right:
      “1. For the benefit of him who, being himself a creditor, pays another creditor, whoso claim is preferable to his by reason of his privileges or mortgages.
      “2. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged.
      “3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.

        “4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession.”

      . The article provides, in part, that:
      “The subrogation is conventional:
      “1. When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subro-gation must be expressed and made at the same time as the payment.”


author: MOISE, Justice. HAMITER, Justice

text:
    231 La. 966
    Amelia Williams SPARROW v. Lawrence SPARROW et al.
    No. 42687.
    Supreme Court of Louisiana.
    Dec. 10, 1957.
    Rehearing Denied Feb. 25, 1957.

      H. Alva Brumfield, Baton Rouge, fo'r appellant.
    James J. Bailey, Baton Rouge, for ap-pellees.
   MOISE, Justice.

The district court rendered judgment against the plaintiff, and she now prosecutes this appeal. The issue as joined is as follows:

Plaintiff sought to be declared the owner of a one-half interest in certain real estate listed among the assets of the succession of Clarence Sparrow. The relationship of plaintiff and Clarence Sparrow is admitted to have been that of concubine and paramour. Plaintiff’s claim is based on an alleged partnership existing between her and the decedent. In the alternative, she prayed for $9,096, for services rendered.

The collateral relations of the deceased filed an exception of no legal right or cause of action to plaintiff’s petition, which was referred to the merits.

The evidence shows that the decedent and the plaintiff commenced living together in 1936, the motivated cause being concubinage. Their concubinage was open and notorious. At that time, the decedent was employed by the United States Coast Guard. He also owned a small tract of land and did some truck farming. The concubine took in washing. Two years thereafter, the deceased purchased, in his name, a lot in the Parish of East Baton Rouge; and, in 1942 he purchased a second tract of land. From 1944 to 1947 plaintiff and the decedent engaged in the practice of photography. From this business, it is said that they accumulated $2,000. In 1947 they built a grocery store on the property, which the paramour had purchased, and opened it for business. Both parties worked in the store. In 1949 the grocery store was converted into a beer parlor and restaurant. Both parties worked in the business, and two of decedent’s nieces were employed therein on a salary basis. The decedent’s brother helped on weekends. Other improvements were added to the real estate, and they were rented to tenants as living quarters. A fair revenue was obtained from these establishments.

In 1951 Clarence Sparrow became ill and was confined to his bed intermittently, until his death in 1953. During a part of this time Amelia worked in the business, and then closed it to nurse.the decedent.

We agree with the trial judge that the evidence does show that plaintiff assisted the decedent, and worked together with his salaried employees.

The question posed for decision is: What are Amelia’s rights, if any, when the facts are applied to the law?

The facts show that the motive for the relationship of the parties was concubinage. Plaintiff testified that she had $100, but the evidence does not disclose that she invested this sum in any of the property herein involved.

Article 2804 of the LSA-Civil Code provides that:

“All partnerships are null and void ■which are formed for any purpose forbidden by law or good morals. # * *»

There could have been no legal partnership existing between the decedent and Amelia, because their going to live together was for a purpose forbidden by law.

Plaintiff has cited cases to the effect that where the concubine has made an actual contribution to the assets of the succession, and the concubinage was merely an incident to the parties’ living together, the concubine is entitled to recover a part of such assets. They are distinguishable from the present controversy.

1. In Delamour v. Roger, 7 La.Ann. 152, the doctrine of equitable ownership was upheld, but there the court found that the concubinage was merely an incident of a business to which the plaintiff concubine had contributed capital.

2. In Malady v. Malady, 25 La.Ann. 448, the concubine proved that she contributed a large amount of the capital employed do buy real estate, and the property was ;all bought in her name.

3. In Lagarde v. Dabon, 155 La. 25, 98 So. 744, this court merely permitted the concubine to recover money which she had advanced.

The case of Simpson v. Normand, 51 La.Ann. 1355, 26 So. 266, and authorities therein cited, lays the predicate in holding that where the initial motive and purpose for a paramour and concubine coming together was concubinage, and such relationship continues, the concubine is not entitled to recover assets of the joint entity on the theory of partnership. The syllabus of that case correctly states that:

“When the taint [concubinage] exists, it affects fatally, in all its parts, the entire body of the claim.” See also, Viens v. Brickie, 8 Mart.(O.S.) 11; and Succession of Pereuilhet, 23 La.Ann. 294.

Here no reasonable conclusion can be reached from the evidence, except that the motives and purposes of plaintiff and deceased, from the very beginning, were that of concubinage. Such being the case, we are in duty bound to decide against the plaintiff.

Judgment affirmed at plaintiff’s cost.

HAMITER, J., dissents with written reasons.

SIMON, J., dissents.

HAWTHORNE, J., absent.

HAMITER, Justice

(dissenting).

Undoubtedly, the contributions made by plaintiff toward the accumulation of the assets in question were rendered in business transactions and enterprises independent of the concubinage relationship. This being true I am of the opinion that she is entitled to a one-half interest in the property acquired in decedent’s name. Delamour v. Roger, 7 La.Ann. 152; Malady v. Malady, 25 La.Ann. 448; Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911; Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196; annotation at page 1297 of 31 A.L.R.2d.


author: SIMON, Justice.

text:
    231 La. 972
    Succession of Elias PAILET.
    No. 42783.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Kehearing Denied Feb. 25, 1957.
    Paul O. H. Pigman, Wisdom, Stone,. Pigman & Benjamin, New Orleans, Lau--ranee W. Brooks, Taylor, Porter, Brooks,, Fuller & Phillips, Baton Rouge, for appellant.
    Leopold Stahl, David L. Herman, Herman & Herman, New Orleans, for ap-pellees.
   SIMON, Justice.

This controversy involves the ownership of outstanding stock certificates of Pailet Realty Company, originally issued on May 24, 1905, to Elias Pailet, who died on June 21, 1933. The inception of this controversy is the fortuitous discovery during the year 1954 that the corporation holds valuable assets consisting of title to real estate situated in Jefferson Parish.

Elias Pailet was married to Jane (or Jenny) Katz on December 3, 1899. Upon his death in 1933 he was survived by his widow in community and Harold, Norman,. Lester, Sidney and Florence, the five children who were the issue of this marriage.

On November 12, 1938, Lester Pail'et married Laura Overton. On June 7, 1)950, Lester • Pailet died, being survived by his widow in community, the appellant herein, and his mother and sole forced heir. In the proceedings styled “Succession of Lester Pailet” in the Civil District Court for the Parish of Orleans, Lester’s last will and testament was duly probated and by' testamentary provision Harold I. Pallet and Harris Weil were named as co-executors.

The stock certificates here involved, comprising- all outstanding shares of Pailet Realty Company, were found in the private bank box of Lester Pailet, deceased, and though originally issued in the name of Elias- Pailet, were found to bear the endorsement in blank and without date, “Elias Pailet per pro. Harold I. Pailet”. The inventory in Lester’s succession listed the shares of stock as “Miscellaneous” and “For Memorandum Purposes”, stating the shares to be without value and without classifying either as separate or community property. Harold I. Pailet and Norman Pailet were signatories to the inventory, and Harold I. Pailet actively participated in the administration of the succession for a period of about three years.

Because of numerous conflicting claims and counter-claims as between the surviving widow of Lester Pailet and the surviving widow and heirs of Elias Pailet, and after several years of conferences and consultations of attorneys representing the various parties, a compromise agreement, dated November 25, 1953, was reached and formally executed by all persons in interest.

By stipulation of the parties it is shown that immediately preceding the execution of this compromise agreement all the parties thereto were informed that the shares of stock in question were without value, the corporation, Pailet Realty Company, owning no assets. The parties further stipulated that, prior to the execution of the compromise agreement, the surviving widow of Lester Pailet, appellant herein, declared to her attorney that the subject certificates were owned by the Pailet family before her marriage to the said Lester Pailet. In view of this declaration the parties to the compromise agreement specifically declared therein that in consideration of the mutual, agreements each of the parties was granted full release from any and all claims, known or unknown at that time, so that in effect appellant herein, as surviving widow, would have no claim of any nature or kind whatsoever against the widow and heirs of Elias Pailet.

It appears that some months subsequent to the execution of this compromise agreement the Pailet heirs discovered that Pailet Realty Company owned 540 lots in the Jefferson Drive and Taft Park subdivisions, situated in the Parish of Jefferson; that no one, prior to said discovery, was aware of these assets.

On May 26, 1955, the succession of Elias Pailet was opened and an inventory was filed listing the subject certificates of stock as succession assets.

The instant proceeding arose on a rule initiated by the surviving widow and forced heirs of Elias Pailet, appellees herein, directed against the surviving widow of Lester Pailet to show cause why the inventory should not be approved and ho-mologated, and, particularly, why the certificates of stock should not be declared to be the property of the succession of Elias Pailet.

The surviving widow of Lester Pailet answered said rule, setting up the affirmative defense that the subject shares belonged to the community property of her deceased husband and that any interest she might have in said share certificates can not be affected by the compromise agreement heretofore entered into, for the reason that at the time of the confection of the compromise agreement the certificates of stock were listed as valueless and that the compromise agreement was based upon an error of fact insofar as it might affect her community rights thereto.

Upon trial of the rule the lower court rendered judgment making the rule absolute, adjudicating the certificates of stock to belong to the community assets of the succession of Elias Pailet. Hence, this appeal.

Appellees contend that the endorsement of Harold I. Pailet, appearing on said certificates of stock, is absolutely void and transferred no right, title or interest therein to Lester Pailet, deceased; that appellant’s admission that the stock in question was owned by the Pailet family prior to her marriage to Lester Pailet shows that she had no interest in said stock; and that the ■compromise agreement of November 25, 1953, forecloses appellant’s claim in respect thereto.

Appellant asserts ownership of said certificates by virtue of their being in the physical custody of her husband and found in his bank box after his death; that the ■endorsement on the reverse of said certificates fixed ownership in her deceased husband; and that the said certificates are presumed to be community property of the succession of her deceased husband, "having been listed in the succession inventory as an asset thereof.

It is conceded that the original shares ■of stock comprising certificates numbered 3 to 16, inclusive, or 14 in number, in the name of Pailet Realty Company were issued to Elias Pailet on May 24, 1905, during the existence of the community of acquets and gains existing between him and his surviving widow, and that these shares of stock were assignable only according to the charter and by-laws of the company. It is also conceded that these certificates were never issued in any name ■other than that of Elias Pailet.

The record is barren of any proof of the ■existence of any power of attorney, either by authentic or private act, letter or otherwise.

LSA-R.S. 12:524 provides as follows:

“§ 524. How title to certificates and shares may be transferred
“A. Title to a certificate and to the shares represented thereby can be transferred only:
“(1) By delivery of the certificate in•dorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
“(2) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.
“B. The provisions of this Section shall be applicable although the charter or articles of incorporation or code of regulations or by-laws of the corporation issuing the certificate and the certificate itself, provide that the shares represented thereby shall be transferrable only on the books of the corporation or shall be registered by a registrar or transferred by a transfer agent.”

Therefore, to effect a transfer of stock, LSA-R.S. 12:524, subparagraph A, 1 and 2, makes two things necessary — one, the endorsement of the certificate or the assignment thereof in a separate instrument, or a power of attorney, signed by the person appearing by the certificate to be the owner of it} and the other, the delivery of the certificate, and, where such is the means of transfer adopted, the delivery of the certificate together with the assignment or the power of attorney authorizing the transfer.

We are aware of the fact that circumstances may arise whereby the delivery of a certificate may be made by one having no right of possession or authority .from the owner of the certificate, or from the person purporting to transfer title. Under such circumstances, however, we believe that such delivery presupposes that the certificate has been endorsed by the one appearing to be the owner, or that it has been assigned in writing by the owner, or that the power of attorney has been properly executed by him.

Under the statutory provisions above quoted, the necessity for the endorsement by one appearing from the certificate to be the owner, or as to the necessity for the assignment or execution of the power of attorney by such person is manifestly mandatory.

It is likewise clear that where there appears the lack of any proof of authority to execute an endorsement of a certificate, we are justified in concluding that an unauthorized endorsement is entitled to no legal effect whatsoever. We readily appreciate that were this otherwise, the owners of stock would be seriously endangered and the value of said stock as articles of commerce would be impaired.

Where a certificate of stock is presented, as in this instance, with an unauthorized endorsement, which is an un-controverted fact herein, such an endorsement does not transfer or convert the ownership from the person appearing to be the owner into an undisclosed ownership, and the person accepting such assignment or transfer must ascertain proof of the genuineness of the endorsement or the existence of proper authority to make the endorsement.

In the instant case the record discloses that all the parties to the endorsement transaction are now deceased, and there is no proof available as to the time or date or the circumstances under which Lester Pailet acquired possession of these certificates. Neither is there any proof as to the date and circumstances under which Harold I. Pailet endorsed the shares of stock in blank as purported agent and attorney in fact for Elias Pailet. It is conceded that the record contains no power of attorney in fact or in law, either by authentic or private act.

We are constrained to conclude that the endorsement appearing on the certificates of stock in question is an absolute nullity and can not and does not transfer the ownership thereof, and, further, that said certificates form a part of the community assets of the succession of Elias Pailet.

In view of the conclusions reached by us, we find it unnecessary to inquire into the effect of the compromise agreement entered into by and among the parties thereto.

For the reasons assigned, the judgment appealed from is affirmed.


author: REGAN, Judge.

text:
    Cornelius SCHNELLER et al. v. Ernest HANDY et al.
    No. 20806.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.

      H. A. Burglass, L. F. Claiborne, New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan, Stiles, G. J. Galling-house, New Orleans, for defendants-appel-lees.
   REGAN, Judge.

Plaintiffs, Cornelius Schneller and his wife, Inez Schneller, the respective owner and operator of a 1947 Pontiac automobile, towing a one-half ton Knox semi-trailer, instituted this suit against defendants, Er: nest Handy, the chauffeur, W. Horace Williams, the owner of a 1949 Packard Sedan, and his liability insurer, Employers Liability Assurance Corporation, endeavoring to recover the sum of $4,502.76, representing property damage, personal injuries and medical expenses incurred by the plaintiffs as a result of a rear end collision between the respective vehicles in Highway 90 on November 27th, 1954, at about 9:45 p. m.

Defendants answered .and denied that Handy, the operator of the vehicle was at fault and asserted that the joint and concurrent negligence of the plaintiffs was the proximate cause of the accident; in the alternative the defendants pleaded the contributory negligence of the plaintiffs.

From a judgment in favor of the defendants dismissing plaintiffs’ suit they have prosecuted this appeal.

The facts are relatively simple. The night of November 27, 1954, was dark, foggy, misty and the roadway was wet. Mrs. Schneller was driving the family automobile to which an open trailer was attached in U. S. Highway 90, moving east or towards the Mississippi Gulf Coast. She was accompanied by her husband and son, who occupied the right front seat and Mr. and Mrs. Marshall Cassreino and their two minor children, who occupied the rear seat. Shortly before the accident occurred she stopped and parked in or partially off of the right lane of the eastbound roadway about two hundred and fifteen feet east of or beyond the last elevated bridge located a short distance from Pearl River; her purpose was to clean the windshield which had become so clouded by the inclement weather that her vision was completely impaired. She alighted from the vehicle and started to wipe the windshield when she noticed the headlights of the Williams vehicle approaching. She quickly moved from the left side of her car to the front thereof which she believed to be a position of safety. She was standing there when the collision occurred which, in the chain of events that ensued, caused her to be knocked to the ground and rolled upon by the right front wheel of her automobile. Her husband and Cassreino subsequently extricated her from this position.

The Williams vehicle was moving about twenty-five to thirty-five miles per hour in the same direction. It was operated by Ernest Handy, Williams’s chauffeur. Williams occupied the right front seat and his wife and their guests Mr. and Mrs. Ernest Spence were the occupants of the rear seat.

Plandy testified that he was driving twenty-five to thirty-five miles per hour through intermittent patches of fog when he suddenly discerned the hazy outline of plaintiffs’ vehicle parked in the right lane of the eastbound roadway. He then simultaneously steered to the left thereof and applied the brakes which caused the right rear fender of his car to skid into the left rear end of the trailer, resulting in the plaintiffs’ car, which was attached thereto, to be pushed forward and roll upon Mrs. Schneller as related hereinabove. After the accident he did not observe any taillights burning on the trailer.

Williams, in relating his version of the accident, very pertinently testified in response to the question, when did you first see the plaintiffs’ vehicle in the roadway “When I got over the center of the bridge. I could not see it from the other side. * * * As I got over the top of the bridge, I looked ahead and saw some object indis-cernibly due to the particular condition of the weather. * * * I told the chauffeur, Ernest, there is something ahead of us * * * and when we got down to the bottom of the bridge I told Ernest that is a car, I don’t know if it is going or standing still.” When asked “But you did caution your chauffeur * * * about this object?”, he responded “To slow down * * * yes, that is right * * *. I don’t think that he got down below 25, maybe 20, but he did drive very carefully. He did not know whether it was going or stopped at that time.”

Plaintiffs contend that Handy exemplified the grossest negligence in driving at an excessive speed when his vision of the roadway was impaired by the inclement weather and finally that he possessed the last clear chance to avoid the accident.

Defendants, on the other hand, deny that Handy was at fault and assert that the accident was caused by the negligence of the plaintiffs in parking their vehicle at night, in the main travelled portion of the highway, in a fog bank, and, in the alternative, pleaded the contributory negligence of the plaintiffs.

Plaintiffs, by invoking the doctrine of the last clear chance, have, in effect, conceded their own negligence, which we have little doubt of. They parked in the main travelled portion of the highway, at night, in a fog bank, when they were fully aware of the feasibility of parking on the shoulder thereof; however, plaintiffs’ negligence had become passive at the time that the accident occurred and we, therefore, are of the opinion that the doctrine of last clear chance is applicable herein. Williams testified that when they reached the top of the bridge, a distance of approximately 215 feet removed from the situs of the accident, he informed his chauffeur that he noticed an “indiscernible” object in the roadway and that he should proceed with caution; as he was leaving the bridge, he again cautioned Handy that he believed the object to be an automobile parked or moving slowly in the roadway, nevertheless, Handy continued driving at a speed of twenty to twenty-five miles per hour with very poor visibility of the roadway until he was too close to avoid colliding with the left rear end of the plaintiffs’ trailer. We are convinced that if Handy had exercised the slightest caution commensurate with the prevailing condition of the road, the weather and the darkness, he could easily have avoided both the collision and the injuries which resulted therefrom. If the fog was too dense to permit a radius of visibility in which his automobile could be stopped, it was his legal duty to move no further until he could see. Raziano v. Trauth, 1930, 15 La.App. 650, 131 So. 212; O’Rourke v. McConaughey, La. App.1934, 157 So. 598 and cases cited therein; Thiaville v. Toups, La.App.1946, 25 So.2d 361.

Mrs. Schneller was removed from the scene of the accident to the Baptist Hospital by ambulance where she was confined for about two days. She was examined by Dr. Henry McGee. He testified that she was “suffering some multiple bruises of the body, and of the chest * * * ” which “were not severe but they were painful under the emotional strain * * For three weeks after the accident she was given sedation to induce sleep and to alleviate the frequent occurrence of nightmares. Mrs. Schneller related that for two weeks after being discharged from the hospital she was unable to perform her usual household duties and was unable to resume her employment for a period of four weeks. We are of the opinion that $1,000 should amply compensate Mrs. Schneller for her injuries.

Respective counsel have agreed that the cost of repairing plaintiffs’ vehicle amounted to the sum of $108.66 and that the repairs to the trailer cost $37.60. It is also agreed that the plaintiffs expended the sum of $35.70 for ambulance service, $75.50 for hospital bills, $25.00 for medical service and $12.00 for damage to Mrs. Schneiler’s coat.

In the lower court the plaintiffs abandoned their claim of $187.50 for loss of wages.

While this case was pending on appeal ■W. Horace Williams died. By stipulation of respective counsel filed in this court it was agreed that they do not desire that Williams’ legal representatives or heirs be substituted as parties defendant herein and it is now their desire that this action be dismissed as to the decedent W. Horace Williams, his legal representatives and his heirs with prejudice as to them, but with full reservation of and without prejudice to any of plaintiffs’ rights against either of the other defendants herein.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the plaintiffs, Mr. and Mrs. Cornelius Schneller, and against the defendants, Ernest Handy and Employers Liability Assurance Corporation, in solido, in the sum of $1,294.46 and for all costs.

Reversed.

      . The evidence preponderates to the effect that the automobile’s headlights and the trailer’s taillights were burning at that time.

      . When he was five or ten feet removed therefrom.

      . Which was approximately 215 feet removed from the situs of the accident.

      . The chauffeur admits that Williams spoke to him shortly before the accident, but that he did not hear what he said.


author: JANVIER, Judge.

text:
    Mrs. Camille Weber WEEMS, Wife of and Charles C. Weems, v. TOYE BROTHERS YELLOW CAB CO. et al.
    No. 20809.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    D. A. McGovern, III, and Kenneth V. Ward, New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Breard Snellings, New Orleans, for defendants-ap-pellees.
   JANVIER, Judge.

Mrs. Camille Weber Weems, wife of 'Charles C. Weems, sustained physical injuries while a passenger in a taxicab of Toye Brothers Yellow Cab Company, a partnership of which the partners are Frank E. Toye, George A. Toye, Joseph Toye, Paul Toye and Mrs. Robert Toye.

The cab, driven by Paul Juge, an employee of the partnership, was brought to a sudden stop to avoid striking a pedestrian who ran around the rear of a bus of New Orleans Public Service, Inc., into the street directly in front of the cab.

Mr. and Mrs. Weems brought this suit against the partnership and the individual members, he claiming $55 as the cost of medical and other expenses made necessary by the injuries of Mrs. Weems, and she praying for judgment for $5,500 to compensate her for her suffering and disability.

Plaintiffs alleged that the operator of the cab “failed to keep a proper lookout,” and “failed to see the passengers who were discharged from the bus in the center of said street until he was almost upon said passengers.”

They alleged, too, that the stop was so violent that Mrs. Weems, who was seated on the rear seat with her seven year old son, was thrown against the rear of the front seat and sustained the injuries complained of.

Defendants deny that there was any negligence on the part of the driver of the cab and aver that “suddenly a colored woman ran from behind a parked New Orleans Public Service bus directly in front of said cab.”

There was judgment against plaintiffs dismissing their suit and they are now before us on appeal.

Mrs. Weems and her son had boarded the cab at the station of the Greyhound Bus Line and had instructed the driver to take them to their home on Port Street and had allowed him to select the route. He drove down St. Claude Avenue and stopped because of a red semaphore traffic light which faced him. After the light became favorable he turned his cab to the right around the corner into Almonaster Avenue, which is a two-way thoroughfare and on which avenue alongside the curb to the left of the cab there were three busses of the New Orleans Public Service, Inc., which were standing still. Apparently they were receiving or discharging passengers, though there is no evidence which expressly shows this. There is evidence to the effect that other pedestrians were near them though none, except the one in question was attempting to cross Almonaster Avenue. The cab was proceeding at a speed of between 15 and 20 miles an hour and at this speed had reached a point just at the rear of the second bus, or about 75 feet from the corner at which it had turned. Suddenly and without any warning a woman— whether she had been a passenger of one of the busses is not shown — ran into the street from behind the second bus and, as both the driver and Mrs. Weems say, “dashed” into the path of the cab. The operator applied his brakes violently and brought it to a stop within a few feet, about two or three feet from the pedestrian who was crossing. The pedestrian ran off at such speed that the driver, after bringing his cab to a stop, could not catch her though he ran after her. This Í9 of no importance except that it explains the inability of the defendants to produce the pedestrian as a witness.

The entire story is best told by the statement of Mrs. Weems herself which she made shortly after the occurrence and which in part reads as follows:

“* * * the cab came down St. Claude and made a right turn onto Almonaster towards the river; the cab wasn’t going fast; I had just told the driver about going slowly; he turned the corner slowly and ha'd just started towards the river, when a negro woman darted from between the Public Service Buses that were stopped at the bus zone; when this negro woman darted out from between the two buses, she darted right out in front of the cab; the cab driver jammed on his brakes so quickly I was thrown off the seat and up against the back of the front seat so hard, it pushed the seat forward and I hurt my side and my knee; if the cab driver had not stopped as he did, he would have killed the negro woman who ran as soon as this happened; the cab driver jumped out and ran to catch her, but he lost her and could not catch her; * * *”

There is no serious charge that the taxicab was proceeding at too high a rate of speed as is evidenced by the signed statement of Mrs. Weems herself and by the testimony of the taxicab driver. It is true that when Mrs. Weems testified in Court she attempted to change her statement slightly and when she was asked whether she had said in the signed statement that the cab “wasn’t going fast,” she said: “It was going at a pretty good speed.” However, when the entire statement had been read to her and she was asked whether it was correct, she admitted that it was. Furthermore, the fact that the cab was brought to a stop within a few feet indicates that the speed could not have been excessive.

It is conceded, of course, by defendants that where a passenger in a common carrier vehicle is injured by occurrences which are caused by events which take place outside the vehicle and about which the passenger could have no knowledge, the burden is on the carrier to show that it was free of negligence. Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376.

It is also conceded, however, on behalf of plaintiffs that if a carrier can show that a situation which created an emergency and from which an accident resulted was not caused or contributed to by negligence of any employee of the carrier, then there is no liability in the carrier.

Here it is claimed that the emergency was caused or contributed to by the fact that the driver of the cab was not on the alert and was driving the cab at an excessive rate of speed and could have brought it to a safe and gradual stop had he been on the alert.

The facts by no means justify the application of the rule contended for by plaintiffs, i. e., that there is liability where an emergency is created or contributed to by an employee of the defendant carrier. The evidence, without the slightest doubt, shows that the driver was operating the cab carefully and was keeping a proper lookout and' that without any reason for him to anticipate it, the pedestrian, about 75 feet from the corner and who could not be seen because of the busses, dashed into the street in front of the cab.

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

Affirmed.