text:
    STATE of Louisiana ex rel. Shepard M. LATTER v. BOARD OF ZONING ADJUSTMENTS OF the CITY OF NEW ORLEANS.
    No. 20827.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied May 7, 1957.

      McCloskey & Dennery, New Orleans, for relator-appellant.
    Martin E. Kranz, New Orleans, for defendant-appellee.
   JANVIER, Judge.

This matter comes before us on appeal by Shepard M. Latter, a property owner in the vicinity from a judgment of the Civil District Court for the Parish of Orleans in which that Court affirmed a decision of the Board of Zoning Adjustments of the City of New Orleans, under which decision the Board granted to Joseph Stassi and. Mrs. Laura Stassi, owners, and to Dr. Robert R. Gibbs, lessee, a permit to construct an addition to property, which property, with the said addition, would not comply with the off-street parking requirements of the zoning laws of New Orleans in that the property is in a commercial area in which .a certain portion of the property must be devoted to off-street parking for patrons of the commercial establishment.

The property in question is described as Lot 22 in Square 2848, bounded by Canton, Touro, Senate and Frenchmen Streets, and bears municipal No. 2119 Canton Street. \¡

Prior to the occurrence which gave rise to this litigation, there was on the lot in question a small cottage type building which occupied a substantial part of the lot and which had for sometime been used by Dr. Gibbs (a Veterinarian) as a small animal hospital. At the front of the building was a small porch, and in front of the porch and between it and the sidewalk and also alongside the porch was a small yard area. It is shown that, even with the removal of the porch, the additional square footage afforded even with the small yard area could not furnish the necessary space for the required off-street parking. The building had admittedly obtained a nonconforming status and had been used for sometime by Dr. Gibbs as a small animal hospital even before the addition was contemplated since even then no off-street parking space was provided.

Dr. Gibbs desired to construct a small addition in front of the building, which would occupy the space formerly devoted to the porch and also a part of the front yard. He obtained plans for this addition and submitted them to a contractor, who made the necessary application for a building permit to the Division of Regulatory Inspections of the City of New Orleans. In'this application the contractor, without the knowledge of Dr. Gibbs, stated that the building was to be used for residential purposes. The Division of Regulatory Inspections, not being aware of the fact that the building was to be used for ,a small animal hospital, granted the permit and work was commenced on the addition.

The Division of Regulatory Inspections of the City then ascertained that the build-' ing was being used as a small animal hospital and that the addition to it would also be devoted to that purpose and that department, realizing that thus the off-street parking zoning requirements of the ordinance would not be complied with, revoked the permit. Application was then made to the Board of •Zoning Adjustments for permission to vary from the requirements of the ordinance, and the Board set the matter down for hearing and notified property owners in the vicinity.

Shepard M. Latter is a large property owner in that and in other squares nearby, and he, in person and through counsel, appeared at the hearing and protested against the issuance of the permit for variance.

At that time the building was considerably more than one-half completed, but, at the request of tire Police Department of the City, work was discontinued, except that the authorities agreed that the building might be temporarily roofed and enclosed in order that damage to the interior might be prevented.

After a hearing, the Board of Zoning Adjustments issued the permit for the completion of the addition, and, in its reasons given for the issuance of the permit, the following statement appears:

“It was the general consensus of opinion that since the building in question was used for its present occupancy since 1951, — prior to present restrictions regarding off-street parking — that because of the small addition to impose these restrictions would be most unjust and would impose decided and unnecessary hardship upon the owner and applicant.”

The relator then brought this proceeding in an effort to have the ruling of the Board set aside by the District Court, and he alleges that there exists no legal reason for the issuance of the permit for variance.

It is conceded by respondents, Dr. Gibbs .and the owners of the property, that the .Board of Zoning Adjustments has no legal authority to grant a permit for variance unless the facts shown bring the case within one of the reasons set forth in the ordinance as justifying variance. In other words, it is conceded that such a Board may not constitutionally be given authority to adopt its own specifications and zoning requirements and that its powers are limited to a determination of whether the zoning rules and regulations laid down in the zoning ordinance have been complied with, i. e., that such a Board cannot be given blanket authority to grant or to refuse a permit unless the facts bring it within the terms of the ordinance itself.

It is shown that in the ordinance there are set forth certain standards and that the Board has authority only to determine whether the facts bring the matter within the contemplation of one of those standards, and it is conceded by all parties that whether or not the Board was justified in granting the permit must depend upon whether or not the reasons for the variance are within the contemplation of subparagraph c of paragraph 3 of Section 4 of Article XXVII of the Zoning Ordinance No. 18,565, C.C.S. It is therein provided that in such situations as this “the Board shall have the authority to grant the following variances:

“ * * * c. Waive or reduce the parking and loading requirements in the D-Multiple Family, commercial or industrial districts whenever the use of a building or land is so extraordinary as to make unnecessary the full provision of parking or loading facilities, or whenever it can be shown that provision of required off-street parking space within three hundred (300) feet of the main building is not feasible and would impose an unreasonable hardship as contrasted with merely granting an advantage or a convenience.”

It appears from the above that, if the Board is to be authorized to grant a permit for variance in the case of a commercial establishment where off-street parking requirements are involved, either the building must be devoted to some extraordinary use which makes the requirement of off-street parking' unnecessary, or the enforcement of the parking requirement must be shown to work an unreasonable hardship. In other words, it is not sufficient that the applicant merely show that he will be inconvenienced if the variance is not granted, or that his business may be increased if variance is granted.

When we consider the first part of the above quoted paragraph, we conclude that the case does not fall within the category therein set forth; in other words, there is nothing extraordinary about the application of a small animal hospital which makes it unnecessary that off-street parking be provided. There is nothing about the business of Dr. Gibbs which is different from such a business conducted by any other small animal hospital.

However, when we consider the other portion of the paragraph we reach a different conclusion. It is shown that the hospital as it now exists is nonconforming and it is also shown that the business of the hospital is much restricted because of lack of interior space. Because of this, Dr. Gibbs says that many of his patrons are unable to leave their pets over night and must bring them back and forth each day. This would probably mean that since more could be housed over night fewer would be required to be brought back and forth and possibly traffic. conditions would be benefited rather than worsened. Furthermore, the front porch and the small yard area serve no1 useful purpose in connection with the business, and it seems to us an unreasonable hardship to require that the space which now serves no useful purpose cannot be devoted to the purpose desired by Dr. Gibbs.

It is shown that Dr. Gibbs made every reasonable effort to arrange for off-street parking facilities which would be required by the requirements of the Zoning Ordinance and was unable to do so largely because he could not reach a satisfactory agreement with the relator, Latter, who owns a parking lot adjacent to the small animal hospital. We hope that we are not being influenced by this fact, but we cannot avoid noticing that if the permit is refused to Dr. Gibbs on the ground that he cannot provide the necessary off-street parking area, he will be forced to make an agreement with the owner of the adjacent parking lot, probably on such terms as may be dictated by the owner of the lot. And we note also that the owner of the lot — the relator in this case — has himself in that immediate vicinity recently sought and obtained permits for three similar variances.

The Board concluded that an unreasonable hardship would result if tlje permit should not be granted, and we find no error in this conclusion.

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

Affirmed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Kinchen BRIDGES & Lorena Lee Bridges v. FARM BUREAU MUTUAL AUTOMOBILE INS. CO. et al.
    No. 4376.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Huckabay & Wall, Baton Rouge, for appellants.
    Ponder & Ponder, Amite, for appellees.
   ELLIS, Judge.

Plaintiffs, husband and wife, are seeking damages for injuries allegedly suffered in an automobile accident which occurred on December 24, 1953, at approximately 8 P.M. on blacktopped highway 71. Kinchen Bridges was driving his automobile in which his wife and brother-in-law were riding as his guests several miles west of Kentwood, Louisiana, going in a westerly direction, and just as he came over the crest of a hill and had gone approximately 30 to 50 feet, he collided with the pickup truck, either parked or moving slowly, being driven by and belonging to the defendant, Virgil J. Hammons. In the pickup truck at the time was the wife of Hammons and their two minor children.

The case was tried by jury and resulted in a judgment in favor of plaintiff, Kinchen Bridges, in the amount of $8,488.65, and in favor of Mrs. Lorena Lee Bridges, his wife, in the amount of $9,000.

Upon a refusal by the trial judge of a new trial an appeal was taken to this court which has been answered by the plaintiffs seeking an increase.

Counsel for the defendants base their appeal upon the proposition that the plaintiffs have failed to carry the burden of proof of negligence on the part of the defendant Hammons; also that the plaintiff Kinchen Bridges was guilty of contributory negligence barring his recovery, and further that the monetary awards in favor of the plaintiffs were grossly excessive in the light of their testimony and of the medical evidence offered in their behalf.

The record reveals that plaintiff and his wife, who were living in New Orleans at the time, had come to visit their relatives, most of whom lived in Tangipahos and St. Helena Parishes, and upon hearing that their brother-in-law was drinking went to look for him, found him and had left Kent-wood traveling in a westerly direction on Highway 71, which is a blacktopped road approximately 18 feet wide running through hilly country.

It is shown that Kinchen Bridges, the driver of the car, was perfectly sober and, as far as the record reveals, had not had anything to drink, although it is admitted that the brother-in-law was very much under the influence of liquor. He was not injured in the wreck. Both plaintiffs testified very positively under direct as well as cross examination that just prior to the wreck they went up a hill and at no time did they see any lights from an approaching automobile, but' that just as they went over the crest of the hill and started down, bright lights came on from a vehicle which they believed to be parked in the center of the highway, but which they admitted could have .been moving slowly. Kinchen Bridges stated, however, that just a split moment before the lights came on he saw the parked automobile and at the same time the lights came in his eyes blinding him but that the truck was parked in the center of the highway or possibly could have been moving slowly. These witnesses believed that this truck was parked and just as they came over the crest of the hill the defendant Hammons turned on his lights.

On the other hand the defendant Ham-mons and his wife both testified that they were moving east on the highway with their lights on in their right lane of travel just prior to and at the time of the collision, however, it is very strange that the defendant Hammons testified that he never did see the plaintiff’s car until after it struck and was on its side some 200 feet down the hill. Mrs. Hammons also stated that she did not see the car until the collision. The defendant Hammons attempts to explain this by the fact that he had purchased two bicycles earlier in the afternoon at a store in Baton Rouge for his two children and that at the time of the collision he was talking to them and warning them about riding their bicycles in the street. There is no doubt that he was in a conversation with the children at the time because he later told one of plaintiff’s witnesses the same story. His explanation of why he did not see the plaintiff’s car until after the accident was over was as follows:

“It could have been at that particular time like I told you before. I was talking to my children, warning them about how to ride their new bicycles, not to ride in the street, and so forth, and it could have been I turned my head to look at them at the exact moment the accident occurred.”

The testimony of witnesses offered by the plaintiffs is most convincing that the defendant Hammons was intoxicated prior to and at the time and subsequent to the wreck. He and his wife deny this but Hammons admits that he had approximately five or six drinks at the store when he bought the bicycles before he ever left Baton Rouge. Then at or near Morris Easley’s store which is located west of Kentwood he either ran head-first into the ditch or, as he said, missed the road and in attempting to turn backed into the ditch, however, the colored man who pulled him out with his pulpwood truck testified that he was drinking and that Hammonds’ wife told him not to pay any attention to Hammons, that he was drunk. This witness also testified that Hammons’ truck was headfirst in the ditch, whereas both Hammons and his wife say that the truck backed into the ditch. It is also shown by the testimony that the wife walked back to Easley’s store to get help to get them out of the ditch instead of the husband doing this. She attempted to explain this by stating that he was trying to get the truck out, but in view of the testimony that he was intoxicated we believe that she went instead of him for that reason. The store owner also testified that after Hammons had been pulled from the ditch he came by his store, stopped and offered him a drink of whiskey, dropped the bottle, which Easley picked up and gave back to him after refusing a drink. Easley testified that Hammons was intoxicated.

Witnesses at the scene of the wreck testified that he had been drinking and his wife stated that at that time he was tight. The explanation for this was that some unknown man in the crowd gave him the drinks after the accident. The State Trooper who investigated the accident testified that Hammons was drinking and he asked him about it and Hammons told him that some man in the crowd whom he did not know and had never seen had given him the whiskey. The State Trooper never located this man.

The physical facts show that the pickup truck ended up on its side with its front end northwest and the rear end southeast, about % of the front of the truck being over the center of the highway and in the north lane, and % remaining in the south lane. The debris such as glass and dirt was scattered around the center of the road and some on the north side, however, this is not sufficient to relieve the defendant Hammons of negligence in the face of the direct testimony of the plaintiffs as well as his own to the effect that he and his wife never even saw the approaching car.

The State Trooper stated that to the best of his knowledge from the debris the accident occurred about the center of the road.

After a careful consideration of all the testimony we believe that this accident occurred as testified to by the plaintiffs and was due to the negligence of the defendant Hammons. The judgment of the jury fixing liability upon the defendants in this case is not manifestly erroneous to say the least.

As to the quantum, we believe it is excessive. The evidence shows that Mr. and Mrs. Bridges were moved to the Hospital at Magnolia where they remained for six days. Neither suffered any broken bones or fractures of any kind. Mr. Bridges, according to his history, was unconscious for a short period of time, possibly about 30 minutes. He had a laceration of the face, which required a few stitches. He complained of severe pain in his neck, shoulder and back down to his waist line, and Dr. Hyde of the Magnolia Hospital stated that he was in severe enough pain to require a hypodermic injection. This doctor stated that the laceration was of minor significance, however, the contusions and bruises were severe enough in his back that he developed an abdominal distension- that was relieved by the insertion of a tube and suction. This condition continued for three or four days. Both he and Mrs. Bridges were discharged on the sixth day after their admission. Dr. Hyde examined Mr. Bridges again the latter part of February. He complained of pain in his neck and shoulder and back. The doctor found upon physical examination a good deal of pain and limitation of motion when he turned his head to the left, also much tenderness -of both shoulder blades and the spinus process from the cervical region, which is in the neck, down through the lower thoracic region. X-rays taken at the time of admission revealed arthritis in his spine. He was not x-rayed again on the second visit.

It was the opinion of this doctor that arthritic conditions are aggravated by severe trauma, that the history from the patient is the main thing that a physician can go on in evaluating the condition. It was his opinion with the physical findings and the history that the arthritic condition of Mr. Bridges’s back had been aggravated by the trauma.

After the February visit to the Magnolia Hospital for re-examination Mr. Bridges returned to New Orleans and his employment. He was classified as a boiler-maker or boiler-maker’s helper in the union and according to the record he lost no time other than the dates of his hospitalization. There is some testimony by the head of the union that it was his job to know what each man was doing and whether he was able to work, and that Kinchen Bridges could not climb as he had prior to the injury. This testimony is not of too much value in view of the fact that although it was most positive in stating that it was his business to know the condition of his men and when they were off from work, that Bridges had an operation for hemorrhoids which he had never even heard of and, of course, during this time Bridges was unable to work. There is nothing in the record that Bridges lost any money or any time. The only testimony is his own that he was in pain and was unable to climb and, therefore, took lighter work, although presumably he received the same pay.

Approximately seven months after the accident Bridges received a deep wound and laceration of the arm which is in no way connected with his claim in this case, but as a result of being cut he went to see Dr. Maher of New Orleans. Bridges then complained of his back as a result of the accident and this doctor began treating him. Mrs. Bridges was sent to this doctor for ■ treatment which she claimed was necessary as a result of the accident. Dr. Maher, of course, did not know the condition of Bridges’ back prior to the accident nor at the time of the accident but from his examination he concluded that the arthritic condition had been aggravated as a result of the trauma received in the accident.

Mrs. Bridges, according to Dr. Hyde of the Magnolia Hospital, was not as seriously injured as her husband. She had multiple contusions of her back and body and knees and some four hours after admission to the hospital or the night of December 24, 1953, she became nauseated and the vomiting persisted for about three days. She was discharged along with Mr. Bridges on the sixth day and returned with him in February of 1954, and at that time still had some complaint of pain in her left scapula region and pain on moving her knees. Dr. Hyde stated that during the February visit Mrs. Bridges stated that she had no pain prior to the accident and he therefore concluded that the trauma aggravated an arthritic condition in her back and knees. Both doctors testified that the arthritic condition of Mr. and Mrs. Bridges was existent at the time of the accident and was not in any way brought on as a result of any injury, but due to their complaints after the collision that they believed that the condition had been aggravated. Mrs. Bridges testified that she had pain on moving around and several months prior to the trial developed a limp.

While we have considered all the citations made by counsel for plaintiffs and defendants in their briefs on the question of quantum, each case must rest upon its own facts, and while some of them are similar, we see no need to detail them in our consideration of this case.

Simply stated, insofar as Mr. Bridges is concerned, we have a case in which a man approximately 49 years old with arthritis of the spine is injured in an automobile wreck and suffers rather severe bruises and contusions but no painful injuries such as fractures or dislocations; who remains in the hospital six days, during his hospitalization as a result of the nature of his injuries he suffered a distension of the abdomen which was very painful and persisted for three or four days; on the 6th day he was discharged, returned to New Orleans and during the latter part of February returned for another examination which did not reveal any serious after effects. The most serious was his complaints of pain in his back which the doctors believed was caused by an aggravation of the pre-existing arthritis. He then returned to New Orleans and went to work and considering all the testimony lost no time that he would not have ordinarily lost as a result of the accident. The testimony is not sufficient to show any permanent injury or, in fact, any severe aggravation of the arthritic condition so as to preclude him from doing the same work he was doing prior to the accident. The greatest amount of damage was due to the pain and suffering immediately after the accident and during the hospitalization. The fact that he had arthritis prior to the accident must be considered in fixing the damages for an aggravation of this condition.

Considering the facts in this case we believe that $5,000 would be a just award for his pain, suffering and any aggravation of his arthritic condition. The remainder of the award to him for medical expenses over and above his Blue Cross Hospitalization Insurance of $84.80 and for damages to his automobile of $403.85 is correct.

We believe that under the facts of this case an award to Mrs. Bridges for pain, suffering and any aggravation of a pre-existing condition which she might have suffered in the amount of $2,500 would be proper.

It is therefore ordered that the judgment of the District Court be amended by awarding to Kinchen Bridges the sum of $5,000 for pain and suffering and any permanent ■ injuries in the nature of an aggravation of his pre-existing arthritic condition, and to Mrs. Kinchen Bridges the sum of $2,500 for any pain and suffering, mental anguish and any permanent injury in the nature of an aggravation of a pre-existing arthritic condition, and as thus amended the judgment be affirmed in all other respects.


author: JANVIER, Judge.

text:
    DALE, Inc. v. Mrs. Jane KILLILEA, a/k/a Jane Pumilia.
    No. 20758.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    William J. Wegmann, Racivitch, Johnson, Wegmann & Mouledoux, New Orleans, for defendant-appellant.
    Robert J. Zibilich, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Dale, Incorporated, as assignee of a claim for $275.01, representing the unpaid balance on two insurance premiums, alleged to be due by Mrs. Jane Killilea to Edgar A. Steiner and Arthur A. Steiner, doing business as Steiner Insurance Agency, which partnership assigned the claim to plaintiff, brought suit for the said amount against the said Mrs. Killilea, alleging that she is sometimes known as Mrs. Jane Pumilia.

Defendant admitted that the policy had been issued at her request, but averred that she had sold the property, a boat, in connection with which the policies had been issued and that Steiner Brothers had actual notice of the sale and had agreed to cancel the policies and that they had been can-celled in the normal and usual manner. She also averred that the plaintiff, Dale, Incorporated, had actual knowledge of the transfer of the vessel, was “fully informed as to the notice of cancellation,” and “that if proper notice was not issued to the principal insurance company, it was due to the negligence of the principal and/or their agents.” After making these allegations, defendant averred in the alternative “that the premiums have been paid in full.”

There was judgment in favor of plaintiff and against Mrs. Killilea for $181.26, and she has appealed devolutively and suspen-sively.

One of the contentions of defendant is that the assignment of the claim, which originally belonged to Steiner Brothers, is not evidenced by a writing, and counsel argues that a writing is required in accordance with LSA-R.S. 9:3101. We find no such requirement. All that is required is that if the assignee desires to protect himself against payment by the debtor to the original creditor, there must be a written assignment and proper notice must be given.

The evidence tendered by the defendant is most confusing, but we glean from it the following:

Mrs. Killilea, desiring to have a boat constructed, employed Frank A. Scariano who operates a shipyard known as Scariano Boats at West End, in New Orleans, to build the vessel, and borrowed from a local bank $10,000 which was secured by mortgage on the vessel. She secured from the Steiner Insurance Agency the two policies in question; one covering what is known as Hull insurance and the other protecting the owner of the vessel against public liability. The premiums were to be paid monthly and ten monthly premiums were paid.

Apparently the vessel was completed and delivered in June, 1953', when the policies were issued.

Mrs. Killilea says that, about two months after the boat was completed, she sold it to Mrs. Carol Lee, Mrs. Lee being a secretary employed by Scariano Boats.

Mrs. Lee says that after she bought the vessel, which was on October 5, 1953, or about three and a half months after it was completed, she realized that the boat was not being used for the purpose for which it was built and that much cheaper insurance should be obtained, and she told Steiner many times to cancel the policies. Yet she says that what she asked- for was “a different kind of policy.” It thus appears that Mrs. Lee at one time in her testimony said that Mrs. Killilea had cancelled the policies at another time she said that she herself had later contacted Steiner many times to instruct him to cancel the policies and had still later said that what she wanted was-not a cancellation of the policies which had been issued but the issuance of “a different kind of policy.” In spite of all these varied statements, at another point in her testimony, she was asked: “Mrs. Lee you don’t deny that there was a balance of $264.64 due on the policies?” and she answered: “That is correct.”

On June 1, 1954, Mrs. Lee who, without any payment had bought the boat from Mrs. Killilea, sold it again apparently without any consideration to Frank J. Scariano, who had originally built it, and Scariano says that as soon as he acquired it, which was on June 1, 1954, he made arrangements for new insurance with a different insurance agency.

All of the witnesses placed on the stand by defendant seem to intimate that, since the boat was laid up for the last two months, of its first year of life, insurance on it was. not required and yet when Scariano acquired it in June, 1954, he immediately protected it with other insurance obtained from >ther agents.

There is a provision in one of the policies which requires written notice of' cancellation and though the other has no. such requirement, surely it could not be cancelled without some sort of notice to the insurance agent or to the insurance company. We are convinced from this record, that no such notice was ever given by Mrs., Killilea or by Mrs. Lee.

The trial Judge seems to have been convinced that no proper notices of cancellation were given. There is obviously no-manifest error in this finding.

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

Affirmed.


author: REGAN, Judge. PER CURIAM.

text:
    DEPENDABLE REFRIGERATION, Inc. v. M. J. GIAMBELLUCA et al.
    No. 20608.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    As Amended on Denial of Rehearing April 15, 1957.

      Casey, Babin & Casey, A. F. Babin, Jr., New Orleans, for defendants appellants.
    Driscoll & Flanagan, James T. Flanagan, New Orleans, for plaintiff appellee.
   REGAN, Judge.

Plaintiff, Dependable Refrigeration, Inc., instituted this suit against defendants, M. J. and A. Giambelluca, endeavoring to recover either the unpaid matured installments or the balance due on account of the purchase price of a Sweeden Freezer Electric Ice Cream Maker, which had been installed in defendants’ business establishment on April 9, 1954, and subsequently sold to them on May 14, 1954.

Defendants answered and denied that they were indebted unto the plaintiff in any sum whatsoever and then reconvened for the amount of $727.10 asserting that they were entitled to a rescission of the sale due to a redhibitory vice or defect in the freezer.

From a judgment dismissing both the main and the reconventional demands as of non-suit, only the defendants have prosecuted this appeal, therefore, the only question posed for our consideration is one of fact and that is whether the defendants are entitled to maintain an action of red-hibition and rescind the sale.

The record reveals that a Sweeden Freezer Electric Ice Cream Maker was installed by the plaintiff in defendants’ business establishment on April 9, 1954, and subsequently sold to them on May 14, 1954, as evidenced by a note and chattel mortgage. It was agreed that the defendant would pay therefor the sum of $1724.60, $584.60 of which was in cash and the balance to be liquidated in twenty-four monthly installments of $47.50 each.

The defendants paid three installments then refused to make any further payments for the reason that the freezer had, almost from the inception of its acquisition, given them considerable difficulty. Between May 14, 1954, the date of its purchase and September 28, 1954, the date on which defendants offered to return the freezer in exchange for another one the machine had broken two shafts; it was necessary that the entire cylinder be replaced because of leaking and a coil had burned out. The factory representative serviced the machine on two occasions and, about twelve service calls were made by the plaintiff in an effort to correct the improper operation of the freezer.

The foregoing facts are not denied by the plaintiff, it simply insists that the defendants have never learned to properly adjust and operate the freezer. Counsel, in oral argument before this court, conceded the existence of some minor defects, but contend these defects did not make the freezer completely unfit for the purpose for which it was sold.

Albert Franatovich, the President of the plaintiff corporation, very significantly testified that this was the first and only freezer of this type and model that he sold in the City of New Orleans and several months after the sale thereof he relinquished the distributorship for the freezer.

There exists in every sale consummated under the laws of this State, the seller’s warranty against hidden defects in connection with the article or merchandise sold, or its redhibitory vices. The seller’s warranty is an implied part of the contract which need not be expressed. This warranty originated by virtue of a philosophy which is the antithesis of the common law’s classic doctrine of caveat emptor. AVhere this implied warranty is breached, the action or redhibition permits a vendee to resist payment of the purchase price or to recover the price already paid.

Article 2520 of the LSA-Civil Code points out:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The fundamental effect of redhibition is the complete rescission of the sale of the property which the vendee alleges and has proven was defective before the date of the sale and LSA-Civil Code, Art. 2530 expressly places the burden of proof on the buyer to establish that the vice existed before the sale to him.

It is our opinion by virtue of the facts revealed hereinabove that the defendants have introduced into the record sufficient evidence to establish as a fact that the plaintiff was unable in a period of more than four months to cause the freezer to function properly and that it was defective prior to the date of defendants’ acquisition thereof and we, therefore, believe that the defendants have effectively borne the burden of proof imposed on the buyer by virtue of the provisions of the foregoing article of the Civil Code, and proven their case with that certainty which the law requires.

Formal tender of the freezer by the defendants to the plaintiff would have been a vain and useless gesture since the plaintiff had refused to accept the freezer or to exchange it for another one.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed insofar as it non-suits the reconven-tional demand and it is now ordered that there be judgment herein in favor of the plaintiffs in reconvention, M. J. and A. Giambelluca and against the defendant in reconvention, Dependable Refrigeration, Inc., rescinding the sale and ordering the return of $727.10 paid on account thereof. In all other respects the judgment appealed from is affirmed.

Affirmed in part, reversed in part.

On Application for Rehearing

PER CURIAM.

We inadvertently omitted in our decree in favor of M. J. and A. Giambel-luca, plaintiffs in reconvention, interest and costs and, accordingly, our original decree is amended so as to read as follows:

“For the reasons assigned the judgment appealed from is annulled, avoided and reversed insofar as it non-suits the reconventional demand and it is. now ordered that there be judgment herein in favor of the plaintiffs in re-convention, M. J. and A. Giambelluca and against the defendant in reconvention, Dependable Refrigeration, Inc., rescinding the sale and ordering the return of $727.10 paid on account thereof, with interest from judicial demand until paid and for all costs. In all other respects the judgment appealed from is affirmed.”

In view of the fact that the judgment is being amended in favor of plaintiffs in re-convention, M. J. and A. Giambelluca, and against the defendant in reconvention, Dependable Refrigeration, Inc., the right to apply for a rehearing is reserved to defendant in reconvention.

Original decree amended. Rehearing refused.

      . Purchase price was $1724.60, less down payment of $584.60 and three installments of $47.50 each or a balance remaining due of $997.50.

      . LSA-Civil Code, Article 2520.

      . The litigants agree that the principal amount in dispute was $997.50 plus interest and attorney’s fees. The trial judge heard the case on its merits, and was then of the opinion, so we have been informed by counsel, that since interest and attorney’s fees were agreed upon in both the chattel mortgage and the note they formed part of the principal amount in dispute for jurisdictional purposes and, therefore, non-suited the litigants. We believe that he erred in this respect. The Oity Court possesses jurisdiction “when the amount in dispute * * * [is] not over one thousand dollars, exclusive of interest, attorney fees and penalties.” LSA-Constitution of Louisiana, Art. 7, § 91.

      .Plaintiff’s counsel in oral argument before this court admitted that plaintiff refused to accept the return of the freezer or to replace it with another freezer.

      . LSA-C.C. Art. 2476; Nelson v. M. C. M. Truck Lines, 209 La. 582, 25 So.2d 236.


text:
    PONCHATOULA FARM BUREAU ASS’N, Inc. v. Albert HANO.
    No. 4398.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Edward B. Dufreche, Ponchatoula, for appellant.
    Victor Blackwell, Covington, for appellee.
   ELLIS, Judge.

Plaintiff filed suit on a promissory note in the amount of $1,350 with a balance due thereon of $1185.63. Judgment was rendered in favor of the plaintiff in the amount of $3-59.98 with 8% per annum interest and 15% of principal and interest as attorneys fees plus costs.

Plaintiff has perfected an appeal to this court and complains of error in that the trial court refused to hear certain testimony.

The material allegations of plaintiff’s petition are as follows: the defendant is indebted to the petitioner in the amount of $1185.03 as the balance due on a promissory note made payable to plaintiff’s order, on or before April 1, 1951 for the sum of $1,350 interest at 8% from maturity and 15% attorney fees if placed in the hands of an attorney for collection. Defendant has made certain payments on the said note.

Defendants answer denied the balance due but admitted the existence of a debt, also admitting the existence of the note. Defendant further alleges that other various substantial payments were made and not credited on the said note.

The trial judge sustained an objection by counsel for defendant to question by plaintiff’s counsel on direct examination:

“Q. Examine the records in your hands and tell me the balance of Albert Hano’s account.
“Mr. Blackwell: I object unless that shows the deal with this note, they are not talking about an account, they brought suit on a note, not an account. I don’t know what he purports to prove here.
“The Court: Where is the note, your suit is on a note here and it is not necessary to go into the matter and show what it was issued for. The defendant admits the note, etc.
“Mr. Blackwell: They are offering evidence on an open account.
“The Court: Show what is relevant.
“Mr. Dufreche: We are showing what the open account is — the note was given to secure the open account.
“Mr. Blackwell: If that is the case they will have to amend the petition and apprise this man of that fact they have taken him by surprise here.
“The Court: What difference does it make, you aren’t claiming more than $1,350.00?”

In effect the court ruled that the suit was on a note and evidence as to the indebtedness on an open account was not ad-missable, and therefore held that the payments of $824.65 must be deducted from the face amount of the note, $1,350. According to the evidence the judge erroneously used the figure $825.65 as the payments made by the defendant.

Annexed to the suit and filed with the suit is a crop lien and chattel mortgage for $1,350 with which a note in the amount of $1,350 dated December 16, 1950 was identified. On the face of the crop lien and chattel mortgage it states that the plaintiff is “justly, truly and legally indebted unto Ponchatoula Farm Bureau Association Ins., * * * in the sum of Thirteen Hundred Fifty and no/00 Dollars to borrower now loaned and advanced and to be loaned and advanced to assist Borrower in the production of crops of strawberries, beans, peppers, squash, corn, potatoes and other agricultural products during the year 1951 * * *"

From the record it can be seen that the defendant was actually advanced a total amount of $2,010.28. While the Judge refused to admit testimony explaining the entire transaction between plaintiff and defendant, it can easily be gleaned from the record that the plaintiff treated the open account as being secured by the crop lien and chattel mortgage note, and, therefore, deducted from the total amount of defendant’s account the payments made of $824.65 which would have left a balance as sued for of $1185.63. There is positive testimony as to the amount of the payments made by the defendant and as to the balance due, and when considered in the light of the explanation offered by counsel for plaintiff with regard to an open account and the language of the crop lien and chattel mortgage, there is sufficient testimony upon which to render a positive judgment without a remand of this case for the introduction of further testimony.

The plaintiffs were within their legal rights in crediting the payments made to the unsecured amount of defendant’s account. The record does not contain a detailed proof of this fact but there is sufficient proof to support the definite conclusion that the defendant was advanced a total of $2010.28, rather than $1,350, the-amount of the note. Plaintiff would have made detailed proof but on objection of counsel for defendant the court held the proof as to the note only.

It would serve no useful purpose to remand this case in view of the fact that the record contains sufficient facts upon which to base a judgment. There is no dispute as to the amount of the payments and plaintiff has positively testified as to the balance, and the chattel mortgage showed that at the time of the giving of the note advances were to be made in order to raise various agricultural crops, and counsel for plaintiff explained to the court that defendant’s complete account was carried as an open account, and using the payments made with which defendant was credited and the proven balance due, it is easy to determine as above shown, the total amount of defendant’s account, and by taking the credits from the total amount it would leave the amount sued for as being due by defendant to plaintiff. As the balance was less than the amount of the note, plaintiff sued upon the note, but we are of the opinion that the testimony should have been admitted showing the entire transaction in detail.

For the reasons assigned, the judgment of the District Court is amended and judgment is now awarded in favor of the plaintiff for $1185.63 and in all other respects the judgment is affirmed.


text:
    Raymond J. JACOB v. Robert M. TREAS and Louise R. Treas.
    No. 4382.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Reid & Reid, Hammond, for appellant.
    Edward B. Dufreche, Ponchatoula, for appellees.
   ELLIS, Judge.

This is an action for damages to the plaintiff’s automobile, traveling in a westerly direction, when it collided at an intersection with the defendants’ southbound car. The City Court of Hammond, Seventh Ward, Tangipahoa Parish, pronounced judgment in favor of the plaintiff and the defendants have appealed.

The accident involved in this cause occurred on December 5, 1955, at the intersection of Ash and Third Street in the Town of Ponchatoula. Plaintiff’s vehicle was traveling in a westerly direction along Ash Street while the defendants’ car was proceeding in a southerly direction along Third Street. Neither was designated as a right of way thoroughfare.

The first car was being driven by Kenneth Dominguez, nephew of plaintiff’s wife. In the vehicle with him was his said aunt, occupying the front seat, and his sister, who occupied the rear seat. As no such defense was raised it can be concluded Dominguez was operating the car with the owner’s consent as the testimony shows he often drove the car and its owner thought him reliable. The second car was being driven by Louise R. Treas, one of the defendants, and was owned by her and her husband who was joined as a party-defendant. She was the only occupant.

The plaintiff bases his cause upon the contention that the Jacob vehicle had preempted the intersection. The defendants deny this pre-emption and plead contributory negligence.

As witnesses for the plaintiff, the driver, Dominguez, Mrs. Jacob, and the other passenger were called, as well as the plaintiff and Mrs. Sophie Fisher Lee.

The driver testified he was traveling about 25 miles per hour and when almost across the intersection he noticed the presence of the Treas vehicle and he “could do nothing about it, well I knew I was going to hit it and all I could do was think about controlling the car.” He further stated he was upon the right side of Ash Street; Mrs. Treas was traveling about 30 miles per hour; the Treas car struck the rear of the Jacob vehicle about the right back door and fender; at the time of the collision the front of the car he was driving was past the intersection. This witness continued, saying the car, when struck by the Treas vehicle, was turned so it headed east instead of west when it came to a stop west of the intersection upon Ash Street 7 or 8 feet, and when all of the occupants alighted it rolled into a ditch located upon the south margin of Ash Street.

Mrs. Jacob substantiated most of this testimony and placed the Treas car, after the accident, as being completely across the intersection headed south on Third Street, but admitted she did not see the car until the collision.

The other passenger, riding on the rear seat, stated she was examining some school material when the collision occurred, and her testimony is of no value in determining the facts.

The other witness introduced by the plaintiff heard a crash, looked up and recognized the Jacob car. She also stated the car was spinning or turning and was coming from the east to the west but turned around and came to rest along side the ditch hereinabove mentioned. In answer to a question by the Court she placed what she saw as being on the west side of the intersection some six to ten feet along Ash street.

Mr. Jacob arrived at the scene of the accident after the collision and evidenced the damage to his car. The right rear panel door and bumper were damaged. He placed his car as facing southeast on the south side of Ash Street about one car length past the intersection. He went to the home of Mrs. Treas and stated she told him “to tell you the truth I was looking back for my kid and when I looked up it had happened.”

The defendants introduced only Mrs. Treas. She stated she was going only about 10 miles an hour when she approached the intersection and had come almost to a stop, glanced to her right and as she started to look in the other direction, left, the Jacob car was in front of her and she took her foot off of the accelerator. Further, she did not use her brakes because she thought the Jacob car would miss her; that she did not see the other car until she was in the intersection and “they were shooting in front of me, they looked like they were going to miss me but they didn’t.” She maintained the Jacob car was traveling on the left side of Ash Street and the collision occurred directly in the center of the intersection. According to her testimony she was coming from a school located about two blocks north of the intersection on Third Street; that after the collision she pulled out of the intersection and stopped her car. She did place the Jacob vehicle, after the collision, as being about three car lengths from the intersection on the south side of Ash Street qualifying this by explaining it was about four car lengths away but that Mrs. Jacob changed seats with the driver and tried to stear the car, shifted gears, and it went forward into the ditch. Upon cross examination Mrs. Treas stated she did look to the left before she looked to the right but later stated she did not know when she started to look to the left; when she did look toward the left the Jacob car was already in front of her.

The plaintiff, although admitting Mrs. Treas was traveling upon the right-of-way street, if another car approached from the east simultaneously, contends the intersection was pre-empted by the driver of plaintiff’s car prior to the arrival of the Treas vehicle; therefore, plaintiff’s car had the right-of-way. Regardless of whether any negligence on the part of Mrs. Treas contributed to the accident, we think that plaintiff’s recovery is barred by the contributory negligence of the driver of plaintiff’s car.

We, in Brashears v. Tyson, 86 So.2d 255, at page 257, cited Velasquez v. Murray-Brooks Inc., La.App., 68 So.2d 681:

“There it was stated that the mere fact that a motorist traveling on a less favored street is able to enter an intersection ahead of a vehicle on a right of way thorough fare is no indication that he has pre-empted the intersection and is entitled to the right of way. In Porter v. DeBoisblanc, La.App., 64 So.2d 864, the legal duty imposed upon a driver entering an intersection from a less favored street is set forth. If such a driver stops he has not completed the legal duty required, but this act must be followed by a careful examination of traffic on the favored street, and he should not enter the intersection unless he is certain he can do so without causing damage.”

The driver of plaintiff’s car admitted upon direct examination he did not see the approach of Mrs. Treas until he was “almost in the intersection * * * ”, Further, under cross examination, that he proceeded into the intersection although he could not see; that he had heard “who ever gets there first” had the right-of-way. According to his testimony he entered the intersection at about 25 miles per hour. If Mrs. Treas had been traveling at an excessive rate of speed he could have observed the certainty of being struck if he entered the intersection. If she was not traveling at such a rate of speed he should have observed her approach and made certain he could continue across the intersection “without causing damage.”

In the Brashears case the defendant was found not to be keeping a proper look-out. Also, that he was a sufficient distance from the intersection to have observed the preemption made by Mrs. Brashears had he been looking. The driver of plaintiff’s car did not stop although traveling upon the less favored street. From the evidence it is shown he thought he could avoid the accident by traveling faster after he observed the approach of Mrs. Treas.

We conclude the driver of plaintiff’s car to have been guilty of negligence contributing to the accident and accordingly the judgment of the lower court is reversed at plaintiff’s cost in both courts.


text:
    CITY OF NEW ORLEANS v. SALCEDO OIL CO., Inc. (In Liquidation).
    No. 20759.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    Writ of Certiorari Denied June 10, 1957.
    Henry B. Curtis, City Atty., Charles E. Cabibi, Asst. City Atty., New Orleans, for plaintiff-appellant.
    John. F. Meyer, New Orleans, for defendant-appellee.
   JANVIER, Judge.

This is an action by the City of New Orleans to establish the boundary between certain property owned by it and other property once belonging to Salcedo Oil Co., Inc., and now belonging to Jacob F. Weick, Jr.

At the time of the filing of the suit Salcedo Oil Co., Inc., was in liquidation and Jacob F. Weick, Jr., was liquidator. Therefore the suit was filed against him as liquidator. He was majority stockholder and has since acquired all of the stock of the other stockholders and is now sole defendant.

The property of the City of New Orleans is described as follows:

“A certain piece or parcel of land, situated in the First District of the City of New Orleans, said parcel being a part of Square No. 512, which is bounded by Calliope, Salcedo, Clio and Lopez Streets, said parcel being bounded and described as follows:
“Beginning at the northwest corner of said Square No. 512; thence southeasterly along the northerly property line of said square, a distance of two hundred and ten feet, six inches and seven lines (210', 6" 7'"), more or less, to the northeast corner of said square, said northerly property line of said square being also the southerly property line of Calliope Street; thence southwesterly along the easterly property line of said square, a distance of twenty six feet, eight inches and six lines (26', 8" 6"'), more or less, to the Illinois Central Railroad Company’s southerly right-of-way line as now located; thence westerly along said southerly right-of-way line on a curve to the left having a radius of 905.37 feet, more or less, for a distance of two hundred thirty-six feet, four inches and five lines (236', 4", 5"'), more or less, to a point in the westerly property line of said square, said point being one hundred thirty-two feet, five inches and five lines (132', 5", 5'"), more or less,' southwesterly from the northwest corner of said square, said westerly property line of square being also the easterly line of Lopez Street; thence northeasterly along said westerly property line of square, a distance of one hundred thirty-two feet, five inches and five lines (132', 5", 5"'), more or less, to the point of beginning, containing an area of fifteen thousand five hundred fifty-one (15,551) square feet, more or less.
“Being the same property acquired by the City of New Orleans from the Illinois Central Railroad Company, et al., by an Act of Exchange passed before Jacob H. Morrison, Notary Public, on September 8, 1949.” (Reg. C.O.B. 567-A, Folio First Document).

The property of Weick is described as • follows:

“Those portions of ground, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging, or in any wise appertaining, situated in the First Municipal District of the City of New Orleans, in Square 512, bounded by Lopez, Salcedo, Clio and Calliope Streets, and designated by the Nos. 8, 9, 13, 14, 15, as per plan of W. J. Warren, C.E., dated May 15, 1921, blue print of which is annexed hereto, as follows:
“Lot No. 8, measuring 26 feet, 9 inches front on Salcedo Street, by a depth of 105 feet, 3 inches and 3 lines less portion occupied by right-of-way of the Illinois Central Railroad Company.
“Lot No. 9, measuring 26 feet, 9 inches front on Salcedo Street, by a depth of 105 feet, three inches and three lines on the side line of Lot No. 8, and an irregular depth on the line of the right-of-way of the Illinois Central Railroad Co.
“Lot No. 13, measuring in the rear 26 feet, 9 inches, and of an irregular measurement along the right-of-way of the Illinois Central Railroad Company, being all of the unsold portion of said lot not owned by the Illinois Central Railroad Company for its right-of-way, said lot fronting on Lopez Street, all as per plan attached.
“Lot No. 14, measuring in the rear along the line of Lot No. 7, 26 feet, 9 inches, and of irregular measurements on the other lines, being all of said lot less that portion owned by the Illinois Central Railroad Company for its right-of-way, said lot fronting on Lopez Street, as per plan attached.
“Lot No. 15, measuring 19 feet, 6 inches front on Lopez Street, by a depth ■of 105 feet, 4 inches on the side line of Lot 16, and 26 feet, 9 inches in width in the rear, and an irregular depth on the side line of Lot 14, being all of said lot less that portion owned by the Illinois Central Railroad Company for its right-of-way.
“Being the same property acquired by Salcedo Oil Co. Inc. from Puritan Co. Ltd., by act before Gabe Fernandez Jr., a Notary Public, dated April 28, 1927.” (Reg. C.O.B. 430, fo. 45)

The Weick property at one time belonged to Quaker Realty Company, Ltd., and the property of the City of New Orleans was acquired from the Yazoo & Mississippi Valley Railroad Company, (now the Illinois Central Railroad Company). The dispute is over the curved boundary line between the two properties, which boundary admittedly is somewhere in Square 512 which is bounded by South Salcedo, Calliope, South Lopez and Clio Streets.

The City of New Orleans has appealed from a judgment of the Civil District Court for the Parish of Orleans establishing the boundary in accordance with the sketch of survey of E. L. Eustis, Surveyor appointed by the Court and fixing the fee of the surveyor at $300.

All surveyors agree that the boundary is the edge of the right of way of the railroad company and that a determination of where the disputed boundary should be depends upon the proper location of the said edge of the right of way.

It is the contention of defendant Weick that the proper boundary is shown on a sketch of survey made by W. J. Warren, and on another sketch of survey made by E. L. Eustis, which sketches show the edge of the right of way and also show the center of the railroad track, but do not show the edge of the right of way as being exactly 50 feet from the center line of the railroad.

These two surveys agree that on the South Lopez Street side of the square the curved line represents the boundary between the properties and therefore the edge of the right of way crosses the property line of South Lopez Street on Lot 15 at a point 19' 6" from the division line between lots 15 and 16, and that, on the South Salcedo Street side of the square, the curved line crosses the property line on lot 10, 8' 6" from the line between lots 9 and 10.

On the other hand, the City maintains that the proper boundary is shown on a sketch of survey made by F. C. Gandolfo, dated June 8, 1954, on which sketch the edge of the railroad right of way, and consequently the boundary between the properties of the parties, crosses the South Lopez Street property line in lot 15, but only 6' 3" 5"' from the division line between lots 15 and 16, and that the curved line representing the edge of the right of way, and therefore the boundary between the two properties, crosses the property line of South Salcedo Street in lot 10 at a point 5' 10" from the division line between lots 9 and 10.

When we use these sketches — those relied upon by defendant and that relied upon by the City, we find that the strip of property which is in dispute is shown between two curved lines which do not curve on the same radius and that this strip of property measures on the South Lopez Street property line 13' 2" 2/" — though measured as what may be termed a right angle between the two curved lines, the distance is only 10' 10" 3'". On the other, or South Salcedo Street, this strip which is in dispute measures along the property line 2’ 8" in width.

Were it not for the fact that this identical boundary has been fixed in a judicial proceeding, and the fact that in that proceeding it was fixed in accordance with the center line of the railroad track of the Yazoo & Mississippi Valley Railroad Company, it would be proper to say that the boundary should be established by reference to other marks, such as an old stake and an old pipe which were found by Warren and were confirmed by Eustis. However, in the judicial proceeding' to which we have referred, H. Osborne Stark, Administrator, praying for a writ of possession, being No. 101,432 of the docket of the Civil District Court for the Parish of Orleans, the property of the railroad company, of which the City is now the owner, was found to be a right of way 100 feet in width, being SO feet on each side of the center line of the track.

In that proceeding the defendant was Quaker Realty Company, Ltd., which is an ancestor in title of defendant Weick and, since in that proceeding, the boundary was fixed and for certain other reasons which we shall now set forth, we feel that that is the boundary which must govern in this matter.

The record convinces us that there now remain sufficient of the old crossties, fish plates and other indications of the location of the track to make it possible to locate that center line, and if it be located, we are convinced that the edge of the right of way, if measured at 50 feet from that center line, would be on the line contended for by the City, and it would thus be indicated that the property now in dispute was within the right of way of the railroad and was acquired by the City.

The other reasons are that, in several leases and spur track contracts with Salcedo Oil Company, a portion of the identical property now in dispute was shown to belong to the railroad, and it is not disputed that, when these contracts were entered in-, to, Salcedo Oil Company made no protest to the effect that it owned the property shown in those contracts as belonging to the railroad.

Since E. L. Eustis, Surveyor, was appointed by the Court, his fee should be taxed as costs even though the survey made by him is not accepted as showing the correct boundary.

The fee was fixed in accordance with LSA-R.S. 50:283 wherein there is no provision to the effect that the fee is to be taxed only if the opinion of the expert is accepted.

In Penouilh v. Toye Bros. Yellow Cab Co., 1 So.2d 131, 133, we held that the fee of an expert should be taxed as costs “even though his opinion was not accepted by the court and even though, on the issue concerning which he testified, defendants were successful.”

It is therefore ordered, adjudged and decreed that in so far as the judgment appealed from fixes the fee of E. L. Eustis, Surveyor, at $300 and taxed that fee as costs, the judgment is affirmed. In all other respects the judgment is annulled and reversed, and there is now judgment in favor of the City of New Orleans and against Jacob F. Weick, Jr., establishing the boundary between the property of Weick and the property of the City of New Orleans in accordance with the sketch of survey of F. C. Gandolfo, dated June 8, 1954, in accordance with which sketch the said boundary is represented by a curved line which on South Lopez Street, crosses the property line of Lot 15, six feet three inches and five lines (& 3" 5"') from the division line between Lots 15 and 16 and on South Salcedo Street crosses the property line of Lot 10, five feet, ten inches (5r 10") from the division line between Lots 9 and 10.

Defendant Weick is to pay all costs.

Affirmed in part; reversed in part.


author: TATE, Judge.

text:
    REID-ELLIOTT MOTORS, Inc., et al., Plaintiffs-Appellants, v. Roosevelt LEE, Defendant-Appellee.
    No. 4377.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Ponder & Ponder, Amite, for appellants.
    Edwin C. Schilling, Jr., Amite, for ap-pellee.
   TATE, Judge.

This tort suit arises from a motor vehicle accident of December 7, 1952. An employee, joined by his employer and its compensation insurer in subrogation for the compensation benefits paid to the employee, filed suit for damages in the total amount of $6,472.96 resulting from the alleged negligence of defendant Lee.

The accident occurred approximately eight miles east of Raceland, Louisiana, on U. S. Highway 90. The highway was con-' crete, 18.5 feet in width, with narrow (4') shoulders. The night was dark, and visibility was obscured by rain and fog.

Immediately prior to the accident, plaintiff employee Reid was directing removal of a pickup truck from the ditch on the north side of this main highway. The front end of the wrecker (or winch-truclc) was facing southeasterly and protruding into the north lane, i.e., facing against west-bound traffic. Further east of said pick-up truck and obscuring it to westbound traffic was plaintiff’s small “Henry-J” automobile, parked partly on the shoulder facing west (towards the wrecker), its lights illuminating the wreckers’ operations. The tail-lights of the Henry-J were on. The headlights of the wrecker were also on. The body of the Henry-J, however, obscured the wrecker from westbound traffic.

Defendant Lee approached the scene of the accident from the east at a speed of 35 miles per hour, saw the rear tail-lights of the Henry-J when just from 10-20 feet in its rear, pulled to his left (into the lane reserved for east-bound traffic), and immediately thereafter upon suddenly perceiving the pick-up truck also protruding even further in his own west-bound traffic lane, struck the said wrecker as a result of a skid resulting from the sudden application of his brakes.

The wrecker was pushed backwards, amputating plaintiff Reid’s hand. Reid was standing between the rear of the wrecker and the pick-up truck, directing the latter’s removal from the ditch.

Although said plaintiff Reid had previously been cautioning approaching oncoming traffic, he had left his post in order to supervise the removal of the pick-up truck from the ditch. There were no other precautions taken to warn on-coming traffic, although Reid testified that he relied upon the rear tail-lights of the parked Henry-J to warn traffic approaching from the east, such as plaintiff.

The only testimony in the record was that of Reid, defendant Lee, and (by deposition) Burkhart, the driver of the wrecked, a former coemployee of Reid’s.

We are unable to hold erroneous the District Court’s conclusion that a proximate cause of the accident was the failure of plaintiff Reid to place warning flares or reflectors 100 feet to the front and rear of the vehicles thus stopped upon the traveled surface of a main highway, as required by LSA-R.S. 32:441. Had such flares or reflectors been set out, or other suitable precautions taken to warn on-coming traffic of the hazardous situation created on this main highway by the operations of plaintiff company, then oncoming traffic such as defendant Lee would have been apprised and cautioned as to the dangerous situation created. (In fact, the deposition indicates that immediately following the accident herein, approximately three or four other accidents occurred when other vehicles collided with vehicles which stopped because of the accident presently in question).

Plaintiffs introduced in evidence the minutes showing defendant’s conviction upon a charge of reckless driving arising out of the accident herein, upon which conviction - defendant was sentenced to pay a' fine of $15 and to a 30-day suspended, jail sentence.

Since no objection was made, it does not appear necessary for this Court to rule whether' proof of a criminal conviction is- or is not admissible in civil proceedings growing-out of the same incident. The older and well settled rule that the criminal conviction (or acquittal) is incompetent in evidence in the civil proceedings due to the dissimilarity of- parties, issues, and procedure, is now subject to exception in some jurisdictions; see Annotation, “Conviction or acquittal as evidence of the facts on which it was based in civil action,” 18 A.L.R.2d 1287.

In Louisiana, the cases are in conflict. It has been held that such evidence is not admissible in civil proceedings, New Orleans Ry. & L. Co. v. United States F. & G. Co., 145 La. 364, 82 So. 372, Lewis v. Petayvin, 4 Mart.,N.S., 4, Steel v. Cazeaux, 8 Mart.,O.S., 318, Quatray v. Wicker, La. App. Orl., 16 La.App. 515, 134 So. 313, Lennon v. Palmer, 3 Orl.App. 356, the latter case commenting: “the judgment of a criminal court has no effect on a civil court, which is charged with the duty and power to determine for itself all the issues arising in a civil suit,” 3 Orl.App. 359. See also Pober v. Sterbcow, 14 Orl.App. 164. (The Quatray case held that, even when admitted without objection, a criminal conviction of reckless driving was not competent evidence to be considered in a civil tort action arising from the same accident.)

However, the early cases of Bankston v. Folks, 38 La.Ann. 267 (criticized in the Quatray decision as “not in accord” with the other jitrisprudence, 134 So. 316) and Beausoliel v. Brown, 15 La.Ann. 543, permitted receipt of such evidence of criminal conviction in civil proceedings, as did the more recent cases of Osborne v. Peoples’, etc., Co., 2 Cir., 19 La.App. 667, 139 So. 733, and Picatacci v. Palermo, Orl., 3 La. App. 465. However, even these cases hold that such evidence of criminal conviction is not conclusive, but merely an unfavorable circumstance to be weighed in connection with all the other evidence educed in the civil suit.

Anent the weight to be attached (even if admissible) of defendant’s conviction of this traffic offense in a parish far from his residence, and the minor penalty ($15 fine and suspended 30-day sentence) he received therefor, it may not be amiss to include the remarks contained in the above-cited annotation, 18 A.L.R.2d 1287 at 1290: “It may, however, be reasonably argued that the rule of exclusion should be continued as to convictions for minor traffic violations and other offenses of the kind, where the safeguards afforded the accused may be more or less perfunctory, and a moderate fine may be accepted as a matter of convenience, since such convictions may be given undue weight in civil actions involving large sums of money.” “[I]t appears that the courts should be especially reluctant to admit such evidence in * * * actions involving negligent operations of automobiles,” 18 A.L.R.2d 1295.

For the above and foregoing reasons, the judgment of the District Court is affirmed.

Affirmed.


author: McBRIDE, Judge.

text:
    WASHINGTON FIRE & MARINE INSURANCE COMPANY et al. v. EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Ltd., et al.
    No. 20845.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Gamble & Gamble, Harry P. Gamble, III, New Orleans, for plaintiffs and appellants.
    Felicien P. Lozes, and James H. Drury, New Orleans, for defendants and appellees.
   McBRIDE, Judge.

The sole question this appeal presents is whether plaintiff, Richard, was guilty of contributory negligence in driving his Chevrolet automobile into the rear of another automobile which was in charge of Voorhies and which was stopped in the same path of the Lake Pontchartrain Bridge in which Richard was traveling, i. e., toward New Orleans. The accident took place on the St. Tammany side of the bridge on the evening of November 21, 1955. This suit is brought for recovery of the amount necessary to repair Richard’s car and Voorhies and his liability insurance carrier are impleaded as defendants in solido, it being alleged that Voorhies was negligent, among other things, in stopping his vehicle on the highway bridge without lights or warning flares or signals. The plaintiffs are Richard and Washington Fire & Marine Insurance Company, the latter being a subrogee of a portion of the claim.

Defendants deny negligence on the part of Voorhies and plead in the alternative that Richard was guilty in several respects of negligence contributing to the accident as a bar to a recovery. As reconvenor Voorhies seeks recovery of his damages from Richard.

Both the suit and the demand in recon-vention were dismissed below and plaintiffs have taken this appeal.

Voorhies brought his car to a stop on the bridge because of tire trouble. An automobile driven by Rush going in the direction of New Orleans then passed the Voor-hies car. Richard’s automobile was following the Rush vehicle and was about a distance of two blocks to its rear. Richard never became aware of the stationary car until about 40 feet before reaching it and then it was too late to stop and too dangerous to swerve to the left to avoid the accident because automobiles were approaching on the left from the opposite direction. Richard concedes that had he sighted the Voorhies vehicle sooner, he could have safely passed it to its left without danger of collision with oncoming traffic.

Also appearing from Richard’s testimony are these facts: His speed was 40 miles per hour although the maximum legal speed for traffic traveling on the bridge is 25 miles per hour as testified to by a State Trooper; that the beams of his headlights only carried 35 feet ahead notwithstanding LSA-R.S. 32:290, 291 and 301 require all vehicles being driven on highways to be equipped with headlights capable of rendering clearly discernible a person 200 feet ahead; Richard also made the admission that his vehicle could have been stopped within 35 feet, yet he says he became aware that the Voorhies car was in his path when he was 40 feet away from it.

Richard also professes the darkness of the night, the color of the Voorhies car and the fact that its taillight was not illuminated, all taken together, militated against his observance of the danger sooner, but we think his position is untenable. There is some conflict in the testimony whether the stationary vehicle was lighted, 'but that issue need not be resolved because if Richard’s car had been equipped with proper headlights he should have seen the car ahead in ample time to have avoided running into it. As to the night being a dark one, all we can say is that the blacker the night the sharper should have been Richard’s lookout.

Richard also claimed he was intermittently blinded by the headlights of five or six vehicles which approached from the opposite direction, and for that reason he was unable to discern the Voorhies car at a greater distance. We think that if blinding lights affected his forward view, Richard should have, as a precautionary measure, either reduced his speed or stopped his vehicle if the exigencies of the situation so required. He was a distance of two blocks away when Rush passed the stationary car, and we can think of nothing which should have obliterated his view thereof. This case bears no resemblance at all to Gaiennie v. Cooperative Produce Co., Inc., 196 La. 417, 199 So. 377, or Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720. In both those cases the stationary vehicle was parked at an angle in the path of the plaintiff’s car. In the Gaiennie case the body of the truck extended but three or four feet onto the road and in the Dodge case only four or five feet of the rear portion of the truck rested in the lane of traffic in which plaintiff was traveling.

In the instant case the stationary vehicle was parked squarely in the roadway and Richard should have had unobstructed vision thereof for a distance of two blocks, and we are at a loss to comprehend why he failed to see it sooner than he did unless, as he says, his headlights were so defective they did not cast a beam ahead more than 35 feet. He was clearly guilty of negligence which contributed to the accident.

Therefore, the judgment is affirmed.

Affirmed.


text:
    William M. CURRY v. William FENDT.
    No. 20583.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.

      Charles F. Seemann, New Orleans, for plaintiff and appellant.
    James H. Drury, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

About dusk on May 23, 1954, a Pontiac automobile struck a Jeep station wagon, and as a result of the impact both vehicles were damaged and the driver of the station wagon and his passenger were allegedly injured. The accident happened in the intersection formed by Nashville Avenue and the roadway of St. Charles Avenue dedicated to traffic moving- toward uptown. The station wagon, owned by William M. Curry, was being driven by his minor son, Edward, on Nashville Avenue in the general direction of the lake. Another son, William M. Curry, Jr., was a passenger in the station wagon. The other vehicle, the Pontiac, was being driven by William Fendt in an uptown direction on St. Charles Avenue.

By this suit plaintiff seeks recovery from Fendt for the damages to the station wagon, and for the use and benefit of his minor sons above-named, he is seeking damages for their physical injuries. In a reconven-tional demand Fendt prayed for judgment against plaintiff for the damages sustained by the Pontiac.

Charges and countercharges of negligence are made; in the alternative, defendant pleads the contributory negligence of the driver of plaintiff’s vehicle as a bar to recovery.

After hearing the case on the merits, the lower court dismissed both the main and the reconventional demands. Plaintiff, in his individual capacity, has appealed; he also appeals on behalf of his minor son, William M. Curry, Jr.

Traffic at the intersection is controlled by the conventional red-yellow-green semaphore light signal, and the case must turn on the question which driver was proceeding on a favorable light. Unquestionably the trial judge believed that both disregarded the light and that each negligently entered the intersection on an improper signal. Although the record is replete with contradictory evidence, a careful examination thereof forces us to reach the same conclusion as did the judge below.

The Curry boys upon reaching St. Charles Avenue were confronted with a red signal light and their vehicle was brought to a stop in obedience thereto. They both insist the station wagon was not started in forward motion until the light had changed and the favorable green signal appeared. They admit that another automobile was stopped to their left awaiting the same green light and that this vehicle remained in a stationary position as they moved forward.

Plaintiff produced as witnesses Pelton and Mrs. Holliday who say they saw the accident and claim they had their eyes focused on the light at the time of the collision, and that the green signal was showing for the station wagon as it was passing across St. Charles Avenue.

Mrs. Holliday, although most positive that the station wagon had the green light, made a statement that is entirely out of keeping with the testimony of the other of plaintiff’s witnesses. She claims that the station wagon was negotiating a left turn in order to go in an uptown direction on St. Charles Avenue when it was struck. She is mistaken as young Curry, the driver of the station wagon, never intended to turn left, nor did he do so, and it is an undeniable fact that his course was a straight one out Nashville Avenue.

Pelton was driving his automobile up St. Charles Avenue but came to a stop at Nashville Avenue as a red light confronted him. He says his car was still in this stationary position when Fendt’s car passed on his right, ran out into the intersection, and crashed into the station wagon.

Mrs. Holliday’s vantage point was from an automobile in which she was a passenger. Her car, she claims, had been proceeding in Nashville Avenue toward the river, but that her driver stopped upon reaching St. Charles Avenue 'because of a red signal for traffic traveling on Nashville Avenue. This was the same red light for which young Curry had stopped on the opposite side of St. Charles Avenue. She also stated the significant fact that her car had moved only two feet after the green light showed and it was then that the accident happened. If this be true, then the Curry boys, if they started out on the green light, traversed the downtown-bound roadway of St. Charles Avenue, the neutral ground, and had gotten into the uptown-bound roadway while her vehicle only moved a distance of two feet.

Defendant’s story is that he was driving up St. Charles Avenue at about 30 miles per hour on a green light. He states he had this favorable signal until the front of his car about reached the intersection and then it was the light changed to an amber color, whereupon he applied his brakes but to no avail and his car skidded into the Curry vehicle. Stein, defendant’s passenger, was either sleeping or relaxing at the time and his testimony is unimportant.

Neither driver saw the other car until a moment before the crash. Our firm conviction is that Edward Curry started forward before the light changed to green and it was not until he reached the uptown-bound roadway of St. Charles Avenue that such signal appeared. This theory is fully supported by the testimony of Mrs. Holli-day. She stated her driver was also waiting for the favorable green light for vehicles on Nashville Avenue, and after its appearance the car travelled but two feet when the accident happened. It is also significant that the car which had been stopped to the right of the Curry vehicle was left behind. This car, too, was waiting for the green signal. Every circumstance points up that young Curry started forward before the proper signal made its appearance.

The negligence of the defendant is too obvious to discuss. Our belief is that he dashed to the right of Pelton’s car in an attempt to “beat” the light and ran into the station wagon whose driver had the same idea in mind.

Having arrived at this conclusion that both drivers were guilty of concurring fault, in view of defendant’s plea of contributory negligence, the question arises whether the negligence of Edward Curry, who is a minor, prevents his father, the plaintiff, from recovering the amount of damages the station wagon sustained as a result of the accident.

The record is sufficient to disclose that the plaintiff loaned the vehicle to his sons and they were on the way to get their dates when the accident occurred. They were neither the agents of nor on a mission for their father; on the contrary, they were going about their own affairs. It is a well-settled principle of law that the owner of an automobile is entitled to recover the amount of damages sustained by it in an accident to which the negligence of the borrower thereof may have contributed. See Emmco Ins. Co. v. Savoy, La.App., 71 So.2d 573, and the several cases therein cited. Under this rule if Edward Curry ■had been above the age of majority, his negligence in the operation of the borrowed vehicle, which negligence contributed to the accident and consequent damages, perhaps could not be imputed to the elder Curry as barring his recovery.

However, Edward Curry is an un-emancipated minor residing with his father, the plaintiff. We must, therefore, hold that this being the case the rule above-mentioned as respects the contributory negligence of the borrower of an automobile does not apply and that the contributory negligence of the minor borrower precludes his father, plaintiff in the main demand, from recovery for his property damage. For a full discussion of this proposition see Pancoast v. Cooperative Cab Co., La.App., 37 So.2d 452.

The status of the other Curry boy, William, Jr., was guest passenger in the station wagon, and under jurisprudence too well settled to require citation whatever negligence there was on the part of the driver, Edward Curry, is not to be imputed to him, and Edward Curry’s negligence would not bar his guest passenger’s right to recover.

The petition alleges that William M. Curry, Jr., sustained personal injuries consisting of bruises and shock, for which the sum of $250 is claimed, but we find no proof in the record that he sustained injuries sufficiently serious, if any at all, to warrant the allowance of damages. Anent his injuries all the evidence contained in the record appears from his own testimony on direct examination. It runs thus:

“Q. Now, did you receive any injuries? A. Well, the jolt of it I hurt my head on the top of the window.
“Q. You didn’t receive any serious injuries? A. No, sir.
“Q. Go to a doctor? A. No.
“Q. Did you suffer any pain? A. Well, a headache maybe a day or two.
“Q. Nothing serious? A. No.”

In a similar situation in Bryant v. Parr, La.App., 86 So.2d 115, we denied a recovery to plaintiff and applied the doctrine de mini-mis non curat lex, and circumstances warrant the application of that doctrine here.

The judgment appealed from is affirmed.

Affirmed.

REGAN, J., takes no part.