text:
    BROWN v. T. J. MOSS TIE CO.
    No. 7096.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.
    Oglesby & Oglesby, of Winnfield, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellee.
   TALIAFERRO, Judge.

This is a tort action in which Isabel Brown seeks to recover damages from the defendant for the death of her acknowledged illegitimate son, Emanuel Carter, Jr., who, it is averred, lost his life by accident while working for the defendant, and from its negligence and that of its agents and employees. Plaintiff sued in tort rather than for workmen’s compensation because her son was under the age of eighteen years.

For a cause of action, plaintiff alleged that defendant’s manager hired her son without her knowledge and also two other colored boys of the same age, put them in charge of a large truck and sent them into the woods to load and haul crossties to a creosote plant in Winnfield, Louisiana; that the boys had almost completed the loading of the truck when some of the ties rolled off and crushed her son so badly that he died in a hospital one week later; that it was gross' negligence on the part of defendant’s agents and employees to put the three inexperienced boys in charge of said truck for the purposes stated, without the supervision of an older and more experienced person, and without warning them cf the dangers attending the work.

In limine, defendant excepted to the petition as disclosing neither a cause nor a right of action. The exceptions were overruled. Answering, the defendant articulately denied each and every essential allegation of the petition save those relative to the injury and death of Emanuel Carter, Jr., and the hazardous character of its business, which are admitted.

The lower court passed on the merits of the case and held that defendant was free of negligence as the or a contributing cause of the accident and dismissed the suit. The trial judge has favored us with sound written reasons for his judgment. Plaintiff appealed. Answering the appeal, defendant re-urges the exceptions previously tendered by it and prays that same be sustained by this court.

The exceptions are based upon the-proposition that a natural mother is without right under Article 2315 of the R. C. C. to recover damages for the wrongful death of her illegitimate son even though she acknowledged him as her son by notarial act prior to his death.

Primarily, plaintiff’s suit is based upon Article 2315 of the R. C. C., which is the general basis of our law of tort. In ad7 dition to suing for damages sustained by her because of the death of her son, she sued for an amount for the pain and suffering the boy endured for one week; that is, from the time of the accident until he died. If plaintiff should be held entitled to recover any amount on this score, her right to do so is derived1 from the law of inheritance and not from the law of tort. Therefore, to sustain the exceptions for the reasons urged, would still leave for decision plaintiff’s right or lack of right to recover the amount due the deceased, if any, for pain and suffering. In view of this situation, the logical course to follow to finally dispose of the case will be- to do as the lower court did, to-wit: Predicate judgment upon the issue of negligence, because we have reached the same conclusion thereon as did the lower court.

Defendant denied that when injured Emanuel Carter, Jr., was in its employ, and considerable testimony was adduced on this issue. It is not free of uncertainty, but in view of the conclusion we have reached on the pivotal issue in the case, it may be conceded, without material influence upon the final result, that he was in the defendant’s employ when the accident occurred.

Defendant is engaged in the business of purchasing, manufacturing and selling of crossties. It owns trucks that are entrusted to its employees to drive into the woods and elsewhere to load ties and haul them to a creosote plant in Winnfield, Louisiana. On the morning of January 1, 1946, a Negro man named Ivry Cooper, then in his twenty-first year, was employed by Mr. Claude Randolph, defendant’s supervisor, to pick up some ties in Grant Parish and haul them to the plant. This man had had previous experience in this sort of work. One of defendant’s trucks was delivered to him with which to do the hauling. The deceased was present when Cooper took over the truck and got into it with him. After going a short distance another Negro man, Leonard Howard, joined them and they proceeded to the locus of the ties. Another of defendant’s trucks, driven by J. N. Cooksey, one' of its supervisors, preceded the one in Cooper’s charge in order to direct him to the location of the ties. When the trucks reached the scene - of the ties the three 'Negro men began , to load them. Cooksey remained there and looked on until the truck was half loaded, and he then drove away. .

The crossties involved were heavy and were lifted to the truck’s body by the combined efforts of Cooper, Howard and the deceased, one -being at each end and one in the middle. Fifty ties constitute a truck load and forty-nine had been successfully deposited on the truck bed, in tiers of five, and when the fiftieth tie was lifted or •.thrown to the top of - the incompleted tier, ■the whole tier toppled over and fell. Cooper and Howard, by prompt action, escaped -injury, but Carter’s escape was blocked by :some bushes in which be became entangled. He was knocked to the ground and several :of'the ties fell upon him.

Cooper testified that it is possible when -the last tie was placed upon the last tier, the ties, became top heavy and fell over. 'The ties were hewn and the surfaces ■thereof were uneven. It is likely that Cooper’s theory as to why the ties fell, is correct.

Mr. Cooksey testified that .the ties were '.loaded in the customary manner and that it was not uncommon for ties to fall from A truck while being loadéd, as happened in ■the present case.

Loading crossties on a truck requires only manual labor. No special skill or long experience is required to qualify a man to successfully do this. While it is not shown .that the deceased had previously engaged in loading ties, it is certain that after assisting in the loading of forty-nine o-f them he was .as competent to do so as were his fellow workmen, and as much so as he would .ever be. It is manifest that if the ties were incompetently loaded, the deceased was as much responsible therefor as was anyone ■else.

The danger incident to loading the ties was obvious and not extraordinary. It required no word from anyone to enlighten the deceased and his fellow workmen of .this fact. Ties .are heavy and every one knows •that if one or more fall upon a person, serious injury or possible death will certainly follow.

So far ras concerns supervision of the loading by some adult persons possessed of experience, we find no reasonable ground for complaint. Cooper and Howard were grown men, and as said before, Cooper was experienced in this line of work. Naturally, when the loading began he imparted to Howard and the deceased the customary-method for’getting the ties onto the truck’s body. Cooksey looked on, and in- a-manner supervised the loading while he was there, and observed that the work was being properly performed.

It was incumbent upon plaintiff to substantiate by satisfactory proof the charge of negligence made against defendant, its agent and employees-, in order to succeed herein. The pro.of is inadequate to support the charge. Plaintiff has signally failed to make out her case. Therefore, for the reasons herein given, the judgment from which appealed is affirmed with costs.

KENNON, J., absent


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    LACHNEY et ux. v. WELLAN’S, Inc., et al.
    No. 7153.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.

      Philo Coco, of Marksville, for appellants.
    Stafford & Pitts, of Alexandria, for ap-pellees.
   HARDY, Judge.

This is an action by Leo Lachney and wife, Anna Lamartinierre Lachney, for the recovery of damages sustained by the plaintiff, Mrs. Lachney, as the result of injuries received in a fall in an elevator in the department store of the defendant, Wellan’s, Inc. Travelers Indemnity Company, as the liability insurer of Wellan’s, Inc., is joined as a party defendant. After trial there was judgment in favor of defendants rejecting plaintiffs’ demands, from which judgment plaintiffs have appealed.

At about 9:30 A. M. on April 19, 1946, the plaintiff, Mrs. Lachney, who, accompanied by her husband, had been shopping on the second floor of Wellan’s store in Alexandria, Louisiana, in the act of entering the elevator for the purpose of descending to the first floor of the building, sustained a fall which caused a fracture of the right femur resulting in serious, painful and disabling injuries. As the basis of recovery plaintiffs urge that the fall was caused by a sudden, sharp and unexpected downward movement of the elevator due to the gross carelessness and negligence of the elevator operator, an employee of the defendant, Wellan’s, Inc.

The plaintiff, Mrs. Lachney, at the áge of about nine months suffered an attack of infantile paralysis as the result of which her left leg was hopelessly crippled. For a period of more than fifty years, since the age of five, Mrs. Lachney had :used crutches as a necessary aid in walking, in the use of which instruments she was unusually adept and skilled, to such extent that she performed her housework, attended to the raising of chickens, drove an automobile, and participated in all the normal activities of life.

On the morning of the accident Mrs. Lachney, accompanied by her husband, had been engaged in looking at dresses on the second floor of defendant’s store. After finishing her shopping she proceeded to the elevator which was standing with door open at the second floor level. The testimony of Mr. and Mrs. Lachney is that Mrs. Lachney was being assisted into the elevator by her husband who had a firm grip on her arm; that as she placed her right crutch and right foot inside the elevator there was a sudden downward jerk, which unexpected motion caused Mrs. Lachney to fall to the floor with such suddenness and violence as to break her husband’s grip upon her arm; that her right hip came into violent contact with the edge of the flooring at the threshold of the elevator; that Mrs. Lachney was rendered unconscious, ■ was removed to a couch in the ladies lounge by her husband, assisted by a Negro porter, an employee of Wellan’s, and within a few minutes taken by ambulance to tile Baptist Hospital where she was placed under treatment.

Most of these facts, as above related, are sharply contradicted by the testimony of defendant’s witnesses, Olivia Alexander, a colored woman, the operator of the elevator, and Mrs. Robert Hill, an employee of Wellan’s, who was present on the second floor within a short distance of the elevator at the time of the accident. These witnesses testified that Mr. Lachney was not assisting his wife at the time of her'entrance into the elevator, but was following some several feet behind; that .there was no movement of the elevator of any nature; that Mrs. Lachney had completely entered the elevator when her crutches appeared to slip; that Olivia Alexander, the elevator operator, attempted to break the force of Mrs. Lachney’s fall by catching her under the head.

The only other testimony in the case, aside from that of the attending physician bearing upon the nature and extent of the injuries, was given by W. R. McDonald, a representative of the Otis Elevator Company, charged among other duties with the periodic inspection and the maintenance of the particular elevator involved, a product of the Otis Elevator Company. The testimony of this witness is uncontradicted and conclusively establishes the fact that the elevator was in good working order, in good repair, and without any mechanical defect, the same having been inspected a little more than two weeks prior to the accident. We observe, in passing, that no attempt is made by plaintiff to charge defendants with any lack of care or negligence in this particular.

The further testimony of the witness, McDonald, which particularly bears upon this case, is convincing on the point that the elevator in question cannot be moved, so long as the door is open, except by the manipulation of the operating lever to either an up or down position simultaneous with the holding in of an emergency release button which is located in a recessed position on the left panel of the elevator wall. This release button is subject to the pressure of a strong spring which necessitates a maintained counter pressure in order to effect the release of the operating machinery. Because of this fact, and in consideration of the recessed construction which protects the button from accidental contact, it becomes evident, since the door of the elevator was completely open at the time, which fact is uncontradicted, and in view of the good condition and freedom from defects of the elevator at the time, that a movement of the elevator could only have resulted from a deliberate, intentional and simultaneous manipulation by the operator of the release button and the starting lever.

Plaintiffs invoked the doctrine of res ipsa loquitur, and properly so, in the attempt to shift the burden of proof to defendants with the incumbent necessity of showing freedom from negligence. Consequently, it is plain that the determination of this matter must rest upon the resolution of the point as to whether or not Wellan’s employee, the elevator operator, deliberately caused the elevator to move at the exact moment that Mrs. Lachney attempted to enter.

The Judge of the lower Court, in an able written opinion, conceding the extraordinary duty of care and freedom from negligence on the part of the owner and operator of an elevator with reference to passengers thereon, after an analysis of the evidence, found that the same preponderated in favor of defendants. We fully concur in this finding.

We are completely unable to reconcile the testimony of plaintiffs, who are the only witnesses in their behalf, and that of the witnesses for defendants, and shall make no attempt so to do.

Plaintiffs’ able and industrious counsel makes the point that the testimony of defendant’s employees should be scrutinized with great care in view of the natural tendency of employees to lean favorably toward the interests of the employer. We freely concede this point but further observe that certainly there must be at the very least ah equally strong motive on the part of plaintiffs to favor in their testimony the service of their own interests. For this reason, we are inclined to feel that this particular point must be resolved on the basis of an evaluation of all the testimony in the light of surrounding circumstances and practical experience.

We find no ground which would justify a conclusion that the experienced and trustworthy operator of the elevator in this instance deliberately caused a sudden movement thereof at the exad/t moment that a crippled person, who was in view and under the careful observation of the operator, entered therein. There is not even a breath of testimony to the effect that the floor of the elevator was not level and flush with the second floor of the building, nor is there any slightest implication as to the existence of any circumstance which would have rendered the deliberate movement of the elevator necessary or even desirable at the time. It seems inconceivable to us, therefore, that the experienced operator, without any apparent reason, would have performed any act designed to change the position of the elevator.

The testimony of the operator and of Mrs. Hill is consistent, and, we submit, entirely credible, as to the exact cause of Mrs. Lachney’s fall. The operator testified that Mrs. Lachney, entirely within the elevator, appeared to attempt to turn and that one •crutch went “this way” and the other ■crutch went “that way.” The testimony of Mrs. Hill substantiates this description inasmuch as she saw the crutches “slip ■from under” Mrs. Lachney.

To anyone who has at any time experienced the enforced necessity of using •crutches, or who has, in any event, had the •opportunity of observing individuals using •such aids to locomotion, there is nothing ■strange in the fact that on occasions, despite the experience and skill of the user, •these instruments have a tendency to slip and to “spread” in opposite directions. We have no doubt but that this is exactly what happened in this case.

To our minds there is no significance to he attached to the fact that Mrs. Lachney upon recovering consciousness informed her attending physician that the fall had heen caused by a sudden downward motion •of the elevator. We do not impugn in even the slightest degree the sincerity of this unfortunate plaintiff in holding to this belief, but we are firm in the conviction that the defendants have satisfactorily refuted this contention.

On behalf of plaintiffs the argument is advanced that the defendant, Wel-lan’s, is liable for the negligence and lack •of care of its employee, the elevator operator, in failing to assist Mrs. Lachney safely into the elevator. This point is made alternatively in the event the Court should accept the testimony of defendant’s witnesses to the effect that at the time of entering the elevator Mrs. Lachney was not in fact being assisted by her husband. In our opinion- the question as to whether or not Mr. Lachney was assisting his wife at the time is immaterial. Nor do we consider, in the event Mrs. Lachney was unattended and unassisted by her husband, that there devolved a duty upon the elevator operator to tender any assistance. Certainly if a husband should not consider a erippled wife in need of help, it would not be an obligation of a stranger to assume the existence of such need.

Because of the extremely unfortunate effects of the accident involved herein we have been at unusual pains to examine and consider the record in this case in minute detail, but this careful and painstaking consideration has served only to strengthen the conclusion which we have reached.

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

KENNON, J., absent


author: TALIAFERRO, Judge.

text:
    MASON v. PRICE et al.
    No. 7116.

    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.

      . Gist, Thornton & Murchison, of Alexandria, for appellant.
    Vincent Hazleton, of Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

The cause of action herein alleged upon arose from an intersectional collision between plaintiff’s car and defendant’s one-half ton truck in the City of Alexandria, Louisiana, in the day time. Plaintiff was driving his car easterly on Fourth Street and defendant’s truck, then being driven by his agent, a Negro man named Oscar Scott, was going northerly on Beauregard Street, when the collision occurred.

By ordinance of the City of Alexandria, traffic on Fourth Street has right-of-way over that on the intersecting streets, including Beauregard. -Suspended above the intersection is a blinker light designed to impress upon motorists, as they approach the intersection, the wisdom of acting cautiously before entering it. There are also painted on the curbs at the intersection, in large letters, 'stop signs for the information and guidance of motorists entering it from Beauregard Street.

Plaintiff alleged that defendant’s driver approached the intersection at a rate of speed in excess of that authorized by law and entered thereon without bringing the truck to a stop as the City law requires; that he was not maintaining a proper lookout for traffic on the right-of-way street and, therefore, failed to accord to plaintiff the superior right that the law gave him; that because of the truck driver’s negligence in these respects, the accident occurred.

Defendant denies the acts of negligence accredited to his driver and, in the alternative, pleads that plaintiff’s own negligence contributed to the accident to an extent sufficient to bar recovery by him, and such negligence is specially pleaded. Amplifying this plea, it is alleged that plaintiff himself was not maintaining a proper lookout for traffic approaching the intersection on Beauregard. Street and that had he done so he would and could have seen the truck in ample time to stop his car before colliding with it.

Plaintiff was not injured in the accident. He sued for cost of repairing his car and was given judgment therefor. Defendant appealed.

The case tenders for decision but one issue and that relates to the plea of contributory negligence. It is clearly shown, in fact is not now seriously denied, that defendant’s driver was traveling at a speed in excess of the limit fixed by ordinance of the City and did not stop his vehicle nor even reduce its speed prior to attempting to negotiate the intersection.

Plaintiff, as he approached the intersection, reduced his car’s speed to approximately IS miles per hour. He observed the truck to his right on Beauregard Street, 75 feet or more away, moving at a speed he estimated to be 45 miles per hour. Knowing that he had the right-of-way and that the intersection was well marked to inform the other driver of his superior right in this respect, and assuming that this superior right would be respected, he did not keep his eyes continuously glued upon the truck’s movements. The front end of his car collided with the forward left side of the truck, which veered to its right, continued-forward upon and. over the. curb and sidewalk, and .finally rested against a building on the north side of Fourth Street.

It may be conceded, without affecting the outcome of the case, that by the exercise of a superlative degree of care by -plaintiff the accident would and coul'd have ibeen averted. But, under the circumstances, was he required to do this ? We do not think •so. If, in such circumstances, a motorist .should be required to bring his vehicle to a stop or reduce its speed to a snail-like pace at every intersection and await the action of motorists on less favored streets, the advantages the law intends to accord would, in a 'large measure, be lost. The right-of-way would not be such in reality. In cities where -traffic is heavy and continuous on less fa-vored streets, a motorist on a right-of-way street, if so' required, would find himself greatly annoyed because of the constant shifting of gears and change in the rate of speed of his own vehicle although driving ■within the law. The purpose of the law, in such circumstances, would not be accomplished ; ’traffic movements would be hindered rather than promoted thereby.

In this state, contrary to many other states, the rule of comparative negligence is not recognized; in fact, it is positively banned by the decisions of the Supreme Court. But, in a measure, by indirection, we have such a rule. It is found in the doctrine of proximate cause. ’ The negligence of two persons may produce an accident yet the court will investigate to determine the proximate cause thereof in order to fix liability as between the parties. This is well illustrated in the present case. Granting that plaintiff was not as careful as it was possible for him to have been before attempting to cross the intersection, ' his fault in this respect, it is clear, was not a or the proximate cause, of the collision that followed. The sole proximate cause of the accident was the driver’s action .in violating laws of the City enacted to protect :,from injury persons who elect to or from necessity, drive upon certain of its streets. But for this non-observance of the law, the accident would not have happened.

Authorities need not be cited to substantiate the principle, well fixed by the jurisprudence of this'state, that the violation of a traffic law constitutes negligence per se. Such negligence, however, is not actionable unless it is shown to have been the or a proximate cause of the accident out of which the suit arose and so we hold in this case.

Appellant’argues that the judgment is erroneous and should be reversed on the theory that the drivers, at most, were equally negligent. His counsel cites to support this proposition the following cases recently decided by this court, to wit: Wyche v. Brian, La.App., 28 So.2d 143; Dickinson v. Hammett, La.App., 30 So.2d 152.

When closely studied, the factors that differentiate these cases from the present one are quite clear. In fact, these cases represent exceptions to the general ¿jalé that governs intersectional collisions where one motorist has right-of-way over the other. In each of said cases both drivers heedlessly drove into the intersection without having observed the other until an instant prior to the collision, and in each case there was not present any obstruction to the respective lines of vision that could have prevented either motorist from seeing the other in time to avert the collision, had he exercised ordinary care. In the Dickinson case there were no stop signs or signals at or about the intersection, although one .of the streets involved had been declared a right-of-way street by the City of Ruston. In the Wyche case, the defendant, on Wilkinson, the less favored street, did stop, as was his duty, before trying to cross Creswell, a right-of-way street, but he did not observe plaintiff on. Creswell coming towafd him not far away; nor did plaintiff see the defendant until an instant before the cars collided near the center of the intersection.

We are of the opinion that the lower court correctly decided the case and, for the reasons herein assigned, the judgment from which appealed is affirmed with costs.

KENNON, J., absent.


text:
    BELL v. HOTEL BENTLEY, Inc.
    No. 7154.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.
    Irving Ward-Steinman, . of Alexandria, for appellant.
    Gist, Thornton & Murchison, of Alexandria, for appellee.
   TALIAFERRO, Judge.

Plaintiff appealed from judgment thal sustained exceptions of no cause and no right of action leveled against the efficacy of her petition, and dismissed her suit. She sued to recover damages allegedly due her on account of the accidental death of her son, Carter Bell, while a guest of the Hotel Bentley in the City of Alexandria, Louisiana, owned and operated by the defendant, which occurred, as by her alleged, because of its negligence. Article Five of plaintiff’s petition contains the facts upon which her suit is predicated, and perforce reflects her best effort to state a cause of action. With immaterial deletions, we quote it, to wit: “That petitioner’s son, the deceased Carter Bell, in addition to being a guest of the defendant hotel, was a guest and invitee of the Mirror Room and Mirror Room Bar; that shortly after midnight of August 16, 1946, said Carter Bell left the Mirror Room Bar, and began to ascend a marble stairway leading thence-from, upward to the main lobby of the Defendant hotel. Further, patrons of the Coffee Shop, leaving therefrom, have access to the identical stairway. These approaches, from the Mirror Room and Mirror Room Bar, and the Coffee Shop, meet and have a common stairway approach. For the first four steps of this marble and marble derivative stairway, there are no handrails. The fifth step, in the upward ascent is a landing or platform. Thence for the balance of the stairway, there are two handrails, with this exception, that for the final or'top step, which coincides with the landing or main lobby floor, and for a space of twelve and one-half inches (12½"), there are no handrails. The lack of a continuing handrail constitutes a trap. The deceased Carter Bell, in his ascent of these disconnected components of a stairway, had a right to rely upon a continuing handrail. The structural defect, of the relied-upon handrail stopping short of the safety zone constituted a hazard and a menace, of which the Defendant hotel was presumed to have intimate and supervisory knowledge. The deceased Carter Bell was witnessed in ascending the stairways. Toward the final step, he stumbled, and’ not having a handrail to rely upon, his body was precipitated backward. In his fall he landed head down, face and feet upward. * * * ”

Plaintiff further alleged that the fall of her son and his consequent death were the “result of a structural defect which knowledge is imputed to the defendant.”

Plaintiff additionally alleged that without notifying the police or members of the family of the deceased, the defendant called a commercial ambulance and instructed the driver thereof to carry the injured man to a hospital some eight miles distant, whereas common prudence dictated that he should have been carried to the nearest hospital and not to one so far away, to reach which the ambulance had to traverse “bumpy and winding roads”; that when the ambulance arrived at the hospital it was found that the injured man was dead. She then draws the conclusion and alleges that it was negligence on defendant’s part to have so dealt with a guest, after he was so seriously injured and rendered unconscious; that it also failed in its duty in not providing him with prompt medical attention “which could have prolonged his life.”

The quoted portion of plaintiff’s petition makes it clear that the deceased stumbled as he was in the act of stepping from the tread of the last step of the stairway onto that part of the lobby floor which plaintiff refers to as the “final or top step”. It is also equally clear therefrom that the handrails did extend to a point immediately above the edge of that part of the lobby floor referred to as the last tread of the stairway. The width of this tread is alleged to be 12½ inches. In other words, the rails in reality are equal in length to the walls of the stairway. For them to have gone farther they would, in reality, have had to extend above the lobby floor.

If we understand correctly the allegations, it is further alleged that the failure to extend the rail over said 12½ inches constituted a trap, a hazard and a menace; and that the deceased, in his ascent of the stairway, “Had a right to rely upon a continuing handrail” and “not having a handrail to rely upon, his body was precipitated backward”.

It is not alleged that the deceased was using either handrail to assist him in ascending the stairway, nor that his loss of balance was caused or contributed to by effort on his part to right himself, after stumbling, by grabbing at either rail. His position was such that had he done, this, although not extended over the lobby floor to any extent, his hand would have surely contacted a rail at some point. It must be remembered that the deceased, according ¿o the petition, was in the act of stepping upon the lobby floor when he stumbled and at this time, as we have heretofore pointed out, the upper part of the two lines of rail were respectively to his right and left.

So far as our research has extended, we have found no law, statutory or otherwise, that requires the installation of handrails on each or either side of an enclosed stairway, such as we are now discussing. We have been cited to no such law. We know from observation that this is not invariably done. It is a matter that addresses itself to the individual owner, and when such rails are installed, their design, length, and location are matters of individual choice.

Plaintiff finds no fault with the construction of the rails in the present case save that they are not long enough; that is, they did not really extend beyond the upper end of the stairway and over about one foot of the lobby floor. Surely this is not a structural defect nor a trap or hazard, even though it be conceded that defendant was under obligation to have placed rails along the sides of the stairway.

It is not alleged nor contended that the deceased stumbled and fell because of the insufficiency in length of the rails, or from any other alleged defects in the stairway. Obviously, he stumbled and lost balance because of his own clumsiness or carelessness and it would be a far fetched assumption. to say that had the rails extended as far as plaintiff alleges they should have extended, the deceased would have, by grabbing same, regained his equilibrium and escaped falling. We would have to assume this in order to efface, as a controlling factor in the case, the admitted fact that deceased stumbled and fell solely from his own fault.

We agree with argument of defendant’s counsel that it is somewhat difficult to understand how the deceased could have fallen backward after stumbling in the manner alleged, after attempting to grab the rail, if he did so, which is not certain from the pleadings. It seems to us, in such circumstances, his body would have fallen forward. However, a definite holding on this collateral question is not necessary to a correct decision of the primary issue tendered by the appeal.

There is no basis for damages in the contention that defendant failed in its duty to plaintiffs son after he was fatally injured. Even though it be granted that defendant did not act as prudently as others might have acted in like circumstances, it does not follow that had a different course been pursued, the injured man’s condition would have been ameliorated or his life prolonged. His injuries-were fatal. He was rendered unconscious- and having died before reaching the hospital argues convincingly that his condition was beyond human hands to relieve.

Both sides have cited and quoted from: several decisions, mostly from other states, to support their respective positions. None of the cases is in point, and we shall not encumber this opinion by further reference to them. It appears to us obvious that even though plaintiff should have the opportunity to prove all of her allegations, and she did so, recovery would still be denied her.

For the reasons herein given, the judgment appealed from is affirmed with costs.

KENNON, J., absent.


author: HAWTHORNE, Justice.

text:
    212 La. 467
    HARDIN v. OPERATING CO. et al.
    No. 38355.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    James G. Schillin, of New Orleans, for plaintiff and appellant.
    Albert B. Koorie, of New Orleans, for defendant and appellee.
   HAWTHORNE, Justice.

Plaintiff, Mrs. Betty Hardin, wife of Delbert F. Dumas, brought this suit to recover the sum of $9070.41 against the Canal Street Hotel Corporation, operator of the Jung Hotel in New Orleans, as damages for false arrest and malicious-prosecution and as overtime wages, services-rendered, and the price of certain articles purchased by plaintiff for defendant at its request.

The suit was originally instituted against the Operating Company, Inc., but petitioner by supplemental petition alleged that the operator of the Jung Hotel was the Canal Street Hotel Corporation, and by an amended and supplemental petition together with her original petition, both duly served on this latter corporation, this corporation was made party defendant herein.

Plaintiff alleged that she was employed by the defendant herein as personnel director, and that her duties consisted of selecting and employing young women to operate the elevators in the Jung Hotel and in supervising and directing the manner of operation of the elevators; that on July 31, 1944, at about 6:00 p. m. one of the assistant managers of the hotel approached her and in a loud and unruly tone informed her that she was discharged from her employment, grabbed her by the shoulder, and told her to go upstairs and get her pay; that the officials of the hotel called the police department of the City of New Orleans, and had petitioner arrested and incarcerated in jail without any .warrant of arrest and without pursuing the forms and procedure provided by law in such cases; further, that the manager of the hotel had her ejected from the hotel by two uniformed policemen by the use of force and violence, placed in a patrol wagon, and conveyed to the First Precinct Police Station; that she was forced to remain locked in the patrol wagon outside the hotel for about an hour and compelled to remain in the precinct station for about two hours.

She further alleged that the defendant, through the general manager of the hotel, without any justification charged her in an affidavit filed in the First Recorder’s Court with the offense of disturbing the -peace; that in that court she was convicted and sentenced to pay a fine of $10 or to serve 30 days in the parish prison; that upon appeal to the Criminal District Court for the Parish of Orleans her conviction and sentence were set aside.

She alleged also that the acts of defendant’s employees constituted false arrest and malicious prosecution of petitioner and were perpetrated upon her maliciously and without probable cause; that the charges made against her were at all times untrue, to the knowledge of defendant, and that as a result of this false arrest and malicious prosecution she had sustained damages, which she itemized, in the sum of $8750.

Petitioner further alleged that the defendant was indebted to her in the additional amount of $320.41 for overtime wages, services rendered, and the price of certain articles purchased by her for defendant at its request, each of these claims being itemized in her petition.

Defendant in answer admitted the employment of plaintiff and also her discharge, but denied that the discharge was without cause, and denied all the material allegations of fact made in plaintiff’s petition.

After trial in the lower court, judgment was rendered rejecting plaintiff’s demands at her costs. From th'js judgment she appealed to this court.

The record in this case discloses that the testimony is in conflict on all material-points, and we are unable to reconcile it. Plaintiff offered testimony tending to show that on the day in question she came from her home into the lobby of the Jung Hotel, and that one of the assistant managers, Mr. Baker, in response to her inquiry as to why she was discharged, assaulted her by placing his hands on her shoulders and shaking her violently without cause or justification, informed her that she was discharged, and told her to go to the cashier’s office on the mezzanine floor, receive her pay, and get out of the hotel; in substance, that thereafter, while she was on the mezzanine floor of the hotel, she was unexpectedly confronted by Mr. Baker, who was accompanied by two police officers, and without any reason was forcibly taken out of the hotel by the police officers, locked in a patrol wagon, and left there for some time; that she was taken to the police station and subsequently charged in an affidavit by an official of the hotel with disturbing the peace; that she was tried for this offense in recorder’s court, convicted, and sentenced; that this conviction and sentence were reversed on appeal; that she created no disturbance whatsoever at the hotel, and that defendant’s employees had no cause to have her removed from the premises by police officers.

On the other hand, defendant offered testimony of its officials, employees, former employees, and police officers tending to establish that the assault upon plaintiff by Baker did not take place; that upon entering the lobby of the hotel she immediately created a disturbance, became highly excited, lost control of her temper, and spoke in a loud voice; that the employees and officials of the hotel attempted to calm plaintiff but were unsuccessful, and could not persuade her to leave the building in a quiet and orderly manner; that the police officers upon their arrival observed the disturbance which at that time was taking place on the mezzanine floor, their attention being called to it by the sound of loud voices issuing therefrom and by the fact that a number of guests of the hotel were standing in the lobby looking upward to the mezzanine floor; that the officers proceeded to that floor, where they found plaintiff highly excited, talking in a loud, boisterous voice — as one of them described it, “fussing” ; that she spoke abusively to Mr. Baker in their presence; that they themselves were unable to calm plaintiff or do anything with her.

It is impossible for us to get a clear picture of what actually happened at the hotel on that afternoon. As we have already pointed out, the testimony offered by plaintiff is flatly contradicted on material points by that offered by defendant. Moreover, the testimony of the witnesses called by both parties is in hopeless conflict on many details of what took place, and some of the witnesses seemed to be so confused and vague that they actually contradicted their own testimony.

The trial judge, after hearing all the testimony, in his reasons for judgment concluded that the proof submitted in this case did not establish with reasonable certainty that there was a malicious detention of the plaintiff, and that it did not show with reasonable certainty that her detention was without color of legal authority, We fully agree with this statement.

That a plaintiff must make out his case by a preponderance of evidence and with reasonable certainty is so well established that citation of authority for this proposition of law is unnecessary, and, after a careful study of the entire record, we have reached the conclusion that plaintiff herein has failed in this essential.

We have found no manifest error in the decision of the district court on the question of fact presented by the testimony heard in this case, and we see no reason why we should disturb that decision

All the testimony adduced on the trial of the case was in connection with plaintiff’s claim for damages for false arrest and malicious prosecution, and no evidence or testimony was adduced with regard to her claim for $320.41, alleged to be due her for overtime pay, services rendered, and the price of certain articles purchased by her for defendant at its request.

Upon plaintiff’s offering to adduce testimony in support of these claims, the district judge informed the litigants, in effect, that this testimony would be heard separately. In argument before this court counsel for both litigants- conceded that these claims had never been adjudicated or passed upon by the court below, and that it was their understanding that these claims were still pending therein. The judgment as rendered in the district court, however, dismissed the entire suit and did not reserve unto plaintiff her right, if any, to litigate these claims in these proceedings. This undoubtedly was a mere oversight on the part of the judge of that court, and under these circumstances we think it necessary that the judgment be amended in this respect and the case remanded for further proceedmgs.

For the reasons assigned, the case is remanded to the district court, and the judgment appealed from is amended so as to reserve unto plaintiff her right, if any, to have adjudicated in these proceedings her claim for $320.41, alleged to be due her for overtime wages, services rendered, and the price of certain articles purchased by her for defendant at its request; plaintiff - appellant is to pay all costs incurred in thi die s court, all other costs to await the final ¡position of the case; and as thus amend-the judgment is affirmed.


author: FOURNET, Justice.

text:
    212 La. 475
    STATE v. GUIN.
    No. 38553.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      A. V. Hundley, of Alexandria, and Thomas J. Tomeny, of New Orleans, for defendant, appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., and Ben F. Thompson, Dist. Atty., and Walter M. Blunter, Asst. Dist. Atty., both of Alexandria, for appellee.
   FOURNET, Justice.

Gordon Guin, a boy 16 years old, was tried and convicted, without capital punishment, on an indictment charging him with the murder of a 17 year'old girl, Elsie Mae Arnold. He is appealing from his conviction and sentence to life imprisonment, relying for the reversal thereof on eighteen bills of exceptions reserved during the course of his trial.

The first fifteen bills are identical for all intents and purposes. They were levelled at the trial judge’s ruling permitting the district attorney to propound certain questions to the prospective jurors when examining them on their voir dire. In examining these jurors the district attorney questioned them to ascertain whether or not they could try a minor under 17 for the crime of murder the same as they would an adult. It is the contention of the defendant that this questioning was improper.

In his per curiam to Bill of Exceptions No. 1, which was made general to the next fourteen bills, the trial judge pointed out that the Juvenile Court has no jurisdiction in the trial of the accused because, although he was a juvenile, he had to be tried as an adult under the constitution since he was charged with the.crime of murder; consequently, that when the prospective jurors answered the district attorney’s questions in the negative, they showed they were biased and incapable of rendering a fair and impartial verdict.

We think, as did the trial judge, that such questions were proper to test the qualifications of the prospective jurors to serve fairly and impartially for, under the express provisions of Article 3S1 of the Code of Criminal Procedure, the juror may be challenged to show “That he is not impartial, the cause of his bias being immaterial * * (Italics ours.)

The contention of defendant’s counsel that the trial judge’s ruling in this respect deprived the accused of the benefit of the lenient attitude of such jurors toward a minor is untenable. While we think a jury may take into consideration the age of an accused, after they have reached the conclusion he has been proved guilty beyond a reasonable doubt, in determining whether he should be made to pay the extreme penalty for his crime or whether they should qualify their verdict, we do not think the mere: fact that an accused is under 17 is an element or a determining factor in the establishment of the crime of murder.

Counsel for the defendant urges that the question whether or not the juror could follow the law that requires the trial of an accused under 17 years of age in the district court as an adult when charged with murder, which question was objected to and forms the basis of Bill of Exceptions No. 11, was not only improper but also that it incorrectly stated the law.

This argument is equally without merit. The district court, and not the juvenile court, has exclusive jurisdiction in all cases involving capital crimes, even though the accused is a juvenile. Sections 35 and 52 of Article VII of the Constitution of 1921.

Bill of Exceptions No. 16 was reserved when the trial judge permitted the district attorney to ask the victim’s father the following question: “Did this boy (defendant) come to your house on Thursday night before your daughter was killed and didn’t you have to run him off and make him go home?”

In his per curiam to this bill the trial judge says: “This question was asked to show that the defendant came to the house where the deceased lived a few days before the killing and lingered there until after bedtime when he was asked by this witness, who was the father of the deceased, to leave in order that the family might retire,” and he concluded that such evidence could be considered by the jury in connection with the other facts in the case to show motive. We find no error in this ruling.

When the state sought to offer in evidence the signed statement given the officers by the accused, in which he details the manner in which the shooting occurred, his counsel objected to its introduction on the ground that it was not in the form required by law. Counsel also requested that he be allowed to cross-examine these officers. The court allowed the cross-examination but overruled the objection to the introduction of the statement, whereupon Bill of Exceptions No. 17 was reserved.

This statement is not a confession and although the accused did admit therein that the gun with which the deceased was killed was fired while in his hands, he sought to show that the shooting was accidental. Counsel has cited no law requiring that such a statement be couched in any particular language or put in any definite form and we know of none. Moreover, as pointed out by the trial judge in his per curiam, the accused admitted the statement as written was freely and voluntarily made by him without any promise or hope of a reward.

The last bill was reserved when the state sought to introduce in evidence the gun used by the defendant in the killing of the deceased, defendant taking the position that the gun was not properly identified.

According to the trial judge’s per curiam, which, in the absence of a note of evidence to the contrary, must be accepted as correct, the gun sought to be introduced in evidence was identified by the witnesses as the one pointed out by the accused as the gun with which the homicide was committed and this gun was taken by the sheriff at the time and remained in his office from then until the trial of the case. Clearly, therefore, this ruling is correct.

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


author: O'NIELL, Chief Justice.

text:
    212 La. 481
    CADDO PARISH SCHOOL BOARD v. PYLE.
    No. 38563.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Wm. F. Woods, Jr., Asst. Dist. Atty., of Shreveport, for applicant.
    Love & Bailey, of Shreveport, for respondent.
   O'NIELL, Chief Justice.

The Caddo Parish School Board sued to abate a nuisance, by enjoining one E. M. Pyle from operating a planing mill in close proximity to a school house, called Jewella Elementary School. The defendant pleaded that the petition did not disclose a cause or right of action because the school board failed to allege that the Jewella Elementary School was owned or conducted by the Parish School Board. The judge ruled that the exception was well founded but at the same time he allowed the school board to amend its petition by making the allegation that the Jewella Elementary School was being conducted by the Parish School Board. Whereupon counsel for the school board made the correction by dictating the necessary allegation to the court reporter. The judge ruled that that was a sufficient amendment of the petition; that it was not necessary that the amendment should be made in writing. The case was then heard on its merits and resulted in a judgment for the school board, enjoining the defendant from operating the planing mill in a way which interfered with the conducting of the school. The defendant appealed to the court of appeal and that court held that the amendment of the school board’s petition should have been made in writing; hence the court remanded the case to the district court for a new trial and for such other proceedings as would be in keeping with the views expressed in the opinion rendered by the court of appeal. The school board sought and obtained a writ of certiorari to review the judgment of the court of appeal. After the writ was granted the planning mill was destroyed by fire, and the defendant filed a motion in this court alleging that the mill had been, destroyed and that he had no intention of reconstructing it. Hence he prayed that the suit should be ordered dismissed for having become a moot case.

In answer to the defendant’s motion to dismiss, the school board admitted the fact that the planing mill had been destroyed by fire and that the suit had become a moot case. The school board therefore prayed that its application for a review of the judgment of the court of appeal should be dismissed.

If we should merely dismiss the school board’s application for a review of the judgment of the court of appeal, without ordering the suit itself dismissed as a moot case, the judgment of the court of appeal remanding the case to the district court for a new trial would remain in force; the effect of which would be to order a new trial of a case which has become a moot case. Out conclusion therefore is that, on the facts admitted by both parties to the litigation, the suit itself should be ordered dismissed for having become a moot case.

By Act No. 135 of 1936 the Parish School Board, being a public board, is exempt from the payment of court costs.

This case is ordered remanded to the district court for the purpose merely of being dismissed by that court, as a moot case, at the cost of the defendant E. M. Pyle.


author: McCALEB, Justice.

text:
    212 La. 485
    CITY OF NEW ORLEANS v. HOOD.
    No. 38498.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    James I. McCain, of New Orleans, for defendant-appellant.
    Henry G. McCall, City Atty., and John F. Connolly, Asst. City Atty., both of New Orleans, for appellee.
   McCALEB, Justice.

On January 16, 1947, appellant was distributing circulars extolling the virtues of the communist element of the National Maritime Union on the streets of New Orleans. He was arrested by the police and charged with violating Ordinance No. 8080, as amended by Ordinance No. 14,553 C.C. S. This ordinance makes it unlawful for any person “* * * to distribute * * * on the public streets, * * * any dodgers or hand advertisements, whether of a theatrical nature or otherwise * *

After a trial in the First Recorder’s Court, appellant was found guilty and sentenced to pay a fine of $15 or serve fifteen days in jail. He has appealed to this court from the conviction and sentence and assails the legality of the fine imposed below on the ground that the ordinance, when properly construed, does not and could not apply to or include within its terms the act which formed the basis of the complaint made against him. Alternatively, he maintains that, if the ordinance should be interpreted as applying to the dissemination of communist propaganda, then it is unconstitutional being violative of the First and Fourteenth Amendments of the Constitution of the United States prohibiting’ the abridgement by Congress or the States of the freedom of speech or of the press and the third section of Article I of the Constitution of this State declaring that no law shall ever be passed to curtail or restrain the liberty of speech or of the press.

A reading of the ordinance makes it plain, we think, that it is without application to the distribution of political circulars. The ordinance denounces the distribution in and on the public streets of “dodgers or hand advertisements whether of a theatrical nature or otherwise.” We construe the language used as cognate only to the distribution of circulars of a commercial nature. To hold that it is of such broad import that it proscribes the dissemination of political literature or material advocating particular ideologies would render the ordinance unconstitutional as a restraint upon the guarantees of freedom of speech or the press. And it matters not that the doctrines circulated are adverse to democratic principles of free speech and a free press and that their purveyor is, paradoxically, relying upon those constitutional guarantees to shield him from prosecution and punishment.

The City Attorney proclaims that the conviction should stand because the ordinance “is simply a police regulation enacted to prevent the unreasonable cluttering of the streets with trash and defacements” and he argues that whether appellant violated the ordinance is a question of fact which cannot be considered by this court.

The contention is not tenable. Appellant is not charged under an ordinance prohibiting the cluttering of the streets with trash; he is charged under an ordinance forbidding the distribution of hand advertisements, etc. The question presented for determination is not one of fact (the facts are not disputed) but one of law — that is, whether the act for which appellant was convicted is a violation of the ordinance and, if it is, whether the ordinance is constitutional.

The conviction and sentence appealed from are annulled and the charge against appellant is dismissed

       By Section 10 of Article VII of the Constitution, the Supreme Court is vested with appellate jurisdiction in all cases “where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, * * * shall he in contest, whatever may be the amount thereof, * *

       Even if we were in doubt as to the intention of the lawmaker, it would be our duty to adopt an interpretation upholding the constitutionality of the ordinance. See Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, 67 A.L.R. 1183; Sample v. Whittaker, 174 La. 245, 140 So. 36; State v. Wilson & Co., 179 La. 648, 154 So. 636; City of Shreveport v. Bayse, 166 La. 689, 117 So. 775; State v. Malory, 168 La. 742, 123 So. 310 and McIntyre v. Sovereign Camp W. O. W., 172 La. 810, 135 So. 365.

       Lovell v. Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L.Ed. 949; Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 and State v. Sanford, 203 La. 961, 14 So.2d 778.

       Such an ordinance would be void if applied to appellant. Schneider v. Irvington, supra.


author: McBRIDE, Justice ad hoc.

text:
    212 La. 490
    SAUCIER v. E. SONDHEIMER CO.
    No. 38356.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Dale, Richardson & Dale, of Vidalia, for plaintiff-appellant.
    A. J. Roy and Couvillon & Couvillon, of Marksville, for defendant and appellee.
   McBRIDE, Justice ad hoc.

Moore D. Saucier, plaintiff, instituted this action under the provisions of Act No. 38 of 1908, seeking to have himself declared the owner of four tracts of land situated in Avoyelles Parish. The suit is directed against E. Sondheimer Company which claims the ownership.

Upon the trial in the court below, counsel for both parties entered into a stipulation designating the four separate portions of land involved in this litigation as tracts Nos. 1, 2, 3 and 4, and as to tracts Nos. 1 and 2 plaintiff’s counsel entered a non-suit, which left for the court’s consideration titles to the tracts designated as Nos. 3 and 4. They are described as follows:

Tract No. 3 — E½ of Section 24, Township 2 South, Range 5 East, containing 320 acres.

Tract No. 4 — S% of Section 5, Township 2 South, Range 6 East, containing 320 acres.

The petition alleges that neither the plaintiff nor the defendant is in actual possession of the disputed property. Alternatively it alleges that, if it be found that the defendant has had possession of all or any portion of the land for more than one year, the suit should be maintained as a petitory action relative to the part of the property which was so possessed.

Both parties claim ownership of the property and in their respective pleadings have set out their chains of title. The defendant also pleaded the prescription ac-quirendi causa of ten and thirty years.

. By stipulation entered in the record, the parties agreed that commencing on March 20, 1907, and down to the present time, E. Sondheimer Company and its authors in title have enjoyed physical possession of the two tracts now involved in the case, which possession has been continuous, uninterrupted, public and peaceful. Thereby this suit became one in the nature of a petitory action.

In the court below there was judgment “that the plaintiff, Moore D. Saucier take nothing by his action; that the plea of prescription filed by defendant, E. Sondheimer Company be maintained, and plaintiff’s demands be rejected and his suit dismissed at his costs.” The judgment further recognized defendant’s title to tracts Nos. 3 and 4, “and that it be quieted in its possession thereof.”

Plaintiff has taken this appeal from the judgment.

Tract No. 3.

As to this property, plaintiff’s chain of title is :

State of Louisiana to J. H. Bemis, patent, December 13, 1888; J. H. Bemis to W. D. Chew, deed, May 19, 1892; W. D. Chew to State of Louisiana, tax adjudication. July 2, 1894; for unpaid taxes of 1893; State of Louisiana to W. D. Chew, redemption deed, August 21, 1941; J. H. Chew (sole and only heir of W. D. Chew, deceased) to plaintiff, deed, December 2, 1941.

Defendant sets forth its chain as follows:

Mississippi Navigation Company (by tax collector of Avoyelles Parish) to A. F. Bon-nette, tax deed, May 21, 1881; A. F. Bon-nette to C. B. Fischer, deed without warranty, June 7, 1895; C. B. Fischer to Fischer Land and Improvement Company, deed without warranty, January 18, 1896; Fischer Land and Improvement Company to Avoyelles Land and Improvement Company, deed, November 29, 1901; Avoyelles Land and Improvement Company to W. R. Taylor, deed, March 16, 1907; W. R. Taylor to Max Sondheimer, deed, March 16, 1907; Max Sondheimer to defendant, deed, January 31, 1924.

It appears that, from the time of the patent by the State of Louisiana to J. H. Be-mis in 1888 down to the plaintiff’s acquisition of the property in 1941, his chain is unbroken and complete. But defendant’s chain is incomplete and lacks an important link. It does not show from whom the Mississippi Navigation Company acquired the property when it was sold at the tax sale in 1881 to A. F. Bonnette.

The state did not part with the property until 1888, when the patent issued to J. H. Bemis, one of plaintiff's authors. This patent was issued several years after the purported tax sale made to Bonnette.

The defendant contends that regardless of that fact it has acquired a perfect title by one of the prescriptions which it has specially pleaded.

According to the admission made by all parties, the defendant and its authors in title had corporeal and continuous possession of the property to the date of the trial. However, during most of that period (about 34 years) title to the property vested in the State of Louisiana by virtue of a tax sale for unpaid taxes for the year 1893 on an assessment to W. D. Chew. This tax sale was made on July 2, 1894, and it was not redeemed from the state until August 21, 1941, in the name of W. D. Chew, the tax debtor. The familiar rule is that prescription does not run against the state, unless the law provides otherwise. “Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law.” Louisiana Constitution of 1921, Article 19, section 16.

In 1941 this court decided the case of Ward et al. v. South Coast Corporation et al., 198 La. 433, 3 So.2d 689, 693. One of the defendants pleaded the acquisitive prescription of ten and thirty years, and contended that it and its authors in title had possessed the land since the year 1892. The court held that the title to the property had been in the state from 1903 to 1938 and that the pleas of prescription were without merit, saying:

“As stated, defendant’s title to this property is based on prescription acquirendi causa, but its plea is unavailing, for the reason that the property was forfeited to tlie state in 1903, and the continuity of defendant’s possession was interrupted by that forfeiture. That forfeiture took place in 1903. In so far as defendant’s claim under the plea of 30 years’ prescription is concerned, its possession was interrupted long before it could have acquired the property under that plea. And, in so far as its plea of 10 years’ prescription is concerned, the fact is that, at the time it acquired the property under specific description in 1927, the forfeiture to the state in the name of Alpha was in effect and remained so until 1938, when Alpha redeemed it. Prescription does not run against the state.”

The defendant in the instant case, however, contends that it is entitled to the benefits of Act No. 310 of 1936, which sustains its claim to a valid prescriptive title. This act appears never to have been heretofore judicially interpreted, and the pertinent portion of it insofar as it may relate to this case is as follows:

“ * * * That in all cases where immovable property has been, or may be, adjudicated or forfeited to the State of Louisiana for non-payment of taxes and has been or is subsequently redeemed by a purchaser in good faith and by just title, or by the heirs or assigns of such purchaser, prescription shall not be interrupted or suspended during the period that title to such immovable property is vested in the State of Louisiana, * * * and in all cases where immovable property has been adjudicated to the State of Louisiana for non-payment of taxes, such property shall only be redeemed upon paying the amounts now fixed and provided by law.”

Relying upon the act, the defendant points to the actual possession of the property by it and its authors, commencing with W. R. Taylor, who had acquired the property in 1907 from the Avoyelles Land and Improvement Company, and reminds us that such possession, although commenced at the time the state owned the property, has continued on down to the present date. Defendant contends that it and all of its authors are purchasers in good faith and by just title, and thát it (the defendant), having redeemed the tax sale from the state in 1941 ^ is entitled to enjoy the benefits provided in the act, i. e., “ * * * prescription shall not be interrupted or suspended during the period that title to such immovable property is vested in the State of Louisiana, * * *”

It is conceded that the defendant redeemed the tax sale from the state in 1941 and paid the full price of redemption, although the certificate of redemption was issued by the state in the name of W. D. Chew, the original tax debtor. Act No. 175 of 1934, which amends Act No. 41 of 1912, provides that any person interested personally in property which has been adjudicated to the state for unpaid taxes may redeem it and that all certificates of redemption issued under the provisions of the act shall run in the name of the tax debtor.

The plaintiff contends that the benefits of Act No. 310 of 1936 can enure only to the person who had lost the property at the tax sale. We cannot agree with that construction placed upon the act by counsel. As we appreciate it, Act No. 310 of 1936 was enacted for the benefit and in the interest of a person occupying a position similar to that of the defendant. Thé property must be redeemed by a purchaser in good faith and by just title, or by his heirs or assigns. The term “just title” is defined by Article 3484, Revised Civil Code, as follows:

“By the term pist title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.”

A possessor in good faith, according to Article 3451, Revised' Civil Code, “ * * * is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact; as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.” And, in matters pertaining to prescription, good faith is always presumed. Revised Civil Code, Article 3481.

E. Sondheimer Company is a purchaser in good faith and by just title, and redeemed the property from the tax sale. We construe the act to mean that when redemption is effected by a party such as the defendant, prescription shall not be interrupted or suspended during the state’s proprietorship of the property. We conclude that defendant is entitled to invoke the benefit of the act and our opinion is that its claim of ownership acquirendi causa is well founded.

Tract No. 4.

Both plaintiff and defendant claim that their respective titles to tract No. 4 flow from the State of Louisiana by virtue of a patent issued in 1862 to J. A. D. Tureaud, and from Tureaud to the State of Louisiana in 1885 on a tax adjudication for unpaid taxes for the years 1881 through 1884. From then on plaintiff’s chain is: J. A. D. Tureaud (by tax collector of Avoyelles Parish) to J. H. Bemis, tax deed, March 2, 1889; J. H. Bemis to W. D. Chew, deed, May 19, 1892; W. D. Chew to State of Louisiana, tax adjudication, July 2, 1894 (for unpaid taxes of 1893) ; State of Louisiana to W. D. Chew, redemption deed, August 21, 1941; J. H. Chew (sole and only heir of W. D. Chew, deceased) to plaintiff, deed, December 2, 1941. Defendant’s chain is: State of Louisiana to Red River, Atchafalaya and Bayou Boeuf Levee District, deed, May 18, 1894 (also supplementary or confirmatory deed between the same parties of date September 16, 1911); Levee District to W. R. Taylor, deed, May 22, 1907; W. R. Taylor to Max Sondheim-er, deed, June 25, 1907; Max Sondheimer to defendant, deed, January 31, 1924.

Counsel for defendant calls our attention to the case of State of Louisiana v. Cannon, Sheriff et al., 44 La.Ann. 734, 11 So. 86, which was decided in 1892. In that case, the tax sale of March 2, 1899, made by the tax collector of Avoyelles Parish to J. PI. Bemis on an assessment to J. A. D. Tureaud, was attacked and was held to be null and void. Plaintiffs counsel contend, however, that the judgment therein rendered by this court is not effective here because it described no property, was never recorded in the conveyance records of Avoyelles Parish and there is no evidence to show that the conditions stipulated in the judgment were ever complied with. Even if we should assume that the judgment is ineffectual as between the parties to the present suit, plaintiff could derive no solace therefrom. Bemis, who was the purchaser under the assailed tax deed, in 1892 sold the property to Chew, and on July 2, 1894, the property, under an assessment to the latter, was adjudicated to the State for the unpaid taxes of 1893. The state, on May 18, 1894, sold the land to the Red River, Atchafalaya and Bayou Boeuf Levee District, which is one of defendant’s authors in title, and this sale was later confirmed in a supplemental deed bearing the date September 16, 1911. From the Levee District on down to the defendant, the chain of title is unbroken. It is obvious, however, that when the sale was made by the state to the Levee District the tax adjudication under the assessment to Chew had not occurred. But whatever difficulty there may have been was corrected by the supplemental deed of 1911, at which time Chew had not redeemed'the property. •

Plaintiff’s counsel objected to the offer in evidence of the deeds from the state to the Levee District, making the contention that the property under consideration was incorrectly described therein. While reference is made to this objection in counsel’s brief, it is not seriously urged and the action of the trial court in overruling it was proper. The deeds in question do describe the property as being situated in Township 2 North, Range 6 East, whereas the correct location is in Township 2 South, Range 6 East. But this inaccuracy is of little importance, as it was overcome by a further recitation in the deeds that “said lands having been adjudicated to the State for unpaid taxes, costs, etc., of the years 1881, 1882, 1883 and 1884 in the name of J. A. D. Tureaud on October 1, 1885, and sale recorded on June 23, 1886, and said property remains unredeemed up to the date of this instrument of conveyance.” The instrument to which reference was made contained the correct description of the land. See Lee v. Long, 166 La. 1084, 118 So. 320, and Tennent v. Caffery, 170 La. 680, 129 So. 128.

We discern no defect in the chain of title asserted by defendant relating to tract No. 4, and it is our conclusion that its ownership thereof should be recognized.

For the reasons assigned the judgment of the district court is affirmed at the cost of plaintiff.


author: HAMITER, Justice.

text:
    212 La. 502
    GULF REFINING CO. v. GOODE et al.
    No. 37868.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Foster, Hall & Smith, of Shreveport, and Cline, Thompson, Lawes & Cavanaugh, of Lake Charles, for appellants.
    Moss & Graham, of Lake Charles, for John B. Ferguson, Jr., defendant and ap-pellee.
   HAMITER, Justice.

In this concursus proceeding, instituted by the Gulf Refining Company for the purpose of having judicially determined the ownership of the proceeds of 1/64 of the oil produced under its lease on a certain tract of land in Beauregard Parish, the landowner, J. B. Ferguson, Jr., is disputing the claims of numerous other persons whose rights flow from a mineral royalty reservation made by a Mrs. Edna Gibson, their author in title.

The trial court, in sustaining a plea of ten years’ prescription liberandi causa directed by the landowner against that reservation, decreed Ferguson to be entitled to the proceeds; and from the judgment those opposing him appealed.

On March 28, 1933, Mrs. Edna Gibson sold to A. J. Heflin and David Cole an undivided 5/6 interest in and to the land. The deed evidencing the sale contained the following reservation: “Said Mrs. Edna Gibson retains l/64th royalty in all oil, gas and mineral rights in the above described lands.” Some four months later Mrs. Gibson conveyed to Heflin and Cole the remaining 1/6 interest in the land, the act of sale making no mention of any mineral or royalty rights. By mesne conveyances from Heflin and Cole, Ferguson, in the year 1940, became the owner of the entire tract.

On August 14, 1933, Mrs. Gibson joined Heflin and Cole in granting to H. B. Cor-bett an oil, gas and mineral lease affecting the land, it being on the usual form and for the primary term of ten years. Under this lease, which it later acquired, the Gulf Refining Company obtained the oil production involved in this proceeding.

On August 31, 1934, a few days subsequent to the anniversary date of the lease, Mrs. Gibson gave to Cole and Heflin an instrument (it was signed only by her) in which she first made reference to the granting of the mentioned lease and then declared :

“Whereas, theretofore, by warranty deed dated March 28th, 1933 and recorded in Vol. 48, page 424, Conveyance Records of Beauregard Parish, Louisiana, the said Mrs. Edna Gibson had conveyed unto David Cole and Andrew J. Heflin her undivided five-sixths (5/6ths) interest in and to the North Half of the Southwest Quarter and the Southwest Quarter of the Southwest Quarter (N½ of SW½ and SW(4 of SWi/j) of Section 25, Township 3 South, Range 11 West, and Northeast Quarter of Southeast Quarter (NE*4 of SEJ4) of Section 8, Township 4 South, Range 9 West, retaining only a one-sixty-fourth (l/64th) royalty right in the oil, gas and mineral rights in the said land; and
“Whereas, the said Mrs. Edna Gibson ' now desires to waive and renounce her right to receive part of the money rentals that may be paid by the Gulf Refining Company of Louisiana or its assigns to extend the primary term of the said lease. ■
“Now, therefore, I, Mrs. Edna Gibson, born Lacey, widow of Ira G. Gibson, of the Parish of Allen, State of Louisiana, in consideration of the premises and One and no/100 ($1.00) Dollar to me in hand paid by David Cole and Andrew J. Heflin, do hereby release, relinquish and quitclaim unto the said David Cole and Andrew J. Hef-lin, their heirs and assigns any and all interest that I may have, or that I may be entitled to, in the rental payments that may hereafter be 'made by the Gulf Refining Company of Louisiana, or its assigns, to extend the primary term of the above described lease as therein provided.
“All royalty payments on oil, gas and any other minerals that .may be produced under the terms of said lease shall be paid to the said Mrs. Edna Gibson, David Cole and Andrew J. Heflin as their interests may appear of record.”

On January 28, 1939, Mrs. Gibson sold her reserved 1/64 mineral royalty to one Sam S. Hudson, and from him thereafter, by mesne conveyances, the appellants herein acquired that interest.

Under its lease the Gulf Refining Company commenced drilling operations on May 4, 1943, and it completed the well as a pro- ’ ducer of oil in paying quantities on August 19, 1943.

In opposition to appellee’s plea of prescription of ten years, appellants contend first that the reservation by Mrs. Gibson in the sale to Heflin and Colé vested her with something in the nature of mineral rights, not merely a royalty interest; that as the owner thereof she was a necessary párty to the lease granted to Corbett and later assigned to the Gulf Refining Company; and that when she executed it jointly with Cole and Heflin her rights were extended for the period of the existence of the lease which is still in full force and effect by reason 'of the production obtained thereunder. The argument of their counsel is that “when Mrs. Edna Gibson made a reservation of l/64th royalty right in the oil, gas and mineral rights and not just in the oil and gas produced and saved from the property, she thereby reserved a right to participate in any profit or income from such rights whether such profit came from lease bonus, rental or the actual production of oil or gas.”

Our interpretation of the reservation is that it vested Mrs. Gibson with only the usual mineral royalty. If this had not been intended the word “royalty” would have been omitted from the instrument and instead the term “mineral interest” or “mineral rights” used. Moreover, the interest reserved here is practically the same as that reserved in Vincent et al. v. Bullock et al., 192 La. 1, 187 So. 35, 37, described therein as-/a one-sixteenth (l/16th) royalty of all the oil, gas and other minerals produced and saved from said premises * * *,” which we held to be only a mineral royalty reservation. And, furthermore, Mrs. ■ Gibson herself construed the reservation as we do, for in the instrument given by her to Cole and Heflin on August 31, 1934, she declared that thereunder she had retained “only a l/64th royalty right in the oil, gas and mineral rights in the said land.” From which it follows that Mrs. Gibson, as well as those holding under her, had only the privilege of sharing in the minerals if and when produced. She did not possess the right of ingress or egress to the property for the purpose of exploration or the right of participation in the bonus or delay rentals to be paid for any lease on the land, and she was not a necessary party to the lease contract under which the Gulf Refining Company obtained production.

It is a fact, of course, that she did join Cole and Heflin in the execution of that lease. Why she became a party to it is not disclosed by.the record; perhaps her signature was requested and obtained by the lessee solely as a precautionary measure. However, her signing, as will hereinafter be shown, did not serve to give her rights under the lease additional to those which she would have enjoyed otherwise.

Neither did her execution of the instrument of August 31, 1934, which is the basis of appellants’ second contention, furnish any new rights. Respecting this contention, counsel state:

“Appellants submit that the execution of this instrument on August 31, 1934, by Mrs. Gibson, for a consideration paid by Cole and Heflin, had the effect of redefining the interest of Mrs. Gibson and changing it from a general royalty right to a royalty right under a specific lease, and that the rights thereafter would consist of the right to be paid the l/64th royalty under the terms of the specific lease previously entered into by and between Mrs. Gibson, Cole and Heflin of date August 14, 1933, and that a well having been commenced on said property and actually completed as a producer during the term of the lease, and the lease still being in full force and effect, that Mrs. Gibson and her successors, appellants, are entitled to be paid the royalty under this existing lease.”

The instrument of August 31, 1934, was not an agreement of compromise, or other contract recognizing Mrs. Gibson as the owner of, or vesting in her, specific rights in and to a particular lease. To the contrary, in our opinion, it purposed only to restrict her to the general royalty interest reserved when she sold the land. It amounted to nothing more than a solemn declaration by Mrs. Gibson that by her signing the lease she acquired no rights in addition to those originally reserved; and the reason for her giving it, obviously, was to prevent a future interpretation of the lease such as is now contended for by appellants. Supporting this conclusion is the significant fact that the instrument was signed by Mrs. Gibson alone. Also, as shown above, therein she merely made reference to the lease and to her original reservation (declaring that she had retained only a 1/64 royalty interest) ; expressed a desire to waive and renounce her right to receive rentals under the lease; and then, in consideration of the premises and of $1 paid to her, released, relinquished and quitclaimed such right. Of course, she further declared that the royalty payments under the terms of the lease should be paid to her, Cole and Heflin “as their interests may appear of record”; but this could only mean that she would participate in production on the basis of her general royalty reservation.

Clearly not applicable here are the several cases cited by appellants’ counsel that deal with the effect of signing a joint lease, principally among which is Mulhern v. Hayne et al., 171 La. 1003, 132 So. 659. The question in each pertains to the landowner’s joining with the holder of mineral rights (a servitude under our jurisprudence), not with the owner of a royalty interest.

Nor does our decision in Brown et al. v. Sugar Creek Syndicate et al., 195 La. 865, 197 So. 583, lend support to counsel’s position that the instrument signed by Mrs. Gibson on August 31, 1934, gave her specific rights under the lease. True, in that case royalty rights were extended for the duration of the lease when the owners thereof joined with the landowner and with the holders of mineral rights in the execution of a unitization agreement. But the basis of the agreement was a compromise arrangement among all parties, entered into because of the existence of conflicting claims, under which many of them were compelled to surrender certain valuable rights. There is no element of compromise in the instant case. By the declaration relied on, Mrs. Gibson merely made clear her intention with reference to her joining in the lease to Corbett, it being that she acquired no rights additional to those originally reserved.

The judgment is affirmed.


author: O’NIELL, Chief Justice.

text:
    212 La. 510
    RINAUDO v. TREADWELL.
    No. 36131.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Le Roy Smallenberger, of Shreveport, for appellant.
    Cook, Clark & Egan, of Shreveport, for appellee.
   O’NIELL, Chief Justice.

This is a suit to recover from a building contractor the cost of remedying certain defects in several buildings constructed for the plaintiff. The contract was made on a cost-plus basis, allowing the contractor for his services 10% on the cost of the labor and materials' used in the buildings. The contract was a verbal one; hence there is some dispute about its terms or details.

There are six distinct claims for remedies and repairs which the plaintiff alleges he was obliged to make after the buildings were turned over to him. The buildings consisted of a number of tourist cabins and garages and a cocktail lounge, to be’ built on plaintiff’s land near Shreveport. After hearing the evidence the district judge rejected the plaintiff’s demand. He is appealing from the decision.

His first complaint is that the outside doors of the cabins buckled; which means that the veneering in several instances buckled away from the door itself, as the result of rain water getting in behind the veneer and softening the glue between the veneer and the wood surface. The evidence is conflicting as to whether veneered doors, of the type which were used in this instance, were suitable for outside doors. The defendant admitted that the doors were not waterproof, but he contended that they were suited for outside doors and were used instead of waterproof doors as a matter of economy. Our conclusion from the conflicting testimony in the case is that the doors were not suited for the purpose of outside doors and that the defendant therefore breached the obligation of his contract to use or recommend to the subcontractors suitable materials. Our conclusion as to this item therefore is that the defendant is liable for the cost of replacement of the doors. The cost of installing suitable doors will be greater, of course, than the original cost of the doors which were not suitable. The defendant should be held liable only for the original cost of the doors, because if the suitable doors had been installed they would have cost the plaintiff more than the doors which were installed. The evidence shows that there are 31 doors on which the veneering has buckled, and which will have to be replaced with suitable doors. The cost of the 31 doors was $11 each plus the 10% commission, or $12.10 per door, making a total of $375.10. But, inasmuch as the doors which have buckled were not altogether worthless, but were of some value to the plaintiff, we have concluded that an allowance of $250 for this item will meet the ends of justice.

The second claim of the plaintiff is that a well which was drilled to supply water to the cabins did not produce potable water. The original plan or intention of the parties was to secure water from the Shreveport waterworks. But it developed that that would be too expensive. Hence it was decided that the contractor should have a subcontractor to drill a well. It was known by both parties to the contract that water from a well in that vicinity was apt to be brackish and unsatisfactory. The contractor obtained bids from two subcontractors, and after he and the plaintiff had discussed the two bids they decided to accept the bid made by one Forsong. His bid did not carry a guarantee as to the quality of the water to be obtained. The other bid did carry such a guarantee, but according to the evidence amounted to about four times as much as Forsong’s bid. The well which he drilled produced water which was brackish, and unfit for drinking purposes. The plaintiff, therefore, subsequently had two other wells drilled, the second one of which produced satisfactory water. The plaintiff did not at any time attempt to have the original well re-worked, notwithstanding there is evidence to the effect that it might have become satisfactory if it had been re-worked. Inasmuch as the plaintiff was a party to the acceptance of Forsong’s bid, knowing that it carried no guarantee of producing suitable water, and knowing that the result was apt to be unsatisfactory, our conclusion is that he is not entitled to be compensated for the loss or cost resulting from the acceptance of the Forsong bid. There is some evidence to the effect that the well was drilled in an unsatisfactory way and with unsuitable pipe, but we do not consider the evidence sufficient to establish those facts. The plaintiff’s claim for the drilling of the well therefore was properly rejected by the district court.

The plaintiff’s third claim is for the cost of painting a water tank which was discolored by impure water from the original well. Since we have concluded that the defendant is not liable for the failure of the well to produce pure water it follows that he is not liable for the discoloration of the tank caused by the overflow of the water.

The plaintiff’s fourth claim is for the cost of repairing the floor of the cocktail lounge which in consequence of dampness became buckled in several places. The floor was constructed by laying first a four inch concrete slab, then laying on the slab a membrane of waterproof paper, and on top of that applying a coat of pitch. Wooden strips or screeds were fastened to the concrete, and the floor was laid on the screeds. The plaintiff contends that this method of construction was faulty in that two coats of pitch should have been applied to the concrete slab, the two coats of pitch being separated by a membrane of waterproof material, and that the applying of only one coat of pitch, instead of two coats separated by the membrane, is what caused the buckling of the floors, by allowing moisture from the ground to penetrate into the wooden or upper layer of the floor and causing it to expand. The defendant’s contention is that the buckling of the floor was caused by negligence on the part of the plaintiff, in allowing a drain behind the bar in the cocktail lounge to become stopped up, causing water that was spilled on the floor behind the bar to spread over the floor beyond the bar. Two expert witnesses for the plaintiff and one for the defendant testified that the proper way to construct a waterproof floor was to apply two coats instead of one coat of pitch to the concrete slab, with a waterproof membrane between the two coats of pitch. The evidence convinces us that the buckling of the floor was caused by defective construction in applying only one coat of pitch on the concrete slab, instead of two coats separated by a waterproof membrane, and that the defendant therefore is liable for the cost of replacing the floor. One witness for the plaintiff estimated the cost at $500 and another estimated it at $530. Inasmuch as the wood in the floor may be salvaged to some extent, and considering that the floor served its purpose for a considerable time, our conclusion is that the estimated cost should be reduced, and that an allowance of $300 to the plaintiff would do justice.

The fifth item in the plaintiff’s claim is for the cost of repainting parts of the interior walls beneath the windows in the cabins. The plaintiff contends that the window sills were not properly waterproofed or protected by metal flashing against the entering of rain water, and that that is what caused the paint below the windows to flake. The defendant insists that the windows were properly waterproofed, and that the flaking of the paint below them was caused by the condensing of moisture on the inside of the windows during cold weather and the running down of the condensed water onto the wall below the windows. He contends also that the plaintiff was guilty of negligence in that he allowed the interior of the cabins to be heated without being properly ventilated, thus causing an excess of condensation of moisture on the windows. We are relieved of the necessity for deciding whose fault caused the paint to flake, because the plaintiff has failed to prove the amount of his loss, if any he suffered, by the flaking of the paint below the windows of the cabins. The reason for this failure of proof is, first, that the number of cabins in which the paint flaked below the windows is not shown, and second, the evidence shows that the interior walls, in many instances, were soiled and needed repainting, regardless of the flaking of the paint. There is evidence to the effect that casein paint was used on the interior walls of the cabins, and that because of the use of that kind of paint the places where the paint flaked could have been repainted without requiring the repainting of other parts of the walls to preserve their appearance. There is no proof in the record as to how much of the cost of repainting the interior walls of the cabins was attributable to the flaking of the paint below the windows.

The sixth and last item in the plaintiff’s claim is for damage caused by cracks in the stucco on the exterior walls of the cabins. The plaintiff contends that the cracks were caused by improper application of the metal wire backing to which the stucco was applied. There is considerable evidence that this wire backing was not applied in every instance according to the manufacturers’ specifications. But there is no proof that that is what caused the cracking of the stucco, except the opinion of two expert witnesses for the plaintiff. Against this there is a preponderance of evidence that the appearance of seasonal hairline cracks in stucco buildings, within a year after construction, is not uncommon. The defendant contends that the cracks which appeared in this instance were only hairline cracks and should have been painted over before they became too noticeable. The testimony shows that the largest of the cracks in the outer walls of the buildings in this instance were not wider than “a small knife blade”,— from which we infer that the cracks were so small that they could have been filled permanently by being painted over soon after they made their appearance. There is a preponderance of evidence to the effect that the plaintiff was warned at the time when he accepted the buildings that the seasonal cracks were apt to appear and that they would have to be painted over. The defendant testified that he did not undertake to do this painting over of the seasonal cracks which might appear; and his testimony is not contradicted except by the denial of the plaintiff that he was ever warned that such cracks would appear. Our conclusion is that the claim for the cracks in the stucco was properly rejected by the district court.

The defendant seeks to escape liability on the ground that he was not an independent contractor but was only an agent of the plaintiff. We consider it a matter of no importance whether defendant’s relation to the plaintiff should be termed an independent contractor or an agent for the plaintiff. The defendant admits that at the time of entering into the contract he held himself out to the plaintiff as a competent builder and contractor and that he undertook to supervise for the plaintiff the construction of buildings suitable for the purpose for which they were intended. He testified that he agreed to employ the best of mechanics available and to recommend suitable material for the construction. From these admissions we conclude that the defendant is liable for the tw.o defects, namely, the buckling of the outside doors of the cabins and the buckling of the floor of the cocktail lounge.

The sum of the two items which we have concluded should have been allowed, $250 for the buckling of the outside doors and $300 for the buckling of the floor of .the cocktail lounge, amounts to $550, which the plaintiff is entitled to recover.

The judgment appealed from is annulled and it is now ordered, adjudged and decreed that the plaintiff shall recover of and from the defendant $550, with legal interest from the date of judicial demand, and the costs of this suit.


author: PER CURIAM.

text:
    Isaac WASHINGTON, Petitioner, v. Jack SANDSTROM, Director of Corrections and Rehabilitations, Dade County Jail, Respondent.
    No. 46424.
    Supreme Court of Florida.
    Dec. 26, 1974.
    Melvyn Kessler, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for respondent.
   ON REHEARING GRANTED

PER CURIAM.

By petition for writ of habeas corpus, Petitioner seeks reinstatement of his super-sedeas bond pending review by this Court of his conviction of conspiracy to commit robbery, which was affirmed by the District Court of Appeal, Third District, and reported at 294 So.2d 407. We issued the writ and Respondent filed a return. The only apparently meritorious ground for relief alleged by petitioner was the trial court’s failure to state the reasons for revocation of bond, subsequently corrected by order of the trial court stating as grounds therefor Petitioner’s arrest for possession and sale of drugs and Petitioner’s disregard for the law and the well-being of the community. Finding no ground for relief, we discharged the writ.

By petition for rehearing, Petitioner has shown that the pending state criminal charges on which the trial court relied as the basis for revocation of bond have since been dismissed. From our review of the record before us, it appears that at the time the trial court revoked Petitioner’s bond the charges pending against him had not yet been dismissed. Since we now find the basis for revocation of bond as stated by the trial court no longer exists, rehearing is granted, the writ is granted and the cause is remanded to the trial court for further consideration of the relief sought by Petitioner.

It is so ordered.

ADKINS, C. J., and ERVIN, McCAIN and OVERTON, JJ., concur.

ROBERTS, J., dissents.