text:
    STATE ex rel. CAMPAGNA v. CITY OF BATON ROUGE.
    No. 2924.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    . Sam, J. D’Amico, of Baton Rouge, for appellant.
    Roland C. Kizer, City Atty., of Baton .Rouge, for appellee.
   OTT, Judge.

Relator alleges in his petition that on October 31, 1946, he filed an application in proper form with the Commission Council of the City of Baton Rouge for a,permit to operate a retail package liquor store in said City for the year 1947; that on November 14th following, he was informed by a letter addressed to his attorney that the Commission Council had rejected his application; that under the law the City was required to give written reasons for its refusal to grant said permit to the Collector of Revenue within 35 days as to the reasons for refusing the permit, and that no such reasons were furnished the Collector of Revenue within said period. He further alleges that he deposited with the City of Baton Rouge the required fee for the issuance of the permit under an ordinance of the City; that he has applied to the Collector of Revenue for a renewal of his license to conduct said business for the year 1947.

Relator prays for a writ of mandamus directed to the Commission Council commanding it to issue the permit to him to conduct the operation of a package liquor store at the place designated in his petition.

The City filed an exception of no cause or right of action which was sustained and relator’s suit was dismissed. From this judgment, he has appealed.

The trial judge based his ruling on the ground that it was not the ministerial duty of the Commission Council to issue the liquor permit, and on the further ground that relator had not exhausted his other remedies under the law before attempting to mandamus the city authorities.

Subsection (c) of Section 5 of Act 384 of 1946 (amending Section 5 of Act 15 of 1934) provides that applications for both state and local retailer permits to sell intoxicating liquors shall be made in writing, accompanied by an affidavit of the applicant that he has certain qualifications, and in this connection several qualifications and requirements are listed in the law, one of them being a requirement for publication by the applicant of a notice in a local paper of his intention to apply for such a permit, designating the place where the business is to be conducted, if the applicant is not asking for the renewal of a permit. Subsection (d) of this same section provides that the applicant shall mail or deliver his application for the permit to the State Collector and the local authority within 24 hours of each other, and if he fails to do so, his application may be denied by either authority. A permit cannot be issued until the expiration of 35 days from the receipt of the application. Subsection (g) of said section 5 gives to the local authorities the power and authority to withhold the issuance of permits in the manner and under the terms and conditions of the act. And subsection (i) paragraph (1)' defines the manner in which local authorities shall determine whether or not a permit shall be issued, and states that such local authorities shall investigate all applications and shall withhold the issuance of permits if they have good reason to believe the applicant does not qualify under the provisions of the act. The decision to withhold the issuance of a permit shall be made within 35 days of its filing, and such local authorities shall within said time notify the Collector of Revenue and give reasons for withholding the permit. The Collector of Revenue is required to give the applicant notice within five days of the withholding of the permit with reasons therefor.

It will be seen from the above provisions of the law that the authorities have the right to determine from their investigation whether or not the applicant is qualified and has complied with the law. This investigation and decision involves some discretion and interpretation as to the finding of the facts and the application of the law to the particular situation presented. This right and power of investigation and decision on the part of the local authorities partakes somewhat of a quasi-judicial function.

In the present case, the Commission Council exercised its power and right and refused to issue the permit, presumably after proper investigation and consideration. It rendered its decision within the 35 day period from the time the application was filed. In the answer filed by the City on the same day the exception was filed it is denied that the application was in proper form in that the application did not show that it had been published as required by law, and did not contain other information required by law. No notice of the refusal to grant the permit was given to the Collector of Revenue before this suit was filed.

According to his petition, relator was duly informed of the refusal of the Commission Council to grant him a permit within 35 days from the filing of his application. He has suffered no injury because of the failure of the Commission Council to notify the Collector of Revenue. So far as the record shows, he did not demand of the Commission Council the reasons for its refusal to grant the permit.

Paragraph (1) of Subsection (i) of said Section 5, provides the remedy for an applicant who has been refused a permit by the local authorities by giving him 10 days in which to appeal to the District Court. The paragraph referred to concludes with the following sentence: “If an applicant thus notified does not timely appeal to the said District Court, the Collector of Revenue and the local authorities where the business is located shall not issue the state and local permits.”

We are of the opinion that the trial judge was correct in maintaining the exception and dismissing the suit for two reasons: first, the matter to be considered and acted on by the Commission Council was not purely a ministerial duty involving no discretion, and therefore not a proper subject for mandamus; and, in the second place * * * the relator did not exhaust his other remedies. See State ex rel. Kreher v. Quinlan, City Engineer, et al., 182 La. 721, 162 So. 577; State ex rel. Monk v. Police Jury, La.App., 3 So.2d 186.

After the exception was submitted but before it was decided, relator presented a supplemental petition in which he alleged that if the Commission Council did have discretion in granting or refusing a permit to him, the Council misused and abused its discretion. Conceding that relator had a right to file the supplemental petition, the allegations therein contained still would not set out a cause of action for the reasons already stated, and for the further reason that it does not appear from the allegations of the supplemental petition in what respect the action of the Council was arbitrary or discriminatory.

For the reasons assigned, the judgment appealed from is hereby affirmed at the cost of relator in both courts.


source: Caselaw Access Project

author: LE BLANC. Judge.

license: Public Domain

text:
    LOWE & CAMPBELL ATHLETIC GOODS CO. v. TANGIPAHOA PARISH SCHOOL BOARD et al.
    No. 2930.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.

    Ponder & Ponder, of Amite, for appellant.
    Bolivar E. Kemp Jr., Dist. Atty., and Ellis & Bostick, all of Amite, for appellee.
   LE BLANC. Judge.

Practically the same issues are involved in this case as were those in the case of the same parties in a suit previously before this court and in which the decision was reviewed by the Supreme Court on a writ of certiorari. The opinion of the Supreme Court is reported in 207 La. 52, 20 So.2d 422.

The plaintiff, a wholesale dealer in athletic goods, sold a bill of merchandise to the principal of the Independence High School in the Parish of Tangipahoa, the same as it had done to the principal of the Kentwood High School in the other case. The statement in this case carries a balance of $567 on an account dating from August 14, 1934, to August 23, 1939. The School Board of Tangipahoa Parish is sought to be held, as it was in the other case, on the theory that it operates the Independence School in which, under the curriculum established by the School Board, students are taught physical education for the purpose of which they engage in various sports which make it necessary to have athletic equipment such as was sold to the principal of the Independence School. Further it is contended that the orders for this merchandise were given and approved by the principal Mr. T. B. Pugh, who is the agent of the Tangi-pahoa Parish School Board and who is also sued in his capacity as such.

Both defendants filed exceptions of no right and no cause of action which apparently were not passed on by the trial court. Answers were then filed by both in which liability is denied by the School Board on the ground that whilst it operates the Independence High School it is not the owner of the property as the same belongs to the public. Further it avers that it was never a party to any of the transactions sued on, that it at no time authorized anyone to make the purchase of the equipment as alleged in plaintiff’s petition, and that said equipment is not needed to carry out the educational program of the parish. It further sets out that at the time these sales •were made the plaintiff knew that the School Board was not responsible for payment, that no hill was ever presented to the School Board although they continued for a period of many years and that no teacher or principal of any school is the agent of the School Board for the purpose of making any contract by which it can be bound.

The defendant Pugh admits the purchases made for the school but denies that he is personally liable for the same and further answering alleges that in buying the equipment he acted as the agent for the School Board within the scope of his employment and authority and no further.

The case was tried in the lower court <on the issues as thus presented after which there was judgment in favor of the defendants rejecting the demands of the plaintiff and dismissing its suit at its costs. From that judgment the plaintiff has taken this appeal.

In the former suit it was brought out •that the equipment was covered by a policy .of insurance which the School Board car-lied on the Kentwood High School and gymnasium and for which it paid the premiums. The school and gymnasium were destroyed by fire and the athletic equipment as well as all other contents of the buildings were lost. The School Board collected the insurance, including that part of it which was carried for the protection of the athletic equipment. When we decided the case we took the position that the testimony did not show that the insurance carried on the athletic equipment covered the specific items, the value of which plaintiff was endeavoring to recover for in its petition. The Supreme Court based its decision apparently on the ground that whether the items were the precise items or not, the School Board had insured the athletic equipment as owner and it could not be heard now, after the fire and after it had been paid the loss, to say that it was not the owner. The decision is apparently based on the ground of equitable estoppel.

In the present case we note from the record that counsel for plaintiff, in order to protect his client’s interest on the same basis, filed a motion for a subpoena duces tecum under which the defendant School Board was ordered to produce in court the insurance policies covering the Independence High School for the period from January 1, 1935, to August 23, 1939, and the receipted premium bills showing how payments of the policy premiums were made. The record fails to show compliance on the part of the School Board with the order but by the testimony of Mr. T. B. Pugh, the principal, it appears that the School Board carries a blanket policy on the school buildings and whatever is in the buildings. He says he thinks that all of the schools of the parish are insured under the same policy, it being the same type of policy that covered the Kentwood High School and gymnasium when they burned. That being so it would seem that if the Supreme Court held the School Board liable in the other case on the ground that it carried insurance on the equipment, as owner of the same, we are bound by that decision in this case. It is true that in that case there was a fire and the loss was paid and the School Board received the money itself, but we do not think that makes any material difference because the point seems to have been stressed that once the School Board had taken out insurance on the equipment in its name as the owner, it could not escape liability when sued for the price of the equipment on the ground that it was not the owner.

The views we take of the case lead to a different conclusion than that reached by the district judge and it follows that the judgment appealed from will have to be reversed as to the defendant School Board.

For the reasons stated it is ordered that the judgment of the district court be, and the same is hereby reversed, annulled and set aside and it is further ordered that there be judgment in favor of the plaintiff Lowe & Campbell Athletic Goods Company and against Tangipahoa' Parish School Board in the sum of $567 with legal interest from August 23, 1939, until paid, together with all costs of these proceedings. As to the defendant T. B. Pugh, the judgment stands affirmed.


author: PER CURIAM.

text:
    KING DAVID BENEV. SOC. OF SCOTLANDVILLE, LA. v. KING DAVID BAPTIST CHURCH OF SCOTLANDVILLE, LA.
    No. 2946.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Cashio & Cashio, of Baton Rouge, for appellant.
    Dudley L. Weber, of Baton Rouge, for appellee.
   PER CURIAM.

The prayer of the plaintiff’s petition is that a sale of the property involved in the suit, which is .valued at $2,500, be set aside and in the alternative that there be judgment in favor of the plaintiff and against the defendant in that sum.

Clearly this Court is without jurisdiction. It becomes our duty to take notice of the situation and to transfer the case to the Supreme Court under the provisions of Act 19 of 1912.

It it therefore ordered that, in accordance with the provisions of said Act, the appeal in this case be transferred to the Supreme Court within 60 days from the finality of this decree.


author: -OTT, Judge.

text:
    STEVENS v. TRAHAN et al.
    No. 2915.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21,1947.
    Writ of Certiorari Denied Feb. 16,1948.

      Walter Lemann and Sidney A. March- and, both of Donaldsonville, for appellant.
    C. V. St. Amant, of Donaldsonville, for .appellees.
   -OTT, Judge.

Plaintiff alleges in his petition that in June, 1945, he deposited with the Sheriff •of Ascension Parish the sum of $600 as a •cash bond to secure the release of his •daughter from custody under a criminal •charge pending against her in Ascension Parish; that in February, 1946, the State entered a nolle prosse of the case against 'his said daughter, and ordered her released •from custody; that on her release from •custody, petitioner as the owner of the •cash deposit became entitled to its posses■sion; that the administratrix of the succession of one Morris O. Brittain claims the right to the possession of the said sum •of $600 in the possession of the Sheriff as .aforesaid; that, while the said sum of money was delivered to the Sheriff by Morris O. Brittain, who has since died, yet the same was delivered to the Sheriff by him merely as the agent of plaintiff, and the said money at all times belonged to plaintiff.

Plaintiff alleged that he feared that the Sheriff would part with or dispose of said money in his hands by delivering it to the .administratrix of the succession of said Morris O. Brittain, and he prayed that the money be sequestered in the hands of the Sheriff until the ownership of said fund can he determined; that the Sheriff as the stakeholder of the fund and the administra-trix of the succession of Brittain be duly cited to appear .and answer the petition, and after due proceedings had, there be judgment in his favor and against said adminis-tratrix decreeing plaintiff to be the sole owner of the fund, and ordering it delivered to him.

The writ of sequestration issued and process was served on the defendants. The deceased Brittain was a resident of Lafayette Parish, and his succession was opened and the administratrix appointed in the district court of that Parish. The adminis-tratrix filed an exception to the jurisdiction of the court of Ascension Parish, ratione personse and ratione materise, which exception was sustained and plaintiff’s suit dismissed. From this judgment of dismissal plaintiff has appealed.

The trial judge maintained the exception on the ground that the administratrix is invested by the court of her appointment with the possession and control of all the property of the succession of Brittain, and any suit against her respecting the ownership and possession of this $600 would have to be brought in the district court of Lafayette Parish where the succession is being administered.

Article 164 of the Code of Practice requires certain claims against a succession to be brought before the court in which the succession is being administered, including a suit by the creditors of the deceased previous to a partition of the succession property.

In this case, the plaintiff is not suing as a creditor of the deceased nor does his action come within any of the other matters pertaining to successions covered in Article 164 of the Code of Practice. The ad-ministratrix does not have possession of this money, nor has she ever had such possession so far as the record shows. The mere fact that the fund is listed in the inventory of the Brittain succession does nothing more than list a claim to a fund in the hands of the Sheriff of Ascension Parish, who admittedly has the money in his possession. The locus of the fund is in Ascension Parish under the jurisdiction of the Court of that Parish, and the ad-ministratrix who is claiming the right of ownership and possession for the succession of Brittain must come to that court to litigate her rights where another is claiming the fund. Certainly, Brittain himself would have been required to litigate his claim to the fund in the court of Ascension Parish.

Moreover, it is clearly provided in Article 163 of the Code of Practice that in all cases of sequestration the defendant may be cited within the jurisdiction of the court where the sequestered property is located, provided the judgment rendered in cases where the defendant resides out of the jurisdiction of the court, shall be in rem only, and the defendant cannot be held for any excess in personam. The plaintiff in the present case is not asking for a judgment in personam against the administra-trix, but is only asking for possession of property in the hands of the Sheriff of Ascension Parish and has sequestered the property located in that Párish. Under Article 275 of the Code of Practice, property may be sequestered where the plaintiff claims the right to the possession of the property and fears that the party having possession may send the property out of the jurisdiction of the court during the pen-dency of the suit.

The trial judge cited and relied on the case of Board of Missions of Methodist Episcopal Church South v. C. D. Craighead Co., Ltd., et al., 130 La. 1076, 58 So. 888, in support of his decision. That case is not similar to the present case. The cited case was an action to foreclose a mortgage by ordinary process, and the suit was brought in the parish where the property was located and where it was sequestered. The owner of the property was a corporation in the hands of a receiver, and the receiver was appointed by the court of another parish. The court held that all the property of the corporation being administered by the receiver was in the possession and under the control of receiver, and rights and claims respecting the property had to be brought in the court having jurisdiction over the receiver. In the present case the administratrix does not have possession of the property against which a claim is asserted in the court having direct control over the fund against which the claims are asserted.

The court of Ascension Parish has jurisdiction to determine the person or persons to whom the money deposited in the hands of an officer of that court should be returned. The plaintiff has made the necessary allegations for a writ of sequestration to issue, and it is for the court to determine whether or not the plaintiff makes the necessary proof to show the ownership and right to the possession of the funds in question.

For the reasons assigned, the judgment appealed from is annulled and set aside, the exception is overruled, and it is now ordered that the case be remanded to the District Court of Ascension Parish to be proceeded with according to law and the views herein expressed; Alosia Trahan, Administratrix of the Succession of M. O. Brittain, to pay the costs of the appeal, and all other costs to await the final termination of the case.


author: LeBLANC, Judge.

text:
    LAVIGNE v. AMERICAN AUTOMOBILE INS. CO. et al.
    No. 2927.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Ponder & Ponder, of Amite, for appellants.
    Reid & Reid, of Hammond, for appellee.
   LeBLANC, Judge.

Only a question of fact is presented in this case which involves a collision between two automobiles on United States Highway No. 51 about two miles south of the city of Hammond, on the night of January 5, 1940.

The plaintiff was driving south towards the Town of Ponchatoula. In his petition he alleges that on reaching a point two miles south of Hammond, he turned off of the highway, brought his car to a stop entirely off the pavement and in front of a night club known as Shady Rest. He further avers that upon bringing his car to a stop an automobile owned by the Department of Highways of the State of Louisiana, and being driven north by one of its employees, Carl Helbak, turned from the highway and ran directly into his automobile.

He alleges that the driver of that car was under the influence of intoxicating liquor at the time and that whether on account of his condition, or through gross negligence and recklessness, he drove the car from the highway, as alleged, into his car and that was the cause of the damages complained of.

He makes the necessary allegation that the driver of the state car was in the exercise of the functions for which he was employed by the Department of Highways and that as the car was insured by the American Automobile Insurance Co., he has a direct cause of action against that company and makes it, as well as the driver, parties defendant.

His demand is for the sum of $610.86 for damages to his automobile and $610 representing an amount, at $10 a day, which he avers is an expense he incurred for a period of 61 days because of the loss of the use of his car.

The defendants filed a joint answer in which they charge the plaintiff’s negligence in crossing over the highway in front of the defendant’s north bound car without ascertaining whether it was safe to do so as being the cause of the accident. They further charge the plaintiff with being under the influence of liquor at the time of the collision and that it was gross negligence for him to attempt to operate his car when he was in such a condition. These facts they also plead in the alternative as contributory negligence on his part in the event it be held that the defendant Helbak was negligent.

Assuming the position of plaintiffs in reconvention the defendants aver that they are entitled to recover the sum of $200 on the part of the American Automobile Insurance Co. for damage to the car operated by Helbak and $2,000 on the part of Helbak himself for personal injuries and pain and suffering.

The trial judge, without written reasons, rendered judgment in favor of the plaintiff in the sum of $589.85, from which the defendants have appealed.

The vast preponderance of the testimony supports the allegations of the plaintiff’s petition and we find nothing at all in the record on which to reverse the findings of the trial judge.

The plaintiff’s testimony and that also of the lady occupant of the car with him, as well as that of various witnesses who came to the scene of the accident immediately or shortly after it had happened, is all to the effect that plaintiff’s car was struck at a time when it was entirely off the paved portion of the highway. The only witness who disputes that is the defendant Helbak and his testimony isn’t satisfactory by any means. He admits that he had drank a couple of bottles of beer but insists that he was not intoxicated. His conduct at the scene of the accident however, according to the testimony of some of the witnesses, was anything but that of a man in a normal condition.

We do not see the necessity of going into any detailed analysis of the facts other than those just stated and under which it is clear that the trial judge correctly awarded plaintiff the amount he did for the damage done to his automobile. The amount of the award is a few dollars less than the amount prayed for and does not include the item of $610 but evidently he was satisfied with the judgment as rendered for he has not answered the appeal.

Judgment affirmed at the costs of the defendants, appellants.


text:
    CHAPITAL v. WALKER et al.
    No. 18648.
    Court of Appeal of Louisiana. Orleans.
    Oct. 7, 1947.
    For prior opinion see 30 So.2d 150.
    Warren C. Coleman, Edwin J. Prinz and Solomon S. Goldman, all of New Orleans, for appellant Supreme Industrial Life Ins. Co.
    Niels F. Hertz and E. B. Charbonnett, Jr., both of New Orleans, for appellee.
   PER CURIAM.

Our attention is called to the fact that although our original decree reversed the judgment appealed from, through inadvertence we worded it in such a way that it may possibly be construed as dissolving the preliminary injunction only in so far as it restrained the holding of the annual meeting of stockholders which had been fixed for January 7, 1947. It was our intention to dissolve the preliminary injunction in its entirety. Our original decree is now amended so as to read as follows:

For the reasons assigned, the judgment appealed from is annulled, avoided and reversed, and it is now ordered that the preliminary injunction granted on January 14, 1947, restraining the Supreme Industrial Life Insurance Company from holding the regular scheduled meeting of stockholders of the said corporation fixed for January 7, 1947, or any other meeting of stockholders of the said corporation, be and it is hereby dissolved; and it is further ordered that this cause be remanded to the Civil District Court for the Parish of Orleans for further proceedings not inconsistent with the' views herein expressed. All costs of appeal to be borne by appellee, the remaining costs to await the final determination of this cause. Both applications for rehearing are refused.

The right of plaintiff-appellee to again apply for a rehearing is reversed.

Decree amended, both applications refused.


author: OTT, Judge.

text:
    GALOUYE v. A. R. BLOSSMAN, Inc.
    No. 2934.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21,1947.
    Writ of Certiorari Denied Feb. 16,1948.

      Gordon Goodbee, of Covington, for appellant.
    Benj. W. Miller, of Bogalusa, for ap-pellee.
   OTT, Judge.

Plaintiff alleges that he is the owner of a home in the town of Covington in which he resides with his family; that the defendant is the owner of an adjacent lot on which have been placed storage tanks for the storage, sale and handling of liquified petroleum gas, commonly known as butane or hydrotane gas; that said gas is of a highly explosive, inflammable and dangerous character, being three times as explosive and dangerous as natural gas ordinarily used for household purposes in heating and cooking; that the keeping and storage of said gas is prohibited within the town limits of Covington by an ordinance of the town; that the defendant, his agents and employees, have stored, hauled and handled this explosive and dangerous substance in close proximity to his home in a careless and negligent manner in that said employees bring truck loads of said dangerous substance to the storage tanks at all hours of the day and night to be unloaded, and drive said trucks at a high rate of speed; that they handle the hose and pipe connections in a careless manner, discharging much of said gas on the ground and into the air, and in many other ways conduct the business in such a way as to disturb petitioner and his family. Plaintiff alleges that the storage and handling of this explosive and dangerous substance by the defendant in such close proximity to his home and in such a careless and negligent manner constitutes a continuing nuisance and has caused him and his family to suffer serious nervous shock and mental anguish and has caused his property to greatly depreciate in value. He prays for an injunction to abate the nuisance, and a judgment for damages in the sum of $2000.

A citation issued to the defendant together with a rule for a preliminary injunction. The defendant filed an exception of no cause or right of action which was overruled. As this exception is not urged on the appeal, it must be considered as having been abandoned.

The defendant filed an answer to the rule for a preliminary injunction denying the allegations of the petition as to its business being a nuisance and setting up as a defense that it had been granted a permit by the town of Covington to operate a Butane Gas Bulk Plant at the location in question, and that the plant was established and installed under and by authority of said permit and authority of the Liquified Petroleum Gas Commission of the State, and that said plant is and has been operated in a lawful, safe and prudent manner.

The rule was set down for trial and after hearing evidence, the trial judge issued a preliminary injunction in March, 1946, enjoining the defendant from operating its butane bulk plant on the property adjacent to the property of the plaintiff, but provided that the injunction should not be effective until 90 days after a bond was filed by plaintiff. On June 13, 1946, the defendant filed a motion to dissolve or modify the preliminary injunction which motion was denied, and on July 16, 1946, defendant filed another rule or motion in which it is alleged that the ordinance of the town of Covington had been amended so as to permit the operation of butane storage tanks in the town limits, a copy of the amended ordinance being annexed to the motion, and further setting out that the bulk butane station was being operated in accordance with the regulatory provisions of Act No. 99 of 1942, as amended by Act No. 292 of 1944.

On July 30, 1946, a supplemental order or judgment was entered on the joint motion of counsel for plaintiff and counsel for defendant modifying the preliminary injunction in view of the amendment of the town ordinance, and the defendant was permitted to continue the operation of the butane station, provided the operation was carried on in a proper manner and in such a way as not to annoy and disturb plaintiff and his family and in accordance with the regulations of the Liquified Petroleum Gas Commission and the Standards of the National Board of Fire Underwriters for liquified petroleum gas.

An answer was filed and the case was tried on the merits by the introduction of the record and evidence taken on the rule for a preliminary injunction and some additional evidence, mostly with reference to the damage claimed by plaintiff. The trial judge rendered a final judgment in April, 1947, denying a permanent injunction and awarding plaintiff damages in the sum of $500. The defendant appealed, and plaintiff answered the appeal, asking that the judgment be amended by granting the permanent injunction and by increasing the damages to the amount claimed.

The evidence indicates that butane gas is a dangerous and inflammable substance unless it is properly handled. The trial judge interpreted the ordinance of the town of Covington as prohibiting the storage of this gas in tanks within the limits of the town and it was largely because of this prohibition that the judge issued the preliminary injunction as he believed the operation of the business was prohibited by the ordinance. The judge also found that the gas station was not properlv operated and its manner of operation constituted a nuisance. After the amendment of the town ordinance so as to permit the storage of this gas and the operation of the station, the preliminary injunction was amended so as to permit the continued operation of the station, so long as it was operated in a proper manner.

Therefore, the only question to decide in this case with reference to the issuance of an injunction is whether or not the defendant has operated his place of business in a proper manner since the ordinance was amended so as to permit the station to be operated at its present location. There is evidence in the record tending to show that in 1941 there was an explosion at this plant in which two persons were badly burned. There is also evidence in the record to show that during the year 1945 on several occasions employees were seen smoking around the plant, contrary to the rules of the company, as well as contrary to the regulations of the Gas Commission; that the tank trucks would unload at all hours of the night; that at times gas would escape from the valves and pipes and scatter the gas around the premises, causing plaintiff to fear a fire or an explosion from the escaping gas. There are two tanks sitting some two feet from the ground and within a few feet of plaintiff’s property line.

The tanks and all equipment connected with the station were inspected by the Petroleum Gas Commission and approved by it. There are certain rules and regulations which the Commission requires an operator of this kind of gas plant to comply with, such as the location of the tanks, safety valves, piping and fittings, hose pipes, and rules as to the operation and care of the equipment in order to insure safety. All of the detailed regulations indicate that this type of business is dangerous unless properly operated. However, the business cannot be c'assed as a nuisance, per se, unless it is operated in such a way as to make it a nuisance. A lawful business cannot be abated as a nuisance unless the business is operated in such a way as to give rise to serious an$ material discomfort and inconvenience to those living in close proximity thereto. Crump v. Carnahan, 155 La. 648, 99 So. 493. In the case of Froelicher v. Southern Marine Works, 118 La. 1077, 43 So. 882, 886, the court in speaking of what constitutes a nuisance said:

“We deem it also proper to state here that only downright discomfort is actionable. Small inconveniences do not recommend themselves as cause sufficient to close down an industry. The nuisance must be such as is annoying to a person in a normal state of health.”

There were some practices permitted at this gas plant which were not consistent with safety in the operation of such a hazardous business as storing and handling this butane gas. Sufficient care was not taken against the hazards of fire resulting from leakage of gas, smoking around the premises, failure to keep the premises clean and the equipment properly repaired and in order. However, it appears that the conduct of the place was much improved after the issuance of the preliminary injunction and before the trial of the case on the merits, and we cannot say that the trial judge was in error in refusing to issue a permanent injunction. Moreover, if the defendant fails to comply with the rules pertaining to such business, plaintiff has his remedy to invoke again the injunctive process of the court.

With reference to the claim for damages, we find that the plaintiff has suffered some damage by reason of the operation of this gas station in close proximity to plaintiff’s home. In the case of Labasse v. Plat, 121 La. 601, 46 So. 665, (a case similar in many respects to the present case), the court stated that personal discomfort and annoyance resulting from a nuisance is the primary consideration in allowing damages, although there is no arithmetical rule for their estimation. There is in such cases an injury, the extent of which the jury or the court may measure. See also McGee et al. v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21; Devoke et al. v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816.

Plaintiff and his family were subjected to considerable annoyance and nervous strain on account of the manner in which this gas plant was operated in close proximity to his home. Instead of the employees of the defendant making an effort to disturb plaintiff as little as possible in the operation of the plant, the record indicates that on a few occasions they seem to have disregarded his rights and conducted themselves in such a way as to unnecessarily harass and disturb him and his family. Most of this conduct took place in the year 1945, and just prior to the time the suit was filed in the latter part of that year.

Plaintiff and a real estate man testified that plaintiff’s property has depreciated in value more than three thousand dollars on account of the operation of this gas plant so near the property; the real estate man testifying that he could not get a purchaser for the property on account of the gas tank, while other property, similar in kind, was bringing over six thousand dollars. The courts have often stated that those who reside in our towns and cities must undergo some inconveniences and loss on account of the location and operation of plants and factories which contribute to the welfare of the population in general. We do not think it would be just to inflict too great an amount of damages on the defendant, but we believe the amount allowed by the trial court is rather small. We have decided to exercise our discretion in the matter and fix the damage to plaintiff for all of his loss and inconvenience at $1000.

For the reasons assigned, it is ordered that the judgment appealed from be amended by increasing the amount of the award from five hundred dollars to the sum of one thousand dollars; and asjthus amended, the judgment is affirmed at the costs of defendant in both courts.


author: DORE, Judge.

text:
    GONSOULIN v. SOUTHERN AMUSEMENT CO.
    No. 2916.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Thompson, Lawes & Cavanaugh, of Lake Charles, for appellant.
    Plauche & Stoclcwell, of Lake Charles, for appellee.
   DORE, Judge.

Plaintiff seeks to recover from the defendant, his employer, compensation at the maximum rate permitted under our Workmen’s Compensation Act, Act No. 20 of 1914, as amended, for a period not exceeding four hundred weeks, subject to a credit of $1,160 previously paid to him, and alleged to be due him as the result of an accidental injury received by.him on September 11, 1944, which said injury permanently and totally disabled him.

He alleges that the defendant is engaged in the business of operating moving- picture establishments and places of amusement, which said business is a hazardous one. He further alleges that on the day and date of the alleged accident, he was employed as a carpenter, a hazardous occupation and while performing duties arising out of and in the course of his employer’s business in repairing a theatre, he fell from a ladder, causing him to fall to the ground resulting in a fracture of a vertebra of the backbone.

In its answer, the defendant admits that it was engaged in the business of operating moving picture establishments and places of amusement; admits that plaintiff was injured while in the course and scope of his employment in a fall from a ladder; admits the resulting injuries; admits that plaintiff was paid the maximum compensation for a period of 58 weeks, or $1,160; and admits the result of the said injury has permanently and totally incapacitated the plaintiff from following his occupation of carpentry. The defense of the suit is that the business of defendant is not hazardous and therefore plaintiff cannot recover.

Upon these issues, the case was tried. Upon the conclusion of the evidence and prior to argument and submission of the case, defendant filed an exception of no right or cause of action. After argument and submission, the trial judge, in effect, overruled the exception and granted judgment in favor of plaintiff and against defendant as prayed for. The defendant has appealed.

Under the pleadings as set out, supra, the only question presented to us is the question of whether or not the business of defendant is hazardous or whether it is hazardous and non-hazardous, or whether is it non-hazardous, in so far as same applies to plaintiff.

Mr. Clyde Williams, the Vice-President of defendant, was called under cross-examination by the plaintiff. He states that the defendant company owned a chain of motion picture theatres, that in the operation of these theatres, they use numerous electrical appliances; operate motors for their cooling- systems, and other motors; that the moving picture machine is operated in a fire proof compartment, for the reason that the film is rather inflammable; that they own and use automobiles and pick-up trucks in their business; that most of their theatres have marquees on the front of the theatres where the employees are required to use ladders to change the advertisement of the programs, which change of program is generally two or three times a week. They maintain their theatres for minor repairs, which is very frequent over the circuit. They employ such repairmen as carpenters, artisans, skilled mechanics and electricians whenever necessary for a day or two at a time.

Plaintiff testified that he was employed by the defendant on or about the day of the alleged accident as a carpenter at the moving picture theatre of the defendant on South Street in the City of Lake Charles. Plaintiff was on a ladder and describes the work he was doing as “Putting a circle in front of the place by the ticket office. There is about three or four steps up there and one of the circles around that holds the ladder was rotten and I was putting a new double length on there. I had holes bored through the things and had used floor bolts. I was on my last one, but in order to reach my last one I had to change my foot on the ladder to get to it. I finally got it screwed up and was coming down and when I moved my foot over to get on the ladder to come down, I came down on the concrete,” on part of his back.

Mr. Clyde Williams was recalled on direct examination on behalf of defendant. He states that defendant is engaged only in the picture show business, owning some thirty theatres; that a crew of workmen for the purpose of keeping buildings in repair is not maintained but that whenever it becomes necessary to do minor repairs, such as plaintiff was doing on the day of the accident, a man is employed for that repair job; that extended repairs to their buildings are made by contract, and they do not engage in repair work for others. Plaintiff was injured while repairing the marquee of “The Victory Theatre.” He states “It (the marquee) is outside of the theatre building, just like an awning. It was an awning outside of the building.” The moving picture machines are in the booth and in operation during-the show. It was not necessary for plaintiff to have come in contact with any of these machines at the time he was repairing the marquee in the picture show theatre.

On cross-examination, Mr. Williams states that a Mr. Frank Hebert is employed by the defendant in charge of the maintenance of their theatres, and through him are employed carpenters, mechanics and plumbers; whenever he needs help, “he would go out and find somebody to fix a lock or window, etc.” The only maintenance work which is done by the defendant is on their own theaters. They do no outside work or for others.

The operation of a moving picture theatre is not designated in our Workmen’s Compensation Act as a hazardous business. Under the facts in this case, in accordance with the evidence outlined, supra, it can safely be stated that the business of the defendant was both non-hazardous and hazardous; that part of its business being hazardous consists of operating moving picture machines, electric motors and fans in its cooling systems, automobiles and pick-up trucks, all essentials in the conduct of its business. However, the evidence in this case does not disclose that plaintiff was employed to perform any duties in connection therewith. Were plaintiff’s major duties directly connected with these hazardous instruments then there would be no question as to his recovering compensation, regardless of what he was doing at the time of the accident. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303; Gallien v. Judge, La.App., 28 So.2d 101, 102.

Though the plaintiff was engaged in a hazardous occupation, it being admitted that carpentry is hazardous, yet it is the business of the employer which governs. Since plaintiff’s employment was not directly connected to the hazardous features of defendant’s business, we must look further if compensation is to be allowed. It is not disputed, and in fact cannot be disputed, that in order to conduct a picture show theatre, a building is necessary and essential and that the building be kept in repairs. Likewise, the marquee must have' been determined by the defendant to have been a necesssary adjunct to the theatre and it had to be kept in repairs in order to have the proper use .thereof. Defendant, although not in the business of repairing buildings for others, undertook, by a foreman in charge, to make the necessary repairs, such as was being done by the plaintiff at the time of the accident and injury. The question then arises whether plaintiff, under these facts, is protected by the compensation statute since the business of repairing of any building or structural appurtenances is classified as a hazardous occupation.

We are of the opinion that the case of Hecker v. Betz, La.App., 172 So. 816, 817, is decisive of the question. In that case Betz, an undertaker or mortician, found it necessary to make substantial changes in the building which he used, not only as a residence for himself and family, but also as a funeral home and as a garage for the automobiles used in his said business. The court held that although the business of the defendant, to-wit, undertaker or mortician, was not hazardous, and contained no hazardous features, yet the fact remained that defendant was engaged in the operation of motor vehicles necessary for the conduct of such business and that such operation made defendant’s business hazardous and non-hazardous, and that an employer who is engaged in such business and who, in furtherance of that general business, undertakes construction work which, in itself, is hazardous, should be held liable for compensation to those employees who are engaged in such hazardous work. In that' case, plaintiff, a plumber", was employed to install plumbing fixtures in the building used by Betz in housing his motor vehicles and in operating the business and was allowed to recover compensation for his injuries. In our case, plaintiff was employed to repair a marquee, an essential part of the theatre building housing the numerous electrical appliances, the motors for the cooling system and other motors and the moving picture machine, all being essential in the conduct of defendant’s business. In the present case the work being performed by the plaintiff was more directly connected with and more essential to the hazardous features of defendant’s business than that of defendant’s business in the Hecker case. We therefore conclude that plaintiff in the instant case was protected by the Compensation Act and is entitled to recover.

The defendant strongly relies on the case of Gallien v. Judge, La.App., 28 So.2d 101, 103, wherein we denied relief to an employee who alleged that he was employed as a carpenter to do repair work on his employer’s combined residence and place of business, regardless of the allegations that the defendant was in the cattle business and used motor trucks to transport his cattle. We do not find wherein this case gives much comfort to defendant. In that case, we stated: “Whilst he did allege that in connection with his business, defendant operated trucks propelled by gasoline engines, and other motor vehicles, nowhere did he allege that his duties as a carpenter in repairing defendant’s house brought him in contact in any manner whatsoever with those trucks or other motor vehicles. The cases of Hecker v. Betz, La.App., 172 So. 816, and Collins v. Spielman, 200 La. 586, 8 So.2d 608, relied on by plaintiff do not serve as authority to support his claim.” In other words, the Gallien case was differentiated from the Hecker case in that in the Hecker case, the residence of Betz was used as a garage for the storage of the motor vehicles used in defendant’s business while in the Gallien case, the residence was used solely as a residence for defendant’s family with probably a desk or room used as an office, no allegation having been made that the trucks were stored under the roof of the residence.

In Rayburn v. DeMoss, 194 La. 175, 193 So. 579, the Supreme Court refused to allow a carpenter compensation as a result of injuries sustained from an accident which occured while he was rebuilding a barn which had been destroyed by fire, for the reason that, at the time of the accident, his employer was engaged in farming, a non-hazardous business, and that plaintiff was not performing a service directly or indirectly in connection with the operation of the dairy in the past or in the future. The Supreme Court stated that the testimony showed that there wasn’t any machinery in the barn or to be operated in the barn in the near future. For that reason the Supreme Court differentiated that case from the Hecker case supra, thus tacitly approving the holding of the Hecker case.

The defendant also strongly relies on the case of McAllister v. Peoples Homestead & Savings Association, La.App., 171 So. 130. In that case, the plaintiff was employed by the defendant as a plumber. The defendant was a building and loan corporation and its sole business was the lending of money ⅛ home owners on mortgages. In the course of its business, it was forced to foreclose many of the mortgages, especially during the depression era. To protect its interest, defendant would be forced to buy in the property and then rent it until such time that it could dispose of the property. Having become the owner of much property, which it rented, it had to be kept in repairs. The number of residences and other buildings acquired by it was sufficient to justify in putting in a repair department in which it kept employed regularly a certain number of carpenters, painters, plumbers, etc., of which plaintiff was one. It used this department solely to keep its own property in a state of repair. Under these facts, the plaintiff was denied recovery of compensation for the reason that defendant was not engaged in the construction of buildings. This case is not in point because the business of defendant was non-hazardous and did not require the use of electrical appliances and motors, and the keeping in repairs the buildings housing such appliances and motors, such as in our case, to properly conduct its business. In other words, the defendant in that case was not a business which was hazardous and nonhazardous per se.

As to the effects of the injuries, plaintiff alleged in Article 8 of the petition: “Your petitioner further shows that because of said accidental injury, he has since September 11, 1944, been totally incapacitated and is still totally incapacitated from doing any work and your petitioner reliably informed, believes and therefore alleges that he is and will continue to be permanently and totally disabled as a result of said accidental injury.” To this allegation, the defendant answered: “Article VIII of plaintiff’s petition is admitted.” Accordingly, we see no reason for any discussion of the result of the accident regardless of the arguments of plaintiff and defendant made in the briefs. Moreover it is established by the evidence that plaintiff is totally and permanently disabled as a result of the accident.

For these reasons, the judgment appealed from is affirmed.


text:
    BRODDICK v. SCHLESINGER.
    No. 2933.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21, 1947.

      Adrian D. Schwartz, of Covington, for appellant.
    Gordon Goodbee, of Covington, for ap-pellee.
   LeBLANC, Judge.

Plaintiff instituted this suit under an alleged contract to furnish certain plumbing articles and the necessary labor to install the same in buildings owned by the defendant which are situated on his property in' the town of Covington. He alleges that he furnished the articles at a cost of $198 and expended his labor to the extent of $70.55 for all of which he has not been paid. He accordingly prays for judgment against the defendant in the sum of $268.55.

In his answer to plaintiff’s petition, defendant admits having entered into the contract sued on and specifically admits that plaintiff furnished plumbing material amounting to the value of $198, as alleged. He only denies owing the plaintiff $70.55 as claimed by him for labor. Assuming then the position of a plaintiff in reconvention, he alleges that following the signing of the contract, in the period between July 6 and July 10, 1945, plaintiff came upon the premises where the articles were to be installed to begin work; that incidental to the formation of the contract between them, plaintiff was submitted a sketch or floor plan, which showed the location of the fixtures and that shortly after plaintiff began his work it was discovered that he was not complying with the plans according to the sketch; that upon his remonstrating, plaintiff immediately withdrew from the job and without further notice placed his claim in the hands of an attorney for collection. Defendant then avers that he was forced to obtain the services of other men to complete the work at a cost of $100. He further avers that by reason of the delay in getting the work completed he lost the rent of his cabins during the months of July and August, 1945, and was obliged to return deposits which he had received, thus sustaining a further loss of $185. He accordingly prays for judgment in reconvention against the plaintiff in the sum of $285, subject to a credit of $198, the price of the fixtures for which he owes plaintiff.

There was'judgment below in favor of the plaintiff allowing him $198 for the material furnished by him and which defendant admitted owing him for, and allowing him further the sum of $45 for labor. Defendant appealed and plaintiff has answered asking that the labor costs be increased to the sum originally demanded.

It is apparent that since the defendant admits owing the plaintiff the sum of $198 on the total demand for $268.55, the amount in dispute between them on the main demand is the sum of $70.55 and therefore this court is without jurisdiction to entertain the appeal on that demand. Constitution of 1921, art. VII, Sec. 29, O’Shee v. Chaudoir, 154 La. 517, 97 So. 796. Even though there is no motion to dismiss the appeal for lack of jurisdiction, the court will take judicial cognizance of the matter and has to give it its consideration. See Cavin v. Camus, La.App., 164 So. 645.

Under art. VII, Sec. 1 of the Constitution of 1921, it is provided that “if there be no right of appeal on the main demand, the appeal shall lie to the court having jurisdiction of the reconventional demand,” but in this case it appears from the pleadings that the reconventional demand as well as the main demand is for a net sum that is less than the amount with which the court is vested with jurisdiction on appeal. The demand as already noted in the prayer of defendant’s answer is for $285, subject to a credit of $198, leaving the net amount in dispute on the reconven-tional demand of $87.

The court therefore being without jurisdiction of either demand, it follows that neither the appeal taken by the defendant nor plaintiff’s answer to that appeal can be entertained and both will accordingly be dismissed.

For the reasons stated, it is so ordered.


text:
    KOPCSO v. ALELLO (two cases).
    No. 2925.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Sam J. D’Amico, of Baton Rouge, for appellant.
    Stewart & Taylor, of Baton Rouge, for appellee.
   DORE, Judge.

These cases arise as a result of an inter-sectional collision which occurred at about 7:30 o’clock, A.M., on April 23, 1946, in the City of Baton Rouge between a 1939 Model Ford coupe owned and operated by the defendant, Sam Aiello, and a 1941 Model Buick sedan owned by the plaintiff, Joseph Kopcso, and being operated, at the time, by his wife’s brother, Julius Bodi, accompanied by the other plaintiff, Mrs. Mary Kopcso, wife of Joseph Kopcso. The plaintiffs filed separate suits, containing the same general allegations as to the accident and praying for their respective damages. They allege that just prior to the accident Julius Bodi was driving a Buick sedan belonging to Joseph Kopcso on the Extension of Florida Street (which street runs east and west and has a neutral ground in the center), in a westerly direction on the northerly side of the northerly lane for traffic, at a speed of about 30 miles an hour, and that at that time defendant Sam Aiello was driving south on Bernardo Street (which street runs north and south and joins the extension of Florida Street), approaching the junction of the Extension of Florida Street at a rate of about 15 miles an hour; that the Ford coupe and the Buick sedan were visible to the drivers thereof at a distance of from one hundred to three hundred feet from said junction of Bernardo Street and the Extension of Florida Street; that as the Buick approached the junction at a distance of about SO to 60 feet, it was slowed down to approximately 20 miles per hour by its driver, Julius Bodi, and the horn thereof was sounded and the same was turned into the southerly side for traffic on said northerly lane to said Extension of Florida Street; that thereupon the Ford coupe entered the junction and came into the northerly side of the northerly lane for traffic on said Extension of Florida Street and the same was slowed down to approximately 5 miles an hour; that then the said Sam Aiello, at the time that the said Buick was approximately IS to 25 feet distant from said Ford, suddenly, and without warning, negligently and recklessly speeded up said Ford to about 15 miles per hour, and negligently and recklessly turned said Ford to his left and in an easterly direction, against traffic, into the southerly side of the northerly lane of said Extension of Florida Street, and as a result of said negligence, the Ford ran into and collided with the said Buick; that the center of the. front of said Ford collided with the right front part of said Buick; that the point of impact between said cars was on the southerly side of said northerly lane for traffic on said Extension of Florida Street, at about 15 feet, in a westerly direction from the westerly side of a passage across the neutral ground of said Extension of Florida Street.

Petitioner Joseph Kopcso alleges that as a result of the accident he suffered damages in the amount of $356.33, being $263.45 for repairs to his automobile, and $92.50 for medical expenses expended by him for the care of his wife. Plaintiff Mrs. Mary Kopcso prayed for damages in the sum of $2,000 for personal injuries and pain and suffering, sustained in the collision.

Defendant denied that he was guilty of any negligence, and claimed that the driver of plaintiff’s car was acting as an agent of plaintiffs and was guilty of gross negligence in driving at an excessive rate of speed and that such negligence constitutes a bar to recovery by the plaintiffs.

After due hearing of the case the District Court reached the conclusion that the accident was caused solely by the gross negligence of the defendant Aiello, and rendered judgment in favor of plaintiff Joseph Kopcso for $333.36, being for the full amount of the damage claimed to his automobile, and for the medical expenses claimed, except an item of $20 expended for tests for undulant fever and malaria not connected with the accident; and rendered judgment in favor of the plaintiff, Mrs. Mary Kopcso in the sum of $750. The defendant has appealed.

On appeal the main questions presented are questions of fact, and unless we can find manifest error committed by the trial judge, we must, of course, affirm the judgment.

It is shown by the evidence that Julius Bodi, brother-in-law of plaintiff Joseph Kopcso, was requested by Joseph Kopcso to go to a nearby town to obtain certain automobile parts, which Kopcso needed in his garage business; that on this trip Julius Bodi was accompanied by 'his sister, Mrs. Mary Bodi Kopcso and by his girl friend, who later became his wife; that Julius Bodi was the driver of the Buick sedan, and that next to him the present Mrs. Bodi was seated, and next to her, on the right side of the Buick, Mrs. Mary Kopcso was seated. All three testified to the same effect; that they were driving in a westerly direction on Extension of Florida Street; that this street is a wide street, with a neutral ground in the center, and two lanes of travel on each side; that as they were approaching Bernardo Street, which runs into Extension of Florida Street on the north side thereof, and which Bernardo Street is a gravel street about 14 feet wide, they noticed the Ford coupe belonging to and being driven ■by Aiello, and that they had no idea that Aiello would try to enter Florida, a favored street, until they were about 50 or 60 feet from Bernardo Street. They testified that up to that point Julius Bodi had been driving the Buick at about 30 miles per hour, and on the north lane of the north side on Florida Street, and that when he perceived that the Ford coupe would probably enter Florida Street, he slowed down to about 20 miles per hour, and went into the south lane of the north side of Florida Street, and upon realizing that the Ford coupe was travelling towards them, he at once threw on his brakes and stopped within 2 or 3 feet, but that the Ford coupe, by the sudden maneuver of its driver in speeding up and turning to the left against traffic, ran into the Buick.

The defense to this case is based on the testimony of the defendant, who blames the collision on the fast driving of Julius Bodi, whom he states was driving at a rate of speed of 60 to 65 miles. However, as brought out by the trial judge, the defendant admits in his own testimony that he stopped for traffic on the favored street, and that there was nothing to obscure his vision to the east and west to observe approaching traffic, and that he did see the Buick car at a distance of about 1¼ blocks going at this alleged tremendous speed, and notwithstanding, he proceeded to enter the favored Florida Street. On his own testimony he convicts himself of gross negligence, but, as also brought out by the trial judge, the preponderance of the evidence shows that Julius Bodi was travelling at a moderate rate of -speed and his testimony and that of the two occupants of the Buick are corroborated by the physical facts, and particularly by the fact that the Buick came to a stop very shortly after the danger became apparent. Had it been travelling at the excessive rate of speed claimed by the defendant, it would not have come to a stop so suddenly, nor would the Ford have come to rest directly against the Buick, as occurred in this accident.

In so far as the damage to the Buick is concerned the preponderance of the evidence shows that the award is correct. The main contention of the defendant is that most of the work performed in repairing the Buick was done in the garage of Kopcso, plaintiff, and that he should not be allowed the regular fee which he would have charged for doing this work for a stranger. We are in accord with the trial judge that he is entitled to his regular, reasonable charge for that type of work, for the reason that had he had the work done by another garage he would have been forced to pay that amount, and for the further reason that had his garage performed the same work for a stranger during the time that his car was being repaired, the same amount would have been realized by the Kopcso garage. In so far as medical expenses is concerned, there seems to be no dispute.

As to the damage allowed to Mrs. Kopcso, the evidence shows clearly that she suffered several painful bruises and lacerations, as well as three fractured ribs and that she suffered pain almost continuously for some three months, and that even at the time of the trial she still had some nervous reactions to her experience. We feel that the amount awarded her is reasonable.

It seems very apparent to us that the accident, as found by the trial judge, was caused solely by the defendant Aiello, and that the awards made by the trial judge, in both cases, were supported by the evidence.

Separate decrees affirming the judgment of the lower Court in each case will be entered.


author: ■DORE, Judge.

text:
    Joseph KOPCSO v. Sam ALELLO.
    No. 2925.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Sam J. D’Amico, of Baton Rouge, for appellant.
    Stewart & Taylor, of Baton Rouge, for appellee.
   ■DORE, Judge.

For the reasons this day handed down in the consolidated cases of Joseph Kopcso v. Alello and of Mrs. Mary Kopcso v. Alello, La.App., 32 So.2d 99, the judgment appealed from is affirmed.


text:
    Mrs. Mary KOPCSO v. Sam ALELLO.
    No. 2926.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Sam J. D’Amico, of Baton Rouge, for appellant.
    Stewart & Taylor, of Baton Rouge, for appellee.
   DORE, Judge.

For the reasons this day handed down in the consolidated cases of Joseph Kopcso v. Alello and of Mrs. Mary Kopcso v. Alello, La.App., 32 So.2d 99, the judgment appealed from is affirmed.


text:
    STANDARD OIL CO. OF NEW JERSEY v. EDWARDS.
    No. 2929.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21,1947.
    Writ of Certiorari Denied Feb. 16,1948.
    Cecil Morgan, A. M. Curtis, and R. B. Jennings, all of Baton Rouge, and Nat Tycer, of Hammond, for appellant.
    Ponder & Ponder, of Amite, for appellee.
   DORE, Judge.

This is an eviction suit under Act 200 of 1936. Plaintiff alleges that on June 2, 194S, by written contract, it leased to the defendant a certain gasoline and service station, together with certain movables, situated in the Town of Hammond, for a term of one year beginning on the first day of July, 1945, and ending on the 30th of June, 1946, for a monthly rental of an amount equivalent to one cent for each gallon of gasoline and other motor fuels sold during the month, or fraction thereof, at the premises up to 11,000 gallons per month and an amount equivalent to one-half cent for each gallon of gasoline and other fuels sold in excess of 11,000 gallons per month; that on the termination of the lease on June 30, 1946, plaintiff and defendant orally and mutually agreed to renew the said lease upon the same terms and conditions except that the said renewal was to he a month to month basis; that, desiring to terminate the lease as of January 31, 1937, it gave the defendant written notice of its such intention on or about December 30, 1946, which said notice was received by defendant on or about December 31, 1946, or more than ten (10) days before the expiration of the month of January, 1947; that defendant has failed to vacate the premises in conformity with the notice, and that the monthly rental has been in excess of $100 monthly.

For answer, the defendant admitted the execution of the lease, the receiving of the notice to vacate, and that the amount of the monthly rental exceeded $100, but denied the remainder of plaintiff’s petition. In further answer, defendant avers that the said lease, prior to its termination had been mutually extended on an annual basis; that relying upon the said extension, he had expended various sums in improving, renovating and making the premises more attractive, amounting to the sum of $1500, all at the request of the plaintiff; that he incurred attorneys’ fees to the amount of $500 in defense of the suit, and has been damaged to the sum of $1000 for his inconvenience, personal expenses and mental anguish; that as a further consideration of the extension of the lease on an annual basis, defendant was to handle and sell plaintiff’s products at certain other stations owned or leased by him or the A. M. Edwards Co., Inc. By supplemental answer, in the alternative, he avers that the lease was renewed by the operation of law, to-wit, reconduction on an annual basis. His prayer is that' plaintiff’s suit be dismissed and that he be granted judgment in his favor and against the plaintiff in the sum of $3000, with interest and costs.

The trial of the case resulted' in a judgment dismissing plaintiff’s suit, at its costs, and disallowing defendant’s reconventional demand as of non-suit. Plaintiff has appealed.

The only admitted facts in this case are that the filling station and appurtenances were leased by the plaintiff to the defendant by written contract of lease for one year from noon on July 1, 1945, to noon on June 30, 1946, without any provision for the privilege of extending or automatic renewal of the said lease. That at the expiration of the said lease on June 30, 1946, the plaintiff allowed defendant to remain in the occupancy of the leased premises on the same monthly rental payment as provided for in the expired lease. That plaintiff, on December 28, 1946, notified the defendant, by letter, which letter was received by defendant on December 31, 1946, that it was desirous of terminating the lease as of January 31, 1947, and requested the defendant to vacate and surrender possession of the premises to it as of that date; and that the rental exceeded the sum of $100 per month. The remainder of the facts are highly controversial and in conflict as can readily be deduced from the pleadings.

The plaintiff, in substantiation of its position, offered the testimony of Mr. Case Wilburn, its district manager in charge of its Tangipahoa Parish business, and a pri- or lease, covering the station involved herein from it to defendant, executed on June 1, 1942, for a term of one year from July 1, 1942, to June 30, 1943, with a clause reading as follows: “It is agreed that this lease shall be automatically renewed from year to year, unless and until either party gives to the other fifteen (15) days’ prior written notice of its intention to terminate the lease at the end of the first year or at the end of any subsequent yearly period.”

The testimony, on direct examination of Mr. Wilburn, is short, and, therefore, we will quote it in full:

“Q. Will you state to the Court when and under what circumstances this discussion was had and the substance of the discussion had? A. In about May of 1946, Mr. Edwards and I were in my automobile and we were discussion (discussing) several problems that came up. In the conversation, I asked Mr. Edwards — I told Mr. Edwards that we did not plan to release our service station to him at Hammond. At that time Mr. Edwards asked me why and I told him there were several reasons but one was the fact he refused to lease us his station in Ponchatoula — was one of the reasons. He said he couldn’t understand that and I told him that is the way we felt about it. The conversation went on along those lines and we came up in front of his place of business, the Motor Company, and I told him we would let it go on a month to month basis until we decided what we were going to do, and Mr. Edwards at that time looked at me and got out of the car and there wasn’t any more conversation about the lease. I drove on back to Baton Rouge.
"Q. You told Mr. Edwards you wouldn’t consider leasing this station to him at the termination of the written lease in June, 1946? A. Yes.
“Q. On any basis other than month to month lease? A. Yes, There wasn’t any discussion about it month to month. I just mentioned it.”

On cross-examination, he was emphatic that there was no verbal renewal of the lease on an annual basis, insisting that it was only on a monthly basis. He emphatically denied that it was agreed that defendant could have this station as long as defendant sold plaintiff’s product at the other stations operated by the defendant. He testified that defendant, through information, had had this station for some ten or twelve years or more, and that plaintiff’s products had and were being sold at the station in contest and other stations of the defendant, particularly at the Welch Station at Ponchatoula, owned by defendant, the defendant being the bulk station agent of plaintiff for Tangipahoa on a commission basis. He admitted that plaintiff has leased the station in contest to former employees of defendant.

The defendant testified that he is the Commission agent of the plaintiff and has had the station in question as lessee for some twelve years under written leases. “The way the leases went, to the best of my knowledge, they would renew themselves from year to year on some kind of extension basis.” He states that on the occasion referred to by Mr. Wilburn, Mr. Wilburn requested a lease of the Welch Station which he owned and he refused to lease the station to plaintiff, and “Mr. Wilburn said we cannot lease you the company-owned 'station known as the Thomas and Magnolia station in Hammond (the station in question), and I said Well, we don’t need any written lease to do business, if we were continuing to do business on the same basis as before, which was expressed in the written lease and which was agreeable to him.” He further states that he did not have any other agreement changing or modifying that agreement with Mr. Wilburn and that he and Mr. Wilburn agreed at that time that the lease of the station in question would be renewed under the same terms and conditions as provided for in the written lease, inferring that the lease was extended on an annual basis. Later on, on cross-examination, he is firm in his testimony that the written lease was extended orally on an annual basis, and categorically denies that there were any discussions of the lease being extended or renewed on a month to month basis, and that the first of such a contention on behalf of plaintiff were when he received the letter of December 28, 1946.

The only question presented herein is whether the lease was renewed on a month to month basis, as contended by plaintiff, or on an annual basis, as contended by the defendant. Since the principal witnesses’ testimony is in conflict, we must look for corroborating circumstances.

It is admitted by the defendant that it was the policy of the plaintiff to lease this station to him by written leases, and that such written leases usually had a renewal clause (quoted supra), contained in the lease of June 1, 1942, the prior lease to the lease in question. Under this clause, the lease was automatically renewed on the annual basis. We fail to find such a clause in the lease under consideration. The reason therefore cannot be indulged in or presumed. This fact seems to corroborate Mr. Wilburn’s testimony that he did not care to renew the lease on an annual basis but merely allowed the lease to expire and the defendant to remain in possession of the filling station on a month to month basis. Furthermore, plaintiff leased this property to a third person.

The corroborating circumstances in favor of the defendant is the fact that prior to the expiration of the lease, plaintiff sought to obtain a lease from defendant on the Welch station at Ponchatoula, which he refused. Plaintiff allowed the lease to expire without taking any action at or after its termination to obtain possession of the premises for some six months, leaving the defendant under the impression that there was a mutual renewal of the lease on an annual basis, as had been on prior occasions.

The fact that defendant was the commission agent of the plaintiff and was handling plaintiff’s products at several stations owned or operated by him has no material bearing on the case. This fact could not renew the lease. In fact, this contention of defendant is inconsistent with his contention that the lease was renewed on an annual basis.

Our conclusion, under the evidence, is that there was no meeting of the minds. In fact, according to Mr. Wilburn’s testimony, when he, the witness, mentioned the renewal of the lease on a month to month basis, defendant turned around and went away without giving his approval and consent. Likewise, Wilburn is emphatic that he did not consent to a verbal renewal of the lease on an annual basis. Therefore the question has to be decided as one where a written lease has expired without any express extension or renewal, and one where the lessor has permitted the lessee to remain in possession of the property for six months, thus creating a tacit reconductiort of the lease.

The plaintiff contends that the situation is controlled by the provisions of Article 2689, Revised Civil Code, which reads as follows: “If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he can not be compelled to deliver up the house or room without having received the legal notice or warning directed by article 2686,” which said Article 2686 provides that a written notice of ten days prior to the expiration of the month which has begun to run be given by the other party desiring to put an end to the lease. In substantiation of its contention plaintiff cites the case of Le Blanc v. Barielle, La.App., 25 So.2d 638.

The defendant contends that the lease has been reconducted on an annual basis, under the provisions of Revised Civil Code Article 1817, which reads as follows: “Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other,” and Revised Civil Code Article 2688, which reads as follows: “If, after the lease of a predial estate has expired, the farmer should still continue to possess the same during one month without any step having been taken, either by the lessor or by the new lessee, to cause him to deliver up the possession of the estate, the former lease shall continue subject to the same clauses and conditions which it contained; but it shall continue only for the year next following the expiration of the lease,” and the following cases: Mossy v. Mead, 2 La. 157; Foucher v. Leeds, 2 La. 403; Classen v. Carroll, 18 La.Ann. 267; Mossey v. Mead, 4 La. 195; Armstrong v. Bock, 20 La.Ann. 190.

Since the property in question is a lot, with buildings thereon, situated in the City of Hammond,, and since plaintiff permitted the defendant to remain in possession of the said property for mo.re than one week after the termination of the written lease, we are of the opinion that a tacit reconduction of the said lease on a month to month basis as provided for,under Civil Code, Article 2689, supra, rather than on an annual basis under Civil Code, Article 2688, took place.

We are fortified in our conclusion by the recent decision rendered by the Orleans Court of Appeal in the case of Le Blanc v. Barielle, 25 So.2d 638, 640, wherein the same contention is made by the present defendant, including the same citations, were made relative to tacit reconduction of a lot under a written lease, and in disposing of the issue that court stated:

“[4, 5] Counsel for Barielle argues that in permitting him to remain in the prem-íses, LeBlanc, by his silence and inaction, created the obligation to let him remain for the extended term. He cites Civil Code, Article 1817, which reads as follows:
“ ‘Silence and inaction evidencing assent. —Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence ■of the lessor on the other.’
■ “But the fact that LeBlanc permitted Barielle to remain in the property cannot be construed as an assent to the extended term provided for in the option, for it seems to be well settled that where a lease which contains an option for a term renewal is allowed to expire, the fact that the lessor does not at once require the lessee to vacate does not constitute acquiescence in the extended term but merely brings about a re-conduction under the appropriate articles of our Civil Code — 2689, where a house or a room is involved or 2688, in the case of a predial estate. That exact question was considered in Mossey v. Mead, 4 La. 195. There, the lessee leased his house to a tenant for one year with the agreement that if the tenant required it ‘he should have the privilege of remaining seven years longer at the same rent.’ During the original term no notice of intention to take advantage of the option for an extended term was given but after the expiration of the original year, the tenant or his successor was allowed to remain in the property for three years and the lessor accepted the monthly rent each month during those years. It was contended that by accepting the rent money each month for those years after the expiration of the original term, the lessor should be considered as having acquiesced in the extension of the lease for the seven year period. The court held that the acceptance of the rent merely constituted a reconduction in accordance with the articles of the Code and did not bring about the extension for seven years, which could only have been accomplished by actual notice given by the lessee of his intention to renew. In Dolese v. Barberot, 9 La.Ann. 352, the Supreme Court reached the same conclusion and there tersely said:
“ ‘* * * There having been no agreement between the parties to renew the lease, and the privilege of renewing it either for three or six years accorded to the defendant by an express stipulation not having been exercised by him; the effect of his holding over after the expiration of the term of the original lease was to constitute a tacit re-conduction from month to month. * * *’
“See also Bowles v. Lyon, 6 Rob. 262.
“The conclusion reached in Classen & Co. v. Carroll, 18 La.Ann. 267, is not inconsistent with the above-stated well-established rule, though a reading of the syllabus in this case might create the impression that the court there held that a situation similar to that involved here was controlled by Article 1817 of our Code, which provides for the obligation which, under certain circumstances, is created by silence and inaction. That syllabus reads as follows:
“ ‘Silence and inaction are, under some circumstances the means of showing an assent that creates an obligation; if after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.’
“But that does not accurately set forth the conclusion that was reached in that case. There tenants were permitted to remain in a building for many months after the original term of the lease had expired but they did not pay rent for fifteen months and when the landlord attempted to collect rent for that period they took the position that the original lease had not been extended. Though the decision is a little confusing, the tenants apparently maintained that the rent which they might owe for that fifteen month period was not controlled by the original agreement. The Supreme Court held that under those circumstances the terms of the original lease were extended into the period of reconduction and that the amount of rent to be paid and the obligation due by the tenants during that fifteen month period were controlled by the terms of the original lease. The holding in that case is not inconsistent with the established rule that where a lessor permits a lessee to remain in occupancy of the leased building after the term of the original lease has expired, this does not constitute anything more than a reconduction under the articles of the Code.
“[6] In an interesting article in Louisiana Law Review, Vol. 1 at page 443, entitled, ‘Tacit reconduction — A New Lease,’ the author points out that from many decisions in this state there has been created confusion as to whether a reconduction of an urban lease constitutes a new lease or is merely an extension of the original agreement. But whether the reconduction of a lease of urban property constitutes a new agreement or is merely an extension of the original agreement on a month to month basis is not important here, for in any event under the provisions of the Code the recon-duction may be terminated by either party on the giving of proper notice. This was held in Bowles v. Lyon, supra, which case the author of the article to which we have just referred, cites and which he refers to as being a case in which the Supreme Court ‘clearly analyzed the whole problem and spoke of the reconducted lease as a "new lease” ’ ”.

The proper notice required by Civil Code Article 2686, supra, was given here and therefore the defendant must be required to vacate the property, and that part of the judgment not so decreeing must be annulled, avoided and reversed. Since the defendant did not appeal or answer the appeal, we are not concerned with that part of the judgment dismissing his reconven-tional demand as of non-suit. Plaintiff’s right of any claim for damages, if any, will be reserved.

For the reasons assigned, it is ordered that the judgment appealed from, in so far that it dismissed plaintiff’s suit with costs, be and the same is hereby annulled, reversed and set aside.

It is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Standard Oil Company of New Jersey, and against the defendant, Leon Edwards, ordering and condemning the said Leon Edwards, immediately upon the finality of this decree, to vacate the property and premises described as follows:

Lots 10 and 12 in Square 55 as per original plan and survey of the Town of Hammond, Parish of Tangipahoa, State of Louisiana, and the said lots measuring 50' each on Magnolia Street and extending back bteween parallel lines 150' on Thomas Street, and forming the South 2/3 of the SEj4 of said Square 55, together with all water rights and privileges as it now exists from the artesian well on the adjoining property, — acquired by vendor herein from Bres Motor Company as per deed in Conveyance Book 93, page 487, of the records of the Parish and State.

Together with all rights-of-way, easements, drive-ways and pavement, curb and street front privileges thereunto belonging and together with all the buildings, improvements and equipment thereon or connected therewith, including the following property:

4 — Calcometer Pumps

2 — 20 Bbl. Tanks

2 — 10 Bbl. Tanks

1 — Air Compressor

1 — Hydraulic Lift

1 — Barrel Pump

1 — T—36c—1 Bbl. Lub Tank,

Defendant appellee to pay all costs.

It is further ordered that plaintiff’s right of any claim for damages, if any, be reserved unto it.

And as thus amended, the judgment is affirmed.


text:
    RICHARDSON v. AMERICAN EMPLOYERS’ INS. CO. et al.
    No. 2910.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Writ of Certiorari Denied Nov. 10,1947.
    For former opinion, see 31 So.2d 527.
    Thompson Lawes & Cavanaugh, of Lake Charles, for appellant.
    M. R. Stewart, of Lake Charles, for ap-pellee.
   PER CURIAM.

Defendant-appellants, in their applications for rehearing, urge as error the fact that we applied the test established by cases of Hecht v. Higgins Industries, Inc., La. App., 25 So.2d 351; Butzman v. Delta Shipbuilding Co., La.App., 21 So.2d 80; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Stovall v. American Employers’ Ins. Co., La.App., 26 So.2d 321, instead of following our own jurisprudence as reflected by our decision in the case of Washington v. Holmes & Barnes, La.App., 4 So.2d 51, which decision was followed in the same case reported in La.App., 5 So.2d 195, and also in the cases of Barentine v. W. R. Aldrich & Co., La.App., 20 So.2d 635; Williams v. American Mutual Liability Ins. Co., La.App., 21 So.2d 521, and Vilce v. Travelers Ins. Co., La.App., 24 So.2d 485. They contend that the factual situation in the instant case is practically the same as was in the Washington case and the cases which followed. They contend that we did not make any attempt to distinguish the present case from these cases, regardless of the fact that they were cited in the original brief, and that we either overlooked them ■or intended to overrule our jurisprudence as established by these cases.

In answer to defendant-appellants’ contention we say that each case must be decided upon its own facts. No two cases are factually alike. Rules and tests are established by the cases to guide the courts in interpreting the Compensation Act. We did not overlook the Washington case and the other cases which followed the Washington case, nor was it our intention to overrule this case nor the jurisprudence formulated by that decision. We felt then, as we feel now, that said jurisprudence was not applicable to the case at bar in that in all of these cases there was medical testimony definitely fixing a percentage of disability.

We have carefully reread the record in this case, particularly the medical testimony offered by both the plaintiff and the defendants. We fail to find any semblance of testimony relating to any degree of partial disability of the plaintiff to do general manual labor. To the contrary, we find, as stated in our original opinion, that the medical testimony preponderates in our holding that, due to plaintiff’s condition, he is unable to do general manual labor, therefore our original holding that plaintiff is totally and permanently disabled is adhered to.

Furthermore, in the instant case we stated in the opinion [31 So.2d 527, 531]: “The evidence satisfies us that he has lost the use of his right arm in the lifting of heavy objects or the reaching for objects above his head, unless the joint between the collar bone and the sternum is surgically and completely repaired, which, according to the preponderance of medical testimony is doubtful.” We note that this conclusion of ours is not challenged by defendant-appellants.

Application of defendant-appellants is therefore refused.

In plaintiff-appellee’s application for rehearing, he contends that we erred in not casting the defendant-appellants for all costs and in not allowing him five per cent, as damages for frivolous appeal.

In answer, we say that the original judgment, which was amended and affirmed, cast the defendants for all costs and we disposed of his demand for damages.

His application for rehearing is refused. Both applications refused.