author: TALIAFERRO, Judge.

text:
    WHITE v. OAKES.
    No. 7082.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    C. J. Bolin, of Shreveport, for appellant.
    Tooke & Tooke, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sued to recover the price of fuel oil sold and delivered by him to the defendant, that was consumed in the drilling of a well for oil in DeSoto Parish, during the months of December, 1943, and January, 1944. The quantities of oil sold and delivered, the price thereof, and dates of deliveries, follow, to wit:

“December 21, 1943, 50 barrels fuel oil $ 80.C0 State tax .^0
December 28, 1943, 32 barrels fuel oil 51.20
State tax .51
January 5, 1944 TO barrels fuel oil 80.00
State tax .SO
January 10, 1944 50 barrels fuel oil 80.00
State tax .80
$294.11
Dess credit paid Dec. 28, 1943 20.16
$273.95“

Before answering, defendant moved for a bill of particulars wherein he alleged that during said months he or his wife made several payments on the account with plaintiff, some to plaintiff’s wife, some to his son, and others to his maid; that he is unable to answer the petition “until he has been furnished with an itemized statement of the amount of the payment and dates thereof”; and that he be not required to answer until this information is provided by the plaintiff. The motion was overruled. Answering, defendant pleaded payment of price of all oil purchased by him from plaintiff. He did not, however, set out how, when or to whom payment or payments were made. No details whatever are alleged by him in amplification of the plea.

The plea of payment was overruled, and judgment rendered for plaintiff for the full amount for which he sued. Defendant, after unsuccessful effort for new trial, appealed.

The motion for bill of particulars was properly overruled. It was designed to procure information that should more likely have been in the possession of defendant than in that of plaintiff. Payment is a special defense and the burden of proof to sustain same rests upon the pleader. He should not rely for success upon eliciting from his opponent a character of proof that he, himself, should be in a better position to give. In this instance, defendant did not allege that plaintiff had any records, which, if produced, would reveal the facts he sought to learn. The truth is, no such records were in existence unless in defendant s possession, as will be clearly disclosed from what we shall hereinafter say on the subject.

The method employed for the conduct of business between plaintiff and defendant was somewhat crude. Defendant needed fuel oil every few days to continuously prosecute drilling the well and plaintiff did what he could to keep him supplied with such fuel. The operation required about 20 gallons daily.

Plaintiff’s business was conducted practically on a cash basis. He kept no books whatever. When defendant needed oil he would come to plaintiff’s place of business or call him or his wife on the ‘phone and request that fuel be delivered at the well. Plaintiff’s truck’s capacity was SO barrels and in such quantity, with one exception, he made deliveries to the well. In each of such instances plaintiff or his wife made out in duplicate an order or sales ticket that showed the date, quantity and price of oil delivered. The original of this order or ticket would be signed by one of defendant’s agents or workmen at the well, when the fuel was delivered, and would be retained by plaintiff. The copy would be given to defendant or the person who signed the original. The rule was that when the book containing the signed original was returned to plaintiff, the original was torn therefrom and placed in an alphabetical file. When defendant paid for the oil this original order or ticket would be taken from the file, receipted by plaintiff or his wife, and delivered to defendant. Thereafter, plaintiff would have no record of the sale.

On or about December 27th defendant called at plaintiff’s place of business and then, it was thought by him and plaintiff’s wife, he paid in full all he was due plaintiff for oil; in fact, he paid $20.16 more than the amount of tickets in the file, which were receipted and delivered to him. However, it was subsequently discovered by plaintiff’s wife that one ticket for SO barrels, carrying a charge of $80.80, had not been removed from the ticket book and placed in the file. Defendant was promptly advised of this oversight and, as a witness, does not deny this.

The only documentary evidence introduced by defendant to support the plea of payment is his cancelled check in plaintiff’s favor, for $161.60, dated January 1, 1944, on the face of which appears: “For 2 load oil.”

At that time, according to the record of sales sued on, excepting the ticket that had not been put in the file, above referred to, defendant owed for only 32 barrels of oil or the sum of $51.20, against which there was a credit of $20.16. The record does not definitely disclose the fact but a strong presumption arises that in view of the method of business transactions between the parties this check was intended to pay for oil delivered after December 28th, the date the 32 barrels were delivered, and the date of the check. Surely a check for this amount would not have been given to plaintiff unless it was known that there was due him a much larger amount than the small balance above mentioned. In addition, the notation on the check calls for two loads, equal to 100 barrels, and, of course, it cannot be said that the check was intended to pay for the two loads that were thereafter delivered on January 5th and January 10th. Defendant does not so testify. He did not positively testify that he had paid the price of all oil for which he was sued. When asked if he owed plaintiff any amount for oil, he answered: “I don’t think so”.

In the motion for bill of particulars, of the information soug'ht to be procured from plaintiff is the following: “Payments made by Mrs. E. T. Oakes, wife of your defendant, to Mrs. J. L. White, wife of plaintiff, from December 15, 1943, through the month of January, 1944”. Mrs. Oakes was not introduced as a witness. Presumably, had she made any payment in January it would have been for the sale on the 5th and/or 10th of that month, as these are the only sales made during that month, and had she done this, her testimony, it seems to us, would have been introduced.

This case resolves itself into a simple legal proposition. Defendant admits purchasing the oil for which he is sued and pleads that he has paid for same. He does not positively testify that such payment has been made by him, whereas plaintiff and his wife testified positively that payment had not been made for the oil. To support this position they point to the fact that they are in possession of the signed sales tickets or orders, when, under the method of business dealings with defendant, had the charges been paid, these tickets or orders would be in defendant’s possession. There is force in this contention.

Defendant strenuously argues that after the check of $161.60 was introduced in evidence the burden of showing for what oil it paid shifted to plaintiff, and the failure by him in rebuttal to adduce such proof creates a presumption that the check was given and received as a payment for oil for which sued. We do not agree with this line of reasoning. Defendant, of all persons, should know for what oil the check was issued to pay.

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

KENNON, J., absent.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    ETRESS v. SHREVEPORT RYS. CO., Inc.
    No. 7135.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.

      Morgan, Baker & Skeels, of Shreveport, for appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, for appellee.
   HARDY, Judge.

This is a suit for damages alleged to have been sustained by plaintiff as the result of an accident while a paying passehger on a trolley bus operated by the defendant company. Judgment of the District Court, after trial on the merits, rejected plaintiff’s demands, from which judgment she prosecutes this appeal.

The facts show that on September 19, 1945, plaintiff, Mrs. L. E. Etress, a widow, who was at the time 57 years of age, boarded a trolley bus of the defendant, Shreveport Railways Company, on the Fair Grounds route, at or about the hour of 3 :30 p. m. The trolley proceeded uneventfully on its course to a point on Texas Avenue near the intersection of Allen Avenue, where one of the tires blew out, thereby preventing the further operation of the bus. The operator pulled the bus over to the curb line of the street, brought it to a stop, informed his passengers that he would call the company office, and left the bus. He then proceeded to lower and secure the trolleys, made his telephone call, returned to the bus and advised the passengers that they would be transferred to another bus. Some few minutes later the following bus stopped and the transfer of passengers was begun.

Plaintiff proceeded to the exit at the ■front part of the bus in line with other passengers, some 25 in number, her location being about the middle of the evacuating group. As plaintiff reached the front door of the bus she sustained a fall which precipitated her from the bus to the sidewalk, in which fall she suffered the injuries which are made the basis of this action.

As grounds for recovery plaintiff has alleged a number of acts of negligence on the part of defendant, which may be briefly resolved into specific charges, to the effect that plaintiff caught the heel of her shoe upon the up-raised edge of a metal strip which was placed across the top of the entrance step of the bus, and which strip in such a place constituted a trap for disembarking passengers; that warning signs of the danger of the raised step were not posted, and that the bus operator was negligent in allowing the passengers to rush out of the bus in a disorderly manner.

Some of the charges of negligence may be briefly disposed of. There is no showing in the record which would establish any negligence on the part of the trolley operator. On the contrary, it is affirmatively established by the great preponderance of the testimony that there was no disorder, no rushing, no confusion, among the passengers during the process of disembarking, nor is there any showing that plaintiff’s fall resulted directly or indirectly from any jostling or pushing.

Since plaintiff unquestionably occupied the status of a fare-paying passenger on the bus of the defendant, a public carrier, the burden of proof rests upon the defendant to show that it was free of any negligence which caused or contributed to the accident.

The only serious question remaining for discussion bears upon the nature of the metal strip, which is charged by plaintiff to have been the cause of the fall. For reasons which are hereinafter set forth, we deem it unnecessary to comment, except in passing, upon the point that in our opinion plaintiff has failed to satisfactorily establish the fact that the metal strip or plate which is complained of was the cause of her fall. The testimony of the plaintiff on this point is open to considerable question since she testified that after catching her heel on the offending metal, and while in the act of falling precipitously forward out of the bus, she was “able to look back” and see what had caused her fall. This testimony we find to be completely unconvincing, for reasons which are obvious.

In order to thoroughly understand the contentions of plaintiff and the basis of the defense, it is necessary to detail the nature and location of the metal strip. This strip, or metal plate, of 16-gauge iron, is attached by means of screws to the edge of the bus floor at the front exit. The floor is rubber and the metal plate is forced, by means of the screws, into this rubber so that the edge of the plate is practically flush with the flooring. The purpose is designed to prevent .the curling of the rubber flooring at the extreme edge, which would unquestionably constitute a hazard. This is standard construction of the particular type of busses in use by the defendant company in .the City of Shreveport.

We are unable to accord agreement with the contention of plaintiff that this metal strip, attached as described for the purpose set forth, constitutes such a hazard or danger as to be considered a trap for unwary bus passengers. Inasmuch as there is not the slightest showing, either by allegation or proof, that the strip itself was in a state of disrepair, we do not find that there was any negligence on the part of the defendant company attributable to the failure to keep the bus, or the specific part thereof in question, in a proper state of care and repair. If the plate actually projected above the flooring, which is not shown to have been the case, the projection was so slight that it could not be considered in any manner as falling within the classification of a trap. Inasmuch as there was no trap nor any known dangerous condition, there was no obligation on the part of defendant to place any warning signs.

By way of additional defense, it was established by the defendant that handrails and upright stanchions are conveniently placed at the entrance of its trolley busses designed for the obvious purpose of being used by passengers in embarking and disembarking, which use by the plaintiff in the instant case would have unquestionably served to prevent her fall.

We have examined the cases cited by counsel for plaintiff but do not find them to be applicable to the facts developed herein. The case of Jones v. Baton Rouge Electric Company, La.App., 192 So. 539, 541, bears upon the presumption of negligence against a carrier in accidents which occur as the result of some defect in the vehicle or its equipment. We point out that there is no evidence of any defect of construction or equipment in the instant case.

The case of Hopkins v. New Orleans Railway & Light Co., 150 La. 61, 74, 90 So. 512, 19 A.L.R. 1362, is authority on the duty of the carrier to furnish a safe and unobstructed exit, and, certainly, there has been no showing in the instant case of any lack of safety or of any obstruction. The case of Kitsap County Transportation Co. v. Harvey, 9 Cir., 15 F.2d 166, 48 A.L.R. 1420, concerns facts involving the danger of a 10-inch raise above the floor level of seats, which facts are in no sense analogous to this case. Nor do we find the facts and circumstances in Kvart v. Swedish American Line, 2 Cir., 126 F.2d 279, or in Schonleben v. Interborough Rapid Transit Co., 160 App.Div. 790, 145 N.Y.S. 682, to be comparable to those which are involved herein.

Plaintiff has failed to show the neglect of any duty of care on the part of the defendant, and defendant has successfully controverted any presumption of such failure by the preponderance of the evidence developed.

By reason of this finding there is no necessity to discuss the further defense of contributory negligence on the part of the plaintiff.

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

KENNON, J., absent.


author: DORE, Judge.

text:
    UNIVERSAL C. I. T. CREDIT CORPORATION v. VICTOR MOTOR CO. et al.
    No. 2978.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.
    Kaufman & Anderson, of Lake Charles, for appellants.
    Selby & Hickman, of Lake Charles, for appellee.
   DORE, Judge.

The facts in this case are undisputed. On July 2, 1946, Oliver-Lilly Motor Company of Gre/.ada, Mississippi, sold and delivered to Robert E. Boyett, whose address was General Delivery, Grenada, Mississippi, a certain automobile and the said vendor and vendee executed a conditional sale contract. On the same day and date Boyett, the purchaser, executed and delivered to the seller a purchaser’s or customer’s statement in which he gives as his address “Grenada, Miss., Gen. Del.,” declares that he has lived at the present address for two years, is employed by himself as a contractor at Grenada, Miss., for seven years, gives as his nearest relative R. R. Boyett, father, residing at 308 Davis St., Cleveland, Miss., and trade references R. R. Melton, 612 Sunflower, Rd., and Cleveland Lumber Company, both of Cleveland, Miss., and further states that the said motor vehicle is to be used for pleasure and business. The conditional sale contract provides that the seller retains title to the automobile until the purchase price has been paid, which contract is legal and enforceable under the laws of Mississippi and need not be recorded. This contract,, together with the customer’s statement, was sold and assigned to plaintiff on July 2,. 1946, the date of execution. On July 18, 1946, before the entire purchase price had been paid, and without requesting or obtaining the permission, and without the knowledge of either the vendor or the plaintiff, the purchaser Boyett took the automobile from Grenada, Mississippi, to Lake Charles, Louisiana, and sold it, for a cash consideration, to defendants, used car dealers, who, in turn, sold it to a third person. Defendants acted in good faith in purchasing the automobile, and without any knowledge that any other person claimed title to it under the laws of Mississippi. It was only after the removal and sale of the automobile that the plaintiff or vendor had knowledge that the said car had been removed from the State of Mississippi, and subsequently sold. The conditional sale contract was not recorded in the records of Calcasieu Parish, or of any other Parish in the State of Louisiana.

It was stipulated and agreed that there remained the amount of $483.84 still due and unpaid on the said automobile according to the conditional sale contract, and, in the event of recovery by the plaintiff, a judgment for that amount would be granted to plaintiff instead of the possession of the automobile.

The question presented to the lower court was whether or not the conditional sale contract entered into in the State of Mississippi, under the above-stated facts, should be recognized and given full force and effect in this State, or whether the defendants did acquire title to the automobile to the prejudice of plaintiff.

A trial of the suit resulted in a judgment in favor of plaintiff. Defendant has appealed.

The jurisprudence of this State applicable to conditional sale contracts is now well settled and can be stated thusly: In spite of the fact that conditional sales are invalid when contracted in Louisiana, the Louisiana courts, through comity, have recognized sales executed in other states, even as against a bona fide purchaser or pledgee of the vendee, where the object has been removed to Louisiana without the knowledge or consent of the vendor. Overland Texarkana Co. v. Bickley, 1922, 152 La. 622, 94 So. 138; Finance Security Co. v. Conway, 1933, 176 La. 456, 146 So. 22; Hinton Co. v. Rouse, 1926, 4 La.App. 471; Security Sales Co. of Louisiana v. Blackwell, 1928, 9 La.App. 651, 120 So. 250; State ex rel. Grosjean v. Shurley, La.App., 1936, 165 So. 533. Where, however, if the removal to Louisiana is with the knowledge or consent of the vendor (or when the intent of the parties in contracting outside of Louisiana is to circumvent the law of the state), the conditional sale is not recognized. American Slicing Machine Co. v. Rothschild & Lyons, 12 La.App. 287, 125 So. 499, and Finance Security Co. v. Mexic, La.App., 188 So. 657.

Defendant, in this court, contends that if Boyett, the purchaser under the conditional sale agreement, could, without violating the terms of that agreement, remove the automobile from the State of Mississippi to the State of Louisiana, then the conditional sale agreement was intended by the parties to have effect not only in the State of Mississippi, but also wherever the automobile might be taken, basing his contention on the fact that the conditional sale agreement contains the following paragraph: “Said car will be kept at number and street - City and State -”, which was left blank regardless of the fact that the holder of said conditional sale agreement could fill in the said blanks, and the further fact that the said conditional sale agreement does not contain a stipulation against the taking of the automobile outside of the State of Mississippi, and relies on the cases of American Slicing Machine Co. v. Rothschild & Lyons and Finance Security Co. v. Mexic, supra.

In the American Slicing Machine Co. case the plaintiff sent its salesman, with a conditional sale contract prepared and printed by it, to Chrest Slavent in Ferri-day, Louisiana, who- there contracted with Slavent, in plaintiff’s name, to sell him a certain kind of machine for a certain price, part of which was then and there paid to the salesman by Slavent and the remainder of which he was to pay in instalments in the future; the machine to be shipped from out of the state to Slavent in Louisiana and there used by him and the remainder of the price sent -from there. The court held that under these facts the contract was intended to have its operation upon the property situated in Louisiana since it was begun, to be performed and to be completed here, and the parties must be held to have contracted with reference to the laws of this State, and that law must govern.

In the Mexic case a conditional sale contract affecting an automobile was entered into in Columbia, Mississippi, between a corporation domiciled therein and a resident of New Orleans, Louisiana. In connection with the said sale contract, the purchaser, in writing, made a statement giving his residence as No. 2312 Marengo Street, New Orleans, and his business address as No. 643 Magazine Street, also in New Orleans. He also stated, in this statement, that he had lived all of his life in that city and that he was employed by the Interstate Elecric Company, a well-known corporation located there. Upon the trial of the case, a representative of the motor company which sold the automobile and also a representative of the finance company which later acquired the contract, testified that, at the time of the execution of the sale contract, they knew that the purchaser lived in New Orleans and that the automobile would be removed to and located in New Orleans after the execution of the contract. The court held that it was clear that the documents, that is, the sale contract and the written statement themselves contemplated that the car would be taken to and kept in Louisiana.

The facts in our case differ substantially from those in these two cases. The conditional sale contract under consideration was executed between a motor company of Grenada, Mississippi, and a resident of that City and State, and in the State of Mississippi. In the purchaser’s or customer’s agreement, the purchaser, in writing, gave his home address as 'Grenada, Mississippi; that his landlord was also a resident of Grenada, Mississippi; that he had employed himself as a contractor in the said city for the past seven years; that his nearest relative not living with him was his father, who lived at Cleveland, Mississippi; and he listed two credit references and gave the address of each as Cleveland, Mississippi. All of this goes to show that it was contemplated by the parties that the automobile was to be kept at Grenada, Mississippi, at least, within the State of Mississippi, and not to be taken outside of said State, at least without the permission and consent of the holder of the sale contract. Furthermore, it is shown that neither the vendor nor the plaintiff granted any permission to the purchaser to move the automobile out of the State of Mississippi and they had no knowledge that the automobile had been moved out of that State until it had been removed by the purchaser and he had sold it.

The fact that there are no provisions in the sale contract against the removal of the automobile from the State of Mississippi does not and cannot infer' that the purchaser had the assent and permission of the vendor to remove the automobile from the State of Mississippi. Again we state that the intent of the parties as evidenced by the documents was that the automobile was to be kept at Grenada, Mississippi, or within the State until it was paid in full.

We are of the opinion that the cases relied upon by the defendant are inapposite to the case at bar, and that, defendant’s contention is not well founded either in reason or in law. Applying the jurisprudence as enunciated in the Overland Texarkana Co. case, and the other cases, supra, we are of the opinion that the judgment is correct.

For these reasons, the judgment appealed from is affirmed.


text:
    LOHMAN v. LONERGAN et al.
    No. 7114.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    Rehearing Denied March 8, 1948.

      C. B. Prothro, of Shreveport, for appellant.
    Leroy Smallenberger, of Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $450 deposited with the defendant, Lonergan, a real estate broker, as,a down payment on the purchase price of certain property, together with a like amount from the defendant, Dupuy, as a penalty. After trial there was judgment in favor of plaintiff and against the defendant, Lonergan, in the sum of $450, from which judgment the said named defendant has appealed.

The property in question, described as Municipal No. 1919 and 1919½ Highland Avenue in the City of Shreveport, Caddo Parish, Louisiana, consisting of a six-room dwelling and a five-room garage apartment, was owned by the defendant, Dupuy, in community with his wife.

On March 28, 1945, an agreement was executed by the plaintiff, Lohman, as purchaser; the defendant, Dupuy, as owner; and the defendant, Lonergan,' as agent. The signature of Joe Dupuy was affixed by his wife, Mrs. Dupuy, in his presence and under his direction. This document is of the character which makes accurate definition extremely difficult. While it is represented as being a “sales contract” it nevertheless contains certain recitals which designate the agreement as being one of sale and purchase in that it refers to the parties as “Seller” and “Purchaser”; to the transaction as “this sale”, and recites the receipt of $450 “which is part payment of the purchase price of the property hereinafter described, which property was this day sold by H. S. Lonergan, agent, for the undersigned owner * * *.”

The instrument contained several agreements with reference to the examination of title, time for curing defects and transfer of title within a five-day period after approval by purchaser’s attorney.

Under the designation of “Special Agreement” the following provision was included in the contract: “It is agreed that purchaser is to have possession of garage apartment within thirty days from date of sale. It is further agreed that the seller is to pay for the Federal stamp to be placed on the deed, and taxes are to be prorated to date of sale.”

Under our findings of fact we think it is immaterial whether the instrument above described be considered as an agreement of sale or a contract of sale. This is not a suit for specific performance but is an action to recover money paid on an agreement which was not carried out by the parties. The sum of $450 deposited upon execution of the instrument was by agreement of the parties, as set forth therein, to be held “in trust by H. S. Lonergan until transfer of property is made.”

Certain significant facts were definitely established on trial, namely, that on April 28, 1945, the plaintiff, Lohman, made demand for possession of the garage apartment at 1919J4 Highland Avenue, which demand was refused; that the garage apartment was at the time occupied by a tenant and that the owner, Dupuy, had made no demand on the tenant to vacate. Nor does the record admit of any question as to the fact that the agreement to give plaintiff possession of the garage apartment within thirty days from the signing of the agreement was an important and moving consideration in the negotiations. Plaintiff had recently moved to Shreveport with his family and was in need of a place to live. His testimony on this point is entirely credible and its effect is not lessened by the comparatively weak effort which was made to controvert this point.

There is no showing in the record of any tender' on the part of the defendants, or either of them, to carry through the agreement in accordance with its terms, and, indeed, it is conclusively established that they could not do so.

The only evidence of any effort on the part of the defendants to further the transaction consists of a letter directed to plaintiff by defendants’ attorney notifying him that the abstract of the property had been completed and was ready for delivery to plaintiffs attorney for examination. But this letter bears the date of May 9, 1945, which was some twelve days after the expiration of the period within which possession of the garage apartment on the property had been promised to plaintiff.

We think the facts related aré determinative of the issues involved. The matter appears to have been a simple transaction under the terms of which the defendant, owner of the property, agreed to do and perform certain- obligations, which were of the essence of the agreement, and which he was subsequently unable to do and perform. No default is shown as to plaintiff. We know of no theory which under the circumstances of this case would indicate the right of defendants, or either of them, to hold a deposit made by plaintiff. The plaintiff’s claim for the additional equal sum of $450 in the nature of a penalty against the defendant, Dupuy, was abandoned in the lower Court, which action was inspired by the entirely commendable motive on the part of plaintiff to refrain from penalizing the aged couple who were the owners of the property.

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

KENNON, J., absent


text:
    TURNER v. TRI-STATE AIRMOTIVE CO., Inc., et al.
    No. 7098.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 2, 1948.
    Rehearing Denied March 8, 1948.
    C. B. Prothro, of Shreveport, for appellants.
    Browne, Browne & Bodenheimer and John S. Webb, all of Shreveport, for ap-pellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $500 alleged to have been received by the defendants, Tri-State Airmotive, Inc., Nat Pedro, Vice-President, and George A. Young, President, represented by the proceeds of a check for a like amount, drawn in favor of defendant, Pedro, to which check the name of plaintiff was signed without authority by his son, Clifton L. Turner, Jr. After trial there was judgment in favor of plaintiff as prayed for, fro.m which judgment defendants bring this appeal.

The facts show that Clifton L. Turner, Jr., during the fall 'of 1946, was a flying student of the defendant, Tri-State Airmo-tive, Inc., under the personal instruction of the . defendant, Pedro, On October 27, 1946, young Turner and the defendant, Pedro, engaged in a discussion with reference to the prospective purchase of a certain air plane, described as being a Stear-man PT-17, owned by one Harry Mar-ineaux, for whom Pedro claimed to be acting as agent. On the date in question Turner gave the defendant, Pedro, the check which is the basis of this action. The check was drawn on the People’s Bank & Loan Company of Lewisville, Arkansas, to the order of Nat Pedro in the sum of $500. The check was not dated and was signed with the name “Clifton L. Turner.”

On November 9, 1946, Clifton L. Turner, Jr., rented a plane of the defendant, Tri-State Airmotive, Inc., and seriously damaged the plane in making a forced landing. After some attempts to recover the damages sustained by the rented plane the $500 check was deposited on November 25, 1946, to the account of the Tri-State Airmotive, Inc. The check was duly paid by the drawee bank and charged to the account of Clifton L. Turner before the unauthorized signature was detected, at which time the drawee bank notified the First National Bank in' Shreveport, which in turn notified the defendant corporation, requesting it to accept a charge-back of the amount against its account, which request was refused. . This suit was subsequently filed.

Defendants filed an exception of no cause and no right of action based upon the contention that defendants were the bona fide holders of the check involved herein under the appropriate provision of the Uniform Negotiable Instruments Act, Act No. 64 of 1904, and were relieved of all liability by payment of the check by the drawee bank; and, further, that there was no privity of contract between plaintiff and the defendants. In other words, it was the contention of the defendants in support of their exception, as is further argued*' on the merits, that any action by this .plaintiff for the recovery of the amount wrongfully paid on the unauthorized signature of plaintiff to the check should properly have been directed solely against the drawee bank, and that in the absence of any contractual relationship between plaintiff and the defendants there could be no right of action.

The exception’ was overruled, trial was had on the merits and judgment rendered in favor of plaintiff.

The same arguments which were advanced on behalf of defendants in support of their exception are presented on the merits to this matter, and we therefore proceed to a discussion of the issues raised.

We think defendants’ contention, based upon the provision of the Uniform Negotiable Instruments Act would be entirely tenable provided the proper predicate had been established, namely, that the defendants were bona fide holders of the instrument, for value and in due course. But the facts of the case do not bear out this claim. While there is a conflict of testimony as to the circumstances under which the check was given and received, we think the evidence clearly preponderates in favor of plaintiff. The testimony of young Turner is plain as to the understanding with Pedro, at the time of the giving of the check, to the effect that the check was not to be negotiated but was simply to be used by Pedro for the purpose of influencing Marineaux, the owner of the plane, to hold the same for delivery to young Turner if and when he produced the purchase price thereof. This witness farther testified that he told Pedro at the time that the check was no good and that he had no money in the bank. This testimony of Turner, although stoutly denied by Pedro, is substantially corroborated by another witness who was present at the time of the transaction. No attempt was made to negotiate the check until it was deposited on November 25th, almost a month after it was given, and then only following the incident concerned with the damaging of one of defendant’s planes by Turner and the unsuccessful efforts of defendants to collect for this damage.

There is no showing in the record that any bona fide effort was made by defendants to prosecute to a conclusion the negotiations for the sale of the Marineaux plane, and, in fact, the identical plane was subsequently sold an another person.

We think it has been satisfactorily established, by reason of the related facts, that defendants were not holders in good faith and for value of the instrument which they sought to negotiate.

We are unable to perceive any merit in the contention that there was no privity of contract between plaintiff and these defendants. This is not a suit on contract, but it is an action based on the right to recover a sum of money knowingly received! by parties who were not in good faith.

The plain provisions of Article 2301 of the Civil Code require the restoration of sums received unduly, • whether through error or knowingly, and Article 2311 provides for the payment of interest upon showing of want of good faith.

The evidence in this case appears to us to be conclusive on the point that the defendants knowingly attempted to' offset an unliquidated claim against Clifton L. Turner, Jr., to the extent of the face amount of a check drawn upon the account of Clifton L. Turner, Sr., against whom they had no claim, and of which check they were not holders in good faith.

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

KENNON, J., absent.


text:
    DOWELL, Inc. v. BAYOU STATE OIL CORPORATION et al.
    No. 7079.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    Melvin F. Johnson, of Shreveport, for appellant.
    Cook, Clark & Egan, of Shreveport, for appellees.
   HARDY, Judge.

This is an action for the recovery of damages to an automobile belonging to plaintiff corporation and' driven by one of its employees, resulting from a collision with a truck and trailer unit owned by defendant and driven by an employee. After trial there was judgment in favor of defendant, rejecting plaintiff’s demands, from which judgment plaintiff prosecutes this appeal.

At or about 9:30 p. m. on July 19, 1946,. at a point on Highway 71, about five miles north of the City of Shreveport, a 1942 model Chevrolet Coach belonging to plaintiff and being driven by one W. C. Roberts, an employee, in a northerly direction along said highway, collided with a 1940 Diamond T Truck snd Semi-Trailer of the defendant corporation, which at the time was being driven in a southerly direction by one A. B. Austin, a truck driver in the employ of the defendant corporation. Plaintiff claims damages in the sum of $905 less the salvage value of the wrecked automobile in the amount of $125.

The charges of negligence urged by plaintiff áre that defendant’s truck was being driven partially on the wrong side of the highway, and that the dual wheels of the trailer extended some 12 inches, more or less, beyond the clearance lights of the vehicle.

Defendant answered, denying the charges of negligence and countered with some seven allegations of negligence on the part of the driver of plaintiff’s vehicle, which may be briefly summarized as recklessness, excessive speed, lack of proper control, failure to keep a lookout, driving on the wrong side of the highway, swerving his vehicle into defendant’s truck, operating an automobile with dim headlights and an obscured view, and, finally, failure of the driver to avail himself of the last clear chance to avoid the accident by turning to the right of the highway.

Despite the voluminous record and the exhaustive briefs of counsel for the respective parties, we must confess that serious study and consideration by this Court has failed to satisfactorily establish in our mind the cause of the accident. ■

The only witnesses were the drivers of the vehicles involved, neither of whom has given any reasonable explanation as to the cause of the accident. The speed of the vehicles was not excessive, each driver observed the approach of the other vehicle, and each one obviously considered himself to be entirely in the right. The highway at the point of the collision is 18 feet '2½ inches in width. Plaintiff’s car is of the standard passenger car width of some 22 inches, more or less, while defendant’s 'truck was 96 inches in width. It therefore becomes apparent that there was an available clearance of some four feet, more or less, between the vehicles in passing.

Taking up plaintiff’s charges of negligence we do not find that any failure of proper clearance lights has been established, but, regardless of this point, our examination of the record is convincing to the effect that such failure, if the same existed, was neither a proximate nor a contributing cause of the accident. The driver of plaintiff’s automobile testified that on approaching the truck he kept his eyes on his right shoulder of the road and endeavored to keep his course as near such shoulder as was commensurate with safety. This testimony clearly eliminates any failure of lighting on defendant’s truck as a factor in the accident.

The driver of defendant’s truck is equally positive in his testimony to the effect that on approaching, plaintiff’s automobile he was careful to follow his course on his extreme right side of the highway.

The point of impact was immediately in front of the left fear dual wheels of the truck, at which point the left front portion, wheel and fender, of plaintiff’s car made contact.

Photographs of the scene of the accident, which were made the following morning by plaintiff’s employees, and the mass, of expert and near expert testimony with reference to the showing of skid-marks, indentations in the highway, etc., have failed to provide any decisive or material guides for a resolution as to fault, blame or negligence. The testimony as to the skidmarks is inferential and without any certainty of identification or connection with the vehicles involved, and the hopeless conflict of testimony as to the cause of the indentations in the highway does not serve to provide a basis upon which a definite pronouncement against one party and in favor of the other could be sustained.

Any number of speculative explanations are advanced by plaintiff and defendant respectively, and other equally likely explanations might be added. But the only clear and indisputable fact which has been established in this case is that the cause of the accident has not been proved.

It must be- borne in mind that the obligation. is on plaintiff to establish the negligence of the defendant by a preponderance of the evidence,. Plaintiff has failed to discharge this burden. Any attempt to determine and to pronounce upon the negligence of either party under the highly controversial and thoroughly unsatisfactory nature of proof as to the facts involved herein would be fruitless and futile.

The learned Judge of the District Court, who heard the witnesses, pronounced judgment in favor of defendant, rejecting plaintiff’s demands. This case involves purely- and simply issues of fact, and inability to point to any manifest error in the judgment of necessity requires the affirmation thereof. Careful examination and consideration has failed to disclose any such error.

Accordingly, the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent


text:
    WYNN v. VAUGHN et al.
    No. 7156.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    Kehearirig Denied March 8,1948.
    Jackson & Mayer, of Shreveport, for ■ appellant.
    Wellborn Jack, of Shreveport, for ap-pellee.
   HARDY, Judge.

This is a compensation suit in which plaintiff claimed to have been totally and permanently disabled as the result of an accident suffered while in the- scope and course of his employment. The defendants are plaintiff’s employer and his liability insurance carrier.

After trial there was judgment in favor of plaintiff and against the defendants fixing compensation at the rate of $20.00 per week for the period of plaintiff’s disability not exceeding 300 • weeks, from which judgment defendants have appealed. Plaintiff has answered the appeal, praying that the judgment be amended to the extent of providing recovery for the period of plaintiff’s disability not to exceed 400 weeks.

While working as a derrick man on a well being drilled by the defendant employer on January 22, 1946, plaintiff sustained a severe blow on the left leg from a broken piston' rod of the mud pump on the rig, which resulted in a fracture of the tibia and a compound fracture of the fibula between the knee and the ankle. He was immediately hospitalized, and the treatment accorded him necessitated an open reduction of the fracture and the placing of' a metal plate on the bone, affixed by screws. Plaintiff received compensation at the rate of $20.00 per week until November S, 1946, at or about which time he returned to work for defendant employer. On or about January 7, 1947, plaintiff was forced to discontinue his work, allegedly by reason of his pain and suffering and the inability to properly perform his duties, and, subsequently, instituted this suit.

There is no dispute as to the accident, the injury or the rate of pay, and the only issue presented by the instant case involves the existence vel non and the extent of plaintiff’s disability.

The burden is upon plaintiff in compensation cases, as well as in other civil matters, to establish his claims with reasonable certainty by a preponderance of proof. We fully agree wtih the findings’ of the District Judge to the effect that this burden has been adequately discharged by plaintiff in the instant case.

It is true that the only medical testimony in the record, presented by two distinguished surgeons who testified on behalf of defendants,, and who were the only witnesses in support of defendant’s contentions, is clear On the point that there appear to be no objective symptoms of disability. Despite the findings of the physicians on this point, we are of the opinion that plaintiff has established his claim as to the existence of physical pain and suffering. There is not the slightest indication in this record that plaintiff is a malingerer. .He is shown to be a man of about 36 years of age; his family consists of his wife and four children; he has been an oil field laborer for a long period of time and at the' time of his injury was earning wages approximating' $76.00 per week.

Since pain is purely a subjective symptom, medical science is not always able to determine its actual existence. But the mere fact that objective symptoms fail to disclose conclusive evidences of pain is not in itself sufficient, by any standard, to justify a finding that such pain does not exist.

In a determination of a matter of this nature therefore, it is essential that the courts carefully scrutinize all the evidence which bears upon this point. In the case before us we feel that plaintiff has evidenced his good faith by returning to work and attempting to perform his duties over a period of some two months. His testimony, and the testimony of one of his fellow employees during this time, which testimony is uncontradicted, is convincing to the effect that he was unable to do the work required of him during this period or to'perform his duties in a satisfactory manner.

Additionally, the testimony of plaintiff’s wife and several of his neighbors in the small community where he lived, who had known him for long periods of time, which testimony is also uncontradicted, discloses the fact that plaintiff has consistently given the appearance and has frequently complained of being in pain; that he has walked with a sort of hobbling or hopping gait, and that he has tired easily.

One of defendant’s medical witnesses testified that he would not recommend immediate heavy work on the part of plaintiff but indicated that exercise of the injured member might strengthen it to the point where plaintiff could again perform heavy labor. We think the record clearly establishes the .fact that plaintiff has done his part along this line, nor is there the slightest indication that the lack of strength and the asserted pain in his injured leg are due to any failure or lack of effort on his part.

Under the facts which we find have been clearly established in this case, there does not appear to be any means of fixing a definite period of duration of plaintiff’s disability with any approximation of accuracy. For this reason, we are of the opinion that the. District Judge was in error in limiting the allowance of compensation to 300 weeks.

Defendants in this case are fully protected by the rights accorded them under the Workmen’s Compensation Statute, Act No. 20 of 1914, as amended, in the event of plaintiff’s recovery to such extent as will permit him to return to work, and, for this reason, they cannot be prejudiced by the allowance of compensation for such period of time as plaintiff’s disability may endure, up to the full period allowed by law.

For the reasons assigned the judgment appealed from is amended by increasing the period for which compensation will be allowed to not more than 400 weeks, and, as amended, is affirmed at appellant’s cost.

KENNON, J., absent.


author: LeBLANC, Judge.

text:
    HIXSON FUNERAL HOME v. STATE.
    No. 2979.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.
    Arthur B. Hammond and Jos A. Loret, both of Baton Rouge, for Department of Highways.
    Jones, Kimball & Owen and J. Norwell Harper, all of Lake Charles, for appellee.
   LeBLANC, Judge.

This suit against the State of Louisiana was authorized by Act 252 of 1946.

It is one for damages to an automobile ambulance arising out of an accident which happened on the afternoon of August 10, 1945, on U. S. Highway No. 171 on the approach to the bridge which crosses Cal-casieu River about four miles north of Lake Charles, and known as Moss Bluff Bridge. The claim is restricted to repairs that were made necessary to the ambulance amounting to the sum of $321.03. The amount is not disputed.

The owners of the ambulance, plaintiff’s in this suit, are the proprietors of Hixson Funeral Home, a partnership composed of several parties, one of whom resides in the Parish af Beauregard and the others being all residents of the Parish of Cal-casieu.

They allege in their petition that on the date mentioned, the ambulance was proceeding in a northerly direction on its way from St. Patrick Hospital in Lake Charles, to deliver a patient to her home in Beauregard Parish, and that on approaching the bridge referred to, whilst the driver of the ambulance was proceeding in a careful manner, with the patient and her husband in the rear part and á guest sitting on the front seat' next to him, all of a sudden, without any warning or notice of any kind, a gate, being the gate on the south end of said bridge, which was used to stop traffic when the bridge is to be opened, was lowered immediately in front of and upon the ambulance, striking the top thereof and then scraping along the hood, into the windshield and then over the top, before dropping on the. bridge floor, causing the damage which is sought to be recovered. It is further alleged that the driver of the ambulance was not aware that the bridge was about to be opened or the gate lowered; that hewas approximately ten feet from the gate when it appeared visible to him and he was therefore unable to stop the ' ambulance and avoid the resulting collision.

Plaintiffs described the type of bridge that spans the river at that point and the construction of the gate used to stop traffic over it when the bridge is being opened or closed. All operations involved in opening the bridge and lowering the gate have to be done by a bridge tender who is employed by the Department of Highways of the State of Louisiana, which has full control over the same. Plaintiffs then allege that it is the duty of the bridge tender to operate the opening and closing of the said bridge and the lowering of the gates in such a prudent manner as not to create a hazard to the travelling public but that on the day of this accident he operated the same negligently and without due care and proper regard for the welfare and' safety of the people going over the bridge, his negligence consisting in the following: (1) In not sounding the siren on the bridge which was there to be used for a wárning that the gates on the bridge were about to be lowered; (2) In failing to look for approaching traffic before lowering the gates and in this particular instance in failing to see that the ambulance would be unavoidably struck by lowering it at the moment he did, and (3) In lowering it at a moment when the ambulance' was approximately under the gate itself, within his clear vision.

The defense to the suit may be said to be a denial of the acts of negligence charged against the bridge tender and a direct charge that to the contrary the accident was caused solely by the negligence and carelessness of the driver of the ambulance who drove the same into and caused it to collide with the gate after the gate had been lowered and was already in its proper position. It is averred that the gate was clearly visible to any one who might be looking toward it and that the driver of the ambulance either saw it or should have seen it when it was so lowered in time to stop before colliding with it.'

It is further alleged that the siren on the bridge was sounded loudly and long prior to the lowering of the gate and that the tender had otherwise complied with all of his duties in regard to opening the said bridge, especially in lowering the gate on the south end, into which the ambulance drove. In the alternative defendant pleads .that should there be negligence found on the part of the bridge tender in any way, which is denied, then the negligence as set out against the driver of the ambulance constituted contributory negligence on his part which bars recovery by his employers, plaintiffs herein.

The case went to trial on the issues as thus presented before it in the district court and resulted in a judgment in favor of the plaintiffs in the amount prayed for, together with legal interest from date of judicial demand until paid, and all costs of suit. From that judgment the defendant has taken this appeal.

There were three witnesses who testified with regard to the manner in which the accident happened. These were the driver of the ambulance, Wade Malone, the guest who occupied the seat next to him, Trillie Doyle and the bridge tender, Tom .McMul-len. The first two naturally wore in a position to see exactly how the accident happened. The bridge tender does not claim to have seen it as he insists that he had already lowered the gate in position and was on his way to the north end of the bridge to lower the gate on that end at the^ moment of the collision.

Malone and Doyle both testified most positively that the gate was not lowered and that when they first saw it was when it was about to strike the ornament on top of the hood of the ambulance as it was being lowered. McMullen on the other hand claims that it was already lowered and in position and that for the accident to have happened it was necessary for the ambulance to have'run into it.

No reason appears why the testimony of McMullen should be accepted over that of the other two witnesses when it is all considered from a standpoint of credibility and veracity. Counsel for defendant contends that the weakness of Malone and Doyle’s testimony was revealed on cross-•examination when they virtually admitted that they never saw the gate at all before they say they did and the only conclusion 'to be drawn from that is that they were not keeping a proper look-out ahead; ■ that even if the gate was being lowered, as they claim, they should have seen it before they say they did and the driver should then have had his ambulance under such control as to stop it before running into it.

We'do not agree with counsel in this contention. We believe that these two men ■Were truthful in saying that they never saw the gate until it was about to fall on the hood of the ambulance. The gate is manipulated 'by a chain hoist which is operated by hand by the bridge tender. In operating it he stands on a platform about 25 feet above the ground and in a position where he cannot be seen by approaching traffic. As we understand the manner of lowering the gate it looks as though it is almost impossible for the driver of an automobile approaching the bridge to see that it is being lowered when he is within a short distance of it. As the gate is being lowered from overhead, the approaching driver’s view is naturally obstructed' by the front end of the automobile top. Obviously if there was a warning or notice of some sort that the bridge is about to be opened and the gates lowered, he would be called on- to take the necessary precaution to meet the situation in approaching it.. But in this case it is admitted that although there was a siren on the bridge to give such warning, it was not being used at this time as there was no electrical current available to operate it with on account of the war conditions then existing; If there were any boat whistles blown nobody seems to have known anything about it and certainly there was no other signal given by the bridge tender on the ground that the gate was about to be lowered.

On the other hand it is rather hard to believe that two men approaching a bridge such as this, with a patient in an ambulance, would not be careful and that if there was a traffic gate blocking their path, at least one of them would not have seen it

There is a stronger point however arising out of the physical facts which produces a strong abundance of proof in favor 'of the version of the driver of the ambulance and the guest who was with him. It is definitely shown that there was not a mark or a scratch of any kind on the front end of the ambulance and that the damage started with the front end of the hood, then followed along the top of the hood up to the windshield and then along'the whole length of the top. It is impossible to conceive that if the ambulance ran into the gate that there would not have been left some marks on the radiator and grill.

But counsel for defendant has evolved a theory under which he says that that very thing could have happened. His theory is that the bumper of the ambulance struck the lower part of the gate «which was suspended by the chai'n by which it is lowered, thus moving it forward from the bottom and throwing it over the hood and the top of the ambulance as it proceeded under it. Even so, it strikes us, there would have been some marks or dents on- the front end of the radiator and that they would not have commenced, as they did on the top of the hood.

There is however another reason why we cannot agree with counsel’s theory. The gate is described as being made up of boards measuring one by eight and spaced about six inches apart, the whole surface measuring four feet vertically by the full width pf the road which is 18 feet. The boards are bound by an iron railing placed around them and the whole thing weighs 150 lbs. When it is lowered it sets on the curbing along each side of the road, about six inches from the level of the road itself. When it is in this position we are thus presented with pn object four by eighteen feet, six inches from the ground, giving the total height fro-m the ground of four and one-half feet. It weighs ISO pounds and is suspended by what must he a rather heavy chain. The testimony does not show how securely it is fastened when in position, but we hardly think that it is left swinging, if for no other reason than because of its weight resting on the curbing on each side of the road. We seriously doubt therefore that the force of an automobile, travelling 25 or 30 miles an hour, the front of which stands about four feet from the ground, when applied to an obj ect of about -the same height and of the width of one described, will throw that object into the air, clearing the front of the automobile in such a manner as plaintiff contends it might have done in this ■case.

Regardless of any theories however as to how the accident may otherwise have occurred, we have in the record the well reasoned opinion of the trial judge who accepted the testimony of the two witnesses for the plaintiff against that of the bridge tender and we find ourselves unable •to hold that in doing so he committed manifest error. ;

Counsel lor defendant raises other points •in the case and claims there were errors committed by the trial judge in allowing the plaintiff interest on the amount of the judgment and also in casting the defendant with the costs of court.

The same contention that the State cannot be made to pay interest on judgments of this kind was made in three previous cases before this court. Guercio v. State, 15 So.2d 170, Lively v. State, 15 So.2d 617 and Roppollo v. State, 23 So.2d 374. We find no reason now to change the rpling made in all three that legal interest attaches on all judgments sounding in damages, ex delicto, which may be rendered in any of the Courts of this State, as provided for by Act 206 of 1916.

With regard to the question of •costs, counsel is undoubtedly correct as Act 135 of 1936 specifically exempts the State, as well as its political subdivisions, from the payment' of court costs other than .stenographer’s costs for taking testimony in any judicial proceeding brought by or against the State or any of its political subdivisions. See also Makofsky v. Department of Highways, 205 La. 1029, 18 So.2d 605.

Lastly, counsel contends that the judgment is erroneous in directing that the amount awarded be paid by the Department of Highways “out of its General Highway Maintenance Fund or other funds which may be lawfully applied to the payment of said judgment.” He contends that the State Constitution does not provide for any General Highway Maintenance Fund and that public funds dedicated to the construction or maintenance of highways and bridges cannot be used to pay a claim for damages resulting from an offense or quasi offense or a judgment for damages rendered on such claim.

We observe that Act 252 of 1946 which authorized the present suit, specifically provides under Section 5, that the amount of the judgment rendered, assuming that there would be a judgment, “shall be paid by said department (meaning the Department of Highways) out of its General Highway Maintenance Fund or any other funds which may be lawfully ap-. plied to the payment of said judgment.” The judgment rendered by the district court followed the language of the statute very explicitly and if there is anything illegal or unconstitutional in the method directing its payment, the fault is to be attributed- to the Legislature in enacting the statute and not to the Court which followed its language. The Court was powerless to change any of the provisions of the Statute unless a direct attack had been made on it on some legal of constitutional ground. This was not done and it is now too late for any such question to be raised in this proceeding.

For the reasons stated, it is ordered that the judgment appealed from be amended by eliminating that part of the decree which taxed the entire costs of court against the State and by decreeing that the costs to be paid be restricted to those of the fees of the stenographer for taking the testimony in the case, and as thus amended, it is affirmed.


author: ELLIS, Judg.e.

text:
    LANDRY v. JOHNSON.
    No. 2977.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.
    T. Arthur Edwards, of Lake Charles, for appellant.
    John I. Fowler, of Sulphur, for appellee.
   ELLIS, Judg.e.

This is a suit for damages alleged to have been sustained by the plaintiff, Polie Landry, as a result of a motor vehicle accident with the defendant, J. Howell Johnson, which occurred at Sulphur, Louisiana about 11:45 A. M. on April 17, 1946. Judgment was rendered by the District Court in favor of the defendant, J. Howell Johnson, and against the plaintiff, Polie Landry, rejecting plaintiff’s demands at his costs.

Defendant filed an exception of no right or cause of action and also an exception of vagueness. Although the minutes of the Court of October 11, 1946, state that all exceptions will be submitted on briefs, the record fails to contain any ruling on the exception of no cause of action, however, on November 23, 1946, plaintiff in compliance with the ruling of the Court dated November 14, 1946, filed an amended petition. The exception of no cause or right of action is not urged by counsel for defendant in his brief filed in this Court, therefore the exception was evidently abandoned.

The learned Judge of the District Court in his written reasons for judgment found the following facts:

“The accident occurred about 11:45 A. M. on said date at the intersection of Irwin and Logan Streets in the Town of Sulphur, Plaintiff at that time was driving his own 1938 Model Dodge Sedan in a northerly direction along Irwin Street. His father-in-law, Jim Jones, was a passenger in the car with him. After entering the intersection of Irwin and Logan Streets, Landry testified that for the first time he observed a truck approaching from the east in such manner that a collision appeared imminent, lie turned to his left in an effort to avoid a collision, b.ut the left front portion of the truck struck the right front door of plaintiff’s car, causing damages to the car which plaintiff now seeks to recover.
“The truck involved in the accident was a 1942 Model Dodge truck owned by defendant, J. Howell Johnson, and at the time of the accident was being driven by Algie J. Johnson, an employee of said defendant. The truck was being driven in a westerly direction along Logan Street, and it had entered the intersection of that street with Irwin Street when the driver testified that for the first time he saw plaintiff’s car in such a position that it was impossible for him to avoid a collision. He applied his brakes and swerved to the right in an unsuccessful effort to avoid striking the car.
“The intersection at which this accident occurred was gravelled. The weather was clear and visibility was good. There was nothing which might have obstructed the vision of the driver of either vehicle as he approached that intersection, and there appears to be no good reason why each driver before he actually entered the intersection should not have seen the other approaching vehicle at least one hundred feet before it reached the intersection if he had maintained a proper lookout for traffic.
“There was a considerable amount of conflicting testimony at the trial, but after considering and analyzing all of the evidence this Court finds that plaintiff was driving his car at a speed of approximately twenty miles per hour at the time he entered the intersection of these two streets ; that he did not bring his vehicle to a stop before entering such intersection; and that he could have seen the truck approaching on Logan Street if he had maintained a proper lookout. The Court also finds that the driver of defendant’s truck approached Irwin Street at a speed of about twenty miles per hour, but reduced it to approximately sixteen miles per hour upon entering the intersection where the collision occurred; that he could have seen plaintiff’s car approaching if he had maintained a proper look-out for traffic; that Defendant’s truck weighed 1800 or 1900 pounds more than plaintiff’s car; and that the truck was being driven along the center of Logan Street at the time it entered the intersection. The Court further finds that both vehicles entered the intersection at approximately the same time and that the collision occurred at about the center of such intersection.”

We believe that the facts as found by the District Court are correct and that his conclusions that both vehicles entered the intersection at approximately the same time and that the collision occurred at about the center of such intersection is fully borne out by the testimony.

The case of Dow v. Brown et al., 193 So. 239, decided by the Court of Appeal of Louisiana, Second Circuit, in a case practically on all fours with the facts in this case, states on page 241:

“We think, in fact are convinced, that this accident occurred because each party assumed he could cross the intersection safely; that is, each took the chance open to him to cross over. This is not an uncommon gamble by motorists. But defendant had the right of way and held it throughout, unless forfeited by him for reasons fixed by law.
“Rule 11(a) Sec. 3 of Act No. 286 of 1938, known as the ‘Highway Regulatory Law’, provides: ‘When two vehicles approach or enter an intersection at approximately the same time, the driver approaching from the right shall have the right of way. The driver of any vehicle traveling in an unlawful, improper, reckless or dangerous rate of speed or manner shall forfeit any right of way which he might otherwise have hereunder.’
“All persons are presumed to know the law. Plaintiff must be held to have known that west bound traffic on Kings Highway at the intersection, has a superior right primarily to enter it, over north bound traffic on the Mansfield .road.' This being true, it was his duty to have either stopped at the intersection or to have brought his car under such definite control as to be able to stop it instantly if conditions were such as to require that action. He did not have the right to heedlessly approach the intersection at a rate of speed so great as to prevent him from stopping before entering it, if-such became necessary because of nearby traffic on the right-of-way street. It was negligence on the plaintiff’s part to do that which he admits he did.
“We thoroughly considered this identical question in Carlcuff v. Geophysical Service, 179 So. 490, 491, and held: ‘A bus driver who knew that he was on an inferior road approaching an intersection with a superior road had a legal duty to stop, look, and listen before crossing.’
“The same principle is discussed in Meredith v. Arkansas Louisiana Gas Co., 185 So. 498, 503, recently decided by this court, wherein we said: ‘ * * * As we have shown, it is the statutory duty of a driver of a motor vehicle when approaching a road intersection to look out for and give way to vehicles simultaneously approaching on his right. No such duty is imposed upon a driver as to vehicles approaching on his left. The driver of such a vehicle, if he is traveling within the speed limit and on the right-hand side of the highway, may proceed on his course without being guilty of a charge of negligence. This was the situation here. The appellant and the respondents were simultaneously approaching the road intersection. The appellant was on the right of the respondents; he was traveling on the right-hand side of the way, and was traveling within the statutory speed limit. He had the right to presume that the respondents would give heed to the statutory rules of the road, and not drive their car across the road immediately on his front.’”

It is not borne out by the testimony that the defendant was driving at an “unlawful, improper, reckless and dangerous rate of speed” as he entered the intersection. It is, then, our conclusion that plaintiff’s own negligence contributed to the accident.

We are convinced, however, that the defendant was also negligent in that he did not keep a proper lookout and in failing to bring his truck to a stop.

The judgment appealed from will therefore be affirmed at plaintiff’s costs.


text:
    REID et al. v. MONTICELLO et al.
    No. 2976.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.

      Porteous & Johnson, of New Orleans, for appellants.
    Hawkins, Triticp & Savoy, of Lake Charles, for Frank Monticello.
    Bass & Brame, of Lake Charles, for Hardware indemnity Ins. Co.
   LeBLANC, Judge.

This is an action in tort instituted by Mr. & Mrs. Kinney E. Reid against the defendants, Frank Monticello and his insurance carriers, Car & General Insurance Company and Hardware Indemnity Insurance Company of Minnesota.

The suit‘grows out of an accident which occurred on January 22, 1946 in the grocery store of the defendant Frank Monticello, sitaated on East Broad Street in the city of Lake Charles and in which Mrs. Reid sustained certain injuries when she tripped on a magazine wire rack and. fell to the floor. The defendant Monticello is sued on certain alleged acts of negligence of his employees in having left the magazine rack protruding or extending a few inches beyond a counter at which Mrs. Reid was standing while using the telephone in the store. The insurance companies are sued directly as his liability insurance carriers under the provisions of Act 55 of 1930.

Mrs. Reid claims to have sustained a serious injury to her left shoulder and also her left knee as well as severe shock to her nervous system and bruises and contusions about the head and body. Her total demand is for the sum of $10,750 including physical and mental pain and suffering and also loss of income in'the amount of $2,500. The demand of her husband is for medical expenses alleged to have been incurred and to be incurred in the future for her treatment in the sum of $500 and the sum of $1,000 for the loss of her companionship.

Various exceptions were filed by the defendants Monticello and Car & General Insurance Co., particularly an exception of vagueness which was sustained and on which the plaintiffs were ordered to more clearly and specifically set out the acts of negligence on which they relied. This was done in a supplemental petition, after which exceptions of no cause or right of action were filed but overruled.

Seven months after the accident had occurred it was brought to the attention of the defendant Monticello, by a representative of Hardware Indemnity Insurance Company that that insurance company also carried a policy covering the very liability for which he was being sued in this case. By supplemental petition that company' was made a party defendant and judgment was asked for against it in the same manner as against the other two defendants.

Monticello and Car & General Insurance Co. filed a joint answer in which they put all the allegations of the plaintiff’s petition at issue denying .that there was any negligence on the part of the defendant or any of his employees and alleging, in the alternative, that if there was, the plaintiff, Mrs. Reid, was herself guilty of negligence in not having looked to see if the path ahead of her after leaving the telephone was clear; in other words, in not looking to see where she was walking, which negligence it is further averred constituted contributory negligence on her part, barring recovery. Hardware Indemnity Insurance Company filed a separate answer in which it made the same defenses as the other two defendants and in addition pleaded a provision of its policy to the effect that its assured had obligated himself to give notice of an accident, as-soon as practicable after it occurred, and having allowed a period of seven months to elapse before giving notice, in this instance, he had violated the terms of the policy and it could not be held liable, even though negligence be shown on his part or that of his employees.

Upon trial in the court below there was judgment in favor of the plaintiff, Mrs. Reid, in the sum of $2,500 and in favor of Mr. Reid in the sum of $281. The judgment was against the defendants Monticello and Car *& General Insurance ' Company.' The other defendant was relieved of liability on the .ground-of delayed notice. Monticello and Car & General Insurance Company have appealed and-plaintiffs have answered the appeal, limiting their answer to a demand for an increase in the amount of the judgment to the sum originally prayed for.

Hardware Indemnity Insurance Co. filed a motion to dismiss the appeal as to it, based on the proposition that as between co-appel-lees the judgment of the trial court cannot be changed.

On Motion to Dismiss.

In matters concerning the right of appeal in cases where there are co-appel-lees, it is a well settled proposition in our jurisprudence that the appellate court is powerless to revise, recast or amend the judgment appealed from, in so far as the co-appellees are concerned. Standard Oil Co. of New Jersey v. Perkins et al., La.App., 29 So.2d 502, Maheu v. Employers Liability Assurance Corp., Ltd., et als. La.App., 25 So.2d 363, Thalheim v. Suhren et als., 18 La.App. 46, 137 So. 874, Corbitt et als. v. Hanson et al., 124 La. 108, 49 So. 995. In this case the only appellants are the defendants, Car & General Insurance Company and Frank Monticello. The judgment below was in favor of the plaintiffs to the extent that it awarded them both damages against these two defendants and it also was in favor of the other defendant, Hardware Indemnity Insurance Company, in as much as it rejected,the demands of the plaintiffs as to-it. Plaintiffs apparently are satisfied with* the judgment as rendered in their favor against Monticello and Car & General Insurance Company for they have not appealed nor have they answered the appeal taken by those two defendants, except to ask for an increase in the amount of the award in their favor. They also are apparently satisfied with the judgment in so far as it relieved Hardware Indemnity Insurance Company from liability for any of the damages they claimed for they have not appealed from the judgment in that respect. True it is that in their motion for appeal, Monticello and Car & General Insurance Company complain of the judgment on both grounds, namely that it decrees liability against them and that it also relieved their codefendant of liability, yet this court is without power to entertain their 'complaint as to th£ir codefendant because as between them and their codefendant, no issue was contested or controverted nor was any issue between them adjudicated by the judgment appealed from.

There are several cases in which it is held that a plaintiff who had sued co-defendants and obtained judgment against only one who took an appeal, could not, by answering the appeal have the judgment reviewed as to the other defendant in whose favor the judgment had rejected the demand. Thal'heim v. Suhren et al., supra, is one of many cases that can be cited on that point. The only way in which a judgment can be reviewed in this respect would be for the plaintiff himself to appeal from that part of it. Here, as we have already stated, the plaintiffs who were the only parties who could have had the judgment rejecting their demand as against Hardware' Indemnity Company reviewed on’appeal, made no appearance whatever in this court except as appellees and the court is without right to change the judgment of the lower court as between them and Hardware Indemnity Insurance Company, now their co-appel'lee. The motion to dismiss must prevail and, as to Hardware Indemnity Insurance Company, the appeal taken by Frank Monticello and Car & General Insurance Compány is dismissed at their costs.

On the Merits.

The testimony is very voluminous and we will not take time to review it all. It is necessary however that we discuss one point in particular on which counsel for defendants lay great stress. That is with reference to the witness Edward Chretien, young Negro employee in Monticello’s store and from whose testimony, it developed that he was the one who moved the magazine rack and left it out of its usual position.

When the defendant Monticello was on the witness stand under cross-examination testimony regarding Chretien’s duties and the manner in which he performed them was sought to be elicited from him, whereupon counsel objected to all evidence of that nature because there was nothing in the pleadings to indicate that he was the one who had moved or had anything at all to do with the magazine rack. The trial judge properly overruled the objection however as the allegations of the supplemental petition to the effect that Mrs. Reid suddenly stumbled upon the leg of a magazine rack which extended into the aisle of the store were sufficient to admit any and all testimony relating to the manner in which it may have come to be in that position.

It was proven by Monticello himself that among his duties Chretien had to sweep and clean up around the store. Chretien testified that on the morning of Mrs. Reid’s accident, he was sweeping around that part of the’ store where she fell. He stated that he saw her in the store at the grocery counter and she then went to use the telephone on the counter next to where the magazine rack stood and as she was using the phone he moved the rack in order to sweep around it. At one time he said that he laid the rack down and left it there when he was called to go and bag groceries.

There is evident confusion in the Negro boy’s testimony and reason to doubt that he laid the rack on the floor as he says he did. Nevertheless that part of his testimpny that he was sweeping in the area of the store where Mrs. Reid was using the telephone is corroborated by the witness Lionel Landry, another of Monticello’s employees who also testified.that he saw Mrs. Reid walking . toward the telephone and that she fell in the same path she had then walked over in going to the phone.

The evidence otherwise shows that Mrs. Reid was very familiar with the store, being a good customer and a frequent visitor. On the morning of the accident she entered the store from the north entrance on East Broad Street, took one of the baskets and rollers used for shopping and walked down one of the aisles making her selections of groceries. She gradually made her way to the counter on which the telephone rested, left her basket a few feet away and went to use the phone to inquire of her daughter if there was anything more needed from the store. In passing through the aisle to the counter where the telephone was, the path was clear. She says she was at the phone four or fiye minutes, facing the direction opposite from that which the magazine rack usually stood and wasn’t paying attention to whether, anyone was sweeping around there or not. Upon turning around and away from the counter after she had finished using the phone, she stepped into some object on the floor in her path and this caused her to fall. It does not seem to be disputed that the object she tripped over was the magazine rack, and under the facts presented, we think the trial judge properly concluded that since it ’ did not extend or protrude in the aisle when she went to the telephone but did obstruct her path on her way back, even though the Chretien boy had not laid it on the floor as he once said he did, evidently he had moved it while sweeping under or around it and left it there when he was called away to perforin some other of his duties in the store.

The law does not make the storekeeper an insurer of his customer’s safety but it imposes upon him the duty to provide a safe place for his customers to trade with him. A safe place necessarily implies a clear aisle or passage-way through which the customer can walk in safety in pursuing the course of business for which he entered the store, that is the inspection and purchasing of the goods, wares and merchandise as displayed on the shelves and counters. Ransom v. Kreeger Store et al., La.App., 158 So. 600. Mrs. Reid was on her way to resume this part of her business in the store when she tripped into the wire rack which had negligently been left in her passageway by an employee of the defendant Monticello, and for, such negligence Monticello and his insurance carrier were correctly held liable.

We find no merit in the plea of contributory negligence that is urged against Mrs. Reid. As we have before stated, she was a frequent visitor at the store and was familiar with that part of it where she fell as she used the telephone on almost every occasion she was there. She had just .a' moment before safely passed by the magazine rack in going to the telephone and had reason to anticipate the same path would be unobstructed as she left to return to do her shopping.

The trial judge awarded Mrs. Reid the sum of $1,500 for injury to her knee, $500 for shock and 'pa-in and $500 for bruises and contusions of the body. To us it appears that her most serious injury was to her left shoulder. She seems to have suffered a rather severe stretching o-f the nerves leading from the neck and upper thorax to the arm and has difficulty in raising her arm. There is a possibility of her remaining with a disability of from 25 to 50 per cent in her shoulder.

The injury to her knee consisted of a wound which, according to Dr. Walter Moss, seemed to have been inconsequential and which had healed when he examined her seven months after the accident. Dr. Henry Snatic was of the opinion that she may have a ruptured -semi-lunar-cartilege. He however admits that he is not an orthopedist and moreover that the x-ray pictures were negative as to such injury.

A demand had also been made for loss of earnings in her business conducted by Mrs. Reid as a real estate agent The trial judge did not allow her anything on that demand and we find he was correct for two reasons. First, under the law such ar demand should have been presented by her husband as such earnings belong to the community and second there is no proof in the record of any such loss.

We believe therefore that Mrs. Reid’s damages should be restricted to her shoulder injury and the slight injury to her knee and the shock and pain she sustained by reason thereof. We think that in view of the probable disability which will remain in her shoulder, she is entitled to $1,500 for that injury and for the knee injury as-well as for the shock and pain she experienced she should be awarded $500. ■

The district judge allowed Mr. Reid the sum of $31 which was all that Was proved to be due for medical services to his wife. He also allowed him the sum of $250 for loss of his wife’s companionship. We find no proof to support that item. The testimony is to the effect that Mrs. Reid was up and about some four or five days after the accident attending to her usual domestic duties as well' as to her business as a real estate agent. It is not shown that she ever was away from her husband more" than the usual routine demanded in conducting her household duties and her business and a claim for loss of her companionship to him cannot be justified under the testimony found in the record.

On the merits therefore, the judgment will have to be amended with respect to the 'amounts awarded to both Mr. & Mrs. Reid.

For the reasons stated, it is ordered that the judgment appealed from, be amended by reducing the amount of the award to Mrs. Reid by the sum of $500 and the amount awarded to Mr. Reid by the sum of $250 and that as thus amended, it be affirmed. The costs of appeal on the merits are to be paid by the plaintiffs and all other costs by the defendants, 'appellants herein.


text:
    SHIRLEY v. RICHMOND.
    No. 2975.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.
    Kay & Kay, of DeRidder, for appellant.
    J. L. Simms, of Leesville, for appellee.
   DORE, Judge.

On March 1, 1947, plaintiff purchased from the defendant, for the price and cash consideration of $720.00, all of the merchantable timber from 10-inch and up at the stump which was located upon the land of one A. J. Cain, in the Parish of Vernon, described as a part of a 40-acre tract. The timber is described as being “on Blue Branch, bounded on the South by a public road and J. J. Beeson, and on the West by a Field and on the east by William Willis and on the North-by a barb wire fence.”

Plaintiff alleges that at the time of his purchase, defendant warranted to him that he, defendant, was the actual owner of all merchantable timber located upon'the land of the said Cain; that after he had purchased the said timber, he had the timber estimated and there were found to be, at that time, the amount of 39,99⅞ feet of timber of the dimension purchased located on the land; that shortly thereafter, he cut and removed therefrom 21,337 feet of such timber but before he completed the cutting and removal of the remainder of the timber he was ordered to cease operations and forbidden to remove any further timber from the land by the said Cain, the ostensible owner of the laud upon which the timber was located. He alleges further that he was ejected and evicted from the property and suffered the loss of the remaining timber within the dimensions sold to him by the defendant; -that he has made amicable demand upon the defendant, his vendor, to deliver the timber or place him in possession, without avail; that at the time of eviction, there remained upon the land 18,-662 feet of timber of the dimensions purchased by him from the defendant which had a fair market value of $10.00 per thousand feet, or a value of $186.66. For this amount, this suit was filed.

The defendant answered and admitted the sale of the timber by him to the plaintiff of the size and located upon the land of A. J. Cain. He denied, for lack of information, the remainder of plaintiff’s allegations.

Upon trial of the case, there was judgment in favor of plaintiff and against defendant for the sum of $60.00. From this judgment both parties appealed. Defendant has not perfected his appeal and has abandoned it. . We are therefore only concerned with plaintiff’s appeal.

Shortly after the purchase of the timber by plaintiff from the defendant, plaintiff began the cutting of the timber and practically removed the greater portion of the pine trees east of a fence enclosing a field of Mr. Cain. Inside this field and west of the said fence, there is standing pine timber within the dimensions called for in plaintiffs sale or receipt. When plaintiff, in his operation, reached the fence, he was stopped by Mr. Cain. Mr. Cain contended that he had not sold to defendant any of the timber within the field, but only such timber as was east and outside of the field. Thereafter, plaintiff called upon defendant either to deliver to him the timber or to .place him in possession thereof. Defendant refused to do so, contending that he had only sold to plaintiff such timber that he had acquired from Cain, and that was the timber lying on the east of the fence. This brought about this suit. In other words, briefly stated, the contention of the plaintiff is that he had purchased all merchantable timber 10 inches and up lying east of the end rows of Cain’s field to the “Branch”, while defendant contends that he sold to plaintiff all such timber lying east of the fence or field enclosure to the “Branch”..

The memorandum of sale is as follows :•

“Mr. Shirley:
“This is your authority to cut and remove all merchantable timber from 10-inch stump up, from the A. J.. Cain place that I bought from ' him (consisting of a portion ■ of a 40A).
“The timber is on Blue Branch bounded on the South by a public road and J. J. Beeson, and on west by a Field and on East by William Willie, and on north by a barb wire fence. —S—C. A. Richmond.”

In substantiation of his position, plaintiff offered- the testimony of himself and two of his employees, namely, Leonard James and Haywood Deason. The gist of their testimony is that on the day, plaintiff purchased the timber from defendant, defendant specifically pointed out the timber inside of the fence and within the enclosure as being -included in the sale, . in other words, from the edge of the cultivated area, or field, east to the “Branch”, and that if the timber on the inside of the fence or field was not included, the consideration of .$720.00 could not and would not be paid.

In substantiation of his position, the defendant offered the testimony of himself and of Mr. Cain, his vendor.

The testimony of Mr. Cain is that he sold to defendant only such timber lying east of the wire fence; that he considers his field as extending to the wire fence; that he did not sell the timber within the field or enclosure.

The defendant testified that when he purchased the timber from Mr. Cain, it was understood mutually that “the field was the fence which enclosed the field” and that he had sold “the timber to the field and not in the field. I thought it was understood that the field fence was the line.” He denies that he ever told or pointed out to plaintiff and his employees the timber .in the field as being included in the sale; that his intentions were “to sell to the fence” and no more. He denies that on the day of sale he told plaintiff that the timber inside the field was included in the deal.

The defendant also offered testimony of some of the neighbors to the effect that, in that community, anything within an enclosure would be considered as a field, and that where a field is bounded by a fence, the fence is considered the boundary of the field. The plaintiff, however, argues in his brief, that a “field” in the common and usual language, means a cultivated area. We. do not see any reason why we should go into any discussion of the meaning of a “field” in this opinion since we do not see the materiality of a discussion due to the conclusion we have reached.

It is ■ evident from the contentions of and their testimony offered in support thereof by plaintiff and defendant that the parties interpreted the sale contract differently, due to the fact that the description of the west line is ambigous. Whenever a contract of sale is ambigou's, it is now well settled that such ambiguity should be resolved in favor of the vendee and against the vendor. It is noted that according to the plat filed in evidence, without objection, the fence contended by the defendant as being the western boundary is a continuance of the fence forming the northern boundary. If it had been the intention of the parties that the fence was to be the western boundary as well as the northern boundary, the contract would have so stated. Accordingly, we are of the opinion that the preponderance of the evidence is in favor of the plaintiff to the effect that the timber lying and situated on the west side of the fence in question was included in the sale by defendant to plaintiff.

The record discloses that shortly after the purchase of the timber, plaintiff had the timber, which he purchased, estimated by a reliable estimator. This estimator found that there were 33,450 feet on the east side of the fence and 6,545 feet on the west side of the fence, or a total of 39,995 feet in all. After plaintiff’s operation on the east side of the fence he found that there were 11,601 feet left on the east side of the fence, or a total of 18,146 feet in all from which plaintiff had been evicted. As against this evidence, the defendant submitted the estimate of a sawmill operator who found that there were about 6,282 feet on the west side of the fence and about 2,821 feet on the east side of the fence, making a total of 9,103 feet from which he had been evicted. We find the expert timber estimator’s testimony to be of more probative value and it should be used in the calculation of the amount due.

The eviction of plaintiff was of a part the thing purchased and therefore Civil Code Article 2514 has effect. That article reads as follows: “If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale.” In cases of partial eviction, the relative value at the time of the sale of the part from which the purchaser has been evicted, if shown by the evidence, should be considered. The record discloses that plaintiff was evicted from 9,330 feet of pine, of a value of $10.00 per thousand feet, or of a' value of $93.30, and 8,816 feet of hardwood of a value of $7.00 per thousand feet or of a value of $61.71, or a total value of $155.01. Judgment should have been rendered in his favor for that amount.

For these reasons assigned, the judgment appealed from is amended by increasing the amount grafted from $60.00 to the amount of $155.01, and as thus amended, the judgment stands affirmed, all at the costs of defendants.

Amended and affirmed.