author: HARDY, Judge.

text:
    LYNCH v. FISHER et al.
    No. 7021.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1947.
    On Rehearing April 1, 1948.

      ’■ Foster, Hall & Smith, of Shreveport, for appellant.
    Browne, Browne & Bodenheimer, of Shreveport, and R. S. Williams, of Mansfield, for appellees.
   HARDY, Judge.

This matter comes before us on appeal from judgment of the Eleventh Judicial District Court of Louisiana sustaining exceptions of no cause or right of action filed on behalf of all defendants and dismissing plaintiff’s action as of nonsuit.

The allegations of the petition which are placed at issue as to their sufficiency in setting forth the cause of action in .the exceptions referred to, and which set forth the facts upon which plaintiff’s action is based, may be summarized as follows:

That about 9 :00 p. m. on July -3,. 1945, an employee of the defendants, Wheless and Fisher, (whose insurer is the defendant, Lumbermen’s Mutual Casualty Company of Chicago, Ill.) at the time engaged within the general scope and course of his employment, parked a pulpwood truck which he was driving on the right-hand side of highway No. 171, some twelve miles north of Mansfield, De Soto Parish, Louisiana ;

That, while said truck was thus.parked, a passenger car owned and driven by the defendant, Robert Joe Gunter, collided violently with the rear end thereof;

That the driver of the parked truck was guilty of negligence, imputable to his employers, on numerous grounds, specifically in parking the truck entirely on the highway without leaving a clearance of fifteen feet on the pavement; in failing to have warning lights on the parked truck; in leaving the truck parked on the highway, thereby constituting a menace to traffic, and in failing to set out flares, or to have same available and ready for service.

That the negligence of the defendant, Robert Joe Gunter consisted of driving and operating his automobile at an excessive, unreasonable and unlawful rate of speed; in failing to keep and maintain a proper lookout; operating his vehicle without adequate brakes; and failing to take any action to avoid the collision;

That the concurrent acts of negligence of the driver of the truck and the driver of the passenger car were the proximate causes of the accident;

That plaintiff seeing the collision ran to the scene thereof, succeeded in opening the doors of the badly damaged Gunter car, and, with the aid of another party, extricated both Mrs. Gunter and the defendant, Robert Joe Gunter, from the automobile, which had meanwhile caught fire;

That, in the effort to further assist the fatally injured Mrs. Gunter, plaintiff attempted to pull a floor mat out of the car to be used as a cushion for her head as she lay upon the roadside; that in the performance of this act plaintiff found a pistol on the floor of the car and handed the same to the defendant Gunter, who, being delirious and temporarily mentally deranged by reason of the shock of the accident, fired the pistol at plaintiff, the bullet passing through, plaintiff’s left ankle and inflicting serious injuries, for which damages are claimed in this action.

Defendant’s, exceptions, ás directed at plaintiff’s petition, are based upon the following points:

(1). That plaintiff’s petition contains no allegation under which evidence of the existence of a sudden emergency would be admissible, and, as a consequence, no actionable negligence has been alleged.

(2). That the alleged negligence of the driver of the truck, employee of the defendants, Wheless and Fisher, was not the proximate cause of the injury to plaintiff.

(3). That the act of defendant, Gunter, which caused plaintiff’s injury, was an independent, intervening cause which broke the causal chain flowing from the original negligence of the driver of the truck.

(4). That the injuries suffered by plaintiff were not reasonably to be foreseen or anticipated as a normal result of the alleged negligence of the driver of the truck.

Appellees correctly contend that the established jurisprudence of the State of Louisiana requires the driver of an automobile to have his vehicle under such control as to be'able to bring it to a complete stop within the range of his vision or the penetration of the lights when confronted by-any obstruction or danger. But they argue, further, that since plaintiff did not predicate the allegation of his petition upon any theory of sudden emergency, the simple allegation of statutory negligence fails to set forth a cause of action. In support of this position appellee’s counsel hás cited the cases of O’Rourke v. McConaughey, La.App., 157 So. 598; Safety Tire Service v. Murov, 19 La.App. 663, 140 So. 879; Bordelon v. T. L. James & Co., La.App., 148 So. 484, 485; Waters, et al. v. Meriwether Transfer Co., 18 La.App. 18, 137 So. 578; and Odom v. Long, La.App., 26 So.2d 709.

Reference to the cited cases discloses the fact that all were tried on the merits and all deal with the question of contributory negligence or the doctrine of last clear chance as between the parties, drivers of the respective vehicles. We concede that the authorities quoted would be applicable if the parties to this suit occupied a similar relationship, but it must be borne in mind that this is not such an action, but rather that plaintiff herein is a third party without any connection with . the operation of- either of the vehicles, and, therefore, entirely without concern or interest .in the application of the doctrines of contributory negligence and last clear chance. For this reason, the cases cited have no application to the point raised.

Plaintiff herein has properly alleged the concurrent negligence of the several defendants and there is ample authority in this State for the proposition that a third person may recover from either or all parties alleged to be guilty of concurrent negligence. Shields v. F. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L.R.A.,N.S., 1080.

The rule is plainly stated in Comment (a) on page 472 of Volume 2 of the Restatement of the Law of Torts as follows: “A plaintiff who. intervenes to rescue a third person is not affected by the fact that the third person has been a legally contributing cause in putting plaintiff in peril.”

Determination of the issue of proximate cause must of necessity be considered with relation to the allied doctrine of. intervening cause which is clearly material under the alleged facts of this case.

It is quite true, as contended by learned counsel for defendants, as a general proposition of law that only that negligence which directly causes the injury is deemed to be proximate. But a resolution of this point must perforce depend upon the particular facts of each case.

In the matter before us there are three elements that must be determined:

(a). Did the original negligence of the driver of the parked truck set in motion a chain of circumstances following consecutively one upon the other which led to plaintiff’s injury?

(b). Was the act of original negligence superseded by an intervening act breaking the chain of causation leading to plaintiff’s injury ?

(c). Is the fact that plaintiff’s injuries resulted from an improbable and unforeseeable incident sufficient to eliminate the original act- of negligence from consideration as a proximate cause?

The answer to these queries will dispose of all the claims based upon the doctrines of proximate and intervening causes and foreseeability.

Upon the basis of the allegations there is no room for any reasonable contravention of the proposition that the circumstances following the negligent parking of the truck down to the removal of the pistol from the car by plaintiff were natural, probable and reasonably to be expected. But at this point an imponderable enters into consideration. The rescuer hands a pistol to the rescued and is shot by the latter. Certainly under the general rule, this action could not be within the reasonable contemplation of any normal individual and the specific incident therefore could not be imputed to the negligent truck driver as a probable result flowing from his negligence. But, unfortunately, the proposition does not admit of being disposed of so easily, for it is well established in the jurisprudence of the State of Louisiana and a majority of other jurisdictions that the general rule must yield to specific instances.

Of course, no Court could reasonably'hold that the driver of a vehicle, no matter how gross his negligence, could have contemplated the shooting of a third party as a normal and natural result of such negligence. Nor, indeed, could the rescuer himself be held to have assumed the risk of such a strange, unnatural and unusual result flowing from his gallant efforts.

But, if the results of accidents were normal, usual and predictable, the burden of both Bar and Bench would be made immeasurably lighter.

To determine whether or not the shooting incident is susceptible of being distinguished and set apart from the general law of proximate cause, we must base our conclusions not upon those elements which would be applicable as between parties to the collision itself but as affecting the injury inflicted upon an innocent third party, himself without fault.

Let us assume that plaintiff in this cause, rushing to the aid of helpless parties occupying the automobile involved in the collision, in the darkness of night, and wrenching open the door of the vehicle, had been severely bitten by a dog which was accompanying the occupants of the car and which had been so frightened or injured by the shock of the collision as to have lost its accustomed gentleness. Could it be said that such a result was proximately caused by the negligence of the truck driver because such a possibility was normally an expectable or foreseeable result of such negligence? The answer is obvious. Scores of cars might have collided with the rear end of this particular truck on this particularly well-traveled main highway without producing such a result.

Similarly, the laws of probability were overwhelmingly against the occurrence of the character and nature of the incident and resulting injury to plaintiff under the actual facts of this case. But, certainly, plaintiff is without fault, and, certainly, the negligence of some party or the concurrent negligence of several parties combined to set up the unfortunate situation which re-suited in his injury.

In our opinion the general doctrine of proximate cause cannot be applied under the alleged facts and chain of circumstances herein presented. Under the tenor of the allegations it is quite clear that plaintiff would not have been shot if originally the truck driver had not negligently parked his truck in such manner as to constitute a menace and hazard to vehicles rightfully traveling the highway.

The proximate cause of the injury to one who voluntarily interposes to save the lives of persons imperiled by the negligence of others is the negligence which causes the peril. 19 A.L.R., page 13.

In determining the question as to the efficiency of the intervening act, that is, in this case, the shooting of plaintiff by one of the defendants, we must consider the well established principle that an intervening cause is not necessarily a superseding cause. The intervening cause, in order to supersede original negligence, must have alone produced injury.

Under paragraph (B) of the Comment on Section 440 of the Restatement of the Law of Torts this proposition is set forth: “Therefore, if in looking back from the harm and tracing the sequence of events by which it was produced, it is found that a superseding cause has operated, there is no need of determining whether the actor’s antecedent conduct was or was not a substantial factor in bringing about the harm.”

In the instant case there is no.question but that in tracing back from the point of the actual injury to plaintiff we would ordinarily be compelled, to conclude that the shooting by one of the defendants was unquestionably a superseding cause were it not for the allegation that the defendant inflicting the injury at the time was temporarily insane by reason of shock resulting from the collision caused by the initial negligence of the truck driver.

Section 4SS of the Restatement of the Law of Torts submits the principle:

“If the actor’s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity. ■ ■ ■
(a). Prevents him from realizing the nature of his act * * '

We think it must logically and inevitably follow that under such circumstances the actor is not only liable for harm done in a fit of delirium or insanity by such deranged person to himself, but also for any harm caused by him to another.

In discussing proximate cause the opinion in Cruze v. Harvey & Jones, 16 La.App. 409, 134 So. 730, 734, cited Yeates v. Ill. Cent. R. Co., 241 Ill. 205, 89 N.E. 338: “The nearest independent cause which is adequate to, and does, produce the result, is the proximate cause of the accident, and supersedes all remote causes.”

From this principle, with respect to the facts applicable to the case under consideration, the opinion stated: “The nearest independent cause which produced the death of this mule was the open, unprotected well, and this supersedes all other remote causes,, among which may have been the open gap through which the mule escaped.”

In Lee v. Powell Bros. & Sanders Co., Ltd., et al., 126 La. 51, 52 So. 214, 216, the Court said: “For severing' the legal connection between the negligence by which such an imminent danger was created and the injury that has resulted from it the intervening voluntary act of some person responsible for his acts would have to be shown.”1 ‘

In every consideration of the point which has come to our attention in the study of this case, the qualities of the relieving or superseding act are repeatedly and unfailingly designated as being intervening and voluntary, by a person responsible for his acts.

Since we must accept the well pleaded allegations of the petition as being true for the purpose of determining the exception, we are constrained to hold that plaintiff has met the requirements established by these several factors and has negatived the possibility that the act which immediately resulted in the harm was the voluntary action of a person responsible for his acts.

Under the allegations of the petition it is inescapable that plaintiff has properly alleged that the defendant Gunter was mentally deranged and rendered temporarily inr sane as the result of the collision of his car with the parked truck. Plaintiff by his allegations has further definitely asserted that such a condition was brought about by the concurrent negligence of the several defendants. In order to affirm the holding of the lower court it would be necessary for us to find that the temporary insanity of the defendant Gunter, which led to the shooting, was not caused by the collision. Clearly, this is a question of fact to be determined by trial on the merits, and, meanwhile, any conclusion must be governed by the plain allegations of the petition.

Any attempt to determine at what point, with relation to the actual injury to plaintiff, the negligence of the original actor, namely, the driver of the truck, ceased and a new and independent tortious act intervened and superseded the original negligence, conclusively impresses us with the impossibility of such a severance of causes. The chain is complete and whole, link by link, and though tested with the utmost care no break is revealed in the succession of circumstances.

The consecutive order of the related circumstances and events may be briefly outlined :

(1). Negligence of the truck driver in parking his truck on the highway, resulting in

(2). Collision, superinduced by the concurrent negligence of the defendant Gunter, resulting in

(3). (a), attempted rescue by the plaintiff.

(b). Temporary mental derangement of the defendant Gunter as a result of the shock of the collision, resulting in

(4). The shooting of plaintiff and the injury sustained thereby.

If there is any break in the continuity of the incidents flowing from the original act of negligence, wt are unable to point out ^ such a circumstance.

Finally, consideration must be given to the application vel non of the general ¡ rule that one is not responsible for those particular injurious consequences which are unforeseen, improbable and not reasonably to have been expected to result from the original act of negligence. ¡

We think it is well established that the general doctrine of foreseeability is not applicable to the extent of relieving one who sets in motion, through the agency of a negligent act, a chain of circumstances leading to the final resultant injury. In Payne v. Georgetown Lumber Co., Ltd., 117 La. 983, 42 So. 475, 477, the Court said:

“That the particular injurious consequence was 'improbable’ or 'not to be reasonably expected’ is no defense. Wharton, Law of Negligence (2d Ed.) § 77. The same writer says:
“ ‘The fact is, that the consequences of negligence are almost invariably surprises. A man may be negligent in a particular matter a thousand times without mischief; yet, though the chance of mischief is only one in a thousand, we would continue to hold that the mischief, when it occurs, is imputable to the negligence.’ ”

This expression of opinion has been adhered to in Atkins v. Bush, 141 La. 180, 74 So. 897, L.R.A.1917E, 809; Davis v. Hochfelder. 153 La. 183, 95 So. 598; Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; and Finney v. Banner Cleaners & Dyers, 13 La.App. 101, 126 So. 573.

We make no attempt to minimize the unusual and improbable character of the incident which is alleged to have occurred in the case before us.

The facts set forth are additional evidence of the truth of .the adage that “truth is stranger than fiction”.

We do not believe that the theory of foreseeability is applicable to the facts of this case. Referring again to the Restatement of the Law of Torts, we find in Section 435 a plain and unambiguous statement of the principle which refutes the requirement of foreseeability: “If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.”

In our opinion the original act of negligence alleged upon is so inextricably interwoven with the subsequent occurrences involved that it cannot be disassociated from any of them. Nor can we consider, in the light of the authorities cited, the act of a temporarily insane or deranged person as being such a character of an independent, voluntary and responsible action as would stand alone as the proximate cause of plaintiff’s injury.

While the burden of this opinion has been concerned with the question of negligence of the defendants, employers of the truck driver, and their insurer, the reasons advanced apply even more strongly and with greater force in maintaining plaintiff’s right and cause of action against the defendant, Gunter.

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment overruling the exceptions of no cause or right of action filed on behalf of all defendants and remanding this cause to the District Court for further proceedings. The costs of this appeal are to be borne by defendants and all other costs are to await final determination of the suit.

On Rehearing.

A rehearing was granted herein restricted to the defendant, Robert J. Gunter, by reason of the fact that said defendant’s counsel made showing in his application that he had failed to receive any notice of the fixing of this case for hearing, as required under the rules of this Court.

All the facts in connection with this cause have been fully set forth in our original opinion herein.

On rehearing it is urged that the exceptions of no cause and no right of action filed on behalf of this defendant should be sustained on the ground that this Court has applied the general common law rule instead of following, “the general rule of law under the Louisiana jurisprudence and the civil law”; on the further ground that the rescue had been effected prior to the incident involving the shooting of plaintiff, and, finally, that by his own allegation plaintiff was guilty of contributory negligence in that he handed the pistol, which was the instrumentality by means of which he was injured, to the defendant, Gunter, knowing said Gunter’s condition, to wit, that he was temporarily insane or mentally deranged from shock.

As to the first point to which counsel directs his complaint of error, we admit our inability to follow the process of reasoning upon which distinguished counsel bases his argument. We made a considered attempt to analyze all of the law applicable to the matter before us, and in reviewing our opinion we find nothing which indicates any disregard of any so-called “general rule of law under Louisiana jurisprudence and the civil law”. Learned counsel urges that the Louisiana law is different from that of the common law but he does not advise us as to the authorities upon which he relies for this assertion. The only case cited in this connection by counsel for defendant is Yancey v. Maestri, La.App., 155 So. 509.

The question presented in the cited case was clearly stated in the opening paragraph of the opinion of Judge Higgins, who was the organ of the Orleans .fourt of Appeal, as follows: “This appeal presents, for the first time in ■ this state, a question of whether or not an uninterdict-ed insane ■ person, who, without cause or provocation, shoots and seriously wounds an innocent person, can be held liable for damages in court under the provisions of the Civil Code of Louisiana.”

A careful reading of the exhaustive opinion makes it at once apparent that it is in no sense applicable to the case before us in which plaintiff predicates his right to recovery not on an injury inflicted by an insane person, but, rather, upon an injury inflicted by one whose own negligence brought about a temporary condition 'of mental derangement.

The initial negligence of the defendant, Gunter, is specifically set forth in Articles 16 and 17 of plaintiff’s petition. As a result of his own negligence the defendant temporarily lost the power of reason. In other words, the basis of plaintiff’s demand is that this defendant, being sane, was guilty of negligent acts which contributed to a chain of causation eventually resulting in injury to plaintiff.

In advancing his second contention, namely, that the rescue had been effected and plaintiff’s .actions in that connection were at an end before the shooting incident transpired, we find that counsel is attempting' to draw entirely too fine a distinction, and that he is quibbling as to the principle involved. To say that a man who had assisted in removing two persons from a wrecked and burning automobile, after depositing one of them upon the roadway, should have immediately ceased all further efforts in extending aid and comfort, would be to pronounce a doctrine which we do not believe counsel intended. Considering the fact that plaintiff’s further acts were designed to give aid and comfort to defendant’s dying wife, a holding that his rescue efforts had terminated would be so harsh and inhumane as to preclude such a conclusion.

The basis for the third and final argument advanced by zealous counsel, on the point that plaintiff was guilty of contributory negligence by reason of the fact that he handed the weapon, with which he was injured, to a man whom he knew to be insane, is not sustained in any . degree whatsoever by a reasonable interpretation of the wording of plaintiff’s petition.

Defendant specifically refers to Article 23 of plaintiff’s petition which alleged that “the defendant, Gunter, being delirious and out of his mind, and suffering from temporary derangement of intellect * * * ”, as indicating that the plaintiff knew Gun-ter’s condition to be as described at the time of handing.him the pistol. We cannot find any basis upon.which such a conception can be substantiated. Plaintiff in his petition has plainly and unequivocally set forth the fact that Gunter’s condition was brought about as the result of his own negligence. At no point has plaintiff alleged that he knew Gunter’s condition at the time, and to accept the averment pointed out as being indicative of plaintiff’s knowledge of such facts at the time related, would be assuming an interpretation wholly unjustified and unsupported.

In conclusion we can only reiterate the observation which we made in our original opinion herein: “While' the burden of this opinion has been concerned with the question of negligence of the defendants, employers of the truck driver, and their insurer, the reasons advanced apply even more strongly and with greater force in maintaining plaintiff’s right and cause of action against the defendant, Gunter.”

For the reasons assigned our original opinion herein is reinstated and made the judgment of this Court.


source: Caselaw Access Project

license: Public Domain

text:
    CALLIHAN v. MONSOUR.
    No. 7164.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Booth, • Lockard & Jack, of. Shreveport, for appellant.
    Foster, Hall & Smith, of Shreveport, for appellee.
   HARDY, Judge.

Plaintiff and defendant are owners of adjoining lots of land located on the shores of Cross Lake in Caddo Parish. In this action plaintiff seeks to have an order issued against defendant decreeing the removal of certain structures erected in the lake below the 172 foot contour line, consisting of piling, walks, a boat house, etc., which, it is alleged, interfere with plaintiff’s use and enjoyment, of his property and the water rights appertaining thereto.

In this Court counsel for plaintiff and defendant have filed a motion praying that the judgment of the District Court be set aside and this cause remanded to said court for further proceedings consistent with a written stipulation signed by the parties plaintiff and defendant which is attached to and made a part of said motion.

We deem it unnecessary to detail the provisions of the written stipulation in view of the fact that there appears to be no ground for objection to the granting of the motion to remand. .

Accordingly, It Is Ordered, Adjudged and Decreed that the judgment appealed from be and it is hereby set aside, and It Is Further Ordered that this cause be remanded to the First Judicial District Court in and' for Caddo Parish, Louisiana, for further proceedings consistent with the stipulation of the parties hereto. All costs to await final determination of this cause.


author: KENNON, Judge.

text:
    B. & B. SYSTEM, Inc. v. EVERETT et al.
    No. 7160.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.

      Love & Bailey, of Shreveport, for appellant.
    Chandler, Lunn & Trichel, of Shreveport, for appellee.
   KENNON, Judge.

In October, 1945, plaintiff sold and delivered a Neon sign to the Everett Beauty Salon at 311% Milam Street, Shreveport, Louisiana. At that time this business was operated by Charles F. Everett and his wife. Subsequently, these parties were divorced and the petition filed by plaintiff alleges that the wife, Mrs. Neva Everett, now Mrs. Neva Norton, by agreement between herself and her former husband, “assumed the operation of the beauty salon and the contract with plaintiff.” Plaintiff prayed for judgment, in solido, against Mr. Charles F. Everett and Mrs. Neva Norton.

The defendant, Charles F. Everett, filed no answer and from the judgment rendered against him he has made no appeal.

Defendant, Mrs. Neva Norton, denied, either categorically or for lack of information, all the allegations of plaintiff’s petition, but admitted, by way of further answer, that there was a balance due plaintiff of $52.50, “these being the only past due installments for which your respondent has received services on said Neon sign.”

The trial Court rendered judgment, in solido, against'the two defendants for the amount claimed to be due on the sign and recognized plaintiff’s vendor’s lien. . From this judgment defendant, Mrs. Neva Norton, prosecutes this devolutive appeal.

' 'On the trial of the case, Mrs. Norton testified'that her husband bought the’sign and added (mistakenly apparently, as her signature does not appear on the contract) that she signed the contract of purchase. She also testified that after the divorce she took over the operation of the beauty salon and made the monthly payments due on the sign. She frankly admitted that she assumed this obligation of $17.50 per month and testified that she took care of the obligation “as far as I could.”

In this Court her counsel argues that the debt for the sign was a community debt and as far as Mrs. Neva Everett Norton was concerned it was the debt of a third person and in order for the plaintiff to recover, it was necessary that they “show a written assumption of this debt.”

Counsel for plaintiff argues that having accepted the commhnity and taken over the operation of the beauty salon and assumed its debts, she thereby became a principal debtor and that such an agreement could be proved by parol evidence.

We of course concede the law to be that parol evidence is inadmissible to prove a promise to pay a debt of a third person. However, parol evidence is competent to prove the assumption of a debt by one who is activated by a pecuniary interest of his own in making the agreement, which in effect becomes an independent undertaking and may be established by any competent evidence.

In the case of Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823, 824, Judge Taliaferro as the organ of this Court laid down the rule and noted the exception to the literal interpretation of Civil Code, Article 2278, which we consider applicable to the case before us:

“The weight of authority interpreting statutes of this kind is to this effect: That, if the agreement to pay the obligation of a third person is merely a collateral undertaking, it comes within the statute ' of frauds; but, if such agreement is independent, not made primarily to answer for another, but is impelled from pecuniary or business motives, accruing to the promisor, then it does not fall within the statute, and parol testimony is admissible to establish same.”-

We conclude from the testimony in the record and from Mrs. Norton’s own admission that she did, after the divorce, take over the business, operated it for her own profit, and assumed its debts, including the obligation sued on'.- She therefore had a pecuniary and business motive in assuming responsibility for the debt.

Since the testimony that Mrs. Norton assumed the obligation was, under the circumstances, admissible, and since the record amply substantiates the finding of the trial Court, the judgment appealed from is affirmed, with costs.


text:
    U. S. REALTY SALES OF SHREVEPORT v. RHODES.
    No. 7097.
    Court of Appeal of Louisiana, Second Circuit.
    April 1, 1948.
    Charles L. Barnett, of Shreveport, for appellant.
    Morgan, Baker & Skeels, of Shreveport, for appellee.
   KENNON, Judge.

This is a suit for a real estate agent’s commission. Plaintiff’s contention is that defendant Rhodes sold his. store, fixtures and equipment as a result of plaintiff’s efforts and that the defendant had made a verbal agreement to pay a 5% commission in the event that such sale was made. The defendant admitted the sale of his store to the purchaser introduced to him by the plaintiff but denied that he had made any agreement to pay a commission to plaintiff. Defendant made the alternative contention, in the event the Court should find the agreement to pay a commission had been made, that there was a complete break off of negotiations from the time the prospective purchaser was introduced to him and the day the transaction was finally consummated, and that plaintiff performed no services in the transaction resulting in the sale of the property.

The District Court found for the defendant and plaintiff has appealed.

The record discloses that defendant, prior to January 20, 1947, owned and operated a store at 2214 Missouri Avenue in the city of Shreveport, Louisiaha. Some time previously, plaintiff, a partnership engaged in the real estate business, had made tentative arrangements for the sale of a store in Vivian, Louisiana to a Mr. J. H. Kaufman. This sale, for some reason not disclosed by the record and not of interest in this case, was not consummated. The Kaufmans were anxious to buy a store. On January 20, 1947, plaintiff’s agent, while accompanying the Kaufman'S in their search for a suitable store, stopped at Mr. Rhodes place of business. Defendant Rhodes declined to sign a contract with the plaintiff company listing his store for sale or to name a price for which he would sell his store, but was agreeable to a resumption of negotiations at a specified time two days later when the place of business would be closed on Wednesday afternoon. An agent of plaintiff came back with the Kaufmans at the time set. The sale was not completed. Plaintiff’s agent who on this occasion was told that Rhodes did not intend to sell, believes that there was a side understanding between Rhodes and Kaufman to complete the sale later without the intervention or aid of the broker. It- is not unlikely that such an agreement could have been made, particularly in view of the fact that a few days later the parties did reach an agreement and the sale of -the business was consummated with no further effort on the part of the plaintiff firm, which however took the precaution of having one of the members call at defendant’s store and inform him that in the event a sale was consummated, plaintiff would expect a commission.

We concede the proposition of law urged by the plaintiff that one who is employed as-a broker becomes entitled to his commission whenever he procures for his principal a party.with whom he is satisfied and who actually contracts for the purchase of the property and that once the owner and purchaser are brought together through the broker’s efforts the fact that the sale is afterwards consummated between owner and purchaser without the broker’s knowledge or presence does not relieve the owner from liability to pay the broker’s agreed commission. Sollie v. Peoples Bank & Trust Co., La.App., 194 So. 116.

The defendant admitted that Spears (agent of plaintiff) called on him and requested a listing and that Spears introduced Mr. and Mrs. Kaufman to him. The defendant admitted that plaintiff’s agent, Spears, brought the Kaufmans to his store on January 20th and that he subsequently sold the business to the Kaufmans for the price set forth in the petition. However, he denies that at any time he agreed to pay plaintiff a commission on the sale, testifying- that he not only did not solicit their aid in selling his store, but that he refused to sign a contract listing his property or to otherwise authorize plaintiff to represent him in any negotiations for the. sale of his store.

Only one of the three representatives of plaintiff who called at defendant’s store testified that Mr. Rhodes agreed to pay a commission to the plaintiff. The report of his direct and cross-examination when first called to the witness stand covers six of the thirty pages of testimony in the record, but he did not testify as to the amount of commission that Mr. Rhodes allegedly agreed to pay. Just before closing, plaintiff recalled him to the stand and he testified in answer to the question, “What was the commission?” “I believe the rate was 5% of the gross sale price.” Even this witness admitted that'Mr. Rhodes refused to list his place with plaintiff.

The Kaufmans testified that plaintiff’s agent, at the time he carried them to the store, stated that the Rhodes store was not listed with plaintiff.

The conduct of Rhodes may in a strict sense be somewhat reprehensible in that while declining to accept plaintiff’s offer to act as broker in the sale of the store, he nevertheless opened sale negotiations with Kaufman in company with plaintiff’s agent and later completed the sale without plaintiff’s knowledge. However, the decisive point in the case before us is not whether Rhodes in some ways took advantage of plaintiff’s eagerness to find a suitable store for its client Kaufman, but rather whether or not there was, under the circumstances, a legal and binding relationship of owner and broker between plaintiff and defendant. The record fails to establish that defendant Rhodes employed plaintiff as a broker or agreed to pay a commission on the sale. On the contrary, we find' that plaintiff was primarily representing Kaufman the purchaser and that the agent’s efforts to secure Rhodes’ agreement for his firm to act as his agent were unsuccessful.

In view of our finding that the plaintiff has not shown that defendant agreed to pay a commission on the sale of his store, it is unnecessary to pass upon the alternative defense that there was a complete break in the negotiations between the time that plaintiff’s agent introduced the prospective purchaser to Rhodes and the final sale.

The plaintiff having failed to establish its case by reasonable preponderance of proof, the judgment of the District Court rejecting its demands is correct. The judgment is affirmed, with costs.


author: TALIAFERRO, Judge.

text:
    DE SOTO WHOLESALE GROCERY CO. v. PACE.
    No. 7161.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Louis Lyons, of Bossier City, for appellant.
    Love & Bailey, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sued on open account for price of groceries allegedly sold and delivered to the defendant on November 18, 1946, amounting to $167.20.

Defendant denies that he ordered or received the merchandise and, therefore, denies liability for the price of the same. He appeals suspensively from judgment in plaintiff’s favor. •

The material facts of the case are not in dispute. Plaintiff conducts a wholesale grocery business in the City of Shreveport and in other places in northwest Louisiana. During the years 1943, , 1944, 194S and to August 12, 1946, defendant operated a small ■ retail grocery business in the Village of Jamestown, in the Parish of Bienville. He established credit with plaintiff and plaintiff , sold and delivered to him weekly, over said period, groceries needful to the conduct of his business, for all of which payment was duly made. As .a rule, .defendant would give to plaintiff’s traveling salesman orders for groceries he needed and on the following day delivery thereof would be made to him by truck.

On or about August 12, 1946, defendant opened up a grocery store in the' City of Shreveport, and on that date he, according- to his testimony,' sold, entirely on credit to his brother, M. C. Pace, the stock of groceries he then had at Jamestown, but not the store building. Plaintiff was not informed of this change in ownership and consequently thereafter continued to weekly deliver- to the place of business in Jamestown and charge to the defendant, such groceries as were ordered. The price of these groceries was all paid except those delivered on November 11, 1946, for which recovery is sought in this suit; The record does not disclose how payments on account after August 12th were made; that is, whether in cash or by check.

In the month of December, 1946, defendant’s store building at Jamestown with all of its contents was consumed by fire. Thereafter, for the first time, plaintiff learned of the purported sale of the stock of groceries by defendant to his brother and demand was promptly made upon defendant to pay the balance due on the account. He refused to do so and this suit followed.

While the testimony bearing thereon is not as clear as it could possibly have been made, we feel warranted in concluding that to all appearances the only change in the conduct of'the Jamestown business . after August 12th, from what it had previously been, was that M. C. Pace was in active charge of it. Defendant did not notify the State Department of Revenue of the change in ownership of the business, nor did M. C. Pace register the business in his name with that department. There is no doubt whatever that plaintiff, in good faith, continued to extend credit to the Jamestown business and to charge the prices of all deliveries to the defendant, while relying upon the belief that he was still the owner of the business. The question, therefore, is' posed: Regardless of the change in" ownership of said business, do the facts of ■ the case commit defendant to liability for the indebtedness involved herein ? In other words, since defendant did not inform plaintiff that he had sold the business and Jlowed plaintiff to continue to extend ■trcdit thereto in his name, should defendant be held responsible for the amount sued for because of his inexcusable failure to inform plaintiffs that he, after August 12, 1946, was no longer owner .of the business? The record .does not warrant the conclusion that defendant, out of any wrongful motive or purpose, failed in his duty to plaintiff. He simply overlooked the. matter or deemed it of no importance to his own interest. ■ But it certainly can be said that due to his inaction, plaintiff was led and induced to do something that has resulted in loss to it. He was silent when he should have spoken.

It seems to us the equitable principle : “When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it” has application. And, expressing .the rule differently: “Where one of two parties, both guiltless of intentional wrong, must suffer a loss, the one whose conduct, act or omission occasions the loss must stand the consequences.” 19 Am.Jur. P. 335, § 483.

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


author: PER CURIAM.

text:
    JAY et al. v. UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL NO. 1095, C. I. O.
    No. 18981.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1948.

      Chaffe, McCall, Toler & Phillips, of New 'Orleans (Leon Sarpy, of New Orleans, of counsel), for plaintiffs and appellees.
    Andrew Zengel and Fred J. Cassibry, both ob New Orleans, for defendant and appellant.
   PER CURIAM.

There is before us a motion filed by plaintiffs-appellees to dismiss defendant’s appeal from a decree of the lower court issuing a preliminary writ of" injunction against defendant and certain of its agents, employees and representatives.

The petition alleges that plaintiffs operate a warehouse on St. Peter Street in New Orleans, in a building leased by them from Henderson Sugar Refinery, Iñc., and that there exists a labor dispute between Henderson Sugar Refinery, Inc., and defendant labor union. That as an incident to the dispute, in which plaintiffs are in nowise involved, their business has been illegally interfered with through picketing activities on the part of the members of the union, and that unless the complained of picketing is enjoined, plaintiffs will suffer irreparable injury.

A temporary restraining order enjoining the acts complained of was granted, and after a hearing on the rule nisi the preliminary writ of injunction, from which this appeal has been taken, was issued by a decree rendered and signed on February 5, 1948.

On February 12, 1948, defendant moved for a new trial, which was refused by. the court on the same day.

On February 16, 1948, defendant then applied to the Supreme Court of Louisiana (No. 38,899) for writs of certiorari and prohibition, commanding the trial judge to send to the Supreme Court a certified copy of all proceedings had in the matter, and “directing him and the plaintiff in said suit not to proceed further with the execution of said preliminary injunction and order same to be set aside, annulled and dissolved and that in the meantime all proceedings.in the lower court be stayed pending action on this petition by this Honorable Court; that also in the meantime the execution of the preliminary injunction issued February 5, 1948 be suspended and held in abeyance until the further order of this Honorable Court.” .The writs were refused on February 18, 1948, with the following comment :

“Writs refused. Relator’s remedy is by an appeal to the appropriate appellate court. See Sec. 9 of Act No. 203 of 1934.”

Thereupon defendant perfected the present appeal, and appellees urge its dismissal on three grounds: (1) That this court is without .jurisdiction ratione materiae, (2) that the appeal was not taken within ten days from the date of the order granting the preliminary writ of injunction, and (3) that only a moot question is involved. The third ground need nót be considered.

Appeals by either party are authorized in a labor dispute from an order issuing or denying any temporary injunction, by the provisions of Act No. 203 of 1934, § 9.

In support - of their contention that this court lacks .jurisdiction ratione materiae, counsel argue that under the lease from Henderson Sugar "Refinery, Inc., which is in writing and is for a term of one year, plaintiffs pay $600 rent per month, - and that the value of the right sought to be protected by the injunctive process is $7,200, which is much more than our maximum jurisdictional amount.

However, we fail to see how the amount of the yearly rental paid for the occupancy of the building in which plaintiffs’ business is conducted can in any way be used or even considered in thé matter of determining the amount involved. In all cases-where a right sought to be protected has a pecuniary value, such value will govern jurisdiction of an appeal, and an appellate court has original jurisdiction for determining facts affecting its own appellate jurisdiction.

In the case of Frierson et al. v. Cooper, 196 La. 450, 199 So. 388, 389, plaintiffs sought to enjoin defendant, who conducted his business in an open courtyard or patio, from permitting music to be played therein after 12 o'clock at night. In determining its jurisdiction, the Supreme Court said:

“* * * Taking into consideration the volume of the relator’s business and the volume of the business derived from the use of the music as an added attraction would in our opinion make the restricted right sought to be enjoined herein of a value in excess of $2,000. It is only reasonable to conclude that the music in the evenings after the dinner hour draws considerable trade to the relator. * * *
* * * * *
“Unquestionably the right involved in the instant case has a pecuniary value capable of proof. * * *”

There is nothing contained in the pleadings or in the affidavits submitted as evidence upon the trial of the rule,-showing or even - indicating the value of the rights sought to be protected by plaintiffs, nor is it shown what, if any, loss or diminution of profits plaintiffs would sustain through the alleged unauthorized acts of the labor union. Flowever, considering the circumstances of the case, it is our opinion that the loss of profits and the inconvenience to be suffered by the plaintiffs as a result of the picketing operations, which is the standard for testing jurisdiction, would not exceed $2,000, and we believe that this court has jurisdiction of this appeal.

In considering the next ground urged for the dismissal of the appeal, i. e., that the motion and the order granting it came too late, it is to be noted that the 1934 act, while authorizing appeals from the issuance or denial of any temporary injunction in a case involving or growing out of a labor dispute, fixes no period of time within which appeals must be taken, and does not make provision for the perfecting of appeals.

Act No. 29 of 1924, § 5, provides in sub- . stance that all appeals, whether suspensive or devolutive, from interlocutory orders o.r decrees, granting or refusing preliminary injunctions, must be taken and bond furnished within ten days from the entry of the order or decree granting the writ or refusing to grant it.

The motion for the appeal was' hot made until February 24, 1948, or on the nineteeth day after the decree granting the preliminary writ of injunction, and it is obvious that as the appeal was taken more than ten days after the entry of the decree, it must be dismissed, unless the ten day period was interrupted or suspended by the motion made for a new trial, or by the application for the writs of certiorari and prohibition .to the Supreme Court.

We notice that the motion for the new trial was made on February 12, 1948, or more than three judicial days from the rendition of the decree. Code of Practice art. SS8, provides that a new trial must be applied for within three judicial days from the rendition of the judgment, and even assuming, but not deciding, that defendant had the right to apply for a new trial in the matter of an interlocutory order granting a temporary writ of injunction, the measures taken to secure it came too late and are without any legal effect.

As to whether the application to the Supreme Court for the writs interrupted or suspended the delay for talcing the appeal, our opinion is that such application did not have that effect. By making application for the writs, defendant sought to have the Supreme Court review the case, meanwhile prohibiting the execution of the preliminary writ of injunction, to the same extent and purpose as would have been served by "a suspensive appeal.

In the case of Warren v. Malvina Realty Co., 178 La. 495, 151 So. 906, 907, the defendant petitioned for and was refused a suspensive appeal from an order granting a preliminary writ of injunction. Defendant- then made application to the Supreme Court for writs to force the granting of the appeal, and to protect its rights in the meantime. These writs were refused, and nearly a month after the date of the decree granting the preliminary injunction, defendant sought a devolutive appeal, which was granted one week afterward. In passing upon appellee’s motion to dismiss the appeal on the ground that it had not been taken within ten days as provided by Act No. 29 of 1924, the Court held that the act of defendant, unsuccessfully put in motion,, to force the granting of the suspensive appeal, did not have- the effect of interrupting the running of the time within which the devolutive appeal should have been taken. The Court used the following language:

“The fact that, upon the refusal of the trial court to grant the suspensive appeal from both interlocutory decrees, application was made unsuccessfully to this Court for writs of mandamus, certiorari, and prohibition to force the granting of the appeal and to protect defendant’s asserted rights in the meantime, did not have the effect of interrupting the running of time for an appeal, nor did the filing and overruling of the motion to dissolve the injunction in the trial court have such effect. Acts of .this nature, not supported by law, and therefore unsuccessfully put in motion, produce no legal effect. In this connection, it may be said that the fact that, in refusing the application for writs, this court said substantially that the applicant’s remedy was by devolu-tive appeal or by appeal, suspensive or de-volutive, after the rendition of final judgment on the merits, was not a recognition of defendant’s right to appeal devolutively in this particular matter and a.t this time. That point, necessarily, was not at issue. The court was--there announcing, which was-proper, the remedy where one ' feels aggrieved by a decree in injunction proceedings, without reference to whether or not the appeal had been lost by the lapse of time. It was the same as if the court had said, ‘The applicant’s remedy, if any, is by-devolutive appeal’; the words ‘if any,’ under the circumstances, being implied.”

For the reasons assigned, the motion to dismiss the appeal is sustained.. Costs of this appeal are to be borne by defendant-appellant, and all other costs are to await the final determination of the case.

Motion sustained.


author: C. E. HARDIN, Jr., Judge Ad Hoc.

text:
    WILLIAMS v. BERGER FOODS CO. et al.
    No. 2982.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.
    Rehearing Denied May 26, 1948.
    Reid & Reid, of Hammond, for appellants.
    S. S. Reid, of Amite, for appellee.
   C. E. HARDIN, Jr., Judge Ad Hoc.

Plaintiff sued Berger Foods Company, a commercial partnership, and Ben Berger and Archie Berger, its members, in solido, for $850. Plaintiff alleged that about March 15, 1946, he was employed by Berger Foods Company as manager of its pickle storage plant in Tangipahoa Parish for a period of one year, said employment to terminate March 15, 1947. He was to receive $100 per month or a total of $1200. He alleged that he carried out satisfactorily all his duties but was discharged without cause on or about July 1, 1946; that he had been paid only $350 and the balance of $850 remained due him. Jurisdiction over property allegedly owned by the non-resident defendants was obtained by a writ of attachment, and service was made through a curator ad hoc.

Defendants all appeared generally by way of answer.

They admit the employment of plaintiff but deny that it was for a period of one year. They affirmatively allege that it was “for no specific period of time.” Defendants do not in their answer set out affirmatively how much and when plaintiff was to be paid, — whether monthly or semi-monthly and on what salary basis, — but allege only that the employment was “for no specific period of time”, and that the “future employment depended upon how the deal worked out and if his (plaintiff’s) services proved satisfactory.” Defendants further allege that their business venture in Tan-gipahoa Parish proved a failure, and that on June 28, 1946, one of their representatives terminated plaintiff’s employment, and that at that time defendants gave plaintiff a check for $100 “as a bonus or present, which was satisfactory to the said plaintiff and he so stated”.

The District Judge awarded plaintiff judgment as prayed for, for $850 with interest and costs, maintaining plaintiff’s writ of attachment. Defendants appealed sus-pensively to this Court.

The mentioned check was offered in evidence. The check does not contain any-writing of any kind on it to identify it in any way whatsoever. It is simply a check payable to the order of Howard C. Williams for $100, signed by Berger Foods Company by A. F. Berger, dated June 28, 1946, and on the left hand margin are written the words “special acct”. The check does not indicate whether it is for salary, whether it is a bonus, or a present, or just what it represented. Nothing whatever is written or printed on the check to indicate that is was given or accepted in settlement of any disputed claim.

The primary factual question presented is whether plaintiff was employed for a period of one year, or whether he was employed by the month at $100 per month. The primary, legal question presented is what effect, if any, the giving and acceptance of the so-called “bonus check”, and the retention of the proceeds thereof by plaintiff, had on the rights of the parties.

The District Judge saw and heard all the witnesses, and his opinion is entitled to great weight unless manifest error appears in the record. In our opinion no such error appears.

The only persons present when plaintiff was employed were plaintiff and Fred Berger, first cousin of the partners of Berger Foods Company, and their duly accredited representative. Plaintiff testified that the first communication he received was from one of the Berger brothers in a telephone call from Hammond; plaintiff was told that a man would be around to see him in a week or two. Later Fred Berger telephoned plaintiff from a hotel in Kentwood and asked him to meet for a discussion, which plaintiff did. Fred Berger outlined the venture defendants were planning, and plaintiff told him at once that, he, plaintiff was not familiar with that line of work. Nevertheless Fred Berger told plaintiff that they would like to have him take the job. Plaintiff was to communicate with various farmers and try to get them to sign contracts agreeing to sell their cucumber pickles to defendants; plaintiff was also to assist in building vats and in supervising the salting of pickles, and testing them, and doing other work related to this new venture. None of this is disputed by Fred Berger, the only witness tendered by defendant. In fact, Fred Berger testified that plaintiff had been recommended as a man of good habits and a conscientious worker, and counsel for defendants in response to a question by the trial judge stated that there was no charge in the record that plaintiff was at fault, or anything of that kind.

The position of defendants seems to be that plaintiff was employed for an indefinite period of time; that since the farmers who contracted to sell cucumber pickles to defendants did not carry out their contracts, and since the venture failed, defendants had a right to discharge plaintiff. In this connection we quote what we believe is the following significant testimony from Fred Berger:

“Q. At the time you employed Mr. Howard Williams, did he make any representations to you as to the amount of business he could secure? A. Only that he said he had a large number of the farmers that he knew real well. He had been living there a long time and if acreage could be gotten, he would get it, and as long as the Company lived up to their contract and prices and did what they promised to do, he felt sure he could get the cucumbers.
“Q. Was that the prime motive of your employing him? A. No, the prime motive was he was recommended as a man of good habits and a conscientious worker." (Emphasis ours).

Plaintiff went right to work as soon as he was employed. He secured contracts for the sale of cucumber pickles from 84 farmers ; carbon copies of 84 of those contracts were offered in evidence. The testimony shows that the farmers who signed contracts to sell pickles to defendants did not live up to those contracts, and there is a rather strong suggestion in the evidence that the reason they did not do that was because they were not satisfied with the manner in which their pickles were graded by defendants. In other words, the farmers would get more money for their cucumber pickles elsewhere, and they took them elsewhere. There is no suggestion that plaintiff was in any way responsible for this. There is no showing that defendants ever took any legal action whatever to try to compel these 84 farmers to live up to their signed contracts. In fact, there is some doubt as to whether or not the contracts could be enforced legally.

Plaintiff himself testified positively that he was hired for one year at $1200, payable $50 semi-monthly. He explained that it would not have been worth his while to discontinue his other work and begin this new venture, if he was going to have a job for only a short period of time. Other witnesses, whose credibility evidently was accepted by the trial judge, corroborated plaintiff to the extent that they testified that Fred Berger had brought plaintiff to them and introduced him to them as the company representative, and told them that plaintiff had been hired for twelve (12) months, and if anything come up which required discussion, plaintiff would be there available to talk over any problems they might have.

Plaintiff’s testimony seems plausible and reasonable, and since it is corroborated by that of other witnesses whose credibility was not attacked or impeached, we believe it clearly prevails over the rather vague testimony of defendants’ one witness Fred Berger. It is not reasonable to believe that a responsible man and a good worker, such as plaintiff, would have entered into an agreement such as defendants set] out in their answer, that is, “for no specific period of time”, contingent upon “how the deal worked out and if his services proved satisfactory”. Certainly defendants cannot complain that plaintiff’s services did not prove satisfactory for they have not suggested that to be the case in their pleadings or testimony.

The fact that defendants felt called upon to give plaintiff the “bonus check” certainly implies that defendants did not feel they had the right to discharge plaintiff at any time. If they had that right, plaintiff was due nothing further. And according to the theory of defendants, the arrangement from the very beginning was that if the venture was not successful plaintiff would be discharged.' If that were true, there was no reason whatever for defendants to feel that they should give plaintiff any present or bonus. Respecting this bonus, Fred Berger said this: “ * * * the Company so (saw) fit to terminate his employment; that he would get an additional check from the office, and I took it upon myself to give him $100.00 bonus because I knew he had worked hard the past three months. He tried to do what he could, and I 'felt he should have that, and he didn’t want to take it and I insisted that he do so.”

Plaintiff said: “ * * * He told me it was my last check”, whereupon plaintiff complained, and said further, “I wasn’t hired that way.”

Plaintiff denied telling Mr. Fred Berger he was satisfied with that bonus check and insisted that he told Mr. Berger he had been hired by the year and had done everything he could and didn’t think he had been treated right.

We therefore believe that the evidence clearly preponderates in plaintiff’s favor on the question of fact.

There is no plea of estoppel, and' no plea of accord and satisfaction, in defendants’ answer. However, in brief, defendants urge that the acceptance of the $100 check by plaintiff estops plaintiff from claiming anything further. Defendants argue that if plaintiff did not consider this a final payment of his wages, then he should have refused to accept it. Pretermitting the question of whether or not defendants can rely upon either estoppel or accord and satisfaction since neither was pleaded, we believe the proof falls far short of showing that plaintiff accepted this $100 payment as-“a final payment of his wages”. Fred Berger does not suggest that it was given to plaintiff in settlement of any disputed claim, but that it was bonus or present.. In fact, under the view taken by defendants, there was no dispute at that time for defendants had the absolute right to discharge plaintiff at any time. Since there.was no proof of a tender and acceptance of a fixed sum in settlement of a disputed, claim, there could have been no accord and satisfaction. And since there is no-showing that there were any representations made by plaintiff, either affirmatively or by failure to disclose, we do not see how an estoppel would lie. As above pointed out, there is nothing whatever on the check itself to indicate that it was given or accepted in final settlement of any claim, disputed or otherwise. As shown by the above testimony quoted from Fred Berger, he took it upon himself to give plaintiff this $100.00 bonus.”

For the reasons assigned, the judgment appealed from is hereby affirmed, at the cost of defendants.

ELLIS, J., recused.


author: JANVIER, Judge.

text:
    GAYLE v. J. RAY McDERMOTT & CO., Inc.
    No. 18937.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.
    Rehearing Denied April 26, 1948.
    Writ of Certiorari Denied June 1, 1948.
    Frank T. Doyle, of New Orleans, for Appellant.
    John E. Unsworth, of New Orleans, for appellee.
   JANVIER, Judge.

Plaintiff, the owner and operator of a motor dump truck, claims of defendant corporation the sum of $1,401.70, alleging that his truck was damaged in a collision with a truck of defendant, and that the collision resulted entirely from the negligence of the driver of the said truck of defendant who, at the time, was acting within the scope of his employment.

Plaintiff alleges that the 'repairs to his truck cost $501.70, and that he lost the use of it for thirty days or more and thus lost earnings of $900. He charges that the driver of defendant’s truck was negligent, in that' he was driving the truck at excessive speed; that he did not reduce his speed as he approached the intersection in which the collision occurred; that he did not keep a proper lookout ahead and did not have his truck under proper control.

The defendant denies practically all the allegations of the petition, though it admits its own corporate existence and that one of its trucks was in collision with plaintiff’s truck. It denies that its driver was negligent in any way and avers that the accident resulted soley from the negligence of plaintiff himself “in failing to maintain a proper lookout for approaching traffic; in failing to have his truck under proper care and control and in failing to yield the right of way to another vehicle which reached the intersection slightly before or at approximately the same time and which was. approaching plaintiff from his right”. In the alternative, that it appears that there was negligence on the part of the driver of defendant’s truck, defendant avers that the proximate cause of the accident was the contributory negligence of plaintiff himself in the particulars alleged.

There was judgment for plaintiff for $801.70, made up of an award of $501.70 for the cost of repairing the truck and $300 for the loss of its use while it was being repaired. Defendant has appealed and plaintiff has answered the appeal praying that the amount of the award be increased to $1,401.70 as originally prayed for.

The accident occurred shortly after noon in the community known as Harvey, which is on the West Bank of the Mississippi River opposite the City of New Orleans. Plaintiff was driving his truck on Greffer Street towards the Mississippi River, and the truck of defendant was on a street sometimes, in the record, mentioned as Eighth Street, and sometimes as Eleventh Street, but which, in fact, seems to be Eighth Street. This Street parallels the Mississippi River. The truck of the defendant was on its way in an upriver direction, so that it approached the intersection from the righthand side of plaintiff. The intersecting corner was overgrown with shrubbery to such an extent that both drivers said that neither could obtain a view out the other street until his vehicle had practically entered the intersection. There were no eye witness except the two drivers.

Gayle, the plaintiff, says that he approached the intersection at about fifteen miles per hour and that when he reached it he reduced his speed to eight miles per hour; that he sounded his horn and entered and that, when he was about three-quarters of the distance across the intersection, “the J. Ray McDermott Company truck struck me and knocked me about twenty-five (25) feet forward into a ditch”. He said that he did not see the other truck until “just when it was about to hit me”. He said too that the truck of defendant was being operated at a speed of “not less than thirty-five miles per hour;, probably more”.

DeRoche, the driver of defendant’s truck, says that as he approached the intersection he knew that he had the right of way over cars coming from his left and that, therefore, he looked in the other direction “towards the river”. He says too, that his speed was “not more than twenty miles per hour”; that the other truck entered the intersection directly in his path and that his truck hit the other when both were “about half way across the intersection”. He said too that neither he nor Gayle had sounded a warning by horn.

If the two vehicles reached the intersection at about the same time, then the right of way was with the defendant’s truck, for it is provided in the State Highway Regulatory Statute — 286 of 1938, in § 3, paragraph (A) of Rule 11 (Right of Way) that: “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.”

Of course, this does not mean that a driver having the right of way blindly approach an intersection without taking precautions to see that it is safe for him to do so, but it does mean, when applied to the other vehicle, that the driver of that other vehicle must be on the alert to make certain that he does not enter the intersection in the face of apparent danger, and it means particularly that the driver of the vehicle which does not have the right of way must look in the direction from which vehicles having the right of way may be expected to approach, and must yield to the superior right of way of such vehicles.

In Cole v. Sherrill, La.App., 7 So.2d 205, 210, the Court of Appeal for the Second Circuit, said: “Plaintiff was on a right of way street and was not required to anticipate that defendant would enter the intersection when he, plaintiff, was as near to it as he was. His responsibility to be oil the lookout for others entering from a less, favored street was not as great as the duty imposed upon defendant entering from the less favored street to see that the street was clear.”

It is very obvious that Gayle did not take such precautions. He says that he entered the intersection very slowly — eight miles, per hour. If he did, then as he entered had he looked he would have seen the other-truck approaching and he could easily have; stopped his truck and allowed the other to pass in front of him. The greater the speed of the other truck the more apparent was the danger of attempting to cross in front of it.

Gayle claims that he had preempted 'the intersection. It is very evident from the ensuing accident that plaintiff could not have reached the intersection more than two or three seconds before defendant’s truck, for if he was traveling at a speed of eight miles per hour, he was moving almost twelve feet per second and thus, in three seconds, he could have completely crossed the intersection. It was during that three seconds that the accident occurred. In Cole v. Sherrill, supra, the Court quoted from the opinion rendered by the District Judge, as follows: “Neither do we find that the defendant had preempted this intersection. This conclusion is based on the nature of the intersection which we have heretofore discussed and for the additional reason that plaintiff was on a right of way street and the cars arrived at approximately the same time. Under such circumstances the mere fact that the driver on the disfavored street might have actually entered the intersection slightly ahead of the •other does not amount to a preemption which would give him the right of way.”

What is meant by the preemption of an intersection in such a situation is clearly set forth in Waller v. Rapides Grocery Co., La.App., 22 So.2d 407, 409, in which the Court said, that while it is true, that a driver whose vehicle has actually preempted the intersection may not be negligent in failing to accord the right of way to the other vehicle, this is only true “ * * * where such vehicle has pre-empted the intersection by a sufficient margin of both time and distance as would enable the driver of a vehicle approaching the intersection on a right-of-way thoroughfare to avoid a collision through the exercise of reasonable care.”

We think that Gayle took no precautions whatever and that if he had exercised the slightest care as he entered the intersection, he would have seen defendant’s truck approaching and would have stopped and avoided the accident.

We say again what we have often said before that “as a rule, such collisions could be avoided if the driver of either vehicle exercised proper care and caution.” Guernsey v. Toye Bros. Yellow Cab Co., La.App., 172 So. 459, 461.

Whether DeRoche was at fault is of no moment. Whatever his negligence may have been there would have been no accident had Gayle exercised the care required of him by the dictates of common prudence and by the express requirements of law. Gayle was the author of his own misfortune, accordingly.

It is ordered, adjudged and decreed that the jugment appealed from be and it is annulled, avoided and reversed and that plaintiff’s suit be and it is dismissed at his cost.

Reversed.


text:
    ELLIS v. BRENNER et al.
    No. 7162.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.

      Cook, Clark & Egan, of Shreveport, for appellants.
    Irion & Switzer, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

The primary question tendered in this case is the right of the plaintiff, the lessee of the defendants, to recover from them the amount necessarily expended by him to install a new electrical system in the leased premise to replace the old and antiquated one that had almost entirely ceased to function.

Defendants resist the suit mainly upon the ground that they were not notified of the necessity to have the new system installed and that, as a condition precedent to their liability for the expense of the new work, they should have had opportunity to have the work done themselves, which opportunity they did not have.

Defendants appealed from judgment that sustained plaintiff’s contention.

The leased premise involved herein is identified as being the ground floor of the brick building at municipal numbers 865-867 Texas Street in the City of Shreveport, Louisiana. Plaintiff had occupied the premise under leases from the defendants for some four years prior to the time the electrical system failed. This occurred on July 2, 1947. The efficient conduct of his business requires dependable electrical current to operate the many motors and other equipment employed by him. The electric system, installed in the building, some fifteen or twenty years ago, was considered adequate for all practical purposes at that time, but, under the heavy load it was required to carry to meet plaintiff’s needs, it gradually deteriorated until three circuits of the four “went out.” This, so long as it continued, paralyzed plaintiff’s business activities.

Plaintiff promptly called Frank Parker, an experienced electrician, and, thinking the trouble could be easily remedied, asked him to do what was necessary to restore the current. Parker found that the service equipment had “burned up * * * melted down.” It could not be fixed. He then put in what he described as a “weather proof socket” which was designed to, and in fact did, temporarily restore the current. Thereafter, he discussed the matter with the city electrician and was informed that as the old system was obsolete and would not provide the maximum security against fire hazard, a modern system of greater capacity would have to be installed in order to pass inspection. This, it is shown, was required by the laws and regulations of the city. However, to meet this requirement it was not necessary to re-wire the leased part of the building.

While there is dispute as to the date when Parker returned to plaintiff’s place of business and informed him of the situation with respect to the city’s requirements, we are convinced it was on the 9th or 10th of July. Plaintiff inquired about the cost of the new work and was informed that it would be about $100. He then,, in the presence of the electrician, called the office of Mr. Alphonse Brenner, who with his sister, Mrs. Bertha B. Florsheim, are the owners and lessors of the property, for the purpose of discussing the matter with him, and of procuring his consent to the expenditure necessary to put in the new system. Mr. Brenner was then absent from tire city and would not return for a week, according to information given plaintiff by someone in his office. Without further delay or effort to contact the lessors, plaintiff had Parker do the final work at a cost of $97.50.

We base our conclusion that it was on July 9th or 10th when Parker reported to plaintiff what would have to be done to meet the city’s inspection, at which time plaintiff endeavored to get in touch with Mr. Brenner, upon the following facts, to-wit:

The bill of the electrician for services rendered shows a charge of $3.50 on July 2nd for temporary repairs and also shows a charge of $97.50 on July 11th for permanent work and repairs. Mr. Parker is quite sure this bill is correct in all respects, although the secretary of his company prepared it. The permanent work required about one and one-half days. If it began on the 10th it was concluded on the 11th. If begun on the 9th, it was finished on the 10th. Mr. Brenner left Shreveport for Chicago on July 8th, and returned one week later. Since he was not in the city when called on the telephone by plaintiff, it follows that the call was made after the 8th of July and before the 11th.

There is no doubt that what was done to the electrical system was indispensable, within the meaning of the law pertinent to such matters. Without it the fire hazard would be greatly increased and, in addition, to meet the city’s requirements such a system had to be installed.

It is not suggested that plaintiff did not act in perfect good faith in proceeding as he did to have a safe and dependable current provided; nor is it suggested that the cost of the new system was excessive.

The lessors well knew the purpose for which plaintiff leased the property and the use to which he had put the same during his occupancy of it.

R.C.C. Article No. 2692, enumerating some of the obligations of the lessor, numbers the following, viz.:

“To maintain the thing in a condition such as to serve for the use for which it is hired.”

Article No. 2693 of the R.C.C. reads as follows:

“The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.”

Repairs, the cost of which are imposed upon the lessee, are listed in Article No. 2716 of the R.C.C. These do not cover, expressly nor by implication, the sort of repairs and improvements involved in this case. This being true, of course, the duty to make or pay for the costs thereof, rests ttpon the lessor. However, Article No. 2694 of the R.C.C., relied upon by defendants to escape reimbursement to plaintiff, reads:

“If the lessor does not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuses or neglects to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.”

The lease contract between the parties does not derogate from the provisions of this article.

The contract of lease in effect when the electric system failed, and the one preceding it, were negotiated by plaintiff and Mr. Brenner who admits that he acted as Mrs. Florsheim’s agent, although the contract itself was actually signed by her son as her agent. Plaintiff was not acquainted with Mrs. Florsheim at the time nor with her son. In every instance when repairs to the leased premises were necessary he consulted Mr. Brenner only, and invariably he was authorized by him to have the repairs made at the lessors’ expense. In view of this course of conduct, it was but natural that plaintiff first sought to discuss the matter with Mr. Brenner. But, the question arises: Was he not required to go further under the law in order to be in a position to hold the lessor responsible for the repair bill? While it is true plaintiff did not personally know Mrs. Florsheim, he did know she lived in Shreveport because he monthly paid directly to her one-half of the monthly rent. In addition to this, Mr. Brenner was not so far away that he could not have been contacted by telephone before the repairs were made by plaintiff.

It is true, as contended by defendants, that the jurisprudence of this state abounds in cases that strictly construe and enforce Article No. 2694 of the R.’C.C. as written. The earliest case on the subject by the Supreme Court is that of Scudder v. Paulding, 4 Rob. 428, and the last one, so far as we have been able to discover, is Hartz v. Stauffer et al., 163 La. 382, 111 So. 794. In many of these cases the court simply held that it is necessary to put the lessor in default as regards the making of necessary improvements before the lessee is warranted in doing so and then deducting the cost thereof from rent. So important to the lessor is this strict construction that the court in Shall v. Banks, 8 Rob. 168, 171, said:

“The owners of houses would soon be ruined, if it were permitted to every- tenant to make such repairs as his fancy or caprice might dictate, without notifying the owner of the property of the intention.”

In Mullen v. Kerlec, 115 La. 783, 40 So. 46, the Court has this to say concerning said Article No. 2694, to-wit:

“The Civil Code seems plain enough that the right of the lessee to make indispensable repairs at the expense of the lessor arises only after calling on the lessor to make such repairs and after his refusal or neglect to make them. We do not think that the lessee can be permitted to anticipate the refusal of the lessor to repair and on that ground refuse to pay the rent when due.”

No exceptions whatever have 'been written by the courts into said article. We can conceive of cases, however, extreme in their facts, where the ends of justice and of equity as well would be subserved by doing so, but after due consideration of the facts in the present case, we do not think it would be proper to so classify it.

Plaintiff’s counsel forcefully argues that plaintiff was confronted with an emergency that did not admit of further delay. The facts do not entirely support this position. The temporary repairs to the system gave satisfactory service for at least a week. During this time Mr. Brenner and Mrs. Florsheim both were in Shreveport, and plaintiff made no effort to contact either of them nor Mrs. Florsheim’s son, who signed the lease for her. It is not to any extent shown that the temporary repairs to the system would not have continued to provide adequate current for another week as it had already done.

Plaintiff also argues that since defendants have refused to reimburse him for the expense of repairs, it logically follows that they would not have agreed to pay for same had they been notified of the necessity therefor before the work was done; that it would have been vain and idle to have called upon them to make the repairs. It may be true that lessors would have evinced such an attitude toward the matter, but certainly had they done so plaintiff would then have been well within his rights and the law to have caused the repairs to be made and thereafter to have deducted the cost of same from rent.

The secondary defenses urged by defendants, in view of what we have said herein-before, need not be passed on.

For the reasons herein given, the judgment appealed from is annulled, avoided and reversed; and there is now judgment in favor of defendants and against plaintiff, rejecting the demand herein and dismissing the suit at plaintiff’s cost.


text:
    LAMPKIN v. KENT PILING CO., Inc.
    No. 2981.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.
    Writ of Error Denied June 1, 1948.
    For former opinion, see 34 So.2d 76.
    S. S. Reid, of Amite, for appellant.
    Brumfield Hebert & Rush, of Baton-Rouge, and L. B. Ponder, Jr., of Amite, for appellee.
   PER CURIAM.

Kent Piling Company, Inc., defendant-appellant, has applied for a rehearing, contending that there are numerous errors in our opinion. We have carefully considered its assignment of errors and have again studied the transcript of testimony, as well as our opinion. We are convinced that our opinion is correct under the established jurisprudence of this State except insofar as it condemns Kent Piling Company, Inc. to pay all costs of court.

As noted in our former opinion, Consolidated Underwriters was made a defendant in a supplemental and amended petition which was filed by the plaintiff. However, judgment was not rendered against it although both defendants admitted that Consolidated Underwriters was the workmen’s compensation insurer of Kent Piling Company, Inc. at the time of Frank Lempkin’s death. No appeal from the judgment was taken by the plaintiff, nor did the plaintiff answer the appeal. Hence, we agree with counsel for the defendants that we were in error in condemning Kent Piling Company, Inc. to pay all costs of the suit. It is our opinion that that company should pay all costs of suit except those incurred in making Consolidated Underwriters a party defendant, such as the costs in connection with the filing of the supplemental and amended petition and the service of same upon Consolidated Underwriters, which should be paid by the plaintiff, and our opinion is amended accordingly.

Defendant-appellant’s application for a rehearing is refused.


author: DORE, Judge.

text:
    BUTLER v. HUMPHRIES.
    No. 2997.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.
    Harrison G. Bagwell, of Baton Rouge, for appellant.
    James J. Bailey and Greene & Womack, both of Baton Rouge, for appellee.
   DORE, Judge.

Plaintiff, while crossing a street in the City of Baton Rouge, was struck and injured by an automobile owned by defendant E. B. Humphries and driven by his unemancipated minor daughter, Marilyn Humphries, who resided with her parents. He brought this suit against the defendant, individually and in his capacity of father of the said minor, to recover damages in the amount of $15,571 for the personal injuries, including a comminuted fracture of the right leg, and for the medical expenses incurred by him.

The trial of the case resulted in a judgment in favor of plaintiff and against the defendant in the sum of $1,800. Defendant has devolutively appealed.

North Boulevard is a street running east and west, and Eighteenth Street is a street running north and south, in the City of Baton Rouge. These two streets intersect each other. One block east of this intersection, North Nineteenth Street intersects North Boulevard. At this intersection there is a traffic light.

Mike Edwards, a witness for plaintiff, testified that he and plaintiff were on the south side of North Boulevard at Eighteenth Street. After looking both ways on North Boulevard and seeing no approaching traffic within a block in either direction, he, accompanied by the plaintiff in his rear, left the curb to cross North Boulevard Street; they were walking rapidly enough to get across the street considering the traffic then existing. When they had practically crossed half of the street, he saw defendant’s car, travelling at about 35 or 40 miles per hour, approaching them, coming from the east and headed west. They hurried to get on the curb. After getting on the curb, he turned around and looked back just in time to See plaintiff get hit. Plaintiff was hit about twenty-four inches from the north curb of the street. After hitting plaintiff, the driver applied the brakes and stopped the car about two car lengths on the west side of North Eighteenth Street or about sixty feet from the point of collision and plaintiff fell about twenty to thirty feet from the point of impact. The witness also testified that the traffic light at the intersection of North Boulevard and North Nineteenth Street was red for traffic on North Boulevard and that there was a car stopped on the east side of North Boulevard, headed west, awaiting the change of lights. He is positive in his testimony that defendant’s car, at the time they left the south curb, was not in his line of vision. The witness testified there was no obstruction in the street to prevent the driver of defendant’s automobile from seeing them continuously from the time they entered the street until plaintiff was struck by the car and that there was ample room to avoid striking plaintiff.

A. J. Loup testified for the plaintiff. The witness lives at 1820 North Boulevard, about eighty to ninety feet east of Eighteenth Street, on the south side of North Boulevard. He was sitting on his front porch at the time of the accident where he could and did observe in detail the circumstances leading up to it. He saw plaintiff at about the center of the street going north and at the same time he saw defendant’s car in front of his house. He estimates the speed of defendant’s car, when in front of his house, at between thirty and fifty miles per hour. He testified that plaintiff was about one step away from the curb, “one more step he would have been on the curb” when plaintiff was struck. He is emphatic that there were no cars travelling east or west just prior or at the time of impact, save defendant’s car. There were no obstructions in the line of vision of the driver of defendant’s automobile. He jumped up from his sitting position and ran towards the site of the accident, but prior to entering the street, he looked in both directions and no cars were coming in either direction. The driver of defendant’s automobile stopped about ten or fifteen feet west of the intersection and plaintiff fell about six feet from the west curb of Eighteenth Street.

B. H. Humphries testified for defendant. He is a son of defendant and a brother of Miss Humphries, the driver of the auto at the time of the accident. According to his testimony, the car was in such bad mechanical condition that it was unable to travel at a speed of thirty-five miles per hour. He testified that North Boulevard is a heavily travelled street between the hours of 5:00 and 7:00 P.M.

Miss Marilyn Humphries, defendant’s minor daughter and the driver of the automobile, testified that she had been travel-ling south on North Nineteenth Street. Upon reaching the intersection of North Nineteenth Street and North Boulevard, she stopped for a red light; after the light changed to green she turned right and proceeded west on North Boulevard. There were no cars in front of her but there was a line of cars on North Boulevard travel-ling east. She states: “* * * the first thing I saw was the first car in line meeting me, * * * and the first car I met travelling at a normal rate of speed and he braked his car not to a dead stop, it was practically fifteen feet in front of me and the next thing I saw was this man, Butler, walking across the street going north he was bent over walking fast, I recognized him because I had had occasion to see him, and when I saw him he was almost in front of my left fender, he just stepped out of the path of the car I was meeting, so then I realized he was going fast and no chance that he would stop, so I cut to the left to avoid running over him with the car and when I did the right front bumper struck him so far as I know, the fender might have hit him also, I don’t think so though, and I went on across the intersection of Eighteenth Street and stopped on the corner.” She estimates her speed at the time of impact at “not over twenty miles per hour”. She did not see Butler before he stepped out in front of the other car. This other car did not stop. She was prevented from cutting too far to the left by the oncoming east line of cars. She did not blow. She applied her brakes, but could not stop.

It was stipulated that if defendant’s witness, Mrs. Louise M. Smith, companion of Miss Humphries in the automobile at the time of the accident, were present that she would give substantially the same testimony as that given by Miss Humphries.

It is to be noticed that the testimony of Miss Humphries relative to traffic moving east and her speed at the time of the accident is in direct conflict with that given by witnesses Edwards and Loup. Evidently, the trial judge saw fit to believe them rather than Miss Humphries. In reading this record we are impressed by plaintiff’s evidence. On account of the many contradictory statements made by Miss Humphries during her examination, we must say that we are not impressed with her version of the accident. For instance, she testified that she was prevented from cutting to the left in order to avoid striking plaintiff by other cars travelling east. Again she says that the first car travelling east had to brake his car to keep from striking plaintiff, yet she admits that none of these cars stopped. There was nothing to prevent Miss Humphries from seeing plaintiff in the act of crossing the street. The accident was caused solely by her not keeping a proper lookout. She should have seen plaintiff sooner than she did. Furthermore, she had ample room, according to the preponderance of the evidence to turn left and avoid the plaintiff. If she had been keeping a proper lookout and had had her car under proper control, she should have seen, like Mr. Loup, plaintiff some eighty or ninety feet away. It is undisputed that plaintiff was struck about three feet from the north curb of North Boulevard and was thrown or dragged a distance well over twenty feet. Miss Humphries did not stop her car, in her own version, before she had travelled over thirty feet. This is either because she was travelling too fast or her brakes did not work, if she applied them, as she says she did, before striking plaintiff.

Under the facts of this case, we cannot see the applicability of sudden emergency doctrine. If there was a sudden emergency, it was created by Miss Humphries and Miss Humphries alone. Nor do we find any contributory negligence on the part of the plaintiff. The preponderance of the evidence is to the effect that when plaintiff left the south curb of North Boulevard to cross over to the north curb, defendant’s automobile was some distance away and according to Mr. Edwards, he had ample time to negotiate the crossing.

We are firm in our opinion that the negligence of Miss Humphries was the sole cause of the accident.

As to the quantum, since plaintiff has not answered the appeal and since defendant does not complain of the amount awarded, we see no dispute with reference to the award.

For these reasons, the judgment appealed from is affirmed.