text:
    MOODY v. TEXAS & P. RY. CO.
    No. 7244.
    Court of Appeal of Louisiana. Second Circuit
    Oct. 27, 1948.

      Cook, Clark & Egan, of Shreveport, for appellant.
    Olin D. Moore, of Many, for appellee.
   TALIAFERRO, Judge.

Plaintiff sued to recover the value of three cattle that were killed by defendant’s trains on different dates, near the Village of Pleasant Hill, Sabine Parish, Louisiana. The killing of the cattle, it is alleged, resulted from the negligence of defendant and the operatives of its trains in the following respects, to-wit:

(1)That the trains were operated at a speed so great that they could not be stopped within the distance the engineers could see;
(2) That the operatives were not keeping a proper lookout;
(3) That although each side of defendant’s right-of-way below and above where the animals were killed, was fenced, no cattle guards at the McGinnie or Bunkie crossing, near petitioner’s home were provided, and it was through the openings where these guards should have been that the cattle entered upon said right-of-way.

It is further alleged and proven that the cattle had the right to roam at large as no law required the owner to confine them.

Defendant admits that the cattle were killed by its passenger trains at the places, on the dates and about the times of day alleged, but it is denied that in either instance the killing occurred because of any negligence or carelessness of its agents in charge of the operation of the trains. The answer further gives in detail the facts and circumstances attending each killing as appreciated by the engineers and firemen. As we shall give and discuss the facts of each killing later in this opinion, to avoid repetition, they are not here related.

From a judgment for plaintiff as by him prayed, the defendant appealed.

At the McGinnie or Bunkie crossing and south of it, the defendant’s right-of-way is one hundred feet wide, and the track traverses the center of it. Prior to the dates the cattle were killed defendant had fenced both sides of its right-of-way but each line of fence ended about fifty feet below the crossing. No cattle guards were installed. It is obvious that the opening between the fence lines served to admit cattle at will to enter and graze upon the area embraced in the right-of-way. This being true, Act No. 70 of 1886, section 8154, Dart’s Statutes, is applicable. This act, inter alia, provides that in suits to recover the value of live stock killed or injured by a railroad company, the burden devolves upon the company in order to escape liability, to prove freedom from fault or carelessness on the part of its agents in the running and operation of the train. In other words, to make out a case a plaintiff has only to prove that the company’s train killed or injured the live stock, and the value thereof. But the act further provides that where the railroad company maintains adequate fences and cattle guards on its right-of-way the burden of proving negligence against the company in .a suit to recover the value of cattle killed or injured rests upon the plaintiff. The above cited act is relied upon.by plaintiff herein.

No law of this state forbids a train to be operated at a speed so rapid that it cannot be stopped within the distance the engineer can see. Such a rule would require trains to be stopped entirely or their speed reduced so materially in case of heavy fog, smoke or dust storms that schedules could not be observed. The same would be true as regards passenger trains that travel rapidly at night, because they cannot be stopped within the distance the engineer is able to see down the track even with the aid of powerful headlights. Of course, in the day time, when the weather is fair, any train may be stopped within the distance an engineer, having good eyesight, can see. The negative of plaintiff’s contention on this phase of the case is well established by the jurisprudence of this state. See: Boyd v. Kansas City, Shreveport & Gulf Railway Co., La.App., 147 So. 100; Jeter v. Texas & Pacific Railway Co., La.App., 149 So. 144.

The general rule with regard to the operation of passenger trains in the open country is that any speed is permissible which is consistent with their own safety and that of their passengers. See: Davis et al. v. Alexandria & Western Railway Co., 152 La. 898, 94 So. 436; Campbell and Company v. Texas and Pacific Railway Company, La.App., 152 So. 351.

There is no law of this state that requires a railroad company to fence its right-of-way and provide adequate cattle guards at crossings, nor to maintain the same in good condition after being erected. The failure to provide such fences and guards and maintain them is not negligence per se. See Friedman’s Estate v. Texas and Pacific Railway Company, 209 La. 540, 25 So.2d 88, 160 A.L.R. 1228, and cases therein cited.

In the opinion of this court in the Friedman’s Estate case we said: “The fact that the right-of-way was not fenced has no legal significance beyond that which involves the burden of proof.” 24 So.2d 167, 169.

The same may be said in the case at bar, since the fence is not of the character adequate to keep roaming cattle from entering upon the right-of-way.

A red steer with white face was killed February 18, 1947 at six o’clock P.M., between 300 and 400 feet south of said crossing. The testimony of the engineer and fireman in charge of the train, which consisted of an engine and three passenger coaches, clearly repels any suggestion of negligence in connection with the death of this animal. There is no testimony of probative value that contradicts that which these two men gave. The engineer testified that as the train approached the crossing it was going slightly up-grade at forty miles per hour; that as the crossing was passed and the headlights focussed down the track he observed the animal running between the rails, going from him; that he rang the bell, blew the whistle and applied the brakes and the train’s speed was reduced to about twenty-five miles per hour when the steer was run over. He also testified that this train, going at forty miles per hour, could not be stopped in less than 1,000 feet. His testimony on this point is corroborated by that of other trainmen of long experience. In all material respects the testimony of the fireman supports that of the engineer.

A yellow colored steer was killed November 19, 1946, at about six-thirty o’clock P.M. The train consisted of engine and three passenger cars and was traveling at about forty miles per hour. The steer was first revealed to the engineer by the headlights when it was approximately 300 feet away, standing about ten feet from the right side of the track, upon a slight elevation. Bushes and weeds prevented earlier discovery of the animal. When the train was about 200 feet from the steer, he started across the track. The bell was rung, the whistle blown and brakes applied in an effort to prevent the impending collision, but without success. It is also shown that it would require 1,000 feet to stop the train. These facts are testified to by the engineer and his testimony is corroborated by the fireman. No other testimony in the case, having to do with this steer’s death materially conflicts with the testimony of these two trainmen.

A red colored cow was killed at ten-thirty o’clock A.M., December 21, 1946. In this instance, as in the others, the train consisted of engine and three passenger coaches, and was traveling at forty miles per hour, and like the others it could not have been stopped under 1,000 feet. The engineer observed several cattle on the right side of the track, about one-fourth of a mile away. As the train approached, all of the cattle, save the one killed, crossed the track safely and when the train was about 250 or 300 feet from the other one, it suddenly attempted to cross over and was killed. The engineer made the same effort to avert killing the animal as was done in the other two instances. It is clearly shown that all three cattle were unavoidably killed. There was no negligence on the part of the trainmen in either case.

It goes without saying, as courts have often held, that if a train was required to slow down every time the engineer saw an animal on the right-of-way, in areas where stock legally roam at large, schedul.es could not be observed, and danger from more serious accidents would be greatly enhanced.

Lastly, plaintiff contends that by leaving the fence lines open at their northern ends and allowing cattle to go upon the right-of-way, created a trap which makes applicable the decision of the Supreme Court in the Friedman’s Estate case, supra. The cases are not apposite. The facts in the Friedman’s Estate case were uncontradict-ed. They show that a trestle in defendant’s track was partially floored. The killed animals had strolled or were driven by the approach of a fast moving passenger train, upon the floored part of the trestle and could not go forward nor to either side without jumping several feet below. Of course, they would not turn and go toward the moving train. These conditions, the court said, constituted a trap and rendered the railroad company responsible for the value of cattle killed because of it.

In the present case, the presence of the two lines of fence, so far as we are able to perceive, contributed to no extent to the accidents. Most likely the animals would have been on the track where killed if no fence had been there. There is no testimony whatever to indicate that either animal got on the track after being frightened by the train and attempting to go through the fence. The contrary is shown.

For the reasons herein assigned, the judgment from which appealed, is reversed, annulled and set aside and plaintiff’s suit is dismissed at his cost.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    FIDELITY & GUARANTY FIRE CORPORATION v. RITTER.
    No. 7231.
    Court of Appeal of Louisiana Second Circuit.
    Oct. 27, 1948.

      Olin D. Moore, of Many, for appellant.
    Fraser & Fraser, of Many, for appellee.
   TALIAFERRO, Judge.

Plaintiff, carrier of property damage insurance on a Buiclc car owned by Elden Dees, having paid the amount necessary to repair the damage inflicted on the car in a collision with the Ford automobile of the defendant, J. Houston Ritter, under act of subrogation, sued to recover said amount on the theory that the collision was caused solely by Ritter’s negligence.

The accident occurred in the day time on concrete highway No. 171, not far north of the Town of Many, Loitisiana. The Dees car was being operated by Mrs. Dees and was traveling southerly. Mr. Ritter had been traveling northerly on the highway, but came to a stop and then began the execution of a left turn thereon, intending to cross same entirely. The front end of his car was beyond (west) of the medial black line when struck by the Dees car; in other words, his car was then almost squarely across the paved portion of the highway. The left front end of the Dees car struck the side of the right front end of the other car.

For a cause of action, plaintiff alleged that the Ritter car was suddenly and unexpectedly driven to its left and stopped after it had partially preempted a portion of Mrs. Dees’ side of the road; that it was then too close to her for the accident to be averted, although she endeavored to do so by sounding the horn and driving onto the road’s west shoulder.

The suit is resisted primarily on the ground that Ritter was free of negligence as a cause of the collision, and, secondly, that the accident occurred solely from and because of the negligence of Mrs. Dees in that she was driving at an excessive rate of speed without due regard to traffic conditions about her and without keeping a proper lookout for traffic then and there on the highway. Alternatively, and as a basis for a plea of contributory negligence the alleged acts of negligence accredited to Mrs. Dees are urged in bar of recovery herein.

The demand of the plaintiff was rejected and its suit dismissed. It prosecutes appeal.

The material facts of the case are not in serious dispute. There is obviously a lack of purpose on the part of any witness in the case to misrepresent the true facts.

The highway immediately north of the locale, for a distance of 300 yards, is straight.

Mr. Ritter was on a business mission and to reach his destination it was necessary that he cross the highway where the accident occurred and enter upon a dirt road that leads westerly. As he approached this point, driving on his side of the highway, a. moving automobile from the north and one from the south were observed by him; also, he observed a boy on a motor bike some distance south of him. He then drove his car onto the road’s east shoulder and came to a stop to allow the cars to pass before he undertook the left turn. Immediately after the cars had passed, and without allowing time for the motor bike to do so, and without signal of his intention, he drove to his left and stopped on the concrete with the front fires of his car upon the middle line. This put the front bumper twenty-eight inches west of this line. He testified that as the boy on the motor bike had not passed him he applied his brakes, stopped his car and looked to his left in an effort to locate the boy. He also testified that immediately prior to stopping he looked northerly, but did not observe any car coming from that direction. Evidently the Dees car was then in the 300 yard tangent, above the scene of the accident, and the failure of defendant to see it cannot be well explained except on the assumption that he was so close to the car that had just passed, his view northerly was obscured. At this juncture, after admitting that his car was then across the road, he testified: “I had no more than located the motor bike than I heard a horn blow, and at the same instant it hit my car.”

In order to determine responsibility for a motor vehicle accident, a driver will be held to have seen that which by the exercise of reasonable diligence he could have seen.

Mrs. Dees was traveling about fifty miles per hour. That speed a!t that time and place cannot be characterized as excessive. She was on her proper side of the road, and testified that when she first noticed the Ritter car it had stopped on the east side of the road, at which time she was not far away; that the Ritter car was driven across the road and the collision occurred. She was unable to say whether she did anything to avert a collision, beyond applying the brakes, as to which she is not certain. There were no signs on the pavement to indicate application of the brakes. Evidently, as might be expected of most drivers in such circumstances, she became excited and, for this reason, did little to avoid the accident.

The testimony of Mr. Ritter, beyond question, convicts him of gross negligence. It also convinces us that his own acts created a sudden emergency. A left turn on a street or highway, it is obvious to all, and as has many times been judicially held, is about the most dangerous movement a motorist can undertake, and it should not be attempted unless traffic conditions about clearly warrant it.

Rule 9(a), Section 3, Title II of Act 286 of 1938. The meaning and effect of this rule is well reflected from the second paragraph of the syllabi in Seale v. Stephens, La.App., 24 So.2d 651, which reads: “The making of a left turn on a much-traveled highway is a dangerous operation requiring great caution and the responsibility for seeing that such a turn can be made in safety is placed upon the motorist desiring to make the turn.”

The following cases are among the many that likewise interpret this rule: Monroe Hardware Company, Inc., v. Monroe Transfer & Warehouse Company, Inc., et al., La.App., 167 So. 498; Vernon v. Gillham et al., La.App., 179 So. 476; Fields v. Owens et al., La.App., 186 So. 849; Duke v. Adkins, La.App., 2 So.2d 526; Dudley v. Surles et al., La.App., 11 So. 2d 70.

It is of some significance that defendant, while being carried from the scene of the accident to a clinic in Many, stated to the driver, his friend,: “I am sorry this happened—it is all my mistake.”

When Mrs. Dees observed the Rit-ter car at stop, she naturally assumed, as she had the right to do, that her approach would be observed by its driver, and that the car would remain immobilized until she had passed. Under these circumstances, the duty did not devolve upon her to apply the brakes, sound the horn, nor drive onto the shoulder to her right, although, as said before, she thinks she did apply her brakes, and defendant says he [heard the horn almost simultaneously with the impact. The cases of Jimes v. Fidelity & Casualty Company of New York et al., La.App., 163 So. 421, and Vines v. Hartford Accident & Indemnity Company, La.App., 36 So.2d 729, in principle, are in point.

To excuse Mr. Ritter from liability for the results of the accident we would have to hold that the facts warrant the conclusion that because Mrs. Dees did not suddenly veer her car to her right and get upon the shoulder, after the emergency arose, she was guilty of negligence of such character as to render her equally responsible with Ritter for the collision. The law and jurisprudence of this state, pertinent to the question, are quite clear, and they negative negligence under such circumstances.

We are satisfied from the candid testimony in the case that the Dees car was not a great distance away when defendant stopped his car in the middle of the highway. The distance was so short that going at fifty miles per hour or seventy-three and one-third feet (73 1/3') per second, she did not have time to coordinate her mental faculty and physical power to the extent necessary to avoid running into the Ritter car. It has often been held, and properly so, that faced with such circumstances, a motorist will not be held to the exercise of that accuracy of resolution he would be expected to exercise if acting calmly and deliberately. See: Phillips et ux v. Henderson et al., La.App., 200 So. 192; Brown v. Dickson, La.App., 3 So. 2d 562; Hagaman et ux. v. Bankers, Indemnity Insurance Company, La.App., 7 So.2d 390.

Even though it be conceded that Mrs. Dees was in some limited measure negligent in that she was not maintaining the maximum optical alertness, it does not follow from such a concession that, in legal contemplation, such negligence would bar recovery by her had she sued the defendant. Surely such negligence on her part was not the or a proximate cause of the accident. Clearly, defendant’s gross negligence, in the respects mentioned, was the and the only proximate cause of it. It was his negligence that originated and set in motion the chain of causation which continued unbroken to the moment of the impact.

For the reasons herein assigned, the judgment of the lower court is annulled, reversed and set aside, and for said reasons there is now judgment in favor of the plaintiff, Fidelity and ’Guaranty Fire Corporation, and against the defendant, J. Houston Ritter, for the sum of $528.62, together with five per cent (5%) per annum interest thereon from judicial demand until paid, and for costs of this suit.


text:
    McKELVY v. MILFORD.
    No. 7259.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    T. M. Comegys, Jr., of Shreveport, for appellant.
    J. B. Davis, of Shreveport, for appellee.
   TALIAFERRO, Judge.

Defendant desired to sell his residence in the City of Shreveport, Louisiana, and posted a “For Sale” sign thereon which being observed -by plaintiff, a realtor in said city, doing business under the trade name of McKelvy Realty Company, prompted her to contact him with the view of indue ing him to list the property for sale with her. He did so and very soon thereafter she contacted Mr. W. R. Wyatt, also a resident of said city, who wished to purchase a home, and his interest in the property was immediately aroused. He and his wife inspected the place and informed plaintiff that they were willing to purchase it but had only $1,500 in war bonds to apply on the price. As defendant exacted all cash for his property, plaintiff suggested to Wyatt that he take the necessary steps to procure a commitment from the Federal Housing Administration for a loan of $6,-800 to be secured by a mortgage on the place. It was thought that with the proceeds of such a loan the sale of the property could be consummated. Wyatt promptly made the suggested application.

About the time this was done plaintiff had Wyatt sign what is referred to as an agreement to purchase the property, the consideration as expressed therein being: “$8,500.00. Terms FHA Loan Balance Cash,” and he delivered to her his check for $500 which is described in said instrument as earnest money. This amount, it is also declared, was to be applied on the price of the sale should it be consummated. Thereafter, at plaintiff’s instance, defendant signed said agreement and at that time she endorsed and delivered to him said check.

In due time the FHA was heard from. That agency was willing to approve a loan of only $5,200 on the property. As Wyatt was unable to acquire additional cash to close the trade, he notified all concerned that he would make no further effort to acquire the property. He abandoned negotiations entirely.

The referred to agreement was also signed by plaintiff. It is on a printed form used by her and contains this singular provision : “and it is agreed by the parties to this contract that the commission of the McKelvy Realty Company is earned upon the signing of this contract by both parties to it, and may be deducted from the money herein receipted for.”

Plaintiff predicates her action upon this quoted part of the agreement. She sues for $425, being five per cent (5%) of the price named in the agreement. She does not contend that she earned the commission by procuring a customer who was ready, willing and able to close the sale on the terms exacted by defendant.

Defendant denies that plaintiff is due or entitled to recover any amount from him on commission account. He alleges that after it was learned that Wyatt was financially unable to carry out his part of the agreement, he and Wyatt, by mutual agreement, canceled the contract between them in toto.

Plaintiff’s demand was rejected and she appealed to this court. The lower court gave written reasons for its judgment.

It goes without saying that if, under the contract, plaintiff was vested with the right she asserts herein, the other signatories to the contract were without power 'by their own voluntary act to divest her of such right. But, we do not think the right asserted by plaintiff herein devolved upon her simply from the signing of the agreement. If this were not true, it can easily be seen that the door to the practice of fraud, deception and imposition would be open wide. The realtor could pick up a financially irresponsible person and have him represent himself to be a serious prospect, and when the agreement (such as we have here) was signed, the realtor could then -turn to the owner and demand of him the payment of a commission. This would, of course, lead to absurd consequences. No person, 'even of average intelligence and business experience, would knowingly commit himself to such an obligation.

It is the law, well known and recognized by all persons engaged in the buying and selling of real estate, that a broker earns the right to claim a commission from the seller only after he has acquired a customer who is ready, willing and financially able to buy on the terms specified or agreed to by the owner.

Clearly, the agreement between the parties was not susceptible of specific performance. It begins as a receipt for the amount paid down, and contains several provisions concerning the prospective sale and purchase of the property, but therein defendant did not obligate himself to sell the property to Wyatt nor did Wyatt obligate himself to buy it and pay the stipulated price. The best that may be said of the instrument is that it is a sort of offer to buy accompanied by the giving of earnest money and either party had the unquestioned right to recede therefrom by incurring the penalty provided by law in such cases. Article No. 2463 of Civil Code.

We are of the opinion that this case could easily be disposed of by simply holding that, as the record clearly warrants, defendant did not agree to pay plaintiff a commission for effecting a sale. He first asked $8,500' for his property, but did finally agree to take $8,100 net for it and informed plaintiff that she might add compensation for her services thereto. She did so to the extent of $400. The record bristles with testimony, to the admissibility of which no objection was made, that establishes these facts. Had a sale been closed for $8,100, no commission would have been due plaintiff and since 'no sale at all was closed a fortiori no commission is due her. We prefer, however, to predicate judgment upon other grounds.

The quoted excerpt from the agreement is unconscionable. In addition, plaintiff’s own conduct subsequent to the signing of the agreement clearly reflects a consciousness on her part that she had not to that time earned the right to demand a commission from plaintiff. Especially is this attitude disclosed in two different ways, to-wit i

(1) After the agreement was signed she made some efforts to bolster Wyatt’s financial condition so that the commitment of the FHA could be availed of and the sale closed; and
(2) She voluntarily endorsed and handed over to defendant the check representing the earnest money without exacting any commitment from him with respect to returning part of it to her on commission account.

The courts of this state in the few cases that have reached them, wherein a provision of a contract of the character herein discussed, so unfairly favorable to the realtor, was involved, have uniformly refused to enforce the same, and in so doing based decisions upon the legal as well as equitable principle, that no commission was due the realtor by the owner unless he produced a customer ready, willing and able to buy on terms acceptable to the owner.

The question here tendered, under contracts carrying the same or substantially the same provisions as that relied upon by the plaintiff herein, was discussed and adjudicated in the following cases, to-wit: Eastbank Land Company, Inc., v. Hoffstetter, 170 La. 594, 128 So. 527; Boisseau v. Vallon & Jordano, Inc., et al., 174 La. 492, 141 So. 38; Leaman v. Rauschkolb, La. App., 1 So.2d 338.

In the Eastbank Land Company case, the plaintiff was a realtor and on behalf of a client submitted an offer to purchase the property defendant had authorized it to sell, and he accepted the offer. The trade fell through from no fault of the defendant, the owner. The broker then sued him for a commission. In rejecting the demand, the court said:

“Indeed the position of the plaintiff seems to be that it was entitled to the commission when its offer was accepted by the defendant though no purchaser was ever secured. In the third paragraph of the petition it is alleged that the commission was earned and payable when the offer to purchase was signed by the plaintiff and accepted by the defendant.
“No such obligation was incurred by the defendant or contemplated by the parties at the time the offer was made and accepted.
“The commission could only be, earned and became due when the offerer obtained a person ready, willing, and able to buy on the terms stated in the offer, and this, as we have seen, was never done.
“It would be strange indeed to say that the defendant owed the plaintiff a commission for malting the offer to purchase.”

In the Boisseau case in the offer to purchase that was accepted by the owner, there was incorporated a definite commitment on his part as regards payment of the commission. It reads [174 La. 492, 141 So. 40]:

“I agree to pay Vallon & Jordano, Inc., agent, the commission of 5% on purchase price, which is earned upon the acceptance of this offer.”

This stipulation appeared several times in the offer. Justice Odom, organ of the Court, at length discusses the question and quotes several articles of the Civil Code to support the reasoning advanced against the enforcement of the quoted agreement. We quote in part what he had to say, to-wit:

' “Counsel for Vallon & Jordano, Inc., realtors, -say that contracts not prohibited by law constitute the law between the parties and are enforceable against them, even though they were unwise in making the agreements, and that ‘courts do not sit to relieve persons of the results of their bad judgment.’
“That is true enough, but courts do sit to interpret instruments evidencing.' obligations. A contract or obligation ‘must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.’ C.C. art. 1762.
“When courts are called upon to interpret written instruments purporting to evidence obligations, if any doubt arises, .they look beyond the mere wording of the instrument itself and endeavor to ascertain what was the true intent of the parties, for it is the’ intent of the parties which determines whether an obligation was assumed.
“The Civil Code, under the heading ‘Of the Interpretation of Agreements,’ beginning with article 1945, prescribes the general rules for the interpretation of agreements. In article 1945 it is provided:
“ ‘That courts are bound to give legal effect to all such contracts according to the true intent of all the parties,’ and:
“ ‘That the intent is to be determined by the words of the contract, when these are clear and explicit, and lead to no absurd consequence.
“ ‘That it is the common intent of the parties, that is, the intention of all, that is to be sought for; if there was a difference in this intent, there was no common consent, and consequently no contract.’
“Article 1950 reads as follows:
“ ‘When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.’
******
“The contract seems to have been written mainly in the interest of the real estate agent. Its provisions for the payment of the agent’s commission are snares and traps to catch the unwary, and are so drastic, harsh, and out of accord with those usually found in such instruments that no court of justice will enforce them in the absence of proof positive that those who signed the instruments understood and intended to be bound by them.
“Furthermore, the contract as between the owner and the agent is wholly inequitable and violates the rule which, in the precise language of the Civil Code, art. 1965:
“ ‘Is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another.’ ”

The Leaman case, supra, was decided by the Orleans Court of Appeal. It follows the two Supreme Court cases from which we have quoted.

Plaintiff’s industrious counsel argues that the agreement in question meets all the requirements of Article 1779 of the Civil Code relative to the confection of a valid agreement, to-wit: Parties legally capable of contracting; their consent legally given; a certain object which forms the matter of their agreement; and a lawful purpose. He also cites and quotes many articles of the Civil Code dealing with the confection of contracts and which amplify the requirements in said Article 1779. No useful purpose would be promoted by discussing and pointing out wherein these articles are not controlling of the issue tendered herein. All of said articles contain sound law, and under facts and circumstances different from those in the case at bar, would be safe to follow. The question here tendered has 'been positively answered by the Supreme Court in the two decisions from which we have quoted. No words of ours would improve upon what was said therein.

Plaintiff also cites and quotes from the following cases, which he contends support his position herein, to-wit: Maloney et al. v. Aschaffenburg et al., 143 La. 509, 78 So. 761; Spiro v. Corliss, La.App., 174 So. 285; Blache v. Goodier, La.App., 22 So.2d 82.

There may appear in these cases statements from which plaintiff derives some comfort but the exact point at issue in each is not the same as that in the present case and for this reason they should not be accorded any influence in determining the issue herein. And, in addition, the Supreme Court has settled this question in no uncertain language.

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


author: HARDY, Judge.

text:
    COMMERCIAL SECURITIES CO., Inc. v. JOHNSON.
    No. 7255.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.

      S. W. Gamm and Wilson, Abramson & Maroun, all of Shreveport, for appellant.
    Morgan, Baber & Skeels, of Shreveport, for -appellee.
   HARDY, Judge.

This i-s a suit, by ordinary process, on a promissory note -secured by a chattel mortgage in which plaintiff procured the issuance of a writ of sequestration, under which the mortgaged property was seized. The defendant bonded the sequestered property and later filed an answer in the nature of -a general denial, -coupled with a reconventional demand in the -amount of $1,000. A motion to dissolve the writ -of sequestration was later filed -on behalf of defendant, which motion was tried by rule, and judgment was rendered setting aside and annulling the writ and reserving the right of defendant to sue for damages in appropriate proceedings. Finally, -defendant filed an amended and supplemental answer in which he claimed an additional sum of $1,800 as damages allegedly resulting from the wrongful issuance of the writ and the seizure thereunder. After trial on the merits -there was judgment for plaintiff 'in the amount of $338.72, being the sum claimed in plaintiff’s petition, and further judgment in favor of defendant, as plaintiff in reconvention,- in the sum of $495.75, 'together with $100 as damages in the nature of attorney’s fees, and $50 a-s damages •for the issuance of the illegal writ of -sequestration and the seizure thereunder. A rehearing was granted -and -there was final judgment of the District Court -on rehearing setting -aside its -original judgment -and awarding judgment in favor of -plaintiff in the -sum of $338.72, and in favor of the -defendant, as plaintiff in «convention, in the sum of $150. From this judgment defendant appeals and the appeal has been answered by plaintiff, which prays for the-amendment of -the judgment of the lower Court -to the extent of disallowing the amount of $150 awarded defendant, -plaintiff in reconvention.

Defendant admits the indebtedness of $338.72 to plaintiff, but -strenuously urges ■his right -to substantial damages in «convention both on the merits and as a result of the alleged illegal issuance of the writ of sequestration and the resulting -seizure.

Definitely established facts show that -on June 26, 1946, defendant, -a Negro man who operated a small sawmill business, purchased .from Gay’s Engine Service of Shreveport an engine particularly described as being one c/w Pully & Butane Battery, Climax, 1942, R110 Engine, Unit No. 3273, Engine No. 14293. The consideration was set forth as being $700 cash, which was actually -represented by a credit on the turn-in of another engine, and the sum of $1,166.16 payable in twelve monthly installments of $97.18 -each, -which unpaid balance wa-s evidenced by the promissory note herein sued on, payable to the order of “Myself” and duly -signed and endorsed by the defendant, Sam Johnson. The note, dated June 26, 1946, was paraphed to identify the same with an act of chattel mortgage-of even date therewith.

Contemporaneously with the sale -by Gay’s Engine Service to Sam Johnson and the execution -of the note -and -chattel mortgage, the note was endorsed by “Gay’s Engine Service, Willie T. Gay, owner”, and delivered to the Commercial Securities. Company, Inc., plaintiff herein. After making a number of payments on the note, Johnson began to fall behind and, being unable to meet the payment due in April, 1946, it is shown that on April 14th he paid the sum of $6 to the Commercial Securities in consideration of a thirty-day extension for the time of meeting his next payment. On May S, 1947, Johnson paid a sum of $50 to plaintiff, which amount, however, did not bring his payments into current condition. On June 14, 1947, plaintiff filed this suit, which initiated the procedural development above described.

Defendant’s reconventional demand is based on the fact that plaintiff obligated itself, at the time of purchasing the note above described from Gay’s Engine Service, to carry insurance on the mortgaged property, and that it failed so to do. On May 5, 1947, the engine was destroyed by fire and the major portion of the reconven-tional demand is made up of items claimed to be due as the result of damage, costs of repair, etc. The items of damage constituting the $1,800 claimed by defendant as the result of the alleged wrongful issuance of the writ of sequestration and the seizure of the engine in question, include claims for attorney’s fees, cost of release bond, loss of profits, cost of transporting the engine, humiliation and mortification, injury to petitioner’s reputation, etc.

Stripping this rather complex and unwieldy record -to bare essentials, it is plain ■that only two questions are involved, first, was the issuance of the writ of sequestration, which resulted in the seizure of the mortgaged property, improvidently, wrongfully or illegally issued? and, second, on the merits of the case, has defendant, in his capacity as plaintiff in reconvention, established, to the degree required, the existence of an obligation and the consequent failure on the part of plaintiff to insure the mortgaged property?

Careful study of the record convinces us that both of the questions posed should be answered in the negative.

Unquestionably, plaintiff was the holder and owner, for value, of the promissory note which forms the basis of this suit. The note was secured by a chattel mortgage creating a lien and privilege which inured to the holder of the note. Under these circumstances there can be no doubt as to the right of plaintiff to the issuance of a writ of sequestration and the seizure of the mortgaged property under the specific provisions of paragraph 7 of Article 275 of the Code of Practice, which reads as follows: “The plaintiff may obtain a sequestration in all cases where he has a lien or privilege on property, upon complying with the requisites provided by law.”

No serious attempt has been made to combat the rights of plaintiff under this provision. But defendant bases his contentions as to the wrongful issuance of the writ on the ground that defendant purchased, for a consideration, a thirty-day delay for making an installment payment. He contends that this suit, which was filed on June 14, 1947, was premature. Careful examination of the record before us fails to substantiate this claim. The purchase of the delay was effected on April 14, 1947, which would have extended the period for payment, according to the undisputed testimony on this point, for thirty days. While it is true that within the thirty days, to wit, on May 5, 1947, defendant made a payment, It is also true that this payment did not serve to satisfy the total arrears of his installment. We are at a loss to understand how defendant can claim the benefits of an agreement with which he has not complied. As a matter of fact, it appears to us that plaintiff was sufficiently considerate in delaying this action to a degree which gave defendant an additional thirty days within which to liquidate his past due installments.

These being the facts, as we find them, we perceive no merit in defendant’s claim with respect to the illegal and wrongful issuance of the writ of sequestration. In our opinion, the writ of sequestration was properly issued and it necessarily follows that defendant is not entitled to damages.

We now proceed to a consideration of the second question above stated. The burden of defendant’s claim, as to the obligation of plaintiff to insure the mortgaged property, is based upon a provision incorporated in a so-called ‘‘purchaser’s statement” which is set forth on the reverse side of a copy of the chattel mortgage. In a computation of the several items making up the total amount of -the unpaid purchase price on defendant’s obligation, there is set forth the following item: “Time Price differential (including the cost of insurance) $108.76”.

Out of the above representation in the statement which was signed by the defendant, Sam. Johnson, he has attempted to construe an obligation on the part of the purchaser of a promissory note.

Regardless of the fact that, unquestionably, negotiations for the purchase of the engine and the mortgage therefor were consummated at the .same time, there is a very definite distinction as to the relationships of the parties involved.

The details of the matter are plain. The defendant, Johnson, agreed to purchase the engine from Gay’s Engine Service and Gay discounted the note representing the unpaid portion of the purchase price to the Commercial Securities Company, plaintiff herein. The plain fact is that, while defendant executed his note in the sum of $1,166.16, Gay actually received only $1,057.40. The difference, amounting to $108.76, represented the discount. The provision as to insurance is not and cannot be considered an obligation on the part of the purchaser of the note.

Reference to the chattel mortgage itself discloses the following provision: “Vendor, or the holder and owner of said note, may, but shall not be obligated to, insure said property against fire and theft, and collision or either of them in such form and amount and with such insurers as shall be satisfactory to-, and to protect, the holder and owner of said note. Mortgagor agrees to pay the premium therefor upon demand and on failure to do so payment of said premium shall be secured -by this mortgagee * *

There is no showing that the mortgagor paid any premium of insurance, nor is there any evidence of any demand or of the payment of the premium by any other party.

Neither is there any showing in the record before us of any agreement as to insurance between defendant and plaintiff. The attempt was made, through the testimony of defendant himself, to establish such an agreement. 'But it developed that this effort was predicated upon a telephone conversation between Gay and a representative of plaintiff which was relayed by Gay to the defendant. And, the only testimony to this effect was that of the defendant. The value of defendant’s testimony is considerably weakened in consideration of the fact that he proved himself to be an unsatisfactory and unreliable witness in his testimony on other matters. Whatever the credibility, or lack thereof, of defendant, the fact remained that his unsupported statement of an understanding as to insurance, which is stoutly denied 'by .plaintiff’s witnesses, falls far short of the required preponderance of the evidence upon which a judgment may be based.

For the reasons assigned, the judgment 'appealed from is 'amended to the extent of rejecting all the re-conventional demands of defendant, Sam Johnson, against the plaintiff, and, as amended, it is affirmed. All costs of both courts are taxed against defendant-appellant.


author: KENNON, Judge.

text:
    SMITH et al. v. EAST & WEST INS. CO.
    No. 7251.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Denied Nov. 24, 1948.

      Browne, Browne & Bodenheimer, of Shreveport, for appellant.
    D. H. Perkins, of Shreveport, for appel-lees.
   KENNON, Judge.

Alleging that an airplane owned by plaintiffs had been wrecked and “totally destroyed” and that defendant had issued a policy of insurance covering any loss or damage to their airplane “except damage due to crash,” plaintiffs filed this suit for $1,000.

Defendant filed a plea of vagueness and an exception of no cause of action. After plaintiffs had amended their petition, defendant answered, admitting the issuance of the policy, but denied that its provisions covered the crash damage suffered by the airplane.

From a judgment against it in the amount of $950, defendant prosecutes this appeal.

The facts surrounding the damage sued upon are not in dispute. One James Milton Carter — who held no pilot’s license from the Civil Aeronautics Authority or otherwise— left the Riverside Airport in Shreveport, Louisiana, on the morning of October 1, 1947, for a cross country flight. The plane he used was owned by plaintiffs and insured by defendant. In a forced landing attempt near Waskom, Texas, the rear wheel failed to clear a pasture fence. Fortunately, the pilot was uninjured,-but the plane was almost totally destroyed. No fire followed.

The insurance policy was introduced in evidence and showed that plaintiffs had paid no premium for “crash” insurance. However, plaintiffs’ counsel contends that under the peculiar wording of the policy, defendant is liable for any crash damage when such crash was not followed by fire.

Pertinent provisions of the policy are as follows:

“Coverage B — Crash.
“To pay for-any loss of or damage to the aircraft:
“(1) during flight due to collision with ground, water or other object and fire following said collision;
“(2) or due to stranding or sinking or to towing following a forced landing on water;
“(3) also disappearance if the aircraft is missing and no-t reported for sixty days after commencing flight;
“but only for the amount of each separate loss when determined, in excess of the deductible sum or the percentage of participation, if any, stated in Item 3 of the Declarations.” (Italics oürs.)

Because the policy makes defendant liable for all damages to the plane, except damage due to crash as defined, -it becomes necessary to decide whether defendant •would have been hable had plaintiffs paid premiums to include crash protection as defined in Coverage B above quoted.

Our interpretation of paragraph 1 of the above quoted provision is that defendant would have been liable for the damage due to young Carter’s crashing of the plane had plaintiffs paid the additional premium and been in a position to claim the benefit of Coverage B defined above. We think it evident that the words, “and fire following said collision” constitute an additional liability upon the company issuing the policy, and, under the provisions of this paragraph 1, as soon as the plane collided with the “ground, water or other object” and suffered damage, defendant became responsible for the damage done up to that instant, and if fire should follow, they are likewise responsible for the fire damage. This interpretation would be particularly logical when considering that paragraph 1 was designed to insure the airplane in the event it was forced down over water. It would be indeed an unusual case for an airplane, upon crashing into a lake to be consumed by fire and yet under the interpretation of the policy contended for by plaintiffs, the plane which suffered damage “during flight due to collision with * * water” would not be covered unless there was “fire following said collision.”

The construction that plaintiffs give the crash coverage clause above quoted, would amount to transferring the crash coverage clause into a clause protecting the owner against damage caused by fire following a crash or collision, and this is plainly not a fair interpretation of the meaning of the clause when considered as a part of the policy attached to plaintiffs’ petition.

In an attempt to make the defendant liable under the theft provision of the policy, plaintiffs alleged that young Carter had taken the plane from their hangar and was'operating it without the permission of its owners or their authorized agent. The record discloses that plaintiffs operate a flying school and private plane charter business in a hangar at the Riverside Airport. In the same building there is an ornamental iron works business operated by Mr. T. H. Hardie. Mr. Hardie was a former co-owner of the airplane, but had disposed of his interest to the plaintiffs several months prior to the day young Carter wrecked it. Mr. Hardie was still friendly with the plaintiffs and occasionally gave assistance to their students and other customers. He was not an employee and his business had no connection with plaintiffs’ business except that incidental to joint occupancy of the same building (with no partition between the space occupied by the two tenants).

Some time late in September, 1947, James Milton Carter came to this hangar and asked Mr. Bailey, one of the plaintiffs, about renting an airplane. It was' late in the afternoon and the weather was not favorable and Mr. Bailey suggested that Carter come back at a later date. Carter returned on the morning of October 1st. None of the plaintiffs were present and Carter inquired of Mr. Hardie as to Bailey’s whereabouts. Hardie informed Carter that Bailey would not be down until afternoon. ■Carter told Hardie he wished to fly to Texarkana, Arkansas, and Hardie assisted him in servicing the plane, preparatory to taking off. Before taking to the air, Carter left a piece of paper with his name, and, after crashing the airplane near Waskom, Texas, returned to the hangar and made a full report of the accident, its location, etc. He went with one of the plaintiffs to the scene of the accident.

No criminal action of any sort was ■instituted or even suggested against Carter. While the record leaves some doubt as to whether there was a misunderstanding between Hardie and Carter at the time Carter left in the airplane, it is clear in our minds that the circumstances cannot fairly be construed as being a case of theft.

We agree with the principle of law that insurance policies should be liberally construed, particularly when a liberal construction is needed to carry out the obvious intention of the parties. We likewise concede the rule that a contract will be construed more strictly against the party who framed it. Muse v. Metropolitan Life Insurance Company, La.App., 191 So. 586. But, as stated in that case, the rule is equally well settled that contracts of insur-anee, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used.

The judgment appealed from is reversed and judgment is now rendered rejecting plaintiffs’ demands, at their costs.


text:
    GREAT AMERICAN INS. CO. v. GULF STATES TRUCK LINES et al.
    No. 7219.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Denied Nov. 24, 1948.
    Irion & Switzer, of Shreveport, for appellants.
    Melvin F. Johnson, of Shreveport, for appellee.
   HARDY, Judge.

This is an action in which plaintiff insurance company, as subrogee of its assured, the J. B. Beaird Company, Inc., seeks to recover for damages to a dehydrator in course of transportation by defendant, carrier for the Beaird Company.

Defendants interposed exceptions of no cause or right of action, which were overruled in the lower Court, whereupon defendants answered plaintiff’s suit and incorporated therein a call in warranty directed to the Beaird Company.

The Beaird Company made appearance by filing exceptions of no cause or right of action to the call in warranty, which were maintained in the District Court, from which judgment defendants prosecute this appeal.

The sole question before this Court is the correctness, vel non, of the judgment below which maintained the exceptions and dismissed the Beaird Company from the call in warranty.

Plaintiff’s petition ‘alleges that defendant, a commercial partnership and its several partners, engaged to transport a machine, described as being a D-700 Beaird Challenger Dehydrator, for the J. B. Beaird Company from its plant in Shreveport to Lake Village, Arkansas; that on or about the 25th day of October, 1946, defendant’s truck, upon which the dehydrator had been loaded, was overturned, with resulting damage in the total sum of $1,136.25; that the accident was due to the negligence of defendant’s employee, the driver of the truck; that plaintiff paid the amount set forth, under the terms of the policy of insurance issued by plaintiff, to the Beaird Company, receiving in consideration therefor a sub-rogation from the Beaird Company as against the parties responsible for the damages.

After disposition of preliminary pleadings, defendants answered plaintiff’s petition by setting up a general denial and then affirmatively alleging an agreement between the Beaird Company as shipper and the defendant as carrier, under the terms of which- the shipper obligated itself to procure insurance which would protect both the shipper and its carrier against loss by reason of damage to the dehydrator. The effect of defendants’ pleading, and one of the purposes as therein set forth, would be to rewrite the policy of insurance issued by plaintiff to the carrier to the extent of including defendant as an assured thereunder.

The exceptions on behalf of the Beaird Company are based on the contentions that, first, defendant’s attempt to include itself as an assured under the policy of insurance issued by plaintiff for the protection of the Beaird Company, would have the effect of voiding the policy; and, second, that there was no contract of warranty as between the Beaird Company and defendant.

The first contention is predicated upon the proposition that the bill of lading, representing the contract between shipper and carrier, contained the following provision:

“Any carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property, so far as this shall not avoid the policies or contracts of insurance.”

while the policy of insurance carried a specific provision to the effect that the insurance therein provided should not enure directly or indirectly to the benefit of the carrier or other bailee by stipulation in the bill of lading or otherwise on penalty of avoidance of the policy.

The point which is denominated by the shipper as its second ground of attack upon defendants’ call in warranty urges Articles 378 and 379 of the Code of Practice in support of the argument that no contract of warranty actually existed. The articles referred to read as follows:

“378. Definition — Warrantor.—The obligation which one contracts to defend another in some action which may be instituted against him is termed warranty. The one who has contracted this obligation is called the warrantor.”
“379. Kinds defined. — Warranty may be of two kinds, real or personal.
“Real warranty is that which arises in real or hypothecary actions; as when a purchaser is sued in eviction of an immovable property which has been sold to him.
“Personal warranty is that which takes place in personal actions; it arises from the obligations which one has contracted to pay the whole or a part of a debt due by another to a third person.”

It is obvious that if the shipper’s second point as above stated is tenable and no contract of warranty exists, the need for consideration of the first point is eliminated. Inasmuch as we have concluded that this, indeed, is the case, we pretermit a discussion of the first ground of attack and proceed with a consideration of the existence vel non of a contract of warranty.

Careful examination of the bill of lading, as well as the oral agreement which is urged in defendants’ answer, in our opinion fails to disclose any contract of warranty as between the defendant carrier and the shipper. There is no obligation set forth under the terms of which the shipper is called to defend an action against the carrier arising from the carrier’s tort, nor do we find even the slightest indication of an assumption by the shipper of an obligation to pay anything in the nature of a debt which may be due by its carrier. We point out that there can be no question of debt in the instant case since this action is a tort proceeding for the recovery of damages to personal property, and until and unless there is judgment against the defendant, certainly there is no obligation of debt.

In reaching our conclusion with respect to a lack of the assumption of obligation of warranty on behalf of the shipper, exceptor herein, we have been careful to give unusual consideration to the argument advanced on behalf of defendants, orally and in brief, by their learned counsel. It is urged that the jurisprudence construing Article 379 of the Code of Practice has changed over the course of the past century to such extent that the later decisions of our Supreme Court liberally construe the provisions of Article 379 of the Code of Practice to the end that “all matters in anywise involving warranty may be brought under the provisions of this article and all matters that can be concluded and tried in one suit should be so concluded and tried.”

In support of this assertion counsel particularly cites Muntz v. Algiers & G. Ry. Co., 114 La. 437, 38 So. 410, and Bennett v. Weinberger, 160 La. 1001, 107 So. 780.

We have diligently studied the cited cases and are constrained to believe that their intent and import have been misconstrued by defendants’ learned counsel.

The basis for the call in warranty in the Muntz case was a contract of lease which contained a specific stipulation by which a lessee bound himself to assume all the obligations of the lessor, Algiers & Gretna Railway Company, under its franchise. The defense relied upon two propositions, (1) that tort feasors are not the warrantors of each other, and (2) that there was no privity between plaintiff and defendant in the main cause and the alleged warrantor.

We do not perceive how the facts of the cited case, nor the points involved in the defense to the call in warranty, as above stated, have any analogy to or bearing upon the issues presented in the instant case. While it is true that there is some argument by counsel for both parties herein, with respect to the question of “privity of contract,” we do not find that such point is here at issue.

The Bennett case involved an action by plaintiff as lessee against the defendant lessor claiming damages arising from the failure of a prior tenant to relinquish the premises to plaintiff. The warrantors defended on the grounds (1) that there was no privity of contract between the plaintiff and the warrantors, and (2) that warrantor’s lease from defendants was reconducted, by reason of which fact they were justified in retaining possession. Again we observe that there is no analogy of fact nor point of law which would serve to render the cited case applicable.

It is our view that the obligations of the shipper in this case, if any, result from purely contractual stipulations as between the shipper and its carrier, the defendant. If defendants have any rights against the Beaird Company as its shipper, they are rights which have arisen independently of the rights which are here attempted to be asserted by this plaintiff against the defendant carrier. We emphatically disagree with defendants’ position that all matters which are susceptible of trial and conclusion in one suit shall be so tried and concluded. While it is quite true that our Courts have gone far in their commendable efforts to prevent a multiplicity of actions, we find no ground whatsoever for concluding that every contractual provision between parties can be engrafted into a suit against one of them under the guise of warranty.

Since none of the elements of warranty, as defined and set forth in Articles 378 and 379 of the Code of Practice appear to us to be present in this case, we can only conclude that the exception? to the call in warranty were properly maintained.

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


author: ECENNON, Judge.

text:
    DE BOSE v. KELLY et al.
    No. 7232.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Denied Nov. 24, 1948.
    Fraser & Fraser, of Many, for appellant.
    Irion & Switzer and Harry A. Johnson, Jr., all of Shreveport, for appellee.
   ECENNON, Judge.

J. S. De Bose filed this suit against R. H. Kelly and J. H. Riggs seeking judgment for four hundred weeks compensation at the maximum rate. Judgment went by default against defendant, R. H. Kelly. Defendant Riggs admitted the injury of plaintiff as alleged, but set forth in his answer that plaintiff was an employee of R. H. Kelly, who was operating a sawmill, and that defendant Riggs had no connection with Kelly’s business that would make him liable under the compensation act.

From a judgment rejecting his demands against Riggs, plaintiff prosecutes this appeal.

The record discloses that Kelly was the owner of the equipment necessai^ to build a portable sawmill. Lacking money with which to begin operations, he borrowed from defendant Riggs, and to secure the loan, he gave a chattel mortgage on this equipment, and, on the same day, signed a contract to sell his entire output to defendant Riggs, the pertinent paragraphs reading as follows:

“That whereas, the said R. H. Kelly is in the business of operating a portable saw mill in the Parish of Sabine, Louisiana, in the manufacture of cross ties and lumber, and desires to secure a ready market for all of his out put, and
“Whereas, the said J. H. Riggs is in the business of purchasing and handling and dealing in cross ties and lumber, and desires to purchase all of the cross ties and lumber that the said Kelly may produce in Sabine Parish, La.
“Therefore, it is hereby contracted and agreed that the said R. H. Kelly will sell to the said J. H. Riggs, and the said J. H. Riggs agrees to purchase from said Kelly, all of- the cross ties that the said Kelly manufactures and delivers at the tie yard on the K.C.S. Ry. right of way at Many, La., and to purchase at the mill all of the lumber manufactured by the said Kelly, and agrees to pay the said Kelly the market price, for said cross ties and lumber, prevailing on the date such ties and lumber is taken up by the inspector of said Riggs. Said payments to be made weekly or as often as there is sufficient amount of cross ties or lumber to justify inspection.”

On August 10th Kelly purchased a tract of timber from a Mrs. Meshell, and on the same day executed a deed to Riggs covering the identical timber. Mr. Riggs’ agent said this timber deed was taken for security; that Kelly was permitted to cut and use the timber and was credited with the full price of all delivered goods against all advances.

On September 10, 1946, Kelly began his first day of sawmill operation. Plaintiff, who is a brother-in-law of defendant Kelly, was engaged in work requiring him to be adjacent to the belt and flywheel. In some manner not disclosed by the record, this flywheel flew apart and plaintiff suffered seriou's injury which resulted in the loss of an arm above the elbow.

The doctor testified that plaintiff had a normal recovery after the amputation. Plaintiff testified that he went back to work for his brother-in-law in October and admitted that he received the same wages of $40 a week for “something like six months” following.

On August 11, 1947, he made demand through his attorney upon defendant Riggs. Upon Riggs’ refusal to pay compensation, the present suit was filed on September 8, 1947, two days ahead of the prescriptive period.

The issue in the case is whether or not Mr. Riggs’ ownership of a chattel mortgage on the mill, his advancing money for the purchase of timber, and his holding of the contract to purchase all of the timber cut by the mill, gave Mr. Riggs such control as to create the relationship of employer and employee between Riggs and the plaintiff.

The controlling point in the present case is the same as it was in the case of Grant v. Consolidated Underwriters, La.App., 33 So.2d 575, and the facts are similar in many respects. In that case, Grant was injured while in the course of his employment with Joe McAllister, who owned a tractor type tie mill which he had purchased from Gross and Janes Tie Company, paying about one-fifth down and giving a demand note to the Gross and Janes Tie Company, secured by chattel mortgage on the mill, for the balance. The defendant, Consolidated Underwriters, was the insurer of the Gross and Janes Tie Company.

The tie company purchased all of the ties cut by the mill. To assist McAllister, the company’s agent had purchased the timber on a tract of land belonging to the Harvey brothers. McAllister set up his mill on the Harvey property. Ties cut were hauled by the Harveys on their truck to the delivery point of the tie company. Lumber from the mill was sold to a Mr. Barrett. The tie company remitted directly to the Harveys at the rate of 20‡ for each tie delivered to the tie company from the Harvey land. Some time after the accident forming the basis of that suit, Mc-Allister sold his mill to Barrett, the principal consideration being the assumption of the unpaid balance du'e the tie company.

In that opinion, this Court held that plaintiff was an employee of McAllister and that the tie company was not responsible for the compensation due him for injuries received while so employed. The basis of the holding being (see page 578 of 33 So.2d): (1) McAllister was the bona fide owner of the mill, at which plaintiff was employed. (2) McAllister employed and paid plaintiff and -had complete charge of the hiring, firing, paying and supervising of all his employees. (3) In the course of operations, he was under no obligation to report to the tie company on any matter.

In the case before us, Kelly was the owner of the mill, had full control and was under no obligation to account to Riggs for his operations. In fact, the case for the plaintiff here is hardly as strong as it was in the Grant case.

Plaintiff contends that since Mr. Riggs advanced money for the operation of the mill and had a contract to purchase its entire output from Mr. Kelly, Mr. Riggs became the principal of Mr. Kelly within the meaning of Section 6 of the Compensation Act, Act No. 20 of 1914, § 6, as Amended by Act No. 85 of 1926, § 1. One may purchase a part or the whole of the output of a sawmill owned by another without creating any relationship of principal and contractor between the purchaser and the sawmill operator. The terms of the above quoted contract between Kelly and Riggs creates, in our opinion, no such relationship.

The judgment of the District Court granting plaintiff compensation as prayed for against the defendant Kelly and rejecting his demands against the defendant Riggs is correct and same is affirmed, with costs.


text:
    SMITH v. ATKINS.
    No. 7225.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Hussey & Smith, of Shreveport, for appellant.
    R. J. Newson, of Shreveport, for appel-lee.
   HARDY, Judge.

This marks the seventh time this particular matter of litigation has been before this Court or the Supreme Court of the State of Louisiana on one ground or another. Citations marking the appearance of the litigation before the appellate courts of the State are as follows: Atkins v. Smith et al., La.App., 21 So.2d 85; Atkins v. Smith (Smith, Intervenor), 204 La. 468, 15 So.2d 855; Atkins v. Smith et al., La.App., 21 So.2d 89; Atkins v. Smith (Smith, Third Opponent) 207 La. 560, 21 So.2d 728; Smith v. Atkins, La.App., 23 So.2d 649; and Smith v. Atkins, 211 La. 369, 30 So.2d 121.

On the occasion of the last appeal to this Court we declined jurisdiction and transferred the appeal to the Supreme Court. Smith v. Atkins, La.App., 23 So. 2d 649. The Supreme Court accepted jurisdiction and rendered judgment. Smith v. Atkins, 211 La. 369, 30 So.2d 121.

Examination of the record, with which we have become exceedingly familiar, discloses the obvious fact that the basis of the claims made by plaintiff, the nature of the relief sought, and the amount of her demands, are identically the same as appeared on our last consideration. In view of this fact, and since we have once before declined jurisdiction, and since the Supreme Court assumed jurisdiction on our transfer of the appeal, we are at a loss to consider on what ground this Court could be considered as having acquired jurisdiction of this appeal.

Plaintiff-appellee has filed a motion to dismiss the appeal on the ground that the same was intentionally taken to the wrong court for the purpose of delay. Under the provisions of Act No. 19 of 1912 with respect to the transfer of cases, Dart’s Statutes, Section 1427, after finding that a case is within the appellate jurisdiction of the Supreme Court, a Court of Appeal is not vested with discretion as to dismissing the appeal. Soniat v. Clesi, 165 La. 426, 115 So. 644.

For the reasons assigned the motion to dismiss is refused and it is ordered that this appeal he transferred to the Honorable the Supreme Court of the State of Louisiana. Defendant-appellant is hereby granted a period of sixty days from and after the date upon which this decree becomes final within which to effect the transfer and to perfect her appeal in said Court, failing which action within the time fixed, this appeal is to stand dismissed.


text:
    TOMKIES et al. v. MECO PRODUCTION CO.
    No. 7239.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Denied Nov. 24, 1948.
    Dickson & Denny, of Shreveport, for appellants.
    Colvin & Hunter, of Mansfield, for ap-pellee.
   KENNON, Judge.

Alleging thait defendant had not developed their lands with due diligence, plaintiffs filed suit to cancel an oil and gas lease covering 320 acres of land owned by them in DeSoto Parish, Louisiana. The petition set forth that six wells had been drilled on the premises and that two of them were producers; that notwithstanding their demands upon defendant for further development, no additional wells had been drilled since September, 1946. Plaintiffs asked that the lease be cancelled except as to ten acres surrounding each producing well and that they be awarded damages and attorney’s fees.

The case is before us on an appeal by plaintiffs from a judgment of the District Court sustaining defendant’s exception of no cause of action.

The lease was executed on May 3, 1945 for a primary term of ten years, and covered the South Plalf of Section 27, Township 14 North, Range 13 West in DeSoto Parish.

Paragraph 3 of the petition set forth that there had been drilled “on said lands in all six wells; ” that only two were completed as producers, both being situated in the South Half of the Southeast Quarter of the Southwest Quarter.

Paragraph 4 of the petition set forth; “Petitioners further show that the well drilled in the SE corner of the SEj4 of said Sec. 27 had a showing of oil and the indications were that a commercial well could have been completed, but same was never completed as a producer, but instead of completing or offsetting this well another attempt was made some 660 feet due north but without success.”

The petition stated no other facts as to where the remaining wells were drilled and contained no allegations as to production-upon adjacent lands or other facts to show that the drilling of the four non-producing wells was not a sufficient testing of plaintiffs’ premises.

Paragraph 5 of the lease, regarding offset wells, reads as follows: “In the event a well or wells producing oil or gas in paying quantities should be brought in on adjacent land and draining the leased premises, lessee agrees to drill such offset wells as a reasonably prudent operator would drill under the same or similar circumstances.”

The petition contains no allegation that specific wells producing oil and gas in paying quantities have been brought in on adj acent lands.

The lease is still in its primary term and will be subject to cancellation only in the event that the plaintiffs should allege and prove a state of facts that would justify the Court in holding that the defendant had neglected its duty to operate and develop the leased premises to the mutual advantage of both parties to the contract.

In the case of Louisiana Gas Lands, Inc., v. Burrow et al., 197 La. 275, 1 So.2d 518, 521, the Supreme Court of Louisiana sustained an exception of no cause of action to a petition similar in nature to the one now before us. We quote from that opinion :

“The rule which imposes the implied obligation upon a lessee to operate the leased promises to the mutual profit and advantage of both parties to the contract can not be invoked so as to erase entirely from the contract those provisions which expressly declare that the lessee’s rights shall continue so long as gas is produced in paying quantities. * * *
“It is true the petition contains the allegation that ‘defendant has willfully and deliberately neglected and refused to pull and produce the gas from petitioner’s wells in paying quantities.’ But that allegation represents only a conclusion of the pleader * *

The plaintiffs have not alleged facts showing that the six wells drilled did not constitute a reasonable development of the premises and have not alleged the drilling of producing wells on adjacent lands that would form the basis of the charge that defendant had failed to drill offset wells. The general allegations of the petition that six wells have been drilled, of which two are producing oil, does not form a sufficient foundation to state a cause of action and petitioners’ conclusion in paragraph 8 “that the said lease has not been developed with reasonable diligence” does not state a cause of action. Louisiana Gas Lands, Inc., v. Burrow, supra. Hart v. Standard Oil Company, 168 La. 183, 121 So. 737.

Plaintiffs cite two cases. The first is Stubbs et al. v. Imperial Oil & Gas Products Co., 164 La. 689, 690, 114 So. 595. It is distinguishable from the case at bar in that the lessee had drilled only one well and was holding under lease a tract containing nearly 1,200 acres of land.

The second case, Brown et al. v. Producers' Oil Company, 134 La. 672, 64 So. 674, was decided in 1914. The judgment ending the lease was based upon the fact that the defendant, though obligated to "exploit” as the only consideration of the lease, had ceased to operate the two wells drilled. The Court, 134 La. at page 680, 64 So. at page 677, concluded: “The lessee’s right must be held to have terminated by abandonment.” The present case does not, in our opinion, present a similar issue.

The judgment is affirmed, with costs.


text:
    EVERAGE v. WOODARD-WALKER LUMBER CO., Inc., et al.
    No. 7250.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Denied Nov. 24, 1948.

      Jackson & Mayer and Frank S. Kennedy, all of Shreveport, for appellants.
    Campbell & Campbell, of Minden, for appellee.
   KENNON, Judge.

Alleging that he was totally and permanently disabled as a result of an injury received while in the employ of a sub-contractor whose principal was engaged in cutting and hauling logs for the Woodard-Walker Lumber Company, Inc., plaintiff filed this suit against that company and its insurer for compensation at the rate of $20 per week for a period not exceeding four hundred weeks.

Defendants filed a plea of vagueness and a prayer for oyer of the contracts between the defendant lumber company and its contractor and of the contract between the contractor and his sub-contractor.

Plaintiff, in answer to the plea of vagueness, set out in detail the extent of the injury to his lower left leg. In answer to -the prayer for oyer, he set forth that the contracts between the defendant lumber company, its contractor and his subcontractor were matters peculiarly within the knowledge of the defendants.

Defendants answered, admitting -the existence of the contract and sub-contract, the existence of the insurance policy, and the payment of compensation at the rate of $19.64 per week from the date of injury (October 7, 1946) to November 22, 1946. The answer set forth that plaintiff was sufficiently recovered to perform his usual duties at the time compensation was discontinued.

The minutes of the District Court show that the case was first tried on May 23, 1947, and -left open to take additional medical testimony in Shreveport. On October 22nd plaintiff filed a motion to re-open the case for the purpose of taking additional medical testimony. A second hearing was held on February 6, 1948. The District Court rendered judgment in favor of plaintiff as prayed for and defendants have appealed.

The record discloses that plaintiff, at the time he was -injured, was engaged in logging operations. His immediate employers were Sam and Jack Evans, who had a subcontract from one Porter Cochran, who in ■turn had a contract with defendant, Woodard-Walker Lumber Company, Inc., for the cutting and hauling of logs. Plaintiff was a “swamper” and engaged in a swamp-er’s duty of clearing trees and underbrush incident to the -logging operations. The ax he was using glanced away from a limb and the blade struck plaintiff’s lower left leg. The accident occurred in Arkansas just north of the Louisiana line. Immediately after the injury, plaintiff was taken to Dr. Butler at Springhill, Louisiana, for treatment. After the wound had been sutured, plaintiff was taken to his home and treated by Dr. Butler in his bed for several weeks. Compensation was paid him until November 22, 1946.

In the lower Court defendants raised the question as to whether the plaintiff’s relations with the Woodar-d-Walker Lumber Company were such as to entitle him to compensation against them' instead of his immediate employers and further whether or not the fact that he was working in the State of Arkansas would keep him from claiming compensation under provisions of the Louisiana Workmen’s Compensation Act. Act No. 20 of 1914, as amended. In a well considered written opinion, the District Court ruled adversely to the defendants on both these points and they have not reurged either of them here.

In this Court defendants’ only contention is that plaintiff, as the time he was discharged by Dr. Butler on November 22, 1946, had recovered from the injuries received by him while in the course of his employment on October 7, 1946. Plaintiff’s contention is that his leg was not healed at the time he was discharged by the attending physician; and that, although his injuries have reached their maximum recovery, he is still disabled and unable to perform duties of the type and character he was performing when injured.

During the course of the two hearings in this case, nine doctors gave the Court the benefit of their findings and opinions as to plaintiff’s condition, four for plaintiff and five for defendants.

We quote below the paragraphs of the learned District Judge’s opinion relative to plaintiff’s condition:

“The medical testimony as to disability of plaintiff is in such hopeless conflict, and so nearly equally divided as to be of little or no help in reaching a conclusion as to disability, and even experts testifying for defendants are not in full accord, and the same may be said of those testifying for plaintiff.
“Doctors Caldwell, Oxford, Butler, Baker, and Cook are of the opinion that plaintiff is not suffering from any disability resulting from the injury he sustained. Doctors Benton, Garrett, Sent ell and Rogers are of the opposite opinion. All of the doctors give their reasons for the conclusions reached by them.
“When testimony is in such hopeless conflict that it cannot be reconciled, the most reasonable testimony is accepted. There is no doubt that plaintiff sustained an injury by striking his left leg just above the ankle with the edge of an axe that he was using to cut out a road so logs could be hauled over it. He was 55 years old, and so far as the record shows, he has a perfect work record as a manual laborer, the only work he is qualified to do. He either suffers pain and is unable to perform work of a reasonable character, or he is a malingerer, seeking to mulct his employer or its insurer out of small compensation payments, when he could earn nearly twice as much by working.
“There is some evidence of an old fracture of this same leg, higher up toward the knee. Dr; Caldwell and Dr. Sentell saw evidence of it in the x-ray pictures, but apparently did not ask plaintiff about it, and he says he had not suffered injury before. At any rate the doctors do not say that this old fracture has anything to do with this present complaint.
“Plaintiff says his ankle, leg and foot pain him, and that he is unable to do work that requires him to stand for long periods of time. In the court room he walked with a cane and appeared to be suffering pain. Counsel for defendant say in their brief that it was noticeable that he was exaggerating his pain and his disability, and that is true, as it is in most all cases of this kind. Plaintiffs who have sustained personal injuries usually try to impress the court with the idea that the disability is worse than it actually is. This is just human nature.
“In any event plaintiff is entitled to a judgment for compensation from November 22 to Dec. 30, 1946. Dr. Butler, who treated him finally discharged him December 30, as able to return to work, but when pinned down on cross examination he would not say that he would have passed plaintiff for industrial employment on that date.
“In view of all the above, my opinion is that there is a preponderance of the evidence in plaintiff’s favor and that he ought to recover judgment for $19.64 a week for the period of his disability not to exceed 400 weeks, beginning Oct. 12, 1946, with 5% interest on past due payments from their due date, less compensation paid to November 22, 1946, and costs of this suit, including fees of the doctors $25.00 each.”

In the second hearing, plaintiff offered x-ray pictures and the testimony of two physicians who interpreted these as showing a bony deposit indicating a chipped fracture immediately below the scar of the ax wound and about the same size as the scar. These doctors 'concluded that as a result of the ax wound plaintiff has suffered a chipped fracture of the left lower tibia, forming- a bony deposit which resulted in irritation and pressure on the surrounding tissues, nerves and tendons. One of these doctors gave a description of plaintiff’s condition as follows:

“It is my opinion that this man had an axe wound and injury to the left lower leg and a chip fracture of the lateral part of the left lower tibia which has formed a bony deposit and spur formation in this area which is causing his present condition of lame leg and disability, due to irritation and pressure on the surrounding tissues, nerves and tendons, and so forth, which may explain the increase of pain with motion of these parts. The history he gives, and the physical findings on examination and x-ray, confirm the above diagnosis and opinion. It is easy to realize, and it is logical, that the point of an axe could have cut the skin and also injured the underlying bone and periosteum as the bone lies just beneath the skin in this area. Anyone can place -his finger on the front of the lower leg and feel the underlying tibia bone with only skin over it, and the axe probably glanced laterally penetrating the leg between the two bones and chipping off a piece of periosteum and bone laterally as seen in the x-rays of the injured leg. The bony deformity lies at the same level and just beneath the skin scar and is also practically the same length and shape as that of the overlying skin scar, as brought out when the leg was x-rayed with two metal hemostat markers pointing to the ends of the skin wound scar. In this leg injury the semi-lateral x-rays of the injured leg shows much more clearly the bony deformity, its shape, size and its relationship to the other bones. It shows more clearly that the deformity is on the periphery part of the bone (tibia) and adjacent to the tibia bone. I am unable to explain the x-ray evidence pointing to an old fracture of the upper one-third of the left fibula bone, although a severe blow on the lower leg could cause such a fracture and injury, though it would be a very unusual thing. It is my opinion that the removal of this bony spur and an exploratory operation of the lower left leg by operation should be considered if his symptoms do not clear up in time (several months or more) as such an operation may or may not give him relief. At the present time I would consider him as being disabled and not a malingerer.”

The other doctor introduced at this hearing by plaintiff, when questioned regarding the x-rays, gave the following answer:

“Well, the semi-lateral views or x-rays of the left leg showed a bony deposit, which, in my opinion, showed a chip fracture, and immediately below the scar from the previous axe wound the chipped fracture was about the same size, slightly elliptical in shape, and was located on the lateral surface of the lower tibia.”

In general, the defendants’ doctors found that plaintiff’s left leg showed a bony deposit or calcification, but they were of the opinion that the condition was not disabling. Some testified that calcification of this sort “could cause disability.” Under all the circumstances, the medical testimony weighs with plaintiff.

Plaintiff’s condition appears to be the result of the evidence of a bony structure inside his left leg and since there is a conflict between the doctors as td the pain and disabling effect of this condition described both as calcification and as a chipped fracture, the appearance, testimony and interest of the plaintiff himself is of considerable importance. The District Judge saw and heard him on the witness stand and had the opportunity of observing his demeanor and use of this limb in the Court room during the course of both hearings. At the time of plaintiff’s injury, he was earning wages of $36 per week, almost twice the amount of weekly compensation sued for. Although he had worked for many years as a laborer, he had never before made a claim for compensation. The District Court, with the benefit of personal observation, decided that plaintiff was not a malingerer. There is ample evidence, medical and lay, in the record to sustain his finding.

The judgment is affirmed, with costs.


author: KENN'ON, Judge.

text:
    ATLAS SHEET METAL WORKS v. WATERMAN.
    No. 7262.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27,
    Rehearing Denied Nov. 24, 1948.
    Dickson & Denny, of Shreveport, for appellant.
    Booth, Lockard & Jack, of Shreveport, for appellee.
   KENN'ON, Judge.

Atlas Sheet Metal Works, a partnership, sued for materials, labor, overhead and profit allegedly due it by defendant for the months of January and February, 1947, as shown by itemized statements attached to the petition.

In answer to defendant’s plea for detailed information, plaintiff responded that the materials were furnished and the work done in the assembling of incinerators for installation in homes, all according to defendant’s specifications.

The City Court gave judgment for the plaintiff as prayed for and the case is before us on defendant’s appeal from that judgment.

Plaintiff is engaged in the business of shaping and assembling objects made of sheet iron and steel. The defendant is engaged in the business of manufacturing and marketing metal incinerators. In September, 1946, defendant began to purchase materials and do business with plaintiff on a cash basis. In October an account was opened. Some of the articles purchased were in finished form, others consisted of sheet metal or other material.

The evidence showed that plaintiff furnished the materials and that its employees performed the hours of labor as listed in the itemized statements sued upon. Defendant himself and his son, on the witness stand, verified rather than denied the use of materials and performance of labor, but contended that -the charges were excessive and particularly objected to the item showing a mark-up of 50% for “profit, overhead, etc.”

One of the partners in the plaintiff company testified that his method of computing charges for work done was to list the actual cost of materials and actual wages paid to his employees for the hours devoted to the different jobs and to add 50% to cover the management and operating costs, including rent, utilities, insurance, etc., and that after these costs were paid, the net profit was approximately 15%.

One of the partnership members further defended the method of arriving at a price by stating that he had been twenty-five years in the sheet metal business and the 50% mark-up is the practice of “everyone of them.” Defendant introduced no testimony to show that the price charged by plaintiff for materials and labor was 'higher than those usual in the business.

In support of a plea of payment, defendant introduced in evidence a statement for $67.50 dated December 31, 1946, together with cancelled checks payable to plaintiff, one for $67.00 marked “Dec. bill in full” and another for $126.65 marked “Jan. Acc' in full.” Defendant’s counsel in brief argues that since his client had given two checks, one marked in payment of December account and the other in payment of January account, that “this would settle any claim for January.”

The evidence in the record sustains the •finding of the lower court that plaintiff furnished materials and did the work as listed, upon which the suit was filed. Since defendant failed to establish either that the prices were excessive or that payment was made, the City Court correctly gave judgment for- the plaintiff as prayed for and same is affirmed, with costs.