author: McBRIDE, Judge.

text:
    BYRNE v. ORTTE.
    No. 18783.
    Court of Appeal of Louisiana. Orleans.
    Jan. 12, 1948.
    Rehearing Denied March 1, 1948.
    Jorda S. Derbes and Jacob H. Morrison, both of New Orleans, for plaintiff and appellant.

      George E. Weigel and George W. Miller, Jr., both of New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, James F. Byrne, filed this suit seeking to recover of defendant, Albert J. Ortte, the sum of $1,200, the matured amount on a promissory note for $2,000 payable in installments, executed by defendant as part-of the purchase price paid for plaintiff’s interest in a partnership which, prior to the sale, had existed between them. Defendant answered claiming that there was no consideration for the note, and prayed for a dismissal of the suit, and in reconvention claimed from plaintiff the sum of $3,925.20. The matter was tried on its merits by the Twenty-fourth Judicial District Court for the Parish of Jefferson, and plaintiff’s suit was dismissed; defendant’s reconventional demand was allowed, and there was judgment in his favor and against plaintiff for the amount prayed for therein. Plaintiff has appealed.

The facts disclosed by the transcript are that plaintiff operated a business in New Orleans known as Air Lite Metal Awning Company for a period of about eight months; that he manufactured metal awnings under a license or franchise from the Brown Manufacturing Company of Oklahoma 'City, Oklahoma, the holder of certain patents controlling the manufacture of metal awnings of a unique and novel type. Plaintiff owned the physical assets of the business, which included machinery, tools, equipment, appliances, etc.

On November 9, 1945, by written contract, plaintiff and defendant formed a partnership ior the operation, of the business, and each of the partners bound himself to furnish capital to the partnership to the extent of $6,000, it being agreed that defendant should advance his share from time to time whenever the requirements of the business necessitated working capital. During the life of the partnership, Ortte, on several occasions, advanced various sums which aggregated $1,400.

It is not shown whether the partnership venture was successful, but Byrne and Ortte maintained their status as partners for about two months, or until January 8, 1946, on which date they appeared before a notary public, and Byrne, by authentic act, sold his entire interest in the business to Ortte, the subject matter of the sale being set forth in the act as follows: “All of his right, title and interest in and to the goodwill, the use of the name, ‘Air-Lite Metal Awning Co.’, the exclusive right to all the trade marks and labels as used by and owned by the said James F. Byrne, in connection with the said ‘Air-Lite Metal Awning Co.’; all of the articles, machinery, tools, implements and appliances of every kind whatsoever used or designated to be used in the manufacture of Air-Lite Awnings; and all of the delivery equipment, all of said property now being located at 509 Tchoupitoulas Street in the City of New Orleans.”

There was offered and admitted in evidence a photostatic copy of the original act of sale, which recites that the consideration paid by Ortte was $2,800, of which $800 was paid in cash, and for the balance a non-interest bearing note for $2,000, dated January 8, 1946, payable at the rate of $300 per month, was executed by Ortte and delivered to Byrne.. As an additional consideration, defendant assumed certain obligations of the partnership, among which was a note due the Hartsfield Company, Inc., for $925.20, secured by chattel mortgage on the machinery and equipment of the business.

Ortte contends that there was no consideration for the note representing the deferred portion of the price, and testified that Byrne, under his arrangement with the patentee of the metal awnings, had no right or authority to sell or transfer the business without the written consent and approval of the patentee, which had not been obtained when the sale was made, and that he accordingly received nothing from the sale and is not liable on the note. His counsel argues that the attempted sale was null, as Ortte received only a defective or imperfect title to the business.

Whilst the testimony does not indicate the precise nature of the franchise which Byrne held from the patentee, we gather from the record that it was personal to Byme, and could not be disposed of by him without the consent of Brown Manufacturing Company.

It appears that both Byrne and Ortte were cognizant of this restriction in the franchise, and both knew, and well understood, that it could not be transferred without the intervention of the patentee. In that connection, our attention is directed by Byrne’s counsel to paragraph 11 of their articles of copartnership, which reads as follows: “It is understood and agreed between each of the respective partners that should either partner wish to sell, transfer or otherwise dispose of his interest, the other partner to this agreement shall have the right and option to purchase such interest, which interest shall be ascertained by an inventory of stock, goods and accounts, and a balance sheet struck, and the' interest of the retiring partner acquired at the amount as reflected- in such balance sheet from the books of account. This agreement to sell however, among the respective partners to this agreement must be predicated on an approval by one L. G. Brown of the Brown Manufacturing Company of Oklahoma City, Oklahoma, it being the intention of the partners to this agreement to have the full acquiescence of any existing agreements that may be in force or in effect between the partners to this agreement and the said L. G. Brown.”

The impression is immediately formed, by virtue of the presence of the quoted stipulations, that Ortte was well aware that Brown’s approval was necessary in the transaction, and it follows that he knew, or should have known, that as the transferee of Byrne he might be denied the right to manufacture the metal awnings and operate the business if the patentee’s approval was not first secured. Ortte admits that before the sale was signed Byme called L. G. Brown of the Brown Manufacturing Company, by long distance telephone, and requested him to come to New Orleans to discuss the contemplated sale. Ortte was present and also spoke with Brown, who promised to make' the trip in a few days. Ortte appears to have been satisfied with this arrangement and the sale was passed on the same day the telephone conversation took place. Thus knowing the circumstances surrounding the franchise, caution should have dictated to Ortte that he should not enter into the sale without first having Brown’s written approval'of the transaction. But, of course, he had the right to take a chance and buy the business without such prior consent, which course he chose to pursue. He made the step with his eyes wide open, and having thus acted, whatever difficulty arose afterward was brought about by his imprudence, and he is without right to complain, under the circumstances, that his title is defective or imperfect, and our opinion is that he is liable for the purchase price.

The jurisprudence is to the effect that where a purchaser knows of a defect in a title he is about to acquire, he .is precluded from calling upon the vendor to make good any deficiencies. Harang v. Blanc et al., 34 La.Ann. 638; Werk v. Leland University, 155 La. 971, 99 So. 716; Tennent v. Caffery et al., 170 La. 680, 129 So. 128.

In Harang v. Blanc, supra, the Court said: “When a party, before buying, knows of the defect of his own vendor’s title, he is not entitled to withhold or suspend the payment of the price, nor demand security against eviction, if he be threatened therewith, on account of such defect.”

Brown, who appeared .as a witness for defendant, testified that because of other business matters he could not make the trip to New Orleans as quickly as he expected, and that Ortte called him by telephone “* * * to get it straightened out with me” and that he informed Ortte that he, Brown, intended to operate the business himself.

Brown did arrive about a week after the sale, and in a conversation with Ortte reiterated his intention to operate the business himself. Ortte explained to Brown that he had invested a considerable amount of money in the business, and that he felt he was financially and otherwise capable of conducting it, and importuned Brown to give his consent. There were some negotiations between the parties, and Brown ultimately agreed to issue Ortte “a letter of authority” in consideration of $500, which defendant paid him. Brown testified that Ortte at the time of the trial below was still operating the metal awning business, and that he was "doing very nicely.”

The payment made to Brown is one of the items claimed in defendant’s reconven-tional 'demand — Ortte contends that he should have reimbursement from Byrne therefor. Plaintiff concedes that it was necessary for defendant to pay the amount to Brown, but maintains that he has repaid the $500 to defendant.

Plaintiff testified that after Brown’s visit, a material alteration was made in the act of sale, to Which both he and Ortte agreed. He explains that the instrument as originally drawn provided that the sale was made for $800 in cash, and that the balance of the purchase price was stipulated as $3,500, and that Ortte had signed a note for that sum and delivered it to him. He stated further that the day after Brown’s visit Ortte called at the office of the Air Lite Metal Awning Company and complained that, considering the $500 payment given Brown, he was paying too much for the business, and that he thought the amount of his note should be reduced. Byrne testified: “I told Mr. Ortte that anything he wanted, that he thought was fair, I would be glad to accept. He said he would give me a note for $2,000.00 and pay me $800.00 cash. I took him up on his offer. * * *”

Byrne stated further that after this agreement, defendant executed another note for $2,000, which was to take the place of the original one/ and that when it was delivered to him the first note was returned to defendant at plaintiff’s home and the act of sale was changed to meet with this new situation. Ortte’s counsel argues that there was no' such subsequent arrangement, and insists that the note which forms the basis of this suit was the only .note involved in the transaction. However, Ortte testified as follows: •

“Q. This note marked ‘P-2’ — is this the note Mr. Weigel- drew.up also? A. I believe so. I don’t know whether he drew it up. I signed it in the bank. I went over and bought the note form myself from the F. F. Hansell store.
“Q. What happened to the original note that Mr. Weigel drew up? A. I don’t know.
“Q. Wasn’t that note for Thirty-five Hundred Dollars ($3,500.00).? A. I don’t think.
“Q. It was more than Twenty-eight hundred Dollars ($2,800.00), wasn’t it? A. Yes, I think it was.
“Q. In other words, what happened was: You and Mr. Byrne went to Mr. Weigel’s office and drew up an act of sale whereby you purchased Mr. Byrne’s interest in that partnership for Eight Hundred Dollars ($800.00) cash and a note for Thirty-five Hundred Dollars ($3,500.00), isn’t that correct? A. I don’t remember that part. I remember only the sale that we made, which was* final and which was for Twenty-eight Hundred Dollars ($2,800.00)./
“Q. Had you not signed the first note? A. I don’t know whether I did or not; but it was destroyed.”

He also testified:

“Q. Did you ever have occasion to go to Mr. Byrne’s home ? A. I don’t believe.
“Q. You never went out there with him? A. I don’t remember going to his house. I drove him home once, and left him in front of his house; but I did not visit his house.
“Q. When this note which is marked ‘P-2’ was drawn, did you not go to Mr. Byrne’s home with him, on Humanity Street, directly from the Whitney National Bank, and get the other copy of this act of sale which he had which showed a larger amount? A. I might have.”

Our careful study of the testimony of the parties respecting the notes leads us to the conclusion that that of Byrne should prevail. His testimony appears to be frank and straightforward, while on the other hand defendant’s is vague and evasive. There is no doubt in our minds that after Brown’s visit there were negotiations between plaintiff and defendant, and that the arrangement spoken of by Byrne was the outcome, and that the original deferred price of the sale was reduced for the purpose of making allowance for the outlay that Ortte found it necessary to make in order to continue to enjoy the use of the Brown patents for the manufacture of metal awnings.

Defendant’s reconventional demand is premised upon the theory that the sale was defective or imperfect, and that he received nothing from it, and that he is entitled to the return of the $1,400 which he advanced to the partnership, the $800 cash portion of the purchase price, and also two amounts which he claims were paid to satisfy obligations owed by the business and which he assumed in the act of sale.

It is extremely difficult to understand the position assumed by defendant. By virtue of the sale there was delivered to him the trade name and good will of the business,. and all of the physical assets .(except two riveting machines), among which were machinery, tools, fixtures, supplies, office furniture, accounts receivable, and even the. balance in the partnership bank account. Eliminating the franchise from consideration, the assets of the business were still of considerable value, and Brown, appearing as defendant’s witness, testified that their resale value was at least $1,500, and that he would be willing to pay $2,700.for the business. Defendant at the moment of the sale received all of plaintiff’s interest in that which belonged to the Air Lite Metal Awning Company, which he still retains and still makes use of. His counsel, in oral argument, maintained that Ortte has the right to keep the business as his own, and at the same time advances the tenuous contention that he should be relieved of liability on the note, and in addition to this should recover all amounts paid to Byrne, together with the $1,400 paid into the partnership as part of the amount he agreed to advance.

Even if we were to hold that the sale was such that it was subject to rescission, the defendant could not obtain the relief sought, for it is well settled, and we deem it un-. necessary to cite authorities, to the effect that one seeking relief through rescission of a contract of sale must first offer to restore his adversary to the position he was in at .the time' the contract was entered into, and must either return the property, or account for it. Ortte has not alleged tender, nor does the evidence show that he at any time ever offered to return the subj ect matter of the sale to Byrne.

For. the reasons assigned, the judgment appealed from is reversed, and it'is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, James F. Byrne, and against the defendant, Albert J. Ortte, for the sum of $1,200, with legal interest from judicial demand until paid, plus ten. per cent attorney's fees, and that the right of James F. Byrne to file suit'for all remaining installments on the note sued upon be reserved. Defendant’s reconventional demand is dismissed.

Defendant-appellee is to pay all costs.

Reversed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    THERIOT v. BANNER LAUNDRY & CLEANERS, Inc.
    No. 18787.
    Court of Appeal of Louisiana. Orleans.
    Jan. 12, 1948.

      Warren M. Simon, of New Orleans, for plaintiff and appellee.
    J. Dufour Bayle, of New Orleans, for defendant and appellant. .
   JANVIER, Judge.

Defendant, a corporation located in New Orleans, is engaged in the laundry and-cleaning business. Plaintiff alleges that on December 31, 1946, there was delivered from his residence to a driver of the said corporation for laundering, a bundle of soiled household articles arid wearing apparel valued at $175.50, and that the said articles have been “lost, mislaid or misplaced,” and that defendant “refuses” to return them. Plaintiff prays for judgment against the said defendant corporation in the sum of $175.50.

Defendant admits that on that day, December 31, 1946, one of its drivers “picked up” from plaintiff’s residence a “laundry bundle” but avers that when a check of the contents of the bundle was made against the list sent with it, it developed that two of the articles shown on the list were not contained in the bundle. It avers also that when plaintiff’s wife was notified that these articles were missing she instructed the defendant’s driver to have the remaining-^ articles laundered; that all of the remaining articles were laundered and that some of them were 'returned to plaintiff’s residence on January 14, 1947, and the balance on the following day, January 15, 1947.

The only question presented is whether or not the articles admittedly received by defendant were returned to plaintff’s residence, and, of course, there is a secondary question concerning the value of the articles if they, or any of them, were not returned.

The trial court, after hearing the evidence on these issues, rendered judgment for plaintiff for $165.50 and from this judgment defendant has appealed.

Plaintiff’s wife testified that she, herself, had prepared the bundle which defendant admitted receiving on December 31st, and that she had counted the various articles contained in it, and had placed the list in the bundle. She did not herself deliver the bundle to the driver. This, was done by one of her household servants. She stated that certain items had been returned but that others, on which the suit is based, had never been delivered.

Defendant’s driver testified that all of the articles had been returned, a part of them on January 14th and the balance on the next day, January 15th.

Defendant stresses the fact that plaintiff’s wife did not herself deliver the bundle to the driver and did not herself receive the bundle from the driver after the articles had been laundered. Plaintiff’s wife stated that she seldom had contact with defendant’s driver, and that her downstairs servants always brought to her such bundles as were received. These servants were not placed on the witness stand.

It is true that Mrs. Theriot is very positive that the servants always delivered to her all of the bundles of laundry which were left by defendant’s driver, and yet she admitted that she did not know whether a bundle had been returned on January 14th or whether another bundle had been returned on January 15th. The failure to prpduce the servants to corroborate her testimony that all bundles delivered at the house had been in turn delivered to her by the servants constitutes a break in the evidence. Because of it plaintiff has failed to prove that the articles were not actually delivered at his residence. In view of this, and because of the testimony Of the defendant’s driver that the articles-actually were delivered, we think that the-judgment rendered below was incorrect. Plaintiff has failed to prove his case and has failed to produce witnesses who might have produced evidence necessary to show-that the bundles were not returned.

The judgment appealed from is reversed and plaintiff’s suit is dismissed at his cost..

Reversed.


author: BOND, Justice.

text:
    212 La. 723
    STATE v. HABIGHORST.
    No. 38571.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
    Maurice R. Woulfe and Gilbert Bernstein, both of New Orleans, for defendant and appellant.
    Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Asst. Atty. Gen., Herve Raci-vitch, Dist. Atty., Guy Johnson, 1st Asst. Dist. Atty., and Joseph F. Monie, Asst. Dist. Atty., all of New Orleans, for appellee.
   BOND, Justice.

The defendant was convicted of the crime of armed robbery and was sentenced, as a second offender, to serve a term at hard labor in the State Penitentiary for fifteen years. His appeal brings up five bills of exception which, however, present only two points:

1. A plea to the jurisdiction of the trial court; and

2. The admissibility of the defendant’s confession.

The first point is based on the fact that an affidavit charging the offense was filed against the defendant and was allotted to Section “B” of the Criming District Court for the Parish of Orleans; that subsequently another affidávit, charging the defendant and another man with the joint commission of the same offense, was filed and allotted to Section “C” of that court.

The defendant’s contention that Section “C” is without jurisdiction to try the case because of the prior allotment to Section “B” is without merit. In State of Louisiana v. Fogarty et al. (No. 38,421 of the Docket of this court) this same issue was raised and we refused to grant relator’s application for writs, having found no merit in applicant’s contention that the district judge was in error in reallotting the case. This Court sees no reason for a reversal of its previous ruling and, therefore, the reallotment to Section “C” of the Criminal District Court for the Parish of Orleans was proper.

The defendant’s second point is based on the ground that the State has failed to prove beyond a reasonble doubt that the confession of the defendant was voluntary. It is the contention of the defendant that the evidence1 shows that he was severely beaten by the police and that his confession resulted from his desire to escape further punishment.

The evidence shows that defendant claims that he was beaten while in the custody of the police authorities, which was from December 12th to December 17th. Defendant confessed his guilt to an assistant district attorney on December 15th, at which time he did not complain of any beating by the police. On the 17th, he was surrendered to the criminal sheriff for the Parish of Orleans, at which time he again failed to complain. During the time he was incarcerated in the Parish Prison he made no complaint, and it was not until December 27th, when, according to the testimony of a reporter for the New Orleans Item, that the defendant showed the reporter his arms and legs which were thickly covered with marks that appeared to be old bruises.

The contention that the defendant was beaten while in the possession of the police authorities is purely a question of fact. The trial court heard the evidence and held that the confession was voluntary. This Court finds no reversible error in that holding.

For the reasons assigned, the verdict of the jury and the sentence of the court are affirmed.

O’NIELL, absent.


author: HARDY, Judge.

text:
    MAHFOUZ v. SOUTHERN BUS LINES, Inc.
    No. 7087.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.
    Rehearing Denied Eeb. 2,1948.
    Gahagan & Pierson, of Natchitoches, for appellant.
    Stafford & Pitts, of Alexandria, for ap-pellee.
   HARDY, Judge.

This is a suit for damages arising out of personal injuries alleged to have been received by plaintiff while a paid passenger on defendant’s bus line. After trial there was judgment rejecting plaintiff’s demands, from which judgment he brings this appeal.

There is little dispute about the facts as established by the testimony in this case to the effect that plaintiff boarded a bus, owned and operated by the defendant company, at its terminal station in the city of Alexandria, Louisiana, about 8:00 P.M. on July 10, 1946, having purchased a ticket from Alexandria to Natchitoches. Shortly after leaving the terminal, within a few blocks of said point and at or about the time the bus of the defendant company had entered the traffic bridge over Red River between Alexandria and Pineville, the tire on the right front wheel of the vehicle blew out. At the time the bus was traveling at a moderate rate of speed in the neighborhood of fifteen miles per hour. The force of the blow-out caused the front end of the bus to veer to the right and brought the right front wheel into sharp contact with a wooden guard rail, constructed of heavy timbers laid lengthwise along the floor of the bridge. The driver .brought the bus to a stop within a distance of approximately ten feet, but it is established that the force of the contact jarred the bus to such extent that some of the passengers were jostled or thrown about in their seats, particularly two women who were sitting on the extreme front seat on the right-hand side, and who were thrown to the floor of the bus.

Immediately after the occurrence of the accident the driver called for a doctor for the purpose of having an examination made of any passengers who might have sustained injury. The doctor arrived within a very few minutes and tendered his services for the benefit of any passengers who might have received injuries, but there is no evidence to show that plaintiff at this time claimed to have been injured, nor did he report any injury on one of the so-called “witness cards” which were distributed by the bus driver with the assistance of one of the passengers, a Mr. Kennedy of Natchi-toches, who was’a witness in this case.

After a delay of some thirty minutes, during which time a change of tires was effected, the bus proceeded on its journey.

In his petition plaintiff alleged that the impact of the bus with the bridge caused his head to strike the top of the bus; that he was bruised all over, particularly upon his .back and chest; that he had continued to suffer severe pain and disability, in consequence whereof he claimed a total of $1,975 in damages.

Plaintiff, who was the only witness in support of his claim, testified on trial of the case that he had been knocked out of his seat and rendered unconscious by the force of the collision, and that he lay in the aisle of the bus for approximately thirty minutes before recovering consciousness. It is with a sense of distinct pleasure that we call attention to the fact that plaintiff’s counsel himself, in brief, with refreshing frankness, has stated to this Court his belief that his client somewhat exaggerated his testimony as to the happenings in connection with the accident, as well as his condition. We feel that “exaggeration” is by far the kindest word that can be used with reference to an evaluation of plaintiff’s testimony.

Readily conceding the high degree of care due by a common carrier toward its passengers, defendant contends that there was no breach of its duty in this respect inasmuch as the tire blow-out resulted from a latent defect not discoverable upon inspection and, secondarily, that, as a matter of fact, plaintiff suffered no injury.

. The bus involved in this accident was engaged on the return journey of a round trip between Shreveport and New Orleans. It is established that the blow-out resulted from a cut in the tread of the tire which is not shown to have been so apparent as to make it easily discoverable either upon a casual or thorough inspection. The tire itself was comparatively new, having sustained, according to the best testimony on the point, only about 15% tread wear and having been run for only about 12,500 miles, a distance estimated to have been something less than 30% of the average service.

It is true that defendant did not produce a witness who had made a thorough inspection of the tires of this particular bus, but it did satisfactorily establish, through the testimony of competent witnesses, its usual custom and method of making these inspections. It appears that a thorough inspection of tires on defendant’s busses was customarily made before the beginning of each round trip. In addition, the driver of the bus was required to make routine inspections on the occasions of stops along the route. The driver of the bus in this instance testified that he had made a casual inspection of the tires in the terminal station at Alexandria, and had observed no evidence of any serious defect.

We find nothing in this case which would justify a conclusion that defendant was guilty of any act either of commission or omission of such nature as would render it liable.

In view of this finding we deem it unnecessary to embark upon a discussion with respect to plaintiff’s alleged injuries and refrain from comment upon his “exaggerated” testimony in this connection.

A motion to remand this cause to the lower Court for the purpose of retrial has been filed in this Court on behalf of plaintiff. The motion is based upon the ground that plaintiff has discovered the identity of two individuals who were passengers on the bus at the time of the accident, and that he desires to avail himself of the benefit of the testimony of these newly discovered witnesses.

No indication is given in the motion to remand as to the nature' or character of the testimony which might be expected to be given by the witnesses in question, and, in fact, there is no averment to the effect that these persons were in possession of any pertinent, relevant or material information bearing upon the claim asserted by this plaintiff.

We think it would be both unreasonable and confusing to establish a precedent justifying the remanding of cases for retrial upon the sole ground that additional witnesses have been discovered. The inevitable result would be to delay beyond all reason a definitive pronouncement in litigated matters. It is the function of appellate courts to pronounce judgment in all cases where the record as made up admits of such definitive action. In the absence of any adequate showing indicating the real danger of a miscarriage of justice, there is no ground for the action requested in this instance. Accordingly, the motion to remand is disallowed.

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

KENNON, J., absent.


text:
    THOMAS v. GODCHAUX SUGARS, Inc., et al.
    No. 18761.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    Rehearing Denied Jan. 12,1948.
    Writ of Certiorari Denied Fell. 16, 1948.
    Austin Anderson, of New Orleans, for plaintiff and appellant.
    Porteous & Johnson and Parnell J. Hy-land, all of New Orleans, for defendants and appellees.
   JANVIER, Judge.

Plaintiff is the widow of Wilbert Thomas, who died as the result of an automobile accident in which the truck on which he was riding struck a depression in the street, swerved to the curb and ran into a tree. Thomas was an employee of defendant, Godchaux Sugars, Inc., which corporation had secured a policy of workmen’s compensation insurance from the Associated Indemnity Corporation,

Plaintiff alleges that the death of her husband resulted from an accident which occurred in the course of and arose out of his employment; that the business in which his employer was engaged was hazardous and within the contemplation of the workmen’s compensation laws of Louisiana, Act No. 20 of 1914, as amended, and that her said husband was engaged in performing hazardous duties in connection with the business of his employer. She alleges also that at the time his rate of pay was $27 per week and that she, as widow, is entitled to compensation at the rate of $8.28 per week for 300 weeks.

Defendants admit that Thomas was an employee of Godchaux Sugars, Inc., and that he died as a result of an accident which occurred while he was riding in a truck of the said company, but they deny that when he was injured he was acting within the scope of his employment, and they deny also ■ that at the time the truck was being operated by an employee of the said God-chaux Sugars, Inc., acting within the scope of his employment.

There was judgment dismissing plaintiff’s suit and she has appealed.

When the case came up for trial in the district court, one witness was placed on the stand on behalf of plaintiff, and when the testimony of that witness had been taken, counsel for plaintiff announced: “We will rest on that”. Thereupon counsel for defendants stated to the court that he did not think that plaintiff had made out a case. He said: “ * * * These people were disobeying orders and not doing what they were directed to do. While we have a large number of witnesses, I don’t think on the showing of plaintiff’s own witness they have made out a case. They were not acting within the scope of their employment at the time. * * * ”

Thereupon the district judge stated that in his opinion the plaintiff had not made out a case; that the testimony of the only witness who had been produced led to the conclusion that at the time of the accident, the plaintiff’s husband and the driver of the truck were not acting within the scope of their employment by the defendant, God-chaux Sugars, Inc.

It appears from the only evidence in the record, which is the testimony of the one witness, Edwin Ward, who was also an employee of Godchaux Sugars, Inc., that on the day of the accident, at about 12 or 12 :30 o’clock, he, Ward, and plaintiff’s husband, Thomas, were sent from the plant of Godchaux Sugars, Inc., which, though, the record does not show it, seems to be in New Orleans, to dump a truckload of trash, and that they were ordered to take this trash to the Audubon Park dump. They invited two other persons to go with them, but had no intention, so Ward says, of going to the Audubon Park dump. They went instead to a grocery where he cashed his pay check. He does not remember whether Thomas cashed his pay check there also. At any rate, they then went to a pool hall and remained there for approximately three hours. Ward says that although they had been instructed to go to the Audubon Park dump, they did not do so because they knew that that “place was very filthy and marshy like quicksand and the first time we went there we got stuck” and that “The next time we ran out of gas and the flies were awful and the bugs and everything. I decided I did not want to go there any more.”

After cashing his pay check at the grocery, Ward drove the truck with Thomas and his two “guests” to Valley’s Pool Hall where, as we have said, they remained for about three hours. In the course of the-ride it developed that the plaintiff’s husband, Thomas, was employed by Consolidated Vultee Aircraft on the shore of Lake Pontechartrain, or wanted to seek employment there, and Ward says that when they left the pool hall he “intended to take Thomas to that aircraft plant” and he add-éd that Thomas “told me a place where I could dump and, in the meantime drop him off and he would go to work.”

Prior to that they had taken the truck to a dump operated by “an old lady named Aunt somebody but had not been permitted to dump the trash there.” Ward says that therefore “we had to get a new place.”

'Counsel for plaintiff seeks to persuade us-that when they had completed their operations at the pool hall and had called on the old “lady” who operated the other dump, they really set out to find the Industry Street garbage incinerator so that they might dump the trash there, and that they did not intend to take Thomas to his other job with the air plant corporation until they had dumped the trash. It appears-however that at that time Ward did not know where the Industry Street incinerator was. Though he first said that they intended to go to the incinerator and drop. Thomas off in the meantime, he attempted to change his testimony so as to show that, as a matter of fact, they were going to the incinerator first and then to take Thomas to the other job.

The entire testimony is most confusing and we form the conclusion that the dumping of the trash was of no great importance in the lives of Thomas or of Ward; that their principal business on that afternoon was to amuse themselves at the pool hall and to take Thomas to the aircraft plant, although each may have had a mental reservation that sooner or later they would arrive at some place at which they could dump the trash. One thing is clearly shown by the evidence. That is that they had diverted entirely from the route they were instructed to take and had left the course of their employment for purposes of their own.

This having been shown, it became the obligation of the plaintiff to prove that they had re-entered the course of employment and were actually engaged in carrying out their duties when the accident occurred.

In tort cases the doctrine of reentry is well established and it is held that although an employee may depart from the course of his employment, his employer may be held liable for his negligent actions if it appears that at the time of the accident caused by his negligence he had formed the intention of returning to his work and had altered his cou'rse in an effort to do so. We have been shown no case in which this doctrine of re-entry has been held applicable where workmen’s compensation is involved. Even if it be conceded that the doctrine is applicable in workmen’s compensation cases, and we by no means so hold, it is not applicable here because, as we have said, we are convinced from the evidence that Ward and Thomas had no intention of carrying out the duties they were instructed to perform, unless and until by mere chance they happened to arrive at some place at which they might dump the trash.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: ■McBRIDE, Judge.

text:
    JOURDAN v. JONES et al.
    No. 18774.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    Rehearing Denied Jan. 12, 1948.

      Casey, Babin & Casey, of New Orleans, for plaintiff and appellee.
    Alex W. Swords, of New Orleans, for defendant and appellant Arthur L. Jones.
   ■McBRIDE, Judge.

Charles A. Jourdan, Jr., plaintiff, the owner of a lot of ground situated in Jefferson Parish, the improvements on which consist of a single dwelling, listed the property for sale with John R. Kennedy, a real estate broker. Arthur L. Jones, who is one of the defendants, manifested some interest in the property, and after making an inspection of it submitted a written offer, through the real estate broker, to purchase same, and the offer was accepted by Jour-dan, the owner. The offer and acceptance reads as follows:

“Agreement To Purchase Or Sell
New Orleans, La., 12/12/1946
John R. Kennedy, Agent

I offer and agree to purchase 2908 Beau-leau St. with possession at act of sale, including Venetian blinds & 1 set lawn furniture on grounds measuring about 50 X 120 or as per title, for the sum of Twelve Thousand & No/100 ($12,000.00) Dollars on the terms of all cash.

This sale is conditioned upon the ability of the purchaser to borrow upon this property as surety the sum of $-either by a Homestead loan from any Homestead on the usual Homestead terms, or by a mortgage loan from some other' source at a rate of interest not to exceed — '■% per annum and for a period not less than-years, which loan the purchaser obligates himself to obtain is (if) procurable. Either loan to be secured by purchaser .or agent -days from acceptance hereof.

Property sold subject to lease NONE

The paving NONE

The taxes prorated at act of sale

All proper and necessary certificates and revenue stamps to be paid by vendor; cost of survey by-

Act of sales to be passed before purchaser’s Esq., Notary, on or prior to 30 days 19 — , at expense of purchaser.

If this offer is accepted I will deposit with Vendor’s Agent immediately in cash, Twelve Hundred & no/100 ($1200.00) Dollars.

This deposit is to be non-interest bearing and may be placed in any bank of your selection in the City of New Orleans without responsibility on your part in case of failure or suspension of such bank pending settlement. In the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right, either to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default, time being the essence of this contract; or the vendor may demand specific performance. In the event that the deposit is forfeited, the commission of the agent shall be paid out of this deposit, reserving to the vendor the right to proceed against purchaser for the recovery of the amount of the commission. In the event that the vendor does not comply with this agreement to sell within the time specified, purchaser shall have the right either to demand the return of double the deposit, or specific performance. The commission is earned on the signing of the agreement and shall not be affected by any subsequent agreement of the parties hereto, or by annulment of contract by any court.

If this offer is accepted vendor agrees to pay the Agents commission of 5 & 4% on purchase price amounting to $580.00.

Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated to pay the Agents commission and all fees and costs incurred in enforcing collection and damages.

This offer remains binding and irrevocable through Jan. 16th 1946.

(SGD.) Arthur L. Jones 339 Orien St.
New Orleans, La.
-, 19-
I/we accept the above offer in all its terms and conditions.
(SGD.) Charles A. Jourdan, Jr.”

In accordance with the terms of the contract, Jones deposited with the agent, Kennedy, the sum of $1,200. This suit is brought by the owner, Charles A. Jourdan, Jr., against Arthur L. Jones, and John R. Kennedy, the real estate agent, in which he alleges that notwithstanding tender made according to law, Jones, the proposed purchaser, had failed to take title to the property and pay for it, and that his refusal to consummate the agreement resulted in his forfeiture of the $1,200 deposit. It is further alleged that in accordance with the terms of the contract, Kennedy, the agent, is due, out of the deposit, a commission of $580, and that plaintiff is entitled to the remainder of the deposit and is further entitled to recover from Jones the amount of the agent’s commission, plus $500 for the fee of his attorney. Plaintiff prays for judgment accordingly.

Defendant, Jones, excepted to the petition on the grounds that it disclosed no right of action and no cause of action; these exceptions were overruled by the district court.

Kennedy made no answer to the suit.

In his answer Jones admits the tender, and also admits his refusal to accept title to the property. His sole defense to the action is based upon the proposition that he was justified in such refusal for two reasons: (1) that the actual ground measurements of the property are less than those set forth in the contract, and that he is not bound to take less than he agreed to purchase, and (2) that the purported agreement of sale is too vague, uncertain and indefinite to amount to a valid and binding contract. By way of reconvention Jones prays for the return of the deposit, on the ground that the agreement is null, void and unenforceable for the two above mentioned reasons.

The matter was tried on its merits, and the lower court rendered judgment in plaintiff’s favor as prayed for, except for attorney’s fees, the demand therefor being rejected. Arthur L. Jones has taken this appeal from the judgment, and plaintiff has filed an answer thereto praying that the judgment be amended so as to allow him $250 for the fee of his attorney.

All parties concede that the contract has been abandoned and that the only matter in question is the ownership of the $1,200 deposit, both Jourdan and Jones making claim to it. Under the circumstances, even though there is involved herein a contract respecting the sale of real estate for the price of $12,000, this court has jurisdiction to determine the disposition of the deposit. See Richardson v. Charles Kirsch & Co., 191 La. 991, 187 So. 1.

The exceptions filed by Jones are not reurged before us, and we, therefore, consider them as having been abandoned. Counsel for Jones concedes that his first defense, i. e., that the actual measurements of the property are less than the measurements shown in the contract, is without merit in view of the inspection of the property made by Jones before submitting his offer to buy, under the authority of Hunley v. Ascani, 174 La. 712, 141 So. 385.

The evidence shows that after the contract was confected Jones was handed a copy thereof, which, the real estate agent had certified to be a true copy of the original. Jones’ counsel contends that there is a material discrepancy between the original and the copy, as to the location of the property. The so-called “certified copy” describes it as “2908 Beaulieu St., New Orleans, La.,” whereas the original contract merely designates the property as “2908 Beaulieu St.” Counsel argues that the variance was sufficient to . create confusion in the mind of Jones as to the precise location of the property he had contracted to buy. We fail to see how the copy could in any respect create confusion as to where the property is located. Jones visited and examined the property before making his offer to buy it, and surely he knew where it is situated. Moreover, this suit' is not brought upon the copy of the agreement, but on the original, which is annexed to and made part of the petition. The evidence shows that the premises are located in Jefferson Parish, and Jones knew well that fact. Parole evidence is admissible to identify real property described in a written contract to purchase. Walker v. Ferchaud, 210 La. 283, 26 So.2d 746. We find no merit in this contention of Jones.

Counsel for Jones next argues that the contract is vague and not subject to enforcement, because it contains the following language: “This sale is conditioned upon the ability of the purchaser to borrow upon this property as surety the sum of $-either by a Homestead loan from any Homestead on the usual Homestead terms, or by a mortgage loan from some other source at a rate of interest not to exceed —% per annum and for a period not less than-years, which loan the purchaser obligates himself to obtain is (if) procurable. Either loan to be secured by purchaser or agent-days from acceptance hereof.”

He argues that because of the insertion in the agreement of this paragraph, which contains unfilled blank spaces, there was no meeting of the minds between the contracting parties, as the presence of the language would show that Jones made only a conditional offer to buy, containing a suspensive condition, and that this condition, in view of the unfilled blank spaces, renders the contract so indefinite that it cannot be legally enforced. We likewise perceive no merit in this contention. The offer was made on a printed form furnished by the broker, and is labeled “Standard Form Real Estate Board of New Orleans, Inc.,” and the condition is printed on the form. Jones specifically offered to purchase Jourdan’s property “ * * * for the sum of Twelve Thousand & no/100 ($12,-000.00) Dollars on the terms of all cash.” (Italics ours.) The amount “$12,000.00” and the word “all” are written in in handwriting, and in view of- this the impression is instantly formed that Jones intended to pay the price in cash, and without financial aid from a homestead association or lending institution. This is particularly true when it is considered that none of the blanks in the paragraph regarding the ability to secure a loan were filled in. We believe that the condition was inadvertently permitted to remain in the offer, and that both parties knew and well understood that Jones would take title and pay the price in cash, and that he did not intend, when making the offer, that it was to be predicated upon his ability to secure a loan on the property.

The next ground of vagueness urged by counsel is that the agreement provides that the formal act of sale was to be passed “ * * * on or prior to 30 days * * *.” He argues that it is not clear whether the 30 days would be counted from December 12, .1946, the date of the offer, or from January 16, 1947, the day on which the offer, if unaccepted, would expire. The owner’s acceptance is undated, but by referring to the petition and answer the date can be easily ascertained.

Plaintiff’s petition alleges, in article 2, as follows: “Petitioner further shows that on December 12, 1946, petitioner agreed to sell and the defendant, Arthur L. Jones, agreed to buy the property No. 2908 Beaulieu Street in the Parish of Jefferson for the price and sum of Twelve Thousand and 00/100 ($12,000.00) Dollars, which said agreement of sale is attached hereto, filed herewith and made part hereof.”

Jones’ answer to that article is: “Answering paragraph 2 of plaintiff’s petition, your respondent says, under date of December-12, 1946, he signed an instrument, purporting to be an agreement of sale of certain real estate, which said instrument was signed by respondent, as a result of certain negotiations had with one of the agents of John R. Kennedy, Realtor, and which said instrument, which -purports to be an agreement of sale, was thereafter accepted and signed by the plaintiff herein, Charles A. Jourdan, Jr.; that thereafter respondent paid to the real estate agent, representing John R. Kennedy Realtor, the sum of Twelve Hundred ($1200.00) Dollars as a cash deposit on account of said purported agreement of sale; that the said John R. Kennedy, Realtor, and his said Agent, or employee, acting for said real estate firm of John R. Kennedy, were at the time the authorized agents of the said Charles A. Jourdan, Jr.”

The following allegation is made in article 3 of the petition: “Petitioner shows that in conformity with the provisions of said contract the defendant, Arthur L. Jones, on December 16, 1946, deposited with John R. Kennedy, Agent, the sum of Twelve Hundred and 00/100 ($1200.00) Dollars.”

And the answer of Jones thereto is: “Respondent admits the allegations of Paragraph 3 of plaintiff's petition, * * *

A reading of the above-quoted portions of the pleadings shows that the deposit was made with the broker on December 16, 1946. Jones bound himself to “deposit with Vendor’s Agent immediately in cash, Twelve Hundred & 00/100 ($1200.-00) Dollars.” We must assume that he complied with the agreement, and immediately made the deposit upon Jourdan’s acceptance of the offer, which was on December 16, 1946. We believe that thé only fair and reasonable interpretation is that it was the intention of the parties that a 30 day period would be allowed the purchaser to have an examination of the title made, and to have the formal act of sale prepared and executed, and that the delay should commence from the date on which the offer to buy was accepted by the owner. The contract only came into existence on the day Jourdan made acceptance of the offer, and it would be fallacious to say that it was the intention of the contracting parties that the 30 day period should run from the date the offer was made, when the offer itself specifically provided that it was to remain binding and irrevocable through January 16, 1947.

Counsel for Jones also complains that it is not clear whether the owner accepted the offer prior to its expiration date, and that there is a strong probability that Jour-dan agreed to sell after the offer had expired. The allegations of the petition, and the admissions of Jones’ answer show otherwise. The offer was accepted on December 16, 1946, before it expired, and we find no merit in counsel’s contention.

Jones further contends that the stipulation “cost of survey (to be paid) by -” renders the contract unenforceable, as there was no meeting of the minds of the respective parties as to who was to pay for a survey of the property. We likewise find no merit in this contention. The few words regarding payment for a survey are printed in the contract, and we believe that whereas the blank space was not filled in by the parties, they did not contemplate that a survey was necessary in connection with the transaction.

Counsel next assails the following provision of the contract: “If this offer is accepted vendor agrees to pay the Agents commission of 5 & 4% on purchase price amounting to $580.00.”

He contends that the figures “5 & 4%” do not fix with any degree of certainty the amount which the respective parties obligated themselves to pay Kennedy as a commission in consummating the contract, but we think this contention, that vagueness exists, is fully answered by the language “amounting to $580.00.” Regardless of what percentage figure was to be used in calculating the agent’s commission, the amount is clearly fixed at $580, and both the vendor and purchaser knew that the agent was to receive that sum for his services. We can not comprehend any vagueness regarding the amount of Kennedy’s commission.

It is freely conceded by counsel that the only ground for Jones’ refusal to take title to 2908 Beaulieu Street is based upon his assumption that the agreement, because of vagueness and ambiguity, has no binding or legal force. It is our conclusion that Jones, without valid reason, attempted to recede from his undertaking, and that the owner has the right to insist upon an enforcement of the contract according to its terms, in so far as they apply to the $1,200 deposit.

The contract, which is the law between the parties, contains the following provisions :

“ * * * In the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right, either to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default, time being the essence of this contract; or the vendor may demand specific performance. * * *
“ * * * In the event that the deposit is forfeited, the commission of the agent shall be paid out of this deposit, reserving to the vendor the right to proceed against purchaser for the recovery of the amount of the commission. * ⅜ * ”

Plaintiff is clearly entitled to maintain the present action against Jones.

In answer to the appeal, Jour dan prayed that the judgment appealed from be amended so as to make provision for the allowance to him of attorney’s fees in the sum of $250, but his counsel conceded in oral argument that there is no evidence in the record showing the amount of his fee, and admits that plaintiff is not entitled to a recovery for that item.

We find no error in the judgment appealed from, and for the reasons herein-above set forth it is affirmed.

Affirmed.


text:
    PIACUN v. LOUISIANA COCA-COLA BOTTLING CO. et al.
    No. 18705.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    Rebearing Denied March 1, 1948.

      Bernard J. Fonseca, O. C. Stein, Jr., both of New Orleans for plaintiff-appellee.
    Frank T. Doyle, of New Orleans, for defendants-appellants.
   JANVIER, Judge.

At the time of the occurrence on which, this suit is based plaintiff, Matt A. Piacun, owned and operated a small sandwich and cold drink establishment in New Orleans. He purchased, at wholesale, and sold to his customers various varieties of carbonated cold drinks, among them, coca cola, a product of defendant, Louisiana Coca Cola Bottling Co., Ltd.,

He brought this suit for damages against the said beverage company and its liability insurance carrier, Hartford Accident & Indemnity Company, alleging that as a result of the explosion of a bottle of coca cola, which was in his ice-box, he was badly cut about the arm and face by broken glass. He alleges that on the day before the accident he received several cases of coca cola, manufactured, bottled and delivered by the defendant beverage company, and that at the close of business on that day he removed the bottles of coca cola from the cases in which they had been delivered and placed them in his beverage cooling box; that he did this at the close of business and that on the next morning, at about 9 o’clock, just as he opened the box to serve a customer, and before he had disturbed the contents in any way or had even touched anything that was in the box, a bottle of coca cola exploded with the disastrous results already referred to.

Fie charged that the said beverage company was negligent in several specified designated particulars: in failing to obtain proper bottles, in not charging the said bottles with a proper amount of gas and in failing to cap the said bottles properly. He made no general charge of negligence but, after setting forth the specific charges averred “that this information and knowledge is peculiarly and solely within the intelligence of defendant herein, and your petitioner therefore specifically pleads the doctrine of res ipsa loquitur.”

He prays for solidary judgment against the said Louisiana Coca Cola Bottling Co., Ltd., and Hartford Accident & Indemnity Company for $10,000, and for a fee of $100 for a medical expert, who, he alleged would be required to testify in his behalf.

The defendants admit that the said beverage company manufactures and sells the carbonated soft drink known as “Coca Cola”, and that, as alleged, a route salesman of the said company delivered several cases of the said drink to the place of business of plaintiff. They deny that there was any negligence on the part of the said beverage company in the particulars charged or otherwise.

There was judgment for plaintiff for $1,000 presumably against both defendants and for an expert’s fee of $75. Both defendants have appealed devolutively and suspensively and plaintiff has answered the appeal praying that the amount of the award be increased to the sum originally prayed for, to wit $10,000.

The questions of law which must first be considered are: first, in view of the fact that the plaintiff has made no general charge of negligence but has relied on specific charges of designated acts of negligence, may he rely on the doctrine of res ipsa loquitur? And second, assuming that where no such general charge of negligence is made, the doctrine of res ipsa loquitur may be relied upon, is it applicable in such a case as this?

In considering the first question, whether the doctrine of res ipsa loquitur may ever be relied upon where there is no general charge of negligence, we turn our attention at once to the case of Horrell et al. v. Gulf & Valley Cotton Oil Co., 15 La. App. 603, 131 So. 709 for there the plaintiff, in a case in which unquestionably the doctrine of res ipsa loquitur would have been applicable, made specific charges of negligence and failed to prove them. We held that this failure was unimportant because the petition, in addition to specific charges of negligence, contained a general charge of negligence. In reaching this conclusion we followed what had previously been said in Frazier v. South New Orleans Light & Traction Co., (unreported) No. 8608 of our docket, see Louisiana & Southern Digest. If in the case now before us we could find any general charge of negligence, we could follow the rule set forth in those two cases and hold the specific charges of negligence to be merely surplusage and that the doctrine of res ipsa loquitur should be applied because of those general charges. We note that the only proof in the record touching upon the specific charges of negligence made by plaintiff is that offered by the Beverage Company and that this evidence overwhelmingly proves the most careful kind of handling, the most careful kind of selection of bottles and, in fact, that these specific charges of negligence have been completely refuted. However, we note too that though the petition contains no general charge of negligence, it does contain a specific plea that the doctrine of res ipsa loquitur is applicable. The doctrine, where it inapplicable, is based on the theory that because the thing which causes the accident is completely within the control of the defendant, or because the defendant alone can be expected to have knowledge as to the cause, the explanation must come from that defendant. See Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas.1912A, 976.

But here plaintiff by his pleadings seems to call on the Beverage Company not for the general explanation of the possible causes but to give evidence touching upon only three designated charges. And on these charges the defendants have offered full proof.

Still we think that where.there is a plea that the doctrine of res ipsa loquitur is applicable, it is, in effect, a plea of general negligence such as saved the situation in Horrell v. Gulf & Valley Cotton Oil Co., supra, and in Frazier v. South New Orleans Light & Traction Co., supra, and that even though such a plea is made in connection with designated, specific charges of negligence, we may treat 'those specific charges as surplusage and, under the doctrine referred to, the burden is placed upon defendants to go forward with the evidence and prove that there was no fault. If then, the doctrine of res ipsa loquitur is applicable sn a case in which it is shown that a bottle of beverage exploded, then the burden shifts to the defendants to show that the beverage company was without negligence.

We make this statement conditionally because we think that under the jurisprudence of this state the doctrine of res ipsa loquitur is applicable in such a case only conditionally, that is to say it has application only after the person to whom the bottles were delivered shows that between the time of the delivery and the time of the accident, the particular bottle involved was not “opened or tampered with or improperly handled.” Lanza v. De Ridder Coca Cola Bottling Co., La.App., 3 So. 2d 217, 219. This was held too in Ortego et al. v. Nehi Bottling Works et al., 199 La. 599, 6 So.2d 677 in which the Supreme Court approved what had been said in the Lanza case. See also Auzenne v. Gulf Public Service Co., La.App., 181 So. 54; Meyers v. Alexandria Coca Cola Bottling Co., Ltd., La.App., 8 So.2d 737.

We hold then that the doctrine of res ipsa loquitur is applicable provided we consider as satisfactory and acceptable the proof tendered by plaintiff to show that the bottle was not tampered with or improperly handled in any way, and that as a matter of fact he, himself, did nothing which would have caused the bottle to explode.

We therefore pass on to a consideration of the evidence tendered on ¡behalf of the plaintiff and we give to the details of that evidence careful scrutiny because we realize, as .has so often been said, that in a case of this kind the bottler is ordinarily unable to produce any evidence whatever touching upon the actual occurrence. This rule, that in a case such as this is, the evidence of plaintiff must be carefully scrutinized, is well established. In Russo v. Louisiana Coca-Cola Bottling Co., La.App., 161 So. 909, 910, we said: “ * * * jn considering whether such an accident actually occurred, it is well to bear in mind that the manufacturer necessarily can have no means of disproving by eyewitnesses that the occurrence alleged actually took place. In such circumstances, plaintiff’s evidence should be most carefully scrutinized, especially when, as here, the evidence of defendant shows that because of the extreme care employed in the course of manufacture and in the course of bottling, it is, though not impossible, highly improbable that a foreign substance could have entered into the article.” See also Freeman v. Louisiana Coca-Cola Bottling Co., La.App., 179 So. 621; Hollis v. Ouachita Coca-Cola Bottling Co., Ltd., La.App., 196 So. 376, and Comforto et ux. v. Cloverland Dairy Products Co., La.App., 194 So. 43.

At the very beginning of our study of the record we were impressed with the obvious intent of plaintiff to exaggerate to a ridiculous degree the very minor injury which he sustained. In his petition he prayed for $10,000 and in his answer to the appeal he insisted that he had been so badly hurt as to justify such an award. In his petition he claimed that an artery had been severed and that his head and face had been badly lacerated. His own doctor said that no artery had been severed and made no reference whatever to any cut upon the face or head. He ended his testimony with the statement that he considered the injury as “on the minor side.” Though plaintiff went first to a hospital, he produced no hospital report nor the testimony of any one who treated him at the hospital to show that his face had been cut or that the cuts on his arm had been more than of minor importance.

In his testimony he referred to “blood pouring from my face”, and yet we note again that his doctor seems to know nothing whatever about a cut on the face.

One of his witnesses, a friend who was in his establishment almost daily, said that he was “cut all over” and that they rushed him to the hospital “with buckets, what I mean buckets”. And he added “practically a quarter of a bucket of blood he must have lost.” Again we note the absence of any hospital report to show any such serious injury.

Plaintiff tried very hard to make the court believe that he had been incapacitated 'for several days and that he had been under the care of a doctor for several months. He was asked: “How long were you treated -by Dr. Mattingly?” He answered: “Well, off and on, I think, I don’t know how long but that has been a good while.” Yet his own doctor, the same Dr. Mattingly, who had treated him, said that he had seen him but once, “ * * * that was the only visit for that injury that I saw him”. In order to make it certain, counsel for defendant asked the doctor: “You saw him the one time for that injury?” and the doctor answered: “That is correct.”

Now let us consider the occurrence itself. Of 'course plaintiff realized that it was quite important that he prove that he had not touched the bottle just before the explosion and he stated that “ * * * I put my hand in there like this and before I touched anything that thing come out, exploded, cut my artery here, my wrist, and cut my face right here.”

His witnesses, who had no reason whatever to notice whether he actually put his hand into the box are most positive that he did not do so. Both of these witnesses, who say they were present, were regular customers of the establishment almost every day and they both noticed the same thing— that his hand didn’t go into the box at all. One of them, Behler, was drinking a cup of coffee and yet he noticed particularly that the plaintiff’s hand did not enter the box. This witness was asked whether, on one of the days on which he visited the establishment, anything unusual happened and he commenced his answer with this volunteered statement: “Well, what occurred in front of me, in my presence.” Behler, although he was very positive that plaintiff had not put his hand into the box, later on weakened a little and said that the bottle wasn’t practically in his hand, it couldn’t have been in his hand because it cut him across here.”

We find much confusion and contradiction in the evidence of the various witnesses as to what became of the broken parts of the bottle after the accident. Plaintiff says that after the explosion the top portion of the bottle which had cut him flew out and “landed on the bar”. He says that “it came out, half the bottle it seems like.” When asked which half he said “The cap half.” Yet his wife says that a little later she, herself went to the box and “found the top of the bottle that cut my husband.” Behler says that only the bottom of the bottle remained in the box, yet the wife says that the top half was in the box when she looked into it.

The other customer who was in the establishment says that she does not know what kind of a bottle it was that exploded because when it happened “I was kind of late * * * She then realized that she had been placed on the stand to prove that it was a Coca Cola bottle so she says that later on in the afternoon she went back into the establishment and was told that it was a Coca Cola bottle. In many other particulars the testimony of plaintiff’s witnesses cannot be reconciled. Behler says' that the plaintiff’s wife was there. He was asked: “She was in the room where this happened?” and he answered: “That’s right”, and yet plaintiffs' wife testified as .follows: “Q. You didn’t see the accident happen? A. No, I didn’t see the accident happen.” She says in fact that she did not even hear any commotion “because I was in the back at the time.”

Behler says that another friend of his, whose name he did not know, was in the place helping him wrap up plaintiff’s hand with a towel. But Mrs. Piacun, plaintiff’s wife, says that this man to whom Behler refers was not in the establishment at the time, but came to the shop while her husband was at the drug-store having the cut attended to, and that she asked him to go to the drug-store and take plaintiff to the hospital.

One of the customer witnesses says that the accident occurred between 8:30 and 9 o’clock in the morning and that she is certain of this because she was on her way to work and was due to be at work at 9 o’clock. Yet another says that it took place between 10 and 12 o’clock in the morning.

The testimony of Behler as to what it was that cut plaintiff is interesting. At first he says: “The neck of the bottle is what it looked like hit him.” Yet a little later he said that he did not see the neck of the bottle until after he got back from the hospital. But he says that he saw the bottom in the box before he went to the hospital; but yet a little later he says that he did not look into the box until after he got back.

We fully realize that the many contradictions and inconsistencies which are apparent are in connection with comparatively unimportant details, and that on the main features of the case plaintiff’s witnesses do agree. But we realize too that where the entire question is one of fact it is often only by checking for inconsistencies in minor details that it may be determined where the truth lies.

We hesitate to reverse the finding of a district judge on a question of fact but in a case like this, it is evident that it is sometimes easier to discover such inconsistencies by comparing various portions of the transcribed record than it is to notice them while listening to the oral evidence of the witnesses. At any rate, we are well convinced from the record which is before us that there is no acceptable proof that plaintiff did not himself improperly handle the bottle or that the breaking of it was not the result of his own carelessness. Without such acceptable proof the doctrine of res ipsa loquitur is not applicable.

It is therefore ordered, adjudged and decreed that the judgment 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:
    TREW v. STANDARD SUPPLY & HARDWARE CO., Inc
    No. 18642.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.

      A. S. Cain and John J. Finnorn, both of New Orleans, for plaintiff and appellee.
    Beard & Blue, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff, Francis B. Trew, brought the present suit against Standard Supply and Hardware Company, Inc., (hereinafter called “Standard”) alleging that he had been employed in the capacity of superintendent or foreman of production by Vendóme Petroleum Corporation (which we will hereinafter designate as “Vendóme”) at a salary of $175.00 per month, and that there is due him salary for the months of May through November, and the first eight days of December, 1942, for services performed in connection with the oil and gas well operations of his employer on the Kenilworth and St. Mary Plantations in St. Bernard Parish, Louisiana. He also claims that Vendóme owes him for certain “expenses paid by him while performing work,” and also, for certain advancements made by him for the account of the corporation to three of its employees. The claim is itemized as follows :

Wages due $1,271.66
Advances made to employees 95.00
Expenses 215.88
Interest 237.38
Cost of preparing and recording lien 10.00
Attorneys’ fees under Act 68 of 1942 182.99
$2,012.91

It is further alleged that on March 5,1943, plaintiff filed for recordation in the mortgage records of Orleans and St. Bernard Parishes, an affidavit claiming a lien and privilege on the mineral leases, oil wells and other described property of Vendóme located upon the two plantations, for the amount of the claim.

Trew sues Standard on the theory that it acquired the property of Vendóme, in the proceeding’s entitled: “Standard Supply and Hardware Company, Inc.,, v. Vendóme Petroleum Corporation,” No. 2854 of the docket of the Twenty-fifth Judicial District Court for the Parish of St. Bernard, and alleges that he is entitled to have his lien and privilege thereon recognized and enforced.

Plaintiff prayed for a judgment ini per-sonam against Standard for the amount of the claim, with recognition and enforcement of the lien and privilege.

To the petition, Standard interposed two exceptions, (1) the prescription of one year, and (2) nonjoinder of parties defendant.

Before the exceptions were tried, plaintiff filed a supplemental petition which named Vendóme as a codefendant, and in which he prayed f.or a solidary judgment in personam against both Vendóme and Standard, with recognition of his lien- and privilege, and for a sale of the property. The exceptions were overruled by the lower court on July 29, 1946.

Standard then filed its answer to both petitions, denying all allegations. In the alternative, this defendant pleaded that it had nevqr acquired Vendome’s property as alleged, hut that Vendóme had granted it a mortgage thereon to secure a large indebtedness. Standard prayed for a dismissal of plaintiff’s suit, or in the alternative that its mortgage he decreed to have preference and priority over any lien claim of plaintiff. No pleading was filed by Ven-dóme, and in due course a preliminary default was entered against this defendant.

The matter then proceeded to trial on its merits as to Standard, and for a confirmation of the preliminary default against Ven-dóme. On December 6, 1946, the lower court rendered judgment against both defendants in solido for $1,582.54, with legal interest from March 3, 1943, until paid, plus ten per cent attorneys’ fees and costs. The judgment further recognized plaintiff’s lien and privilege on the property described in the original petition, and ordered that it be sold and that the amount due plaintiff be paid with preference and priority. Standard has taken this appeal from the judgment. No appeal has been perfected by Vendóme, arid we are concerned only with the judgment insofar as it operates against Standard.

At first glance the amount of plaintiff’s claim appears to exceed our maximum jurisdictional amount, but it is to be noted that included therein is the item of interest which had accrued up to the date suit was filed. Deducting the interest, which is not to be considered in determining appellate jurisdiction, the amount claimed is below $2,000.00 and the matter falls within our jurisdiction. Art. 7, secs. 10, 29, La.Const. 1921; Buras et al. v. Fidelity & Deposit Company of Maryland, 195 La. 244, 196 So. 335.

Appellant has reurged before us the two exceptions. In their argument respecting the exception of prescription of one year, counsel concede that the affidavit of plaintiff had been timely recorded in the mortgage records, but contend that the exception should be maintained for the reason that Section 3 of Act No. 68 of 1942, which repealed and supercedes Act No. 100 of 1940, provides: “That unless interrupted by suit thereon, such lien and privilege, as herein provided for, shall prescribe and become ineffective one year from the date of recordation.” Counsel point out that the suit was not filed until April 4, 1946, or three years after the affidavit had been recorded.

Plaintiff’s counsel agree that a laborer claiming a lien and privilege under the act must file suit thereon within one year from the date the affidavit is recorded. However, in seeking to avoid the effect of the plea, plaintiff asserts that he was a member of the United States Navy from September 1, 1942, until September 13, 1945, and that no prescription operated against him during that period.

The undisputed facts regarding the tenure of Trew’s military service are these: His enlistment in the United States Navy was effected on September 1, 1942, but as he was not immediately called for active duty, he continued in the employment of Vendóme through December 8, 1942; on the following day (December 9, 1942) he was ordered to active duty; on March 11, 1943, he was transferred to the Pacific theater of operations, and was not discharged from the Navy until September 13, ,1945.

Plaintiff directs our attention to the Soldiers’ and Sailors’ Civil Relief Act of the United States, 50 U.S.C.A.Appendix § 501 et seq., and argues that under its provisions the period for bringing the suit was suspended, and can only be counted from the date of his discharge from naval duties.

The act of Congress of October 17, 1940, Sec. 205, as amended by an act of October 6, 1942, 50 U.S.C.A.Appendix, § 525, provides in part as follows: "The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, * * (Italics ours.)

Section 604 of the act, 50 U.S.C.A.Appendix, § 584, in part reads: “This Act shall remain in force until May 15, 1945: Provided, That should the United States be then engaged in a war, this Act shall remain in force until such war is terminated by a treaty of peace proclaimed by the President and for six months thereafter: ⅛ * * ”

At the time initially designated for the termination of the act, the United States being then engaged in a war with the Imperial Government of Japan, its provisions remained in force, and were in force when Trew received his discharge from the Navy.

Counsel for Standard maintain that the Soldiers’ and Sailors’ Civil Relief Act has been widely construed in Louisiana and other states, and that the majority view of the courts does not confer an absolute right .of operation or stay of a proceeding unless the rights of the serviceman can not or could not be preserved or protected because of his military service, and that not all persons in the military service are automatically entitled to the benefits of the act. They argue that Trew had notice of his imminent active duty, and could have, without difficulty or inconvenience, filed his suit before being called by the Navy, and that he is not entitled to invoke the benefits of the act. In support of this argument, counsel cite the case of Charles Tolmas, Inc., v. Streiffer, 199 La. 25, 5 So.2d 372. In that case, a soldier, the lessee of certain immovable property, was sued by his lessor for eviction on the ground that there had been a violation of the lease contract. The trial court was of the opinion that there was an ambiguity in the lease contract, necessitating the presence of the respondent to determine the true intention of the parties, and for that reason granted the defendant a stay of the proceedings. The Supreme Court, on application for writs by the landlord, recalled the order of stay, without prejudice to either party, as a reading of the lease showed that the trial judge was in error in his conclusion that an ambiguity existed therein. The Court had before it for consideration, Sections 100 and 201 of the act, which authorized a stay of judicial proceedings wherein a member of the military forces was a party, in certain cases where the rights of the party would be prejudiced due to his absence and inability to defend or prosecute the action.

In the instant case, however, we are not dealing with a stay of judicial proceedings. The question presented is whether plaintiff’s right of action perempted during his tenure. of military service, and under the unambiguous language of Section 205, the one year period for bringing the suit was suspended until his discharge. The exception of prescription was properly overruled by the district court.

The exception of nonjoinder of parties defendant is likewise without merit. As we have before stated, Vendóme was made a defendant by means of the supplemental petition, and we believe, as did the lower court, that the objection was overcome thereby. Appellant argues that even though Vendóme had been named as a codefendant in the supplemental petition, the service of citation upon it was improperly made, and that such defective citation has the effect of nullifying the attempt to bring Vendóme into the suit. Both counsel, in their briefs and in oral argument, stated their respective versions as to whether the service of citation on Vendóme was properly made. .However, we arc not concerned with that detail. An exception of improper service is personal to him upon whom the service has been made, and can not be urged by his co-defendant. Tinney v. Vittur, 134 La. 549, 64 So. 407.

Appellant’s counsel vehemently contend that the lower court erred in rendering against it a personal judgment, for the reason that the only claim which plaintiff has asserted, insofar as Standard is concerned, is one in rem, as there is no allegation in either of the petitions, and no evidence in the record, showing that there had been a relationship of employer and employee, or any other contractual relationship, between Standard and the plaintiff. This contention appears to us to be correct. Standard was not indebted unto plaintiff for any amount; he had been employed by Vendóme and whatever amount is due him is owed by that corporation. The judgment, insofar as it casts Standard in personam for the claim made by plaintiff, is clearly erroneous.

All parties concede that this matter resolves itself into the question whether the lien of Trew primes the mortgage of Standard. The record shows that on December 9, 1941, Vendóme granted a mortgage to Standard on the oil leases known as Kenilworth 1, Kenilworth 3 and St. Mary 1, together with the oil wells known as Kenilworth No. 1 and St. Mary No. 1, and also upon certain equipment and machinery, to secure a note for $166,887.-99. There was assigned to Standard by Vendóme in the mortgage, as additional security, certain royalty interests in the two oil wells.

The proceeding No. 2854 of the lower court was offered in evidence and is before us as part of the record. Our examination thereof shows that it involved only a demand by Standard for an executory process on the mortgage. On November 17, 1944, the court rendered an order directing that a writ of seizure and sale issue, but it does not appear that any further steps were taken by Standard in the matter. It is not shown that Standard acquired any of Vendome’s property, and plaintiff is in error in alleging that Standard purchased the property subject to the mortgage.

It appears that the mortgaged mineral leases were acquired by Vendóme by assignment from Thompson Petroleum Corporation, the original lessee, which had acquired them from the land owners, Harvey W. Robinson et al. The royalty interests pledged in the mortgage as additional security for the indebtedness, arose out of those leases. Counsel for appellant maintain that the leases no longer exist, as they were declared null and void by the court a qua in the proceedings: “Harvey W. Robinson et al. v. Vendóme Petroleum Corporation et al.,” No. 2823 of its docket, and that such being so plaintiff has no lien or privilege on the said leases. Record No. 2823 was offered in evidence, and an examination of it discloses that on July 27, 1944, a judgment was rendered and signed in favor of Harvey W. Robinson et al., the land owners, and against Vendóme, annulling and avoiding certain mineral leases, but we notice that by the terms of the judgment it does, not apply to “ * * * that portion of Kenilworth Plantation situated North of Bayou Terre aux Boeufs,” and a certain described portion of St. Mary Plantation. We are given to understand by his. counsel that the excepted property is the subject of the leases upon which Trew claims his lien, and that the judgment of nullity does not affect them to any extent. Appellant, while not conceding this to be correct, has not answered the statement made by plaintiff. But, whether the judgment annulled the mineral leases involved1 in this case is of no moment. Trew’s lien was perfected by recordation on March 5, 1943, and on that date the leases were in force and effect as between the land owners and Vendóme. The judgment of nullity was not rendered until July 27, 1944, and it had no retrospective effect insofar as the rights of the plaintiff are concerned.

Plaintiff, in the affidavit, claims his lien under the provisions of Act No. 145 of 1934, as amended by Act No. 100 of 1940. His suit, however, was brought under the provisions of Act No. 68 of 1942, which repealed and supercedes the earlier acts. The repealing clause is in the following language: “That all laws or parts of laws in conflict herewith, particularly Act 145 of 1934 and Act 100 of 1940, are hereby repealed; provided that all rights arising under existing lams shall not be affected by the provisions of this act.” (Italics ours.)

Act No. 145 of 1934, as amended, and Act No. 68 of 1942 are upon the same subject matter, i. e., the establishment of liens and privileges in behalf of laborers and certain other classes of persons, on oil, gas and water wells and the leases upon which they are located, as well as machinery and equipment, etc., located thereon, and provide the. procedure necessary for their perfection. The acts read almost identically, except that in the latter it is provided that a laborer’s lien and privilege shall extend to the cost of preparing and recording the lien affidavit, and for ten per cent attorney’s fees in the event it becomes necessary to employ an attorney to enforce collection.

We quote that portion of Section 1 of both acts which is pertinent to this case, the italicized words being those added to the language of the earlier statute by Act No. 68 of 1942, as follows: “That any person, * * * who shall perform any labor or service in drilling or in connection with the drilling of any well or wells in search of oil, gas or water, or who shall perform any labor or service in the operation or in connection with the operation of any oil, gas or water well or wells, shall have a lien and privilege on the oil produced from said well or wells and stored on the lease whereon such well or wells are located, and on oil, gas or water well or wells and the lease whereon the same shall be located, and on all drilling rigs, standard rigs, machinery, appurtenances, appliances, equipment, buildings, tanks and all other structures thereto attached or located on said lease, for the amount due for such labor or service, in principal and interest, and for the cost of preparing and recording such lien and privilege, as well as fen per cent attorney’s fees in the event it becomes necessary to employ an attorney to enforce collection thereof. * * * ”

The uncontradicted evidence shows that Trew had been employed by Vendóme as alleged, and that there is due him $1,270.16 for services performed on the Kenilworth 1, Kenilworth 3 and St. Mary 1 leases.

The Constitution of Louisiana, Art. 3, sec. 8, provides that the Legislature shall meet biennially at the seat of government on the second Monday in May, and that its sessions shall be limited to sixty days, and according to Art. 3, .sec. 27, all laws enacted shall become effective at 12 o’clock, noon, on the 20th day after the Legislature shall have adjourned. The 1942 body met on May 11th of that year and adjourned on July 9lh, and Act No. 68 became a law at noon on July 29, 1942.

We are confronted with quite a unique situation — Act No. 145 of 1934, as amended by Act No. 100 of 1940, is controlling as to a portion of plaintiff’s labor claim, and the other part comes within the purview of Act No. 68 of 1942. Our calculation shows that the 1934 act, as amended, should be applied as to the following salary due plaintiff:

May $175.00
June 175.00
July (28 days) 158.06
Total $508.06

That part of the claim governed by Act No. 68 of 1942 is:

July (3 days) $ 16.94
August 175.00
September 175.00
October 175.00
November 175.00
December (8 days) 45.16
Total $762.10

In providing for the priority of laborer’s liens, Section 2 of both the 1934 act, as amended, and the 1942 enactment reads as follows: “ * * * such lien and privileges shall be superior to all other lien» and privileges or mortgages against said property, except taxes or a bona fide vend- or’s lien and privilege; * *

There is no evidence showing that Standard has a vendor’s lien and privilege on any of the property of Vendóme, and the only rights which it has in the property flow from the mortgage above mentioned. Our conclusion is that under the unambiguous language of the statutes the claim which plaintiff asserts for his labor, and which ripened into a lien by virtue of the recordation of his affidavit in the mortgage records on March S, 1943, primes the mortgage.

The judgment allowed plaintiff legal interest on the claim from March 3, 1943. It was evidently the trial court’s intention to fix the date of the recording of the lien affidavit as the date from which the interest should run. However, there appears to be a slight error in this date, for the recordation was effected on March, 5, 1943.

Article 1938 of the Civil Code provides that: “All debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.” However, plaintiff claims legal interest only from the date the lien was placed of record, and it should be allowed.

The judgment allowed Trew an attorney’s fee of ten per cent on the full amount of the claim. The 1934 act, as amended, made no provision for the collection by a laborer of attorney’s fees, but such provision is contained in the act of 1942, and plaintiff is entitled to such fee only on that portion of the labor claim which arose after the effective date of the 1942 enactment.

The judgment appealed from, insofar as it permitted the lien to extend to plaintiff’s expenses and advancements, is clearly in error. The lien and privilege asserted by plaintiff is established by the 1934 act, as amended, and by the 1942 act. The purpose of these statutes was, among other things, to protect laborers in the collection of wages for services rendered in oil, gas and water well operations, and beyond the amount of wages due to such laborers, the acts were not intended to, and do not, extend. No provisión is made establishing a lien in favor of a laborer for his expenses, or for advancements made for the account of his employer. Laws creating liens are to be strictly construed. Robin v. J. Thomas Driscoll, Inc., La.App., 197 So. 307.

For the reasons assigned, the judgment appealed from, insofar as it applies to Ven-dóme Petroleum Corporation, is affirmed. Insofar as Standard Supply and Hardware Company, Inc., is concerned, the judgment appealed from is amended to the extent that that corporation is relieved from any liability ⅛. personam, and that plaintiff, Francis B. Trew, now have judgment against Standard Supply and Hardware Company, Inc., recognizing his lien and privilege on the property described in the judgment appealed from to the extent of $1,270.16, with legal interest thereon from. March S, 1943, until paid, and also for the sum of $10.00 for the preparation and recordation of the lien and privilege in the mortgage records, and with ten per cent attorneys’ fees on the sum of $762.10 with interest, with preference and priority over the mortgage held thereon by Standard Supply and Hardware Company, Inc.

And as thus amended the judgment as against Standard Supply and Hardware Company, Inc., is affirmed. Costs of this appeal are to be paid by plaintiff-appellee.

Amended and affirmed.


text:
    BONNELUCQ v. BERNARD.
    No. 18650.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    For former opinion, see 31 So.2d 36.
    Phil Trice, of New Orleans, for plaintiff and appellant.
    Marion G. Seeber, of New Orleans, for defendant and appellee.
   JANVIER, Judge.

We based our original opinion and decree on our belief that the certificate of the Office of Price Administration had ordered that the refund for overcharge in rent be made to plaintiff, Mrs. Mary Schaefer Bon-nelucq.

It was contended by the defendant that Mrs. Bonnelucq had no right to maintain the action to recover for that part of the overcharge which had been made during the period in which the community had existed between herself and her deceased husband, and in which the rent had been paid by Mr. Bonnelucq, the said deceased husband, as head and master of the community.

We held that we could not go into the question of whether the certificate had been issued to the correct person since [31 So.2d 36, 37] : “the power to consider the validity of any regulation or order of the Office of Price Administration is vested solely in the Emergency Court of Appeal.”

It has been brought to our attention that, the certificate on which the suit was based and on which we based our opinion was not' offered in evidence and is not in the record.

It is also brought to our attention that in all probability the certificate, as a matter of fact, designates Mr. Bonnelucq and not Mrs. Bonnelucq as the party to whom the refund must be made.

It also comes to our attention that in all probability the Office of Price Administration, having issued the certificate to Mr. Bonnelucq, and having discovered that Mr. Bonnelucq has since died, has issued a ruling to the effect that Mrs. Bonnelucq is entitled to make the claim for refund.

We have before us at this time nothing from which we can ascertain the true facts concerning the said certificate nor concerning any subsequent certificate or ruling which may have been made by the Office of Price Administration.

We are not prepared to say just what, if any, effect should be given to any subsequent ruling and merely hold that at this time the best interests of justice will be served by remanding the matter in order that all of the facts concerning the certificate and concerning any subsequent rulings may be presented to and passed upon by the judge a quo.

It is therefore ordered, adjudged and decreed that our original decree be, and it is recalled and annulled; that the judgment appealed from be, and it is annulled, avoided and reversed, and that the matter be, and it is remanded to the Civil District Court for further proceedings not inconsistent1 with the views herein expressed, Appellant to pay costs of this appeal, all other costs to await final decision in the matter.

Original decree recalled.

Judgment reversed.

Case remanded.


text:
    NORVELL v. AIAVOLASITI.
    No. 18835.
    Court of Appeal of Louisiana. Orleans.
    Jan. 21, 1948.
    H. L. Midlo, of New Orleans, for plaintiff and appellee.
    Austin Anderson, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff, as assignee of a bill of Dr. Carl Rabin for professional services rendered, brings this suit against defendant for the sum of $300, the balance due on account. Defendant denied that Dr. Rabin treated him or that he rendered to him any professional services, and denied liability. From a judgment in favor of plaintiff, defendant has appealed.

The petition alleges that plaintiff “is assignee of Dr. Carl Rabin who rendered professional services to said defendant described on the itemized account hereto attached and made part hereof. * * * ” The itemized bill referred to is for $300 for “professional services rendered.”

Dr. Rabin testified that he did not treat defendant, and attempted to show that the bill covered services rendered to his married daughter and son-in-law, at defendant’s request and upon his promise to pay the bill. Defendant’s counsel made the following objection to the testimony:

“I object to any evidence going to show that the doctor treated anybody else but Mr. Aiavolasiti. It is alleged in the petition that he treated the defendant and not any third person.”

The judge a quo overruled the objection and permitted Dr. Rabin to testify, in which ruling he was clearly in error.

The petition and itemized bill reflect that the physician’s services were rendered to the defendant, and under this cause of action he had not the right, over the timely objection of defendant, to show that his services were rendered to third persons. Plaintiff’s counsel argues that the allegation of the petition does not indicate that the services were rendered to defendant, but merely for defendant, and that he was entitled to show that the services to the two mentioned members of defendant’s family were rendered “for the defendant.” We cannot agree with this contention, as the only construction that can be placed upon the allegations of the petition and the accompanying bill is that the defendant owes for medical treatment accorded him.

Proof must correspond with allegations, and recovery cannot be had on a cause of action not alleged, where there is objection to the evidence on that ground timely made. In Simon v. Duet, 177 La. 337, 148 So. 250, 253, the Supreme Court said :

“No citation of authority is necessary to support the propositions that a plaintiff cannot recover on a cause of action not alleged and that he cannot prove that which he does not allege.”

We said, in Cambas v. Burney et al., 8 La.App. 206: “Proof must correspond with the allegations.”

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered, adjudged and decree that plaintiff’s demand be dismissed as of non-suit; plaintiff to pay all costs.

Reversed.