author: TALIAFERRO, Judge.

text:
    DAW v. MATTHEWS (TEXAS INDEMNITY INS. CO., Intervenor).
    No. 7159.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      R. C. Gamble, of Mansfield, for appellant.
    Thompson, Lawes & Cavanaugh, of Lake Charles, for intervenor.
    Cawthorn & Golsan, of Mansfield, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff was physically injured and his Ford pick-up truck practically demolished in a collision with a large trailer-truck of the defendant, Frank W. Matthews, in a curve in what is called the Carmel Lake Road, in DeSoto Parish. The collision occurred in the daytime. Plaintiff was driving his own vehicle and was traveling northerly. Defendant’s truck was going southerly and was being driven by his agent, a Negro man named Pit Atkins. It was heavily laden with saw logs.

Plaintiff sued to recover damages for his physical injuries and for the value of his truck. The accident’s happening is accredited to the negligence of defendant’s driver in that he drove the heavily loaded truck at an excessive rate of speed around the curve; that he veered it from its proper course to his left side and encroached upon plaintiff’s half of the road; in not having the truck under adequate control; not keeping proper lookout and not giving warning of his presence in the curve.

Defendant exonerates his agent from responsibility to any extent for the collision and places upon plaintiff sole blame therefor in that he: (a) Failed to keep proper lookout, and (b) His speed was so excessive that in his endeavor to negotiate the curve he left his side of the highway and drove into defendant’s truck at the time it was on its own side of the road.

In the alternative, defendant employs the above alleged acts of negligence, charged to plaintiff, as a predicate for a plea of contributory negligence that is specially urged against him. Defendant reconvened and sued plaintiff for the damages done his truck and for loss of its use for fourteen days.

Plaintiff, when injured, was in the employment of the Kirby Lumber Corporation, to whom the Texas Indemnity Insurance Company had issued a policy of insurance to protect the assured against all claims and demands upon it by injured workmen for compensation, etc. The insurer paid plaintiff compensation at $20 per week for three weeks and paid the bills of the physicians who treated him for the alleged injuries. The insurer intervened in the suit and prayed for judgment against both plaintiff and defendant in the event plaintiff should succeed herein for the amounts paid by it to plaintiff or for his account under the referred to contract of insurance.

The demands of all parties, plaintiff, defendant and intervenor, were rejected and their suits dismissed. Evidently the lower court reached the conclusion that the drivers of both vehicles were equally negligent in the accident.

Plaintiff and the intervenor appealed. Since defendant did not appeal, his recon-ventional demand is not before us.

The case was tried before the late lamented Hal A. Burgess, judge of the Eleventh District Court for DeSoto Parish, but he departed this life prior to rendering judgment therein. Judge Ponder, of the same district, on the record as previously built up, rendered judgment in the case. For this reason it is urged here that the usual weight accorded to a decision of the trial judge on factual issues should not find place in the case.

The curve wherein the collision occurred is a thirty-seven degree one. Its length is two hundred forty feet. From its south end the Carmel Lake Road courses northerly and from its northern end said road courses easterly. The road is about eighteen feet wide at the point of collision. It is surfaced with gravel. At the time of the accident, July 20, 1945, the area adjoining the concave (east) side of the curve was covered with a growth of grass, weeds, etc., so high and dense that vision through that area toward and from each end of the circle was totally obscured. This being true, a motorist at one end of the curve cannot see another motorist at the other end. This curve, it is conceded by all who are acquainted with it, is a highly dangerous one. Motorists thereon for their own safety, at least, must drive carefully.

As plaintiff was traveling northerly he was due to be on the inner (east) side of the curve, and defendant’s truck should have occupied the opposite side thereof.

Plaintiff testified that after he had traversed a goodly part of the curve he observed the defendant’s truck coming toward him, some ninety or one hundred feet away, at a speed of eighteen or twenty miles per hour. It was then entering the north end of the curve. He says: “He was coming toward me, and, as I said, you don’t have time to figure out what to do, and I saw he was coming at me and was going to run over me, and about that time he gave me a sideswipe and I fell away.”

Plaintiff’s truck struck the other one at an angle. Its left front end, left side and top were so badly damaged that it would be hard to precisely describe the same. The only injury to the defendant’s truck was to the running board and to the left rear dual wheels of the trailer. A part of the force of the impact was against the logs, the forward ends of which were only two feet or so from the back of the truck’s cab. The impact caused plaintiff’s car to rebound a few feet with front end pointing northerly and its rear right corner driven into the embankment adjacent to the highway. The defendant’s truck left the highway, traveled to its right about sixty feet and turned completely over, all wheels being up in the air.

Plaintiff is positive defendant’s truck was across the road’s center and to some extent on his side thereof when the collision occurred; that the driver had lost control of it; and, of course, he is equally positive that he at all times held to his own side of the highway. He testified that he was going at a speed of from ten to fifteen miles per hour.

Defendant’s driver and the colored man riding with him testified that his truck was traveling at a speed of eight to ten miles per hour. He was going down grade and in fourth gear. It is safe to say that his-speed was greater than this estimate, but, perhaps, not more than the estimate fixed by plaintiff, which was not excessive.

Accepting plaintiff’s own testimony as a criterion for the fixing of responsibility for the accident, he is barred from recovery. To plaintiff’s right, between the margin of the gravel and the1 embankment, there were three or four feet additional space of grass covered surface, thus giving to him a lane of approximately thirteen feet on which to travel. His truck is five feet three inches wide. Its running condition was good and going at a speed of fifteen miles per hour it could have been stopped within a very few feet. Accepting plaintiff’s version of the facts of the accident, he saw the other truck coming toward him, over the road’s center in ample time to have stopped his own vehicle or to have pulled it several feet to the right and into, a zone of safety until the impending danger had passed. Obviously, on this theory of the accident, he had the last clear chance to avert it and failed to avail himself of the opportunity then open to him. This, legal principle is not invoked by defendant as a defense to the suit, but this court held in the case of Iglesias v. Campbell, La.App.,. 175 So. 145, 147, that when the facts warranted application of the principle a court had the right, on its own motion, to do so-Thc Supreme Court, on application for writ of review, approved this ruling.

However, we are convinced as was the lower court, that plaintiff was not entirely on his side of the road when the accident happened. There is one physical; fact, established to our satisfaction, that supports the testimony of the two Negro-men with respect to the position of plaintiff’s truck at the time of the impact. They say his truck was, to some extent, on their side of the center of the road. Two deputy sheriffs arrived upon the scene very-soon after the accident occurred and made close inspection of the locus and of the two vehicles. They found that the left end of the front spring of plaintiff’s truck, from the impact, broke from its attachment and fell to the gravel. They testified that there was a continuous shallow furrow in the gravel from the point where the injured spring first fell upon it to the spring’s end, after the truck rested against the embankment. One of these officers is quite positive that the furrow began west of the center of the road. The other officer was not so certain on this point, but was certain it began near the center.

The end of the spring in question sets back from the wheel above the axle, several inches, and pictures in the record make it clear that the fender extends beyond the side and front of the tire. Therefore, assuming that the spring fell to the ground simultaneously with the impact, whether on or near to the road’s center, the conclusion is inescapable that the left front part of the truck was beyond the center of the road when the collision occurred. This being true, the conclusion is inevitable that plaintiff is certainly in error as to the position of his truck, with reference to the center of the road, when the collision occurred. His own negligence bars recovery by him.

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


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    TARVER v. ALLAUN.
    No. 7175.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.
    Bullock & Bullock, of Shreveport, for appellant.
    Malcolm W. Feist and James G. Palmer, both of Shreveport, for appellee.
   HARDY, Judge.

This is a proceeding in which plaintiff seeks to recover the sum of $500 deposited by defendant in consideration of the granting of an option to purchase certain oil and gas leases on lands located in Hutchinson County, Texas, which sum is being held by James G. Palmer as the escrow agent.

Defendant, Allaun, appearing through a duly appointed curator ad hoc, excepted to the plaintiff’s petition on the ground that the same disclosed no right or cause of action. Plaintiff filed a supplemental and amended petition, whereupon the same nature of exception was re-urged by the curator ad hoc on behalf of the defendant, Allaun, against both the original and supplemental pleadings of plaintiff. The escrow agent, Palmer, filed an answer asserting that he had no interest in the matter inasmuch as he was merely a stakeholder, standing ready to deliver the amount in question to the party judicially determined to be entitled thereto, and praying to be relieved of costs and of any liability in the-premises.

After hearing, there was judgment sustaining the exception and dismissing plaintiff’s suit at his cost, in accordance with written reasons assigned by our learned brother of the District Court.

The instrument which is the basis of this action provided that, for the consideration of $500.cash, plaintiff, E. A. Tarver, sold to defendant, W. E. Allaun, “an option to purchase” two oil and gas leases covering specifically described lands located in Hutchinson County, Texas. The agreement, dated September 5, 1947, provided that Allaun should have “until midnight of Monday, the 22nd day of September, A. D., 1947, in which to exercise his right of purchase of the said two leases upon the terms of the agreement verbally arrived at * *

Plaintiff alleges that defendant failed to exercise the option to purchase within the time fixed and that, in accordance with the provisions of the agreement of option he is entitled to the sum of $500 deposited in consideration of the giving of the option.

The basis of defendant’s exception, of course, is found in the contention that the plaintiff did not execute a binding promise to sell.

The crux of this matter was ably and succinctly stated by the Judge of the District Court in his written opinion as follows :

“The option contains a promise to sell real property consisting of two oil and gas leases. They are described accurately. The only obligation of the seller is to execute an assignment of them.
“The obligations of the buyer are neither alleged in the petition nor contained in the written option. The option does state that they are covered by a verbal agreement which is to be reduced to writing in the form of a contract when plaintiff executes the assignment.
“By statute, an oil and gas lease is real property in Louisiana. There being no showing to the contrary, the Texas law is presumed to be the same. A verbal agreement to sell real property is unenforceable in Louisiana. Also in Texas, according to the statutes cited.
“In Texas, even an ordinary lease of real estate for a term of more than one year must be in writing. The option before us does not contemplate the leasing of anything, the purpose being the assignment or sale of already existing leases. Every verbal sale of immovables is null. C.C. 2440.
“Likewise, agreements to sell. Article 2462 of the Civil Code goes further and provides that the written agreement to sell must specify the thing, the price and the terms. Arkansas-Louisiana Gas Co. v. Roy, 196 La. 121, 198 So. 768.
“Plaintiff is seeking to enforce a contract in SO' far as it is favorable to him, which is completely unenforceable in so far as it is favorable to defendant.”

It is urged by counsel for plaintiff that the law of the State of Texas is controlling in an interpretation of the argeement of option before us in the instant case inasmuch as the agreement concerned the sale of real estate located within the State of Texas. We readily concede that all real property is exclusively subject to the laws of the State within which it is situate, but it does not follow that an agreement to sell executed in one state is governed and controlled by the laws of the state within which the object of the sale is located.

We think there can be no question as to the fact that the law of Louisiana controls the interpretation of the agreement which was executed by the parties in the State of Louisiana. The contract was made in Louisiana and its performance and the enforcement thereof are being sought in Louisiana.

It is argued by counsel for plaintiff that the exception is not well taken inasmuch as parol evidence is admissible to prove the consideration for an agreement in writing involving the sale of real estate, and in support of this contention a number of cases are cited. Examination of these cases determines that they are not applicable to the issue before us inasmuch as they concern executed contracts. While these cases are acceptable authority on the point mat the tiue cause or consideration of a contract may be established by parol testimony, this is not the proposition with which we are here concerned. The same nature of argument was considered by the Supreme Court in Suthon v. Cambon Bros., 159 La. 134, 105 So. 252, 254, and disposed of in the following words:

“ * * * this rule does not hold good, where the consideration is to redeem or is the granting of an option to pttrchase real estate, when the purpose of showing it is to enforce the right to redeem or purchase * *

It seems clear to us that the written agreement of the parties to this suit is entirely devoid of the reciprocal consent as to the thing, the price and the terms which are specifically required as elements of such agreements under the provisions of Article 2462 of the Civil Code.

The mere fact that a written agreement refers to a verbal understanding as to the requisite elements is not sufficient, in our opinion, to remove such an agreement from the effect and operation of the requirements of the codal provision.

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


text:
    TERRETT et al. v. BROSSETT.
    No. 7131.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.
    James W. Jones, Jr., of Natchitoches, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellee.
   HARDY, Judge.

The pertinent facts, which are relied upon as the basis of plaintiff’s demands, are clearly and succinctly set forth in the opening paragraph of the brief of counsel for plaintiffs before this Court, which reads as follows: “This is a petitory action brought by plaintiffs as heirs of John Ter-rett and Georgia Terrett, deceased, claiming ownership of SWJ4 of NEJ4 in Section 6, Township 10 North, Range 6 West, in Natchitoches Parish, Louisiana. The trial of the case established that the defendant does not claim to own this property, and his only excuse for being on it is a lease from W. M. Payne, dated January 17, 1939, and recorded in Mortgage Book 169, page 84, wherein W. M. Payne leased him the following described property, to-wit: A certain tract of land on Clear Lake in Ward 4 of the Parish of Natchitoches, Louisiana, containing 47 acres, and being located on Campti-Clear Lake Road, known as the Bayou Road, in Section 6, Township 10 North, Range 6 West.”

Our examination of the record bears out the statement made that defendant does not claim to own the property involved in this suit. While it does not constitute his “only excuse”, the record does show that defendant claims to be the lessee of one W. M. Payne under a written contract of lease.

After trial of the case the learned Judge of the District Court thought it necessary to appoint a surveyor and to have a survey made of the property involved in this dispute, and, following filing of the survey and proces verbal of the surveyor, there was judgment in favor of plaintiffs, -decreeing them to be the true and lawful owners of the property described, and, as such, entitled to the full and undisturbed possession thereof.

Since it is undisputed that the party defendant in this case claims to hold the property as lessee, it appears to us that there can be no argument on the proposition that the action is governed by the plain provisions of Article 43 of the Code of Practice, which reads as follows:

“Parties defendant — Lessee’s duty to declare name of lessor. — The petitory action, or one by which real property, or any immovable right to such property may be subjected, is claimed, must be brought against the person who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee.
" “But if the farmer or lessee of a real estate be sued for that cause of action, he must declare to the plaintiff the name and the residence of his lessor, who shall be made a party to the suit, if he reside in the State, or is represented therein, and who must defend it in the place of the tenant, who shall be discharged from the suit.”

Although defendant herein failed to declare the name of his lessor in accordance with the provisions of the article, the contract of lease was introduced in evidence and at such point in the trial we believe the Judge of the District Court should have ordered defendant’s lessor made a party to this suit in order that the question of title might have been determined contradictorily with him.

As we view the matter, the purpose of Article 43 of the Code of Practice is not alone to protect the lessee, but also to provide for a determination of the question of title between those parties who claim, or have a right to claim, any terest therein.

While it is true that under the facts of the instant case the defendant herein could not have been dismissed from the suit because of the nature of plaintiff’s demands, it is equally true that no adequate pronouncement of title can be made without joining defendant’s lessor, who certainly occupies the position of a claimant of title until he is judicially called upon to assert the same. No proper judgment as to title and ownership can be made unless the parties claimant are before the Court.

There is no assurance, under the clear facts reflected in the instant case, that defendant’s lessor may not at some future date assert his claim of title to this same property, and in such case the judgment of the Court in a matter to which he was not a party would have no binding effect as against his rights or claims.

Accordingly, it is ordered that the judgment appealed from be and it is hereby annulled and set aside, and this case is now remanded to the Tenth Judicial District Court in and for the Parish of Nat-chitoches for further proceedings consonant with the views and opinions expressed herein. All costs of both courts shall await final judgment.


author: ICENNON, Judge. PER CURIAM.

text:
    FOSTER v. MANISCALCO.
    No. 7089.
    Court of Appeal of Louisiana. Second Circuit
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      Tooke & Tooke, of Shreveport, for appellant.
    Love & Bailey, of Shreveport, for ap-pellee.
   ICENNON, Judge.

The petition set forth that on the 28th of August, 1945, plaintiff’s wife, as agent of the community existing between her and plaintiff, purchased an automobile from defendant for a cash consideration of $800 and a chattel mortgage installment note in the sum of $668.88, and that on the day of such sale the maximum price of the automobile sold as fixed by the Price Administrator under the authority of Emergency Price Control Act of U. S. Congress, 50 U.S.C.A.Appendix, § 901 et seq., was $1092; that, consequently, there was an overcharge in the sale in the sum of $376.-88.

In accordance with the Federal act, plaintiff prayed for judgment for a sum three times this overcharge, together with attorney’s fees and costs.

The answer denied the marital relationship and the authorization of Mrs. Foster to make the purchase on behalf of the community. Sale of the car to Mrs. Foster was admitted, but defendant denied all allegations of overcharge..

The District Court gave judgment for defendant and plaintiff has appealed.

The evidence discloses that plaintiff, C. H. Foster, was in the Armed Forces in 1945 and on the date the car was purchased was on Okinawa. Plaintiff introduced in evidence letters from himself to his wife, one before the purchase authorizing same and another afterwards approving the purchase. The authorization was included in a personal letter from plaintiff to his wife and contained the statement: “If you see a car you think it is a good buy then you go right ahead and buy it * * * for your decision is mine too.” And again, “If you find a car that you like, then please buy it, and don’t consult anyone on its appearance or the durability of its motor.” ’ Therefore, we conclude that plaintiff’s wife was authorized to purchase the car on behalf of the community and that plaintiff had the right to bring the suit for recovery of the alleged excess purchase price, penalties and attorney’s fees.

On the trial of the case, defendant admitted the sale and- delivery of the car to Mrs. Foster and testified personally that the amount of $515 cash payment set forth in the notarial act of sale represented the actual cash consideration which was paid by Mrs. Foster and denied that a larger sum was delivered. Plis testimony was corroborated to some extent by that of E. J. Ryland, from whom he rented the lot on which his cars were displayed. He stated that he made out the papers based on the OPA ceiling price and while he testified that he heard the defendant say “five hundred dollars” at the time the money was paid, he did not count the money himself or observe the bills as they were counted.

The other .witness to the transaction stated that Mrs. Foster was not in the office at the time he “witnessed the paper.” With reference to the amount of money which passed, he stated that “the only thing I know was the money was still on the desk and the contract was there and they must have just closed the deal.” When questioned as to the amount of money that was on the desk, he stated that as' much as he could see it was “around $500.00 or a little over.” When asked if he counted it, he said he did not, but remarked that hundred dollar bills were easy to count. This witness was a former employee of defendant but not working for him at the time of the transaction. His testimony adds little to the case since he made no actual count of the money and liis testimony about the amount was not clean-cut. In addition,' there is no way of knowing whether defendant had picked up some of the money Mrs. Foster paid him before Mike Lewis came in to “witness the paper.”

Mrs. Foster testified that she made an $800 cash payment at the time the papers were passed and gave the note for the balance plus carrying charges. Included in the payment were six one hundred, dollar bills, the rest being in twenties and-tens. In order to close the purchase and make this payment, she testified that she drew $635 from her bank account and cashed a government check for $165 and had $10 on hand out of her current wages from the Western Union Telegraph Company, where . she had worked in Shreveport for the past four years. Mr. Dewey Williams, Mrs! Foster’s stepfather, testified that he went to the bank with Mrs. Foster to draw the money from her account and also to help her cash the check, and that he saw the money counted out to Mrs. Foster, and that he saw her count out the $800 on the desk in front of Mr. Maniscalco, who picked up the money after it was-counted out.

Mrs. Foster admitted signing the act of sale showing only $515 as the cash payment and a form “purchaser’s statement” setting forth that no payment of money was made not shown on the certificate of transfer. But when questioned about everything being satisfactory at the time of .the sale and delivery, she said, “Well, it had to be,” and again, “I couldn’t get the car any other way.”

The purchaser’s statement also negated five other common violations of the OPA regulations, and, in addition 'to Mrs. Foster’s signature, showed the signatures of E. J. Ryland and Mike Lewis as witnesses and H. S. Henderson as notary.

This document adds little to defendant’s case. When honest, straightforward sales are made, the seller does not usually require the purchaser to sign a statement that no one of some six devices for overcharge were employed against the vendee.

Mrs. Foster testified that neither witness Lewis or notary Henderson was present. Lewis, on the stand, verified her statement by testifying that he signed after she was gone. The notary was not introduced as a witness by defendant and we conclude that Mrs. Foster was correct as to his absence at the time she signed.

After our examination of the testimony, we- believe that the plaintiff has made out his case as to the payment of the $800 in cash by Mrs. Foster, and that the difference between the $515 cash payment shown on the act of sale and the $800 actually paid was in excess of the price fixed by the Office of Price Administration.

For the reasons assigned, judgment appealed from is set aside and judgment is now rendered in favor of plaintiff and against defendant in the sum of $855 as being the amount of the overpayment with penalties, and for an additional $175 for attorney’s fees. Defendant to pay all costs.

On Application- for Rehearing.

PER CURIAM.

Counsel for defendant in application for rehearing has directed the Court’s attention to an error of $7 in the amount of overcharge.

The judgment appealed from is corrected by reducing the amount of triplicate penalties from $855 to $834, and, as corrected, remains the judgment of this Court. -

Rehearing refused. ’