text:
    John W. FOSTER, Plaintiff-Appellee, v. GREAT AMERICAN INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 7178.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    R. D. Watkins, of Minden, for appellants.
    Drew & Drew, of Minden, for appellee.
   HARDY, Judge.

This is an action for damages resulting from injuries sustained by plaintiff while riding as a passenger in an automobile owned and operated by one Chester G. Smythe. This suit is one of three arising from a collision which involved two passenger automobiles and a gravel truck. The defendants in this case are S. W. Murti-shaw Construction Company, S. W. Murti-shaw, owner, and the liability insurer, Great Americán Indemnity Company.

By a stipulation between counsel for the several parties the three, suits were consolidated for purposes of trial and appeal and are styled on the docket of this Court as follows: No. 7178, Foster v. Great American Indemnity Co.; No. 7179, Smythe v. Great American Indemnity Co., La.App., 35 So.2d 267; No. 7180, Gutierrez v. Murtishaw et al., La.App., 35 So.2d 266.

The bulk of the record in these cases is made up in the Smythe suit, No. 7179, La. App., 35 So.2d 267, on the docket of. this Court, which record, by agreement, is intended to serve in the consolidated cases.

After trial of the consolidated cases there was judgment in this case in favor of the plaintiff, John W. Foster, and against the defendants, Great American Indemnity Company and S. W. Murtishaw Construction Company, in the full sum of $2,603.50, with legal interest thereon from judicial demand until paid, together with all costs, from which judgment defendants appealed. Plaintiff answered the appeal, praying that the amount allowed as damages be increased to the sum of $7,650.

The opinion of this Court detailing the statement of facts and the reasons for the judgments rendered on appeal is set forth in the Smythe suit.

For the reasons assigned in the opinion this day rendered in -the suit of Smythe v. Great American Indemnity Co. et al., No. 7179, La.App., 35 So.2d 267, on the docket of this Court, the judgment appealed from is affirmed at appellant’s cost.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    Jose GUTIERREZ, Plaintiff-Appellee, v. S. W. MURTISHAW et al., Defendants-Appellants.
    No. 7180.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    R. D. Watkins, of Minden, for appellants.
    Campbell & Campbell, of Minden, for appellee.
   HARDY, Judge.

This is an action for damages resulting from injuries sustained by plaintiff while riding as a passenger in an automobile owned and operated by one Jess Hamblen. This suit is one of three arising from a collision which involved two passenger automobiles and a gravel truck. The defendants in this case are S. W. Murtishaw and his liability insurer, Great American Indemnity Company.

By a stipulation between counsel for the several parties the three suits were consolidated for the purpose of trial and appeal and are styled on the docket of this Court as follows: No. 7178, Foster v. Great American Indemnity Co., La.App., 35 So.2d 265; No. 7179, Smythe v. Great American Indemnity Co., La.App., 35 So. 2d 267; No. 7180, Gutierrez v. Murtishaw et al.

The bulk of the record in these cases is made up in the Smythe suit, No. 7179 on the docket of this Court, which record, by agreement, is intended to serve in the consolidated cases.

After trial of the consolidated cases there was judgment in this case in favor of the plaintiff, Jose Gutierrez, and against the defendants, S. W. Murtishaw and Great American Indemnity Company, in the full sum of $4,000, with legal interest thereon from December 24, 1945, until paid, together with all costs, from which judgment the named defendants have appealed, which appeal has been answered by plaintiff, who prays for an increase in the amount of the judgment to the sum of $10,000. The plaintiff further obtained orders of appeal from that part of the judgment of the District Court which denied plaintiff’s demands against Chester G. Smythe.

The opinion of this Court detailing the statement of facts and the reasons for the judgment of this Court is set forth in the Smythe case.

For the reasons assigned in the opinion this day rendered in the suit of Smythe v. Great American Indemnity Co. et al., No. 7179 on the docket of this Court, the judgment appealed from is reversed, annulled and set aside, and there is now judgment in favor of plaintiff, Jose Gutierrez, and against the defendants, S. W. Murtishaw, Great American Indemnity Company and Chester G. Smythe, in solido, in the full sum of $4,000, with legal interest thereon from December 24, 1945, until paid, together with all costs of both Courts.


text:
    SMYTHE v. GREAT AMERICAN INDEMNITY CO. et al.
    No. 7179.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    R. D. Watkins, of Minden, for appellant.
    Drew & Drew, of Minden, for appellee.
   HARDY, Judge.

Plaintiff brought this suit for the recovery of 'a total of $9,300 in damages consisting- of personal injuries and damages to an automobile alleged to have 'been caused by the negligence of the operator of a gravel truck belonging to the S. W. Murti-shaw Construction Company of which S. W. Murtishaw is the sole owner. The Murti-shaw Company and its liability insurance carrier were made defendants.

This case was consolidated for the purposes of trial and appeal with the cases of Foster v. Great American Indemnity Company et al., La.App., 35 So.2d 265, and Gutierrez v. Murtishaw, Nos. 7178 and 7180, La.App., 35 So.2d 266, respectively, on the docket of this Court, and the transcript of evidence and the exhibits filed on trial of the case, as made up in this cause, were, by agreement, introduced in the other cases.

After trial there was judgment in favor of plaintiff in the sum of $5,736.00, from which judgment defendants have appealed. Plaintiff has answered the appeal, praying an increase in the judgment to the sum of $9,300.00.

These consolidated suits are the aftermath of a triple-header collision between an automobile owned and operated by plaintiff, Smythe, a gravel truck of the Murtishaw Company, operated by one of its employees, and a passenger automobile owned and operated by one Jess Hamblen. Smythe, the driver of one automobile, is the plaintiff in this suit, and the plaintiffs in the companion and consolidated suits are John W. Foster, who was a passenger in the Smythe car, and Jose Gutierrez, who was a passenger in the Hamblen car.

The situs of the accident is a dangerous curve on Highway 80 about one and one-half miles west of Minden, Webster Parish, Louisiana, which has been the locale of numerous collisions and accidents which this Court has had occasion to consider in the past. The curve turns sharply to the north, that is, to the right of the driver of a vehicle proceeding in a westerly direction, which would be, conversely, to the left of the driver of a vehicle driving east.

The accident occurred at or about 6:30 on the evening of December 24, 1945. The Smythe automobile at the time was moving ■east toward Minden while the Murtishaw truck and the Hamblen car, which was following the truck at a reasonable distance therefrom, were traveling west away from Minden.

At or very near the apex of the curve the left front portion of the Smythe car violently collided with the left rear of the Murtishaw truck. The force of the impact was such that the dual wheels of the truck were knocked loose; coming to rest some distance along the highway in a ditch on the north side thereof, while the main body and cab of the truck, after overturning, came to a stop across the south lane of the highway. The Smythe car was turned about as a result of the blow, and, after crashing into the Hamblen car, was thrown back to the extreme south side of the highway where it came to a stop, headed into a ditch.

This plaintiff, Smythe, alleged negligence on the part of the driver of the Murtishaw truck in that he was driving at an excessive rate of speed, more than forty-five miles per hour; operating the truck on the wrong side of the highway; not keeping a proper lookout; cutting the curve in disregard of the safety of other vehicles on the highway. Foster, plaintiff in one of the consolidated actions, makes identically the same allegations of negligence against the driver of the Murtishaw truck. Gutierrez, who is the plaintiff in the third of the consolidated suits, in which Murtishaw, his insurer, and Smythe are the parties defendant, alleged negligence both on the part of the driver of the truck and Smythe.

The allegations of negligence against the driver of the Murtishaw car, as set forth in the Gutierrez petition, consisted of failure to keep a proper lookout; failure to slacken speed or otherwise bring the truck under control; and driving “at, near or across the black line dividing the center of the highway without leaving a sufficient margin of safety for others approaching from the opposite direction”.

The allegations of negligence against Smythe were that he was driving at a high rate of speed and in a careless and negligent -manner; failing to keep a proper lookout; failing to slacken the speed of his car or otherwise bring it under control, and driving “at, near or across the black line dividing the center of the highway without leaving a sufficient margin of safety for others approaching from the opposite direction”.

In answers filed in the three suits the defendants, Murtishaw and his insurer, averred that the accident was occasioned' solely by the negligent acts of Smythe, specifically in operating his car at a high rate of speed on the wrong side of the road, which negligence the said defendants alleged upon information and belief to be attributable, in whole or in part, to the intoxicated condition of the said Smythe at the time. In the Foster suit it was further alleged in the answer of the named defendants that Foster, who was a guest in the Smythe car, was fully cognizant of Smythe’s condition, having been engaged with him in the drinking of intoxicants just prior to the accident. These defendants reconvened in the Smythe suit and sought recovery of damages to the truck, allegedly resulting from Smythe’s negligence.

After trial of the consolidated cases there was judgment in favor of Smythe against Murtishaw and his insurer for damages in the sum of $5,736.00, from which defendants appealed. Smythe answered the appeal, seeking an increase in the amount of damages to $9,300.00.

There was judgment' in favor of the plaintiff, Foster, against Murtishaw and his insurer, awarding damages in the sum of $2,603.00, from which judgment the defendants appealed, and in answer to which appeal Foster seeks an increase in the amount of damages to the sum of $7,650.00. There was judgment against Murtishaw and his insurer in the Gutierrez case awarding damages in favor of plaintiff in the sum of $4,000.00, .from which judgment the named defendants appealed, which appeal was answered by plaintiff, who prayed an increase in the amount of damages to the sum of $10,000.00. There was further judgment in the Gutierrez case rejecting the plaintiff’s demand's against Smythe, and from this part of the judgment Gutierrez has appealed to this Court.

The complexity of the pleadings in these consolidated cases is rivaled only, by the complexity of the comflicting testimony of the witnesses. Our learned brother of the District Court in his written reasons for judgment commented on this point to the effect that “ * * * the evidence is as usual, in hopeless conflict.”

After analyzing the testimony of the witnesses the distinguished Judge of the District Court further commented as follows:

“It is well known that' where there are several witnesses to an accident they rarely, if ever, see it the same way, and all may be perfectly honest in their testimony as to the way it happened. In this situation, when the evidence is so conflicting that there is no way to reconcile it, what appears to be the most reasonable version must be accepted, taking into consideration the physical facts.”
“In this case, taking these things into consideration, such as glass in the road on the south side, apparently from a headlight, oil in the. road on the south side of the road, the youth of the driver of the truck, my conclusion is that a fair preponderance of the evidence is in favor of the plaintiffs, and justifies the conclusion that the accident and resulting damage was caused by the negligence of the driver of the truck * * ”

We heartily agree with the District Judge in his observation as to the conflict in testimony. It is practically impossible to reach a conclusion which can be based with any degree of certainty on any clear-cut, unequivocal testimony in the record before us.

The circumstances attendant upon the collisions, by reason of the absolutely irreconcilable nature of the testimony of the several witnesses, are left in a hopeless state of confusion and uncertainty. Smythe and his guest, Foster, accompanied by a dusky and mysterious companion known to the record only as Dave, an individual who was not tendered as a witness by either side, and whose very whereabouts appear to be unknown, started out from Minden on the afternoon of. Christmas Eve, 1945, on a junket west on Highway 80. The first stop was at an establishment known as “Casey Jones”, where the purveying of spirituous liquors seems to have been the principal business. Here Dave was deposited by Smythe and Foster, who proceeded to the home of a Mr. Mitchell somewhere farther west, where they spent some four or five minutes. In this connection it is observed that Mitchell did not appear as a witness in these proceedings.

After this brief visit Smythe and Foster reversed directions and retraced their course along Highway 80, this time proceeding east in the direction of Minden. They stopped at Casey Jones and went in for the purpose of picking up Dave, so they testified. After this mission had been accomplished, the party proceeded to another establishment known as “Lakeside Inn”, where it appears Dave fianally and permanently severed his association with Smythe and Foster. At Lakeside Inn Mr. Smythe went into the building to wish the proprietor, one Leigh, a Merry Christmas. After spending a brief period of time at Lakeside Inn, Smythe and Foster resumed their trip toward Minden, their arrival there being delayed by the collison which is the basis of this litigation.

During the entire period of what appears to be a somewhat impromptu excursion, Smythe and Foster stoutly deny that they partook of any intoxicating beverages, and each of these parties testified, with respect to the other, that “if he did take a d'rink I didn’t see him”.

With reference to the part that John Barleycorn played or may have played in the events which followed, it is interesting to note that there is indisputable evidence of the presence of intoxicants at the scene of the accident. The uncontradicted testimony of one witness was to the effect that a broken quart whiskey bottle with some whiskey still remaining in it, and an unbroken bottle containing gin were found at the point where the Smythe car came to rest after the accident. Another witness testified that some unidentified party ran up to him immediately after the accident and thrust a full pint bottle of whiskey into his hands and then departed from the scene. Very shortly after the accident Mr. Foster, plaintiff in one of these suits, left the scene and walked down the road toward Minden with the intention, so he testified, of getting a taxi to take him home. Failing in the attempt to get a taxi to respond to his call, he proceeded to his home, some two miles distant from the scene of the accident, under his own power.

One witness who rode with Mr. Smythe in the ambulance which was called to the site of the accident, and which removed Smythe to the hospital, testified positively that Smythe had been partaking of intoxicants. The driver of the ambulance and the doctor who attended Smythe testified that they did not remember noticing any evidences of intoxication.

The testimony as to the details of the actual collision is equally as vague and confusing as the testimony with regard to the imbibing, vel non, of intoxicating liquor. Smythe and Foster testified positively that the Smythe car was on the extreme south side of the highway; that the Murtishaw truck was several feet across the center line of the highway on the south side, that is, in the line in which the Smythe car was traveling; that almost at the last second the driver of the Murtishaw truck swung the front end of the vehicle to the right, thereby averting a head-on collision but failing to clear the path of the Smythe car, which he sideswiped with the rear portion of the truck, the point of impact being just in front of the rear dual wheels thereof.

The seventeen-year old negro youth who was driving the Murtishaw track testified just as positively. that he was well over on the north, which was his side of the highway, and that the Smythe car was partially on the wrong side of the center line. This testimony was, to a degree at least, corroborated by the driver of another of Murtishaw’s trucks which was immediately in front of the one involved in the accident.

It is obvious that all of these parties were definitely at interest, which fact detracts, at least to some degree, from the effectiveness of their testimony. By reason of this fact we think that even more than usual weight must of necessity be attached to the testimony of other witnesses and to the physical circumstances connected with and surrounding the accident.

It is to be borne in mind as a practical proposition that ordinarily it mattered not to Foster, who was the guest in Smythe’s car, whether the driver of the Murtishaw truck or Smythe was at fault, inasmuch as he was a bona fide guest in the Smythe vehicle at the time. But it.is significant that Foster did not seek recovery against Smythe and directed his action solely against Murtishaw and his insurer. This comment is apropros in the process of evaluating testimony, for the reasons which are obvious.

Gutierrez, who is the plaintiff in the third of these consolidated suits, was in somewhat the same position as Foster, to the extent that it was a matter of no importance to him whether the truck driver ■or Smythe, or both, were guilty of the negligence which caused the accident. Gutierrez, who, at the time, was in the service of the United States Army, had hitch-hiked a ride with Hamblen, who was the owner and operator of the other passenger car involved in the collision. There is no slightest attempt on the part of any of the several interested parties to charge Hamblen with any negligence whatsoever. The involvement of the Hamblen car was ■due entirely to the fact that, unfortunately, it was following closely, al’beit at a reasonable distance, the Murtishaw truck, and Hamblen, the driver, had no opportunity whatsoever to avoid the collision with the Smythe car which was thrown into his path by the force of its impact with the truck.

Therefore, in considering the testimony •of Gutierrez we are -impressed with the proposition that he would have no bias •for either of the principal actors, and, .accordingly, his testimony should be entirely dispassionate and impartial. Close study of Gutierrez’s testimony leads to the conclusion that in his opinion the collision was due to the negligence of both parties who were hugging the center of the road without preserving a sufficient and proper -margin of safety between the vehicles.

Consideration of the effect of the testimony of the witnesses in this case is further complicated by the fact that the ■only other eye witness, Hamblen, who testified by deposition, is unequivocal on the point that the Smythe car was proceeding at an excessive rate of speed and was partially over the center line of the highway in the north lane.

The testimony of the witnesses as to the relative speed of the vehicles is equally as confusing, conflicting and uncertain as the testimony with .reference to their positions on the. highway.

Unlike our brother of the District Court, we fail to attach any considerable significance to the testimony as to the presence of glass and oil on the south side of the highway which he assumed as indicating the shattering of a headlight and the spilling of oil of the Smythe car on its right side of the highway. We regard this as being an unwarranted assumption in view of the fact' that there is no direct testimony which links the glass ‘ and me oil with the Smythe car, nor is it established that the location of the glass and oil was at the spot where the impact occurred.

There is one point which appears to be exceedingly plain to our minds, namely, that the combined speed of the vehicles indicates a lack of reasonable care on the part of both drivers in the negotiation of the sharp and dangerous curve at which the accident occurred. There is no doubt in our minds that the Smythe car must have been traveling far in excess of a reasonable rate of speed in order to attain such momentum as would knock the heavy dual wheels of the gravel truck completely out from under the body. To conclude that the Smythe car at the time was traveling at approximately twenty miles per hour, which was the approximate speed fixed by some of the witnesses, would entail an utter disregard of' all physical laws.

Another factor which we have thoroughly considered, in relation to its bearing upon the accident, is the point of impact. This feature is susceptible of explanation on any one of a number of grounds; that the truck driver attempted to swing his vehicle to his right at the last moment, which maneuver cleared the front end of the truck; or that Smythe, confused by the imminence of the collision, or for other reasons, unwittingly swung his car to the left after he had cleared the front end of the truck, or even that he failed to take into consideration the fact that the dual wheels of the truck projected to the extent of several inches beyond the front part of the vehicle.

After careful study and consideration of the record before us, we are constrained to believe that the accident in question was due to the concurring negligence of the driver of the truck and Smythe as a result of their mutual failure to exercise reasonable care with respect to the speed, the degree of control, and the proper regard for the road rights of passing vehicles on a notoriously dangerous section of highway.

This finding effectively eliminates any right of recovery 'by Smythe against Murtishaw and his insurer, and, similarly, nullifies the right of Murtishaw to recover on his reconventional claim.

As we have pointed out, Foster was a bona fide guest in the Smythe car and the record does not substantiate the contention that he was guilty of failure in the exercise of reasonable care on his own part. Consequently, Foster, having chosen to sue Murtishaw and his insurer, is entitled to recover against these defendants since our finding is to the effect that Murtishaw’s employee was guilty of negligence.

As to the rights of Gutierrez, there is no question as to the correctness of the judgment against Murtishaw and his insurer. However, in view of our finding of negligence on the part of Smythe, it is equally clear that Gutierrez is also entitled to judgment, in solido, against Smythe, the right to which relief he has fully preserved by his appeal from the appropriate portion of the judgment of the District Court.

The only question that remains relates to the quantum allowed to Foster and Gutierrez as the respective measure of their respective claims for damages. We find no error in the amounts fixed by the Judge of the District Court. Under no circumstances do we consider, on the basis of the record, that either of these parties is entitled to any increase in the amount of his award. On the contrary, we think the judgments are most liberal but not to such an extent, under the facts, as would justify this Court in effecting a reduction.

As is to be observed from the matters hereinabove set forth in this opinion, a determination of this case rests upon a finding of fact. The customary weight which is attached by appellate courts to findings of fact, as determined by the judges of trial courts, is not a matter of consideration in the instant case by reason of the fact that, while the trial of these consolidated causes was had before Judge Enos C. McClendon, the judgment was rendered by Judge J. F. Mclnnis:

For the reasons assigned the judgment appealed from in the instant case is reversed, annulled and set aside, and there is now judgment in favor of defendants, Murtishaw Construction Company, S. W. Murtishaw, owner, and the Great American Indemnity Company, rejecting the demands of Chester G. Smythe, plaintiff, at his cost. There is further judgment rejecting defendants’ reconventional demand.

Appropriate decrees in conformity with the views expressed in this opinion will be entered in the Foster and Gutierrez cases.


author: TALIAFERRO, Judge.

text:
    ANDRESS MOTOR CO. v. HAMILTON & HORN MOTOR CO. et al.
    No. 7091.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.

      John G. Gibbs, of Natchitoches, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellees.
   TALIAFERRO, Judge.

Plaintiff sued the partnership of Hamilton and Horn Motor Company on open account and joined as defendants the Greene Radio Shop and its component members, against whom judgment is sought on the ground that this company allegedly bought and took possession of the assets of the first named partnership without complying with the requirements of the Bulk Sales Law. Act No. 270 of 1926.

The facts of the case are in the main not in serious dispute. Leroy Horn and Leo Hamilton, residents of the City of Natchi-toches, Louisiana, composed the partnership of Hamilton and Horn Motor Company, that owned and operated a garage business and car sales agency in said city for some time prior to the dates of the sales of merchandise that make up the account on which this suit is based. These copart-ners owned the building and lot in and on which the partnership business was conducted.

On February 16, 1946, Horn sold and conveyed to Hamilton for $2,500 cash his interest in the entire assets of the partnership, movable .and immovable, and on June 12th following, Hamilton sold and conveyed all of the property to Greene Radio Shop, a commercial copartnership composed of C. N. Greene, Emmett E. Greene and Clarence E. Greene, all residents of Natchitoches, Louisiana.

The account sued on consists of charges for sales of merchandise made oh February 18th, March 12th and 13th, 1946, all of which dates are subsequent to the dissolution of the partnership of Hamilton and Horn Motor Company that was effected by the sale to Hamilton by Horn, mentioned above. However, the merchandise was charged to the former partnership, evidently . through plaintiff’s ignorance of the change.in the affairs of this business.

Horn, following sale by him to Hamilton, severed his connection with the partnership business and was unemployed for some two months. Thereafter, on his own account, he leased from Hamilton, by the month, the tools, equipment, etc. in the garage and conducted therein an automobile repair business. This business he continued for some months after Hamilton sold to the Greene Radio Shop, as its lessee.

Although the partnership of Hamilton and Horn Motor Company had been dissolved for several months, in the manner above related, this fact was ignored by plaintiff in bringing the present suit, and the partnership was proceeded against as though no dissolution had occurred. Citation directed to the former partnership was served upon Horn.

It is not denied that no attempt was made by the parties to comply with the provisions of the mentioned Bulk Sales Law.

Hamilton, soon after the sale by him to the Greene Radio Shop, left Natchitoches, and made no appearance in the case. As to him,- issue was joined by default. All other defendants answered the suit and denied liability to any extent on the account.

At the conclusion of trial, exceptions of no cause and no right of action were filed on behalf of all defendants, except Hamilton. The exceptions were sustained as +o the Greene Radio Shop and its members, .and the suit against them was dismissed; but they were overruled as to Horn. However, on the merits, the court rejected the demand against Horn. This action was based upon the conclusion that as the partnership between Hamilton and Horn had been dissolved prior to time any part of the account sued on came into existence, Hamilton alone was primarily responsible therefor. Judgment was rendered against him. Plaintiff appealed.

The court based its ruling on the exceptions tendered by the radio shop and its members upon the case of Manchester Silver Company v. Clara Jewelry Company, Inc., 19 La.App. 367, 138 So. 467. In that case it was held that: “Transferor’s creditor could not sue transferee not complying with bulk sales statute for personal judgment. (Act-No. 270 of 1926).”

But, to the contrary, is the court’s holding in B. Rosenberg and Sons, Inc., v. Wagucspack, 167 La. 451, 119 So. 423, wherein Act No. 114 of 1912, which amended Act No. 94 of 1896, as amended by Act No. 166 of 1894, the Bulk Sales Law then in effect, was construed. However, the conclusions we have reached on the merits of the case make it unnecessary to say whether the court’s ruling on this phase of the case was or was not correct.

Plaintiff did not prove the correctness of the account on which it sued, regardless of who is responsible for its payment. The invoices describing the articles in each sale and the charges therefor, were offered in evidence, but on objection by defendant’s counsel, were ruled out, except as to Horn. When the court made this ruling it was under the impression that Horn had pleaded payment of the account, but at the conclusion of the trial it entertained a different view of the matter.

The ruling of the court as respects the ■admissibility of the account is obviously correct. The invoices constituting the account are not even supported by affidavit of their correctness by any officer or employee of plaintiff in a position to have knowledge ■of the facts concerning same.

Horn did not plead payment of the account. He stoutly testified that the indebtedness was created by Hamilton after he (Horn) ceased to own any interest in the business. Horn did aver that the partnership sent to the plaintiff a motor in full payment of all amounts due by it to plaintiff. This evidently refers to transactions prior to the dissolution of the partnership.

It is true that on May 25, 1946, Horn paid plaintiff’s counsel $10 to be applied on the account; but Horn testified that he did this only on the assurance by counsel that he would “let me keep the shop open”. Counsel took the stand as a witness for plaintiff but did not deny this testimony of Horn’s. Such a payment, of course, under the circumstances, had not the effect of committing Horn to liability on the account on which theretofore to no extent was he liable. To hold otherwise, we would have to say that by such payment he assumed liability for payment of the account, the debt of a third person, which, every one knows, cannot be done except by written evidence.

After the case was tried and submitted, but prior to judgment, plaintiff filed a motion to re-open on the ground that its counsel by inadvertence and oversight, as against the Greene Radio Shop and its component members, failed to introduce and have filed the documentary evidence that had been admitted as to Horn, including the account upon which sued; that if another opportunity were given this evidence would be introduced, etc. The court overruled the motion and properly so. The named documents were offered in evidence as against all defendants and the court specifically disallowed them except as to Horn, for the reason, inter alia, that “there has been no proof of the correctness of the statement”. Had the documents been re-offered further on during trial, as counsel said he intended doing, of course, the same objection and the same ruling would have been made.

In passing, we feel constrained to note that in studying this record we were without any assistance whatever from defendants’ counsel. No written brief was submitted by them. Regardless of this, the case has received at our hands the very best thought and consideration of which we are capable.

We do not believe plaintiff’s rights, if any it has, as against the Greene Radio Shop and the members thereof, under the Bulk Sales Law, should be now foreclosed. The judgment we now proceed to render will preserve to plaintiff the right to proceed against this partnership and its component members under said law.

So far as concerns Hamilton, the judgment is not now before us.

For the reasons herein assigned, the judgment insofar as it rejected the demand against Horn, is affirmed.

And, for said reasons, the judgment sustaining the exceptions of no cause and no right of action is set aside, and there is now judgment dismissing the suit as against the Greene Radio Shop and the members thereof as of non-suit. Costs of appeal are taxed against the plaintiff. Responsibility for payment of all other costs shall be as fixed by the lower court.


author: McBRIDE, Judge.

text:
    CENTRAL SURETY & INS. CORPORATION v. VAN TRIER et al.
    No. 18958.
    Court of Appeal of Louisiana. Orleans.
    May 10, 1948.
    Beard & Blue and C. E. Munden, III, all of New Orleans, for plaintiff and appellant.
    Curtis, Hall & .Foster and Gerard M. Dillon, all of New Orleans, for defendants and appellees.
   McBRIDE, Judge.

This is an action brought by plaintiff-appellant, Central Surety and Insurance Corporation, against defendants, Mrs. Charles J. Van Trier and her automobile liability insurer, National Surety Corporation, for the sum of $168.47. Plaintiff carried the workmen’s compensation insurance covering the employees of Dixie Machine Welding and Metal Works, of New Orleans. On May 22, 1947, Horace Blalce-sley, an employee of the welding and metal works, was injured in an accident, and the compensation insurer paid him the amount involved in this suit. Plaintiff seeks reimbursement from Mrs. Van Trier and her insurer, alleging that Blakesley’s injuries were caused through the negligent operation of an automobile by Mrs. Van Trier. Plaintiff pitches its claim on Sec. 7 of Act 20 of 1914, as amended, Dart’s Gen. Stat. Sec. 4397, which provides in substance that any employer having paid or become obligated to pay compensation under the provisions of the Workmen’s Compensation Act may bring suit against any third party by whose fault the occurrence giving rise to the claim for compensation was brought about, to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent, and on Sec. 23 of ■ the act, as amended, Dart’s Gen. Stat. See. 4412, which contains the proviso that a workmen’s compensation insurer is subrogated to all the rights and actions which the employer is entitled to under the Workmen’s Compensation Act.

After a trial on the merits in the lower court, plaintiff’s suit was dismissed, and it has taken this appeal from the judgment.

The place of business of the Dixie Machine Welding and Metal Works is located on the uptown-lake corner of Tchoupitoulas and Poeyfarre Streets, and the entrance is on Tchoupitoulas Street about 50 feet from Poeyfarre Street. About 20 feet inside the entrance there is a machine called a “planer” through which lumber is passed flatwise towards the front of the establishment. At the time of the accident a board three inches thick, eight inches in width, and 40 feet in length, weighing between 200 and 250 pounds was being passed through the machine at the rate of about 10 feet per minute, and all but a few inches had come out of the machine, and the end which had passed through protruded beyond the door, across the sidewalk and above the street. As it was necessary to support that portion of the board, three employees held it up. One Prechtl was standing inside the shop about 10 feet from the machine. The board was 7 feet out into Tchoupitoulas Street, and Sprague was standing near its end supporting it on his right shoulder, partly facing traffic coming up Tchoupitoulas Street. Blakesley, the employee who was injured, was standing in the street about three feet from the curb, with the board resting on his left shoulder, facing the planer.

While the board and the workman were in the positions above indicated, Mrs. Van Trier, who “wasn’t going very fast,” approached in her coupe automobile travelling in an uptown direction on Tchoupitoulas Street. Sprague states that when he first noticed her car it was a sufficient distance away to permit its driver to stop or “pull out further,” and that he gave the driver a “stop” signal which he described as “the regular traffic cop signal.” He states that Mrs. Van Trier paid no heed, but continued onward without altering her course.

The front part of the automobile passed safely, but the end of the board came into contact with the top rear part of the right door of the automobile and was pulled forward in the direction in which the car was travelling. It then became dislodged and swung back, striking Blakesley about the head and causing the injuries for which he was paid the compensation. Defendants are sought to be held liable on the ground that Mrs. Van Trier should have seen the moving board and stopped to have avoided striking it.

Sprague states that he gave no warning to Blakesley of the approaching automobile, nor did he give any signal to the operator of the planing machine. It is admitted that there was no red flag or other warning device placed on the end of the board, nor was there any barricade in the street to warn approaching traffic that it would be dangerous to pass around its end.

Mrs. Van Trier’s testimony is to the effect that she saw the piece of lumber, and also the men standing in the street. She noticed that Sprague was looking at her automobile, but she denies that he gave a signal, and it was her impression that the men intended to carry the lumber across the street and had stopped to await the passing of her automobile before proceeding. It is conceded that her automobile was moving slowly, and she stated that had she known the board was being propelled by a machine she could and would have stopped, but that not noticing or knowing of its movement she continued on her regular course, believing that she could safely pass. A passenger in the automobile also testified that she did not perceive the movement of the board.

It is true that Mrs. Van Trier, in attempting to pass, drove her automobile very close to the end of the board, but it is obvious that whereas the front part of the body of the car had passed without mishap, had the board not continued in motion the accident would not have resulted. Sprague testified that he did not expect the car to hit the board, or that it would strike the car. We cannot say that Mrs. Van Trier was guilty of negligence in connection with the accident. She was in a moving vehicle, and the slight motion of the board (one foot each six seconds) was not apparent to her, and she could not have been expected to possess knowledge that it was not stationary. Were it not for its movement, slight though it was, there never would have been contact between it and the automobile. If there was negligence, it is to be assessed not against Mrs. Van Trier, but against the employees of the Dixie Machine Welding and Metal Works, as their conduct was inexcusable in permitting the lumber to protrude into heavily trafficked Tchoupitoulas Street without a barricade or other warning to passing traffic.

In the alternative, the petition alleges that if the employees of the welding and metal works were guilty of negligence, nevertheless Mrs. Van Trier is responsible because she had the last clear chance of avoiding the accident. In support of this alternative plea, counsel has cited several cases wherein the last clear chance and the discovered peril doctrines were discussed and applied, but the cited cases are all dissimilar to the instant case, and can have no applicability. In most of them the drivers of automobiles were held liable for running down pedestrians. Of the cited cases the nearest, from a factual standpoint, is Streetman v. Andress Motor Company, La.App., 189 So. 321. In that case a truck driver was condemned of negligence for running into a ladder upon which plaintiff was standing, plaintiff being precipitated to the ground and suffering injuries. It was held that the immediate and proximate cause of the accident was the truck driver’s failure to stop his machine upon becoming aware of the presence of the ladder, or to otherwise avoid striking it.

But in the case before us, we are not dealing with an automobile having run into a stationary object. Moreover, the automobile did not run into anything; it was the other way around — -the board struck the automobile. Under the circumstances it would be unreasonable to say that Mrs. Van Trier is to be cast on the theory of the last clear chance doctrine, in attempting to pass a thing which she thought was stationary, and which she would have safely passed had it not been for a slow and, to her, an imperceptible movement of the thing.

Counsel for defendant has cited the case of Fatjo v. Boulet Transportation Company, 12 La.App. 50, 125 So. 178, 179, in which a truck hit some planks protruding over the curbing from a wooden walk or platform which had been constructed for the purpose of covering a freshly paved sidewalk, injuring the plaintiff. The driver of the truck was absolved from the charges of negligence, and the following observation made by the trial court, which was quoted in that case with approval by us, is interesting:

“The projection of the planking ten or twelve inches from the curb was such an unusual, unheard of and unforeseeable thing, that no duty was imposed on this negro to look out for projecting planks.
“ * * * he had no more reason to believe those planks were protruding there than he had to believe a bomb was placed ten inches from the curb of the gutter and he had to watch for that bomb.”

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: KENNON, Judge.

text:
    JOHNSON v. GRAHAM et al.
    No. 7104.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    Irion & Switzer, of Shreveport, for appellant.
    Morgan, Baker & Skeels, of Shreveport, for appellees.
   KENNON, Judge.

In an original and amended petition, Mrs. Dan H. Johnson sued Frank Graham, a real estate agent, the Central Surety and Insurance Corporation, as bondsman of Frank Graham, and J. H. Vise, asking for judgment, in solido, for $1,000, being the amount deposited by Vise with Graham as earnest money in connection with his offer to purchase plaintiff’s house and lot located at Municipal Number 533 Vine Street in the City of Shreveport, Louisiana.

The petitions set forth that the prospective purchaser deposited with defendant Graham $1,000 as earnest money and that notwithstanding plaintiff’s readiness and willingness to carry out her part of the contract, and notwithstanding the fact that defendant and prospective purchaser Vise and his family had moved into plaintiff’s premises, defendant Graham wrongfully returned the $1,000 earnest money to defendant Vise; that the defendant Vise, though informed that plaintiff desired to complete the contract and would herself make the loan to Vise' (which was the only impediment contained in the contract to prevent immediate performance by Vise), failed and refused to' comply with his obligations under the contract and received back the $1,000 from defendant Graham either in cash or by having same credited on the purchase of another house and lot.

The District Court sustained an exception of no cause of right of action as to all ■defendants and plaintiff has appealed.

The contract upon which the suit is based is letter-type in. form, addressed to the defendant Graham and signed by plaintiff as •owner and by defendant, J. H. Vise, as purchaser. Included in the contract are the following three paragraphs:

“For the above described property I offer to pay the total consideration of eleven' thousand, one hundred and no/100 dollars ,{$11,100.00) all cash, subject to my ability to secure a loan on the above described property in the amount of seven thousand, •one hundred and no/100 dollars ($7,100.00).'
■“I am to be given possession of said property not later than December 5, 1946.
“I hand you my check in the amount of :$1000.00 as earnest money and to show my .good faith. You are to cash this check and hold the funds pending the consummation •of this transaction' at which time, said funds .shall be applied to the purchase price of this property.”

The amended petition set forth that the loan referred to (in the above quoted paragraphs) was contemplated by the parties to be one “on the usual terms and conditions for what is known as FHA loans customarily obtained in the City of Shreveport, Louisiana for the financing of similar property, but did not require or contemplate said loan be made by any particular individual, partnership or corporation.”

The petitioner further set forth that Vise and his family moved into plaintiff’s house and in good faith applied for the loan and that after the Federal Housing Authority had approved the loan for the sum of only $6,000 instead of the $7,100 applied for, plaintiff offered -in a letter to Vise by registered mail to finance the loan herself in the amount of $7,100 “in exact accordance with the terms and at the same interest as contained in the application of said Vise to the Federal Housing Authority as aforesaid and as contemplated in said contract.”

The original contract to sell was dated November 18, 1946. The supplemental petition sets forth that on January 3, 1947, defendant Graham wrote to Vise informing him that the application had been approved only to the extent of $6,000 and asking him if he desired to pay $5,100 cash instead of $4,000 and that defendant Graham oil the same day wrote plaintiff asking her in the event Vise did not want to put up the additional $1,100, if she would carry a second mortgage for that amount.

This petition further sets forth that on January 6th defendant Graham wrote plaintiff that Vise would “close the deal” if she would accept the second mortgage for $1,-100. Two days later, defendant Graham sent a day letter telegram to plaintiff saying that Vise would not pay over $10,000; that plaintiff received the January 6th letter and the January 8th telegram on the same day at her temporary residence in Fort Smith, Arkansas; that on the night of January 8th she telephoned Mr. W. S. Cochran of Bossier City and requested him to contact defendant Graham and “find out what the conflicting messages really meant;” that on the morning of January 9th, Graham promised Cochran that he would “reinterview the said Vise in an effort to complete the transaction, and report back to the said Cochran;” that on January 10th defendant Graham informed Cochran that Vise did not desire to purchase the property and that Graham had returned the $1,000 earnest money; that on the same date Cochran telephoned Vise, who was at the time living and residing in plaintiff’s property which he was under contract to purchase, and was informed by Vise that defendant Graham had sold Vise another house in the City of Shreveport; that on January 13th plaintiff received at Fort Smith, Arkansas a letter from defendant Graham stating that he had returned the earnest money; that on January 21st plaintiff, after vainly attempting to persuade Vise to comply with the contract, “put the said Vise in default according to law by-mailing to him by registered mail in words and figures as follows, to-wit:

“ ‘I demand that you comply with our Contract of November 18th, 1946, by coming to the office of Richard H. Switzer, Notary Public, 914 Giddens-Lane Building, Shreveport, at 3 P.M. Friday, January 24th, for the purpose of completing the sale and purchase of the property described in said contract. You should bring with you the sum of $4,000.00 and the loan in the amount of $7,100.00 will be taken care of by me, the terms, interest, payments, etc. to be in accordance with your application to the F.H.A.’ ”

The District Court gave written reasons for his judgment sustaining the exception of no cause or right of action. He was of. the opinion that when the application made by Vise for a $7,100 loan resulted in its approval for only $6,000 that the contract was at an end and defendant Vise was entitled to the return of his money and that plaintiff’s offer above quoted to sell the property for $4,000 cash and carry the mortgage herself for $7,100 was an entirely new offer which the defendant did not have to accept and did not accept.

The learned District Judge in a written opinion denying application for rehearing, clarified his original memorandum by stating that the Court “held that the purchaser agreed to pay the seller $11,000.00 ALL cash for the property, provided the FHA, or other lending agency, would grant a loan of $7,100.00 on the property, and the failure of such agency to lend that amount, ended the contract, as the petition fails to show that any such loan on the property could be obtained. Hence the contract was at an end. The securing of a loan cn property from a third person is not the same as the seller carrying the unpaid purchase price as a mortgage on the property.”

We do not agree with the action of the District Court in sustaining the exception of no cause of action. The exception of no cause of action must be considered in the light of the averments of the petition and construed with the recitals of the documents made a part thereof. The only condition that kept it from being a plain and final contract was that the purchase was “subject to my ability to secure a loan on the above described property in the amount of $7,100.00.” This type of provision has been held by the Supreme Court as not being at potestative condition under Article 2024 of the Civil Code. Morrison v. Mioton et al., 163 La. 1065, 113 So. 456.

The attorneys for defendants have argued that since the amended petition sets forth that the loan was to have been made on the usual terms and conditions of an FHA loan, the turning down of the application by that agency had the effect of ending the contract. Paragraph three of the amended petition stated that the loan contemplated by the parties was to be made on the usual terms and conditions of FHA loans prevailing in the city of Shreveport for the financing of similar property, but did not state that the proviso in the contract applied exclusively to an FHA loan. It has been held by the Supreme Court of Louisiana that if a petition sets forth a state of facts consistent with a cause of action, same will not be -dismissed on exception of no cause of action because the language of the petition may also be interpreted to include a state of facts inconsistent with a cause of action. West v. Ray, 210 La. 25, 26 So.2d 221.

-The proviso that the contract was subject to the purchaser’s ability to secure a loan did not name any specific loan agency. The prospective purchaser, under the terms of the agreement, was living in the house he had agreed to purchase. The contract set no time limit in which the loan must be obtained, so that a fair interpretation of the contract attached to the petition and signed by the parties would be that the contract would be enforceable provided the purchaser could secure the $7,100 loan on usual terms and conditions and within a reasonable time. To maintain the exception of no cause of action on the ground that the purchaser’s inability to secure the contemplated loan had ended the contract, it would be necessary for the petition and annexed document to show that the purchaser had not secured the loan in the amount of $7,100 on the property and that same could not be secured in a reasonable time. We think that since the petition has set up that the owner herself had agreed to accept the purchaser’s $7,100 mortgage note, the facts alleged show a removal of the only impediment to the completion of the contract to purchase and therefore sets forth a cause of action.

The judgment appealed from is set aside. The exception of no cause or right of action is overruled and the case is remanded to the District Court for further proceedings in accordance with law. Cost9 of appeal to be paid by appellees; other costs to await the final outcome of the case.


text:
    BRITT v. MERRITT et al.
    No. 7170.

      Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    John P. Godfrey, of Many, for appellant.
    Fraser & Fraser and J. Reuel Boone, all of Many, for appellees.
   KENNON, Judge.

This is an action in damages by the widow and minor children of Warren M. Britt against the Sheriff of Sabine Parish, his official surety and one of his deputy sheriffs for the alleged wrongful death of Warren M. Britt at the hands of the defendant deputy sheriff while in the performance of an official act. The District Court maintained the exception of no cause or right of action filed on behalf of the sheriff and his surety. Plaintiff brings this appeal.

The petition sets forth that the defendant sheriff had been duly elected and qualified and that the defendant surety company had executed a bond guaranteeing the performance of his official acts and that the deputy responsible for Britt’s death was a duly appointed deputy sheriff acting in his official capacity as such and performing an official act authorized by law, but performing such official act in an improper, unfaithful and wrongful manner. A full description of the circumstances surrounding Britt’s death are contained in paragraphs 4, 5, 6, 7 and 8 of the petition, as quoted below:

“That for some time prior to March 30, 1947, Warren M. Britt had been suspected by Sheriff Phillips and his deputies, including the defendant C. C. Merritt of transporting whiskey which he had in his possession for sale contrary to law; that he was suspected of transporting; such unlawful whiskey in a Jeep which he habitually drove; that about two weeks prior to the aforesaid date the said Britt had been arrested and charged with possessing intoxicating liquors for sale, and the defendant C. C. Merritt was among the group of officers making the arrest; that said.Sheriff Phillips and Deputy Merritt had had numerous complaints that Britt was transporting unlawful liquor.
“That about Noon on or about the 30th. day of March, 1947, the said Britt drove his Jeep to the vicinity of Sabine River in the Pendleton Community of Sabine Parish, where Merritt was serving as a deputy sheriff, to the home of one Ivy Morris, a fisherman; that the said Merritt knowing of Britt’s presence there armed himself with a ten gauge shotgun and placed himself in a position near or behind a tree on the edge of the plain road along which Britt would have to pass on returning from the house of Ivy Morris.
“That as Britt approached in his Jeep Merritt stepped from behind or near the tree and ordered Britt to halt; that the purpose of Merritt in so doing was to search the vehicle of Britt for unlawful intoxicating liquors, which Britt was suspected of transporting, or to make other lawful investigation, and which act of searching said vehicle was lawful and within the implied and express orders and duties of his office as deputy sheriff. That upon Britt’s immediate failure to halt, Merritt fired one shot from said shotgun over the head of Britt, and fired another into the right front seat of the Jeep; and after Britt had passed the tree near or behind which Merritt was standing and was approximately twenty feet beyond the place where he met Merritt, Merritt fired a third shot from the shotgun, striking Britt, who at this time had his back squarely turned to Merritt, in the back of the head and in the back. That the load from the shotgun was a mixed load of squirrel and buck shot; that it caused the said Britt serious shock and loss of blood, from which as a natural consequence and proximate result he died on April 1st; 1947. That at the time of the shooting the said Britt was unarmed and there was no weapon in said vehicle.
“That the said Jeep continued on from the scene of the shooting, striking and stopping against some sweet gum trees; that the said Merritt then walked to the Jeep where Britt was groaning with pain and in a seriously wounded condition, observed the helpless state and condition of Britt which he had caused, and refused and neglected to render him assistance or to take him to a doctor; that the said Merritt walked on past the said Jeep and reported to a certain neighbor what he had done; that later Merritt retraced his steps past the said Jeep still failing, neglecting and refusing to render aid and assistance, but instead went to his (Merritt’s) home about two hundred yards away, got in his truck, again passed the wounded and suffering Britt and drove about eighteen miles to the home of the defendant, Sheriff Phillips, where he reported that he had had to shoot Britt to stop him.
“That it was approximately two hours after the shooting above referred to that Britt was removed from the Jeep and carried to the hospital in Many, Louisiana, where he died on April 1st., 1947, after suffering prolonged physical agony, mental pain and anguish, loss of blood and shock, all the natural and proximate consequences of the unfaithful, improper, and wrongful carrying out of an official act on the part of the said Merritt, acting in his official capacity as deputy sheriff of the defendant Sheriff Phillips, and to the damage of the said Britt and his surviving widow and minor heirs as hereinafter set forth.”

Briefs for plaintiff and defendants cite the same cases, five in number, which deal with the liability of a sheriff and his bondsman for the acts of a deputy.

In the case of McVea v. Day, 6 La.App. 382, the plaintiff sought to hold the sheriff and the surety liable for damages inflicted on plaintiff’s car by the alleged negligence of a deputy sheriff who was in his automobile on his way to investigate suspected violations of the law.- In maintaining the-exception of no cause or right of action,, the First Circuit Court of Appeal stated that in order for the sheriff and his surety to be liable, the wrong must have been committed while in the actual performance of an official act and must have resulted from the manner in which such official act was performed, and concluded that in traveling or going to a place where an official act is to be performed, the manner in which a deputy travels is not a part of the official act.

The McVea opinion indicates that the exception would have been overruled had the petitioner alleged that the wrong had been done while in the actual performance of an official act, provided the wrong arose out of and was directly connected with the official act and resulted from the manner in which such official act was performed.

In the case of Bolton v. Sevario et al., La.App., 25 So.2d 115, the sheriff and his surety were sued for the damages caused by an alleged wrongful assault by a deputy sheriff on a fellow patron at a night club. The Court noted that the petitioner did not allege that the deputy was attempting to arrest the plaintiff, but, on the contrary, alleged that plaintiff was struck from behind by the deputy without warning and was shot without knowing who was his assailant. This case is different from the one before us in that the exception of the sheriff and his bondsman was sustained because of the failure of the petition as a whole to set forth that the deputy, at the time he inflicted the injury, was on duty as a deputy and engaged in the performance of an official act.

In the case of Sanders v. Humphries et al., 143 La. 43, 78 So. 168, 169, the Supreme Court sustained the dismissal of a suit against the sheriff and the surety on his official bond for damages resulting from the reckless assault and shooting by a deputy sheriff. There the Court noted that the petition included the allegation that the assault and shooting by the deputy “were done maliciously,” noting that the allegation that the reckless assault occurred while the deputy was on duty and acting as the deputy sheriff is not the same as to say “that the acts were done in violation or in an unfaithful or improper performance of an official act.”

The present case is distinguishable from the Sanders case in that nowhere in the petition before us is it alleged that the act of the deputy sheriff complained of was malicious or done with any other purpose than the stopping of the deceased for the purpose of making the proposed lawful search.

The case of Rhodes v. Jordan, Sheriff, et al., La.App., 157 So. 811, was a suit against the sheriff and the company carrying public liability insurance on the automobile in which the deputy was traveling. The case was decided on the point that the bond was issued to cover liability on the car driven by the deputy sheriff and the Court in holding the company liable did not necessarily set a precedent upon which to hold the surety liable for alleged negligence in the performance of official acts by a deputy.

The case of Gray v. De Bretton et al., La.App., 184 So. 390, 394, was another automobile case. No automobile insurance policy was involved. The Court held that the sheriff and the surety on his official bond were not liable for injuries to pedestrians struck by the sheriff’s automobile as a result of his deputy’s negligent operation thereof while conveying a prisoner to jail. The Court observed that the deputy sheriff, even though engaged in carrying a prisoner to jail, owed to pedestrians using the highway the same duty he would have owed them had he been driving the car for his own personal business or for his own pleasure, making the distinction that as between him and the prisoner whom he had in charge, the deputy was performing an official act, but as between him and pedestrians on the highway, he was negligently driving a car the same as any other motorist might negligently drive and cause injury. The Court made the further distinction between the acts of the deputy toward a prisoner and toward the public by stating:

“If the situation had been that the deputy was walking along the street with his prisoner in charge, and for some reason personal to the deputy, he had struck a bystander with his hand or pistol, it could not be said that such an unlawful act on his part was done in the discharge of an official act. But, on the contrary, had he struck the prisoner, when there was no need for it, obviously his conduct in so doing would have been the violation of an official duty, a misfeasance for which the sheriff and his surety would have been liable.”

A statement of the general rule of liability in such cases as the one before us is found in the syllabus to the opinion of Chief Justice O’Niell in the case of Sanders v. Humphries et al., 143 La. 43, 78 So. 168:

“A sheriff is not liable, nor is the surety on his official bopd liable, in damages for personal injuries to a citizen, inflicted recklessly by a deputy sheriff, unless it was done in violation of an official duty or in an unfaithful or improper performance of an official act.” (Italics ours.)

In the case before us, the petition — all allegations of which must be accepted as true for the purpose of this exception — sets forth that Britt’s death occurred as a result of the deputy’s exercise of bad judgment in the execution of his alleged purpose to stop Britt’s vehicle and search same for unlawfully possessed intoxicating liquors. If the allegations of the above quoted paragraphs are accepted as true, it is logical to conclude that Britt’s death occurred through a gross violation of common sense rules of law enforcement and therefore came as the result of “an improper performance of an official act.” Under these circumstances, the sheriff and his surety are responsible.

The judgment appealed from is reversed and the case is remanded to the District Court for further proceedings in accordance with law. Costs of appeal to be paid by appellees. Other costs to await the final outcome of the case.


author: McCALEB, Justice.

text:
    213 La. 635
    DONNELLY v. DATUSCH. DATUSCH v. DONNELLY.
    No. 38362.
    Supreme Court of Louisiana.
    April 26, 1948.
    Casey, Babin & Casey, and A. F. Babin, Jr., all of New Orleans, for plaintiff and appellant.
    James G. Schillin, of New Orleans, for appellee.
   McCALEB, Justice.

Joseph Kenner Donnelly, Jr., and Thais R. Datusch were married on August 2, 1939, and established a matrimonial domicile in the city of New Orleans where their child, Barbara Ann, was born, on May 27, 1940. On July 8, 1941, Mrs. Donnelly left her husband, taking, her child with her, and returned to the home, of her parents where she and the child have lived ever since. In August 1942, Donnelly joined the United States Navy and was. thereafter stationed away from New Orleans from November 1942 until -August 1944. On his return to New Orleans, he did not become reconciled with his wife and they continued to live separate and apart.

On August 23, 1945, Donnelly, filed suit against his wife for a divorce on the ground of adultery, charging that she had committed the act with an officer of the' New Orleans Police Force on April 21, 1945, and again on. August 1, 1945, at a tourist court in Jefferson Parish. He also sought the custody of the minor child.

In due course, Mrs. Donnelly answered and specifically denied the charge of adultery. At the same time, she filed a separate suit for divorce under Act No. 430 of 1938, based upon the admitted separation since 1941. She further prayed that she be awarded thé.permanent custody of the child.

In answer to his wife’s suit for divorce, Donnelly admitted the pertinent allegations thereof but alleged that his wife was unfit to have custody of the child. By way of re-convention he reiterated, the..charges of adultery contained in his suit against her, praying that he be awarded a divorce and that he be given the care of the child.

At Donnelly’s request, the cases were consolidated for all purposes. After a hearing, there was judgment in favor of .Mrs. Don-nelly granting her a divorce under Act No. 430 of 1938 and awarding her custody of the child. Donnelly’s demands were rejected and he has appealed.

The initial complaint of Donnelly in this Court is that the trial judge erred in holding that he had failed to prove with legal certainty that his wife was guilty of adultery on the two occasions charged in his petition. And he asks us to reverse the judgment in favor of Mrs. Donnelly; to grant him a divorce on the ground of adultery and to award him custody of the minor child.

Inasmuch as the parties to the marriage had admittedly been living separate and apart for nearly four years at the time the suit was filed, the judgment in favor of Mrs. Donnelly for a divorce under Act No. 430 of 1938 is unquestionably correct. This being true, wri would not disturb it on appeal, even if we entertained doubt as to the judge’s decision on the husband’s suit since it is perfectly obvious that the underlying purpose for the action charging adultery was to obtain the custody of the child. Hence, the evidence submitted below relative to the charge of adultery is properly-considered only in connection with the husband’s claim that his wife is an unfit person to retain custody of the child.

As mother and successful suitor for divorce, Mrs. Donnelly would, under ordinary circumstances, be entitled to the custody of her child. Article 157 of the Civil Code provides:

“In all cases of separation and of divorce the children shall be placed under the care of the party who shall have' obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party * *

By amending this article in 1921 to read as above set forth our lawmakers adopted the policy that, in all divorce cases, the prim’áry consideration with relation to custody is th'e welfare of the child. The jurisprudence of this court has given full effect to the underlying purpose of the amendment to the Article. See the recent cases of Black v. Black, 205 La. 861, 18 So.2d 321; White v. Broussard, 206 La. 25, 18 So.2d 641, and Willis v. Willis, 209 La. 205, 24 So.2d 378, where it was decided that, in matters involving children of tender years, it is to their greater advantage that they be placed in the custody of their mother, unless she is found to be unfit.

. The issue, therefore, to be determined here is whether it is to the greater advantage of the little girl that she remain with her "mother. The facts of the case reveal that the child has been in ,the custody of her mother since the separation of the spouses in 1941, or since she was a year old. The mother and child live in a five room house with Mrs. ‘ Donnelly’s mother and father, occupying one of the two available bedrooms. There is not the .slightest suggestion that the child is not well cared for and 'happy and thát the environment in which she lives is not refined in every respect.

On the other hand, the husband concedes that he, himself,'is not in a position to take care of the child.' He proposes to have her placed in charge of his mother, Mrs. Josephine .Donnelly,, who testified that she is willing to assist in caring for the little girl. However, it is shown -that the Donnelly house consists off five rooms, two of which are used: as bedrooms and that, besides Donnelly, his mother and father, his sister and niece live in the house. Under the circumstances, it is plain that the addition of the little girl to the overcrowded household would not be to her best interests.

Of course, the conditions existing in the husband’s household would riot be a sufficient reason to deny him custody of the child if it appeared that the mother, by reason of immorality,'was a detriment to the child’s welfare. But a perusal of the record does not convince us that Mrs. Donnelly is an immoral woman. The evidence relative to the, charge of adultery is in conflict and it would serve no useful purpose to discuss it here. Suffice it to say that we are satisfied that it is to the greater advantage of the child that she be entrusted to the care of her mother.

The judgment appealed from is affirmed.

       In his petition he alleged that he and his wife had been living separate and apart since 1941 and, if he had elected to do so, he could have obtained a divorce from her under the two year separation law. 1 Instead, he preferred to seek a divorce for a cause which he was bound to assume would be vigorously contested and which should not be considered where the other party is praying for a dissolution of the marriage on the ground of an admitted two year separation. -

       See Act No. 38 of Í921, again amended by Act No. 74 of 1924, by adding a clause not pertinent to this case.


author: PONDER, Justice.

text:
    213 La. 641
    STATE ex rel. DIEHL v. DUCOTE.
    No. 38819.
    Supreme Court of Louisiana.
    March 22, 1948.
    Edward G. Gillin, of New Orleans, for defendant-relator.
    Maxwell J. Bordelon, of Marks-ville, for respondent.
   PONDER, Justice.

This matter comes to us on writs of certiorari, mandamus and prohibition.

The respondent divorced the relator in the Parish of Avoyelles on February 2, 1945,' on the grounds that they had lived separate and apart for more than two years. The custody of their minor child,. Annie Marie Ducote, was awarded to the respondent. The relator, having subsequently remarried and established a domicile in the Parish of Orleans, instituted habeas corpus proceedings in the Parish of Avoyelles seeking to obtain the custody of the child. Upon hearing of these proceedings, .the permanent custody of the-minor child was awarded to the relator,, subject to the privilege of the respondent to visit and Ííave temporary custody of the child at convenient times and without interference with the child’s education. Sometime thereafter the respondent instituted the present habeas corpus and contempt proceedings in the Parish of Avoy-elles seeking to regain the custody of the child and to have the relator adjudged in contempt of court. The original record in these proceedings, brought up by cer-tiorari, contains only the respondent’s petition, the order of court and a judgment awarding the permanent custody of the child to the respondent. The relator applied for and obtained the exercise of the supervisory powers of this court.

The relator contends that the judgment should be annulled for the reason that citation and service of the proceedings-were not made in conformity with law and that the judgment was rendered without giving her a hearing. She advances other grounds for relief. The trial judge has filed a statement of facts since we ordered this case brought up. Without going into his statement in detail, it is sufficient to say that it was his purpose to award the custody of the child on the basis of six months to the father and si-x months to the mother, in order to give the child sufficient time to determine with whom she wished to live.

We see no reason to go into the various disputes raised -in these proceedings for the reason that the judgment must be set aside and the custody of the child awarded to its mother because the mother’s fitness is not questioned and no sound reason appears why it would be to the best interest of the child to deprive the mother of its custody.

It is so well settled in the jurisprudence of this State that the mother of a child "of tender age is entitled to its custody, unless the mother is unfit or it appears to the greater welfare of the child to place its custody elsewhere, that it is unnecessary to review our jurisprudence to that effect.

For the reasons assigned, the judgment of the lower court is annulled and set aside. It is now ordered that the permanent custody of the minor child, Annie Marie Ducote, be awarded to the respondent, Cora Mae Avery Diehl. All costs of these proceedings, to be paid by the respondent, Moise Ducote.


text:
    213 La. 644
    TRIMBLE v. EMPLOYERS MUT. CASUALTY CO.
    No. 38886.
    Supreme Court of Louisiana.
    April 26, 1948.
    Samuel M. Robertson, of Baton Rouge, for applicant.
    Durrett & Hardin, of Baton Rouge, for respondent.
   McCALEB, Justice.

On February 16th 1948, we, refused to consider the petition of applicant, Joseph Trimble, for certiorari or writ of review to the Court of Appeal for the First Circuit, 32 So.2d' 479, on the ground that the application was not timely filed — that is, within thirty days after his petition for rehearing had been refused by the Court of Appeal, as prescribed by Section 11 of Article 7 of the Constitution.

Thereafter, on February 24th, 1948, .applicant requested that we reconsider our refusal to consider his application for the reason that his attorney did not receive official notice from the Court of Appeal of the refusal of a rehearing until January 3rd, 1948 and that, therefore, the application for the writ to this court was in due time as the thirty day delay prescribed by Section 11 of Article 7 of the Constitution did not begin to run until after the date of service ■ upon his attorney of the notice from the Court of Appeal that a rehearing had been denied, as provided by Section 24 of Article 7 of the Constitution.

Taking cognizance of our decision in the case of Morning Star Baptist Church v. Martina, ISO La. 951, 91 So. 404, which sustains the contention of applicant, we issued a rule for the respondent, Employers Mutual Casualty Company, to show cause why the application for the writ should not be considered. Respondent appeared on the return day and filed a brief in opposition to the rule and the matter has been submitted for our decision.

The sole question is whether the delay accorded to applicants for writs of certior-ari to the Courts of Appeal by Section 11 of Article 7 of the Constitution begins to run on the day after a rehearing has been refused by the Court of Appeal or from the day applicant or his counsel of record receives notice from the Court of Appeal that the petition for rehearing has been denied.

Section 11 of Article 7 of the Constitution declares that it shall be competent for this court to require, by writ of certiorari, any case to be certified from the Courts of Appeal for review “ * * * provided, however, that the Supreme Court shall in no case exercise the power conferred by this Article unless the application shall have been made to the court or to one of the justices thereof within thirty days after a rehearing shall have been refused by the Court of Appeal; * * * ”.

This proviso is positive and explicit; it enjoins this court from entertaining applications for writs of certiorari to the Courts of Appeal unless they are filed within the time prescribed.

Other than the case of Morning Star Baptist chu'rch v. Martina, supra, it has been uniformly held in a long line of cases that the delay for taking writs to the Courts of Appeal commences to run from the date on which final action is taken by the Court of Appeal and not from the date on which the applicant or his counsel is notified of such action.

Article 101 of the Constitution of 1898 and the corresponding article of the Constitution of 1913 denied to this court the right to issue a writ of certiorari or review to the Courts of Appeal “unless the application be made * * * not later than thirty days after the decision of the Court of Appeal has been rendered and entered.”

In Evangeline Oil Co. v. Trahan, 1910, 126 La. 243, 52 So. 388, the court cited with approval, the cases of Rimmer v. Jones Bros., 117 La. 910, 42 So. 421 and Landry v. Ramos, 124 La. 599, 50 So. 593, wherein it had been held that the delay provided in Article 101 of the Constitution of 1898 began to run after the final decision of the Court of Appeal had been noted on the minutes or after refusal of an application for a rehearing, and declared that the time elapsing between the date the rehearing was refused and the date upon which the attorneys for the applicant were given notice of such refusal “cannot be considered in calculating the delay within which the application must he filed.”

Again, in P. W. Holliday & Sons v. Joffrion, 1914, 134 La. 843, 64 So. 793, 795, the court, in considering the jurisdiction conferred upon it to issue writs of review to the Courts of Appeal and in disposing of the plea of applicant’s attorney that his failure to file the application timely was chargeable to the neglect of the clerk of the Cou'rt of Appeal to give him notice, observed:

“At all events, whatever may be the hardship, the Constitution has declared that this court ‘shall, in no case,’ issue a writ for the review of- a judgment of a Court of Appeal, unless the application therefor be made not later than 30 days after the rendition and entry of the judgment; and we do not feel that we should have jurisdiction to issue such a writ after the expiration of that delay.”

To the same effect is W. J. Martinez & Bros. v. Murray, 149 La. 982, 90 So. 366, where it was held that, under Section 11 of Article 7 of the Constitution of 1921, the court could not entertain an application for a writ of certiorari or review to the Court of Appeal unless the application is made within thirty days after the refusal of a rehearing by the Court of Appeal.

The Martinez case was decided on January 2nd, 1922. However, less than three months thereafter, on March 20th, 1922, the court, in Morning Star Baptist Church v. Martina, supra, came to an absolutely diametrical conclusion (without citation of the jurisprudence) and held that, because Section 24 of Article 7 of the Constitution, which applies to the Courts of Appeal, provided that notice of all judgments shall be given to counsel of record and that no delays shall run until such notice shall have been given, the thirty days delay for applying for writs begins to run from the date applicant’s counsel received notice of the denial of a rehearing and not from the day following the denial of a rehearing by the Court of Appeal, as provided by Section 11 of Article 7. The rationale of the decision is that Section 24 of Article 7 is to be read in connection with Section 11 and that, by so doing, the former must be considered as modifying the latter.

Our opinion is that the reasoning of the court in the Morning Star case is not sound. The provisions of Section 11 of Article 7 are perfectly clear and there is no reason to suppose that the framers of the Constitution intended that it should be modified by Section 24 which has application only to the time and manner in whjch judgments of the Courts of Appeal shall become final. We therefore cannot adhere to that decision and specifically overrule it.

The rule heretofore issued is discharged .at the cost of applicant.

       A rehearing was refused by the Court of Appeal on December 30th, 1947 and the application for the writ was filed on January 30th, 1948.

       It has been held, however, that the provision is without application to cases in which the applicant is without right to apply for a rehearing from a final judgment of the Court of Appeal. In such an instance, the application must be filed within 30. days from the date of the adverse decree. See Luckett & Hunter v. Texas & P. R. Co., 161 La. 175, 108 So. 405.


text:
    213 La. 650
    David THOMAS v. MARYLAND CASUALTY COMPANY.
    No. 38887.
    Supreme Court of Louisiana.
    April 26, 1948.
    Samuel M. Robertson, of Baton Rouge, ■for applicant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge,' for' respondent. : • '
   McCALEB, Justice.

The facts upon which the' rule was' issued in this case á're, identical with those in the matter of Trimble v. Employers Mutual Casualty Co., - La. -, 35 So.2d 416, and it was consolidated and submitted for our decision with that case.

■For the reasons given in the Trimble case, the rule issued herein is discharged at applicant’s cost.


author: O’NIELL, Chief Justice.

text:
    213 La. 651
    WHITTEN v. MONKHOUSE.
    No. 38539.
    Supreme Court of Louisiana.
    April 26, 1948.
    Dickson & Denny, of Shreveport, for applicant.
    'Robert J. Newson, of Shreveport, for respondent. ' ‘ .
   O’NIELL, Chief Justice.

The only question at issue in' this case concerns the date from which the interest at the rate‘of 5% shall be allowed on the amount of the judgment rendered by the court of appeal.

The plaintiff sued for $794.00 for an alleged breach of contract of warranty in a deed by which the defendant sold him certain property. The district court rejected the plaintiff’s demand, but on appeal to the court of appeal the judgment was reversed and a judgment was rendered in favor ■ of the plaintiff for $294.00 with legal interest from May 27, 1929. 29 So.2d 800. That is the date on which the warranty deed was delivered by the defendant to the plaintiff. The defendant applied to this court for a writ of certiorari and review, complaining not only of being condemned to pay the principal sum of $294.00 but also of being condemned to pay interest for so long a period as that for which the interest was allowed by the court of appeal. This court granted the writ of certiorari and review, but expressly limited it to a consideration of the date from which the interest should be allowed. In granting the writ we stated that limitation and stated that in other respects the judgment of the court of appeal was correct.

In his petition to the district court the plaintiff averred that he was entitled to legal interest “from the date of judicial demand”; which date was December 4, 1945. In the prayer of his petition he prayed for interest at '5% but did not repeat the date' from which the interest should be computed. The defendant invokes now article 553 of the Code of Practice, which declares that interest shall not be allowed on a judgment for a sum of money unless the interest is expressly claimed. The defendant’s argument is that the claiming of the interest in the prayer of the plaintiff’s petition in this case was not sufficient because he did not state the date from which he claimed the interest. Our opinion is that that part of the prayer of the petition in which the plaintiff claimed interest at' 5% per annum should be read in connection with his allegation that he was entitled to legal interest from the date of judicial demand. Hence we hold that the claim or prayer was for legal interest from the date of judicial demand, and was a sufficient claim to entitle' the plaintiff to the interest from that date; which date was December 4, 1945. The prayer, however, could not justify the allowance of interest from May 27, 1929, or from any other date earlier than the date of judicial demand.

The judgment of the court of appeal is amended by allowing the plaintiff interest on the amount of his judgment, $294.00, at 5% per annum from the date of judicial demand, that is, from December 4, 1945; in other respects the judgment of the court of appeal stands affirmed. The costs incurred in this proceeding in the Supreme Court are to be borne by the plaintiff; all other costs are to be borne by the defendant.


text:
    213 La. 654
    VILLA v. LACOSTE et al.
    No. 38311.
    Supreme Court of Louisiana.
    April 26, 1948.

      Benjamin Washastrom, of New Orleans, for plaintiff and appellant.
    Niels F. Hertz and E. B. Charbonnet, Jr., both of New Orleans, for Mrs. Josephine Lacoste Villa, defendant and appellee.
    Guy J. D’Antonio, of New Orleans, for Charles Stephen Villa, defendant and ap-pellee.
   McCALEB, Justice.

Charles Stephen Villa and Josephine La-coste were married in the Parish of St. Bernard on Pebruáry 11th, 1939. They established a matrimonial domicile in the city of New Orleans where their son, Charles Stephen Villa, Jr., was born on July 14th, 1941. O'n January 21st, 1946, Villa filed this suit against his wife to annul the marriage on the ground that she is a Negro. He also joined the minor (who is represented by a tutor ad hoc) as a defendant and seeks to disclaim the paternity and legitimacy of his offspring because of the alleged nullity of the marriage.

■ After, a hearing in the court below, there was judgment dismissing plaintiff’s suit.He has app'ealed.

The demand is founded upon recitals contained in the recordation of the births of plaintiff’s wife and child by Mrs. Catherine Lacoste, mother of the wife and grandmother of the child. A certified copy of the recordation of the birth of the wife rev.eals that,, on January 9th, 1913, Mrs. Catherine Lacoste , appeared before the Deputy Recorder of Births, Marriages and Deaths for the City of New Orleans and declared that, a female child named “Josephine Lacoste (colored)” was born to her at her home in New Orleans on November 3rd, 1912. The certificate of rec-ordation of the birth of the child discloses that Mrs. Catherine Lacoste appeared before the said Recorder on July 23rd, 1941 and declared that a male child named “Charles Stephen Villa (col.)” was born on July 14th, 1941 to Josephine Lacoste at Touro Infirmary.

The defense concedes that Mrs. Catherine Lacoste registered her daughter and grandchild as colored. But it is maintained that she did so under the erroneous belief that persons of Filipino extraction are colored, resulting from information given her at the office of the Recorder of Births, Marriages and Deaths and that, as a matter of fact, neither the defendant wife nor child is colored in the sense that they are Negroes or have any Negro blood in their veins. In support of this contention, numerous witnesses were produced and the District Judge, after hearing them testify, remarked at the close of the case:

“The recordation of two of the persons involved in this suit as colored has been explained to my satisfaction and there .is nothing in the evidence to indicate that there was ever any Negro blood in the family of either the plaintiff or the defendant. The only color involved at all is that of the Filipino. While the plaintiff had made out a prima facie case by introducing the records, the defendant has explained those records with reasonable certainty, * *

Accordingly, the question presented for decision is purely one of fact. The record discloses that the defendant wife is the issue of Leopold (Paul) Lacoste and Catherine Azago. Two other children, Paul and Oliver M. Lacoste, were born of the marriage and were registered as white by a doctor and midwife, respectively. The family has always been considered white; the defendant wife and her brothers attended white schools and have associated exclusively with white people. The father, Leopold Lacoste, is shown to be a Frenchman and this fact is not contested. In substance, the complaint is that the mother, Catherine Azago Lacoste, is a Negro and this is founded on the presumption' arising from the fact that she registered her daughter and grandson as colored rather than upon proof that she is a colored woman. But the evidence shows that her mother was Mary Louise Caruso, a white woman and her father, Manuel Azago, was a Filipino. He, according to the testimony of an old friend, Raymond Cabilash (a Filipino 86 years old), came to this country as a young man from the Phillip-ine Islands, being a native of Hocos and a “Blanco Filipino”.

. Thus, the proof submitted by the defense is ample- to overcome the prima facie case, see Section 4 of Act No. 60 of 1914, Dart’s General Statutes, Section 3478; Sunseri v. Cassagne, 191 La. 209, 185 So. 1, resulting from the designation of plaintiff’s wife and child as colored upon the records of the office of the Recorder of Births, Marriages and Deaths for the City of New Orleans. But, more than this, the testimony of Mrs. Catherine Lacoste leaves no doubt that the designations are incorrect and that they emanated from her erroneous belief that Filipinos were colored people. She states that she was informed by the Retorder’s office (Mr. Lanauze was Deputy Recorder when the wife’s birth was recorded and Mr. Prud-homme held the position when the child’s birth was recorded) at the time she registered the births that if she was a Filipino the persons should be recorded as “colored”.

Mr. Prudhomme, the Deputy Recorder, stated that Mr. Lanauze, his predecessor, would always record Filipinos as “colored” and that he would not record them as Filipinos unless they insisted on being registered as white.

Counsel for plaintiff is vehement in his criticism of the evidence submitted by defendants, proclaiming that it is evasive, confusing and contradictory and he argues that the defense has failed to produce sufficient proof to overcome the prima facie case resulting from the erroneous racial designation contained in the birth certificates. And he views disparagingly the testimony of Mrs. Catherine Lacoste, suggesting that she had “strong reasons” for registering her daughter and grandson as colored.

Our reaction to the testimony of Mrs. Catherine Lacoste is in direct contrast with that of counsel for plaintiff. She is a simple, uneducated woman (a third grade grammar school education) - and we see no reason to question’the truth of her explanation that she believed that Filipinos were colored people or that the Deputy Recorder of Births, Marriages and Deaths for‘the City of New Orleans informed her that such was the case.

The same may be said of the other witnesses produced by the defense. While it is true that there are some inconsistencies in their testimony, they are of a minor natu're and have no effect upon their veracity. After all, the judge of the District' Court saw them and heard them testify. He believed them and we not only fail to detect error in his conclusion but think it eminently sound.

Since submission for our decision, plaintiff’s counsel has filed a motion to remand the case to the District Court for the purpose of introducing in evidence a certificate showing, that Paul Henry Lanauze, the former Deputy Registrar of Births, Marriages and Deaths for the City of New Orleans, died on June 27th, 1940. Counsel states that he only learned of the death of Mr. Lanauze since the argument of the case in this court.

We fail to see how proof of the death of Mr. Lanauze in 1940 would affect the result. Indeed, Mr. Prudhomme testified at the trial that Mr. Lanauze was dead and we have no doubt that the District Judge was well aware of this fact.

The judgment appealed from is affirmed.

       Marriages between white persons and Negroes are forbidden by Article 94 of the Civil Code and are subject to impeachment under Article 113.

       Ilocos, according to the World" Atlas, is a northern province of the Island of Luzon.