author: O’NIELL, Chief Justice. HAWTHORNE, Justice

text:
    213 La. 158
    STATE v. ENGLERTH.
    No. 38663.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.
    Dissenting Opinion Feb. 17, 1948.
    Warren Hunt, of Rayville, D. W. Gibson, of Harrisburg, and Jno. C. Morris, Jr., of Rayville, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jesse C. McGee, Dist. Atty., of Harrisburg, and S. R. Thomas, of Natchitoches, for plaintiff-ap-pellee.
   O’NIELL, Chief Justice.

The question in this case is whether a person on trial for the crime of aggravated battery, as defined in article 34 of the Criminal Code, is entitled to have the judge charge the jury that a verdict of guilty of negligent injuring, as defined in article 39, would be a responsive verdict.

The defendant, appellant, was prosecuted under an indictment charging that he did commit an aggravated battery upon the party named in the indictment by shooting and wounding him with a dangerous weapon — a pistol. On the trial of the case the attorney for the defendant made a timely request of the judge to instruct the jury on the law of negligent injuring, as defined in article 39 of the Criminal Code, and especially to charge the jury that a verdict of guilty of negligent injuring would be a responsive verdict. The judge refused to give the instruction, and the. attorney for the defendant reserved a bill of exception. The defendant .was found guilty as charged and was sentenced to a term of three years imprisonment in the penitentiary.

Article S of the Criminal Code provides that an offender who commits an offense which includes all of the elements of other lesser offenses may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses, and that, in such a case, where the offender is prosecuted for the greater offense, he may be convicted of any one of the lesser and included offenses. Article 406 of the Code of Criminal Procedure also provides that, when the crime charged includes another of lesser grade, a Verdict of guilty of the lesser crime 'is responsive to the indictment, and that it is of no moment that the greater offense is a felony and the lesser a misdemeanor.

Accordingly, article 386 of the Code of Criminal Procedure provides that, whenever the indictment sets out an offense including other offenses of less magnitude or gradé, the judge shall charge the jury the law<- applicable to all offenses of which the accused could be found guilty under the indictment, and that in all trials for murder fhe jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide.

The question in this case therefore is whether the crime of negligent injuring, as defined in article 39 of the Criminal Code, is included as an offense of less magnitude in an indictment for the crime of aggravated battery, as defined in article 34.

Article 33 of the Criminal Code defines battery as the intentional use of force or violence upon the person of another. Article 34 defines aggravated battery as a battery committed with a dangerous weapon, and prescribes the penalty as imprisonment, with or without hard labor, for not more than ten years. Analyzing the two articles, therefore, aggravated battery consists of the intentional use of force or violence, with a dangerous weapon, upon the person of another.

Article 39 of the Criminal Code defines negligent injuring as the inflicting of any injury upon the person of another by criminal negligence, and prescribes the penalty as a fine not exceeding one thousand dollars, or imprisonment for a term not exceeding one year, or both.

Article 12 of the Criminal Code defines criminal negligence as existing when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

The issue in this case therefore is narrowed down to the question whether the crime with which the defendant was charged, that is, aggravated battery, includes all of the elements of the lesser offense, which is defined as negligent injuring; and that question depends upon whether a personal injury inflicted upon another by criminal negligence is merely a lower grade of the offense of intentionally using force or violence upon the person of another. The distinction between the two offenses is that in the case of battery, either simple or aggravated battery, the personal injury is inflicted with criminal intent, whereas, in the case of negligent injuring, the personal injury is inflicted by criminal negligence.

Our conclusion is that a personal injury inflicted by criminal negligence is merely a lower grade or degree of the same offense' that is committed when a personal injury is inflicted intentionally. This conclusion is borne out by the definition of criminal negligence as given in article 12 of the Criminal Code. And the conclusion is strengthened by the fact that the crime of battery, either simple or aggravated, and the crime of negligent injuring are dealt with in the same chapter of the Criminal Code, that is, Chapter II, entitled “Assault and Battery (with Related Offenses)”, which chapter is in Title II, dealing with “Offenses Against the Person.” And our ruling in this case is in harmony with the example given in article 386 of the Code of Criminal Procedure, that in all trials for murder the jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide. An analogy appears in State v. Stanford, 204 La. 439, 15 So.2d 817, where it was held that in a prosecution for manslaughter a verdict of guilty of negligent homicide was a responsive verdict.

The record in this case contains a motion for a new trial, founded upon complaints of misconduct of the jury, and contains considerable evidence taken on the trial of the motion. It appears that a bill of exception was taken to the overruling of the motion but we do not find such a formal bill of exceptions in the record. That is a matter of no importance, however, since we have concluded that the verdict and sentence must be set aside and the case remanded for a new trial.

The verdict and sentence are annulled and the case is ordered remanded to the district court for a new trial.

HAMITER and HAWTHORNE, JJ., dissent.

BOND, J., absent.

HAWTHORNE, Justice

(dissenting).

I am of the opinion that the trial judge was correct in refusing to charge that a verdict of guilty of negligent injuring was responsive to a charge of aggravated battery.

The law of this state in regard to responsive verdicts, generally, is set out in Articles 405 and 406 of the Code of Criminal Procedure, thus:

“405. The verdict must be responsive to the indictment, that is to say, no one can be found guilty of an offense not charged in the indictment or not necessarily included in the offense charged; i}i ‡ »
“406. When the crime charged includes another of lesser grade, a verdict of guilty of the lesser crime is responsive to the indictment, and it is of no moment that the greater offense is a felony and the lessor a misdemeanor.” (Italics mine.)

When these articles are applied to the instant case, it is clear in my opinion that the offense of negligent injuring must necessarily be included in the offense of aggravated battery for a verdict of guilty of negligent injuring to be responsive to a charge of aggravated battery. An excellent discussion of the proper method for determining whether one offense is included in another is found in State v. Woolman, 84 Utah 23, 33 P.2d 640, 645, 93 A.L.R. 723, wherein it is said:

“ * * * The only way this matter may be determined is by discovering all of the elements required by the respective sections [of two statutes denouncing the crimes there under consideration], comparing them and by a process of inclusion and exclusion, determine those common and those not common, and, if the greater offense includes all the legal and factual elements, it may safely be said that the greater includes the lesser; if, however, the lesser offense requires the inclusion of some necessary element or elements in order to cover the completed offense, not so included in the greater offense, then it may be safely said that the lesser is not necessarily included in the greater * * *.
“The statute [similar to our codal provisions hereinabove quoted] allows conviction for any lesser offense necessarily included in the offense charged in the indictment or information, but does not allow conviction of any lesser offense stated in the indictment unless it is necessarily included in the greater offense. The lesser offense must be a necessary element of the greater offense and must of necessity be embraced within the legal definition of the greater offense and be a part thereof.”

Applying the provisions of our Criminal Code and the principles enunciated by the Woolman case to the instant case, I find no difficulty in determining that the greater offense (aggravated battery) does not include all the legal and factual elements of the lesser (negligent injuring), for the lesser offense requires the inclusion of some necessary element not included in the greater offense, in order to cover the completed offense; therefore the lesser offense is not included in the greater. For instance, one of the necessary elements of negligent injuring is criminal negligence. This element is not included in aggravated battery. Actually, criminal negligence cannot be an element of aggravated battery for intent is the requisite element of that crime. Since the element of criminal negligence is not necessarily included in the offense charged, under the plain terms of Article 405 of the Code of Criminal Procedure a verdict of guilty of negligent injuring cannot be responsive to a charge of aggravated battery.

For an analogy to the instant case the majority opinion cites State v. Stanford, 204 La. 439, 15 So.2d 817, where it was held that in a prosecution for manslaughter a verdict of guilty of negligent homicide was a responsive verdict. As I interpret that decision, this court based its conclusion on the fact that the Legislature had treated the crimes of murder, manslaughter, and negligent homicide as kindred and generic, and it was of the opinion, therefore, that the Legislature by its action had made the crime of negligent homicide responsive to a charge of manslaughter. See Act 147 of 1942, Section 1, amending Article 386 of the Code of Criminal Procedure. That case is not authority for the decision here, for there is no legislative intent to treat the crimes in the instant case as kindred and generic, and this court should decide the issue, therefore, by applying the general principles, enunciated herein, for determining included offenses.

I respectfully dissent.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    213 La. 167
    COBB v. FLOURNOY, Sheriff.
    No. 38022.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Wilson, Abramson & Maroun, of Shreveport, for plaintiff-appellant.
    William F. Woods, Jr., Asst. Dist. A tty., of Shreveport, for defendant-appellee.
   HAWTHORNE, Justice.

Plaintiff, R. W. Cobb, instituted this suit against J. H. Flournoy, sheriff of Caddo-Parish, praying to be recognized as the owner, and as such entitled to immediate possession, of approximately 8000 punch boards, valued at $3000, which had been seized under and by virtue of a search warrant issued in a criminal proceeding styled “State of Louisiana v. D. J. Pursley,” bearing No. 38574 on the docket of the First Judicial District' Court of Caddo Parish, and praying further that, upon the failure of the sheriff to deliver this property to plaintiff within a delay to be fixed by the court, he have judgment against the sheriff in the sum of $3,000.

On September 7, 1944, W. T. Prud-homme, deputy sheriff of Caddo Parish, made an affidavit before the district judge, alleging that he had good reason to believe, and did believe, that certain gambling apparatus and implements were kept, used, and provided to be used in unlawful gambling at a house and building situated at 263 East Linden Street in the City of Shreveport, Caddo Parish, Louisiana. Pursuant to this affidavit, the district judge issued a search warrant, and the same day deputy sheriffs of the Shreveport sheriff’s department, as disclosed by the returns on the search warrant, searched the premises of D. J. Pursley at 263 East Linden Street, Shreveport, Pursley being present, and there found certain gambling paraphernalia,, including 6000 or 8000 punch boards, which were taken into their possession and removed to the parish courthouse.

Thereafter, on September 29, 1944, the district attorney filed a bill of information against D, J. Pursley, the individual on whose premises the punch boards had been seized under the search warrant, charging him with the crime of gambling as denounced by Article 90 of the Louisiana Criminal code, the offense being charged as having been committed, on September 2, 1944. To this bill of information defendant Pursley filed a motion for a bill of particulars. In answer thereto, the State set forth that, on the date charged in the bill of information, the defendant therein did assist in conducting, as a business, a game, contest, lottery, and contrivance, commonly known as “punch boards”, wherein persons risked the loss of something of value, namely, money, in order to realize a profit in money or merchandise; that such punch boards were operated thus: The boards were placed in various public places where members of the public would make payments in cash to the operators of the punch boards for the privilege of punching concealed numbers out of the boards, and, in the event any of certain numbers listed on the boards was punched, the operators of the boards would pay to the person punching such winning number -a certain sum in cash or merchandise in excess of the amount paid for the' privilege of making the punch; the boards were so constructed that the owner and operat- or of them realized a profit far in excess of the amount paid out on them, and this profit was equally divided between the defendant (Pursley) and the parties in whose establishments the boards were placed for the public to play.

In due course the defendant Pursley was arraigned on said charge, he entered a plea of not guilty, and the case was fixed for trial October 20, 1944. On that date he appeared in open court, accompanied by his counsel, withdrew his former plea of not guilty, and entered a plea of guilty to the charge. Thereupon the court sentenced him to pay a fine of $500 and costs and, in default thereof, to serve six months in jail, and to serve one year in jail, this latter sentence being suspended. The State at that time offered and filed in evidence the search warrant together with the returns thereon, and the district judge ordered the destruction of these punch boards.

On November 15, 1944, plaintiff, R. W. Cobb, instituted the present suit against the sheriff. After answer had been filed by the defendant, the case was submitted on a stipulation of facts, which, in substance, have been set out hereinabove, with the exception that in the stipulation the sheriff admitted that plaintiff Cobb was the owner of the property seized under and by virtue of the search warrant.

The trial judge rejected plaintiff’s demands and dismissed his suit at his costs, and plaintiff has appealed to this court.

The district court ordered the destruction of the punch boards under the authority of Article 48 of the Code of Criminal Procedure, which reads as follows: “When any officer in the execution of a search warrant shall find any property which has been the subject of theft, or shall seize any of the other things for which a search warrant is allowed by the provisions of this title, all the property and things so seized shall be safely kept by the direction of the pidge, so long as shall be necessary for the purpose of being produced or used as evidence on any trial; and as soon as may be aftenvards all such property which has been the subject of theft shall be restored to the owner thereof, and all the other thing's seized by virtue of any such warrant, shall be destroyed under the directtion of the judge." (Italics ours.)

This article is found in the Code of Criminal Procedure under Title VIII, “Search Warrants”, and the things for which a search warrant is allowed by the provisions of this title are found in Articles 42 and 43. Article 42 relates to stolen property, and the other things for which a search warrant is allowed are enumerated in Article 43, reading in part as follows:

“Any judge may also, upon like complaint made on oath, issue a search warrant when satisfied that there is reasonable cause, in the following cases, to wit:
5}C * , ij:
“(2) To search for and seize lottery tickets, or materials for a lottery, unlawfully made, provided or procured for the purpose of drawing a lottery;
“(3) To search for and seize any gambling apparatus or implements used or kept and provided to be used in unlawful gambling, in any gambling house, or in any building, apartment or place resorted to for the purpose of unlawful gambling; * * *.”

Appellant contends that, since these punch hoards, seized under a search warrant, were neither used nor needed in connection with any criminal proceeding or prosecution, there exists no authority in law for their confiscation and destruction; and, further, that the provisions of the Code of Criminal Procedure found under the title “Search Warrants”, particularly those of Articles 43 and 48, have no application in this case, as there was no evidence before the court that these punch boards were “provided or procured for the purpose of drawing a lottery”, as required by subsection (2) of the above quoted article, nor was there any evidence that the punch boards were used or kept in a gambling house, building, apartment, or place resorted to for the purpose of unlawful gambling, as required by subsection (3) of the article.

Our answer to this contention is that the fact that Mr. Pursley pleaded guilty to the crime of gambling, which is shown by the bill of particulars to be the business of operating a lottery, shows that these lottery materials must have been provided or procured for the purpose of drawing a lottery. If they were in fact not provided or procured for such a purpose, we think the burden was on the plaintiff in this civil suit to prove such a fact. He offered no proof whatsoever, nor did the parties make any stipulation to this effect.

No one can be heard to say that the State did not intend to use the 6000 or 8000 punch boards seized under the search warrant as evidence in the criminal case against Pursley in its efforts to secure his conviction in the event he had gone to trial on his plea of not guilty, for soon after their seizure the bill of information was filed against him charging him with the crime of gambling. It is true that they were not needed or used in the criminal prosecution, due simply to the fact that the defendant pleaded guilty to the charge. If, as appellant contends, the fact that the punch boards were not needed and used in evidence in the criminal prosecution justifies their return to their owner, then in any similar case a defendant in a criminal case by simply entering a plea of guilty could defeat the very purpose and intention of the law providing for the destruction of such gambling paraphernalia.

Article 48 of the Code of Criminal Procedure by its plain terms provides that, when any officer in the execution of a search warrant shall seize anything for which a search warrant is allowed, such property shall be safely kept under the direction of the judge so long as shall be necessary for the purpose of being produced or used in evidence on any trial, and, as soon as may be thereafter, all such property which has been the subject of theft shall be returned to the owner, and all other things seized by virtue of such warrant shall be destroyed under the direction of the judge.

After the defendant Pursley in the criminal case pleaded guilty, it was not necessary to keep the punch boards safe for the purpose of producing or using them in evidence, and the trial judge correctly ordered their destruction. In fact, the article clearly makes it the mandatory duty of the judge to order such destruction provided the things seized are things for which a search warrant is allowed. Punch boards are things for which a search warrant is allowed under Article 43, which provides that a search warrant may be issued to search for and seize lottery tickets or materials for lotteries unlawfully made, provided, or procured for the purpose of drawing a lottery.

Our conclusion that the seizure of these punch boards and the order for their destruction were authorized by Articles 43 and 48 of the Code of Criminal Procedure answers all of appellant’s contentions.

For the reasons assigned, the judgment appealed from is affirmed, plaintiff-appellant to pay all costs.

O’NIELL, C. J., absent.


author: McBRIDE, Judge.

text:
    APPEL v. ENNIS et al.
    No. 18870.
    Court of Appeal of Louisiana. Orleans.
    March 15, 1948.
    Application for Rehearing April 12, 1948.
    See 34 So.2d 819.
    Dart, Guidry & Price, of New Orleans (Taylor Caffery, of New Orleans, of counsel), for plaintiff-appellant-appellee.
    McGovern & McGovern, of New Orleans, for Mrs. Robert T. Ennis, defendant-appellant.
    Leon F. Davison, of New Orleans, for Ward C. Jensen, defendant-appellee.
   McBRIDE, Judge.

On October 25, 1946, the plaintiff, George C. Appel, purchased from Mrs. Robert T. Ennis the property in New Orleans known by the numbers 7735-37 Cohn Street, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes and appurtenances thereunto belonging or in anywise appertaining. At the time, Ward C. Jensen occupied the 7737 side as the tenant under a lease with Mrs. Ennis, which we gather was verbal and ran from month to month. Jensen continued his occupancy after the sale and continued to pay rent to Appel until the latter part of May 1947. When Jensen vacated the property he removed therefrom a hot-water heater, a toilet seat and two cement stationary washtubs.

Plaintiff contends that when he purchased the property these fixtures were located therein, and that they were im-movables by destination and passed to him with the property; that after Jensen carried them away he, Appel, replaced them with similar fixtures at an expense of $149.32.

Plaintiff brought this present suit against both Mrs. Ennis and Jensen for the cost of replacement. . He alleges that Mrs. Ennis was not the owner of the fixtures and is liable to him under the general warranty clauses contained in the act of sale, “inasmuch as she sold * * * the aforesaid property which * * * (she) did not own.” In the alternative he charges that Jensen is liable, because despite the protests of plaintiff he “removed and converted to his own use” the said articles of which plaintiff was the owner. The prayer contained in the petition is for a judgment against Mrs. Ennis, and in the alternative against Jensen.

Mrs. Ennis interposed an exception of no cause or right of action, and in accordance with the rules of the First City Court of New Orleans which provide that the answer and exception must be filed at one and the same time, she made answer amounting to a general denial of the allegations of the petition. Jensen also answered, admitting the removal of the fixtures, which he defends upon the ground that they were placed in the property by him for his own use and that of his family, and formed no part of the realty.

The exception was overruled, and after a trial on the merits judgment was rendered against Mrs. Ennis for $130. The suit as against Jensen was dismissed. Both plaintiff and Mrs. Ennis have appealed; in an answer to Mrs. Ennis’ appeal plaintiff prays that the judgment against her be increased to $149.32.

Counsel for Mrs. Ennis has reurged before us the exception of no cause or right of action, both in oral argument and in brief, but we deem it unnecessary to pass upon the exception, as the case can be disposed of on the testimony adduced at the trial on the merits.

The facts as shown by the testimony are that during 1946 Jensen took possession of 7737 Cohn’Street as the tenant of Mrs.’ Ennis, and at the commencement of his occupancy there was located in the house a dilapidated water heater which was disconnected, and a broken toilet seat. Jensen, at his own expense, brought into the house the water heater, toilet seat and two stationary washtubs involved in this case. The old water heater and broken toilet seat were placed in the shed. The new heater was connected in the usual manner to the gas and water pipes, and the washtubs were set loosely upon brick columns, which Jensen built for their support, and connected to the water pipes.

Appel’s first contention is that the fixtures were immovables by destination and became a part of the building itself, and passed to him under his purchase from Mrs. Ennis.

The uncontradicted evidence shows that none of the articles in question were attached to the building with lime or cement, or were intended by Jensen to remain permanently in the premises. They were apparently connected in the usual and customary manner, and were, intended to serve the convenience and comfort of himself and his family, and he at all times proclaimed his ownership of them, as will be hereinafter pointed out. Jensen testified that when he removed the articles he replaced the broken toilet seat on the bowl, and had the old water heater, which was in the shed, connected in the place of the one which he removed. Jensen left the property in substantially the same state in which he had received it.

Under the circumstances, the contention of Appel is not well founded. The fixtures placed in the premises by Jensen did not become immovables by destination and, therefore, never lost their identity as movables,’ and they did not pass with the building. To be immovable by destination .the thing must be placed upon or attached to the property by the owner for its service and improvement, not by a third person. C.C. art. 468.

:In the case of Richardson v. Item Co., Ltd., 172 La. 421, 134 So. 380, 381, the Supreme Court held that an automatic sprinkler system placed in leased premises by the tenant did not become immovable by destination, and that the owner, in selling the building, could transfer no title to it, as it belonged to the tenant, who had the right to remove it. The sprinkler system consisted of metal pipes running through the building, but not permanently attached to it. The pipes were supported by hangers which were attached to the building by screws. The Court said:

“A movable becomes an immovable by destination when the owner unites it with lands, tenements, or buildings which are also owned by him, with the intention that the movable shall henceforth be merged and associated with the destiny of the realty. For a movable to become an immovable by destination it must necessarily be placed upon or attached to the immovable by the owner himself. When such things are placed upon an immovable by a lessee as an improvement or addition, they remain movables, and may be carried away by him unless attached with lime and cement.”

The right of a lessee to remove improvements not made with lime or cement, which he has made to the thing leased, is regulated by C.C. art. 2726, and under its provisions Jensen had the privilege of taking away the improvements, provided he left the property in the same state in which it was received. The article provides:

“The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he leaves it in the state in which he received it.
“But if these additions be made with lime and cement, the lessor may retain them, on paying a fair price.”

In support of plaintiff’s claim against Mrs. Ennis, counsel argues that if the fixtures belong to Jensen then Mrs. Ennis is liable to plaintiff for their replacement under the general warranty clauses stipulated in the act of sale. He advances the contention that Mrs. Ennis had not the legal right to sell the property which belonged to another.

The evidence shows that on September 6, 1946, before offering to purchase the property, Appel made an inspection and examination of the side of the house designated as No. 7735 Cohn Street, and that entrance could not be gained to the other side as none of the members of the Jensen family were home. Appel testified that he inquired of Mrs. Ennis what the condition of the other side of the house was, and he was told that “it was much better, better equipped.” Appel then submitted his written offer to buy the property. On the next day he went through and inspected Jensen’s side of the house and noticed the water heater, washtubs and toilet seat. Mrs. Jensen informed Appel that those articles had been brought into the house by her husband, who claimed that they belonged to him, and that they did not belong to Mrs. Ennis and were not a part of the house. Appel stated that upon being so advised by Mrs. Jensen he consulted Mrs. Ennis about the fixtures, and that she told him the Jensens “had not installed the property.” Mrs. Ennis denied making any such statement and testified that Appel did not “mention the improvements until he was having trouble with the rent in January * * Appel frankly admitted on direct examination that when he “made the inspection of the property that following afternoon Mrs. Jensen repeatedly said that they had made all the installations.”

Notwithstanding that he was fully advised of Jensen’s claim of ownership, Appel made no effort to shield himself. The formal act of sale was not executed until 48 days after the conversation with Mrs. Jensen, and in the interim he had the opportunity to properly adjust the matter with his vendor, and had ample time in which to take advantage of it. It is true that notice of Jensen’s claim was not brought home to him until after the written offer to purchase was submitted and accepted, but he could have easily safeguarded his interests at the passing of the ensuing act of sale. Caution should have demanded that he insist upon some necessary and proper stipulation being incorporated in the sale regarding the disputed articles. He saw fit to accept title without reservation, knowing, and with a full realization, that he would sooner or later encounter difficulties with Jensen. Not having asserted his rights when he had the opportunity to speak, and when it was his duty to speak, he is precluded now from maintaining his claim against his vendor. C.C. art. 2452 provides:

“The sale of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.”

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

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

For the reasons assigned, the judgment appealed from is affirmed insofar as plaintiff’s claim against Ward C. Jensen is concerned; that part of the judgment appealed from in favor of plaintiff and against Mrs. Robert T. Ennis is reversed, and it is now ordered that plaintiff’s demands against Mrs. Ennis be dismissed; plaintiff to pay costs of both courts.

Affirmed in part.

Reversed in part.


text:
    GORE PRODUCTS, Inc. v. TEXAS & N. O. R. CO.
    No. 18904.
    Court of Appeal of Louisiana. Orleans.
    March 15, 1948.
    Rehearing Granted April 12, 1948.
    Miller & Bloch, of New Orleans, for plaintiff and appellee.
    Chaffe, McCall, Toler & Phillips and Harry McCall, Jr., all of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This suit involves the question of what is the proper measure of damages to be assessed against a common carrier for the loss of part of the goods which constituted an interstate shipment. The facts of the case are succinctly set out in the brief of defendant as follows:

“Plaintiff contracted with defendant for the interstate transportation of four containers of medicine to a customer in Mexico City who was to pay fourteen hundred and forty dollars for the lot, or three hundred sixty dollars per container, freight included. In removing these containers from plaintiff’s place of business, defendant’s employees broke one, thereby causing the loss of its entire contents; defendant thereupon requested and received from plaintiff an identical container of medicine to replace the broken one, and the shipment was carried to destination under the original contract of carriage, delivered to the consignee and payment of the full purchase price made to plaintiff.
“Plaintiff promptly made claim upon defendant for its loss by submitting an invoice for three hundred sixty dollars, the amount for which it had billed (and which it had received from) the consignee of the shipment. Defendant admitted its liability to the extent of plaintiff’s actual loss and declined payment at the figure named by plaintiff on the ground that this was not plaintiff’s cost and therefore did not represent the true measure of its actual loss. Plaintiff made no claim or showing of special damages, but insisted that this was the identical price made to its local customers as well as to the consignee of the broken container (which is admitted by defendant) and, although admitting that this amount included its profit, refused to divulge the cost to it of the lost medicine. Being thus effectually prevented from making tender of the amount it believed to be due, defendant could only decline payment of the claim in full, and this suit followed.”

Plaintiff sought judgment for $360 (the price for which it had sold the destroyed goods), and recovered that amount, subject, however, to a credit of $3.52 for freight charges. Defendant has appealed.

It is agreed by both parties that the measure of plaintiff’s recovery is to be governed by the Cummins Amendment to the Interstate Commerce Act, which provides that in case of loss, damage or injury to property which is the subject of carriage, the carrier “shall be liable * * * for the full actual loss, damage, or injury to such property.” Act of March 4, 1915, c. 176, 38 Stat. 1197, 49 U.S.C.A. § 20(11).

It is defendant’s contention that, under the circumstances of this case, the “full actual loss” specified by the statute means the cost of the article to the claimant, and that there should be no consideration given to the price for which the article might have been sold.

In his argument, counsel for defendant first points to the case of Illinois Cent. R. Co. v. Crail, 1930, 281 U.S. 57, 50 S.Ct. 180, 181, 74 L.Ed. 699, 67 A.L.R. 1423. There plaintiff purchased in transit a carload of coal in which a 5,500 pound deficiency was found to exist upon delivery; the deficiency was replaced with coal purchased for the same price in wholesale lots. Plaintiff contended that the measure of damage should be the retail value of the undelivered coal, which included the cost of delivery to his customers. He had not contracted to resell any of the coal when the car arrived. The Court held that under the circumstances peculiar to the case, the more accurate measure of damage of the shortage would be the wholesale price, since it was capable of replacement, and was in fact replaced, in the course of the consignee’s business from purchases made in carload lots at wholesale market prices without added expense. The Court said:

“There is no greater inconvenience in the application of the one standard of value than the other, and we perceive no advantage to be gained from an adherence to a rigid uniformity, which would justify sacrificing the reason of the rule, to its letter. The test of market value is at best but a convenient means of getting at the loss suffered. It may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable. See Wilmoth v. Hamilton, 3 Cir., 127 F. 48, 51; Theiss v. Weiss, 166 Pa. 9, 19, 31 A. 63, 45 Am.St.Rep. 638; Pittsburg Sheet Mfg. Co. v. West Penn Sheet Steel Co., 201 Pa. 150, 50 A. 935; Williston on Contracts, §§ 1384, 1385. In the absence of special circumstances, the damage for shortage in delivery by the seller of fungible goods sold by quantity is measured by the hulk price rather than the price for smaller quantities, both at common law, see Morgan v. Gath, 3 Hurl. & C. 748; Avery v. Willson, 81 N.Y. 341, 37 Am.Rep. 503, and under section 44 of the Uniform Sales Act. Likewise, we think that the wholesale market price is to be preferred as a test over the retail when, in circumstances like the present, it is clearly the more accurate measure. * * * ”

Counsel also directs our attention to the case of H. T. Cottam & Co. v. Illinois Cent. R. Co., 3 La.App. 240, decided by this court. The plaintiff in that case sued the carrier for recovery of the loss sustained as a result of defendant’s failure to safely carry certain goods. Judgment was rendered for plaintiff in the lower court for the cost price of the damaged or lost merchandise, and plaintiff sought before us an amendment of the judgment, so as to increase the amount allowed to the price at which it could have sold the goods at their reasonable wholesale case value at the destination. We denied plaintiff recovery for its anticipated profits, because there was no proof that the goods in question had been sold by plaintiff before or while in transit, or that they formed part of any contract which plaintiff was bound to fulfill upon the date of delivery at the destination. We said:

“ * * * The evidence establishes that there was no wholesale buyer of such goods in New Orleans, except the plaintiff, who bought not at New Orleans, but at the point of shipment involved in this case. However, there are innumerable buyers of such goods in New Orleans, buying exclusively of plaintiff, and if plaintiff’s contention should here prevail, the effect would be to enlist defendant as an additional customer in plaintiff’s New Orleans trade. We cannot give such effect to the contract. There is no proof that the goods in question had been sold by plaintiff before or while in transit, or that they formed parts of any .contracts which plaintiff was bound to fulfill upon due date of delivery at New Orleans. There is nothing to show that plaintiff had contracted for the resale of these goods upon expectation of their timely delivery by the defendant.”

Defendant’s counsel also cites the case of Silverman v. St. Louis, I. M. & S. R. Co., 51 La.Ann. 1785, 26 So. 447, 450, which he contends is authority for the proposition that a carrier is not expected, in the ca^e of loss or damage, to purchase the lot at the shipper’s price with anticipated profits added. The Silverman case has no application here. The shipment consisted of clothing, etc., made up largely of shopworn and second-hand goods, and plaintiff sued not only for the cost price, but also for ten per cent advance on values at time of shipment, rent, clerk’s hire, and twenty-five per cent loss of profit on goods which he would have sold, and also for personal expenses and loss of time. The freight car in which the goods were loaded was broken into by an unauthorized person, and eight of the thirty-six boxes in the shipment were opened and some depredations committed upon the goods. In denying plaintiff’s claim, the Court used the following expressions:

“These being the facts disclosed by the evidence, we find no principle of law upon which to predicate a judgment for the plaintiff. It may be conceded that the defendant was at fault for leaving plaintiff’s property in an insecurely fastened and isolated car, with no one to watch it. Nevertheless, the plaintiff cannot recover, without proving what, if any, injury this negligence of the defendants has caused him.
“The preponderance of evidence leads to the conclusion that plaintiff’s goods were neither lost nor damaged. As far as we can see, there was no sufficient reason to have prevented his taking possession of them on the morning of October 5th, and if, in doing so, he had been subjected to trouble and expense, in collecting and repacking them, the defendant would have been liable therefor. He, however, refused at that time, and has since refused, to receive the goods, or any part of them, or to have anything to do with them; and the defendant was obliged to accept the alternative of taking such steps as seemed prudent for the preservation of the goods thus left on its hands and for its own protection against the claim with which it was threatened, and it accordingly collected the goods and repacked them. We do not understand that, in case of the loss or damage of part of a lot of assorted goods, the carrier is bound to purchase the whole consignment, at the shipper’s price, with expected profit added.”

In Anderson, Clayton & Co. v. Yazoo & M. V. R. Co., 174 La. 762, 141 So. 453, 455, the value of a shipment of cotton which had been destroyed was involved, and our Supreme Court stated the rule for assessing damages as follows:

“The general rule is that, when goods delivered to a carrier for shipment are lost in transit, the carrier will he liable for the market value of the goods at the place of destination at the time when delivery of the goods should have been made, less the freight charges to the point of destination if they have not been paid.”

The Anderson, Clayton & Co. case was cited with approval in Bancroft v. Yazoo & M. V. R. R. Co., 194 La. 115, 193 So. 481, 482, as follows:

“ * * * The liability of the carrier in such cases is for full actual loss of the property at the place of destination at the time delivery of the goods should have been made. Anderson, Clayton & Co. v. Yazoo & M. V. R. Co., 174 La. 762, 141 So. 453; 10 C.J. 606, p. 395. It therefore follows that in such cases it is only necessary for the consignee to allege and prove (1) that the initial carrier received the shipment in good condition, (2) that the shipment arrived at its destination in a damaged condition, and (3) the amount of the loss.”

Plaintiff contends that it is immaterial whether it had sold the medicine which defendant destroyed at a profit or a loss. Counsel argues that the price at which plaintiff had contracted to sell the goods, before turning them over to the defendant for shipment, was both the market price in New Orleans and in Mexico, the destination, and should constitute the true measure of damages, as that is the price plaintiff would have received for the goods had they been safely delivered by the defendant.

The syllabus in the case of Wilson v. Hines, 58 Utah 38, 196 P. 1007, reads:

“Where plaintiff shipper had sold to the consignee the peaches shipped at the place of shipment, he was entitled to recover as damages for delay injuring the peaches the difference between the price for which he had sold the peaches, which was their market value at the place of shipment, with freight, loading, and war tax added, and their market value iii their damaged condition at destination when he was notified of their nonacceptance by the consignee.”

The United States Supreme Court, in Chicago, M. & St. P. R. Co. v. McCaull-Dinsmore Co., 253 U.S. 97, 40 S.Ct. 504, 64 L.Ed. 801, in adjudicating an action for the loss of a shipment of grain, said:

“ * * * The rule of the common law is not an arbitrary fiat but an embodiment of the plain fact that the actual loss caused by breach of a contract is the loss of what the contractee would have had if the contract had been performed, less the proper deductions, which have been made and are not in question here. * * * ”

The Supreme Court of Alabama, in the case of Nashville, C. & St. L. Ry. v. W. L. Halsey Grocery Co., 219 Ala. 16, 17, 121 So. 16, permitted a consignee to recover the value of goods estimated at their price at the destination, rather than the price for which it had purchased them at the place of shipment. The Court said:

“ * * * no duty rested upon the plaintiff to order another shipment to replace the lost goods.”

In 9 Amer.Jur., Carriers, sec. 783, a summary of the law is given as follows :

“The contract price, rather than the market value of goods may constitute the proper basis for estimating the damages for their loss or injury where they are shipped under, or pursuant to, a contract of sale. * * * Where the contract price is the only evidence of the market value it should be taken as the measure of damages.”

The language used in 13 C.J.S., Carriers, § 264b(l), is:

“The rule as to the measure of damages for loss of property shipped applies both in actions of tort and in actions based on breach of contract; and its operation is not affected by the fact that the shipper was permitted to substitute other animals in place of 'those lost, or that the live stock was to be kept for use and was not intended for sale.” Citing, among other cases, El Paso, etc., R. Co. v. Lumbley, 56 Tex.Civ.App. 418, 120 S.W. 1050, and H. W. Little & Co. v. Atlantic Coast Line R. Co., 168 N.C. 658, 85 S.E. 18.

And in § 264e we find:

“Where property is shipped for sale at a specified price or is sold in transit, the damages recoverable are based on the contract price or on the market value at destination, according to the circumstances of the case.” Citing among cases Bernet, Craft & Kaufman Milling Co. v. New York, C. & St. L. R. Co., Mo.App., 260 S.W. 508, which held that where more goods were manufactured to replace those lost the recovery would be cost of manufacture, but not in any event less than the contract price.

In addition to relying upon the Crail, Cottam and Silverman cases, defendant relies more strongly upon the case of Meletio Sea Food Co. v. Gordons Transports, Mo.App., 191 S.W.2d 983, and contends that the issues in the latter case are identical to those now before us. The plaintiff in that case, which was a manufacturer like the present plaintiff, replaced from its stock goods damaged by tire defendant carrier. A recovery for the amount of the price at which plaintiff had contracted to sell the goods was denied, and the measure of damages was fixed at the cost to plaintiff of manufacturing the goods which replaced those that had been lost. The Meletio case, however, originated in a justice’s court in Missouri and was appealed to the St. Louis Circuit Court, and finally reached the St. Louis Court of Appeals. The opinion was written by a commissioner and was concurred in by the judges of the Court of Appeals. The doctrine established in the Mel-etio ease is contrary to that announced by our own Supreme Court and other courts deciding the cases cited by plaintiff, and our opinion is that the Meletio case should not be used as a criterion here.

Under the circumstances present in the instant case, there is a distinguishment between it and the Crail and Cottam cases. In neither of those cases had the shipper contracted to sell the goods which constituted the shipment, and the courts denied recovery for expected or anticipated profits. In addition, in the Crail case the goods were fungible, and plaintiff replaced them by purchasing other wholesale lots; furthermore, the retail price on which plaintiff’s claim was premised included the cost of delivery to his customers.

In the case now before us, the plaintiff, which is a manufacturer, had already sold the goods to its customer in Mexico by contract, and in line with the authorities cited by plaintiff we feel that in this case the measure of plaintiff’s loss is the price which it would have received from its customer in Mexico, which price was also the market price prevailing at New Orleans, the place of origin of the shipment. There are no special circumstances in the present case to ■ warrant a holding that the sale price, which is also the market price at destination, should be discarded and the cost of manufacture adopted as the standard of defendant’s liability.

It is true that plaintiff delivered to the carrier a carboy of medicine to substitute for the one which was destroyed, but we do not think that the defendant’s liability should be fixed at the amount required to reimburse plaintiff merely for the cost of manufacturing one carboy of medicine. What would be the situation if the second carboy had been lost, or even a third or fourth? Could plaintiff be required to continue to manufacture goods for the defendant at cost? Furthermore, if plaintiff’s business was an extensive one it might be quite difficult to compute with exactness the cost of one carboy of medicine.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: JANVIER, Judge.

text:
    SAXTON et ux. v. PLUM ORCHARDS, Inc.
    No. 18639.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied April 12, 1948.
    Writ of Certiorari Granted June 1, 1948.
    Porteous & Johnson, of New Orleans, for appellants.
    John F. Stafford and Sidney J. Par-longue both of New Orleans, for appellee.
   JANVIER, Judge.

Plaintiffs, the father and mother of a four year old daughter, who was drowned in a pond on land owned by the defendant corporation, brought this suit for damages for the loss of their daughter, charging that it was negligence for the said corporation to allow the pond to remain in close proximity to the residence of plaintiffs since it was of such a nature that it was attractive to children and thus constituted a peril to all young persons who, by its attractiveness, might be lured into the danger which always results when very young persons play in or near such bodies of water. In other words, the cause of action, if there is one, is based on what is familiarly known as the doctrine of the “turntable cases,” Sioux City & P. R. Co. v. Stout., 17 Wall. 657, 21 L.Ed. 745, which doctrine is founded on the theory that it is negligence to maintain in any place where children “have a right and are likely to be” anything which is dangerous to such children, if it is of such a nature as to be attractive to them to such an extent “that the instincts of children would prompt them to meddle, or play with or in it.” Fincher v. Chicago, Rock Island & Pacific Railway Company, 143 La. 164, 78 So. 433, 434.

In their original petition plaintiffs alleged that they had leased the house in which they lived from the defendant corporation which was the developer of the subdivision in which the said house was located, and that the said defendant corporation, in developing the subdivision, had caused to be dug tire pond in which their daughter was later drowned, and that the said pond was located about one hundred and fifty feet from their said residence.

To this petition defendant filed an exception of vagueness apparently based on the theory that the pond was not sufficiently described to permit of a determination of the question of whether it was or was not of such a nature as to constitute an “attractive nuisance.”

When the exception of vagueness was filed plaintiffs filed a supplemental petition in which they alleged that the pond was about one hundred and eighty-eight feet in length, twenty-one to twenty-nine feet wide, from five to nine feet deep and that “floating thereon were a great many pieces of old logs, wood, board, timber and debris which to a child of the tender age of petitioners child would or may give the impression that the place, ditch, large hole or excavation was filled particularly when the wind would blow that which was floating on the water into one portion or corner all to the defendants knowledge.” They further alleged that “the body of your petitioners’ child was found among that which was floating on the water. Petitioners’ child of tender age evidently believed she could walk where she was drowned.”

When this supplemental petition was filed defendant filed an exception of no cause of action contending that the mere maintenance of such a pond does not, in itself, constitute negligence, and that such a body of water cannot be characterized as an attractive nuisance, unless it is alleged and proven that there is something unusual about it which would cause children to be attracted to it.

This exception was referred to the merits and defendant filed an answer admitting the ownership and maintenance of the pond and admitting that it had leased to plaintiffs the house in which they lived. Defendant, after denying that the death of the little girl had resulted from any negligence on its part, averred that the plaintiffs knew of the existence of the pond, and that the said death was caused by the failure of plaintiffs to properly attend and guard their minor child, that such act on the part of the plaintiffs should be a bar to their recovery.

There was judgment below dismissing the suit and plaintiffs have appealed.

The facts, except in one particular, are not in dispute. The house in which the plaintiffs lived belonged to the defendant corporation and had been leased by it to plaintiffs, and the pond in which the little girl was drowned was on land belonging to defendant and defendant had caused it to be dug to assist in the drainage of that particular part of the property and for the further purpose of providing earth which was used in filling other low portions of the subdivision. The pond was in the rear of the house which was across the street from that in which plaintiffs lived and, at its nearest point, was approximately one hundred and fifty feet from the residence of plaintiffs. It was about one hundred and seventy-five to two hundred feet in length, had an extreme width of twenty-one to thirty feet and a depth of from four .to eight or nine feet.

The only dispute over the facts arises from the contention of plaintiffs that floating in the pond were large pieces of timber which, according to plaintiffs, had the effect of leading children to believe that they might be used as rafts, and which also had the effect, so plaintiffs say, of constituting a trap leading children to believe that they might step on them with safety.

The evidence as to the presence of these pieces of timber or logs is conflicting, but we think there is a substantial preponderance in favor of the contention of the defendant that in the pond there was only the usual debris consisting of small pieces of wood, branches, etc., and that there was nothing therein to lead children to believe that it could be used as a raft or which so disguised the surface of the pond as to lead children to believe that it could be walked upon.

The record shows that in the pond there were crayfish, frogs and minnows and these, of course, are to some extent attractive to children.

We are convinced that the parents of the little girl should not be charged with negligence in failing to properly keep watch over her, and that they did all that parents, in their circumstances, could reasonably be expected to do to protect her from harm and to prevent her from wandering into danger.

There were three other young children in the family and the financial circumstances of the parents were such that they could not afford to employ a domestic servant to keep constant watch over thesé four little girls. Mrs. Saxton found it necessary to do most of her own household work and, of course, there were often occasions on which the children played in the neighborhood without adult supervision.

In the house immediately across the street from that of plaintiffs, and directly in front of the pond in question, lived the Gonsoulin family in which there were ten children, and it was not surprising that these groups of children should often play together and should wander back and forth between the two houses. In spite of this, the evidence convinces us that Mrs. Saxton did all that she could to keep her children from going near the pond, and that even when the little girl, who was later drowned, was sent to a neighborhood store, it was customary for her mother to stand where she could watch her going to and coming from this store.

On the day of the unfortunate accident Mrs. Saxton had gone into the house to prepare a meal and only a few minutes later called to the children to come into the house. It was then discovered that this little girl was not with the others and a.search immediately was begun which, after about two hours, resulted in the finding of the little girl in the pond. No fault can be attributed to the parents.

The question then is simply this: Is a pond, situated within one hundred and fifty to two hundred feet of a residence in which children live, and about which there is nothing unusually attractive, such as a raft or a boat, such an attractive nuisance as to render the owner thereof liable for the death of a child who wanders into it and is drowned ?

Plaintiffs rely to a considerable extent on what our Supreme Court said,in Fincher v. Chicago, Rock Island & Pacific Railway Company, supra. There, a four year old daughter of the plaintiff wandered into a pond which the defendant railroad company had allowed to be created by drainage water dripping from the end of a culvert on its right-of-way. It appears that there was nothing about this pond or pool which made it any more attractive to young children than any pond always is. The Supreme Court held that the defendant company was not liable, but counsel for plaintiffs say that the language used by the Court, in reaching this conclusion, shows that the Court felt that there was no liability only because that particular pond was so located that it could be seen only by persons who had already trespassed upon the right-of-way of the railroad, and that the court indicated, so counsel say, that it would have reached the opposite conclusion had the pool been in a place in which it could have been seen by persons who might not have already trespassed or wandered into a place to which they should not have gone.

It is true that the wording of the opinion creates the impression that had the pool been visible the defendant might have been held liable, for the Court, in referring to the pool, said that “it was on the other side of the railroad tracks, and down an embankment, not within sight from the street, nor until the first track of the railroad had been crossed.” The court added that the pool was “not accessible, or even visible, therefore, to children except by going upon the railroad tracks, a place certainly where children had absolutely no right to be * *

. Defendant asserts that the proper rule is that which was applied in McKenna v. City of Shreveport et al., 16 La.App. 234, 133 So. 524, 525, 526, wherein our Brothers of the Second Circuit, said:

“The weight of authority, however, is that the turntable or ‘attractive nuisance’ doctrine does not apply to a pond unless there is some unusual condition or artificial feature other than the mere water and its location, rendering the place peculiarly dangerous to children.”

In that case the Court quoted the following from Sullivan v. Huidekoper, 1906, 27 App.D.C. 154, 5 L.R.A., N.S., 263, 7 Ann.Cas. 196:

“To hold an owner of real estate, upon which there is a body of water, liable for the accidents that may happen to children while trespassing thereon, would be to place upon them an unfair burden. The danger is one that cannot be guarded against without considerable expense or inconvenience. The cases holding that there is no duty upon the part of a real-estate owner, upon whose land is a pond or other body of water, to keep his land safe for trespassers, even when those trespassers are children, seem to us to be founded upon and supported by reason and common sense.”

We are also favorably impressed by what was said by the Court of Appeal for the Second Circuit in Peters v. Town of Ruston, La.App., 167 So. 491, 492, in which that Court discussed at length the doctrine of “attractive nuisance,” giving the reasons for the application of the doctrine in certain situations, and also giving the following most excellent reasons for refusing to apply it in certain other cases in which the things complained of were, nevertheless, undoubtedly attractive to young persons. There the Court said:

“While the thing or condition must be both attractive and dangerous to children, it cannot be correctly said that all dangerous agencies and conditions which attract children amount in law to attractive nuisances. There are innumerable things and conditions ordinarily in existence which are both attractive and dangerous, and to hold that all of them constitute .implied invitations for children to use and enjoy would be contrary to reason, and would require of property owners such vigilance and care as would depreciate the value of property and seriously handicap business. Accordingly, it is generally held that for the rule to be applicable, the condition or agency must be of an unusual nature and character so as to render it peculiarly attractive and alluring to children.’’

While it is true, that in that case the children who were drowned were thirteen and sixteen years of age respectively, and, therefore, the Court referred to the fact that “the doctrine is applied only in cases where children are too young to understand and appreciate danger,” we feel certain that the ratio decedendi of that case was the Court’s realization of the fact that a pond, though attractive to young children, is not of itself to be classified as an attractive nuisance unless there is about it something unusual, such as a raft or a boat, or unless it is so constructed as to constitute a trap.

Innumberal cases have arisen and the text writers and other authorities, who have referred to all of them, have reached the conclusion that the overwhelming weight of authority supports the contention of defendant that no liability results from the mere ownership or maintenance of a pool, unless there is about it something which makes it unusually alluring, something which affords more attraction than that which is produced by the mere existence of a pool, or unless it is so constructed that it constitutes a trap by the hidden danger of which someone is brought into contact with an unseen or unappreciated peril.

To hold otherwise would be to condemn as attractive nuisances the innumerable pools, ponds, drainage canals, ditches and other waterways of various kinds which are so necessary both in the City and in the Country, and which contribute to the convenience, comfort and happiness of all of our citizens everywhere.

As .we have already said, there was nothing unusually attractive about this pond. It was not so constructed as to constitute a trap and no culpable negligence is chargeable to defendant for maintaining it.

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

Affirmed.


author: PER CURIAM.

text:
    DEICHMANN v. SELLE.
    No. 18876.
    Court of Appeal of Louisiana. Orleans.
    March 15, 1948.
    Herman J. Agregaard and Herman & Herman, all of New Orleans, for plaintiff and appellee.
    A. Melville Wolf son, of New Orleans, for defendant and appellant.
   PER CURIAM.

Defendant has perfected this appeal from a judgment evicting him from the premises 4404 St. Peter Street in the City of New Orleans. The suit is brought under the provisions of Act No. 298 of 1938, and it is alleged in the petition that there is no relationship of landlord ahd tenant between plaintiff and defendant, and that defendant’s occupancy is illegal, and he has refused to move despite written notice to vacate.

The judgment appealed from was rendered after a trial on the merits. Plaintiff has filed a motion to dismiss the appeal, grounded upon the alleged reason that this court is without jurisdiction ratione ma-teriae, as the value of the right of occupancy of the premises is in excess of $2,-000.00, our maximum jurisdictional amount under Const.1921, Art. 7, secs. 10, 29.

It is well settled that where the suit is for possession of realty, the value of the right of occupancy, and not the value of the property, is the test of jurisdiction. In re Genella, 45 La.Ann. 1377, 14 So. 302; Norwood v. Wimby, 104 La. 645, 29 So. 311, and cases therein cited.

The petition alleges that plaintiff has leased both 641 North Alexander Street and 4404 St. Peter Street to one Jean C. Rider for a period of five years beginning October 1, 1947. Plaintiff testified that the lease stipulates that the rent is $100.00 per month.

It is appellee’s contention that the Rider lease, which covers both 641 North. Alexander Street and 4404 St. Peter Street for a period of five years, should be used as the criterion for establishing the valuation of the use and occupancy.

The defendant testified that he occupies 4404 St. Peter Street by virtue of an arrangement with a former lessee, and that his rental is $20.00 per month. Appellee has pointed to nothing in the record which tends to show what the use and occupancy of 4404 St. Peter Street alone is worth, and the only evidence on that point is that of the defendant, which is mentioned above.

In Southland Investment Company, Inc., v. Michel, 150 So. 581, 582, the Court of Appeal for the Second Circuit said:
“The amount in dispute determines the jurisdiction of the court, and it is not bound to accept allegations as to the amount in controversy, but will look into the record to ascertain the real amount in dispute. Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817; Ducharme v. Smith, 9 La.App. 264, 119 So. 268; Southern Furn. Co. v. Mead, La.App., 146 So. 341; Williamson v. Ruston Steam Laundry, 17 La.App. 141, 134 So. 720.”

The law is to the effect that the rental value which would be due by defendant for the use of that part of the property occupied by him should form the basis for fixing the jurisdictional amount. Slawson v. Meggett et al., 22 La.Ann. 272; Harris v. Stockett, 35 La.Ann. 387; In re Genella, supra; Babst v. Haftz et al., 1 La.App. 498.

In Harris v. Stockett, supra, plaintiff •sued for possession of a plantation, only •a part of which was occupied by defendant who disclaimed possession of any other portion of the land. The Court said:

“We agree with plaintiff, that under these pleadings the title and the possession of the main portion of the plantation were not contested by the defendant and, therefore, ceased to be a part of the matter in dispute, which is thus restricted to the value of defendant’s possession of the fifty acres of land, including the dwelling, from October 31st, 1882, to the end of that year, * * *.
“Under her pleadings she owed no rent for the use of the property in question, and hence, in the absence of any evidence of the value of two months’ occupation, and enjoyment of the same, we have no data to rest an opinion as to the pecuniary value, of that part of her demand.”

Assuming that the value of the use and occupancy of 4404 St. Peter Street is $20.00 per month as defendant testified, the amount involved in this suit is less than $2,000.00, and this court is vested with jurisdiction. The motion to dismiss the appeal is, therefore, denied.

Motion denied.


author: FOURNET, Justice.

text:
    213 La. 176
    COMER et al. v. TRAVELERS INS. CO.
    No. 38422.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.
    Brumfield, Hebert & Rush, of Baton Rouge, for plaintiffs-applicants.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for defendant-appellee.
   FOURNET, Justice.

Robert W. Comer and his wife, Mrs. Essie Christine Hicks Comer, whose 17 month old daughter Dora Jane was fatally injured when she was struck by the automobile owned and driven by her uncle, Rev. Van M. Dykes, instituted this suit under the provisions of Act No. 55 of 1930 to recover damages in the sum of $15,000 each from the insurer of the automobile, the Travelers Insurance Company. The matter is now before us on a writ of certiorari granted the plaintiffs for a review of the judgment of the Court of Appeal for the First Circuit affirming the judgment of the district court dismissing their suit. 27 So.2d 438.

On July 10, 1943, the Rev. Dykes, who, with his wife, had been residing with the Comer family in their home at 917 Mayflower Street in Baton Rouge, Louisiana, was engaged in moving some of his possessions to St. Francisville, Louisiana, where he had been assigned as a minister of the Baptist church. The car in question had been loaded with some of his effects from the back door of the residence and backed out into the driveway where it was parked parallel with the front porch while he went into the house to bathe and shave before departing, the front porch of' the house being to the right of the car and the car’s right rear bumper being about flush with the south side of the hedge surrounding the porch and the front of the car about even with the outside wall of the house. This house, located on a street running east and west, faces south, and its porch, extending some 22.2 feet across the front with steps at the extreme east end, is entirely surrounded by a very dense tall hedge, except that portion of the porch where the steps lead down into the yard. After drinking coffee in the kitchen around 2:30 p. m., the Rev. Dykes walked down the hall and onto the front porch, accompanied by his daughter Kathryn. The child apparently followed them to the porch, although it is not entirely clear exactly when she got there. Rev. Dykes testified the child came out on the porch after he and his daughter arrived there and that he kissed her good-bye and left her with his daughter. HÍ9 daughter’s statement, made shortly after the accident occurred, substantially corroborates him in this respect although two years later, when the case was tried, she testified. on direct examination she could not recall 'whether the child walked out with them, was already on the porch, or was in the house and came out later; and while on cross-examination she reiterated she did not recall the child being on the porch, she conceded that if she made a statement to that effect soon after the accident and her father said the child was there it must be correct. After Rev. Dykes kissed the child and his daughter good-bye he turned, and, leaving them standing by the swing some three feet from the west end of the porch, he walked down the steps, around the hedge, and across the front yard to his car, looking back toward the porch to see if the way was clear. Just as he was about to start his car, his daughter, still on the porch, moved toward the west end of the porch and gave him some instructions about messages to friends in St. Francisville, to which he listened, starting his car in the meantime. The conversation having been completed, he then proceeded to back up, looking toward the rear of the driver’s side to see if the driveway in back was clear. 'Almost immediately he felt a bump which he at first thought was a ' branch of the hedge hitting against the rear right fender but almost at the same time realized could be the child. He thereupon instantly brought the car to a stop and got out, only to have his daughter, who had run down into the yard, scream (there is some testimony to the effect . that she screamed before she left the porch) for him to pull up because he had stopped the car on the baby’s body.- He then got back into the car and pulled up three or four feet, getting out again. He was shocked and stunned when he saw he had run over the child. His wife and Luther Gillingham, a neighbor who appeared almost immediately on the scene, took the child to the hospital, where she died within a few minutes after arrival.

It is the contention of the plaintiffs that the Rev. Dykes was negligent in backing his automobile in the driveway, having just left his infant niece whom he knew was extremely fond of him and followed him about everywhere if unrestrained, without first assuring himself there was no one in the path of his backing car.

The defendant, on the other hand, contends that the Rev. Djdtes, knowing the child was on the porch with his daughter and having assured himself there was nothing in the way before starting his car, had reason to believe she was safe and the right to assume he would be warned if she changed her position, and that he was, therefore, not negligent in backing up, having first looked to the rear to ascertain if his way was clear.

It is the generally accepted rule of law that “If a driver has reason to anticipate that a child might be near his automobile, it is his duty to see that the way is clear before starting the vehicle into motion, but, if he has no reason to anticipate the presence of children near his car, negligence cannot be predicated on the mere fact that he started his machine, injuring the child.” 2 Blashfield’s Cyclopedia of Automobile Law and Practice, § 1509. See, also, Heikkila v. Standard Oil Co., 193 Wis. 69, 213 N.W. 652; Pritchard v. Henry, Tex.Civ.App., 200 S.W.2d 651; and Cioffi v. Lowell, 316 Mass. 256, 55 N.E.2d 411.

In reaching the conclusion that there was no negligence on the part of Rev. Dykes, the Court of Appeal says [27 So.2d 442]: “In this case when Reverend Dykes last saw the child she was on the porch of the Comer home and, we would say constructively if not actually as far as he was concerned, in the care of his daughter, an adult person over twenty-two years of age. She was not playing in the yard nor was she anywhere near the automobile. He was further precautious however, for after he had walked down from the porch into the yard and up to his automobile, he again looked towards the steps to make sure that there was no danger of his backing his car. The child .then was nowhere within his sight and it is our opinion that he then had the right to assume that she was safe and that he could set his car in motion as he intended to do.”

In a dissenting opinion one of the judges expressed the opinion that Rev. Dykes should have anticipated the child, being so attached to him, would go to him if she had a chance to do so; that he should have known there was grave danger the child would follow him; and that knowing these things he was guilty of negligence because he failed to request his daughter to watch the child.

The material facts of the case, as outlined above, are uncontradicted except in the two instances pointed out. We think the evidence clearly shows the child followed Rev! Dykes on to the porch and that she was still there when he left the porch and not in the yard when he entered his car. And in our opinion it is immaterial for a decision in this case whether his daughter screamed just prior to the acci- - dent, and while still on the porch, as testified-to by two young people who lived across the street, or when she saw the child under the wheel of the car after she ran down into the yard, as testified to by her, her. father, and Mr. Gillingham, the neighbor, for under the circumstances, having last seen the child on the porch with his daughter, .an adult of responsible age, in a place of safety, Rev. Dykes was justified in assuming, as a reasonable man, that if the child’s position was (Ranged to a more perilous one, he would be warned by his daughter, and that since he had not been so warned it was safe for him to back up. Consequently, having no actual knowledge of the child’s perilous position in the vicinity of his car, he used all of the care that could have been expected of an ordinarily prudent person.

For the reasons assigned, the judgment of the Court of Appeal for the First Circuit Court is affirmed.

O’NIELL, C J., absent.