author: JANVIER, Judge.

text:
    FACIO v. BELLONE et al.
    No. 19032.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied April 11, 1949.
    Writ of Certiorari Denied May 31, 1949.
    Gerald Netter, of New Orleans, for plaintiff and appellee.
    Weiss & Weiss, of New Orleans, for defendants and appellants.
   JANVIER, Judge.

This suit results from an intersectional automobile collision which occurred at the corner of Dorgenois and Palmyra Streets in New Orleans, at about four o’clock in the .afternoon, on December 2, 1946.

■ Plaintiff, Fació, in his 1940 Pontiac automobile, was on Dorgenois Street going in a downtown direction, and defendant Bel-lone, in his 1935 Ford coupe, was going in Palmyra. Street toward the Mississippi River. Palmyra Street is a one-way street, vehicles being permitted to operate on it only in the direction in which the defendant was driving his Ford. Dorgenois is a two-way street with a single street car track in the center. The two streets are approximately equal in width. On the corner to the right of Bellone and to' the left of Fació, that is to say, the intervening corner, there was a building which extended to the property line on both streets making it what is commonly called a blind corner.

Plaintiff charges that the accident resulted solely from the negligence of Bel-lone in that he was driving his car at an “unlawful and illegal rate of speed, to-wit, about forty miles per hour * * * ”, and that he failed to stop at the corner “where there is a stop sign, all in violation of Ordinance 13702, C.C.S. * *

Plaintiff alleges that the cost of repairing his car was $325.96, and he prays for solidary judgment for that amount against Bellone and the United States Casualty Company, alleged to be the liability insurance carrier of Bellone.

Defendants admit the occurrence of the accident, but deny that Bellone was in any way at fault and aver that the cause of the accident was negligence on the part of plaintiff in “traveling at an unlawful and reckless rate of speed * * * ”, and they also charge that he was not keeping a proper lookout and that he entered the intersection “despite the fact that defendant’s automobile was in his plain view, and had preempted said intersection * * They also averred that in the event it be held that Bellone was responsible for the accident then plaintiff’s claim should be reduced to a smaller amount than that prayed for since a lower estimate for making- the repairs had been obtained from another garage.

Bellone then assumed the position of plaintiff in reconvention and alleged that the accident was caused by the negligence of Fació as above set forth and that his— Bellone’s car—had been so badly damaged that he found it advisable to “trade it in” at a loss of $425.00. He alleged also that he had sustained physical injuries for which he claims $500.00, and in addition thereto, he claims $250.00 as the cost of hiring a truck which was necessary in the conduct of his business.

There was judgment for plaintiff against both defendants solidarily as prayed for and the reconventional demand of Bellone was dismissed. Defendants have appealed.

There can be no doubt that the right of way was with the plaintiff. In the first place, it is admitted that there was a stop sign on Palmyra Street which faced Bellone as he approached the corner. In the second place, Fació was approaching the corner from Bellone’s right and therefore even if the two streets were of equal rank, he would have had the right of way, because of the provisions of Ordinance 13702, C.C.S. Article V, 15(a), which read, in part, as follows :

“When two vehicles enter an intersection at the same time the driver of the vehicle on the left shall yield to the driver on the right.”

In the third place there was a street car track on Do-rgenois Street on which Fació was approaching.

All of these facts are admitted, but Bel-lone maintains that he could not see the stop sign because it was lower than is usual and was hidden by an intervening parked automobile which was alongside the curb of Palmyra Street. Bellone also maintains that, regardless of whether Fa-cio would otherwise have been entitled to the right of way, he, Bellone, entered the intersection first, thus preempting it, and that, therefore, he had the right to proceed.

The evidence shows conclusively that as Fació approached the corner his speed was not excessive but that the speed of Bellone was quite high. We say that Bellone’s speed was high because after the impact, which occurred in the intersection, his car proceeded a distance estimated as great as 30 to 35 feet, turned completely around, and then turned over. The evidence is so overwhelming on this point that we have no difficulty 'in concluding that Bellone did not stop and that he entered the intersection at high speed when Facio’s car had either already entered it or was just about to enter.

It is very true that we have often said that in spite of the right of way provisions of the traffic ordinance, if a vehicle without the right of way enters and preempts an intersection, its driver thus acquires the right to proceed. But in cases in which we discussed the question of preemption we have also said, and other courts have said, that preemption does not result solely from arriving a split second ahead of another vehicle. The driver who claims preemption must show that he entered the intersection at reasonable speed so far in advance of the other vehicle that he would not be struck by the other vehicle also proceeding at proper speed. See Sheehan v. Hanson-Flotte Co., La.App., 34 So.2d 657; Pancoast v. Cooperative Cab Co., La.App., 37 So.2d 452.

There can be no doubt even according to the testimony of Bellone that he did not enter the intersection more than from two to four feet ahead of Fació, and it would be absurd to say that this gave him the right to proceed by reason of the fact that he had preempted it. At the speed at which he was proceeding, he traversed the short distance between the property line and the center of the intersection in a small fraction of a second and surely it cannot be said that preemption resulted. As a matter of fact the evidence leaves us convinced that defendant Bellone in effect admitted his fault to those who were present immediately after the occurrence. It seems that it was his birthday, and he, therefore, asked the policeman, for that reason, please not to take him to jail. He also made statements to the effect that he had not seen the stop sign, and as this statement was made in explanation of his failure to stop, it is quite evident that his contention that he did stop is not founded on fact. His statement that he was fully protected by insurance, to some extent, indicates a realization that the accident had resulted from his fault.

The contention that the amount claimed by plaintiff is excessive is based on the fact that there had been obtained, apparently by the insurance adjusters of the defendant insurance company, an estimate from another garage which showed that the garage would have repaired the damage to plaintiff’s car for $272.00, whereas plaintiff shows that the garage to which he took his car charged $325.96, a difference of $53.96.

Plaintiff' shows that the garage which made the repairs was operated by the agent of the manufacturers of his car and that because of the shortage of parts, he felt that he could obtain from them genuine parts and better repair work. We have no doubt that he was within his rights in having the repairs made at that garage. We do not mean to say that a plaintiff may, in all instances, adopt the higher estimate if it appears that it is in excess of some lower one to an unreasonable extent. But where the difference is as small as it was here, we have no hesitation in saying that a plaintiff may select his own repair man, particularly when that repair man is the agent which represents the manufacturer of the particular car in question.

In McCraney v. Hammond Coca Cola Bottling Co., 19 La.App. 755, 141 So. 515, 517, the Court of Appeal for the First Circuit said:

“ * * * Plaintiff had the right to have his car repaired by the company from which he had purchased it, and could not be controlled in having the repairs made by a company in which, perhaps, he had no confidence. If the charges of the Capitol City Auto Company were out of proportion to their value, or exorbitant, there would be ground for a reduction of the amount charged therefor, but, as the price demanded is legitimate and the work is satisfactory, defendant is not entitled to a reduction on its plea to' have the damages minimized.

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

Affirmed.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    HOLTZMAN’S FURNITURE STORE v. SCHRAPF.
    No. 19166.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied March 28, 1949.

      Isaac S. Heller, of New Orleans, for plaintiff and appellant.
    Edward P. Ecuyer, of New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff filed this suit against defendant to recover $123.18, the balance due on the purchase price of certain furniture.

Alleging that it had a vendor’s lien, plaintiff prayed for and obtained a writ of sequestration under which the Constable of the First City Court of New Orleans seized the furniture.

Mrs. Schrapf, in behalf of her husband, the defendant, invoking the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq., appeared and applifed for a stay of the proceedings, upon the ground that defendant is in the military service of the United States and that because of his military status (1) his ability to conduct his defense is materially and vitally affected, (2) that plaintiff, in sequestering the furniture, wilfully and maliciously violated the provisions of the act, and (3) defendant’s ability to comply with the terms of the installment purchase contract has been materially affected.

The lower court issued a rule upon plaintiff to show cause why the 'Court should not exercise its powers under the act and grant a stay of the proceedings, and after a hearing judgment was rendered in favor of Mrs. Schrapf, in behalf of her husband, ordering that plaintiff return “all of the personal property of defendant sequestered by said plaintiff.” Plaintiff appeals from the judgment.

1'. In the Soldiers’ and Sailors’ Civil Relief Act of 1940, sec. 100, provision is made:

“ * * * to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the Unted States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act remains in force.”

Section 201, SO U.S.C.A.Appendix, § 521, declares:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by ■ such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.”

In Charles Tolmas, Inc., v. Streiffer, 199 La. 25, 5 So.2d 372, 374, our Supreme Court, in referring to these provisions of the act, said:

“Thus it may be seen that this legislation was enacted to protect the rights of the men in the military service of the Nation during the present emergent conditions ; but this protection is afforded them only in those cases in which the rights of the persons in the military service might be prejudiced without their presence to either prosecute the action or conduct their defense, and it is only in those cases that the courts are authorized to stay the proceedings for the duration of their absence. Otherwise, the act has no application.”

It is the contention of appellee that the burden is on the party resisting an application for a stay of proceedings to satisfy the trial court by clear and convincing evidence that the rights of the soldier or sailor are not impaired by the military tenure, and that unless such showing Í9 made a stay should not be denied. In support of this position, appellee’s counsel has cited several cases in which courts have so held.

However, in the case of Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 1228, 87 L.Ed. 1587, the Supreme Court of the United States observed:

“The Act makes no express provision as to who must carry the burden of showing that a party will or will not be prejudiced, in pursuance no doubt of its policy of making the law flexible to meet the great variety of situations no legislator and no court is wise enough to foresee. We, too, refrain from declaring any rigid doctrine of burden of proof in this matter, believing that courts called upon to use discretion will usually have enough sound sense to know from what direction their information should be expected to come. * * * ”

The Soldiers’ and Sailors’ Civil Relief Act of itself does not constitute a defense to litigation instituted against one in the military service, and the Congress never intended that it should. It seems to us that before an application for a stay of proceedings should be granted there must be some showing made, or at least the court must be able to infer, that the service man has a debatable legal defense, and that his ability to present it is materially or seriously affected by reason of his military status.

In Charles Tolmas, Inc., v. Streiffer, supra, the Supreme Court vacated a stay order which had been granted to defendant, because it was not shown that the defense asserted by defendant was valid. The Court said:

“In the instant case, inasmuch as the trial judge was of the opinion that there was an ambiguity in the lease contract, necessitating the presence of the respondent to determine the true intention of the parties to the contract, and for this reason alone he stayed the proceedings, it is our opinion that such order should be recalled without prejudice to either party, for a casual reading of the lease will show that the trial judge was in error in- his conclusion that an ambiguity exists therein in so far as the alleged breach thereof is concerned, * * * ”.

This court, in Tolmas v. Streiffer et al., La.App., 21 So.2d 387, 388, annulled and avoided a judgment of the lower court staying the proceedings for the period of defendant’s military service, for the reason that there was nothing in the case which the presence of defendant could alter to his advantage. We said:

“To permit a stay of the proceedings in this case for the duration of the war would, it seems to us, work an injustice and hardship to the owner who desires possession of his property without serving any purpose for which the Soldiers’ and Sailors’ Relief Act was adopted. There is nothing in that act which contemplates conferring upon a soldier or sailor any privilege not enjoyed by a civilian. It is merely intended to secure him in his legal rights until he may return and defend himself. If there was anything in this case which the presence of Streiffer could alter to his advantage we would have no hesitancy in confirming the stay order, but all that Streiffer could do, if present, would be to assert that a verbal extension had been given him as his father did without obj ection.”

Mrs. Schrapf did not allege, nor did she even intimate, that her husband has any legal defense to his creditor’s claim. Upon the trial of the rule, she testified:

“They called me after he had gone into the service and I told Mr. Holtzman I would pay him.”

We notice that her application for the stay contains the following averment:

“That your applicant is aware of the debt due plaintiff by her husband, the defendant, and has made an honest and diligent effort to repay same in monthly installments.”

Our opinion is that defendant is not entitled to a stay of the proceedings on the first ground. We say this without prejudice to the rights of either party.

2. In presenting the second ground, counsel argues that, before a judgT ment may be entered, a suing creditor must file an affidavit showing that defendant is not a member of the armed forces, and that plaintiff has attempted to circumvent that barrier by sequestering the furniture on an ex parte order without having furnished such affidavit. Section 200 of the act, 50 U.S.C.A.Appendix, § 520, reads as follows:

“In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act.”

It clearly appears that the affidavit mentioned in Sec. 200 need be filed only when a default judgment is to be entered. We know of no provision in the act, and our attention has not been directed to any, requiring the filing of an affidavit under any other circumstances, and we fail to understand why the writ of sequestration should be declared illegal because no affidavit was furnished by' plaintiff before its issuance.

3. Applicant’s able counsel strenuously argues that defendant’s ability to comply with the terms of the installment contract has been materially and seriously affected by virtue of his present status.

The pertinent portions of Sec. 301 of the act, as amended, SO U.S.C.A.Appendix, § 531, are:

“No person who has received, or whose assignor has received, under a contract for the purchase of real or personal property, or of lease or bailment with a view to purchase of such property, a deposit or installment of the purchase price, or a deposit or installment under the contract, lease, or bailment, from a person or from the assignor of a person who, after the date of payment of such deposit or installment, has entered military service, shall exercise any right or option under such contract to rescind or terminate the contract or resume possession of the property for non-payment of any installment thereunder due or for any other breach of the terms thereof occurring prior to or during the period of such military service, except by action in a court of competent jurisdiction. * * *
“Upon the hearing of such action the court may order the repayment of prior installments or deposits or any part thereof, as a condition of terminating the contract and resuming possession of the property, or may, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, order a stay of proceedings as provided in this Act unless, in the opinion of the court, the ability of the defendant to comply with the terms of the contract is not materially affected by reason of such service; or it may make such other disposition of the case as may be equitable to conserve the interests of all parties.”

The facts surrounding the contract are: Defendant, contemplating marriage, bought the furniture during February and April, 1947, making a down payment and agreeing to pay the balance at the rate of $17.00 per month.

In December, 1947, defendant enlisted in the Army, at which time the account was in arrears to the extent of approximately $84.00. Plaintiff received a payment of $15.00 in August, 1948.

Defendant is stationed at San Antonio, Texas. His wife and their young child remain in New Orleans.

In considering whether the ability of defendant to comply with the terms of the contract is materially affected by reason of military service, it is in order to examine his financial standing before enlistment and compare it with his present financial standing.

As to his occupation in civil life the record is silent, but Mrs. Schrapf testified that her husband earned $37.00 per week, from which there was deducted social security, unemployment, and income taxes.

The pay of a private first class is $90.00 per month plus a dependent’s allowance which is an integral part of the enlistment contract. Schrapf’s monthly base pay as a private first class is $90.00; his wife and child receive a monthly family allowance of $80.00, which is made up as follows: $22.00 is deducted from the soldier’s pay and the government supplies $58.00. The amount received by the soldier from his ■base pay is, therefore, $68.00 per month. See 37 U.S.C.A. §§ 108, 205, and 206.

It would appear that the Schrapf family now receives but a few dollers less than the gross earnings of defendant before his enlistment. It seems to us that defendant’s ability to pay has not at all been worsened because of his present status, particularly when it is considered that the $68.00 is augmented by upkeep and sustenance, the expenses of which would have to be borne by oneself in civilian life.

Accepting the testimony as being the truth, the record shows that Schrapf, before becoming a soldier, flouted his obligation by permitting about % of the balance, which plaintiff alleges is due for the furniture, to mature and remain unpaid.

We think that if this soldier had been conscientious he could and would have made some effort, both before and after his enlistment, to adjust the matter. Presuming for the purposes of this opinion that the amount sued for is due, it appears that both in civil life and as a member of the Army plaintiff has shown disinterest in carrying out his engagements.

While we believe that a man in the military service of our country should be shown every consideration by the courts, the Soldiers’ and Sailors’ Civil Relief Act was not designed as a shield to be used by one who has unjustifiably ignored his obligations before becoming associated with the military. We see no equities insofar as defendant is concerned.

In determining whether under Sec. 301 a defendant is entitled to an order staying the proceedings, the court, in addition to considering the defendant’s circumstances, should give serious consideration to the plight of the plaintiff. The court may make such disposition of the case as may be equitable. No one will doubt for a moment that modern furniture does not improve with usage, and should the plaintiff herein be met with a stay order, there is no question that disadvantage would result, because the only security which plaintiff has is the vendor’s lien and privilege on the furniture. If plaintiff is not to be allowed to prosecute its suit, it could come to pass that when Schrapf returns to civilian life the furniture might not even be in existence, or might be of so little value that the security vouchsafed by the lien would be nil.

We perceive nothing in the third ground to warrant granting applicant the relief sought.

The attorney for Mrs. Schrapf as a member of the Legal Aid Bureau of New Orleans represented her in connection with the application. Counsel has shown zeal and industry in presenting the application, and we believe he should be complimented for the manner in which he has dispatched his assignment.

For the above reasons, the judgment appealed from is reversed and the application for a stay is denied; this case is now remanded to the First City Court of New Orleans to be proceeded with in accordance with law. All costs, including the cost of this appeal, are to await the final determination of this case.

Reversed and remanded.


author: REGAN, Judge.

text:
    FAVRE v. TASSIN et al.
    No. 18993.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Rehearing Denied May 9, 1949.

      Montgomery, Fenner & Brown, of New Orleans, and Arthur B. Hammond, Jr., of Baton Rouge, for appellants.
    Edward J. Stoulig, of Kenner, for ap-pellee.
   REGAN, Judge.

The plaintiff herein, Sidney J. Favre, brought this suit against the defendants, Edwin Tassin, and his insurer, the American Casualty Company, claiming the sum of $200.32, for property damage, alleged to be due as a result of an intersectional collision between his 1942 Oldsmobile Sedanette and defendant’s 1942 1%-Ton Ford Dump Truck,

Defendants answered denying liability and averring that the accident was due solely to the negligence of the plaintiff and, in the alternative, defendants plead “contributory negligence on the part of the plaintiff, and that plaintiff had the last clear chance of avoiding the accident.”

From a judgment in favor of plaintiff as prayed for, defendants prosecute this appeal.

The record discloses that the accident occurred on September 9, 1947, at about the hour of 10 :00 ,a. m., in the intersection of “the Fourth Street -highway” and “Grefer Street or avenue,” which is located between Gretna and Westwego, in the Parish of Jefferson, Louisiana.

Fourth Street is a paved two-lane highway. Grefer Street is a graveled road which intersects but does not cross the Fourth Street highway.

Plaintiff was driving his car about twenty-five or thirty miles per hour in the right lane of the Fourth Street highway, towards Gretna, approaching that part of the highway intersected by Grefer Street. Wallace Blanchard, the driver of defendant’s truck, corroborates the testimony of plaintiff as to the speed of his car. The truck was in Grefer Street “slowly” approaching the Fourth Street highway anticipating a stop at the intersection, with the ultimate intention of making a left turn into the “highway” towards Westwego. Blanchard, the driver, admits that the “extreme right portion” of his bumper extended “about a foot” into the highway, and “that while stopped in this position, plaintiff’s automobile passed, scraping its right side on the bumper of the truck.” The “scraping crease” on the right side of plaintiffs car indicates that the “point of contact” with defendant’s bumper is “about six inches to ten inches from the front of the right fender.” Defendant’s truck is equipped with a “pipe bumper that projects ahead of the regular bumper for protection.”

Plaintiff testified that he felt “no jolt” from the contact between the truck and his car, but he brought his car to a stop about twenty-five or thirty feet from the “point of contact,” when he heard the metal trim from his car fall to the highway. There is a dispute between plaintiff and defendant relative to whether defendant’s truck, after it was brought to a stop “just rolled over on the paved highway” and struck plaintiff’s car. Plaintiff testified that he was about twelve or fifteen feet from Grefer Street when he observed defendant’s truck coming to a slow stop, and that he could not swerve to the left in order to avoid coming in contact with defendant’s bumper because "there was oncoming traffic to my left.” Blanchard testified that he could have conveniently stopped his truck further in Grefer Street from the highway and that his vision would not have been obstructed; and that when he first observed the plaintiff’s car, it was about one-half block away.

The court, a qua, in rendering judgment for plaintiff, found as a fact that:

“Nowhere in this evidence is it shown where the plaintiff was at fault or was exceeding the speed limit; and on the contrary, according to the defendant’s own testimony, it seems that he was coming out of Grefer’s Lane and while he might have thought that he stopped, or wanted to stop, there was a misjudgment of distance on his part which caused the accident.
“ * * * for Mr. Favre’s (plaintiff’s) car to have struck this truck, he would have had to have gotten off the highway entirely. As Mr. Favre correctly says, he was coming down the highway and he had every reason to believe that the Tassin truck would stop.
“ * * * this truck did roll towards the highway and the bumper of the truck extended over the highway, which caused the impact and the accident at that time.”

Defendants maintain that the lower court erred in the following particulars:

(1) In holding that the defendant’s truck was not stopped at the intersection.

(2) In holding that the driver of the defendant’s truck was negligent.

(3) In not finding that the plaintiff had the last clear chance to avoid the accident, and

(4) In not finding that the plaintiff was contributorily negligent.

We are not impressed by defendants’ contention that the court, a qua, erred in the foregoing respects. The only questions presented for our consideration are ones of 'fact. We have made a careful analysis of the record and we are of the opinion that the learned judge, a quo, was correct in finding as a fact that “according to defendant’s own testimony, it seems that he was coming out of Grefer’s Lane, and while he might have thought that he stopped or wanted to stop, there was a misjudgment of distance on his part which caused the accident.” This fact is substantiated by the following testimony elicited from Wallace Blanchard:

“Q. Is it not a fact that Mr. Favre’s (plaintiff’s) car was passing through that intersection, and that you went to stop but you let your truck roll, and that your extreme tip of the farthest part of your right front bumper struck Mr. Favre’s car? A. That’s right; the front right bumper”.

The record is replete with testimony to the effect that the bumper of defendant’s truck projected at least twelve inches into the Fourth Street highway after the accident, and the nature of the damages sustained by plaintiff’s car is in accord with this testimony. The “crease” admittedly caused by defendant’s bumper scraping along the right side of plaintiff’s car, begins six to ten inches from the front of the right fender and continues through the rear fender.

We are also of the opinion that defendants’ pleas of “contributory negligence” and “last clear chance” are not well founded. The record reflects that plaintiff was driving his automobile in the “heavily traveled” Fourth Street highway, containing two lanes for ascending and descending traffic; that he was traveling at a moderate rate of speed — “twenty-five to thirty miles per hour”; that he observed defendant’s truck in Grefer Street, a graveled road, which intersects but does not cross the highway, slowing down, as plaintiff testified, “to a stopping rate,” and, therefore, under the prevailing circumstances no obligation was imposed upon plaintiff to stop at this intersecting road, especially in view of the fact that the driver of defendant’s truck indicated by his actions that he intended to come to a- complete stop and not permit the bumper of the truck to slowly ■project itself on the highway and into the path of the traffic which defendant’s driver admittedly observed approaching.

We are also of the opinion that plaintiff did not possess the “last clear chance” to avoid this accident. The actions of the driver of defendant’s truck were indicative of his intentions to stop and remain so and plaintiff had every reason to rely on these manifestations of the driver’s intention. A fortiori, for plaintiff to have possessed the last clear chance, he must have been, or should have been, aware of the dangerous situation or emergency and must have had a reasonable time within which to avoid the impending accident.

Defendants produced, as a witness, Curtis Williams Thorne, who attempted to testify adversely to the plaintiff. We are not impressed with his testimony, for the simple reason that he did not see the accident, which is confirmed by the following testimony elicited from him:

“Q. Did you see the actual collision between the truck and the automobile? A. No, I did not.”

The record reveals an agreement between counsel that the monetary amount of damages sustained by ' plaintiff’s car amounts to the sum of $200.32.

This is manifestly a case which involves the application of the well known doctrine that the findings of a trial court will not he disturbed or reversed where only questions of fact are involved, unless that finding is obviously erroneous, consequently, and

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    ARBO v. JANKOWSKI.
    No. 10055.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Parnell J. Hyland, of New Orleans, for plaintiff and appellee.
    Louis E. Jung, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This appeal involves a landlord’s rule against his tenant for possession of the leased premises, brought under the provisions of R.S. § 2155, as amended by Act No. 200 of 1936, § 1, Dart’s Gen.Stat. 6597.

Plaintiff-appellee leased to defendant-appellant the restaurant located at 2108 Canal Street, fully equipped, for a period of twelve months commencing September 24, 1947. The written contract specified that the premises “are to be used only for commercial purposes.” Defendant reserved the option to renew the lease to July 23, 1950.

On May 11, 1948, plaintiff caused to be served upon the tenant a notice to vacate at the expiration of the then current rental month. According to the notice, the landlord desired possession of the premises because of a “breach of written lease, using premises as a dwelling place and for purposes other than commercial.”

The present suit ensued when defendant failed to comply with the landlord’s demand for removal. The rule alleges that the lease has been breached in that defendant converted a portion of the premises into a dwelling, resulting in the occurrence of certain enumerated incidents which created “considerable disturbance * * * causing complaints to be made to petitioner” by the neighbors.

Defendant denied there had been any breach of the lease, and averred that she had no knowledge of the things complained of, but that she remedied them as soon as she received information thereof.

The court a quo made plaintiff’s rule absolute and condemned the defendant to vacate without delay and deliver possession to plaintiff. Defendant has prosecuted this appeal.

Defendant’s counsel made objection to the admission of any evidence to sustain the allegations of the rule, the objection being grounded upon the contention that the rule disclosed no cause or right of action. The objection, which was overruled by the trial judge, is reurged before us. Counsel contends that in the notice to vacate the landlord assigned certain specific reasons why he was desirous of ousting the tenant, whereas in the rule additional reasons are alleged, and that the additional reasons are not susceptible of proof. In other words, counsel makes the point that grounds for eviction alleged in the rule must conform strictly to those mentioned in the notice to vacate.

Plaintiff’s attorney counters with the argument that no vacate notice at all was necessary, in view of the following provision of the lease contract:

“ * * * And should the Lessee in any way violate any of the conditions of this lease, the Lessor hereby expressly reserves to himself the right of cancelling said lease without putting the Lessee in default; the Lessee hereby assenting thereto, and expressly waiving the legal notice to vacate the premises.”

Whether a tenant may waive, in the lease contract, the formal notice to vacate required by R.S. § 2155 is a doubtful quegtion (see Reichelt v. St. Vincent De Paul Cemetery Ass’n, 10 Orleans App. 100), which we deem unnecessary to resolve, because we are of the opinion that the case can be disposed of upon the evidence contained in the record, even assuming, but, however, not deciding, that the court below erred in admitting it.

Arbo, the plaintiff had no personal knowledge of any of the occurrences alleged in his rule, and frankly admitted that his allegations were.based solely upon information received from neighbors residing in the vicinity of the restaurant.

The witnesses for plaintiff testified that defendant’s brother had been sleeping in the storeroom in the rear of the restaurant, and that on several occasions disturbances occurred. On one occasion a crowd of persons congregated in the restaurant and amused themselves by operating a music box in a loud manner. On another occasion the occupants of the living quarters above the restaurant noticed in the yard a partly burned mattress and certain bed clothing which had been thrown from one of the restaurant windows.

Another complaint is that early one morning the negro cook employed at the restaurant beat noisily upon the side of the premises in order to awaken defendant’s brother. On two occasions, in the early hours of the morning, a woman knocked loudly upon the wall and defendant’s brother admitted her to the storeroom where she remained with him.

The record would seem to indicate that Rhinehart, one of the dwellers living above the restaurant, and who, with his wife, testified for plaintiff, is the owner of the premises, and that he leased the same to Arbo, who rented them to defendant under the lease under consideration. We gather that Arbo has no particular interest in the present suit, but that Rhinehart is the prime mover in the attempt to have Mrs. Jankowski ejected. Rhinehart operates a barber shop in a portion of the premises.

Rhinehart admitted that when he leased the restaurant to Arbo there was a cot located in the storeroom; the cot was still there when the restaurant was leased to Mrs. Jankowski. Defendant testified that when she confected the lease with Arbo she asked for and obtained his permission to allow someone to sleep on the place. Arbo at first did not remember that conversation, but later in his testimony denied it ever took place. However, he later changed his position by reiterating that he did not remember any conversation with Mrs. Jankowski regarding the use of the cot. This vacillating testimony of Arbo does not impress us, and we believe that credence should be given to the statements of Mrs. Jankowski to the effect that Arbo had no objection to his tenant permitting someone to sleep in the storeroom. We notice also that Arbo stated it was his understanding that defendant’s brother and his wife were making use of the storeroom as a bedroom, and, “Well, I didn’t think there would be any harm in anybody sleeping in the place. I was told no different when I got the place from Mr. Rhinehart.”'

The rule does not allege, nor does the evidence show, that any loss or damage accrued to Arbo, or that his rights have been in any manner jeopardized. We believe he consented that someone might sleep in the storeroom, and insofar as the nocturnal visits and the other incidents complained of are concerned, we fail to see how they could have caused any loss or damage to the plaintiff. Since the inception of the lease the defendant has continuously operated a restaurant in the premises. The hours of operation are from about six o’clock in the morning until about nine at night, and the place is open every day. Mrs. Jankowski testified that upon receiving complaints from Rhinehart she took steps to remedy conditions, and at the present time the premises are used solely for commercial purposes.

Even if it be assumed that there was a technical violation of the lease contract, we are unwilling to hold that it was of such magnitude as would warrant a dissolution of the lease and the destruction of defendant’s business.

Under the provisions of art. 2710, R.C.C., the lessee is bound to enjoy the thing leased as a good administrator and according to the use for which it was intended by the lease. However, in order for a lessor to abrogate the lease upon the ground that other uses have been made of the premises, he must show that he has sustained a loss.

Article 2711, R.C.C., in part, reads as follows:

“If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease.”

It is well settled that the abrogation of leases is not encouraged by the law, and a landlord is entitled to a dissolution of the lease only when his right- thereto is clear beyond a doubt both of fact and of law. Pumila v. Johnstone, 10 La.App. 126, 121 So. 198; Purnell v. Dugue, 14 La.App. 137, 129 So. 178; Rosenthal v. Prutsman, No. 8392 of our docket, Opinion Book 59, see Louisiana & Southern Digest (certio-rari denied by Supreme Court).

Furthermore, the power of a landlord to dissolve a lease because the tenant has put the premises to other uses than those intended or specified in the lease is not at all absolute; this is a matter resting entirely within the discretion of the court. New Orleans & Carrollton R. Co. v. Darms, 39 La.Ann. 766, 2 So. 230; Rosenthal v. Prutsman, supra.

The judgment appealed from is clearly erroneous and it is, therefore, reversed, and plaintiff’s rule for possession is dismissed at his cost.

Reversed.


text:
    HUERSTEL et al. v. L. MANGANO & CO. et al.
    No. 19077.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied April 11, 1949.
    Writ of Certiorari Denied May 31, 1949.

      R. A. Dowling, of New Orleans, for plaintiffs and appellees.
    Porteous & Johnson and Frank P. Lucia, all of New Orleans, for defendants and appellants.
   McBRIDE, Judge.

While the tirle of this case denominates the husband and wife to be plaintiffs, the petition was filed alone by Gottlieb A. Huerstel. He seeks to recover from defendants the sum of $650.85 for the damages allegedly suffered by his Cadillac automobile in an intersectional collision with an automobile-truck owned by L. Mangano & Company and operated by its employee, of which truck the United States Casualty Company was liability insurer.

The accident occurred at Dauphine Street and St. Maurice Avenue in the City of New Orleans, in the forenoon of Octor her 30, 1946. There was located on Dau-phine Street a rail track-upon - which the New Orleans Public Service, Inc., operated streetcars.

Plaintiff ascribes the accident to the negligence of the driver of the truck, claiming that it was being driven down Dauphine Street at an excessive rate of speed and ran into the ■ Cadillac, ■ which had preempted the intersection and was more than halfway across. The defense is a denial of negligence on the part of the truck driver, and the charge that the accident resulted solely by virtue of the negligence of the operator of plaintiff’s automobile in failing to stop at Dauphine Street and accord the truck the right of way. Alternatively, the defendants pleaded that the driver of the Cadillac was con-tributorily negligent. L. Mangano & Company then assumed the position of plaintiff in reconvention, claiming $327.10 for 'the damage sustained by its truck.

The lower court rendered judgment in favor of plaintiff as prayed for and dismissed the reconventional demand, from which judgment defendants have prosecuted this present appeal.

The wife of plaintiff was driving the Cadillac on St. Maurice Avenue towards the river. She insists that she stopped at Dauphine Street and looked in both directions, and seeing no vehicles approaching, proceeded forward and had reached about the middle of the intersection when her car- was struck.

Neal M. Blackwell, who was travelling on Dauphine Street in the direction of St. Maurice Avenue, asserted that when his car was about half a block from the intersection the truck passed it at a speed of between thirty and forty miles an hour and, without stopping, entered the intersection and crashed into the Huerstel automobile which was crossing at about ten or fifteen miles an hour. According to this witness, the truck attempted to swerve and go around the front of the Cadillac, but that maneuver was ineffective and the side of the truck came into contact with the front of the car. Blackwell stated that he knows Mrs. Huerstel stopped at Dauphine Street, because he saw the front fenders, wheels, and bumper of her car in a stationary position “for about a minute.” Blackwell could not see the remainder of the Cadillac because of a structure on the corner, built flush with the property line, which 'obscured his view.

This testimony is corroborated in substantial detail by Mrs. Hughes, who was a passenger in the Blackwell car. However, Mrs. Hughes was unable to say whether the Cadillac stopped before entering the intersection.

Williams, the truck driver, was the only witness produced by defendants who testified regarding the occurrences at the intersection. He denied that he passed the Blackwell car or that he was speeding. His statement is that he had been trav-elling at about fifteen miles an hour, but diminished his speed to about twelve miles just before reaching St. Maurice Avenue. Williams also mentioned that the corner was blind and that he could not see to his left because of the building, but that he was halfway in the intersection when the left side of the truck was hit by the Cadillac, which had not stopped. Just before the crash, Mrs. Huerstel threw up her hands and abandoned control of the Cadillac.

Ordinance 13,702, C.C.S., as amended, makes the emphatic provision that a vehicle, before crossing a street containing a car track, must come to a full stop, and that the driver must look and listen for approaching traffic. According to the testimony of Blackwell and Mrs. Huerstel, the Cadillac was brought to a stop before the attempt at crossing was made. However, we notice that Mrs. Huerstel testified:

“I looked to my left first. There was no streetcar or anything coming to my left, and I looked to my .right and there was nothing coming.
* * * * * *
“From neither direction did I see anything coming. And the lefthand side is an open corner. To the right-hand side, I don’t think you could see * * * you can’t see too much beyond that corner. And there wasn’t anything coming there when I started my car over the intersection.”

Even though Mrs. Huerstel did stop at the intersection, she had complied with but one of the duties imposed upon her by the city ordinance. In addition to stopping, the ordinance makes it mandatory for a driver to look and listen, so as to carefully observe traffic conditions. Mrs. Huerstel was unable to see up Dau-phine Street because the corner was blind, and under that circumstance it was her duty to have proceeded slowly and cautiously until her automobile had reached a point where there was no interference with her vision. Had this precaution been taken, there is no doubt that Mrs. Huerstel could and would have seen the oncoming truck, and we think that her failure to make certain, before coming out into the intersection, that her path was clear constitutes gross negligence. See Pancoast v. Cooperative Cab Co., La.App., 37 So.2d 452, and authorities therein cited.

There is no doubt that the truck was in close proximity when Mrs. Huerstel made the ill-timed attempt at crossing. This fact is clearly demonstrated by the testimony of Blackwell and his passenger, each of whom stated that the truck passed their car when it was in the middle of the block before St. Maurice Avenue, and that the truck was about 120 feet ahead of the Blackwell car when the collision occurred.

That the truck was speeding can hardly be doubted. Blackwell fixed its speed at between thirty and forty miles an hour; Mrs. Hughes said its speed was “awful.” We place no reliance upon the statements of Williams that the Cadillac was going at forty or fifty miles an hour, while his own-speed was about twelve miles an hour at the intersection.

We do not know on what premise the trial judge based his conclusions, but our scrutiny of the record leads to the belief that the accident was caused through the joint negligence of Mrs. Huerstel, who failed to look and listen, and the driver of the truck, who operated his vehicle at an excessive rate of speed. Neither owner of the vehicles involved should be allowed to recover damages.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from, insofar as it awards plaintiff $650.85, is reversed and plaintiff’s suit is dismissed; in all other respects the judgment is affirmed. Plaintiff-appellee is to pay all costs.

Reversed in part

Affirmed in part.


text:
    LASTIE v. CORTINAS.
    No. 18921.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Fred G. Veith, of New Orleans (Daniel Wendling, of New Orleans, of counsel), for appellant.
    Gaspar R. Bossetta, of New Orleans, for appellee.
   REGAN, Judge.

The plaintiff, Frank Lastie, brought this suit against defendant, Joseph M. Cortinas, for specific performance which emanated from an agreement to sell, dated August 15th, 1946.

The defendant filed exceptions of “no right or cause of action” which were overruled, and then answered admitting execution of the agreement “to sell plaintiff certain property”, but denied that the plaintiff was entitled to specific performance and that plaintiff had failed to comply with the terms of the agreement to sell.

From a judgment in favor of plaintiff ordering defendant to comply with the agreement by transferring the property in question within thirty days and awarding plaintiff the sum of $125.00 as attorney’s fees, defendant prosecutes this appeal.

The record reflects that this action for specific performance is predicated entirely upon the “receipt” which reads as follows:

“Aug. 15, 1946
Received of Mr. Frank Lastie Twenty-five.Dollars deposit on Account of lot A, Square No. 11, bounded by N. Claiborne, Reyne, Derbigny, For-stall measuring 34 feet front on Claiborne by 154 feet. Price $900.00 cash the $25.00 to apply to purchaser.
$25.00
.Title in 90 days (Sign’d) J. M. Cortinas.”

Plaintiff incorporated this receipt in his petition and alleged that “he has been ready and willing to accept title to said lot and has offered defendant the balance of the purchase price”; that he made “repeated demands” upon defendant to transfer title and that finally on February 4th, 1947, plaintiff wrote defendant and demanded the “transfer of title”, but defendant “informed your petitioner in person that he would not go through with the sale”. Plaintiff further alleged that defendant has not returned the deposit and that plaintiff is “entitled to, and desires the said lot which he has purchased.”

Based on the foregoing allegations contained in plaintiff’s petition, defendant contends that the court a qua erred in not maintaining his exceptions of “no right or cause of action”, because “plaintiff’s petition * * * failed to make the essential allegation that he was ready, willing and able to carry out the agreement within the time specified, and the fact that the $25.00 was earnest money to bind the sale”.

Plaintiff, on the other hand, contends that “he is entitled to specific performance” by virtue of the provisions contained in Article 2462 of the Revised Civil Code, which reads as follows:

' “A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same. * * * ”

Although defendant does not specifically cite Article 2463 of the Revised Civil Code, his terminology indicates that he relies on the provisions thereof, which read as follows :

“But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; * * *

In Searcy v. Gulf Motor Company et al., 37 So.2d 445, 447, decided November 3rd, 1948, by this Court, we discussed the subject of “earnest money” at length and we said:

“There is an abundance of jurisprudence on the question of the distinction between' a contract of sale in connection with which a payment on account of the purchase price is made and a deposit made as earnest money in connection with an agreement to sell. We reach the conclusion that Livingston v. Southport Mill, 173 La. 120, 136 So. 289, 290, sets forth the present view on the subject and that unless there is an express stipulation to the contrary or unless the facts clearly show that the parties intended the contrary:
“ * * Where one, under a contract to purchase, deposits money on account of the purchase price, the money so deposited is earnest money, though intended at the time of the consummation of the agreement, by the passage of the sale, to be applied on the purchase price. * * * ’
“In a very interesting article in 6 Tulane Law Review at page 129, ‘Sales — Recovery of Deposit — Earnest Money — Art. 2463, La. Civil Code of 1870/ appears the following:
“ ‘ * * * With the exception of the case of Nosacka v. McKenzie, 1911, 127 La. 1063, 54 So. 351, following Provenzano v. Glaesser, 1908, 122 La. 378, 47 So. 688, which case was overruled in Maloney v. Aschaffenburg, 1918, 143 La. 509, 78 So. 761, the jurisprudence in Louisiana has been uniform in establishing the rule that any money deposited by the vendee at the time of the contract to sell is presumed to be earnest money, even though it is referred to by the parties in their contract as being paid on account of the purchase price. Collins v. Desmaret, 1893, 45 La.Ann. 108, 12 So. 121; Capo v. Bugdahl, 1906, 117 La. 992, 42 So. 478; Legier v. Braughn, 1909, 123 La. 463, 49 So. 22 * * *.’
“The author of that article, referring to another exhaustive discussion of the subject in 11 Loyola Law Journal 121, ‘The Function of Earnest Money in the Civil Law of Sales/ says:
“ ‘ * * * The jurisprudence since Ma-loney v. Aschaifenburg, supra, has so firmly established the foregoing rule, that it is now necessary for the parties, if they do not wish to forfeit the right of specific performance, to incorporate an express provision in their contract negativing any presumption that the sum deposited is earnest money. * * * ’
“In this latter article the author makes the following statement (page 137):
“ ‘ * * * As a general statement, it may be said that there is a decided tendency on the part of the Supreme Court to construe an agreement to be a promise to sell rather than a contract of sale.’ ”

We are of the opinion that the contract sued upon here is not a sale, but a promise to sell, which was accompanied by the “giving of earnest” and cannot be specifically enforced. A fortiori the judex a quo should have maintained defendant’s exceptions of “no right or cause of action” and dismissed plaintiff’s suit, consequently and

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and there is now judgment in favor of defendant and against plaintiff, maintaining defendant’s exceptions of “no right or cause of action” and dismissing plaintiff’s suit at his cost.

Reversed.


text:
    RENDUELES v. SOLOMON et al.
    No. 18971.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Guy J. D’Antonio, of New Orleans, for plaintiff and appellant.
    Walter M. Barnett, Jr., of New Orleans, for defendants and appellees.
   McBRIDE, Judge.

Plaintiff, Theresa Rendueles, age 59, fell through a skylight on May 5, 1944, on the premises of her employer, while working ■as a seamstress operating an electrically driven sewing machine, and sustained injuries.

She was paid workman’s compensation weekly at the rate of $10.40 for 120 weeks, when the payments ceased. Claiming to he totally and permanently disabled, plaintiff filed this suit, in forma pauperis, against the employer, a partnership known as A. Solomon, the partners thereof, and the partnership’s insurance carrier, Standard Accident Insurance Company. The prayer is for compensation at the rate of $10.40 for 280 weeks, plu's $500 medical ■expenses. The defense is that plaintiff suffers no disability and is not entitled to further compensation.

From a dismissal of her suit, after a trial on the merits, plaintiff has prosecuted this appeal.

Plaintiff depends entirely upon lay testimony for the establishment of her case. After the fall, she was taken first to the Charity Hospital and then removed t® the Hotel Dieu where she stayed for about nine weeks. She remained in bed at her home for one month, then used a wheel chair for another month, after which she walked with the aid of crutches for about two months. For a time thereafter, she used a cane.

Plaintiff claims that she cannot walk, sit, or stand for long periods, because of a stiffness in the hack and pains in her right hip. She complains of cramps in the right leg, nervousness, and loss of sleep. She finds it necessary to wear a corset prescribed by Dr. Geismar, and according to her testimony she cannot get in or out of the bathtub or bed without help. Plaintiff insists that she is Unable to return to her employment because, “I wouldn’t go there for a day and then they would lay me off because I couldn’t do the work and sit down enough; and no boss will hire you where you have to sit down, stand up and sit down again.”

A.niece, with whom plaintiff lives, testified that Miss Rendueles suffers severe pains in the right pelvis, and that she is unable to work around the household, except to help in the kitchen. Plaintiff is being supported by this niece and a nephew. The nephew testified that while he does not live with plaintiff, he sees her practically every day, and that she complains of pains in her right leg, is unable to work, and that he helps to support her.

Three medical experts appeared for the defendants. Dr. Geismar first saw plaintiff on the day of the accident and treated her until sometime in 1945. X-ray plates showed fractures of the transverse processes of the fourth and fifth lumbar vertebrae on the right side; a fracture of the superior border of the sacrum, with separation of the right sacro-iliac joint; and a fracture of the rami of both the right ánd left pubis. During treatment, the patient developed an infarct of the lung, and also a bladder disturbance. Dr. Geismar saw plaintiff at intervals at her home. The last time he saw her, the X-ray pictures showed that the fractures had healed with perfect union. By January, 194S, plaintiff was walking without aids, and his advice was that she should use and exercise her legs, and that if she would do so she would experience no further difficulty. According to Dr. Geismar, the only residual is a ten per cent disability in extreme bending.

Dr. Warren L. Rosen, a general surgeon who had much orthopedic experience as a member of the medical corps of the Army, made an examination on December 20, 1945. Plaintiff complained of stiffness which limited motion of the back and trunk, and asserted that she could not sit or stand for long periods without pain. Dr. Rosen’s examination disclosed that the patient moved with caution, as though afraid of falling, but that he noticed no limp. However, she was able to bend forward and could almost touch the floor with her hands, and was also able to hyperextend her back and move freely from side to side. Muscle spasm was present in the great lumbar muscle, without evidence of any inflammatory process. Dr. Rosen’s opinion was that if plaintiff had exercised her muscles she would have been able to return to her former work and proceed with her usual duties. He stated that the complaints referred to muscle tone, and the other symptoms, such as back pains, etc., could be attributed to hypertrophic changes because of plaintiff’s age. Dr. Rosen agreed that the ten per cent disability mentioned by Dr. Geismar would probably result from muscle tone. He testified:

“A. * * * I mean by that, you take the case of a longshoreman who has been out of work for two months or six months or a year and put him back to carry sacks on his back. The first time he goes back he has a disability; he cannot do that the first time. His muscles have not been built up1; but using them continually over a few weeks he will rebuild the muscles to the point where he won’t have a disability. I think the same thing appears in this case.
“Q. You think if Miss Rendueles actually exercised her muscles she would be able to resume her work and that the bones of her leg and pelvis have knitted sufficiently to enable her with the new muscle tone to proceed to her usual duties? A. I feel that way.”

Dr. Theodore Simon examined plaintiff on April 22, 1946, and rendered a written report dated April 27, 1946, which was admitted into evidence, it being stipulated by counsel that the testimony of Dr. Simon, if present, would coincide with the recitals of the statement. It does not appear that the report was filed, as it is not contained in the record; however, a reference to Dr. Geismar’s testimony discloses that Dr. Simon found that plaintiff walked with some favoring of the right lower extremity producing a tendency to limp, with tenderness of the rounding of the dorsal spine, and that on forced internal and external rotation of the right hip the patient complained of pain at the hip joint. Dr. Simon estimated the residual to be about ten per cent of the body as a whole, which condition wo.uld not prevent plaintiff from returning to her former employment.

Plaintiff’s counsel urges us to disregard the testimony of the medical experts and to adopt that of plaintiff and her witnesses as the basis for formulating an opinion in this case, tie argues that courts sometimes accept lay testimony in preference to that of medical experts. However, whenever that course was pursued it was because the experts were in irreconcilable disagreement, or the testimony was not helpful to the court, which is not the case here. Counsel also advances the argument that a workman’s disability resulting from hysteria traceable to the accident is equally as compensable as physical injuries. However, there was no showing made that plaintiff is laboring under a neurosis, nervousness, or an emotional disorder. Plaintiff herself asserts that she cannot do her former work because of physical pain, and that alone, according to her testimony, is the ground upon which she bases her right to compensation.

The record clearly demonstrates that plaintiff’s complaints result from the failure to properly exercise her limbs, as recommended by Dr. Geismar. Plaintiff admits that she did not take the prescribed exercise, and gave as the reason that the process was painful. Plaintiff was also advised that she should endeavor to engage in her former occupation, as the work, which required the use of the legs, would be beneficial. Her employer offered to reemploy her and attempted to induce her to return, but she declined because of her belief that she was unable to perform the duties of the job. There is another circumstance which must be taken into consideration. Although claiming to be incapacitated and suffering severely, plaintiff has sought no medical attention since being discharged by Dr. Geismar in 1943. It was testified to that sbp Hid not seek further treatment because she is without funds; but why she did not visit Charity Hospital or some like institution caring for indigent persons was never explained.

A question of fact only is involved, which was resolved by the lower court adversely to plaintiff. Our examination of the record reveals that there is no manifest error in the judgment, but on the contrary it appears to be correct and • fully warranted by the great weight of the evidence.

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

Affirmed.


author: MOISE, Justice.

text:
    214 La. 1003
    BERTEAU v. POLICE JURY OF PARISH OF ASCENSION et al.
    No. 39309.
    Supreme Court of Louisiana.
    Feb. 24, 1949.
    Sidney A. Marchand, Jr., of Donaldson-ville, for plaintiff-appellant.
    Aubert L. Talbot, Dist. Atty., of Napo-leonville, and Geo. R. Blum, Asst. Dist. Atty., of Donaldsonville, for defendant-appellee.
   MOISE, Justice.

This is an appeal from a judgment dismissing the suit of Sam L. Berteau against the Police Jury of the Parish of Ascension, Louisiana and the Board of Commissioners of the East Ascension Consolidated Gravity Drainage District No. 1.

The petitioner, a ’ resident taxpayer of that part of the Parish of Ascension included in the East Ascension Consolidated Gravity Drainage District No. 1, 'brought this action against the Police Jury of the Parish of Ascension and the Board of Commissioners of the East Ascension Consolidated Gravity Drainage District No. 1, attacking the proceedings of said Police Jury in constituting itself the Board of Commissioners of the East Ascension Consolidated Gravity Drainage District No. 1, as well as the proceedings of said Board of Commissioners looking to the issuance of $205,000.00 of Drainage District Bonds. The petitioner prayed that the aforesaid proceedings taken by the Police Jury be declared illegal, null, void and of no effect.

Plaintiff contends that the Police Jury of the Parish of Ascension should have appointed Drainage Commissioners in accordance with the terms and provisions of the general statute covering consolidated gravity drainage districts, Act No. 212 of 1942. The defendant argues that by virtue of a special Act, No. 91 of 1948, § 3, the Police Jury of the Parish of Ascension has been constituted by law the “* * * ex officio * * * Board of Commissioners * * *» 0f fhe East Ascension Consolidated Gravity Drainage District No. 1.

The district court upheld defendant’s contention and declared that Act No. 91 of 1948 superseded Act No. 212 of 1942, and that the action of the Police Jury is legal and proper. The plaintiff appealed.

The petitioner asserts that while it is true that Act No. 91 of 1948, § 3, provides that “* * * The Police Jury of the Parish of Ascension shall ex officio constitute the Board of Commissioners of such consolidated gravity drainage district * * *” this section further provides “* * * the Board of Commissioners of such consolidated districts * * * shall be appointed in accordance with law * * and plaintiff has construed this alleged ambiguity to mean that the provision “* * * in accordance with law * * *” has reference to the law as set out in the general statute, Act No. 212 of 1942, which provides for the appointment of five resident property taxpayers of the district, all of whom are to be registered voters. Defendant argues that the language “in accordance with law” merely means according to the law as anounced in the Act No. 91 of 1948.

To give plaintiff’s interpretation of the Act effect, we must completely ignore the provision of Act No. 91 of 1948 which in positive terms declares that the Police Jury of Ascension Parish shall “ex officio constitute the Board of Commissioners”.

Article 17 of the Revised Civil Code provides: “Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

Act No. 91 of 1948 clearly states that the Police Jury of Ascension Parish shall ex officio constitute the Board of Commissioners; and the provision “in accordance with law” means the law provided by Act No. 91 of 1948. If the court were to adopt the construction as contended for by petitioner, the act would then provide for two methods of appointment, and this would be a commitment for an absurd or a ridiculous interpretation.

It has been well said in the case of State ex rel. Womack et al. v. Jones et al., 201 La. 637, 10 So.2d 213, 217, that “* * * The function of the courts of justice is to interpret the laws so as to give them the meaning which the lawmaker obviously intended them to .have, and not to construe them so rigidly as to give them absurd or ridiculous meanings.”

Act No. 212 of 1942 deals with a subject general in its terms; and the statute of the later date, Act No. 91 of 1948, deals with a specific subject and makes a clear and specific appointment, and the terms of that act are definite and conclusive as to its meaning. The two should be read by the court together and if there are any clauses that are dubious, they should be harmonized and a construction should be adopted, giving effect to a reasonable uniform legislative policy. The special and more recent act must prevail over the general and old enactment.

Article 16 of the Revised Civil Code provides: “Where the words of a law are dubious, their meaning may -be sought by examining the context with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning.”

In Mayor etc. v. New Iberia & Bayou Carlin Drainage District, 1901, 106 La. 651, 31 So. 305, 307, the commissioners of the New Iberia & Bayou Carlin Drainage-District ordered an election on the issue of imposing a special tax for drainage purposes. The Mayor and Board of Trustees of the Town of New Iberia sought to-restrain the commissioners from holding the election, contending that as to a tax on property within the corporate limits of the town, the power to order such an election was vested in them. Previous to 1900, by various acts of the Legislature, the mayor and trustees of New Iberia were vested with, authority, to the exclusion of the police jury, to administer the town’s affairs. Act No. 12 of 1900 authorized police juries to-establish drainage districts, and, with the governor, to appoint commissioners to manage their affairs, conferring upon such commissioners power to order the elections, for the levying of the special tax authorize' by Article 281 of the Constitution of 1898. The Act provided: “* * * the provisions of this section do not prevent the Police Juries of the various parishes including in a drainage district incorporated towns as a part thereof.” Six days after the approval of the above Act, the governor approved Act Nó. 33 of the same session, which contained certain specific grants-of power to the town authorities, among these being: “The Mayor and Board of Trustees of the town of New Iberia may-sub-divide the city into drainage districts,, and the said Mayor and Board of Trustees-shall be ex-officio the drainage commissioners within these respective districts and which districts shall have all the rights and privileges ordinarily belonging to drainage districts under the general laws.” Judgment was rendered in favor of the mayor and board of trustees, decreeing that the New Iberia & Bayou Carlin Drainage District had no jurisdiction over the territory situated within the corporate limits of the town for 'the purpose of ordering elections for the imposition of taxes for drainage purposes. In considering the provisions of Act No. 33 of 1900, the court stated: “* * * It only remains to be stated that this provision * * * being a later and a special statute, necessarily controls in case of any conflict between it and the earlier and more general legislation to which we have referred.” This holding fits the ruling in the instant case. “Non jus, ex regula, sed regula ex jure. The law does not arise from the rule. (or , rpaxim) but the rule from the law.”

Act No. 91 of 1948.being a special statute, its provisions, and particularly Section 3 thereof, must control in case of any conflict between it and the earlier and more general legislative act, No. 212 of 1942.

The judgment of the district court is affirmed.


author: McCALEB, Justice.

text:
    214 La. 1009
    CONTINENTAL OIL CO. v. FUSELIER et al.
    No. 38857.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    James G. Dubuisson and Edward Dubuis-son, both of Opelousas, for defendants-appellants.
    Plauche & Plauche and S. W. Plauche, Jr., all of Lake Charles, for defendants-appellees.
   McCALEB, Justice.

This suit involves the ownership of a l/256fn royalty interest in the oil being produced from wells located on certain lands in Jefferson Davis Parish. It was commenced as a concursus proceeding by Continental Oil Company, the purchaser of' the oil. It alleged that it was unable to determine the party to whom payment of the royalty should be made bec'ause of the existence of an agreement wherein Joseph Fuselier, the record owner, transferred title to the l/256th royalty interest to one Frantzen and himself, as trustees for a corporation to be formed in the future. Accordingly, it prayed that it be permitted to deposit the monthly amounts allocable to the royalty in the registry of the court and that all interested parties be cited to appear and assert their claims.

In due course, Joseph Fuselier and his children appeared and challenged the legality of the agreement conveying the royalty interest on several grounds. Frant-zen, one McCutcheon and other royalty •owners, who had entered- into agreements similar to the Fuselier contract, also appeared and defended the agreement, contending for its validity in all respects. ■

After a trial below, there was judgment in favor of Fuselier and his children, declaring the agreement to be a nullity, and directing its cancellation and erasure from the conveyance records of Jefferson Davis Parish. Frantzen, McCutcheon and several of the other parties interested in maintaining the legality of the agreement have prosecuted this appeal.

The contract was entered into on March .25th 1937 between- Joseph Fuselier, the ■•royalty owner, Frantzen and Fuselier, as trustees, and McCutcheon, the promoter of the scheme, as party of the third part. The purpose of the agreement was the pooling of certain royalty interests of various landowners in Acadia and Jefferson Davis Parishes by providing -for an assignment of fractional interests in the royalties owned by them to Frantzen and Fuse-lier, as trustees, and then to be later as-, •signed to a corporation to be named “Elton Royalty Pool, Inc.” (which has never been formed). Upon ,the creation of the corporation, the original royalty owners were to receive stock proportionate to royalties assigned by them and their combined interests would comprise 75% of the capital stock of the company. The balance, or .25%, of the stock was to be .issued to McCutcheon in consideration of his efforts ■in selling the proposition to the various royalty owners and in repayment of expenses incurred by him'in the'formation •d E the proposed' corporation. There was no master plan — that is, an agreement between all of the landowners, the trustees ■and McCutcheon, but each separate contract made plain the idea of the pool or •combination and was contingent upon Mc-Cutcheon’s ability to secure at least 2,000 royalty acres for the pool within sixty •days from the date of the agreement. Other contingencies were" also stipulated but the salient provisions of the agreement are as follows:

Fuselier conveyed a percentage of his •entire royalty interest in 1332 acres to Frantzen and himself, as trustees. The trustees were to hold said royalty -interest, as well as royalties from other landowners, until the corporation was organized. In the event oil or gas was discovered on any of the land within the pooled area, the trustees (Frantzen and Fuselier) were to immediately draft articles of incorporation for the formation of “Elton Royalty Pool,Inc.” Should the trustees fail and neglect to take the necessary steps to form such corporation within a period of sixty days following the discovery and production of oil within the pooled area, then any member (royalty owner) of the pool, or Mc-Cútcheon, had the right to organize -the •corporation to protect the interests and rights of all parties. The agreement also contained the following condition:

“In the event such corporation is not so organized within ten years from March 25, 1937, the trustees agree to cancel, surrender and return this contract to the- first parties.” . ...

And it was expressly understood that the corporation should not be formed unless oil or gas wás ■ discovered in commercial quantities upon some of the lands forming part of -the pooling agreement. '

Fuselier and his children assail the agreement on numerous grounds. They say that it is null (1) because it created a trust which was reprobated by the laws of this State on the date of its execution; (2) that it is inchoate and incomplete and did not become a -perfected contract because McCutcheon, the real obligor, did not affix his signature thereto; (3) alternatively, that it is a nudum pactum because it lacks mutuality or serious consideration; (4) that it has become dissolved inasmuch as the corporation was not formed within ninety days after the discovery of oil, and (5) finally that, at all events, it is dissolved by its own terms because the corporation was not organized within ten years from March 25th 1937.

The judge of the district court was of the opinion that the agreement constituted a trust which was -illegal and reprobated under our law at the time it was executed. While we entertain doubt as to the soundness of this view, we find it unnecessary to consider or discuss this feature of the case as we are convinced that, even if the agreement be regarded valid at the date of its execution, it is no longer in force and effect by reason of the non-fulfillment of the resolutory condition that the corporation be formed within ten years from its date.

At the -time this suit was filed, the ten year period had not elapsed. On March 25th 1947 (the deadline for the formation of the corporation), the case was under advisement in the district court. Prior to judgment, to wit, on October 7th 1947, counsel for Fuselier moved that the matter be reopened for the limited purpose of showing that the corporation had never been formed. The judge disallowed the motion and thereafter handed down his judgment.

We do not think it is of any moment that the judge refused to reopen the case as it is clear, from the above quoted provision of the contract relative to the formation of the corporation, that, if the corporation is not in esse within ten years from March 25th 1937, it becomes the trustees’ bounden duty to cancel, surrender and return the contract to Fuselier. Hence, after March 25th 1947, McCutcheon, Frant-zen and all other parties appellant were divested of any right or interest in the agreement — for, the non-fulfillment of the resolutory condition dissolved it and the parties were restored to the positions which existed prior to its confection.

Article 2045 of the Civil Code declares:

“The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.
“It does not suspend the execution of the obligation; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.”

See also Articles 2046 and 2047.

The judgment appealed from is affirmed.

O’NIELL, C. J., does not take part.

       This condition, was performed.

       If the corporation had been formed, it ■would have been necessary to substitute it as a party in interest in the place of McCutcheon, Frantzen and the other appellants, as any interest which they might have had would have been transferred to the corporation.


text:
    214 La. 1016.
    BREZNER v. B. & T. LUMBER CO. et al.
    No. 38751.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.

      Gravel & Downs, of Alexandria, for defendants-appellants.
    J. Vance Thompson, of Alexandria, for plaintiff-appellee.
   McCALEB, Justice.

This controversy arises out of an oral contract of purchase and sale of lumber. Plaintiff, however, ignoring the contract, instituted the action to recover $2211.44 from the defendant, a commercial co-partnership, 'alleging that during the year 1946 he “advanced and loaned” $6600 to defendant and that it, repaid $4388.56, leaving a balance due in the amount sued for.

Defendant answered and denied any indebtedness. It set forth that, on August 27th 1946, it entered into an oral agreement with plaintiff to sell him all the lumber cut and produced by it at its mill for the price of $40 per thousand feet and that, as said lumber was cut and stacked at its mill site in accordance with specifications of plaintiff’s agent, it was to be deemed plaintiff’s property, to be removed by him at his pleasure. It further averred that, in conformity with this understanding, it cut and stacked at the first mill site used in the work approximately 110,000 feet of lumber; that, thereafter, it changed its operations to another mill site where approximately 60,000 feet of lumber was stacked, thus making a total of 170,000 feet of lumber; that, as this lumber was cut and stacked in accordance with the specifications of plaintiff’s agent, payments were made by plaintiff each week during the months of September, October, November and December 1946 and that the total of these payments amounted to $6600, which, represented the purchase price for the lumber cut, stacked and delivered at the two mill sites.

After • a trial in the lower court, there was judgment in plaintiff’s favor for the sum of $2066.52. Defendant has appealed. Plaintiff has answered, praying that the judgment be increased to the sum sued for and, alleging that the appeal is frivolous, seeks 10% additional on principal and interest as damages.

An examination of the record makes manifest that the only matters presented for decision are questions of fact. It is not disputed that the parties entered into an oral agreement during August of 1946, whereby plaintiff was to purchase lumber produced at defendant’s mill and that he did purchase a large quantity of lumber, making disbursements totalling $6600, which were based on estimates furnished him by his inspector and agent, one W. G. Sanderson, who was stationed at defendant’s mill. However, disagreement occurs as to whether the $6600 was given in payment for the purchase of the mill’s output or whether it constituted mere cash advances on account of lumber to be purchased.

Defendant claims, as alleged in its answer, that plaintiff agreed to purchase its entire output to be cut and stacked at its mill sites for plaintiff’s use and account; that payments were made to it each week in accordance with estimates of Sanderson as to the amount of lumber stacked for plaintiff’s account and that at least 165,000 feet of lumber were 'cut and stacked at the two mill sites for which plaintiff paid a total sum of $6600 in accordance with his agreement ($40 per thousand feet).

Francis H. Taylor, one of the co-partners who made the agreement on behalf of defendant, testifies to the foregoing. His testimony is corroborated in large measure by his partner, James R. Barron, and is further supported by other facts and circumstances to which we shall hereafter refer.

A reading of plaintiff’s evidence and that of his inspector, W. G. Sanderson, does not clarify the exact nature' of his contention. Plaintiff stated that he made an agreement to purchase lumber from defendant; that the .money was advanced weekly upon estimates furnished him by Sanderson but he maintains that the money disbursed on Sanderson’s estimates was not in payment of the purchase price of the lumber. His version of the agreement, as we understand it, is that he was to pay only for the part of the lumber that he resold to his customers and, on this basis, he offered in evidence various and sundry sales slips showing that he disposed of 113,337 feet of lumber for which he gives defendant a credit of $.4388.56, leaving the balance due of $2211.44, sued for.

The testimony of Sanderson supports plaintiff’s position that he was not buying the output of defendant’s mill but only such lumber as he (Sanderson) would approve after it had been selected from the stacks at the mill site. When questioned about the estimates upon which the payments to defendants were made, Sanderson answered that the money was merely advanced and that the agreement was that the difference would be adjusted when plaintiff removed the lumber from the stacks.

Thus, it is seen -that there, is a irreconcilable conflict between the evidence of plaintiff and Sanderson and that of Taylor and Barron. If we give equal credence to all of these witnesses, it is evident that plaintiff’s suit must fail as he is seeking recovery of overpayments made under the contract and, consequently, the burden was on him to establish that fact by a preponderance of 'evidence. And he could not escape this obligation by the expedient of disregarding the contract and making it appear that he. had “loaned” defendant' $6600

But, apart from the burden of proof, we think that there are other facts and circumstances appearing herein which make it plain that the judgment in plaintiff’s favor is manifestly erroneous. To begin with, we find the evidence of Taylor, who made the agreement for defendant, to be clear and direct in all particulars whereas plaintiff’s testimony is uncertain and equivocal. Then, too, it is shown by one of the defense witnesses, James Koscinsky, that he contacted Taylor in January 1947 for the purpose of buying some lumber; that Taylor informed him that he would have to see Sanderson; that, in an interview with the latter, he was' told -that all the-stacked lumber belonged to plaintiff because defendant was cutting it for him and that he could buy the lumber. on the stack at $65. -per. thousand feet. Sanderson does, not attempt to contradict the statement of Koscinsky in his rebuttal testimony.

When we consider - the foregoing; and other circumstances, we believe that, it is reasonable to conclude that the weekly monies disbursed-by plaintiff to defendant* based on the estimates of his inspector of the lumber cut and stacked, were payments, for the purchase of the lumber at $40 per thousand feet and that, since the .evidence shows that defendants cut. and stacked at least -165,000 feet of such lumber for plaintiff’s-account, defendant has not been overpaid.

The judgment appealed from is reversed' and plaintiff’s suit is dismissed at his costs-

O’NIELL, C. J., does not take part.

       Plaintiff joined James R. Barron and Erands H. Taylor, the partners, as co-defendants and prayed for judgment against the partnership and the co-partners in solido,

       The district judge erroneously con-eluded that, since defendant admitted receiving $6000, it carried the burden of establishing that it not only cut and made available 105,000 feet of lumber but that this lumber, when stacked, was at plaintiff’s risk,


author: HARDY, Judge. KENNON, Judge.

text:
    KINGS TRUCK & BODY WORKS v. BARRETT.
    No. 7252.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Granted Jan. 6, 1949.
    On Rehearing March 30, 1949.
    Morgan, Baker & Skeels, of Shreveport, for appellant.
    Love & Bailey, of' Shreveport, for ap-pellee.
   HARDY, Judge.

Plaintiff sues to recover the sum of $525.00 for work performed in installing a •refrigerator body on a Jeep automobile truck owned by defendant. Defendant admitted the agreement for the performance of the work by plaintiff, but strenuously opposed the action for recovery of the value thereof on the ground that plaintiff’s work was thoroughly and completely unsatisfactory and that the body as constructed by plaintiff was useless for the •purpose for which it was designed, namely, as a container for ice cream to be sold by defendant in retail trade. Defendant reconvened for damages consisting of loss of earnings, expenditures on the body designed to make the same fit for use, and attorney’s fees, in the total sum of $1,-184.09.

After trial there was judgment rejecting both the demands of plaintiff and the reconventional demand of defendant, from which judgment plaintiff has appealed and defendant has answered the appeal, re-urging his reconventional demands.

The following facts were conclusively established on trial: that defendant purchased a Jeep truck in 'the early part of July, 1947, and at or about the same date entered into an agreement with plaintiff for the building of an insulated refrigerator body at a fixed cost of $500.00; that the truck was delivered to plaintiff on or about July 29th, for the purpose of beginning the work; that between the dates of July 29th and September 11th, 1947, plaintiff had possession of the truck with the exception of two days during the latter part of August; that on September IS, 1947, the defendant took possession of the truck and body, delivered the same to a garage for work in lining the refrigerator; that the truck was again returned to plaintiff on September 19th, and finally was taken possession of by defendant on September 22nd.

One of the disputed facts in connection with this matter is with respect 'to the agreement as to the time for the performance of the work. ' Defendant contends that plaintiff agreed to complete the work within a period of two weeks after the truck was first delivered to him on July 29th. While this is stoutly denied by plaintiff, we are constrained to conclude that there was some su'ch understanding. Defendant, a returned war veteran, was anxious to begin work in some gainful employment and the business he selected, namely, that of retailing ice cream products, is definitely a seasonable venture. There can be no question as to defendant’s desire to have the work performed with the least possible delay, and certainly time was of the essence of the agreement. The evidence on this point appears to us to preponderate in favor of defendant.

Certainly, there is no question as to the correctness of a finding to the effect that plaintiff consumed an undue amount of time in its work on the refrigerator body, and, further, that the job was completely unsatisfactory, and, to a large degree, unserviceable for the purpose for which intended. To our minds these facts are conclusively established by the record, and it follows that plaintiff is not entitled to recover by reason of the fact that he sues on the basis of work performed under an agreement and he has failed to establish compliance with the terms thereof.

It is argu'ed on the part of plaintiff that its work was “substantially” completed on August 29th, when the vehicle was first taken out of its possession for a brief period 'of time by the defendant, and that only minor details in connection with the construction remained to be done. This argument is refuted by the fact that after August 30th the vehicle was returned to plaintiff, who retained possession of it for a period of some three weeks more or less. And it must be borne in mind that plaintiff never did satisfactorily remedy the existing defects and, after thorough study of the evidence, we have reached the conclusion that this failure was due to plaintiff’s lack of ability to satisfactorily perform his agreement and not to any lack of time within which to perform. It was shown that plaintiff had never performed any work of this nature or kind, and, in fact, it appears that the venture on his part was in the nature of an experiment and, unques.-tionably, his efforts were unsuccessful.

It is further urged on behalf of plaintiff ■that if the Court should hold he has failed to perform his obligations by reason of the incomplete or defective work, that he is. nonetheless entitled to recover the contract price, leaving defendant a remedy in the-nature of a reduction to the extent neces.-sary to perfect or complete the work. There might be some merit in this contention were it not for the fact that defendant has successfully established the fact,, through the overwhelming testimony of himself and his witnesses -that the job as performed by plaintiff is useless for the intended purpose. Defendant received little,, if any, benefit as the result of plaintiff’s, work. He was deprived of any use of the truck during the period which embraced the height of the season for the sale of his produce; he was put to some substantial expense in the attempt to procure elsewhere a remedy of the defects, and, despite everything that was done, the work remained thoroughly unsatisfactory.

Under this conception of the established facts, we are firm in the belief that plaintiff has failed to make out a case for recovery on any ground whatever and the citations of authority as to the right to an increase over the contract price, the determination of “reasonable time”, the alleged prevention of performance by defendant, and the correction of defects, are alike inapplicable.

The nature of this action and the facts •involved are strikingly similar to the case of Standard Plumbing, Pleating & Supply Co., Inc., v. Goudchaux’, et al., La.App., 11 So.2d 96, which was an action for the ■recovery of the contract price for the installation of a cooling system. Our brethren of the First Circuit compared the action to that of the voidance of a sale by a buyer for defects rendering it unfit for the purpose of and use for which it was intended. On this ground recovery for a cooling system, which was unsatisfactory, was denied. We think the same principle is properly invoked in the case before us.

We find no merit in the claims advanced by defendant in the nature of a reconventional demand. With the exception of one or two items, defendant failed to properly establish any damage. But, primarily, the reconventional demand may not be properly considered by reason of the fact that defendant has failed to put plaintiff in default as expressly required by the ■provisions of Article 1912 of the Civil Code.

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

On Rehearing.

KENNON, Judge.

Our original decree affirmed the judgment of the District Court, which rejected plaintiff’s demand against defendant for $525.00 for work performed in installing .a refrigerator body on the Jeep automobile •.truck owned by defendant and also rejected ■defendant’s reconventional demands for damages, loss of earnings and expenditures on the refrigerator body designed to make .same fit for use.

The District Court judgment was silent ■as to the disposition of the truck body, and no mention was made of this point by counsel for plaintiff or defendant in arguing the case on appeal.

In an application for rehearing, the plain•tiff concedes the correctness of the District Court judgment (affirmed by this Court) rejecting the demands of the plaintiff and rejecting the demands of the defendant in reconvention, but prays that the judgment appealed from be amended by ordering that the refrigerator body be held 'subject ¡to the order and disposition of plaintiff.

The defendant, in his brief opposing the application for rehearing, contends that the relief asked by plaintiff is beyond the scope of its pleadings and not properly before us on appeal.

Plaintiff in its original petition, after setting forth its contract with defendant and the completion of its work and delivery of the refrigerator body, prayed for a money judgment for the price allegedly agreed upon; for the issuance and maintenance of a writ of provisional seizure, etc'.,' and concluded the prayer of the petition with the following paragraph:

“V. For all such additional relief as law, ■equity and the nature of the case may permit.”

Defendant, in paragraph ten of his answer, set forth that the “alleged work or sale of refrigerator in question should be rescinded, set aside and annulled and that plaintiff in reconvention be entitled to recover the amount sued for herein in recon-vention.”

The plaintiff appealed from a judgment of the District Court rejecting its demands and also rejecting “the demands of plaintiff in reconvention.” Defendant answered the appeal requesting that the judgment of the lower Court be reversed insofar as it rejected his reconventional,demand.

The record shows that the plaintiff took both a suspensive and devolutive appeal from the judgment as rendered by the District Court. The defendant in his answer to the appeal prayed for a reversal of the only portion of the judgment adverse to defendant — the portion rejecting his recon-ventional demand.

The above quoted paragraph V. of plaintiff’s, petition asked for all the relief that law, equity and the nature of the case permits. The Courts of Louisiana have often held that in the case of the rescission of a sale for defects in the article sold, equity and justice require that the parties be placed in the same position they were in before the sale as nearly as is possible under the circumstances. We have concluded that this can best be accomplished by rendering judgment as follows.

Our original judgment herein is amended by ordering that the refrigerator body be held subject to the order and disposition of the plaintiff.

It is further ordered that the defendant (or sheriff if same be in his possession under Court order), deliver the refrigerator body to the plaintiff within fifteen days from the date this judgment shall become final and if, due to any action of defendant past or future, the refrigerator body is not delivered to plaintiff, the plaintiff do have and recover judgment aga-inst the defendant in the sum of $388.41 ($525.00 contract price less $136.59 expended by defendant to make body usable), with 5% per annum interest from date of filing of the suit in the District Court.

As amended, our original judgment is reinstated. Costs of District Court to be paid 'by plaintiff; costs of .appeal to be borne by defendant.