text:
    WARNICK et al. v. LOUISIANA HIGHWAY COMMISSION. BATEMAN et ux. v. SAME. LEDET et ux. v. SAME. LEDET v. SAME.
    Nos. 8009-8012.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.

      Arthur B. Hammond and Tom M. Hayes, Jr., both of Baton Rouge, for appellant.
    Ellis, Ellis & Barranger, of Covington, Talley & Talley, of Bogalusa, and Pugh, Lanier & Pugh, of Thibodaux, for appel-lees.
   DORE, Judge.

These four cases were instituted against the Louisiana Highway Commission by virtue of Act No. 366 for the year 1940. They 'were consolidated in the lower court for the purpose of trial and submission, a separate judgment to be rendered in each case. They were again consolidated in this court for argument and submission with the understanding that a separate decree will be made in each case.

These suits arise out of an automobile-truck accident which occurred on the Franklinton-Bogalusa Highway in Washington Parish, on Sunday night of February 12, 1939, at about the hour of 10:15 P. M., at a point one and one-half mile from the business center of the City of Bogalusa. While the accident occurred within the corporate limits of the said city, it did not occur on a city street, but on a standard highway leading from the City of Bogalusa to the town of Franklinton. The automobile involved in the accident belonged to Fergust C. Ledet, Sr., but was being driven by his son Fergust C. Ledet, Jr. Riding in the automobile, prior to and at the time of the accident, with young Ledet were Jack Warnick, Robbie Emma Jeannette Bateman and Lou Ethel Bateman. The said Jack Warnick, Robbie Emma Jeannette Bateman and Lou Ethel Bateman were instantly killed, and Fergust C. Ledet, Jr., received injuries, and the automobile belonging to Fergust C. Ledet, Sr., was demolished. The truck involved in the accident belonged to the Louisiana Highway Commission, and was in charge of and being driven by one Leo Carpenter, its employee.

The plaintiffs are: (1) Charles M. Warnick, Maurice Warnick, and Mrs. Ray Warnick Berk, brothers and sister of Jack Warnick, who sue for damages in the amount of $15,600 as his sole and only heirs, the said Jack Warnick having died unmarried and without issue or living ascendants. (2) Mr. and Mrs. Murphy Bateman, who claim damages totaling $40,060, as the father and mother of Robbie Emma Jeannette and Lou Ethel Bateman, who died unmarried and without issue. (3) Mr. and Mrs. Fergust C. Ledet, Sr., who claim damages for the loss of the support of their son, and for their expense in his hospitalization, nursing and care, and for the damage to the automobile, totalling the sum of $6,750. (4) Fergust Ledet, Jr., who sues for personal injuries sustained, to the amount of $10,000.

On the night of this tragic accident, Fer-gust C. Ledet, Jr., had the use of his father’s Chevrolet automobile and invited Jack Warnick to take an automobile ride with him. They were subsequently joined by the two Bateman girls, who lived in Franklinton. Lou Ethel Bateman was sitting on the front seat next to young Ledet, the driver; Warnick and Robbie Emma Bateman occupied the rear seat. All of the petitions are of like tenor and version with regard to the cause of the accident, and charge of negligence on the part of defendant, the only variation being the amount of damages claimed and the reasons . therefor.

The petitions aver that after young Ledet and his guests had visited the City of Boga-lusa, while on their return to Franklinton, evidently to return the Bateman girls to their home, and while proceeding along the Bogalusa-Franklinton Highway, and on reaching a point some mile and a half from the business district of the City of Boga-lusa, but still within the city limits, a truck suddenly, without warning, loomed up in front of them out of the dark; that this truck was either stopped in the highway or was very slowly moving along the highway in the same direction in which they were going, without any lights burning, lamps visible or flares or flags to indicate its presence on the highway; that, at that point, the paved slab on the highway is the standard 18-foot slab, and that the truck was occupying a portion entirely on the right-hand side of the slab in the direction toward Franklinton.

It is alleged that young Ledet was operating the automobile on his right-hand side of the road, in a careful and prudent manner and that as the truck loomed up before him, he sharply cut the automobile to the left, in order to avoid running into it, but notwithstanding all his efforts, the post on the right side of the automobile with which the top of the automobile and windshield were connected, struck the left rear corner of the steel body of the truck, smashing into the right side and top of the automobile, thereby causing the death of the three persons, and seriously injuring Ledet. It is further alleged that the occupants of the truck drove off immediately after the crash, without attempting to ascertain the condition of the occupants of the automobile or rendering them aid or assistance, in violation of Rule 18 of Section 3 of Act 286 of 1938; that it was not until the second day following the accident that the identity of the truck and its occupants was ascertained.

They averred that at the time of the accident the truck was being operated by one Leo Carpenter, an employee of the Louisiana Highway Commission, to which the said truck belonged, and which said truck was at all times in his custody and under his control. They also allege that the said Leo Carpenter had been so employed for ten years and that at the time of the accident he was a Unit Leader, carrying a responsible position requiring discretionary powers and duties, having had at all times from two to eight employees, and from one to eight trucks under his supervision and control. It is also alleged, in regard to the truck involved in the accident, that it was in his sole charge and custody, and that it was his duty to keep it at his home, near the town of Franklinton in order to answer night calls. They further allege that, at the time of the accident, the said Leo Carpenter was acting within the course and scope of his employment. The specific charges of negligence against the defendant’s truck driver are: (1) Parking or very slowly driving the truck, which was a dangerous and defective instrumentality, along a paved highway at night, without lights, flares or otherwise signaling or indicating his presence on the highway, and (2) operating the truck on the highway without even being equipped with rear lamps, clearance lamps, parking lights, a muffler, rear view mirror, flares or flags.

The defenses to this suit are as follows; (1) That the driver of the truck belonging to the Louisiana Highway Commission was not, at the time of the accident, in the course and scope of his employment. (2) In the alternative, if the court should find that the said Carpenter was within' the course and scope of his employment at the time of the accident, then and in that event he was not negligent in the operation of the said truck. (3) Even if the court should find that" the said Carpenter was negligent in the operation of the truck, then and in that event it is contended that young Ledet was negligent and that his negligence was the sole proximate cause of the accident. In a supplemental answer, the defendant further sets forth, as against Fex-gust C. Ledet, Jr., that he was guilty of contributory negligence in driving at an excessive and illegal speed, driving at night in a thickly populated section in a reckless and careless manner, not having his automobile under proper control, and therefore is in bar of his recovery.

In the case of Mr. and Mrs. Fergust C. Ledet, Sr., an exception of no cause of action was filed with reference to all demands, save and except the demand for damages to the automobile which exception was sustained, and the damages awarded Mr. Ledet, Sr., for the automobile is the only matter in contest in that suit.

On the issues presented, the lower court, in a lengthy written opinion in which he discussed fully the facts and the law and the quantum of damages to be awarded in each case, rendered judgments in favor of: (1) In the Warnick case, the sum of $1,000 to each of the plaintiffs, and the additional sum of $583 to the plaintiff Charles M. Warnick for the funeral and other incidental expenses incurred by him. (2) In the Bateman case, the sum of $8,000 to each of the plaintiffs for the death of their two daughters, plus $60 incurred by plaintiff Murphy Bateman for the funerals. (3) In the Ledet, Sr., case, he awarded the sum of $410 to Mr. Lebet, Sr., for the damage to the automobile. (4) And in the case of Fergust C. Ledet, Jr., he awarded the sum of $750 as personal damages suffered by him.

Defendant has appealed in all four cases. Answers to the appeals were filed in each case. In the Warnick, Bateman and Ledet, Jr., cases an increase in the amounts awarded is prayed for; and in the case of Ledet, Sr., an affirmance of the judgment is prayed for.

There are three principal issues to be considered in these cases. (1) What was the nature of Leo Carpenter’s employment and was he acting within the course and scope of his employment at the time of the accident? (2) Assuming that he was employed by the Louisiana Highway Commission and that he was acting within the course and scope of his employment, was he and his employer guilty of negligence in any way, and, if so, was such negligence the proximate cause of the accident and the damage resulting therefrom ? (3) If there was no such negligence, did the manner of driving the automobile by Ledet, Jr., constitute such negligence as to be the proximate cause of the accident, thus preventing recovery on the part of the plaintiffs ? The fourth issue in the case only involves the case of Fergust C. Ledet, Jr., that is, the plea of contributory negligence made against him.

Carpenter had a rather responsible position as a Unit Leader of the Highway Commission in Washington and surrounding parishes. His main position was that of a dragline operator and he had several men working under him. He was in complete charge of one or more trucks engaged on any job, and it is definitely shown that on the night of the accident the truck involved therein was in his complete care, custody and control. It was his duty to keep this truck at his father’s home near Franlclinton at night in the event of any emergency which might arise requiring his presence in attending to the trouble. In the event that his work required him to be far away from home, he was authorized to keep the truck with him wherever and whenever he stopped.

At the time of this accident he was engaged in dragline operations in the town of Bogalusa and had just completed a job on the Saturday morning before. ' He was notified that the dragline was to be moved from the place of operation to another. In order to do so, he notified his superior officers, who, in turn, notified the main office at Baton Rouge. He was so instructed that he was to have help in the removal of the dragline from the place of operation and that a truck and some help would be given him on Saturday or Sunday and that he was to be on the lookout for the same. This help failed to appear on the Saturday evening, causing Carpenter to remain in Bogalusa the Saturday night and on Sunday Carpenter made several trips to the place of operations to see if the help had arrived. As this help did not show up as late as 2 o’clock on Sunday afternoon, Carpenter became convinced that it was no longer necessary to await it. In the meantime, Carpenter had hidden such tools as he may have had on the'job in the grass and weeds. At about 3 o’clock in the afternoon he re-visited the scene of operations and picked up such tools which were used by him and had been hidden in the grass and put them in the truck. He returned to Bogalusa, parked the truck, and went on a ride with some of his friends. Some time later, after his ride with his friends, he returned to his truck and drove in the truck around Bogalusa and picked up two girl friends who went with him to his father’s home near the town of Franklinton. He states that he went there for the purpose of obtaining some money. But the facts show that when he got to the yard of his father’s home, he was met by his brother, Dallas Carpenter, who got in the truck with him and the two girls, and accompanied by these three guests Leo Carpenter then drove the truck back to Bogalusa. It is not shown whether or not he obtained any money which he thought might be needed. However, the evidence shows that the motor of the truck never stopped running while at his father’s home. He and his brother and the two girl friends on arriving in Boga-lusa drove around the city, and Carpenter finally took the young ladies to their respective homes. From there, he and his brother started on their way back to Franklinton, for the purpose, as he admits, of going back to the place where he stayed, to take back the truck to where it was his duty to keep it.

It was when leaving the town of Bogalusa, and while on his way back to Franklinton, that this unfortunate accident happened. The trial judge came to the conclusion, under these facts, that Carpenter was acting in the course and scope of his employment at the time of the accident. He states, after discussing the actions of Carpenter on that Sunday afternoon, together with his intention to return the truck and tools to the place where the truck and tools were kept: “I am of the opinion that in so doing he was acting in the furtherance of his master’s business or in the scope of his employment. Particularly is this true when it is shown that Carpenter was responsible for the truck and the tools and was subj ect to emergency calls at night from his superiors in connection with his work on the highways”. The trial judge, basing his opinion principally on the case of Cusimano v. A. S. Spiess Sales Company, 153 La. 551, 552, 96 So. 118, cites with approval the well written article of Honorable Hollingsworth B. Barrett of the Shreveport Bar reported in 14 Tulane Law Review, pages 72 to 81, wherein the question of the course and scope of employment in a case of this character is ably discussed, and, in our opinion, correctly set forth. In that article, the writer concludes : “That in order to show the reentry of the employment by the driver at the commencement of the journey that the following three elements must be present: The trip must have had its origin in the employer’s business j the mental purpose of the employee following his departure from employment must be to return to his next duty, whether that be further work or the return of the vehicle to the place where it belongs; third, the purpose to return must have been put into effect by starting the return journey.”

Applying these three elements, as set forth by Mr. Barrett, to the case at bar, we find that Mr. Carpenter was employed by the defendant as dragline operator and had had the truck in question under his absolute supervision and care. His staying over in Bogalusa on the Saturday was within the course and scope of his employment. His using the truck on the Sunday, at 2 or 3 o’clock in the afternoon, was also in the course and scope of his employment. When he returned to the field of operation to obtain the tools and return the truck to his boarding place he was likewise within the course and scope of his employment. We admit that when he went on a joy ride with some of his friends in another vehicle was not in the course and scope of his employment. Also, we admit that when he picked up his two girl friends in the truck for the purpose of joy riding, he was not then in the course and scope of his employment. But we are of the opinion that when he returned these two girls to their homes, after the ride had terminated and from the moment that he left them on his journey to deliver the truck where it belonged, he was then within the course and scope of his employment. The three conditions as set out by Mr. Barrett are fully met in this case.

Besides the case of Cusimano v. Spiess Sales Company, 153 La. 551, 552, 96 So. 118, we find a more recent case bearing on the point and one which perhaps goes even further than the others in holding that the servant has re-entered his employer’s business after having deviated from it during the whole afternoon. This is the case of Matheny v. United States F. & G. Co., 181 So. 647, decided by the Court of Appeal for the Second Circuit. In that case the servant, who was an automobile salesman and who, like Carpenter in the instant case, had his employer’s car in his custody and control for the purpose of his employer’s business, deviated from his employer’s business and took a pleasure trip with some friends. On his return trip he was involved in a collision and the court held that he was then in the course and scope of his employment.

No hard and fast rule can be laid down in such cases, and every case must rest on its particular facts. In the instant case, we find that the three elements which should be present to sustain the conclusion that the driver was within the scope and course of his employment at the time of the accident are shown by the evidence to exist.

The next question to be decided is whether or not Carpenter was negligent in the operation of his truck, and if so, was such negligence the proximate cause of the accident.

It is admitted that this truck had no taillights, no clearance lights or rear vision mirror, and the testimony leaves us in grave doubt whether it had any headlights burning at the time of the accident. However, this is not so important in that the accident was a rear-end collision. The excuse for the lack of taillights and clearance lights is the fact that this truck was used for the purpose of hauling gravel and that taillights cannot be kept for such purposes. No excuse is given for the lack of clearance lights, however. In. view of the evidence in the record, this truck was intrusted unto Leo Carpenter for his use, not only during the day time, but also at night. It comes with bad grace from the defendant to say that this truck was not fully equipped with such lights as are required by the Statute, Act 286 of 1938. A greater duty devolved on it, a public body, to see that the rules and regulations prescribed by the Act were properly observed.

It is urged by the defendant that the truck had not come to a complete stop at the time of the collision. This probably could be offered as a defense for not having displayed any flares on the highway, but it must be remembered that the truck had no such flares to display. Yet, the trial judge, under the evidence, came to the conclusion that the truck had come to a complete stop. Nevertheless, even though the truck was in motion, Leo Carpenter, the truck driver, well knowing that this truck did not have any clearance lights, taillights, rear view mirror, and flares, should have pulled it entirely off of the paved portion of the highway onto the shoulder, and not leave it, as he himself admits, occupying the greater portion of the right lane of travel of the paved portion. ■ We are therefore of the opinion that Leo Carpenter, the driver of the defendant’s truck, was negligent and that his negligence was at least a proximate, if not the sole, cause of the accident. As to the plaintiffs seeking to recover damages for the death of the three occupants and the damage to the automobile, there cannot be any negligence imputed to the decedents or the owner of the automobile, and none was pleaded. If Ledet, Jr., the driver of the automobile, was guilty of any negligence at all, it certainly was not the sole and proximate cause of the accident, and can only operate as a bar to his recovery, which is next to be considered.

We are. once more faced with the ever-recurring proposition of negligence, vel non, of a driver driving an automobile on the highway at night and running into the rear end of a parked or stopped vehicle that has no signal lights or any other warning device to indicate its presence on the highway.

The highway, at the point of the accident, consisted of a concrete slab 18 feet in width, with shoulders on both sides of 6 feet or more, and it is practically level. The truck was stopped on the paved portion of the highway, with the left wheels near the center line, facing west, being in the same direction Ledet, Jr., was travel-ling. Ledet admits that he was travelling at a speed of about 40 miles per hour just prior to the accident. Counsel for defendant contends that this was in violation of an ordinance of the City of Bogalusa, and sought to prove the existence of such ordinance by the Chief of Police of said city. The evidence was objected to and the objection was properly sustained, as the best proof .of such regulation is a certified copy of said ordinance. However, he further contends that it was excessive in that the accident occurred in a rather populous section. The oral evidence and the photographs introduced do not substantiate such conclusion. Furthermore, the proof shows that at the time there wasn’t much traffic on the road at that point. We are therefore of the opinion that Ledet’s speed was not excessive.

The evidence shows that this truck had been used just prior to the day of the accident in the hauling of clay, dirt and gravel; though its original color was orange, on the night of the accident, due to its usage, it was a dull color and difficult to see at night. The back wheels of the truck recessed in from the body about 18 inches and the floor of the body was 4 feet from the ground, thus making it difficult for the lights of an automobile to disclose it before it was right on it, especially where the lights were dimmed in order to pass an on-coming car, as Ledet says was done in this case, which dimming had the effect of projecting the beam of the lights under the body of the truck. The color of the truck, according to the testimony vaguely blended with the pavement, and made it even more difficult for Ledet, in his approach, to discern it. The on-coming car also had some effect on Ledet’s driving, impairing his vision momentarily. To take care of this impairment, Ledet says that he released his foot free from the accelerator, which no doubt had the effect of slowing down his speed.

Defendant contends that as Ledet was coming up the hill, that necessarily his lights were thrown up in such position that he was bound to see the truck. The hill, which is made so much about by the defendant, is only an incline of some 2% grade and is hardly perceptible in the photographs which were offered in evidence. The truck had reached the top of this incline, and the evidence preponderates to the effect that the road was level at that point. Ledet also testified that he had just rounded two curves, which he says also caused him to reduce the speed of his car. The fact remains, after considering all of the proof, that his testimony stands uncon-tradicted to the effect that he was practically on the truck and just saw the tires on it in time to swiftly veer his car to the left and succeeded in pulling only the front portion of it beyond the truck, but unfortunately striking the left rear end of the truck with the right front of his car at the post or support of the windshield in front of the seat occupied by the young lady seated next to him, with above-rpcited fatal results. We do not find much distinction between this case and the case of Gaiennie v. Co-operative Produce Company, Inc., et al., 196 La. 417, 199 So. 377, wherein the Supreme Court held that the driver of an automobile that strikes the rear end of a parked vehicle in cases of this kind is not guilty of such negligence as to bar his recovery. Applying the principles as announced in that Case to the case at bar, we are of the opinion, as found by the trial judge, that Ledet was not guilty of any contributory negligence barring his recovery.

Having settled the question concerning the liability of the defendant toward the plaintiffs, it remains for us to consider the quantum of damages.

In the case of Warnick et al., the Judge allowed to each plaintiff the sum of $1,000. We find no reason to disturb that award in any way. The young man who was killed no doubt was held in great esteem and affection by his brothers and sister. The award made to Charles M. Warnick for the expenses claimed in connection with his brother’s death seem to have been proven and we are not disposed to say that the trial judge erred with reference thereto. The awards of the lower court will therefore be affirmed.

In the Bateman case, the district judge seems to have been guided by the awards made by us in the case of Boykin v. Plauche and others, La.App., 168 So. 741, in which we had allowed $9,000 to the mother alone for the death of her son, about 23 years of age. On rehearing we reduced the amount to the sum of $8,000. 169 So. 131'. It is urged by counsel for the plaintiffs who are asking for an increase in the amount of the award that here the demand is made by both the father and mother and that each should be entitled to recover on the same basis of the one p'arent in the- Boykin case. If the award were to be made on that basis, it would mean that each parent would be entitled to receive $8,000 for the death of the two girls, which would make a total award of $32,000. In the Boykin case, the mother, who was the plaintiff in the suit, was legally separated from her husband, and the latter seems to have severed practically all of his relations growing out of that marriage and had very little interest left in his son who had been killed. In other words, under the situation which there existed the mother had practically taken all of the love, affection and companionship which was left in the son, and besides, she looked to him for her future support.

These two young ladies who were killed in this accident certainly seem to have been of very fine character and disposition and occupied a very close place in the hearts and affection of their parents. Not only that, but both of them seemed to have been of considerable .help to the family in assisting their father in his hardware business. In Keowen v. Amite Sand & Gravel Co., 4 So.2d 79, we affirmed an award of $10,000 for both parents for the death of their son. That award was on the basis of $5,000 for each of the parents, and we feel that this case merits a like award, making a total award to both parents, in the case at bar, of $20,000, an increase of $4,000 in the amount of the judgment appealed from.

In the case of Fergust C. Ledet Sr. for the loss of his automobile, the trial court, in writing his judgment, went into minute details as to what had been proven and not proven, and came to the conclusion that the net value of the damage to the automobile was the sum of $410. Counsel for defendant complains that Mr. Ledet failed to prove what he originally paid for the automobile. The lower court in his judgment came to the conclusion that since the' proof was sufficient to establish that the automobile was a demonstration automobile, not showing much mileage when Mr. Ledet bought it and that the value at which Mr. Ledet estimated it was reasonable, he so fixed its value. We are not in a position to disturb such value. Based on that value, and allowing the amount of depreciation, which the trial judge took into consideration, it is our opinion that he struck a very reasonable balance when he made the allowance of $410 net for the loss which this plaintiff sustained, and finding no reversible error, the award will be affirmed.

In the case of Fergust C.'Ledet, Jr., the trial judge allowed $750. This young man suffered a very serious injury to his mouth, including his lip, teeth and gums. He sustained a fracture of the nose, a broken arm, a bruised shoulder and a strained back. The scar which is left on his upper lip must be a very annoying one, as from the evidence, it extends for more than one inch. True, it is covered by the mustache which he wears, and which it is shown he used to wear even before the accident. This, however, does not detract from the fact that he has a scar and that it will remain permanently. It is our opinion that this young man is entitled to the sum of $1,250 for the damages set forth above, making an increase of $500. Judgment will be rendered accordingly.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    BATEMAN et al. v. LOUISIANA HIGHWAY COMMISSION.
    No. 2294.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Arthur B. Hammond and Tom M. Hayes, Jr., both of Baton Rouge, for appellant.
    Ellis, Ellis & Barranger, of Covington, Talley & Talley, of Bogalusa, and Pugh, Lanier & Pugh, of Thibodaux, for appel-lees.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Charles M. Warnick and others v. Louisiana Highway Commission, 4 So.2d 607, this day handed down, it is ordered that the judgment appealed from be amended by increasing the sum awarded from $8,000 to $10,000 to each of the said plaintiffs, thus making a total award of $20,000 to the plaintiffs, with the further award of $60 to plaintiff Murphy Bateman, and as thus amended affirmed.


text:
    Charles M. WARNICK et al. v. LOUISIANA HIGHWAY COMMISSION.
    No. 2295.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Arthur B. Hammond and Tom M. Hayes, Jr., both of Baton Rouge, for appellant.
    Ellis, Ellis & Barranger, of Covington,-Talley & Talley, of Bogalusa, and Pugh, Lanier & Pugh, of Thibodaux, for appel-lees.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Charles M. Warnick and others v. Louisiana Highway Commission, 4 So.2d 607, this day handed down, it is ordered that the judgment appealed from be, and the same is hereby, affirmed.


text:
    Fergust C. LEDET et al. v. LOUISIANA HIGHWAY COMMISSION.
    No. 2296.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Arthur B. Hammond and Tom M. Hayes, Jr., both of Baton Rouge, for appellant.
    Ellis, Ellis & Barranger, of Covington, Talley & Talley, of Bogalusa, and Pugh, Lanier & Pugh, of Thibodaux, for appel-lees.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Charles M. Warnick and others v. Louisiana Highway Commission, 4 So.2d 607, this day handed down, it is ordered that the judgment appealed from be, and the same is hereby, affirmed.


text:
    LEDET v. LOUISIANA HIGHWAY COMMISSION.
    No. 2297.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Arthur B. Hammond and Tom M. Hayes, Jr., both of Baton Rouge, for appellant;
    Ellis, Ellis & Barranger, of Covington, Talley & Talley, of Bogalusa, and Pugh, Lanier & Pugh, of Thibodaux, for appellee.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Charles M. Warnick and others v. Louisiana Highway Commission, 4 So.2d 607, this day handed down, the ■ judgment appealed from is hereby amended by increasing the award from $750 to $1,250, and as thus amended affirmed.


author: OTT, Judge.

text:
    DAMBLY v. DUCONGE et al.
    No. 2313.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Rehearing Denied Dec. 30, 1941.
    See 5 So.2d 152.
    W. Frank Gladney and Cecil N. Bank-ston, both of Baton Rouge, for appellants.
    J. Oliver Bouanchaud, of Baton Rouge, for appellee.
   OTT, Judge.

This proceeding was begun in October, 1936, by the plaintiff, Mrs. Dambly, to foreclose a mortgage note dated January 24, 1928, held by her and executed by the defendants, for the sum of $375, with interest at 8% per annum from date, plus 10% attorney’s fees. According to the petition filed at that time, 'total payments of $180 had been made on the note and credited to interest. Shortly after the suit was filed, Mrs. Dambly died, and her succession was involved in protracted litigation. In March, 1940, Mrs. Pearl Riley Hogan, the sole heir of Mrs. Dambly, filed a supplemental petition asking that she be made a party to the suit and that the foreclosure proceedings be continued. At her instance, notices to pay were served on the defendants and the writ of seizure and sale was issued, and the property seized by the Sheriff of East Baton Rouge Parish in April, 1940. Before the property was sold, Mrs. Hogan died, and in April, 1941, Edward Riley and Emmett C. Riley filed a supplemental petition in the proceeding as the sole heirs of Mrs. Hogan and asked for a continuance of the foreclosure and had the property advertised for sale by the sheriff.

In the month of June, and before the property was advertised to sell, the defendants filed a petition for an injunction to restrain the substituted plaintiffs and the sheriff from selling the seized property on the ground that the mortgage note sought to be foreclosed had been paid, setting up the manner and method by which they claim said note was paid, in substance, as follows :

That during the month of July, 1934, the attorney for Mrs. Dambly, the then holder of said note, wrote defendants a letter requesting that they either pay the note or convey to Mrs. Dambly the mortgaged property in satisfaction of the note; that they were unwilling to convey the property to Mrs. Dambly in satisfaction of the note as they had a larg'e equity in the property, but that they entered into an agreement with Mrs. Dambly whereby she was to collect the rents on the house situated on the property and apply the same on the note until it was paid in full; that Mrs. Dambly collected rent on said house from September through December, 1934, inclusive, at the rate of $6 per month, and that from January, 1935, until the date of her death in November, 1936, she collected rent on said house at the rate of $7 per month; that after her death, Mrs. Hogan collected rent on said property at the same rate until Mrs. Hogan’s death, after which her heirs, the present plaintiffs, continued to collect said rent. They therefore allege that said note has been fully paid by said rent collections, but if it has not been fully paid, they ask that they be given an accounting of the rent collected and if any balance remains unpaid that it be decreed not yet due and that an injunction issue to restrain the sale of the property until the note is paid by said rent collections under the original agreement with Mrs. Dambly.

Judgment was rendered in favor of the defendants in the foreclosure suit, enjoining the sale of the property in the execu-tory proceeding in excess of the sum of $22.93, with interest thereon at 8% per annum from January 1, 1941, said balance being due on that date. The plaintiffs in the foreclosure suit were ordered to pay the costs. From this judgment, the plaintiffs have appealed, and the defendants .have filed an answer to the appeal asking that the judgment be amended by decreeing that the mortgage note has been fully paid by the rent collections, and if it be found that said note has not been paid in full, that the balance be decreed as not past due and be paid out of the rent collections in accordance with the agreement.

Evidence was offered by the defendants in the foreclosure suit (plaintiffs in the injunction suit) to show the alleged agreement had with Mrs. Dambly in July, 1934, and objection was made to this evidence on the ground that it was an attempt to alter and vary by parole the terms and contents of the note and mortgage; that it was in effect an attempt to prove by parole an an-tichresis which is required to be in writing. The objection to the admission of the parole testimony was overruled, and counsel for plaintiffs rcurge in this court their objection to the admissibility of the testimony to prove the alleged agreement between defendants and Mrs. Dambly by which the latter was to collect the rents from the property and apply them on the note.

The . evidence was properly admitted, as it is well settled that parole testimony is admissible to show the payment or discharge' of an obligation or contract required to be in writing, as such evidence does not change or alter the terms of the written contract, but merely shows the manner, method, or fact of its payment or discharge. Dwight et al. v. Linton, 3 Rob. 57; Succession of Bagley, 120 La. 922, 45 So. 942; Pemberton et al., Adm’r v. Maignan, 27 La.Ann. 134.

The agreement sought to be shown by parole was not an antichresis as the immovable property was not given in pledge by the defendants, but, as a means of liquidating . the note which defendants owed Mrs. Dambly, they authorized her to collect the rents on their property and apply these rents in payment of the note. The agreement was nothing more than a method by which the note was to be paid out of the rent collections and this agreement did not in any manner change or alter the note or mortgage.

The testimony clearly shows that Mrs. Dambly made this agreement' with the defendants and collected the rents on the property up to the time of her death. After her death the rents were collected by a Mrs. Madden, who seems to have been-a sister of Mrs. Dambly and who must have claimed some interest in her succession. Plaintiffs deny that Mrs. Madden had any authority to collect these rents for the succession; however, we find from the testi-money of Mr. Roland Kizer, who was the attorney for Mrs. Dambly during her life, and who was the attorney for Mrs. Hogan during her life after the death of Mrs. Dambly, in the litigation that followed the latter’s death, that the rents collected by Mrs. Madden pending the litigation in the succession were applied in payment of the succession debts of Mrs. Dambly, and, therefore, the succession of Mrs. Dambly must be charged with all rents collected on this property by her prior to her death and also the rents collected thereafter by Mrs. Madden and Mrs. Hogan. No accurate account has ever been rendered to the defendants of the amount of rents collected by any of the parties during all this time, even though several requests were made by the attorney for defendants for an accounting. When fhese requests were made for an accounting, defendants’ attorney promised to settle the balance if defendants were advised of the correct balance due.

It does not appear from the record why Mrs. Dambly instituted foreclosure proceedings in October, 1936, after she had made the agreement with defendants to collect the rent on the property and apply it on the mortgage note. In any event, when her attorney was advised of this agreement, he discontinued the proceedings and promised to give defendants’ attorney a statement of the rents collected and the balance due, but did not do this for the reason that Mrs. Dambly died shortly thereafter. Again, when the foreclosure suit was renewed in March, 1940, Mr. Kizer, on having his attention called to the agreement made by Mrs. Dambly with defendants, stopped further proceedings in the foreclosure. Nothing further was done, as already stated, until after Mrs. Hogan’s death and the present plaintiffs, as her heirs, were made parties to the suit.

We think that the defendants are entitled to an accounting for all rents collected on the property since September, 1934, up to April, 1940, when the seizure was made and the property taken over by the sheriff and no further rents paid to anyone by the tenants after that date by orders of the sheriff. This accounting should be reckoned up to April, 1940, and we have attempted to figure the amount collected as rent between these dates and have arrived at the following figures:

We find credits on the back of the note aggregating $180, which amount was paid as interest on the note for six years, as these payments were made periodically and apparently were made to cover the annual interest of $30 on the note. Therefore, we find that the interest on the note was paid to January 24, 1934. From January 24, 1934, to April 1, 1940, the interest on this note for $375 at 8% per annum amounts to $185.50, making a total due on the principal and interest of the note on April 1, 1940, the sum of $560.50.

We find the following credits should be given against the above total: 4 months rent at $6 per month from September 1 to December 31, 1934, $24, from which should be deducted $7 expended by Mrs. Dambly during that period for repairs on the house, leaving a net credit as of January 1, 1935, of $17; to this we add interest at 8% per annum from January 1, 1935, to April 1, 1940, $8.50, making a total credit on this item of $25.50; from January 1, 1935, to April 1, 1940—63 months-—-rent was collected at the rate of $7 per month, or a total of $441; to this we add interest on these various payments during this period at 8% per annum, calculated according to the mercantile rule for partial payments, or a total interest of $92.61, making the total credit for this item the sum of $533.61; adding these total items of credit, $533.61 and $25.50, gives a total credit of $559.11, from which should be deducted insurance paid on the property, estimated by Mr. Kizer at $25.65, leaving a net credit of $533.46. Taking this from the total amount of the note of $560.50, leaves a balance due on April 1, 1940, of $27.04.

As the holders of the note were bound by the agreement entered into by

Mrs. Dambly with defendants, there was no justification in beginning foreclosure proceedings until a full accounting was given defendants, and consequently the cost of this proceeding will have to be borne by the plaintiffs. On the payment by defendants of the above balance with interest thereon at 8% per annum from April 1, 1940, they will be entitled to all rent accruing on the property after that date.

For the reasons assigned, it is ordered, that the judgment appealed from be amended by showing the balance due on the note sought to be foreclosed as of April 1, 1940, to be the sum of $27.04, with 8% per an-num interest thereon from that date until paid; that upon payment of said balance the defendants will be entitled to receive all rents on the property from said date, and as thus amended, the judgment is affirmed ; that plaintiffs in the foreclosure suit pay all costs incurred in both courts.


author: LEBLANC, Judge.

text:
    COOPER v. BATON ROUGE BUS CO., Inc., et al.
    No. 2309.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Durrett & Hardin, of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.
   LEBLANC, Judge.

The plaintiff, Elmer S. Cooper, sues the defendants, Robert A. Poole and the Baton Rouge Bus Company, Inc., in damages for personal injuries alleged to have been sustained in an accident which occurred at about 11 o’clock in the morning of August 23, 1938, near the intersection of North Boulevard and St. Ferdinand Street in the City of Baton Rouge. He prays for judgment in the sum of $12,826.55 against both defendants, in solido. The Baton Rouge Bus Company, Inc., is sued as the owner of the bus which was involved in the accident and Robert A. Poole, as the employee of the Bus Company who was driving and operating the bus at^the time the accident took place.

In his petition plaintiff alleges that the bus which had been proceeding east on North Boulevard began to make a turn to the right in order to go south on St. Ferdinand Street at the moment when he left the curb on the western side of St. Ferdinand Street, where he had been, and started to-cross that street to the east. He avers that he had taken several steps into the street and was almost in the middle of it when he was struck by the right side of the bus which was then in the act of completing its turn. At no time, he alleges, did the driver blow the horn of the bus or give any other signal of its approach and he then charges him with negligence in the following respects : (a) In continuing to drive the bus after seeing that he (plaintiff) had started across the street, (b) in making no attempt to stop or swerve the bus to avoid striking him, (c) if he did not actually see him until the instant of impact, then in not keeping a proper lookout, and (d) in any event, in driving the bus at such speed as not to have it under proper control in view of the situation and circumstances then existing. In the alternative he pleads that the driver of the bus had the last clear chance and failed to avail himself of it to avoid the accident.

The defendants filed a joint answer in which the negligence charged to the driver of the bus is denied and in which is set out their version of the accident. It is alleged that the bus stopped at the intersection of the two streets, waiting behind several cars for the semaphore light to change before proceeding and that after the proper light signal appeared and the two cars ahead of it had moved forward, it started to make the turn to the south into St. Ferdinand Street going at a rate of speed not in excess of five miles per hour. That after it was headed almost due south the plaintiff who had been standing on the sidewalk at the southwest corner of the intersection blindly walked into the right or west side of the bus approximately 9 feet from its front end. It is further averred that the bus was being operated by the driver, Robert A. Poole, in a careful and prudent manner and with due regard to all the conditions and circumstances then prevailing, and that the sole, proximate cause of the accident was plaintiff's own gross inattention, carelessness and failure to observe traffic conditions and particularly in heedlessly walking into the right side of the bus. In one alternative the defendants plead contributory negligence on the part of plaintiff and in another that he had the last clear chance to avoid the accident.

These were the issues on which the case was presented in the lower court and on which, after trial, the district judge decided in favor of the defendants and dismissed the plaintiff's suit. From a judgment so decreeing, plaintiff has appealed.

As has already been indicated, North Boulevard runs east and west. There is a neutral ground in the center and a lane of vehicular travel on either side. Traffic moving east uses the south lane. St. Ferdinand Street begins at the intersection which it forms with North Boulevard and runs south from that point. About in the middle of the intersection, or at a point 15 feet 9 inches east of the west curb of St. Ferdinand Street and 18 feet 5 inches west of the east curb, there was a post with a concrete base holding a sign to direct north bound traffic on St. Ferdinand Street to turn right into North Boulevard.

The testimony relating to the accident consists of that of the plaintiff, the defendant bus driver and five of the passengers who were on the bus. That of the plaintiff is to the effect that he was coming down the south side of North Boulevard and had started to cross St. Ferdinand Street when he happened to look up and saw the semaphore showing a red light. He went one step in the street and says the bell rang. He then made about two steps more when he looked south on St. Ferdinand Street and saw a car coming from that direction. He was uncertain as to whether it would stop or not so he stopped and watched it. When it stopped and the bell stopped ringing, he started ahead again and as he did the bus struck him and knocked him down. He says that he did not hear the bus and gives as a reason that “the company has them muffled and it takes a man with good ears to hear one.” He never saw the bus until it struck him, so it is obvious that he never looked to the north to see if traffic was coming from that direction as well as from the south before he started into the street.

The defendant Poole was called as a witness by plaintiff under the Cross-Examination Act and he also testified in his own behalf. He had been working for the bus company as a bus driver for three years. His testimony is that as he approached the intersection there were two cars ahead of the bus and as the semaphore light was against traffic to the east at the moment it became necessary for the two cars as well as the bus to stop. Upon the light changing to permit them to go ahead the two cars proceeded across the intersection and he started to move slowly, at about five miles per hour, to make his turn into St. Ferdinand Street. Because of the length of the bus, it having been shown that it is 26 feet 1 inch long, and of the rather close quarter caused by the sign post in the middle of the intersection and on the inside of which it had to pass, he says that the turn has to be made at almost a 45 degree angle. He first saw plaintiff standing on the sidewalk when he was still more than the length of the bus distant from the intersection. He never saw him leave his position and he was still standing there, some thirteen or fourteen feet away from the corner as the front end of the bus entered St. Ferdinand Street. Fie continued to make his turn and realized that the accident had happened only when he heard the noise created by the collision between the plaintiff and the bus. He stopped his bus almost instantly and it was then standing on a diagonal line in St. Ferdinand Street' headed southeast with the front end about in the center of the street and the rear end about at the south intersecting line of that street with North Boulevard. A police officer who arrived at the scene of the accident immediately after it happened testified that that was the position of the bus, adding that the rear part was approximately a foot or a foot and a half from the west curbing of St. Ferdinand Street and the right front end about five or six feet from that curbing.

Poole’s testimony is corroborated by that of all the bus passengers who testified to the extent that the bus stopped on North Boulevard before entering the intersection and that it made the turn in the usual manner, at a slow rate of speed and that it stopped almost instantly after the accident happened. Some of these witnesses stated also that it had practically completed the turn into St. Ferdinand Street when the impact took place. Two of them, J. B. Carter and a young girl named Bernice Dis-pensa, saw the plaintiff as the bus made the turn. Carter says that he was close to the curb, looking south and that he made two steps and when he finally looked around it was too late. Bernice Dispensa says that he was standing still as the bus made the turn. When she next noticed him, she states that “He was in the act of walking into the bus.”

It is definitely shown that the point of impact of the bus was at least nine feet from the front end and that point in the street was some six or seven feet from the west curb of St. Ferdinand Street. Taking into consideration the length of the bus which was then standing on a diagonal line beginning from the south intersecting line of St. Ferdinand Street, it is apparent that plaintiff was crossing the street at least fifteen feet south of the corner. By his own admission he did not look to the north for traffic that might be approaching from that direction, as he did so, and under the evidence presented we are bound to conclude that he was negligent.

We are unable to agree with learned counsel for the plaintiff that the bus driver was guilty of any negligence and that the case presents a state of facts under which the doctrine of last clear chance can be applied against him so as to make him and his co-defendant employer liable in damages. The testimony is all to the effect that he handled the bus in the usual and normal manner in making a rather sharp turn which required his careful attention, in this intersection. He says that he did not blow the horn of the bus because he saw no necessity for doing so ancl in this we agree with him. He had seen plaintiff standing in a place of safety when the bus was on North Boulevard and again at the time when he was making the turn. He had a right to assume that the plaintiff was observing the movements of the bus as well as those of all other traffic at the intersection and that he would remain in his place of safety and not blindly walk into the side of the bus. His duty was to keep a careful" lookout ahead, which he did, and he cannot be held responsible ■ for having failed to avoid an accident which happened by a party colliding with the side of his bus at a point opposite, and several feet to the rear of, his driver’s seat.

The district judge did not assign any written reasons for the judgment rendered by him but we are convinced that he correctly rejected the plaintiff’s demand and dismissed his suit. As the suit was prosecuted under the benefit of the Pauper Act, Act No. 156 of 1912, as amended, no costs can be imposed. Judgment affirmed.


author: JANVIER, Judge.

text:
    COLEMAN v. REIN.
    No. 17591.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    Gill & Simon, of New Orleans, for plaintiff-appellant.
    George Piazza, of New Orleans, for defendant-appellee.
   JANVIER, Judge.

Adele Beards Coleman attempts recovery in damages from William J. Rein, alleging that she was a tenant in a building owned by the defendant when the tread of one of the steps of a stairway leading to the ground broke under her foot, causing her to fall, and that as a result she sustained serious physical injuries. Rein admits the ownership of the building but denies that plaintiff was a tenant therein, and he especially denies that she sustained injury'as a result of a defect in the building, and he makes the charge “that the plaintiff herein was not injured in the manner alleged by her in her said petition; that this claim is a part of a conspiracy on her part and others to defraud defendant;”.

In the District Court there was judgment for defendant and plaintiff has appealed. The record shows that plaintiff for some time had been living with 'one Wallace Coleman, as his common-law wife, and that they occupied a room or apartment on the second floor of the building owned by Rein, from which floor to the ground there was a stairway of some 21 steps.

We may say at this time that whether plaintiff was the tenant is of no importance, because if she was occupying the apartment, either as a tenant or because of the right of occupancy of Wallace Coleman, and was injured because of a defect in the building, Rein would be liable — if she was a tenant because of the obligations placed upon him by Articles 2692, 2695 of the Civil Code, and if she was a third person then because of the effects of Articles 670 and 2322. There is then only one question which is presented, and that is one of fact, i. e., Was there such an accident or does this suit represent a fraudulent attempt to extort money from the defendant?

Plaintiff says that at about 9 o’clock on the morning of August 28th, 1939, she was descending to the ground with a little pan in her hand, and she adds — “When I got eight steps down I stepped on that bad step and it went under me and I fell and I did not go any further than three steps further down.”

The step referred to as the bad step was shown to have been the eighth step from the top, and the defect on which plaintiff relies was located on the extreme, front right-hand edge of the tread of that step. The tread itself was exhibited to us as it had been in the District Court, and the wood is obviously sound, and not decayed at all. It could easily have supported many times the weight of plaintiff, and it is not contended that it turned or that any of the nails holding it to the “horse” were loose.

Plaintiff’s entire story is based upon the charge that the extreme right-hand front corner of the tread broke away from the rest of that board, and tha't it was on this extreme right-hand corner that, by chance, she had placed her foot. The piece which is said to have broken off was offered in evidence. It is found to be about 2% inches from front to rear and about 4% inches from the outer edge to the point at which it is broken away from the rest of the tread. The “horse” on that side of the stairway is about 3 inches in width, and the tread extends about 1 inch or a little more over the side of the horse, so that that part of the tread which is said to have been broken under plaintiff’s foot was resting almost entirely upon the horse itself.

There was a handrail on that side of the stairway as well as on the other side, and this rail was almost directly over the small piece of tread which is said to have broken off, the whole which remained extending only an inch or two on the inside of the said rail. A demonstration made in court showed quite convincingly that a person descending the stairway in the usual manner would not place his foot on the extreme right-hand edge of the tread because to do so it would be necessary to press the body, itself, extremely close to the rail. Of course this is exactly what plaintiff claims that she did do, and she gives as her reason the fact that she had been pregnant for two months, and was exercising great caution. She says that for this reason she clung tightly to the rail and pressed her body against it. Because of the location of the alleged break directly over the horse and almost directly under the rail, it seems very doubtful indeed whether plaintiff did put her foot on that step, but when we come to consider the oral evidence, we find that this evidence fails by a large preponderance to support plaintiff’s story. On the contrary, it.quite convinces us that that story is false in all essential particulars.

Willie Burton called as a witness for plaintiff testified that he “was standing on the top of the stairway” and that he saw plaintiff going downstairs when she fell, and that “the piece of the step where she fell, I picked up that piece of step.”

It was shown that Burton had previously made two written statements in both of which he had said that on the night before the alleged occurrence he and Eddie Brunus had heard Wallace Coleman “knocking on the step”, and that when Coleman was asked what he was doing he had said “catching air.” In those statements Burton said that when plaintiff descended the stairs, she did not fall at all but that when she got to about the eighth step, she sat down. When confronted with these statements, Burton made several conflicting explanations, claiming at first that he had made no such statement, and later that he must have been drinking. All we need say about Burton is that no reliance can be placed on any statement made for either party.

Eddie Brunus, a witness for defendant, stated that he resided in one of the apartments of the defendant, and that on the night before the accident he had seen Wallace Coleman “sitting on the stairs kicking his heel on the step” and he added that “we”, meaning himself and Burton, “asked him what he was doing and he said he was catching air from the alley.”

When asked where Coleman had been sitting, he answered: “About the eighth step.” This witness also stated that on the morning after he had heard Coleman knocking on the step, he had seen plaintiff descending the stairway. When asked: “How did she fall?”, he answered “She seemed to be sitting down”, and in reference to the little piece of wood, which had previously formed a part of the tread, he said: “ * * * it seemed when she fell she pushed the piece of wood with her hand * * *.”

Plaintiff attempts to impeach the testimony of Brunus but in view of the fact that, in important particulars, it seems to be corroborated by other evidence in the record and is, in fact, corroborated by the written statements made by Willie Burton, we are convinced that the true fact is that plaintiff did not fall at all, but that possibly such minor injuries as she might in some other manner have sustained gave her the impression that she could collect damages from her landlord, and that therefore she or Wallace Coleman deliberately broke from the tread of the step a small piece, and then, on the next morning, she sat down on the step and called out that she had been injured.

Of course there is testimony of Wallace Coleman contradicting the damaging statement of Brunus, and the written statements made by Burton, and in other ways plaintiff sought to discredit Brunus, and she even attempted to discredit the doctor who testified on behalf of the defendant, and who made little of her alleged injuries.

We see no necessity of going further into detail. The judgment is not only not obviously erroneous but appears to us to be completely justified by the record. Plaintiff has unquestionably imposed upon her own counsel with her fraudulent story, but we cannot permit her to impose upon the defendant.

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

Judgment affirmed.

SIMON, J., recused.


text:
    WAGNER v. SUSSLIN.
    No. 17674.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    Rehearing Denied Dec. 15, 1941.
    Sidney G. Roos, of New Orleans, for appellant.
    R. E. Baird and Cyril F. Dumaine, both of New Orleans, for appellee.
   JANVIER, Judge.

At about 12:20 o’clock on the morning of March 19th, 1939, there was an intersectional automobile collision at the corner of Olivier and Alix Streets in Algiers, that section of the City of New Orleans lying on the west bank of the river. Miss Rosemary Wagner, then 16 years of age, was a guest passenger in an automobile owned and driven at the time by Francis LeMoine, a young man then 21 years of age. The other car was owned and driven by Joseph Susslin. Miss Wagner sustained personal injuries, and her father, on her behalf, alleging that Susslin was at fault, claims of him $2,300. On behalf of his minor daughter, and, in his on behalf, prays for judgment for $125, the amount of the bill of the doctor, who was called upon to treat his said minor daughter.

Susslin denies that he was in any way at fault, averring that the sole cause of the accident was the negligence of young Le-Moine, and he calls LeMoine in warranty, praying for judgment for one-half of such amount as he may be required to pay to Wagner and to his daughter.

There was judgment in favor of Wagner for the use and benefit of his daughter in the sum of $600, and for Wagner, in his own behalf, for $125. Susslin has appealed. Wagner has answered the appeal praying that the amount awarded for the use and benefit of his daughter be increased to $2,300 as originally prayed for. The record does not show that action was taken on the call in warranty made by Susslin on Le-Moine.

The charges, of negligence made against Susslin are that he approached the intersection “at about 30 miles per hour” and that he “did not slacken his speed upon approaching the intersection.” The LeMoine car was on Olivier Street going toward the river, and the Susslin car was on Alix Street going in a down river direction, so that as the two cars neared the intersection, the LeMoine car approached it from Sus-slin’s right. Alix Street is a two-way-thoroughfare and Olivier Street is a less used, one-way street, vehicles being permitted to use it only towards the river as LeMoine was doing.

The LeMoine car entered the intersection first and was struck on its left side near the front by the front bumper and the fenders of the Susslin car, which car after striking the other veered to its left and proceeded to the curb. The LeMoine car was turned over on the sidewalk on the lower river corner. Shrubbery and a building partially obstructed the views of the two drivers. Susslin claims to have been driving at about 15 miles per hour and LeMoine says that his speed was.even slower, about 10 miles per hour. The right of way was with LeMoine since he was approaching from Susslin’s right. City Ordinance C.C.S. 13702, Art. VI, section 10, subsection (A); see Rohleder v. Toye Bros. Yellow Cab Co., La.App., 185 So. 540.

Two friends of Susslin state that they were in his bakery on the next morning, and that LeMoine came into the bakery, and in their presence discussed the accident with Susslin. One of them, Foster Ryan, says that he heard LeMoine say: “I thought I could beat you across”, and the other, Miss Katie Essinger, says that LeMoine said that he “saw Mr. Susslin coming, and that he thought of stopping, and he couldn’t, * *

LeMoine denies that he made either statement and says that when he saw Susslin on the morning following the accident there was no one else present, and that at that time Susslin “offered to pay me for my damages.” Both LeMoine and Miss Wagner state that they saw the Susslin car when it was about a half a block away, but they knew that they had time to cross if the Sus-slin car was proceeding at a reasonable rate of speed.

Susslin says that he did not see the LeMoine car at all. We quote: “I did not see him at all until the accident happened.”

Since Susslin admits that he did not see the LeMoine car at all, and since it is obvious that the LeMoine car was entitled to the right of way, it follows that Susslin was negligent in driving into the intersection. If his view was obstructed, it was his duty to stop or to drive so slowly as to make certain that if another vehicle was approaching on that street, he could stop in time to avoid striking it. It is not necessary that we consider whether LeMoine was negligent or not, if both were negligent, and the negligence of each contributed to the accident, then Miss Wagner is entitled to recover from either or from both. See Duvic v. Friedrichs & Dupas, 9 La.App. 394, 120 So. 494; Antoine v. Werner, La.App., 172 So. 800; Stelly v. Prather, La.App., 182 So. 171; Battalora v. Carnahan Creamery, La.App., 157 So. 612; and Bijou v. Long, La.App., 199 So. 670.

When we come to consider the quantum, we find from the testimony of Miss Wagner’s physician that he treated her for “contusion of the spine, contusion of the abdomen and shock.” X-ray photographs revealed no bone injury “except that the bone was contused.” Miss Wagner remained under the doctor’s treatment until May 1st, 1939. The accident, as we have said, occurred on March 19th. The doctor prescribed a lombar sacro belt “that they use for injuries to the spine.” Miss Wagner was also required to take physiotherapy treatments and massages for the spine. She, herself, states that she was disabled for about six weeks.

She also said: “I really did not think there was anything wrong with me, other than nervous shock. However when I tried to bend over or tried to lift anything heavy I couldn’t do it. Then I went to the doctor and he told me that I had suffered a contusion of the spine.”

There is no evidence to show that she suffered a sacroiliac sprain.

Our attention is not directed to any case involving injuries similar to those sustained here. We think that the judgment should not be either increased or reduced.

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

Judgment affirmed.


text:
    FEDERAL INS. CO. v. EMPLOYERS’ LIABILITY INS. CORPORATION, Limited. AUSTIN v. SAME.
    No. 2311.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Durrett & Hardin, of Baton Rouge, for appellant.
    Sanders & Miller, of Baton Rouge, for appellee.
   DORE, Judge.

These cases are considered as one, being consolidated in both courts, with one judgment rendered and one appeal taken therefrom. It is a case wherein J. E. Austin, as plaintiff, seeks to recover the total amount of $239.92, of which $50 is in his own right, and $189.92 is for the use and benefit of Federal Insurance Company, his collision insurance carrier, for damages arising out of a collision between his automobile and a truck-trailer belonging to Landry Stanberry, driven by Dumas Richard. The amount of damage is admitted, if liability is found. The defendant is the liability insurer of the truck and trailer. Defendant prosecutes this appeal from a judgment in favor of the plaintiffs for the sums claimed.

The accident under review happened on May 15, 1940, at about the hour of 1:30 P. M., in or near the unincorporated village of Paradis on U. S. Highway No. 90, between Morgan City and New Orleans. At the scene of the accident the paved highway, which njns east and west, is straight for at least a quarter of a mile in either direction.

The evidence shows that at a point about one-half mile from the scene of the collision the truck was travelling in a westward direction at the rate of about 25 miles per hour and that plaintiff, who was following or trailing the truck, was driving at a rate of about 35 miles per hour, and that while still a good distance, about 100 feet, from the truck he indicated his intention of passing it, by blowing his horn and turning into the left lane of travel, and that having fully entered the left lane, he again blew his horn to warn the truck driver of his intention of passing the truck. When plaintiff’s car was abreast or opposite the rear end of the trailer attached to the truck, the truck driver made a sharp left turn over the center line in order to make a right turn to Ledet’s filling station. Plaintiff immediately applied his brakes and cut to the left; the right front of his car came into contact with the left rear end of the trailer on the left side of the center line of the highway. It is practically undisputed that the truck and trailer got over some -three or four feet to the left of the center line of the paved highway preparatory to making the right hand turn into Ledet’s driveway to the north and that the rear end of the trailer was about that far over the center line when the collision occurred.

The driver of the truck-trailer is charged with negligence, which was the proximate cause of the accident, in suddenly pulling his truck and trailer to the left without giving any hand signal and without ascertaining the presence of plaintiff in the rear, who had given the proper signal twice of his intention to pass the truck and trailer. The truck driver admits that he did not give any signal of his intention to pull his truck and trailer to the left of the road as he planned to go into the driveway leading to Ledet’s filling station. He says that he looked in his rear view mirror before pulling to his left, but that he did not see plaintiff’s car approaching from the rear in the left lane of travel, nor did he hear any horn or signals by plaintiff of his intention to pass. He has not given any reasonable explanation as to why he did not hear the signals or see plaintiff approaching in the left lane of travel. His negligence is so obvious as not to need any further discussion.

The next question is the negligence, if any, of the plaintiff Austin, the defendant having made the charge of contributory negligence on the part of Austin. It is charged (1) that Austin was driving at an excessive speed of 45 miles per hour through the unincorporated village of Par-adis, contrary to Rule 4, Subsection C, Section 3, Act 286 of 1938; (2) in attempting to pass the truck while driving at such excessive speed; (3) in failing to give the proper signal as required by law; and (4) in attempting to pass the truck and trailer at an intersection and in his failure to keep a proper lookout and have his car under proper control.

The most serious charge, in fact, the only one urged by the defendant in this court, of negligence on the part of plaintiff is excessive speed under the circumstances. The evidence,' as previously stated, is to the effect that plaintiff, when some one hundred feet to the rear of the truck-trailer, sounded his horn and cut to his left, notifying the truck driver of his approach and intention of passing him. There was no oncoming traffic, and after being in the left lane of travel, in the act of passing the truck, plaintiff again gave a warning by the blowing of his automobile horn, that he was in the act of passing both truck and trailer. It was not until plaintiff’s car was abreast or opposite the rear end of the trailer that the truck driver pulled his truck to the left, with no warning whatsoever, and at that time, in view of the circumstances, the plaintiff was properly in the left lane of travel; and he immediately applied his brakes and cut to his left, with the result that his car skidded some 40 or 50 feet and the right front of his car struck the left rear end of the trailer at a point on the highway some 4 feet south, or to the left, of the center line, and came to a stop, after travelling a few more feet, on the left side of the highway, with its two left wheels well on the shoulder. It would seem, then, that the plaintiff did everything that could be expected in the emergency which confronted him.

As to whether or not plaintiff was in any way responsible for the emergency in which he found himself, the record discloses the following situation: Paradis is an unincorporated village of some 6U0 inhabitants, lying to the north of Highway No. 90, and between the right of way of the T. & N. O. Railway Co. (Southern Pacific System). On the north side of the highway there is a cafe at which were parked, at the time of the accident, some automobiles to the number of a dozen or so, some five feet or more from the concrete slab of the highway; immediately thereafter was the filling station of Mr. Ledet, with a driveway leading from the highway into the station. There are a post office, store, and several residences further west on the north side of the highway. On the south side, east of the scene of the accident, distance not given, there is a residence some 75 feet off of the right of way of the highway, and some tourist cottages. There is no intersection of the highway for at least 400 feet to the west.

About a quarter of a mile to the east, there was a sign setting forth that the speed limit was 45 miles per hour for automobiles; there was not any sign there■after showing any other reduction in the speed or notice that the unincorporated village of Paradis was being approached necessitating a reduction of speed. While it is proven that Austin was travelling at the rate of 35 to 45 miles per hour, the picture of the scene of the accident as we have it in our minds does not justify our conclusion that such a speed was in violation of any statute. The weather condition then existing was good and the road was straight and level.

In view of these facts and circumstances, we are of the opinion that the plaintiff was driving in a reasonable manner, and not in violation of law, and that the emergency which caused the accident was created solely by 'the negligence of the truck driver in making the sudden left turn without any warning, and, since the plaintiff acted in the emergency as any. prudent man would, we can attach no blame to him, and must conclude that the proximate cause of the accident was the negligence of the truck driver. Obviously, the trial court came to the same conclusion, and we cannot find any error of j udgment.

The judgment appealed. from is therefore affirmed.


text:
    AMERICAN EMPLOYERS’ INS. CO. v. GULF STATES UTILITIES CO.
    No. 2310.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.

      Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellant.
    Albritton & Ware, of Baton Rouge, for appellee.
   OTT, Judge.

On May S, 1939, in the suit of Miss Alder McGuire v. The Dalton Company, Inc., et al., a judgment was rendered by the District Court of East Baton Rouge Parish in favor of Miss McGuire and against the said Dalton Company, Inc., and the other defendant, the Gulf States Utilities Co., in solido, in the sum of $4421.70, with interest and costs. The judgment was based on a claim by Miss McGuire for personal injuries which she sustained by reason of the explosion of a gas stove which had been purchased by her father from the Dalton Company and which had been installed by the Utilities Company for the Dalton Company under a contract between the two companies by which the Utilities Company had agreed for a certain price to install and adjust the gas ranges sold by the Dalton Company to its customers. An appeal was taken to this court and the judgment was amended by reducing the amount of the award to the sum of $2,921.-70 and otherwise affirmed. See McGuire v. Dalton Co, 191 So. 168, 173.

The contract for the installation of its gas ranges was made by the Dalton Company with the Baton Rouge Electric Company, but the Gulf States Utilities Company later succeeded to all the rights and obligations of the said Electric Company and a reference to the Utilities Company in this opinion will also serve as a reference to the Electric Company insofar as it might be affected. On February 17, 1940, the plaintiff in the present suit, American Employers’ Insurance Company, as the insurer of the Dalton Company, paid one half of said judgment, interest and costs, and the Utilities Company paid the other half of said judgment, each paying the sum of $1756.97. The plaintiff herein, as the subrogee of the Dalton Company, has brought this suit against the Utilities Company to recover the amount paid by it for the Dalton Company on the ground that the injuries sustained by Miss McGuire were caused by the negligence of the employees of the Utilities Company and without any fault or negligence on the part of the Dalton Company. As the plaintiff in this suit stands in the same position with reference to the Utilities Company as does the Dalton Company, the case will be discussed as though the Dalton Company were the plaintiff seeking to recover the amount paid by it under a judgment condemning it and the Utilities Company in solido for the injuries suffered by Miss McGuire.

It might be noted here that the plaintiff in the present suit only sued for one half the principal of said judgment plus attorneys’ fees of $500 incurred in the McGuire suit, and the trial court first rendered a judgment in favor of the plaintiff and against the Utilities Company for one half the principal of the judgment and denied attorneys’ fees. Before the judgment was signed, however, an application for a rehearing was filed by the plaintiff setting up that it had paid one half of said judgment, including interest and costs, and that the Utilities Company had admitted this payment, and asked that a rehearing be granted and that judgment be rendered in its favor and against the defendant for the full amount paid by it without any reference to attorneys’ fees. The rehearing was granted and a judgment was rendered in favor of plaintiff and against the defendant for the said sum of $1756.97. Therefore the question of attorneys’ fees has passed out of the case. The defendant has appealed.

While two exceptions were filed by the defendant and overruled by the court, it is unnecessary to discuss these exceptions as the question presented on the merits is the same as that presented by the exceptions, and a decision o.n the merits will cover the same legal points raised by the exceptions.

The injury sustained by Miss McGuire for which the award was made against both of the companies in solido was caused, as was found by both the district court and this court, by the improper and negligent installation of the gas stove by the employees of the Utilities Company in that a shutter which controlled the mixture of air and gas going into the burner which Miss McGuire was attempting to light when the explosion occurred was improperly adjusted. In commenting on the testimony of one of the witnesses for the Utilities Company in that case and in fixing the responsibility for the explosion of the gas stove, this court said: “His testimony, in our opinion, definitely fixes the responsibility for the accident on the employees of The Baton Rouge Electric Company who evidently were negligent in adjusting this shutter at the time they installed the range. For their negligence, their employer as well as The Dalton Company, Ltd., under the contractual relations existing between them, must be held liable in damages to the plaintiff unless they have shown that she was in any manner guilty of contributory negligence.”

It is obvious that this court found that the proximate cause of the injuries to Miss McGuire was the negligence of the employees of the Utilities Company in adjusting the gas range which this company installed for the Dalton Company under a contract with the latter company. The testimony in the McGuire suit (the record in that suit being a part of the record in this suit) shows that the installation and adjustment of the gas stoves sold by the Dalton Company was entrusted by this company entirely to the Utilities Company. While a claim was made in the McGuire suit that the Dalton Company was negligent in failing to keep a proper check on the work done for it by the Utilities Company and because of a failure on the part of the Dalton Company to report to the Utilities Company a complaint alleged to have been made by Mr. McGuire with reference to some defect in the operation of the stove, yet the Dalton Company was not condemned by the district court nor by this court for any negligence on its part, but was held liable to Miss McGuire because of its contractual relationship with the company which it had engaged to install and adjust the stoves in its behalf for its customers. In other words, the legal situation was similar to that which would have existed had the Dalton Company employed some mechanic to install and adjust the stoves which it sold to its customers and as part of the sale agreed to connect, install and adjust. If the Dalton Company was guilty of any negligence, it was not a contributing or proximate cause of the injury to Miss McGuire.

The rule generally prevailing is that as between joint wrongdoers, or tort-feasors, there can be no contribution, and that one of two or more persons who have become liable to a third person for a tort cannot, if compelled to pay the whole amount of damage, enforce contribution from his co-wrongdoers where both or all are guilty of negligence or wrongdoing which contributes to the injury causing the damage. However, where a person is exposed to liability to a third person by reason of the negligence or wrongful act of another in which he does not join and to which he does not contribute, he may recover against the person whose negligence or wrongful act caused the damage where he is forced to pay the damage caused to the third person, and the law will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary and proximate cause of the injury. 27 Am.Jur. pp. 467-469, Sections 18 and 19; George A. Fuller Company v. Otis Elevator Co., 245 U.S. 489, 38 S.Ct. 180, 62 L.Ed. 422; John Griffiths & Son Company v. National Fireproofing Company, 310 Ill. 331, 141 N.E. 739, 38 A.L.R. 559.

The first part of the above rule, to the effect that joint tort-feasors whose negligence combines in causing damage to a third person cannot enforce contribution between or among themselves, does not prevail in Louisiana, at least since the decision of the Supreme Court in the casé of Quatray v. Wicker et al., 178 La. 289, 151 So. 208, where the court held that one of the joint tort-feasors who had been condemned in solido by a judgment of court for damages caused by their concurrent negligence had the right to force contribution against the other for his half of the judgment; that 1he rule under Article 2103 of the Civil Code providing for the contribution by solidary obligors between or among themselves for each' to share his portion of the debt applies to obligations arising ex delicto as well as those arising ex contractu.

Learned counsel for defendant insist that, as both the Dalton Company and the Utilities Company have been condemned in solido by a judgment of court, they are judgment debtors in solido, and, under the ruling in the above cited case, each is liable as between themselves for one half the judgment; that the nature and extent of their liability to Miss McGuire has been fixed by a judgment of court which judgment has also fixed their liability as between themselves. Counsel argue that the question of whose fault or negligence caused the injuries to Miss McGuire is foreclosed by the judgment and it is now irrelevant to go into the question of whose primary negligence caused the injury with the view of fixing the liability of the two defendants in the former suit as between themselves.

We do not consider that the Qua-tray-Wicker case held, or intended to hold, that a judgment rendered against joint tort-feasors in favor of a third person would preclude one of the tort-feasors in a suit against the other from showing that he was not at fault in causing the injury; that he was only technically liable because of some legal or contractual relation that he bore to his co-defendant in the former suit. Indeed, as between the Dalton Company and the Utilities Company, the issue was not raised and the question was not adjudicated as to the respective rights of these two companies between themselves. Certainly, it would not be seriously contended, for instance, that a master or principal who had been condemned in solido with his servant or agent for the negligence of the servant or agent and for which the master or principal was in no wise at fault, that the master or principal would be precluded from suing the servant or agent to recover what he was forced to pay, and in that suit show that the negligence or wrongdoing of the servant or agent was the primary cause of the injury.

In rendering the judgment in favor of Quatray against Wicker and Marchessea.u in solido, the Court of Appeal found that the accident which resulted in the injuries to plaintiff in that suit was caused by the joint and concurrent negligence of the defendants. Quatray v. Wicker, 16 La.App. 515, 134 So. 313. It is true that when the case came to the Supreme Court on the question of contribution as between Wicker, or his subrogee, and the other tort-feasor, Marchesseau, the court stated that the extent' of the liability of Marchesseau and Wicker, relatively, was fixed definitely by the decree of the Court of Appeal, and the cause or origin of the liability of each of them was a matter of no importance. But we do not rtnderstand that the court meant to hold that as to the respective rights between the defendants themselves to adjudicate their liability to each other was foreclosed by a judgment against them in favor of a third person and where their respective rights and liabilities to each other were not issues in the case and, consequently, where the court had no opportunity of passing on their respective rights and liabilities between themselves.

In our opinion, the second part of the rule' stated above prevailing in most jurisdictions, to the effect that a party made liable in solido with another for the negligent acts of the other because of some legal or contractual relationship with such other party, but himself guilty of no fault or negligence, may force the one primarily at fault' to re-imburse him for damages paid to a third person on account of the fault or negligence of the other, prevails in this State, as will appear from a reading of the cases of Appalachian Corporation, Inc. v. Brooklyn Cooperage Co., Inc., 151 La. 41, 91 So. 539 and Sutton et al. v. Champagne et al., 141 La. 469, 75 So. 209.

The Appalachian case is appropriate to and decisive of the legal point raised in the present case. The Appalachian Corporation purchased from the Cooperage Company a warehouse and obtained and recorded a title to the property. On the second day after the purchase of the property but while it was still in the possession of the Cooperage Company and under its control, a night watchman was injured on account of a defective door in the building. The watchman sued the Appalachian Corporation only as the holder of .the title to the property and recovered a judgment against the Corporation which judgment was paid by it. The corporation then sued the Cooperage Company for re-imbursement on the ground that the negligence of the latter company caused the injury and the Corporation was guilty of no fault, but was only technically and constructively liable. The facts showed that the negligence of the employees of the Cooperage Company was the cause of the injury to the watchman, and the court permitted the Corporation to recover the amount paid by it.

After stating the general rule that no contribution can be enforced as between or among joint tort-feasors where their joint and concurrent negligence causes injury to a third person (which rule seems to have been modified in this State in the Quatray-Wicker case at least to the extent that contribution may be enforced where the parties have been condemned in solido by a judgment of court), the court announced and applied the exception to the general rule in the following language [151 La. 41, 91 So. 541]: “Every rule, however, has its exception, and where, as in this case, the actual fault of the proximate cause -of injury is attributable to one of the parties and the other is only technically or constructively at fault, from failure or omission to perform some legal duty, the general rule will not apply, and indemnity may be had against the one primarily responsible for the act which caused the damage.”

We conceive the exception to.the rule as stated in the above quotation to be in effect in this State, regardless of what the rule might be as to tort-feasors in pari delicto where judgment has not been rendered against all. The fact that only the Appalachian Corporation was sued and no judgment in solido was rendered against it with the Cooperage Company could not affect the rights or liabilities of the two companies as between themselves for the reasons already stated.

As the negligence which proximately caused the injury to Miss McGuire was attributable to the employees of the defendant company, it must bear the loss and re-imburse the amount paid by the plaintiff insurance company for the Dalton Company.

For these reasons, the judgment appealed from is hereby affirmed at the cost of appellant in both courts.


author: WESTERFIELD, Judge.

text:
    CHARLES H. LEVY CO., Inc., v. ZOLLER’S, Inc.
    No. 17360.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    M. C. Scharff, of New Orleans, for appellant.
    Owens & Levy and A. I. Kleinfeldt, all of New Orleans, for appellee.
   WESTERFIELD, Judge.

This is a suit on an open account in which the plaintiff, Charles H. Levy Company, Inc., claimed from the defendant, Zoller’s Inc., the sum of $105.41. The defendant admits owing the bill sued on, but alleges that it is subject to a credit of $19.-24, because of a discount to which it was entitled amounting to that sum. It tendered its check to the plaintiff in the sum of $86.17, in full settlement, which was rejected.

There was judgment below as prayed for and defendant has appealed.

It appears that Zoller’s, Inc., had been, for a number of years, doing business with Charles IT. Levy Company, a partnership, which was incorporated on June 23rd, 1939, prior to the origin of the account sued on. According to Bernard Zoller a discount of seven percent had been allowed by Levy on all purchases regardless of when they were paid and that this situation changed as soon as the business was incorporated. He is to some extent corroborated by his bookkeeper, Mrs. Leo Cassonova. On the other hand, Charles IT. Levy testified that Zoller’s, Inc., was not entitled to the discount unless its bills were paid within seventy days and that this particular bill was not paid within the discount period, consequently, it was not entitled to the credit.

In our opinion the defendant has failed to prove that it was customary for Chas. H. Levy Company, the partnership, to give it the discount claimed. We need not, therefore, consider the point raised by plaintiff to the effect that the corporation was not bound by the custom of the partnership.

For the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.


author: ROGERS, Justice.

text:
    198 La. 639
    STATE ex rel. ITEM CO., Inc., v. O’NEILL, Clerk of Court.
    No. 36385.
    Supreme Court of Louisiana.
    Nov. 3, 1941.
    Deutsch and Kerrigan, of New Orleans, for plaintiff and appellee.
    Arthur Landry, of New Orleans, for defendant and appellant.
   ROGERS, Justice.

The question presented on this appeal is whether the New Orleans Item, a newspaper published by relator, is a daily newspaper within the meaning of the law governing judicial advertisements in the Parish of Orleans. Section 15 of Act No. 49 of 1877; Act No. 104 of 1878, and Act No. 75 of 1938.

As provided by the statutes, the Clerk of the Civil District Court for the Parish of Orleans is required to publish all judicial advertisements on matters pertaining to his office “in a daily newspaper published in the English language, and which shall so have been published as a daily paper for at least one year prior to the insertion of said [advertisement for] publication.”

In the performance of the statutory duty imposed upon him, John J. O’Neill, Clerk of the Civil District Court, refused to recognize the New Orleans Item as a daily newspaper, because, beginning Sunday, August 3, 1941, the relator discontinued the publication of the Sunday issue of the paper.

The record discloses that the New Orleans Item is a newspaper published in the English language, with a daily circulation of mpre than 70,000 subscribers, and that it has been published and circulated in the City of New Orleans for many years.

We are of the opinion that the New Orleans Item was and is a daily newspaper within the meaning of the statutes which employ the term “daily newspaper” in contradistinction to the term “weekly,” “semi-weekly,” or “tri-weekly” newspaper. The term was and is to be used in its usual and popular sense, and, in this sense, it is plain that a newspaper which, according to its usual custom, is published every day of the week except one is a daily newspaper; otherwise, a newspaper which is published every day except Sunday would not be a daily newspaper. The term, in its popular sense, does not admit of this construction. The legislature, in the enactment of the statutes, obviously did not intend that only a newspaper published seven days in the week was to be considered as a daily newspaper.

In State v. Commissioner of Public Finances, 161 La. 915, 109 So. 675, this Court held that the term “daily” as applied to the publication of newspapers is merely relative; that the term has never been given the exclusive meaning of every day of the week, month or year, but newspapers published every day except Sunday or Monday, or every day except both Sunday or Monday are generally regarded as daily newspapers. In support of its holding, this Court reviewed a number of authorities from other jurisdictions. These authorities are Fairhaven Publishing Co. v. City of Bellingham, 51 Wash. 108, 98 P. 97, 16 Ann.Cas. 420; Puget Sound Publishing Co. v. Times Printing Co., 33 Wash. 551, 74 P. 802; First National Bank of Parsons v. Kennedy, 98 Kan. 51, 157 P. 417; Wilson v. Petzold, 116 Ky. 873, 76 S.W. 1093; Richardson v. Tobin, 45 Cal. 30; and City of El Paso v. Ft. Dearborn National Bank, Tex.Civ.App., 71 S.W. 799. The Court also quoted the general rule appearing in Ruling Case Law, Vol. XX, p. 206, as follows :

“A newspaper need not be published on each of the seven days of the week in order to be a daily newspaper. The term is to be understood in its usual popular sense; and in this sense it is clear that a paper which, according to its usual custom, is published every day of the week except one is a daily paper. Otherwise, a paper which is published every day except Sunday would not be a daily paper. So it has been held that a newspaper which is printed and published five days in each week is a daily newspaper within the meaning of a provision requiring all legal advertisements to be published in a daily newspaper. On the other hand, a Sunday edition of a daily paper is not a weekly paper." [161 La. 915, 109 So. 676.]

As holding to the same effect, the Court referred to 17 C.J., p. 696; Words and Phrases, First and Second Series, Verbo “Daily Newspaper”; Black’s Law Dictionary; and Volume I, Bouvier’s Law Dictionary, p. 747.

The following additional authorities also support the proposition, viz.: Tribune Publishing Company v. City of Duluth, 45 Minn. 27, 47 N.W. 309; City of Bellingham v. Bellingham Publishing Co., 116 Wash. 65, 198 P. 369; City of Richmond v. Miller, 58 Ind.App. 20, 107 N.E. 550; Alley v. City of Muskogee, 53 Okl. 230, 156 P. 315; and Hansen v. City of Havre, Mont., 114 P.2d 1053, 135 A.L.R. 1278.

In view of the foregoing authorities, the Judge of the lower court was clearly correct in making peremptory the alternative writ of mandamus which issued herein.

John J. O’Neill, Clerk of the Civil District Court, died after the transcript of appeal had been lodged in this Court. A. N. Goldberg, who was appointed to succeed John J. O’Neill, was, on motion, substituted as a party to the litigation in his official capacity.

For the reasons assigned, the judgment appealed from is amended by substituting the name of A. N. Goldberg for that of John J. O’Neill as Clerk of the Civil District Court for the Parish of Orleans, and as thus amended, the judgment is affirmed.