author: TALIAFERRO, Judge. KENNON, Judge.

text:
    BAYOU RAPIDES LBR. CO., Inc. v. CAMPBELL et al.
    No. 7010.
    Court of Appeal of Louisiana. Second Circuit.
    June 3, 1947.
    On Rehearing May 31, 1948.

      Peterman, Gravel & Downs, of Alexandria, for appellant.
    K. Hundley, of Alexandria, for appel-lee.
   TALIAFERRO, Judge.

This is a redhibitory action instituted by the plaintiff against A. B. Campbell and A. J. Brown, who, it avers, when the cause of action herein alleged upon arose, composed a commercial copartnership under the name of “A. B. Campbell”. Plaintiff alleges that on April 13, 1945, through its president, O. O. Latimer, it purchased from said partnership a pair of mules for which it paid $300 cash; that prior to the purchase plaintiff’s president made known to said Campbell his company’s need of a pair of sound mules that were trained in the hauling of logs; that when the mules were, delivered to plaintiff a written guaranty was signed by the partner, A. J. Brown, and delivered to plaintiff wherein said mules were guaranteed as sound, gentle, and trained to work in logging operations.

Plaintiff also alleged that immediately after purchasing the mules they were put to work at hauling logs and it was then discovered that one of them was sulky, would not pull with the other one, and in all respects was wholly unsuited and untrained to do the work for which it was purchased and for which it had been guaranteed; that because of these vices and conditions the sale of the mules is subject to and should be rescinded and the price paid therefor returned to plaintiff. Plaintiff further alleged that on April 28, 1945, it tendered the mules back to said partnership, represented by said Campbell, at its place of business in the City of Alexandria, Louisiana, and that he refused to accept the same.

In the alternative, and only in the event the Court should find and hold that there was no partnership existing between Campbell and Brown at the time the mules were purchased, plaintiff alleged that said Campbell is and was the sole owner of the business of A. B. Campbell, and that he, individually, sold the mules to plaintiff through Brown as agent, and likéwise guaranteed them.

Plaintiff prayed for judgment against Campbell and Brown, individually, and in solido, for $300 with legal interest from judicial demand; and, in the alternative, for judgment for said amount against A. B. Campbell, individually. Service of process could not be made on Brown as he, very soon after the sale of the mules, left Alexandria and his whereabouts was unknown.

Answering, Campbell denied each and every allegation of the petition excepting those relating to tender of the mules to him by plaintiff and his refusal to take possession of them, which he admits. He avers that he refused to accept tender of the mules because he had never owned them and had not sold them to plaintiff. He further alleged that he has at all times been the sole owner of his business.

Subsequent to joinder of issue by answer, Campbell died testate. His wife, Mrs. Beulah H. Campbell, as executrix, was by order of the Court substituted as party defendant.

The lower Court awarded plaintiff judgment, for which it prayed, against the executrix and she appealed to this Court.

The testimony is conclusive on three points in the case:

1. That there was no partnership between Campbell and Brown;

2. That Campbell at no time owned or had any proprietary interest in the mules involved herein;

3. That one of the mules was valueless in lbgging operations because it did not possess the qualities needful therefor, which it was guaranteed to possess. This vice renders the sale of both animals amendable to suit to rescind same. Civil Code, Articles No. 2529, No. 2540.

It appears that Mr. Campbell had been in the business of buying and selling horses and mules in the City of Alexandria for some 13 years at the time of the events that led to this suit. He formerly lived in the State'of Texas and there knew Mr. Brown. In the early part of April,' 1945, Brown brought from Texas to Campbell’s place of business a truck-load of Perdieron mares and requested to rent from him space in which to keep them. Campbell declined the request but did make available to Brown, free of charge, a lot in which the animals could be held. Brown thereafter exchanged two of the mares for the mules in question and they were brought to and kept on the lot with the mares until delivered to plaintiff.

. A. B. Campbell, because of his long experience in dealing in livestock, knew mules. His guarantee of. their qualities meant a great deal to those who purchased from him. The record reveals that he invariably made good his guarantees of the mules and horses sold by him, when after test, they proved ■ to bp deficient in the respects for which they were guaranteed.

Plaintiff previously had purchased logging mules from Campbell • and, naturally, had much , confidence in his word with respect to their qualities and character, and relied implicitly upon his guaranty,

Being in need of a pair of logging mules on April 11, 1945, plaintiff authorized its woods foreman, Sam Young, to endeavor to locate same. He went to Mr. Campbell’s stables and explained to him what he wanted, and he testified that Campbell replied that he had a good pair of mules he would sell him. The two mules in question were shown to Young by Mr. Campbell who quoted him the price that was afterward paid for them. Young did not know Brown and did not discuss the mules with him, although it is certain he was present. Young reported what he had learned to Mr..Latimer and on the ■ following day Latimer went to Campbell’s place of business, looked the mules over, told Mr. Campbell the kind of mules he wished, heard what Campbell had to say about their good qualities, etc., and agreed to buy them for $300. He is certain that his discussion of the mules was entirely with Campbell and that Campbell guaranteed the mules in every respect to possess the qualities desired in them. Mr. Brown was present for a time and joined in the sales talk, but prior to that time Latimer had never seen him.

Mr. Latimer required that the front feet of the mules be shod, which was done at Campbell’s stables. He also required that they be delivered to his coral a few miles north of Alexandria.

The morning following Latimer’s visit to Campbell’s place, being April 13th, Brown arranged with Campbell to have one of his colored employees transport the mules to the corral in one of Campbell’s trucks. The mules were loaded into the truck and were first driven to plaintiff’s office in the City of Alexandria. Brown rode in the truck. Mr. Latimer then drafted an instrument of guaranty of the mules that was signed as follows:

“A. B. Campbell and Pard.
By: A. B. Campbell
By: A. J. Brown.”

It begins as follows:

“We, the undersigned, A. B.
Campbell and Pardner * * *

Campbell was not present when the instrument was signed, and so far as the record shows, had no knowledge of its existence until possibly when this suit was filed. Of course, it is not binding on him nor is it binding on the executrix of his succession.

It was at this time and place that Latimer was told by Brown that he and Campbell were partners on a 50-50 basis, in the business that was and had been at all times exclusively Campbell’s. This information evidently influenced Latimer in drafting the guaranty in the form mentioned above. It is certain that prior to this time he had not not been told that Campbell and Brown were partners. However, notwithstanding all this, the check for the price of the mules was made payable to Á. B. Campbell.' The mules were then driven to plaintiff’s corral, and Brown thereafter returned to Campbell’s office. He showed Campbell the check but Campbell declined to endorse it as Mrs. Campbell attended to keeping the books of the business, making bank deposits, and endorsed all checks. She was called on the ‘phone and asked to come to the office and on her arrival the check was delivered to her for collection, She went to the bank on which it was drawn, either that afternoon or next .nlonring, endorsed her husband’s name thereon and it was honored. She returned to the office and handed Brown the entire amount from which he then paid Campbell $7.50 for the use of his truck and employee in delivering the mules. A few days later Brown left with a few of the mares he had brought from Texas and has not since been heard from.

The trial judge in written reasons for his judgment made the following impressive summary of the facts, on which he mainly predicated judgment, to-wit:

“Campbell does admit that he was engaged in the buying and selling of horses and mules. And there is no dispute that the mules were at Campbell’s place of business; ■that some of the negotiations were carried on by him and in his place of business; that they were delivered to plaintiff from Campbell’s place of business in Campbell’s truck, driven by Campbell’s own hostler or truck driver. The check issued in payment was made to Campbell, was cashed by Campbell through Campbell’s wife in Campbell’s name. That, in addition to all this, the delivery was accompanied by a delivery ticket, or invoice, with the signature ‘A. B. Campbell’ thereon, which his widow testified ‘could be’ Campbell’s signature. Campbell knew Brown. Latimer did not. Campbell could have made it perfectly plain that Brown alone was the seller. This he did not do.
“As to the negotiations leading up to the purchase and sale of the mules, the preponderance of the testimony is that Campbell held out to the plaintiff that they were Campbell’s mules; that Campbell knew what plaintiff wanted and was assured by Campbell that these mules would do the work. The Court doesn’t overlook the fact that Campbell could not testify. But, it is inconceivable that plaintiff would be satisfied to deal with and take a guarantee from some itinerant horse and mule dealer, about whom he knew nothing, when every act on the part of Latimer indicated that he thought he was dealing with Campbell.”

Our study of the record convinces us that this summary correctly reflects proven facts of the case.

Plaintiff failed to establish a case against Campbell either on the primary or alternative demand in that the testimony disproves that the mules were owned or sold by the alleged partnership, and that in selling the mules Brown acted as Campbell’s agent; but, by an abundance of testimony, introduced without objection, Campbell’s liability to plaintiff, on a theory not alleged upon, was established.

True it is that Campbell had no proprietary interest in the mules, but evidently out of a desire to be of assistance to his old friend, Brown, he for all legal intents and purposes unwittingly perhaps, made himself a party to the sale, guaranteed the qualities of the animals, and otherwise by action, conduct and declarations confirmed in La-timer his belief that the mules belonged to him, all of which encouraged Latimer to make the purchase.

There is no intimation of bad faith nor of qttestionable designs on the part of Campbell. Such need not exist to render him responsible to plaintiff. One may become a party to a sale'of a thing and render himself responsible as warrantor, guarantor, or otherwise, to the purchaser although he have no real interest in the thing, the object of'the sale. And when, in such case, the purchaser relies upon the intervention of such person in the sale, and is thereby influenced to part with anything of value, such person will not be thereafter allowed to escape his responsibility to the purchaser by asserting lack, of ownership of or interest in the property covered by the sale.

Defendant, in brief, challenged the right of plaintiff to prove and rely upon any oral agreement or commitment by Campbell, antedating the signing of the written guaranty by Brown, and argues that by so doing plaintiff attempted to shift its position, which, under the pleadings and law, was not permissible; that having sued on said written guaranty its case must stand or fall on that premise. In support of this position it is argued that (although not objected to when offered) the referred to testimony is incompetent evidence under Article No. 2276 of the Civil Code, and should not now be considered in determining the issues of the case. The article reads as follows, viz.: “Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

We think the point not well taken. The written guaranty, on its face, purports to be an obligation of a nonexistent partnership, not a guaranty of Campbell, individually. The instrument is sued on as a partnership obligation; not as an obligation of Campbell, individually. The guaranty, by testimony elicited by both sides, was proven to be without legal effect save as to Brown individually. In view of these undeniable, facts, we are unable to perceive why or wherein plaintiff should be precluded from, proving by parol testimony, unobjected to, agreements and commitments by Campbell, made prior to the execution of the guaranty, that render him individually liable to plaintiff on a theory not alleged upon; and we hold that such could be done.

It is obvious that testimony to establish liability by Campbell to plaintiff on a cause of action not alleged upon, if timely objected to would not have been admitted. Such testimony enlarged the pleadings, but this does not authorize its exclusion now. We are warranted in considering it in determining the issues of the case.

After submission of the case below but prior to rendition of judgment, defendant filed a plea of estoppel for consideration in the event the Court should find and hold that plaintiff had made out a case. The plea is predicated upon the proposition (assumption) that the status quo ante cannot be restored because Mr. Latimer testified that he did not know the whereabouts of the mules.

Campbell refused to allow the mules left on his premises, when tendered to him. They were then and there turned loose to roam at large. Several days thereafter the mules were impounded by some one and upon learning of this, Latimer paid the pound charges and had the mules put in the pasture of Mr. R. L. Walker, his business associate. On May 10, 1945, plaintiff’s counsel by letter made demand on Mr. Campbell for return of the $300 paid for the mules, wherein it is said: “ * * * These mules are being held for you and subject to your orders and the expense of their keep from April 28th will be yours.”

It is true that Mr. Latimer testified that he had not seen the mules since they were put in Walker’s pasture and did not at time of trial definitely know their whereabouts. But this does not necessarily mean that the mules are not in existence or that they cannot be made available when this case has been finally concluded.

This case in some respects has singular phases. The issues, so far as concerns Brown, cannot be finally adjudicated as, for lack of service, he is not before the Court. When plaintiff has been reimbursed the amount paid for the mules, surely its ownership thereof will terminate. The question then will be posed: Who owns the mules ?

We believe the lower Court correctly decided the case and for the reasons herein assigned, the judgment from which this appeal was taken is hereby affirmed with costs.

On Rehearing

KENNON, Judge.

A rehearing was granted in this case for the restricted purpose of determining whether or not the pleadings were enlarged by the admission without objection of testimony establishing the facts that estopped the defendant Campbell from denying he was a party to the sale and responsible to the purchaser as warrantor although in fact he was not owner and had no interest in the mules sold to plaintiff.

The facts of the case are fully set forth in the original opinion and we will not repeat them in detail here. The action was redhibitory in character. The petition sets forth first that plaintiff purchased two mules from a commercial partnership composed of A. B. Campbell and A. J. Brown. In the alternative, in the event the Court should find that there was no partnership existing between the two defendants, that A. B. Campbell was the sole owner of the business and that plaintiff purchased the mules from A. B. Campbell and that Brown delivered the mules and made the agreement regarding same as an agent of Campbell. Brown, an itinerant horse and mule dealer, could not be found and no service was ever made on him.

This Court in its original opinion found the testimony conclusive that there was no partnership existing at any time between A. B. Campbell and A. J. Brown and that at no time did Campbell own or have any proprietary interest in the mules sold to plaintiff.

The testimony, which this Court found in its original opinion established the liability of Campbell, consisted of verbal commitments and statements made by Campbell in the routine negotiations leading up to the selection and sale of the mules, which confirmed in plaintiff the belief that the mules did belong to Campbell and which made Campbell, though neither the partner of Brown nor the owner of the mules, responsible as guarantor to the purchaser, who may have acted on the strength of these statements and commitments.

The principle of law has been well established in Louisiana that evidence relevant to issues that are pleaded does not have the effect of enlarging the pleadings to the extent of injecting new issues or injecting a cause of action not pleaded. Nezat v. General Outdoor Advertising Co., La.App., 24 So.2d 482. Tensas Delta Land Co., Ltd. v. Ferguson, Assessor, et al., 128 La. 171, 54 So. 708; Hope v. Madison, 192 La. 593, 188 So. 711.

The testimony in the record relative to what Mr. Campbell said and did in connection with the sale of the mules was relevant to the issue as to whether or not his conduct and statements were such as to establish existence of a partnership between himself and Brown or to establish the relationship of principal and agent between himself and Brown, both oí which' issues were pleaded. The plaintiff unquestionably had the right to introduce proof of what Mr. Campbell told the plaintiff’s agent in order that the Court might determine from all of the facts and circumstances whether Campbell’s conduct was such as to constitute Brown as agent or to establish the existence of the partnership being admissible for the purpose of establishing the facts that were pleaded. The fact that the Court did not find that either the existence of a partnership or the relationship of principal and agent was established does not make the conversation and actions of Mr. Campbell in connection with the sale any the less relevant to those pleaded issues. This evidence being relevant to the pleaded issues and admissible under the pleadings, did not have the effect of enlarging the pleadings to make the defendant Campbell liable as warrantor.

Plaintiff in brief has requested that in the event this Court should determine that the pleadings were not enlarged, that instead of reversing the judgment of the District Court rejecting plaintiff’s demands, we should remand the case to the District Court. In support of this contention, counsel cited a recent Supreme Court case, Succession of Addison, 212 La. 846, 33 So.2d 658. The principle is well recognized in Louisiana law that appellate courts have-the right to exercise the authority granted them by Article 906 of the Code of Practice and to remand cases to the trial court for additional proceedings. However, this proceeding from its very nature is one which must be sparingly exercised.

The language of the article declares that the cases should be remanded only “if the court shall think it not possible to pronounce definitely on the cause, in the state in which it is.” In the case before us, there is sufficient testimony to pass upon the issues raised. Under all the circumstances of this case, we conclude that it is not a proper one for remanding under Article 906 of the Code of Practice and the relevant Louisiana cases. Meyer v. Pritchett, 8 Orleans App. 51; Cullota v. Washington, 7 La.App. 75; Kerr v. Pima Petroleum Co., Inc., 8 La.App. 759; Paterno v. Kennedy the Cleaner, Inc., 18 La.App. 649, 138 So. 531.

We realize that there is equity in plaintiff’s contention that the case be remanded in order that it may amend its pleadings and establish a cause of action against defendant based on estoppel. However, the fact that such issue was not tendered in the original pleadings and the testimony adduced at the original trial, is due to the fact that plaintiff’s counsel did not see fit to include same in the suit. Some six months after the filing of the suit, the defendant, A. B. Campbell, passed away, and his wife, as executor of his estate, is now the party defendant. Had the original suit tendered the issue of Campbell’s estoppel, Campbell would have been able to give guidance to his attorneys in the preparation of the defense. Needless to say, his executors would be handicapped in a defense for the case if it were now remanded for the filing of new pleadings and a determination of the new issues.

Having found in our original opinion that the plaintiff failed to make out its case on either the principal or alternative demand, and having determined on rehearing that the pleadings were not enlarged, it follows that the judgment of the District Court in favor of plaintiff was in error.

The judgment appealed from is reversed and judgment is now rendered dismissing plaintiff’s suit at its costs.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    DOLL v. DEARIE et al.
    No. 19087.
    Court of Appeal of Louisiana. Orleans.
    June 13, 1949.
    Rehearing Denied Oct. 4, 1949.

      See also La.App., 39 So.2d 640.
    Marion G. Seeber and Delvaille H. Theard, New Orleans, for plaintiff-appel-lee.
    Fred G. Veith, New Orleans, for defendants-appellants.
   McBRIDE, Judge.

, Plaintiff-appellee, Emile M. Doll, seeks by this suit to have his title to two lots of ground in New Orleans quieted under the provisions of Act No. 106 of 1934. The property had been acquired by the State of Louisiana for delinquent taxes on an assessment to Mrs. R. G. Dearie. Doll successfully bid i,n the property at a public auction held in accordance with the provisions of Act No. 237 of 1924, as amended. This suit is directed against the four children and heirs of Mrs. Dearie, who is now deceased.

The four Dearies were served with citation ; one of them sent to the court below a letter which the Clerk of Court filed in the record. The writer of the letter, purporting to act for himself and also for his codefendants, admitted therein defendants’ status as heirs of Mrs. Dearie, and also admitted that the property had been adjudicated to the State for delinquent taxes for the year 1938. The letter then complained that the paving charges which the City of New Orleans had assessed against the property amounted to more than the value of the property. The letter further recited that: “ * * * vye can think of no reasonable excuse or reason whatever, whereby Mr. Doll should or, eould take clear title to these afore-men-tioned lots other than, by paying in full the total amount of lien in principal, accrued and delinquent interest and, ask that this procedure be dictated to in justice to each of us.”

The letter was construed by the court below to be defendants’ answer, and upon Doll’s submission to the court by rule the question of his right to a judgment on the face of the pleadings, he recovered judgment as prayed for, from which the defendants have prosecuted this devolutive appeal.

We find it unnecessary to determine whether the letter constituted an answer and whether it was sufficient to serve as a basis for the judgment, which points are raised by the appellants, because, for the purposes of this opinion we shall deem the document to be the answer of defendants, which is a view most favorable to appellee.

In this court, appellants have excepted to the petition upon the grounds that it discloses no cause or right of action. The argument advanced in support of the exception is that there is neither legal foundation for plaintiff’s action, nor legal basis for the judgment. Counsel cites the recently decided case of Doll v. Meyer, 214 La. 444, 38 So.2d 69, 72, wherein the Supreme Court held that Act No. 106 of 1934 has reference to tax sales made to persons other than the State, and not to adjudications made to the State for want of a bidder at the tax sale. On rehearing, the Court said: “The confirmation suit was brought under the provisions of Act No. 106 of 1934, which is designed to quiet tax titles in accordance with Section 11 of Article 10 of the Constitution of 1921. We pointed out in the case of Police Jury of Parish of Jefferson Davis v. Grace, 182 La. 64, 161 So. 22, that the context of Article 10, Section 11 of the Constitution contains no reference to or provisions for sales or adjudications to the State and that this section of the Constitution has reference only to tax sales to third persons. We have again reviewed this section of the Constitution and are firmly convinced that it has reference only to what is properly termed tax sales, i. e., tax sales to persons other than the State. Act No. 106 of 1934 is designed to quiet tax titles' in accordance with this section of the Constitution and its context leaves no doubt that it refers to tax sales properly and not to adjudications made to the State for want of a bidder. The judgment of the lower court purporting to quiet the title is of no effect because it is not authorized by law.”

Counsel for Doll insists that the cited case is distinguishable from the instant one, in that in Doll v. Meyer the tax debtor was an absentee represented by a curator ad hoc, appointed by the court, who was unable, under the law, to waive any rights of the absentee. They point out that the Dearie heirs, who were personally cited to appear and make answer to plaintiff’s demands, did file an answer to the suit, which had the effect of waiving their right of objecting that the proceeding was not warranted by the act of 1934. It is argued that such objection should have been made in limine in the lower court, and that the answer, which admitted the substantial allegations of the petition, and posed a special defense for adjudication, effectively destroyed defendants’ right to complain of any informality or impropriety in the manner in which the suit was brought.

This contention can with little difficulty be disposed of. We are here dealing not with mere irregularities or formal defects in the action, but rather with the question whether there is any substantive legal basis or foundation whatever for the proceeding sufficient to support the judgment which is before us for review. In Doll v. Meyer, supra, it was held in clear and unequivocal language that Act No. 106 of 1934 cannot be invoked for the quieting of a tax sale made to the State of Louisiana, and unless such procedure is authorized by some other provision of the law, we shall be constrained to maintain defendants’ exception.

'Counsel advance the further argument that even if the tax title cannot be quieted under the provisions of Act No. 106 of 1934, nevertheless Doll’s proceeding, including the answer of the defendants, is a valid action to establish title to the property, and that complete legal force reposes in the judgment, which was authorized under Doll’s prayer for general relief.

We know of no statute, and our attention has been directed to none, other than Act No. 106 of 1934, which specifically provides for the quieting of tax titles. The case of Fried v. Edmiston, 40 So.2d 489, 491, recently decided by this court, was originally filed as a proceeding authorized by Act No. 106 of 1934, but while it was pending in the trial oourt, the Supreme Court decided Doll v. Meyer. When that decision was rendered, Mrs. Fried, by supplemental petition, alleged that the proceeding was authorized by Act No. 38 of 1908, and that she desired to proceed thereunder. The pertinent portion of .the act reads as follows: “ * * * in all •cases where two or more persons lay •claim to land by recorded title and where neither of said claimants are in the actual possession of the land so claimed; either of the claimants may bring suit against one or all the adverse claimants, and for that purpose may join one or more adverse claimants in the same suit as defendants, to have the titles to the land adjudicated upon by the court having jurisdiction of the -property, * * * -and this action shall be known as the action to establish •title to real estate, and the judge shall decide which of the claimants are the owners of the land in dispute * *

We hold that the suit having been properly brought under Act No. 38 of 1908, the plaintiff was entitled to be recognized as owner of the property under the provisions of said act, which applies to all titles, without regard to their origin and whether they are tax titles or not. We said: “An action to establish a tax title to real estate, under Act No. 38 of 1908, is not new in our jurisprudence. Davidson v. McDonald, 131 La. 1047, 60 So. 679, is a case in point; incidentally it involved the validity of a tax title. See also Settoon v. Sharp, La.App., 19 So.2d 342; Saucier v. E. Sondheimer Co., 212 La. 490, 32 So.2d 900; Veltin v. Haas, 207 La. 650, 21 So.2d 862; Wooley v. Louisiana Central Lumber Co., et al., 204 La. 801, 16 So.2d 360.”

It seems to us that in a proceeding instituted under the 1908 statute, it is sacramental that it be alleged and proved that neither of the parties to the proceeding is in actual possession of the land claimed. Such, allegation was made, and such proof was-adduced, in the Fried v. Edmiston case, and for that reason we adjudicated the matter squarely on the basis of the 1908 statute, the allegations of the supplemental petition having converted the action from one to quiet a tax title under the provisions of Act No. 106 of 1934, to a suit to establish title to real estate where none of the parties is in the actual possession of the same underAct No-. 38 of 1908.

But in the instant case, the petition is absolutely devoid of allegations necessary to authorize a judgment under the 1908 statute. It is true that under a prayer for general relief, suited to the nature and justice of the case, the court, to avoid a circuity of action, may render such judgment .as would be given in a new suit, although ■plaintiff did not specifically pray for such relief, provided the allegations of the peti■tion covered it.

If the judgment is to be affirmed on the ■theory that Doll’s prayer for general relief entitles him to an establishment or recognition of the tax title under Act No. 38 of 1908, it would be tantamount to permitting Doll to have a judgment on a cause of action not stated in his petition, and not sustained by competent evidence.

Code of ^Practice, article 172, provides: * * * 4. The petition must contain a •clear and concise statement of the object •of the demand, as well as of the nature of the title, or the cause of action on which ■it is founded.”

The Supreme Court said in the case of Perez v. Meraux, 201 La. 498, 9 So.2d 662, 676: “ * * * the universal rule is, as stated in 34 C.J. 153, that ‘A default admits only what is well pleaded, and therefore in •order to sustain a judgment by default, plaintiff’s declaration, complaint, petition, or statement, of claim, must allege with clearness and certainty sufficient facts to constitute a good cause of action or show a right to recover.’ See, also, 15 Ruling Case Law 605, Section 44.” '

The following language was used by the Court in Simon v. Duet, 177 La. 337, 148 So. 250, 252:

«Hs * * If a defendant who has not ■seen fit to answer a suit filed against him should have no fear that judgment will be rendered against him on another cause of action,’ most assuredly he need have no fear that a judgment will be rendered against him in a case where the petition sets out no cause of action at all. * * *
“A judgment, to be valid, must have a foundation on which to stand. That foundation is the cause of action set out in the petition. A -petition which sets out no ground for relief known to the law cannot serve as a basis for a judgment ”

While wé are- not concerned with a default judgment, the record does show that plaintiff recovered the judgment on the face of the pleadings, and' that the defendants were absent and unrepresented when the rule was tried. The petition is typical of one in an action brought pursuant to the provisions of Act No. 106 of 1934, and there is nothing in the petition which should have indicated to the defendants that the court might render a judgment against them on a cause of action not stated in the petition.

Since it not alleged that the defendants are in possession, the allegations of the petition are insufficient to warrant relief as in a petitory action. Neither can the action be considered as possessory, because the plaintiff does not claim possession. And since it is not averred that none of the parties is in.the actual possession of the property, the remedy provided under Act No. 38 of 1908 is not available to plaintiff. Finally, since Doll v. Meyer holds that Act No. 106 of 1934 is inapplicable, we are at a loss to know under what particular statute or provision of the law plaintiff is entitled to relief.

But, counsel argues, it does not follow that a suit should' be dismissed because it does not technically fall under a definition of some statutory action, as there are in-nominate actions as well as innominate obligations. Counsel cites several authorities holding in effect that a person having a legal right needing judicial enforcement or judicial protection is generally entitled to a legal. remedy adequate to the situation, since right and remedy are reciprocal, and to deny the remedy is to destroy the right. See Rhodes v. Miller, 189 La. 288, 179 So. 430; Citizens’ Bank v. Marr, 111 La. 601, 602, 35 So. 780; Allen v. Shreveport Mutual Building Ass’n., 183 La. 521, 164 So. 328.

But has plaintiff a right to have the tax title quieted, or to have a judgment recognizing him as the owner of the property? Nowhere in the petition is it alleged that the defendants claim title to the property in themselves, or that they claim that plaintiff has no title, and nowhere in the answer is it intimated that defendants challenge or impugn the title of plaintiff. On the contrary, the import of the answer seems to be that defendants frankly and freely admit that plaintiff purchased the property from the State; defendants contend only that plaintiff should be compelled to pay the local improvement charges levied against the property by the City of New Orleans.

In the absence of an assertion by defendants of any claim to the property, and they not having assailed plaintiff’s title, we fail to see that plaintiff has any right whatever against the defendants to have his title to the property recognized as against them. There seems to be no issue whatever in this case as to the ownership of the property.

If plaintiff did have some right for which the law does not provide a specific remedy, perhaps we could, under the cases cited by counsel for Doll and by invoking the provisions of article 21 of the Revised Civil Code, proceed and decide the case according to equity; but it is apparent that plaintiff, not being entitled to have the tax sale quieted under the provisions of Act No. 106 of 1934, has no right whatever against the defendants, and as a corollary there is no remedy to be applied to the situation. The exception filed by the defendants appears to be well taken. Peremptory exceptions founded on law may be pleaded at every stage of the action previous to definitive judgment,' and the total lack of a right or cause of action may be taken advantage of even in an appellate court. Code Prac. art. 346; Roy v. Mutual Rice Co., 177 La. 883, 149 So. 508.

It is conceded that while this case was pending on appeal, the Dearie heirs collected from the State Treasurer the sum of $426.91, which was the net balance (after deduction of all taxes, interest, and costs) that remained with the State out of the purchase price paid by Doll for the property. The State Treasurer remitted this money to the defendants pursuant to the provisions of Sec. 7 of Act No. 237 of 1924, as amended, Act No. 296 of 1944, § 1. Dart’s Gen.Stat. § 8486.

Counsel argues that by thus having accepted the benefits of the sale, such action of the defendants constituted a confession of judgment, and that on that ground, if on no other, the judgment should be affirmed.

We cannot at all agree with counsel. As we have already observed, the defendants have not attacked plaintiff’s title, nor have they laid claim to title in themselves, and we can only reiterate what we said in denying a motion to dismiss this appeal 39 So.2d 640, 641: “If it be true, as alleged by Doll, that the Dearies collected the surplus remaining from the State’s sale of the property, that, we think, can only be construed as an acquiescence in the sale made by the State to Doll, and not as an acquiescence in Doll’s judgment against the Dearies quieting the tax title by which the State acquired, which judgment the defendants contend is without legal foundation and of no legal effect. * * * ”

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that defendants’ exception of no cause or right of action be maintained, and that plaintiff’s suit be dismissed at plaintiff’s cost.

Reversed.


text:
    BONNELUCQ v. BERNARD.
    No. 19220.
    Court of Appeal of Louisiana. Orleans.
    June 13, 1949.
    Rehearing Denied Oct. 4, 1949.

      See, also, La.App., 39 So.2d 447.
    Phil Trice, New Orleans, for plaintiff and appellant.
    Marion' Seeber and Delvaille H. Theard, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

As stated in our original opinion on the former appeal in this case, 31 So.2d 36, 37:

“Mrs. Mary Schaefer 'Bonnelucq, proceeding in forma pauperis, in her original and supplemental petitions, alleged that Louis H. Bernard had been condemned by the Office of Price Administration to pay her the sum of $95, the amount of overcharge of rent exacted by Bernard as her landlord, the certificate or order being dated March 22, 1946; that Bernard declined to comply with the order of the Price Administrator, although acknowledging the debt and offering to pay $2 per month over a period of some forty-two months, by deducting this amount from her rent. Petitioner declined this method of settlement-and brought suit for treble damages, or the sum of $285, under Sec. 205(e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 925(e). It is also alleged that petitioner’s husband, Henry Bonnelucq, died on the 25th day of December, 1945, leaving as his ■sole heir a minor child, Rosemary Bon-nelucq.”

Defendant answered, setting up the special defence that the order of the Price Administrator was null and void, because there was no violation of the rent regulations by defendant, and that even if there-had been a rent overcharge, the Price Administrator had not the right or authority to make the penalties retroactive. The answer further stated that it was the defendant’s intention to apply to the Emergency Court of Appeals for an adjudication upon the question of the legality of the order, and that a stay of the proceedings for a reasonable duration would be requested.

On November 30, 1948, more than two years after the suit had been filed, defendant applied for a rule against plaintiff to show cause why the case should not be stayed for sixty days, in order to afford defendant an opportunity of presenting to the Emergency Court of Appeals the issue involving the validity vel non of the regulation or order sued upon. The judge a quo refused to issue the rule.

Ultimately, the case was tried on its merits. At the outset, defendant moved for a stay order, which was denied.

Plaintiff recovered judgment for the sum of $95.00 (the overcharge), together with legal interest thereon from judicial demand until paid, plus a $35.00 attorney’s fee. Plaintiff has appealed from the judgment, and defendant has answered the appeal, setting forth that the lower court erred in denying the application for a stay of the proceedings. Appellee prays that the judgment appealed from be reversed, and that there be judgment remanding the cause to the court below with instructions that the proceedings be stayed until the question of the validity of the rent order herein has been submitted to the Housing Expediter.

Counsel insists that since, under the provisions of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq., the district judge is without jurisdiction to pass upon the validity of the rent order, and since the landlord has the right to submit the question at any time to the Housing Expediter, so that in the event of an adverse ruling by the Expediter the matter might be carried to the Emergency Court of Appeals, the proceeding should have been stayed by the district judge as requested, in order that the defendant might not be deprived of having his rights considered and passed upon by the only authority and tribunal having jurisdiction.

Prior to the 1947 amendment, the Emergency Price Control Act, § 204(e) (1), 50 U.S.C.A.Appendix, § 924(e) (1), provided that in any civil or criminal proceeding brought pursuant to Sec. 205 of the act, 50 U.S.C.A.Appendix, § 925, the defendant might apply to the court in which the proceeding was pending for leave to file in the Emergency Court of Appeals a complaint against the Administrator, setting forth objections to the validity of any provision which the defendant was alleged to have violated, and it was mandatory that the court in which the proceeding was pending grant such leave with respect to any objection which it found was made in good faith, and that upon the filing of a complaint pursuant to and within thirty days from the granting of such leave, the Emergency Court of Appeals assumed jurisdiction to enjoin or set aside, in whole or in part, the provision of the regulation .or order complained of, or to dismiss the complaint. The section also provided that the court stay the proceeding during the thirty-day period within which the complaint might be filed in the Emergency Court of Appeals.

Under the act as amended in 1947, and as responsibility for functions with respect to rent control was transferred to the Housing Expediter, see Executive Order 9841, 50 U.S.C.A.Appendix, § 601 note, 12 Fed.Reg. 2645, the defendant is not given the right to apply for leave to file a complaint in the Emergency Court of Appeals with reference to the order involved in this case, as that court no longer acquires jurisdiction pursuant to Sec. 204(e), 50 U. S.C.A.Appendix, § 924(e), over any complaint contesting the validity of a rent order. However, the right of a defendant to have a rent order reviewed -by filing a protest with the Administrator (now the Housing Expediter), as provided in Sec. 203(a), 50 U.S.C.A.Appendix, § 923(a), remains unimpaired, and within a reasonable time after the filing of any such protest, but in no event more than thirty days after such filing, it is the duty of the Administrator to either grant or deny such protest in whole or in part, and in the event of a denial of the protest, in whole or in part, the Administrator shall inform the protestant of the grounds upon which such decision is based, and the defendant who is aggrieved by a denial or the partial denial of his protest may file a complaint with the Emergency Court of Appeals, under Sec. 204(a), 50 U.S.C.A.Appendix, § 924(a).

See Woods v. Hills, 1948, 334 U.S. 210, 68 S.Ct. 992, 996, 92 L.Ed. 1322. The Court therein also said:

“Thus, it appears that the Emergency-Court of Appeals may still be able to acquire jurisdiction to review rent orders, issued under the Price Control Act, by means of the protest and complaint procedure of §§ 203(a) and 204(a).”

It is clear that since the advent of .the 1947 amendment to the Emergency Price Control Act, one aggrieved by a rent order can have the validity of the order adjudicated by the Emergency Court of Appeals only after he has filed a protest against the validity of the order with the Housing Expediter, and the protest has been denied. The protest procedure is fully provided for, and a protest may be filed “at any time after the issuance of any regulation or order * * *.” But there are no provisions in the act, as it is presently constituted, which mandate a court to stay proceedings in a pending case because the defendant evidences an intention to exercise his right of protesting to the Housing Expediter the validity of an order involved in the case. It is only where the defendant has properly filed his protest under Sec. 203 prior to the institution -of proceedings under Sec. 205 that the court shall stay the proceedings, and then only if the court finds the protest to have been made in good faith.

Section 204(e) (2) of the act, 50 U.S.C. A.Appendix, § 924(e) (2) provides:

“(2) In any proceeding brought pursuant to section 205 of this act * * * involving an alleged violation of any provision of any such regulation, order or price schedule, the court shall stay the proceeding— * * *
“(ii) during the pendency of any protest properly filed by the defendant under section 203 (section 923 of this Appendix) prior to the institution of the proceeding under section 205 of this Act * * * setting forth objections to the validity of such provision which the court finds to have been made in good faith.”

We fail to find error in the refusal of the court below to grant the stay order requested by the defendant.

There is no dispute that the rent overcharge amounted to the sum of $95.-00, and it is likewise not disputed that a landlord who violates the provisions of the Emergency Price Control Act by charging rent at a rate in excess of that fixed by the Rent Director, or who violates an order or regulation of the Office of Price Administration, renders himself liable for the penalty fixed in the act, Sec. 205(e), 50 U.S.C.A.Appendix, § 925(e), which is, as regards a rental overcharge, not more than treble the amount of such overcharge, plus interest, and also a reasonable attorney’s fee.

Section 205(e), as it was amended in 1944, provides that the penalty shall be no more than the overcharge, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.

The judge a quo was of the opinion that the defendant had acted in good faith, and that there was no willful violation on his part of any of the provisions of the act, nor did he fail to take practicable precautions against the occurrence of the violation. The judgment awards plaintiff $95.00, which is the amount of the overcharge. Plaintiff contends that the collection of the excessive rent by defendant was in fact willful, and that the judgment should have been treble the amount awarded.

We have carefully read the record in this case. The defendant testified that the original registration of the rental unit which he filed with the Office of Price Administration had been lost in that office, and that if there was any overcharge, such occurred through the loss of the original registration. There is -no evidence whatever contradicting these statements of defendant, and as the judge below, who saw and heard him testify, believed them, and we, finding nothing in the record which would lead to the conclusion that the testimony is untruthful, can but affirm the allowance of $95.00.

According to the reasons for judgment, the award of $35.00 for the attorney’s fee was based on the amount of the claim. The judge observed that an attorney who accepts a case involving but a small amount should expect that he may not receive proper remuneration.

Appellant strenuously argues that the fee should have been fixed at a much larger amount, considering the time devoted to the case and the industry employed by the attorney in prosecuting it.

Plaintiff originally appealed to this court from the judgment dismissing the suit on an exception. Defendant moved for a dismissal of the appeal, which was sustained only as to the suspensive appeal. See 29 So.2d 486. The appeal was heard on its merits, the judgment was reversed, and the matter was remanded to the lower court for further proceedings. See 31 So.2d 36, and 33 So.2d 433. After a trial in the district court, plaintiff perfected this appeal, which defendant unsuccessfully moved to dismiss. See 39 So.2d 447.

We think that the amount fixed as the attorney’s fee is totally inadequate and should be increased. We cannot at all agree with our brother below that where a statute provides for a reasonable attorney’s fee in a case such as this, that the amount of the claim involved -is to be the «ole criterion for fixing the attorney’s fee. Other considerations should enter into the determination of the amount of the fee, such as the amount of time consumed, the industry of counsel, and the manner in which the case has been conducted.

In Lewis v. Louisiana Industrial Life Ins. Co., La.App., 4 So.2d 755, 760, plaintiff sued an insurer to recover sick benefits allegedly due under a combination policy, and to recover premiums paid on other policies, plus statutory penalties and her attorney’s fee. Plaintiff recovered $5.00, plus a penalty of like amount, and a $50.00 attorney’s fee. Our brothers of the second circuit, in affirming the judgment, made the following observation, in which we ■heartily concur:

“Defendant’s counsel argues that the fee sliould not exceed the amount of the judgment recovered. This position is not sound. If such a standard should be fixed, it would be impossible for claimants 'of small amounts in cases of this character to procure the services of counsel to enforce such claims.”

Michigan Window Cleaning Co. v. Martino, 173 F.2d 466, 468, decided by the Sixth Circuit Court of Appeals on March 21, 1949, was a suit brought under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., wherein claimant’s attorneys were allowed a fee of $6,000.00 on an award to claimant of $3,417.02. The Court made the following comment:

“ * * * The lawyers here diligently represented their clients in repeated hearings in the district court and pressed their cause through two reviewing courts. At every stage of the proceedings they were harrassed by dilatory tactics. They finally obtained judgment. We think the amount allowed was not excessive and upon consideration of the evidence, we are not prepared to say that it was so wholly inadequate as to warrant interference with the judgment * *

Whatley v. Love, La.App., 13 So.2d 719, relied upon by defendant, is not at all persuasive. In that case, $50.00 was awarded to plaintiff under the Emergency Price Control Act, and $25.00 was fixed as a reasonable attorney’s fee. An examination of that case, though it is found reported in full in the Southern Reporter, discloses it to be a matter involving less than $100.00, originating in the First City Court of New Orleans. The matter was tried de novo by one member of this court, who, because of the important legal questions thought to be involved, referred it to the court en banc. Plaintiff’s counsel made but one appearance before the city court, and argued the case but once before this court.

Considering the time, industry, skill, and diligence of plaintiff’s attorney, as well as the amount involved in the case, we believe that the sum of $150.00 would constitute fair remuneration for his services.

For the above reasons, the judgment appealed from is amended so as to increase the award for the attorney’s fee to the sum of $150.00, and as thus amended, and in all other respects, the judgment is affirmed. Defendant-appellee is to pay all costs of both courts.

Amended and affirmed.

REGAN, J., takes no part


author: HARDY, Judge.

text:
    HARRIS v. ALEXANDRIA COCA-COLA BOTTLING CO., Limited.
    No. 7333.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Parker & Parker, Jena, for appellant.
    Polk & Culpepper, Alexandria, for ap-pellee.
   HARDY, Judge.

This is an action for damages allegedly resulting from the presence of a foreign ingredient, to-wit, a spider, contained in a bottle of Coca-Cola from which plaintiff was drinking. There was judgment in favor of defendant rejecting plaintiff’s' demands, from which plaintiff has appealed.

It is unnecessary to recite the facts, involved in the instant case since we find it necessary to take action with respect to a matter of procedure. Before this Court counsel for defendant strenuously urges the failure of plaintiff’s counsel to introduce in evidence, on trial below, the testimony of three of plaintiff’s witnesses taken by deposition. It is contended that by reason of this failure the depositions are not incorporated in the record and therefore-are not properly before this Court.

We think the point is well made. Careful examination of the record discloses the only reference to the depositions to have been comprehended in an observation of plaintiff’s counsel in closing the case in chief as follows:

“With these depositions and with the reservation of putting Mrs. Durr on, I' rest.”

We do not consider that the above statement sufficiently complies with the formalities which require the tendering of depositions in evidence. To hold that the depositions in question are now before this Court would be, in effect, to deprive counsel for defendant of the opportunity to object to their admission. It is not for this Court to say, on the face of the untendered depositions, whether such objections might be tenable or not.

Article 906 of the Code of Practice reads as follows:

“But if the court shall think it not possible to pronounce definitively on the cause,. in the state in which it is, either because the partes have failed to adduce the necessary testimony, or because the inferior court refused to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law(Emphasis by the Court)

The depositions in the instant case constitute the bulk of the testimony on behalf of plaintiff. We do not feel that we could determine the facts, nor, in the event ■of plaintiff’s recovery, establish the quantum without the benefit of its testimony. It therefore follows in the interest of justice that the case should be remanded.

Accordingly, it is ordered that the judgment appealed from be, and it is hereby, set aside, and this cause is remanded to the Honorable the Ninth Judicial District Court for the purpose of being reopened in order to permit the introduction of ■depositions of witnesses for plaintiff. It is further ordered that following such action judgment shall be pronounced by the said 'Court upon consideration of the complete record. Costs of this appeal are taxed .against plaintiff-appellant.


author: JANVIER, Judge.

text:
    LE BRUN v. AMERICAN PAPER MFG. CO., Inc. et al. DOUBLET v. LE BRUN.
    Nos. 19259, 19260.
    Court of Appeal of Louisiana. Orleans.
    June 13, 1949.

      Miazza & Drury, New Orleans, for defendants-appellants, plaintiff-appellant.
    Harry R. Cabral, Wm. M. Campbell, Jr., New Orleans, for plaintiff-appellee, defendant-appellee Wallace C. LeBrun.
   JANVIER, Judge.

These consolidated cases result from an automobile accident which occurred on July 22, 1947, on the Metairie Ridge Road in the vicinity of the Labarre Road, in the Parish of Jefferson, at a point at which a private driveway leads from the Metairie Ridge Road to a store nearby. The vehicles which were involved were a taxicab, which was owned by Wallace C. LeBrun, and which was being driven by Eunice Paul Vedros, and a Stake body truck, which was being operated by Lloyd M. Dennis, an employee of American Paper Manufacturing Company, Inc., the owner of the truck. The two vehicles were being driven in the same direction toward the City of New Orleans, the truck being ahead and the taxicab in the rear. The driver of the truck intended to turn to the left in order to enter the roadway leading from the highway to the already mentioned store, and as he did so the taxicab, which was about to pass the truck on its left side, ran mto the left side of the truck, damaging it and the taxicab and causing physical injuries to Lawrence Doublet, Sr., an employee of American Paper Manufacturing Company, Inc., who was a passenger in the truck, being seated in the rear portion thereof.

LeBrun, the owner of the taxicab, brought the first of these suits, claiming $398.00 as the cost of repairing his taxicab, and $225.00, which he asserts represents the loss resulting from being deprived of the use of his taxicab for ten days. These two figures make a total of $623.00 (incorrectly added by plaintiff in his prayer in which he claims $625.00). LeBrun made defendants the American Paper Manufacturing Company, Inc., and The Employers’ Liability Assurance Corporation, Ltd., alleging the latter corporation to be the liability insurance Carrier of the former. LeBrun charged that the accident had resulted from the following acts of negligence on the part of Dennis, the driver of the truck:

“ * * * the truck driver turned sharply and abruptly into the driveway of the Beverly Food Store, thus making a left turn; that the truck driver gave no warning that he would make a left hand turn;
“ * * * that at the time that the truck driver began to make the left hand turn without warning, the said truck was on the extreme right side of the road; that the truck was being driven at approximately 20 miles per hour and the taxi at approximately 25 miles per hour; * * ”

LeBrun charges also that the width of the body of the truck was such that it prohibited

“the view of any hand signal which the truck driver might give to any traffic behind the said truck * *

And he charges, too, that

“the truck was loaded with large boxes, blocking the view of the truck driver of any traffic at the rear or on the side.”

In the second suit, Doublet, alleging that he had sustained physical injuries and that the accident had been caused by negligence of the operator of LeBrun’s taxicab, prayed for judgment against LeBrun in the sum of $1019.20. He alleged that the said taxi-rab driver was guilty of the following acts of negligence: That he was proceeding in a negligent and careless manner at a speed of approximately 40 miles an hour, in excess of the speed limit of 25- miles per hour; that he failed to have the taxicab under control; that he did not operate the taxicab at a safe distance behind the truck; that he did not blow the horn of the taxicab as he attempted to pass the truck, and that he failed to yield to the truck the right to turn to its left, in spite of the fact that the driver of the truck signalled that he intended to slow down and was about to make a left hand turn.

In the first of these suits in which Le-Brun prayed for judgment against the corporate defendants, those defendants denied any negligence on the part of the driver of the truck and averred that the said driver had given a proper hand signal, indicating his intention to turn to the left, and that the accident had been caused by the negligence of the driver of the taxicab in attempting to pass the truck at a high rate of speed without signalling, and in spite of the fact that the driver of the truck had signalled his intention of turning to the left.

The American Paper Manufacturing Company, Inc., then assumed the position of plaintiff in reconvention and prayed for judgment against LeBrun for $45.00, alleging this to be the cost of repairing the damage to its truck, and The Employers’ Liability Assurance Corporation, Ltd., assumed the position of plaintiff in recon-vention and prayed for judgment against LeBrun for $28.00, alleging that to be the amount it had expended for medical attention to Doublet, The Employers’ Liability Assurance Corporation being not only the liability insurance carrier of the said American Paper Manufacturing Company but also having protected it by a policy of workmen’s compensation insurance.

Let us say here that none of the amounts claimed is in dispute except that which LeBrun claims as the loss sustained as the result of being deprived of the use of the taxicab for ten days. In other words, the corporate defendants admit that if LeBrun is entitled to recover for damage to his taxicab, that damage amounted to $398.00, and LeBrun admits that if the two corporations are entitled to recover against him in reconvention, the Americán Paper Manufacturing Company is entitled to $45.00, representing the damage to its truck, and the insurance Company is entitled to $28.00 as the amount expended for medical attention to Doublet.

In the first suit — 'that of LeBrun against the two corporate defendants — there was judgment in favor of LeBrun and against the two defendants for $398.00 in solido, with legal interest from judicial demand. The two reconventional demands were dismissed. In the second suit there was judgment dismissing the claim of Doublet at his cost.

The American Paper Manufacturing Company, Inc., and The Employers’ Liability Assurance Company, Ltd., appealed suspensively from the judgment against them, and Doublet appealed from the judgment dismissing his suit against LeBrun.

LeBrun answered the appeal of the two corporations, praying that the amount awarded him be increased to $625.00, again incorrectly totalling the two items of his claim which in fact amounts to only $623.00.

There is in reality no dispute concerning the statutory law which is applicable. There are certain provisions of the Louisiana Highway Regulatory Act, No. 286 of 1938, which define the duties of the driver of a vehicle who desires to turn to his left, and there are others which set forth the precautions which must be taken by the operator of a vehicle who desires to pass another vehicle which is ahead We quote at length from that statute. Rule 9 of Section 3 reads as follows:

“Turning, (a) The driver of any vehicle on the public roads, highways and bridges of this State shall ascertain', before turning around upon any such road, highway or bridge, that there Is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly or uneces-sarily delayed and shall yield right-of-way to such approaching traffic and shall not attempt to make a turn unless and until the said way is clear.
“(b) Except as otherwise provided in this Section, the driver of a vehicle intending to turn to the right at an intersection shall approach such intersection in the lane for traffic nearest the right hand side of the highway, and in turning shall keep as closely as practicable to the right hand curb or edge of the highway, and when intending to turn to the left shall approach such intersection in the lane for. traffic to the right of and nearest the center line of the highway and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning such vehicle to the left.
“(c) For the purpose of this Section, the center of the intersection shall mean the meeting point of the medial lines of the highways intersecting one another.”

Rule 7 of Section 3 defines the duties of ■the driver of an overtaking motor vehicle.

“Overtaking Motor Vehicle, (a) The driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left ■thereof and shall not again drive to the right side' of the highway until safely clear of such overtaken vehicle.
“(b) The driver of an overtaking vehicle shall give audible and sufficient warning of his intention before overtaking, passing or attempting to pass a vehicle proceeding in the same direction.
* * * * * *
“(f) The driver of a vehicle upon the public roads, highways or bridges of this State, who has been given adequate warnings by an overtaking and passing vehicle, approaching from the rear, shall promptly give way to his right in favor of such overtaking and passing vehicle and shall not increase the speed of his vehicle until it has been completely overtaken and passed by the overtaking and passing vehicle; provided, however, that nothing herein shall mitigate against the provisions for prima facie responsibility provided for in this rule.”

Rule 8 of Section 3 reads, in part, as follows:

“Following Vehicles, (a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway.”

It is the contention of the two corporate defendants in the first suit and of Doublet in the second suit that, as the driver of the truck approached the private roadway into which he desired to turn to his left, he substantially reduced the speed of the truck and extended his left hand and thus gave the proper signal of his intention to turn to the left. Dennis, the driver of the truck, says that when he did this, he looked into the rear view mirror and could not discover that there was any other vehicle on the road in the rear of the truck. It is the contention of LeBrun, on the other hand, that' as Vedros, the operator of LeBrun’s taxicab, neared the truck he sounded his horn several times-and then swerved to the left in an effort to pass around the truck; that no hand signal or other warning was given by the truck operator, and that just as the taxicab had reached a point about opposite the left rear wheel of the truck, the truck was suddenly swerved to its left directly across the path of the taxicab, which then crashed its right front fender into the left side of the truck just to the rear of the left front fender of the truck.

Doublet, in addition, contends that even if the driver of the truck was at fault, the proximate cause of the accident was the negligence of Vedros, the driver of the taxicab and that, therefore, if both drivers were negligent, he is not deprived by the negligence of Dennis of his right to recover from LeBrun, for the reason that if a person is injured by the joint negligence of two others, the injured party may recover from either or both of' the joint-tort feasors.

The only disinterested eye witness was Mr. Herbert Huber who, at the time of the accident, was in the employ of a private corporation, but who, when he testified, was a deputy sheriff of the Parish of Jefferson. Mr. Huber was operating another automobile on the same road and was going in the same direction in which the other two vehicles were being driven. He was in the rear of the truck, and he says that the taxicab passed his car to its left and that then, -before its driver attempted to pass the truck, he sounded the horn several times. He says that he did not see any hand signal given by the driver of the truck, and that just as the taxicab was about to pass the truck, the latter vehicle was swerved suddenly to its left when it was too late for the taxicab to stop.

Doublet was riding in the rear of the truck. He says that he did not see the taxicab because of a tarpaulin which was thrown over a portion of the body of the truck and which prevented his seeing to the rear. It is shown that the body of the truck was considerably wider than was its cab, extending on each side a distance variously estimated at from IS to 20 inches beyond the side of the cab. And it is shown, too, that the tarpaulin extended over the side of the truck a short additional distance.

Dennis, the driver of the truck, says that he knew of these conditions and that when he extended his arm, his hand was considerably beyond the obstruction which resulted from the body of the truck and •the tarpaulin, and that it could easily have been seen from the rear.

Vedros, the operator of the taxicab, says that no hand signal was given by Dennis; that he blew his horn several times before he attempted to pass the truck, and that he could easily have passed it except for ■the fact that the truck turned suddenly to the left when it was too late for him to stop.

We think it very obvious that if Dennis extended his hand, it must not have been seen by the driver of the taxicab who surely would not have deliberately crashed into the side of the truck had he noticed any signal indicating the intention of the driver of the truck to turn across the roadway ahead of him.

Counsel for the two corporate defendants and Doublet say that it is obvious that the reason Huber did not see the hand signal which was given by the driver of the truck was that between him and the truck was the taxicab of LeBrun.

It is argued on behalf of the corporate defendants and of Doublet that even if no hand signal was given by the driver of the truck, the operator of the taxicab should have been aware of the fact that the truck was to be turned to its left because of the private roadway which led from the highway and because of the fact that as the truck approached that point its speed was substantially reduced.

The evidence does show that the speed of the truck was somewhat reduced and that probably as the truck attempted to make the turn it was proceeding at a speed of about twelve or fifteen miles per hour. We think, however, that it does not show that the speed of the truck had been so much reduced as to indicate to the driver of the taxicab that it was the purpose of the driver of the truck to turn to the left.

We do not find convincing the testimony of Dennis, the driver of the truck. At first he said that before turning the truck to its left he brought it to a complete stop and looked into the rear view mirror, and that there was no traffic behind it. He admitted that there was nothing to prevent his seeing anything in the roadway to the rear except for a space of about ten feet immediately behind the truck, so that surely if he did look he must have seen either or both of the other vehicles which obviously were in the roadway behind the truck. Dennis later changed his testimony as to stopping, ■and said that he did not come to a complete stop, but that he “wasn’t going at any speed at all”, and he continued to insist that he looked into the rear view mirror and saw no other vehicles.

We conclude, without finding it necessary to enter upon a detailed discussion of the remaining evidence, that Dennis did not look to his rear; did not make certain that it was safe to turn, and did not extend his arm to indicate-his intention to turn to the left. A turn to the left across the roadway is a dangerous maneuver, and it is well settled that it should not be attempted unless the operator who intends to make such a turn makes certain that it is safe to do so, and unless he gives such signal as is required to indicate his intention to make such a turn.

Counsel for Doublet insist, however, that even if we find that Dennis was at fault, still Doublet should be permitted to recover from LeBrun because of the concurrent negligence of Vedros. However, we fail to find any negligence in Vedros. The evidence convinces us that the speed of his taxicab was not excessive; that he sounded his horn several times before he attempted to pass the truck, and that there was nothing which he could see which indicated to him that it was the intention of Dennis to turn.

Counsel for the corporate defendants and for Doublet cite three cases, each of which .they say is' authority for the position taken here. These cases are: Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165; Kelly v. Neff, La.App., 14 So.2d 657, and Goynes v. St. Charles Dairy, Inc., La.App., 197 So. 819.

In the Burns case, the Supreme Court found facts which, to some extent, were similar to those presented here. There, a very large truck was about to turn to its left into an intersecting road when its driver saw, approaching from the rear, another automobile coming at a very high speed. Apparently he realized that he should not turn to his left and he stopped the truck. The driver of the other vehicle, coming at tremendous speed, in an effort to avoid hitting the truck which was stopped in the road ahead of him, turned to his left “zigzagged and skidded for a considerable distance and finally ran into the ditch on the upper end * * * of the side road. [208 La. 406, 23 So.2d 167] There seems to have been no doubt at all that the driver of the truck gave all necessary signals and brought the truck to a stop and that the accident was caused entirely by the negligence of the driver of the second vehicle. The Supreme Court set forth the law applicable in such situations in the following language:

“The first question to be determined in this case is whether the driver of defendants’ truck is chargeable with the act of negligence complained of by plaintiff, with the burden of proof resting upon plaintiff to establish the alleged negligent act. If, as alleged by plaintiff, the driver of defendants’ truck suddenly and without warning turned the truck to the left on the highway at the time plaintiff was passing in his automobile, thereby causing plaintiff to run the automobile into the ditch, defendants are liable. If, on the other hand, as alleged by defendants, the driver of their truck did not turn the vehicle to the left, but slowed down and came to a stop after giving the necessary signal preparatory to making the turn to the left and plaintiff, disregarding the signal, cut to the left off the highway onto the abutting gravel road, skidding for a considerable distance thereon and finally crashing into the ditch, defendants are not liable.”

In Kelly v. Neff, supra, the facts were somewhat similar, but there again the Court held plainly that the accident was caused by the excessive speed of the second car. The Court said that the driver of the leading car, having ascertained, by looking to the rear, that he could make the turn safely, was within his rights in doing so, and that he did not have to wait until there were no vehicles whatever in the road behind him, and that the only cause for that particular accident was that the driver of the following car was operating it at a dangerously excessive speed.

In Goynes v. St. Charles Dairy, Inc., supra, the Court found that the driver of the second car was at fault in running into the leading car, because the driver of the leading car was operating it at a very slow speed and had given a hand signal showing that he intended to turn to the left. Counsel, however, point to certain language in the opinion in that case as indicating that even without the giving of a hand signal the following vehicle should be warned, by the reduction in speed of a car ahead, that the car ahead is to be turned to the left. He points to the following language [197 So. 821]:
“ * * * It is further our opinion that the cause of the accident was the fact that the truck was being driven too close to the forward car and at an excessive rate of speed taking into consideration its proximity to this car, together with the failure of the driver to notice the signal and the slowing down motion of plaintiff’s car in preparation for the left turn.”

We quite agree that if the speed of the leading car is so substantially reduced as to indicate an intention to stop or to turn that the driver of a following car should be warned of the possibility of danger. But we find that the facts here do not justify the application of that rule. Furthermore, in the Goynes case it is evident that the real reason for the decision was that the second car was being driven too close to the leading car and at an excessive speed.

We repeat that we have no difficulty in concluding that the sole cause of the accident in the case at bar was the negligence of Dennis, the driver of the truck.

It is conceded that the repairs to the taxicab cost $398.00, which item is not in dispute, and we have left for consideration only the question of whether LeBrun is entitled to recover for the loss resulting from his being deprived of the use of his taxicab while it was being repaired. It is well settled that in such a situation the owner of a taxicab is entitled to recover for such loss. In Tornabene v. Rau, La.App., 34 So.2d 655, 657, we found facts, concerning the use of a taxicab, very similar to those presented here, and there we said:

“Plaintiff has been engaged in the business of operating a taxicab for about six years. He operated the cab himself during the daylight hours, and at night rented it to another driver and received rental of $5 per night. The automobile, while being repaired, was out of operation for a period of seven days, and plaintiff lost the night rental for that period, besides his earnings, which he testified were from $8 to $10 per day, from his own operation of the cab.”

In Lucia v. De Lage, La.App., 36 So.2d 53, 55, appears the following:

“In Drewes v. Miller et al., La.App., 25 So.2d 820, 823, we said:
“ ‘The law relating to the right of an owner of a damaged vehicle to recover damages for loss of its use is well settled. * * * >
“In Tornabene v. Rau [La.App.], 34 So.2d 655, we were presented with a claim of a taxicab operator who was deprived of its use while it was undergoing repairs. He operated the cab himself in the day time and rented it to another driver at night. We allowed recovery for the loss of rent as well as for the loss which he sustained because he could not himself operate it during the day. See also Adam v. English, La.App., 21 So.2d 633. Plaintiff should have been allowed recovery on this item of damage.”

Plaintiff’s testimony is that the taxicab was operated twenty-four hours a day; that he himself drove it for twelve hours, and usually made in those twelve hours a profit of about $15.00, and that in the other twelve hours it was driven by Vedros, as his employee, under an agreement by which he and Vedros divided the profits made in those twelve hours. He said that the profit made in those twelve hours amounted to about $15.00 and that his half of this was $7.50, which, when added to the $15.00 which he himself made, amounted to $22.50 a day, which was the loss sustained by him.

There is nothing in any way to contradict or refute this testimony of LeBrun. In view of the jurisprudence which we think is applicable, he should be permitted to recover $225.00, in addition to the $398.00 awarded him in the judgment in the District Court.

Accordingly, in the matter entitled Wallace C. LeBrun v. American Paper Manufacturing Company, Inc., and The Employers’ Liability Assurance Corporation, Ltd., No. 19259 of our docket, the judgment appealed from is amended by the increase of the amount to $623.00, and as thus amended, it is affirmed, defendants to pay all costs.

And in the matter entitled Lawrence Doublet, Sr. v. Wallace C. LeBrun, No. 19,260 of our docket, the judgment appealed from is affirmed at the cost of appellant.

Judgment amended and affirmed (No. 19259).

Judgment affirmed (No. 19260).

REGAN, J., absent.