text:
    BOZEMAN v. McDONALD.
    No. 7319.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Rehearing Denied April 29, 1949.
    Certiorari Denied May 31, 1949.

      Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for appellant.
    Luther S. Montgomery, of Shreveport, for appellee.
   TALIAFERRO, Judge.

On November 13, 1947, plaintiff,, for the price of $8,500.00, purchased from the defendant a lot of ground in the City of Shreveport, Louisiana, with a new five-room residence thereon, which had been recently built by the defendant for sale. Plaintiff moved into the house the fou'rth day after deed was passed. The building very soon thereafter developed the vices and defects hereinafter stated, which, not being remedied by the defendant after demand, provoked the institution of this suit.

Plaintiff alleged that because of non-apparent defects in the house at the time he purchased it, due to “inferior and inadequate workmanship and materials”, the property had not then a value in excess of $6,000.00. As regards the defects to which referred, he specifically alleged that the entire floor of the house has sagged and become uneven; that the sagging of the floor has brought about the following developments, to-wit:

The partition walls have become separated from the ceiling and floor; doors drag and do not properly fit in their frames; the cement joints between sections of sheet rock in the walls and ceiling 'have in places broken. In addition to the above enumerated conditions, plaintiff also alleged that the rear door of the building has warped so badly that rainwater enters through it; that the rear concrete steps have slipped downward from their proper position, and the doors of one of the kitchen cabinets have so badly warped as to be useless. Finally, he alleged that to “remedy the conditions set forth” will require the expenditure of $2,000.00. However, he prayed for judgment for $2,500.00 on this account but prior to beginning of trial, in open court, reduced his demand to $2,-000.00.

Defendant denied articulately the allegations concerning the alleged defects in the building at the time it was purchased by the plaintiff, and further avers that if the building has developed the conditions described by plaintiff, the same are due entirely to 'his own acts after buying and taking possession of the property; that when the house was erected the foundations thereof were constructed and arranged in the manner designed by a competent architect, so that its weight would be equally distributed, but that plaintiff has altered the set-up by installing over the partition separating the west front room from the kitchen, a central attic heating furnace weighing approximately 340 pounds; that the added weight of this furnace has caused a center foundation pier to sink and settle, to which the sagging of the floor with consequent results is attributable.

Plaintiff’s demand was rejected and his suit was dismissed at his cost. He appealed to this court.

Defendant objected to the introduction of any testimony to prove the essential allegations of the petition, on the ground that same were too vague and indefinite to admit of proof. The objection was overruled. It is urged in this court.

While it may be conceded that the petition to some extent is deficient in precision of allegations, yet a fair appraisal of it as a whole leaves no doubt with respect to what plaintiff is seeking, and the grounds therefor. These allegations dearly disclose that he bought the house and that within one year, Article 2534 of Civil Code, thereafter latent defects of a material character developed therein that had the effect of diminishing the value of the property to a substantial extent.

After stating the nature and character of the defects that allegedly diminish the value of the property, plaintiff further alleged :

“In order to remedy the conditions set forth in the preceding paragraph, your petitioner would be required to pay at least Two Thousand and No/100 ($2,000.-00) Dollars.”

This obviously means that to remedy the alleged developed defects and bring the building’s physical condition to the status it should have had, and was believed by plaintiff to have had when he purchased it, an expenditure in the sum of $2,000.00 will have to be made. This amount is the measure of the alleged shrinkage in value due to said defects. This, of course, relates back to the allegations that the defects “consisted of inferior and inadequate workmanship and materials” employed in erecting the building.

As we construe the petition, this action, in effect, is one in diminution of the purchase price, or quanti minoris, authorized by Articles Nos. 2541 to 2544, inclusive, of the Civil Code. Article No. 2541 and 2544 read as follows:

“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.
“The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

These articles of the Civil Code, it has been held, have application to sales of realty as they do to personalty. De Armas v. Gray et al., 10 La. 575, 579. These articles and others of the Civil Code leave no doubt on this subject.

In Morehouse Ice Company, Inc., v. Tooke & Reynolds, La.App., 154 So. 402, 405, this court said:

“Whether the purchaser sues for a reduction of the price eo nomine, the measure of which is the difference in value of a sound and unsound article, or whether he sues for the amount necessarily expended by him to convert the unsound article into one of soundness, is a distinction without a difference.”

This statement is apropos here.

It is a well fixed rule of law and equity that in order to determine its true character and the nature of the relief sought, a court should and will look to the substance of a demand, rather than address itself to technicalities; and that a litigant seeking the aid of the court to enforce a right will not be turned away, even temporarily, on account of inartful pleading unless no other course is open to it. We are of the opinion that the trial judge’s ruling on the objection was correct, and it is approved.

Two theories are advanced to account for the sagging of the floors. One is that the concrete pier above and about which the sagging is most pronounced, because of the unstable and damp character of the soil, has, from the weight of the house, sunk. The other theory, not set up, however, in answer, but in argument, is that the partition walls were not erected directly above the sills, and the weight of the building resting thereupon, augmented by the weight of the attic furnace and attachments, has caused the floor joists to bow.

Prior to the construction of the building the Federal Housing Administration made commitment to Underwrite a loan by defendant on the property to the amount of $6,700.00.

Strange as it may seem, the testimony is contradictory as concerns the exact cause or causes of the floor’s sagging. Several witnesses of long experience in the constructing and sale of frame buildings examined the house involved in this case, but they all do not agree as to the cause of the trouble; and their testimony, with little or no dissent, proves that plaintiff has not in his petition exaggerated the character and extent of the developed defects.

E. M. Freeman, a civil engineer of the City of Shreveport, of twenty years experience, who specializes in structural phases of his profession, examined plaintiff’s building not long before date of trial, and testified in support of the first named theory, that is, that the sagging of the floors is attributable to the sinking of piers, especially one of those about the center of the building. He evidently did not observe, if su'ch be true, that the partition walls were not erected over the sills. The cause of the floor’s sagging is described by him as follows:

“Inadequate foundation. Meaning, specifically, unstable soil conditions.”

He also was asked to state what should be done to remedy the bad condition he 'found to exist, and replied:

“I think some supplemental footings; some additional piers; the introduction of certain structural wood supports; some additional sills and some joists here and there, properly placed; together with the necessary refinishing of the interior.”

There appears no sound reason whatever for not accepting Mr. Freeman’s testimony at full face value.

Sidney M. Hoover, an architect, a graduate of Tulane University, was in the employ of the FHA prior to and at the time the hou'se was constructed. Mr. E. G. Robbins, Chief Underwriter of the FHA in the Shreveport area, heard of the developed defects in the building through complaints of plaintiff, and communicated this knowledge to Mr. Hoover, who then visited the building and testified that he made close examination thereof. It was his opinion that the foundation, including joists, sills and piers, was entirely adequate for this 'building and any other building of its kind. He testified without objection, and contrary to allegations of the answer, that the sagging of the floors is attributable to the partition walls not having been erected immediately above the sills, and to the added weight of the attic furnace and equipment. He said the floor joists, from the weight of the partitions and attic furnace, have bowed. However, he and Mr. Robbins are each certain that the house was constructed strictly in keeping with the plans and specifications submitted by defendant to and approved by the FHA prior to its commitment to underwrite the loan. When asked what was necessary to correct and stop further sagging of the floors, Mr. Hoover answered:

“I recommended a supplemental row of sills at mid-center span of each of the three 4-joist spans, so as to run parallel to the present sills, and special piers to support these.”

Everyone knows that the main function of foundation sills of a frame building is to sustain the weight of partition walls that should rise perpendicularly above them. Yet, Mr. Hoover and Mr. Robbins testified that this building, after being finally completed was approved as to construction and accepted for insurance by the local representatives of the FHA in keeping with the original commitment. Hoover’s testimony as to the cause of the sagging is corroborated by that of a contractor and builder of many years experience.

Had timely objection been made to the admissibility of the testimony offered to prove that the floors sagged from improper location of the partition walls, it would doubtless have been sustained as being in contradiction of the defense set up in the answer that the sagging is due to the sinking of one or more piers because of the weight of the attic furnace. All things considered, we conclude and hold that Freeman’s testimony on this phase of the question should be accepted. It is not only supported by reason, but by defendant’s own answer.

The plans and specifications for said building provided that the piers be sunk into the earth’s surface a sufficient depth to insure stable foundation, but Mr. Hoover testified that he found but one of the existing piers extending below the earth’s surface. It is shown that the soil upon which the building was erected is unstable from excessive water content. It is not considered first-class for foundation piers. Of course, there are several ways by which this deficiency could have been overcome.

Under the title “Of The Obligations Of The Seller”, in the Civil Code, Articles ,Nos. 2474, 2475 and 2476, appear. We quote the last two of these, to-wit:

“The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.
***** *
“The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.”

It will be observed from the language of the last quoted article that the seller warrants the thing sold against “hidden defects * * * or its redhibitory vices.” It is clear that if a house pier is erected u'pon an unstable foundation the defect is “hidden”, within the meaning of the quoted article and is not discoverable upon simple inspection. The defect in this case did not develop until after plaintiff moved into the building. He gave the building the sort of inspection usually given by one who is purchasing a new home. Naturally, he assumed that since the FHA had guaranteed a loan against the property it had been competently constructed.

It goes without saying that if a new frame building requires the additions enumerated by either Mr. Freeman or Mr. Hoover to put it in proper physical condition, the original workmanship was both inadequate and incompetent. It was said in Barraque v. Neff et al., 202 La. 360, 11 So.2d 697, that the fact that the walls cracked so soon after the building was completed created a presumption of the use of poor material or the employment of bad workmanship. And, so the same may be said in the case before us.

The De Armas case, supra, was decided over one hundred years ago. Diligent research has not revealed another case in our jurisprudence which rests exactly upon the principle involved therein. The Morehouse Ice Company case, supra, is the nearest approach to it. Many cases are found wherein the law governing the relationship between building contractors and those for whom they have built, were applied, but these are not very helpful in the present case. The De Armas case, though, standing alone, we believe to announce good law and is controlling in the case at bar. This is clearly reflected from the paragraphs of the syllabi which we quote, to-wit:

“An allegation, that the defendant sold to the plaintiff a house, with warranty, and that a part of it had fallen in ruins, on account of the badness of its construction, sets forth a cause of action, sufficient to authorize a recovery.
“Where there is a defect in the wall of a house, which is not declared, and is not apparent, the vendee will be entitled to a diminution of the price, proportionate to the injury sustained, if soon after the sale the wall falls in ruins.”
“The correct standard by which to ascertain the diminution of price is, the costs of repair.”

The testimony leaves no doubt that the material of which the building was constructed was of the character generally employed at the present time in the erection of residences in and about the City of Shreveport. It was not “inadequate” for that purpose.

We believe that to the installation of the attic furnace should not be ascribed any real importance in the case. If the foundation piers had been properly and competently buttressed, they would have easily withstood without sinking, the relatively small weight of this furnace, and, in fact, of several more like it.

In passing, we cannot refrain from observing that notwithstanding his personal and financial interest in the outcome of the case, defendant did not testify.

The cost of workmanship and material to correct the sagging condition of the floors and to maintain them in proper position, to repair the walls and ceilings and repaint them, and in other respects to correct the defects enumerated in the petition, is not without Uncertainty. One witness said it all could be done for not over $300.00, while another witness testified that the cost will be over $900.00, and he submitted a broken-down statement to support his testimony. The former estimate appears ultra conservative while the latter appears to be too liberal. We have decided to take the average of the two estimates, or $600.00 as a proper basis on which to predicate an award in plaintiff's favor.

Therefore, for the reasons herein assigned, the judgment from which appealed, is annulled, avoided and reversed, and there is now judgment in favor of the plaintiff, Melvin L. Bozeman, arid against the defendant, A. P. McDonald, for the sum of Six Hundred and No/100 ($600.00) Dollars, with legal interest thereon from judicial demand until.paid, and for all costs of this suit.

TALIAFERRO, KENNON and HARDY, JJ., sitting.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    AMERICAN CENT. INS. CO. et al. v. GASPARD et al.
    No. 3109.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Edward F. LeBlanc, Abbeville, Frank W. Summers, Abbeville, for appellants.
    Kibbe & Bailey, Abbeville, for appellees.
   DORE, Judge.

This suit arises out of a collision between a 1942 Dodge Coupe automobile belonging to and driven by Maurice Primeaux and a Chevrolet half-ton pick-up truck driven by Mrs. Nedies Gaspard, nee Lena 26, 1946, at about 4:30 P-M., in the town of Schexnaider, which collision occurred July 26, 1946, at about 4:30 P.M., in the town of Wilson Street (or Avenue) and 6th Street. It is shown that Wilson Street (or Avenue) runs north and south, and according to the ordinance of the town of Kaplan, was a right-of-way street, and 6th Street runs east and west.

The petition alleges that the Chevrolet pick-up truck driven by Mrs. Lena Schex-naider Gaspard and owned by Theodore Schexnaider, her father, ran into the 1942 Dodge Coupe owned and driven by Maurice Primeaux at the intersection, due entirely to the negligence of the driver, particularly in that she was driving at an excessive rate of speed in violation of the law of Kaplan, in excess of 20 miles per hour, and that she was not keeping a proper lookout, and, in that, according to information and belief, the Chevrolet pick-up truck had brakes that were in a condition of disrepair. Plaintiff Primeaux and his insurer sues Mrs. Gaspard and her father and husband, in solido, for the sum of $523.00, the sum of $473.00 being on behalf of the insurer as subrogee, and the sum of $50.00 being on behalf of Maurice Primeaux, under the terms of the policy of insurance, being a policy commonly referred to as a $50.00 deductible.

After trial of the case, the trial judge came to the conclusion that Maurice Prime-aux ran into the right front end of the Chevrolet pick-up truck belonging to Theodore Schexnaider and being driven by his daughter, and that the said collision was therefore occasioned by the contributory negligence of Maurice Primeaux, barring the recovery of himself and the insurer, and he therefore dismissed the suit of plaintiffs at their costs. Plaintiffs have appealed.

It is shown by the evidence that the collision involved in this suit occurred at approximately the middle intersection of Wilson Avenue and 6th Street in the Town of Kaplan- The plaintiff Maurice Prime-aux was driving in a northerly direction on Wilson Street (or avenue) which according to the certified copy of the Ordinance introduced in evidence, was a right-of-way street. Mrs. Nedies Gaspard was driving the truck belonging to her father, Theodore Schexnaider, in an easterly direction on 6th Street. Both streets were approximately 50 feet in width, and were graveled streets. While Wilson Street (or Avenue) under the specific statute of the Town of Kaplan was designated as a right-of-way street, the evidence is to the effect that there were no signs indicating the right-of-way situation at the time of the accident. Nevertheless, both parties to the accident were long-time residents of Kaplan and had constructive knowledge of the existence of the statute making all avenues (except the State Highway) running north and south rights-of-way streets.

The main issue in the case is one of fact. Primeaux and guests in his car testify that the Schexnaider truck ran into the left front of the Primeaux car. On the other hand, Mrs. Nedies Gaspard and the guest in her car testified that the Primeaux car ran into the right front of the Chevrolet pick-up truck. The evidence is clearly contradictory. The trial judge accepted the testimony of Mrs. Gaspard and her guest because he felt that the physical facts supported their testimony. It is shown by the physical facts that both the truck and the Primeaux automobile came to rest at the northeast corner of the intersection and that the truck was damaged on the right front fender and running board towards the rear thereof, whereas the Primeaux automobile was damaged mainly on the front end thereof, including both headlights.

The negligence of Mrs- Gaspard is conceded. The most contested question presented is the contributory negligence of Maurice Primeaux, the owner and driver of plaintiffs’ car.

The evidence shows that both vehicles were travelling at about the same rate of speed, that is about fifteen to twenty miles an hour in approaching the intersection. There was nothing to prevent the driver of each vehicle from seeing each other in their approach of the intersection. They arrived at practically the same time. According to Primeaux, his car and the truck were almost in the center of the intersection when he first saw the truck and were about to collide. He then applied his brakes.

It is evident that Primeaux was not keeping a proper lookout. Regardless of the fact that he had the right of way in approaching the intersection from the right of Mrs. Gaspard and by ordinance of the Town of Kaplan, yet it was his duty to maintain a proper lookout and to observe approaching traffic on the subordinate street. See Genovese v. Daigle, La.App., 17 So.2d 736; Landry v. Johnson, La.App., 33 So.2d 758.

Furthermore, this case presents solely a question of fact. In view of the evidence, we cannot find that the trial court committed any manifest error in coming to the conclusion that plaintiff Prime-aux was guilty of negligence which was a proximate cause of the accident. It seems apparent that Primeaux was not keeping a proper lookout and that he was taking it for granted that he had the right-of-way and could go on his way without regard for traffic on Sixth Street. Not finding any manifest error in the finding of fact by the trial judge, we must affirm the judgment below, which is accordingly ordered.


author: HARDY, Judge.

text:
    TILLMAN v. CANGELOSI.
    No. 7311.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Rehearing Denied April 29, 1949.
    Certiorari Denied May 31, 1949.

      Ferdinand A. Cashio, of Shreveport, for appellant.
    Love & Bailey, of Shreveport, for ap-pellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $444.17 representing amounts paid for materials and labor in the improvement of certain property belonging to the defendant. Plaintiff also sought the recovery of the sum of $55 as attorney’s fees. After trial there was judgment in favor of plaintiff in the sum of $444.17, from which the defendant has appealed. Plaintiff has answered the appeal requesting an increase in the amount of the judgment to include the attorney’s fees as prayed for.

This appeal involves purely a question of fact. The record discloses an absolute conflict on the facts involved as between the testimony of witnesses for plaintiff and defendant respectively.

Plaintiff contends that some time during the month of April, 1946, he entered into a verbal agreement with the defendant under the terms of which the latter agreed to erect a filling station on certain property belonging to him located in the City of Shreveport. Plaintiff obligated himself to pay for the labor and materials necessary in the preparation of the lot and the construction of concrete driveways thereon. According to plaintiff’s version defendant agreed to purchase his necessary supplies of oil, gasoline and petroleum products from the plaintiff, who was a jobber of such products. It was further ■agreed that plaintiff should be reimbursed for his expenditures in connection with the improvement of the lot out of gasoline sales on an agreed basis of return per gallon on such sales. Pursuant to this understanding plaintiff paid for labor and materials to the extent of a total amount of $444.17, for which he has not been reimbursed by the defendant.

All of these contentions of plaintiff are vigorously disputed by defendant, whose interpretation of the agreement is directly contrary to plaintiff’s version. Defendant claims that plaintiff obligated himself not only to prepare the lot and construct the driveway thereon, but, additionally, to erect the filling station itself. Under the agreement for the lease of defendant’s property plaintiff was entitled to reimburse himself for his expenditures out of gasoline sales, at the same time paying rent for the lease of the ground to the defendant.

The only points of agreement in this entire record are that the contract was intended to be reduced to writing; that the parties failed to agree on the terms and conditions thereof; that plaintiff has not been reimbursed for his expenditures; and that plaintiff was to furnish, upon consummation of any agreement, the pumps and equipment necessary for the operation of the station.

The trial Judge resolved the violent conflict of evidence in favor of the plaintiff. It follows that, unless we find some manifest error, the judgment should be affirmed.

We think there can be no question but that the parties entered into some sort of a verbal agreement under which plaintiff proceeded to spend the sum claimed in putting defendant’s property in shape preparatory to the construction of the improvements thereon. It does not appear that plaintiff was engaged in the business of operating filling stations, and, insofar as the record is concerned, his sole business consisted in selling, at wholesale, gasoline, oil and related products.

Some months after plaintiff had made the expenditures above noted he was presented with a lease agreement by the defendant which, according to his testimony, was entirely unacceptable. Nevertheless, it appears that plaintiff kept the agreement for a considerable period of time during which, again according to his testimony, he attempted in vain to interest some other party in concluding such an agreement with the defendant. After the lapse of an extended period of time, failing to receive any satisfaction from the defendant in response to his demands for reimbursement of his expenditures, plaintiff instituted this suit.

Because of the welter of conflicting testimony and contradictory positions reflected by the record in this case even more than the usual weight must be accorded to the finding of the trial Judge who was able to observe the witnesses and evaluate their testimony at first 'hand. Accordingly, we would not be justified in concluding that the learned Judge was guilty of manifest error in his findings of fact.

It is contended on behalf of defendant that plaintiff has failed to establish any ground upon which to base his right to recovery since he has not established on the one hand a breach of contract, nor, on the other, any unjust enrichment at his expense on the part of defendant.

While it is true that no meeting of the minds of the parties as to the terms and conditions of their agreement has been satisfactorily established, we think the evidence preponderates in favor of a finding that defendant received the use and benefit •of the expenditures made by plaintiff, and, accordingly, under the great weight of authority, plaintiff is entitled to -be compensated for the reasonable worth thereof. This reasonable worth or value certainly would be equivalent to the expenditure actually made.

It is shown that a building has been erected on defendant’s property from which he receives rental and that the driveways which were installed at plaintiff’s expenses are used in connection with this building. The only reasonable conclusion to be reached is that the improvements resulting from plaintiff’s expenditures have been of benefit and value to the defendant. Certainly therefore, plaintiff is entitled to recover.

As to plaintiff’s claim to an increase in the judgment for attorney’s fees, we know of no authority, nor have we been cited to any, which would justify the allowance of such an item, and, accordingly, the prayer for an increase in the judgment on this ground must be refused.

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


text:
    BURTRUM BROS. MOTOR CO. v. DRYDEN.
    No. 3112.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Rehearing Denied June 30, 1949.

      Robt. D. Lottinger, Houma, Elton A. Darsey, Houma, for appellant.
    A. Deutsche O’Neal, Houma, Leonard Greenburg, Houma, for appellee.
   DORE, Judge.

In this case, we granted a rehearing on account of the strenuous argument by the ingenuous counsel for plaintiffs-appellees contending that we committed serious errors in our opinion in this case, 38 So.2d 88. Although we failed to state, in granting the rehearing, the ground upon which the application was granted, yet we did, on rehearing, fully inform the litigants that we were principally interested in the question of whether parol evidence could be introduced to show that the mortgage was given to secure :the balance of the purchase price of the automobile in question.

Reiterating that it is a well known rule of pleading that a document which is annexed to and forms a part of the petition controls all the allegations which bear reference to it, we pass to the question of whether parol evidence is admissible to show that the amount stated as due was a part of the purchase price. In other words, the parol evidence sought to be admitted would tend to show that it was a sale and a chattel mortgage, the consideration for the chattel mortgage being the residue of the purchase price.

In the case of Amite Auto Co. v. Appel, 16 La.App. 307, 134 So. 332, plaintiff seized two trucks belonging to defendant Appel. Passman intervened and claimed a vendor’s lien on the trucks. It appears from the decision that Passman had sold the two trucks to Appel. In the act of sale, the purchase price was stated as $1,943.66, of which amount $728.28 was declared as having been paid in cash and the, remainder of the purchase price was divided in six equal installments due in six consecutive months, all represented by a single note, secured by vendor’s lien and chattel mortgage on the property sold. The intervenor, the vendor of the trucks, attempted to show by parol that the cash part of the consideration expressed in the act of sale was not the actual amount which had been paid,, and that the defendant was still indebted unto him in the amount claimed in his petition. The trial judge sustained objection to such testimony, excluded all evidence on the question of consideration and restricted the parties to the declaration in the written act of sale. Reviewing the trial judge’s-ruling, we stated, “We believe such ruling was undoubtedly correct under the very plain provisions of Article 2276 of the Revised Civil Code which forbids the admission of parol evidence against or beyond what is contained in written acts, or on what may have been said before or at the time of making them or since. * * * Parties are bound by their written acts which are placed of record when the rights of third parties are concerned, * * (Italics ours.)

We affirmed our decision of the Appel case in the case of Veillon Motor Co., Inc. v. Veillon, La.App., 161 So. 199.

We find the Appel case to be opposite to the case at bar. In -the case at bar, the plaintiff is attempting to show by parol evidence that the debt mentioned in the chattel mortgage act is the unpaid part of the consideration of the purchase price of the automobile securing the debt.' Our ruling sustaining the objection to the parol evidence is, in our opinion, eminently correct.

In its application for and in its-brief on rehearing, the plaintiffs complain of statements made in our opinion, contending that we were in error in such statements, viz: (1) “Counsel for plaintiffs-then moved to have the motion to dissolve treated as an answer. Upon this having been ordered defendant filed an answer,, etc.”; (2) “Under the views we take of the case it follows that the sequestration was-illegally issued and it should have been-dissolved on counsel’s motion which was-ordered to be taken as an answer to the merits.” After a review of the record, we freely acknowledge that the statements are erroneous. The record discloses, that defendant’s motion to dissolve and the motion of plaintiffs to have the motion of defendant treated as an answer were referred to the merits. The record discloses that the motion to dissolve the writ involved the merits of the case, and was tried and disposed of with the merits and on the merits. The erroneous statement supra, caused us to further err in granting unto defendant attorney’s fees. The Supreme Court, in the case of Smith v. Keith Motor Co., 163 La. 395, 111 So. 798, decided that where motion to dissolve sequestration of automobile was tried and disposed of with the merits of the case, defendant was not entitled to allowance of attorney’s fees for dissolving the writ. We find no distinction between that case and the case under consideration.

We have concluded to amend our judgment by disallowing the defendant the award of attorney’s fees.

Our decree in this case is now amended by disallowing the award of attorney’s fees and as thus amended, our decree is reinstated and made final. The defendant is granted the right to apply for a rehearing.


author: LE BLANC, Judge.

text:
    EDMONSON v. WEST et al.
    No. 3113.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    A. Deutsche O’Neal, Houma, for appellant. '
    Kelleher, Hurley & Kohlmeyer and Henry L. Newell, New Orleans, for appel-lee.
   LE BLANC, Judge.

This is a suit for damages growing out of an automobile accident which occurred on October 2, 1946, on a highway leading south from the City of Houma in Terre-bonne Parish. The plaintiff was driving his Plymouth Sedan automobile in the direction of Houma, following a school bus which was transporting school children home from school. The bus came to a stop in order to discharge some of the children and plaintiff, in accordance with the highway regulations, brought his car to a complete stop, the front being almost abreast of the center of the bus. Whilst he was thus parked, the rear end of his car was run into by a truck owned by Dowell, Inc., which was being driven at the time by one R. L. West, acting within the course and scope of his employment by that company. The impact was rather severe and plaintiff’s automobile was considerably damaged. He received a strong jolt but suffered injury only to his neck. He was not struck by, nor did he strike any part of the automobile and as we understand, it was more of a jolt to Jiis neck than anything else that caused the injury he complains of.

He brought this suit against the owner of the truck and its public liability insurance carrier, The Indemnity Insurance Company of North America, of Philadelphia, Pennsylvania, and the driver, R. L-West, predicating his demand for damages on the negligence of the driver in certain particulars specified in his petition. The demand was in the sum of $8,345, itemized as follows: $300 for damage to his automobile, $45 for doctors’ bills, $3,500 for physical pain and suffering to the date of filing his suit, $2,000 for future pain and suffering and $2,500 for mental pain and anguish.

The defendant West was never cited. The defendants Dowell, Inc. and The Indemnity Insurance Company of North America filed a joint answer in which they denied liability, but offered no evidence whatever in support of the defense they had made. After trial of the case, judgment was rendered in favor of the plaintiff in the sum of $1,345. Of this amount $300 was for damage to his automobile, $45 for the doctors’ expenses claimed, and $1, 000 divided in two separate items, $500 for the pain and suffering he endured within approximately the first month of the accident and $500 for the discomfort and inconvenience which he has felt since that time. The appeal was taken by the plaintiff who is dissatisfied with the award made for the physical pain and suffering sustained and who also complains of the judge’s refusal to have allowed anything for mental pain and suffering.

Inasmuch as on the appeal, liability is conceded and the defendants have no complaint to make about the amount of the award, our task is limited to reviewing the trial judge’s findings with regard to the nature and extent of plaintiff’s injury and whether he should recover more than he was allowed.

There is no dispute regarding the award made for the damage done to the automobile and for the doctors’ bills.

In describing the sensation he felt immediately following the impact, plaintiff states that everything went black for a second or so but he recovered from that and then got out of his car and his first statement to West was to ask him what he tried to do, “break my neck?” The accident occurred at about 4:10 in the afternoon and the following day he went to work as usual. He is an engineer, employed by some oil tool and equipment company and is required to travel a good deal in his automobile. He has lost no time from his work but says that the injury to his neck is quite painful. The first day or so following the accident, when he tried to get up from his pillow in the morning he had no control over the neck muscles and had to use his hands to pull his head from off the pillow- That extreme soreness lasted about a week.

As we understand his testimony, he went to see Dr. Clark Collins the day after the accident but his testimony regarding that visit is very vague and indefinite and although he says it was an official request for medical advice, when he was asked whether he had ever been rendered a bill for services, he only imagines that he was. He states that Dr. Collins said that he had sustained a neck sprain but he does not say that he told him to do anything about it. He says the pain persisted so, that about a week after he went to consult Dr. Roy Martin. Dr. Martin gave him some diathermic treatments and recommended heat treatments and massages of some kind when he was at home. That apparently gave him some relief. He is corroborated by Dr. Martin about the treatments he gave him and recommended but it is important to note that the Doctor says that when he first examined him all he found was that he had bruised his neck and he could not find any clinical evidence of a fracture or any damage. As plaintiff continued to complain however, the doctor thought it would be safe to have some X-Rays made. This he did and on examining them he could not find anything out of line. He then recommended that plaintiff consult a specialist in New Orleans, which he did- On July 27, 1947, he was examined by Dr. Irving Cahen of that city.

On his examination, Dr. Cahen came to the conclusion that plaintiff has sustained a sprain of the neck vertebrae and mild fascitis, which he says is a reaction of the ligaments of the neck. The doctor testified that apparently the initial trauma had subsided with the treatment plaintiff had received and with his restricted activity for a period of several weeks. He observed the X-Ray findings which were negative. He says that chronic complaint of a mild nature may be associated with a cervical myofascitis which, apparently, has subsided. Prolonged complaints are not considered to be unusual in cases of this kind and the discomfort is treated by the use of diathermic massage and restricted cervical activity. In certain cases the doctor says the use of a cervical collar is recommended for the purpose of immobilization, but in this case there was nothing to indicate the necessity for such support. Plaintiff had told the doctor of a cracking sensation in his neck and he was satisfied that there was, but apparently did not seem to attach' any great importance to that and said that in his opinion it resulted from the association of muscles passing over normal bony prominences and is not considered to be a disability. This doctor seemed to be unable, or he would rather not express any definite idea as to how long the discomfort plaintiff complains of would persist. It might take a long time, he said, or a short time, depending upon the nature of the sprain and the possible response to treatment or with no treatment for it to wear off.

The defendants had the plaintiff examined by Dr. George C. Battalora, who, like Dr. Cahen, is a recognized orthopedic surgeon. Dr. Battalora examined him on May 24, 1948. He could find nothing objective and stated that all neck motion was normal. The doctor examined some X-Rays which he had had made by a radiologist but could find nothing wrong with the plaintiff at the time they were taken. In view of the fact that there was a possible nerve involvement, he referred him again to the radiologist for additional pictures. These last X-Rays were taken with the neck joint forward and also with the neck joint backwards. He states that in certain instances they notice a disturbance of the discs in the neck in this type of examination but in this case, there was none. When asked to state in lay language what plaintiff’s complaint was and what his diagnosis was, the doctor stated: “My impression of it was he was complaining mainly of some soreness and stiffness in his neck and the injury was a sprain of the cervical region of the body.” He could see no cause for alarm on the part of the plaintiff and did not think the injury was a serious one. This doctor testified that he could not feel that cracking sensation that has been mentioned before. He thought that plaintiff was honest and sincere in the statements he made but did not claim to be a psychiatrist and therefore the condition of neurosis which may have been present, could not be dispensed with.

In so far as we have to decide the condition resulting from plaintiff’s injury according to the medical testimony therefore, we would say that he suffered nothing much more than a sprain of the muscles of his neck with a possible nerve involvement. That may cause him some discomfort and no doubt it does, if we accept his statements. Otherwise, there are absolutely no objective symptoms to indicate why he should be suffering and have the discomforts he complains of. He has not lost a day’s work as a result of his injury and whilst'he is to be commended for continuing on his job even though suffering some discomfort, that does not give him a claim for any large damages for physical and mental pain and suffering such as he now demands.

It is said on his behalf that he was an athlete while he was a student at Louisiana State University and that afterwards he indulged in sports requiring a lot of physical activity, such as hunting and fishing. He does not seem to have had to forgo those pleasures however and the only complaint in that regard is that he endures some discomfort which he did not before while participating in them. That slight indisposition neither, in our opinion, gives rise to recovery of large damages for physical and mental pain and suffering.

We believe that the trial judge has properly analyzed his case when he concluded that plaintiff has no reason to entertain any anxiety over his condition and therefore is not entitled to any damage for mental suffering. As he stated, with regard to the physical pain and suffering, it is extremely difficult to guage these and whilst we doubt that it was necessary for him to divide the amount he allowed as he did, it strikes us that the total of $1,000 which he awarded is fair and reasonable and we are not inclined to disturb it.

Substantial justice has been rendered between the parties by the judgment appealed from and it therefore stands affirmed.


author: REGAN, Judge.

text:
    McDANIELS v. DOLL et al.
    No. 19251.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Marion G. Seeber, Delvaille H. Theard, New Orleans, for appellants.
    Cabral & Courlin, Harry R. Cabral, New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Thelma McDaniels, filed suit against the defendants herein, Emile B. Doll, a real estate broker, and Mrs. Carmen Rodriguez, the owner of the property in question, for the return of a deposit of 10% or $680, retained by Emile B. Doll, in connection with an agreement to purchase from Mrs. Rodriguez, -the property bearing the municipal number 2027-29 N. Rampart Street, in the City of New Orleans, for the price of $6,800.

Defendants filed an “exception” to plaintiff’s petition, contending that the said petition embraced two inconsistent causes of action: (a) that the contract was valid but its conditions could not be met, and (b) that the contract was a nullity by virtue of a “potestative condition” and, therefore, plaintiff should be ordered to elect one of said causes of action. The learned judge, a quo, overruled the exception and defendants then answered reserving their exception and denying that plaintiff was entitled to a return of the deposit. They further answered and reconvened for the sum of $340, which represents the real estate broker’s commission of 5%, and for the sum of $680, which represents the deposit of 10% allegedly due to the owner of the property as earnest money.

The lower court rendered judgment in plaintiff’s favor and against the defendants, in solido, for the sum of $680, and dismissed the reconventional demand. From this judgment the defendants -have prosecuted this appeal.

Defendants have apparently abandoned their exception as it has not been urged on appeal either in brief or oral argument.

The record reflects that on December 6, 1947, the plaintiff, through Emile B. Doll, signed an offer to purchase the property bearing the municipal number 2027-29 N. Rampart Street, in the City of New Orleans, for the price of $6,800, payable $2,000 cash and the “balance homestead loan, to be arranged by purchaser or agent, any New Orleans homestead or private loan same plan; yearly interest 6% or less, maturity not exceeding 15 years * * * subject to sale of property 343 Heloise Ave.” The contract further provided “If this offer is accepted, I obligate myself to deposit with Emile B. Doll Agent, 10% of the purchase price in 5 days. Should I fail to comply with above offer, if accepted, I obligate myself to pay your commission of 5%. Should I comply with offer, vendor is to pay the commission of 5%.”

The offer was accepted on December 6, 1947, by the owner. The deposit of 10% or $680 was accepted and retained by Emile B. Doll, the real estate broker.

Plaintiff applied to the Third District Homestead Association for a loan of $4,800. In due course she was advised by the homestead that a loan could be granted for only $3,000, which, of course, was based on the Central Appraisal Bureau’s evaluation of the property for homestead loan purposes. Plaintiff then attempted to secure a private loan for $4,800 through the office of Mr. Maurice Goldstein and was equally unsuccessful. Goldstein would agree to lend plaintiff only the sum of $4,000, whereas, she required a loan of $4,800 to consummate the sale.

Plaintiff contends that she was unable to secure either a homestead or private loan as provided for in the agreement and she is, therefore, at liberty to recede from the agreement.

Defendants offered to prove over the objection of plaintiff’s counsel, which was sustained by the judge, a quo, that plaintiff and defendants had entered into an oral agreement, subsequent to the written agreement of December 6, 1947, to the effect that plaintiff would accept the offer of the Third District Homestead Association to lend her $3,000, and that the vendor, Mrs. Rodriguez, would carry a second mortgage on homestead terms for $1,800, thus with the cash payment of $2,000 by the plaintiff, the sum of $6,800 would be realized and the sale could be consummated.

Defendants contend that the plaintiff, a woman “who admits she has been married but who can give no definite information regarding the dissolution of her marriage, cannot insist on a judgment in her favor personally, for a money claim which, in the absence of all contrary evidence or necessary averments in her pleadings, belongs not to her individually, but to the matrimonial community between her husband and herself.”

The plaintiff’s testimony, reflected by the record, on this point is to the effect that her husband, Louis D. York, died on January 19, 1936. She is not certain as to the place of his death, since it appears that she had been separated from him for about twenty years, but believes that his mother told her that he died in Texas.

Subsequently, after the case had been submitted and taken under advisement, defendants filed a supplemental brief and attached thereto a certified copy of an act of sale before Edward B. Ellis, Notary Public for the Parish of Orleans, dated April 15, 1943, indicating that Albert B. McKay and his wife, Lillian Atwell, sold to John M. Grisaffi “of legal age and residing in New Orleans, who declares to me Notary he has been married but once and then to Thelma McDaniels with whom he is living”, a piece of property designated by the municipal number 343 Helois Street, Metairie, Louisiana, which act of sale was signed by John M. Grisaffi and Thelma Grisaffi and also a photostatic copy of an act of sale before W. J. Waguespack, Jr., Notary Public, dated December 29, 1947, which indicates that John M. Grisaffi “of the full age of majority and a resident of the Parish of Jefferson, State of Louisiana, who declared under oath that he has been married but once and then to Thelma McDaniels, with whom he is living and residing”, sold a piece of property designated as 343 Helois Street, Metairie, Louisiana, to the Home-seekers Building & Loan Association, a corporation of this City represented by John L. Oster, its President, said act being signed by John M. Grisaffi and Mrs. J. M. Grisaffi.

Plaintiff filed a supplemental brief which we quote in full and which admits the existence of the two acts hereinabove referred to, which defendants attached to their supplemental brief:

“Defendants and Appellants have filed a supplemental brief alleging that Thelma McDaniels is the wife of John M. Grisaffi.
“On April 15, 1943, Thelma McDaniels acquired a piece of property under the name of Mrs. John M. Grisaffi with John M. Grisaffi, which was sold on December 29, 1947.
“At the time the property was sold, and at .the time of its acquisition, she and John M. Grisaffi intended to marry. The marriage was never consummated. Thelma McDaniels and John M. Grisaffi were never married, therefore it is needless to answer the rest of the supplemental brief.”

It will be recalled that the original offer to purchase the property in question in the present suit — 2027-29 N. Rampart Street, dated December 6, 1947, was made “subject to sale of property 343 Helois Ave.”, which is the identical property involved in both of the acts of sale which were attached to the defendants’ supplemental brief.

In the instant case the face of the pleadings clearly showed a cause and a right of action in the plaintiff. Presented with these affirmative allegations defendants joined issue on the merits without questioning the right of plaintiff to stand in judgment. However, from testimony adduced at the trial in the lower court, together with the acts of sale attached to defendants’ supplemental brief, it may be that there is actually a total absence of right on the part of the plaintiff to institute this suit or to stand in judgment therefor. If the plaintiff were to prove that the defendants are justly indebted for the amount sued for and they should be ordered to return the amount of the deposit, it may be that she would not be entitled to judgment in her favor if she is a married woman.

The record clearly shows that the demand is one for the return of a deposit which, because of the suspicious circumstances encompassing the plaintiff’s marital status, may be a community asset, the recovery of which is vested by law exclusively in the husband as head and master of the community.

It is axiomatic in our law, that in all suits for the restitution of a community asset or debts due to the community, — an action, for the recovery thereof, must be prosecuted by the husband as head and master of the community, and the wife cannot stand in judgment therefor. The vindication of community rights is vested alone in the husband. This doctrine is sustained not only by our codal law, the economic and social philosophy of which is sound, but by an unbroken and uniform line of decisions and, therefore, none need be cited in support thereof.

An appellate court is vested with discretion to remand a case whenever the ends of justice will best be served, but we have been somewhat concerned over the question of whether we should remand the case in toto or whether we should remand it only for the purpose of adducing additional evidence as to the plaintiff’s marital status. We are fully cognizant of the general rule that an appellate court should consider all issues presented by the record and supported by the evidence, however, the case presently under consideration is, in our opinion, an exception to the general rule, in that the very fundamental right of the plaintiff to initiate this cause of action and to subsequently stand in judgment is at issue and, therefore, we have come to the conclusion that the ends of justice in this case would best be served by remanding the case in toto, since we are of the opinion that the whole complexion of the case may be modified or changed when sufficient evidence is adduced to clarify the suspicious circumstances encompassing plaintiff’s marital status.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed and that there be further judgment remanding the case to the Civil District Court for the Parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed. All costs to await the final determination of this suit.

Reversed and remanded.


author: PER CURIAM.

text:
    BOLOGNA v. NEW YORK LIFE INS. CO.
    No. 18531.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Writ of Certiorari Denied June 30, 1949.
    Cicero C. Sessions, New Orleans, for plaintiff and appellant.
    Phelps, Dunbar, Marks & Claverie and Ashton Phelps, New Orleans, for defendant and appellee.
   PER CURIAM.

Counsel for appellant in application for rehearing vehemently criticizes our opinion, and in two instances makes statements which we think advisable to comment upon.

He says, and he repeats the statement at least three times, that we found that the vessel on which the insured was a seaman was engaged in battle. We made no such statement. What we held was that the Country was at war and that, because of that war, the precautions which were the cause of the disaster were resorted to in an effort to avoid a battle.

Counsel also charges that we refused to apply to the exclusion clause the rule that such a clause must be construed strictly against the insurer and that where there is ambiguity doubt must be resolved in favor of the insured. We recognize now, and we recognized in our opinion, that where a general clause is employed in a policy written by the insurer it should be construed against the insurer wherever there is reasonable ground for doubt. That rule is so well established that we felt that there was no necessity to discuss it at length. All that we intended to say on the subject is that when an attempt is made to include all situations- which will make such a clause operative, there is grave danger that by the inclusion of some and the unintentional omission of others there will be brought into play the rule “inclusio unius est exclusio alterius.”

Conceding as we do that the clause under consideration here should be interpreted against the insurer if there were any doubt as to its meaning, we repeat that we have no doubt on the subject, being firmly of the opinion that the accident resulted at least indirectly, if not directly, from an incident of war.

A rehearing is refused.

Rehearing refused.

'McBRIDE, J., dissents from refusal to grant rehearing.


author: McBRIDE, Judge.

text:
    MARQUIS v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 19244.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Roland R. Selenberg, New Orleans, for plaintiff and appellee.
    Frank T. Doyle and Nicholas Masters, New Orleans, for defendant and appellant
   McBRIDE, Judge.

This appeal involves a collision between two automobiles. The locus of the accident was Canal and St. Charles Streets. Canal Street, which runs from the river toward the lake, is the main thoroughfare of New Orleans, and in its center is an extremely wide paved neutral ground, upon which street cars are operated. St. Charles Street runs at a right angle from Canal Street toward uptown. Royal Street is opposite St. Charles, and runs from Canal toward downtown. Traffic travels only in an uptown direction on both Royal and St. Charles Streets.

Vehicular and pedestrian traffic traversing this very busy intersection is controlled by a semaphore signal light, which was being automatically operated at the time of the accident.

Plaintiff, who had been driving on Canal Street toward the river, stopped his automobile at about St. Charles Street pursuant to a red light signal, but for some reason, instead of stopping exactly at the intersection, the front end of plaintiff’s automobile came to rest on the rail track, which curves from the extreme uptown side of the neutral ground and which accommodates street cars making a right turn from Canal Street into St. Charles. Street cars making this right turn do so on a red light.

William A. Walker, Jr., a police officer on duty at the intersection, observed that the pathway of a street car, which intended to turn right into St. Charles Street, was impeded by the location of plaintiff’s automobile. Notwithstanding that the green light was then showing for traffic crossing the neutral ground, the officer blew his whistle and signaled manually for that traffic to come to a stop, and then beckoned to plaintiff to drive his automobile from the car track and to continue on across St. Charles Street. Pursuant to the officer’s manual stop signal, one or more automobiles stopped on the neutral ground, and plaintiff started his car forward; it had gone just a short distance when it collided with an automobile owned by William G. Ciasen and driven by his wife, which had travelled from Royal Street across the neutral ground. The left front part of plaintiff’s automobile contacted the right front part of the Ciasen car.

Plaintiff, Marquis, brings this suit against the insurer of the Ciasen automobile for $369.28, representing damages sustained by his automobile and the deprivation of its use whilst repairs were being made. The driver of the Ciasen car is charged with negligence in failing to obey the police officer’s stop signal, and in failing to respect plaintiff’s right to proceed safely across St. Charles Street.

Defendant denied negligence on the part of Mrs. Ciasen, and alternatively charged that the accident was occasioned by contributory negligence on the part of plaintiff. Plaintiff, after a trial of the merits of the case, recovered judgment for $161.40, representing the cost of repairs to his automobile. Defendant has taken this appeal.

The accident happened on the night of November 27, 1947, at about seven o’clock. Officer Walker, who was standing alongside the automatic signal control box, noticing the position of plaintiff’s car on the track blocking the path of the trolley car, stepped into the middle of the intersection and gave the aforementioned manual signals. According to his testimony, three or four automobiles traversing the neutral ground stopped, and he motioned to plaintiff to drive forward, Walker then turned his attention to the river-side pedestrian lane on Canal Street to see that no pedestrians were in the path of the Marquis car, and consequently he did not witness the collision.

The import of plaintiff’s testimony is that the officer was standing in the middle of the street; that one car .came to a stop pursuant to his signals; and that plaintiff, believing all other traffic crossing the intersection would also stop, proceeded forward with his automobile, which was then struck by the Ciasen car. Mrs. Marquis, who was riding alongside her husband, did not notice exactly where Walker was standing when he beckoned to her husband.

The C'asen car left Royal Street on the green light, its driver intending to cross the intersection and proceed towards uptown on St. Charles. Mrs. Ciasen and her passenger, a Miss Tusson, testified that at no time while negotiating the intersection did they see the officer, nor did they notice any cars stopped on the neutral ground.

Counsel for appellant argue that Walker was in such a position that he could not have been seen by Mrs. Ciasen, and that she, therefore, was not negligent in failing to stop. Counsel cite several cases, in effect holding that under the traffic light system a motorist who is proceeding upon the proper signal should not be held to the same high degree of care and vigilance as if no such system prevailed, and contend that because of Mrs. Clasen’s inability to observe the manual signals of the officer she was within her rights in deeming her passageway safe and proceeding across the intersection in accordance with the semaphore light signal which was then in her favor.

However, the conflict in the testimony as to the position of Walker was resolved by the judge a quo, who, in written reasons for judgment, found that Walker was standing at a place where Mrs. Ciasen could have seen him had she looked, as other drivers had seen him and had stopped their cars on the neutral ground in obedience to his signals. We perceive no error in this finding of fact by our brother below, and there is nothing in the record that tends to lead us into disagreement with him. It cannot be doubted that any person failing or refusing to comply with any lawful order or direction given by a police officer is guilty of negligence’, notwithstanding that such order or direction may be at variance with a signal shown by a semaphore light. Sight cannot be lost of the fact that traffic at times becomes congested and emergencies are prone to manifest themselves, and that it is the office of the police to take charge of the situation, notwithstanding existing light signals, and to direct traffic in the best interests of public safety.

We now turn to the plea of contributory negligence. Counsel contend that the record abounds with evidence demonstrating plaintiff’s negligence, and particularly direct our attention to the statement of plaintiff that he did not look across the Canal Street neutral ground before starting, and also to Mrs. Marquis’ statement that she saw the Ciasen automobile when it first entered the downtown traffic lane of Canal Street and warned her husband to come to a stop.

We fail to see, after considering the peculiar circumstances prevailing in this case, why plaintiff should be branded with contributory negligence. An emergency existed — plaintiff’s automobile blocked the street car track and necessitated the police officer taking command of the situation at the intersection. Plaintiff, who was specifically ordered to proceed ahead, observed that one automobile had come to a stop on the neutral ground in compliance with Walker’s signals. He had the right to assume that other traffic would do likewise, and we do not believe that negligence should attach to him because of his failure to anticipate that Mrs. Ciasen would disobey the officer’s signals.

Plaintiff recovered for the amount of damages sustained by his automobile, which is not disputed, and for the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: JANVIER, Judge..

text:
    COOK v. M. J. WALSH BOILER SCALING CO., Inc. et al.
    No. 18792.
    Court of Appeal of Louisiana. Orleans.
    May 23, 1949.
    Rehearing Denied June 13, 1949.
    Joseph M. Bowab, New Orleans, for plaintiff-appellee.
    Beard & Blue, New Orleans, for defendants-appella'nts.
   JANVIER, Judge..

. At about 7:15 o’clock on the morning of February 8, 1946, the plaintiff, Clifford C. Cook, was employed by the M. J. Walsh Boiler Scaling Company, Inc. At that time Copk was totally blind in his left eye. The business in which the said corporation was engaged and the work which Cook was employed to perform were admittedly within the contemplation of the Louisiana Workmen’s Compensation Law, — Act No. 20 of 1914, as amended. At about 8:00 o’clock Cook went to work loading ship stores on a wharf alongside the Mississippi River. In his petition he alleges that a little later on that morning his right eye was struck by the corner of a piece of beaver board and. that as a result of that accident, he lost the sight of.his right eye and is, therefore, now totally and permanently blind. He claims $20.00 per week for 400 weeks and $500.00 for medical expenses, and he prays for judgment against the said employer, M. J. Walsh Boiler Scaling Company, Inc., and Central Surety and Insurance Corporation of Kansas City, Mo., alleging that the said insurance company is the insurer of the said employer.

The defendants, admitting that Cook is now totally and permanently blind, denied that any accident had occurred, contending that the loss of plaintiff’s right eye resulted from the same condition which had previously caused the loss of the left eye.

There was judgment in the district court in favor of plaintiff for $20.00 per week for 400 weeks and awarding Dr. William McDonald Boles and Dr. Wallace Beil. $50.00 each as expert witness fees. Defendants have appealed.

It must be conceded that the permanent loss of the use of both eyes constitutes total permanent disability. The statute as originally enacted so declared. See Act No. 20 of 1914, subpar. (c), par. 1, sec. S, which reads: “For the loss of * * * both eyes, * * * shall constitute total and permanent disability * *

While that provision, which definitely declares that the loss of both eyes shall constitute total and permanent disability, has been omitted from later amendments, it is now provided that the loss' of both eyes' shall entitle the employee to compensation for 400 weeks, which is tantamount to saying that the loss of both eyes shall be considered as producing permanent and total disability. See Dart’s Stats., sec. 4398, Act No. 242 of 1928, pp. 357, 358, § 8, subd. 1(d) 10; also, Brooks v. Peerless Oil Co., Inc., 146 La. 383, 83 So. 663.

.Nor is it denied that liability of the defendants, if there is liability, is in any way lessened by the fact that, prior to his employment by the Boiler 'Scaling Company, Cook had already lost the use of his left eye. In fact it is well settled in practically all jurisdictions that where there is a condition of prior partial disability and an accident .causes additional .disability which, together with the pre-existing condition, produces total. disability, the employee may recover on the basis of total permanent disability. The basic reasoning on which the decisions to which we have just referred is founded, is excellently set forth in Branconnier’s Case, 223 Mass. 273, 111 N.E. 792, as follows:

“The employe, a man who in 1910 had lost one eye, met with an injury in 1915 arising out of and in the course of his employment for a subscriber under the Workmen’s. Compensation Act (St. 1911, c. 751), whereby he lost the sight of his remaining eye. The question presented is whether there was error.' in refusing to rule as matter of law that the total incapacity of the employe could not be attributed to the injury of 1915, because made up in part of the result of a previous accident.
“The denial of this request was right. The employe, when he entered the service of the subscriber, had that degree of capacity which enabled him to do the work for which he was hired. That’was his capacity. It was an impaired capacity as compared with the normal capacity of a healthy man irt the possession of all his faculties. But nevertheless, it-was the employe’s capacity. It enabled him to earn, the wages which he received. He became an ‘employe’ under the act and thereby entitled to all the benefits conferred upon those coming within that description. * * *”

See, also, Schneider’s Workmen’s Compensation Law, Second Edition, Vol. I, page 517, et seq; and Horovitz on Workmen’s Compensation, page 282 in which it is said: “Loss of a second eye, where the first was practically blind before starting the job, is clearly one of permanent and total disability * * Notte v. Rutland R. Co., 112 Vt. 498, 28 A.2d 378.

Thus the only questions now before us are: (1) whether there-was such an accident as is relied upon by plaintiff, and (2) whether, if there was such an accident, it caused the loss of plaintiff’s right eye. On those questions, which involve the determination of issues of fact, our Brother of the District Court was very strongly of the opinion that there had been an accident and that the loss of the right eye had resulted from it.

The most heated of these two controversies arises over the question of whether there was in fact an accident. Plaintiff, of course, maintains that there was, while defendants assert that the loss of plaintiff’s right eye resulted from natural causes, to-wit: the diseased or defective condition of the eye which, by mere coincidence, came to a focus on that day; that not only there was no trauma, but if there was any trauma, it played no part in producing the result.

Counsel for defendants point out that the record contains no evidence whatever which corroborates plaintiff’s story that he was struck in the eye or on the head by the corner of a piece of beaver board, and m addition to calling our attention to. the lack of corroboration of plaintiff’s testimony, ■they point out what they declare are grave contradictions and inconsistencies in plaintiff’s own recital of the occurrences. They say, for instance/that in his petition plaintiff alleged that he was. struck in the eye— and we call particular attention to the preposition “in”. And they also say that' he alleged that at that moment he exclaimed “in the hearing of his fellow employees, ‘That doggoned thing hit me in the eye’.”. Counsel say that -when it became apparent that the physical condition of the right eye indicated that the blow, if there was one, could not have been to the- eye. itself, he conveniently changed his story and said that he had been struck on the head near the eye.

Our attention is also dire'cted to the fact that although plaintiff alleged in his petition that "he had made the above quoted remark in the hearing of his fellow employees, not one of those employees was produced to corroborate the fact either that there had been an accident, or that plaintiff had made any such remark. When it appeared that plaintiff realized that his statement in that regard would not be corroborated and he was asked to name one employee who had been present, he said that the employee who had been present was known as Snow Powell. Later, however, when he realized that Powell would not testify that he had heard such a-remark, he said that just at that moment Powell had gone to a spot some little distance away.

Counsel for defendants lay great stres.s on an incident which may' have some bearing on determining whether or not plaintiff was telling the truth throughout his testimony. He seemed determined to prove that prior to the alleged accident he had been able to see well out of his right eye, and in order to prove this he testified that on that morning, before the accident, he had read in the Times Picayune,an article by George Matthew Adams, and he proceeded to recite in detail what Mr. Adams had said. There is very grave doubt as to whether Mr. Adams had ever written any such article and surely nothing along the lines testified to by plaintiff appeared in Mr. Adam!s article on that morning.

In addition to these rather startling inconsistencies and contradictions, -it seems to be quite evident that there was no external evidence of any blow either in the eye or on the head, or anywhere else. Dr. Arthur . Lee Whitmire, to whom plaintiff reported the next day, says that “there was no indication of trauma,” .and no other doctor, nor anyone else said that there was evidence, of any external indication that he had sustained any such- blow. It must be remembered, however, that the doctors other than-Dr: Whitmire- did not see Cook until long after the day on which he alleges he sustained the injury, and'if is probable that even if he had - sustained any injury producing -external evidence, that evidence would have disappeared béfore ’any of'the other doctors saw him.

■ - An attempt is made to make little of the ■testimony of Dr. Whitmire, who was a regular company physician of the employer, because of the fact that he had no independent -recollection of having examined Cook. He said that he could testify only from his notes, but, with the aid of the notes which he made at the time, he stated that he saw no evidence of trauma and he m-ade a notation reading “non-traumatic.” When we'notice that he made this notation in spite of the fact that Cook gave him a history of haying been struck in the right eye by a piece of lumber, we become convinced that there was no such evidence of any blow.

In spite of the attack on the testimony of Dr. Whitmire, which is based on the charge that he was required to see a great many other patients on that morning and that, therefore, he gave - Cook only a cursory examination, we feel convinced that he did make a sufficient examination to determine that he could see no external proof that Cook had been struck, and the fact that he did not treat him is explained by his statement that Cook was totally blind and .that he knew of no treatment which would have had any effect.

To return -for a moment" to the attack on the story told by plaintiff'; let us say that a great part o-f that attack is founded on the testimony of two other employees of the defendant employer. These two were Oliver Walker, usually referred to as “Cur-ley”, and James Powell who, throughout the record, is referred to as “Snow”. The testimony of these two witnesses tends to contradict Cook and to throw suspicion on his veracity. If they are to be believed, then it is highly improbable that Cook sustained any injury at all. However, we find that the district judge was unable to believe either of these two witnesses, and in his reasons for judgment, said that he had "followed their testimony very closely.” He made the following statement concerning these witnesses: “ * * * I followed their testimony very closely. Insofar as ‘Snow’ is concerned, I could 'not resist dictating into the record at the time my observations with reference to his nervousness on the stand. I even interrogated both ‘Snow1 and ‘Curley’, particularly ‘Curley’, and their testimony is so unsatisfactory— as a matter of fact, it is incredible in my opinion — that I just can not believe anything that they say. On the other hand, the plaintiff has impressed me that he is telling the truth; that an accident did take place.”

Our own reading of the record would have left us much in doubt as to whether Cook gave the true version and truthfully recited the occurrence of the accident, but in view of the conclusions of our Brother below that he did not believe the two witnesses referred to and that the testimony of Cook impressed him very favorably, we find ourselves unable to reach the conclusion that the finding of the district judge on this question of fact should be reversed.

Counsel for defendants call attention to several cases, in each of which it was held that in compensation cases, as well as in all others, the plaintiff must successfully bear the burden of proof and must make his case certain by a reasonable preponderance of the evidence. They cite Tickles v. E. I. Dupont De Nemours & Company, La.App., 191 So. 764, 765, in which the Court said: “Plaintiff’s testimony that he did have such an accident is not supported by any other witness and he has contradicted himself in so many instances that it would be difficult indeed for the court to- accept his lone statement on that, the all important point in the case. Not only however does his testimony stand alone but it is contradicted by the two witnesses called by him to corroborate it.”

They also call attention to Tullis v. United Carbon Co., La.App., 142 So. 307, 308, in which the Court said: “Courts cannot decide cases on possibilities, even though it be a compensation case in which we are always most liberal in construing the law, as well as the facts. * * * It is therefore incumbent upon the plaintiff in this case to prqve by a preponderance of testimony the possibilities above alleged * sfc * it

Counsel for defendants also point out, too, that in Womack v. Highway Const. Co., Inc., 18 La.App. 111, 137 So. 210, 212, the Court said: “The law is clear that it is incumbent upon the plaintiff, in a suit under the Workmen’s Compensation Act (Act No. 20 of 1914 as amended), to prove by a ‘preponderance of the evidence’ — that is, with legal certainty — the fact that an accidental injury was sustained * *

There is no doubt that the burden rests upon the plaintiff in a compensation case to make his case certain by a reasonable preponderance of the evidence, and that this burden, requires plaintiff to do more than to show the mere probability that •there was such an accident. But if plaintiff is to be believed, then he has done this and has shown that there was an accident, however slight it may have been. In many cases it may be impossible for a plaintiff to make his case certain beyond the shadow of any possible doubt and all that he is required to do is to convince the Court by a reasonable preponderance of the evidence that in all probability the occurrence took place as recited by him.

In addition, however, to showing that there was an accident, plaintiff in such a case as this must go further and show by the same reasonable preponderance that in all probability the ensuing disability resulted from the injury.

In view of the finding below and of the evidence to which we have referred, we find that there was an accident, and we thus pass on to that second question; whether the accident caused the loss of the right eye.

It is necessary that we have an understanding of exactly what was the condition of the right eye both before and after the alleged occurrence, because all of the doctors agree that considering the condition of the eye before the occurrence, even without an accident of any kind, it -is quite possible that the use of the eye could have been entirely lost as a result of the degenerative process which was then in progress. All of the doctors agree that Cook, many years before, 'had lost the use of the left eye and that the right eye was, to a tremendous extent, already affected with myopia, which doctors say is nearsightedness.

There is no doubt that the loss of the right eye resulted from what is known as retinal detachment. The evidence shows that where a patient suffers with myopia, the eyeball is longer than normal. We take that to mean from front to rear. The eyeball seems to be surrounded by two coats, the retina being the inner coat. As a result of myopia, the eye instinctively attempts to focus, with the result that the front part of the ball extends forward and thus the outer coat, being attached to the inner, pulls the inner part of the ball forward to such an extent that in many cases the inner coat separates itself or becomes detached from the outer coat. When this detachment becomes complete, the patient loses completely the sight of that eye. The doctors agree that in many instances where the myopia is as pronounced as it was in Cook’s case, the detachment of the retina may result without any trauma at all, but they all agree that the detachment is more apt to occur when this stretching process is in progress and some blow or shock is sustained by the eye. All of the doctors agree that this final detachment may result from a blow and the doctors produced by the plaintiff, Dr. Wallace C. Beil and Dr. W. M. Boles, both seem to think that a very slight blow, even a rubbing of the eye may some times cause the final separation.

As we have already said, defendants are certain that the final separation resulted naturally and by mere coincidence at that time, whereas plaintiff is certain that the final separation resulted from the accident about which he testified. If it is true that a blow might bring about the final result, and since we have already found, following the conclusions reached by the district judge, that there was a blow of some kind, we are faced with the necessity of determining whether the evidence that the blow produced the ensuing blindness is sufficiently conclusive to justify a judgment in plaintiff’s favor.

Whether in the case at bar the jolt or blow to the head or to the eye did in fact cause the final detachment is a question which no one can answer with absolute certainty. We can only take into consideration all of the surrounding circumstances and the ensuing blindness in an effort to determine whether the probability that the accident did cause the final detachment sufficiently outweighs the possibility that it did not.

As the Supreme Court said in Robichaux v. Realty Operators, 195 La. 70, 196 So. 23, 26, it is not necessary that an occurrence produce immediate result in order to be termed an accident. It was also held in fhat case that an occurrence of seemingly very slight importance might produce an unfortunate result and that if that occurrence was something which occurred unexpectedly and not in the usual course of events, it might be termed an accident. On these points wé think the language used by the Supreme Court is most convincing and we therefore quote from that opinion at length. “There is, of course, some doubt that an accident, such as the plaintiff described in his testimony, actually happened; just as there is, essentially, some such doubt in all cases where the injury complained of might have resulted from some other cause, and where the alleged accident did not at first seem to be a serious accident, and particularly where the plaintiff is the only person who could have witnessed the accident. The testimony of the plaintiff in this case seems plausible and is corroborated in some measure by the disastrous consequence and the events which followed so quickly after the alleged accident. It is not necessary, that an accident should seem immediately to be something serious in order to come within the definition in Section 38 of Act No. 20 of 1914, as amended by Act No. 38 of 1918. The word '‘accident’ is there defined as an unexpected or unforeseen event, happening suddenly pr violently, with or without human fault, and producing at the time objective symptoms of an injury. That is what happened to the plaintiff in this case, unless he testified falsely. Our conclusion is that his testimony and the corroborating circumstances furnished sufficient proof that the injury which resulted in the loss of his finger was caused, or superinduced,, by an accident, in the meaning of the statute.”

Let us say in conclusion thát we have no doubt at all that if all of the doctors had thought that there had been an accident such as Cook describes, they would have felt that there was grave probability that the loss of the eye had resulted from that accident. Some of them first reached the conclusion that there had been no accident and then, on that premise, based their opinion that the loss of the eye had not resulted from accident but from natural causes. We cannot but conclude from a reading of the testimony of all of them that had they been certain that an accident had occurred, they would have felt reasonably certain that the loss of the eye was the result thereof. At any rate, in view of what the Supreme Court has said in the Robichaux case,-supra, and in view of all the circumstances here shown, particularly the loss of the use of the eye so shortly after the alleged occurrence, we conclude that the one was the cause, the other the result.

It is conceded that the rate of pay at which plaintiff was employed would entitle him-to the maximum payments, to-wit $20.-00 per week.

We find no serious controversy over the allowance of expert’s fees to the two doctors. Consequently, it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at'the cost of appellants.

Affirmed.


text:
    STASSI v. LA HITTE.
    No. 19138.
    Court of Appeal of Louisiana. Orleans.
    May 23, 1949.
    Rehearing Denied June 13, 1949.
    Writ of Certiorari Denied Aug. 1, 1949.
    Stanley A. Baron and Fred A. Middleton, New Orleans, for plaintiff-appellant.
    Waverly A. Henning, Gretna, for Defendant-appellee.
   McBRIDE, Judge.

Plaintiff-appellant, Stassi, seeks by rule to evict LaHitte, defendant, his tenant, from the leased premises, 222 Rose Avenue, Oaklawn Subdivision, Jefferson Parish, 'for the alleged nonpayment of rent.

The suit is resisted upon the ground that defendant is entitled to a refund on several prior months’ rent, which aggregates more than the rent which plaintiff claims is unpaid; that .such refund is due defendant, because plaintiff refused to repair certain defects in the leased premises, and that he also made additions to the premises, all of which lessened the services and accommodations - which were due defendant under the lease. He reconvened, claiming $67.50.

- After a trial on -the .merits, the court below dismissed both the.main demand and the- reconventional demand. Plaintiff alone has appealed.

• Defendant occupies the premises under a month to month verbal lease at a rental o.f $40 payable in advance.-. On-May 7, 1948, Stassi received defendant’s check for $40, bearing the same date, in payment of the rent ending June 6. Four days later, defendant stopped payment on the check.

On June 8, 1948, plaintiff caused, a notice to be served upon defendant ordering him to vacate the premises within five days for nonpayment of rent. LaHitte testified that on the day preceding the service, of this notice, he tendered to plaintiff a check for $80, for the months ending June 6 and July 6, 1948, which plaintiff declined to accept. On the other hand, Stassi claims that the check for $80 was not tendered until June 10, or two days after the notice had been served.

When asked why he had stopped payment on the first check, LaHitte answered, “Because I got tired of taking baths in rusty water that looked dirtier than the Mississippi River.”

The testimony regarding the water'heater is conflicting. LaHitte insists that he complained “100 times” about the heater and the drain pipe of the bathtub, which he contends is leaky and creates an insanitary condition. Stassi admits .receiving a complaint about the heater in 1947, but claims that he had a new one installed, which'cost $39, and that subsequent to its installation his tenant made no further complaint until after the vacate notice was served upon him.

It is conceded that Stassi erected a fence along the side of the house, which deprived LaHitte of the use of a strip of ground approximately eleven feet wide which he had previously used as an automobile driveway. Stassi claims, however; that the fence was erected with the -consent of LaHitte, and that it was agreed that Stassi would erect a garage on the opposite side of the house with a driveway of equal size. Stassi erected the new garage, and LaHitte is now making use of this garage and driveway. It appears that Stassi a'lso changed the' entrance- to the house from the side-thereof 'to the front. LaHitte claims that the fence yvas built and the change in the entrance was made without his consent, while Stassi, on the contrary, testified that LaHitte agreed to the work and acquiesced in the changes after they were made. According to Stassi, La-Hitte was present while the fence was being erected, and voluntarily gave advice and instructions to the carpenters who were doing the work. Stassi stated further that it required about two weeks for perfecting the change in the entrance, and that while the job was in progress LaHitte never complained, and that LaHitte’s only complaint was registered after the vacate notice was served upon him.

The vacate notice was served on June 8, 1948. On the following day LaHitte visited the Housing Expediter, Office of Rent Control, and there filed a written complaint setting forth that Stassi had failed to repair the defective water heater and the leaky drain. Stassi was also charged with having made changes in the premises. When this matter was tried in the lower court, the complaint was still pending and was under investigation by the rent control officials.

The fact that LaHitte did not make a complaint to the Housing Expediter until after receiving the vacate notice, tends to lend credence to Stassi’s statements that LaHitte at no time complained regarding the premises prior to the service of the notice. When the $40 check, upon which payment was later stopped, was given to Stassi, LaHitte knew that the fence had been erected and that the entranceway to the property had been changed, and it seems to us that by giving the check, with such knowledge, LaHitte acquiesced in the changes, and he had no valid reason which would warrant the stopping of payment on the check.

•There is no dispute that during June the defendant tendered an $80 check to Stassi for two months rent, .and that Stassi declined to accept the check. LaHitte’s. testimony is that he tendered the check on June 7, while Stassi. : maintains that the check was offered to him on June 10, after the notice had been served on his tenant. But the dispute as to the, date of th.e tender is of no importance. However, Stassi’s version appears to be the cprrect one, for we find that LaHitte testified that he tendered the rent to Stassi at the suggestion of the Housing Expediter, and the record shows that LaHitte did not visit the Housing Expediter until June 9.

Although conceding that ordinarily a lessor may dissolve a lease for failure on the part of the lessee to pay the rent promptly when due, appellee contends that the right to dissolve the lease is subject to judicial control according to circumstances, and that where the rent is offered to the lessor before suit to annul the contract of lease is filed, the lessor cannot annul the lease for the alleged nonpayment of the rent. Counsel cites in support of this argument the case of Edwards v. Standard Oil Co. of La., 175 La. 720, 144 So. 430. However, that case has no application here. The Court declined to annul the lease because of the particular circumstances which existed in the case. The facts were that the contract of lease was silent as to the place of payment of the rent, and that under the law the rent was, therefore, payable either at the leased premises or at the domicile of the tenant, which presupposed that the lessor was to call upon the tenant for his rent, which Edwards, the plaintiff, failed to do, and, therefore, the tenant was not in default.

The other cases cited by appellee are likewise not apposite.

In Lafayette Realty Co. v. Puglia, 10 Orleans App. 105, this court held that where no place of payment is stated in the lease the rent is to be paid at the dwelling of the tenant, and that by formally tendering the rent after maturity, but prior to default and to the filing of the suit, the defendant effectively stripped the landlord of his right to cancel.the lease on the alleged ground of nonpayment of rent.

In Saxton v. Para Rubber Co. of La., 166 La. 866, 118 So. 64, the Supreme Court held that the lessee’s failure to pay rent promptly in accordance with the terms of the lease is not a legal ground for dissolving the lease, where the lessor was unwilling to receive the rent and endeavored ■ to trap the lessee into a technical breach of the lease.

In the instant case, however, we can find no circumstances which warranted the defendant’s stopping payment of the check he had given to Stassi in payment of the-rent which was due on May 7, 1948. Under the terms of the verbal lease, the rent was payable on the seventh day of each month in advance. Defendant’s action in notifying his bank not to honor the check seems to have been arbitrary and groundless, and was supported only by his fancy that Stassi owed him a. refund which was in an amount-large . enough1 to offset the amount of the-check. Instead of pursuing whatever rights he may have had against Stassi in a legal manner, LaHitte chose to take the matter into his own hands and to be the judge of the dispute, and we do not think he should now be heard to set up that his belief that he had the right to stop payment on the-check should militate against his landlord’s success in this suit for eviction. Clearly there was a breach of the lease on the part of the defendant, and there is no reason why plaintiff should not be entitled to-the relief which the law affords him.

Article 2710, Rev.Civ.Code, provides:

"The lessee is bound:
“1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease.
“2. To pay the rent at the terms agreed on.” Article 2712, Rev.Civ.Code, emphatically declares:
“The lessee may be expelled from the property if he fails to pay the rent when it becomes due.”

For the above reasons, the judgment appealed from is reversed insofar as it dismisses plaintiff’s suit, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff-appellant, and against defendant-appellee and occupants, condemming said defendants to vacate the leased premises within twenty-four hours from the finality of this decree; defendant-appellee to pay all costs of both courts. In all other respects, the judgment appealed from is affirmed.

Reversed in part, affirmed in part.