text:
    PRESTIGE, Inc. v. SCHWARTZBERG, Inc.
    No. 7241.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    John H. McSween, of Alexandria, for appellant.
    B. Newton Hargis, of Alexandria, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff claims damages in the sum of $540.00 alleged to be due on a breach of contract by defendant. There was judgment for plaintiff as prayed for, from which judgment defendant appeals.

The facts appear to us to be very plain and are conclusively established with practically no conflict save on one or two minor points.

Plaintiff is a manufacturer of women’s hose and defendant operates a retail merchandise establishment in the City of Alexandria. On July 22, 1946, defendant, through its brokers and agents in New York, placed an order with plaintiff for 60 dozen pairs of silk hose at a price of $30.00 per dozen, to be shipped in lots of 15 dozen each in the months of September, October, November and December of said year, “or sooner”. The first lot of 15 dozen pairs was shipped to, received and paid for by defendant at the agreed price, notwithstanding the fact that the shipment was not actually made in September but in the month of October. No complaint was made by defendant as to the delay in shipment, but on October 26th, defendant notified its New York brokerage office to cancel the remainder of the order. The direction to cancel was 'based upon the claim that the hose were of a “very poor quality for the price of $30.00”. Plaintiff refused to accept cancellation of the order, but, during the course of some considerable correspondence with defendant, it did cancel the 15 dozen order for October delivery under the original agreement. Failing in its efforts to adjust the matter with defendant, and after receiving advice from the defendant that it would refuse to accept further shipments, plaintiff sold the 30 dozen pairs of hose, representing the undelivered balance of defendant’s order, on the open market for $12.00 per dozen. In this action plaintiff claims the difference between the agreed price of $30.00 per dozen and the amount actually realized by its open market sale, or a net of $18.00 per dozen, amounting to $540.00.

A material point bearing upon the decision of- this matter, and one which is incontrovertibly established by the record, is the fact that the market for silk hose sharply declined in the late summer and fall months of 1946. Nylon hose, which had been almost totally unprocurable except in black market circles, began to come back on the market, and the understandable preference of the female sex for this product was immediately reflected. Silk hose became a drug on the market.

Defendant rests its resistance to plaintiff’s demands on three points — poor quality of the merchandise, incorrect shade, and failure to make timely shipments of the October lot of 15 dozen.

It is obvious that defendant’s objections as to color and time of delivery are afterthoughts, since neither of these objections was made at any time prior to the filing of the suit. In written reasons for his opinion the learned Judge of the district court reached the same conclusion. We therefore unhesitatingly eliminate these points as having any proper bearing upon the matter at hand.

The only objection consistently urged by defendant from the very beginning, that is from the date of its attempt to cancel the order on October 26, 1946, was on the ground of the alleged poor quality of the hose. This complaint is overwhelmingly controverted by the evidence in the record. It is established that plaintiff made sales of hundreds of dozens of pairs of hose to outstanding merchandising establishments in this, as well as other sections of the country. The record shows that Maison-Blanche of New Orleans ordered and received five or six hundred dozen, and that Weiss and Goldring in Alexandria ordered and received 125 dozen pairs of the same hose. The record is replete with testimony to the effect that the quality of the hose was as good or better than any comparable product, and, consequently, we can only conclude that defendant has utterly and completely failed to establish this ground of objection to any degree whatever.

The true picture is clearly reflected by the record, and the experience of the buyers of silk hose during this period was uniformly the same, to the extent that they were forced to take a substantial loss on their purchases for the reason which is above expressed in this opinion.

The established facts conclusively evidence plaintiff’s right to recover, and, accordingly, the judgment appealed from is affirmed at appellant’s cost.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    WARREN v. TOWN OF WINNFIELD.
    No. 7263.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Appeal from Eighth Judicial District Court, Parish of Winn; Cas Moss, Judge.
    Suit by Mrs. Katherine Warren against Town of Winnfield for compensation at maximum rate for a period of 300 weeks allegedly due plaintiff as result of death of her husband while employed by defendant. From judgment for plaintiff, the defendant appeals.
    Harwell L. Allen, of Winnfield, for pell ant. ap-
    J. Norman Coon, of Monroe, for appellee.
   KENNON, Judge.

This is a suit by Mrs. Katherine Warren against the Town of Winnfield, Louisiana for compensation at the maximum rate for a period of three hundred weeks, allegedly due her as the result of the death of her husband while employed by the defendant.

Her petition alleges that her husband died on the afternoon of September 5, 1947, after suffering a heat stroke due to overexposure to heat from the sun while working in the open on the day of and the day preceding his death and that the death was due entirely to the heat stroke and a gastric •hemorrhage, resulting from the heat stroke.

The answer admitted the employment of plaintiff’s husband, but denied that his duties, which consisted of cutting the weeds on the sewerage disposal plant premises and cleaning the motors, pipes and other appurtenants, constituted a hazardous employment within the meaning of the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, and set forth that her 'husband’s death resulted from a heart ailment or other condition not connected with his employment with .the Town of Winn-field.

The District Court awarded compensation to plaintiff and her two minor children, giving written reasons. The case is before us on appeal by defendant from that decision.

Defendant has urged in this Court that the Town of Winnfield is not liable ■for compensation for injuries to its employees engaged in the operation of its water works and sewerage system. Under Louisiana law a municipality is responsible in compensation 'for injuries suffered by its employees. See Ridgdell v. Tangipahoa Parish School Board, La.App., 17 So.2d 55, and cases there cited.

Deceased, Troy Warren, was twenty-eight years of age at the time of his death. He was physically handicapped in that he ■had sustained the loss of one of his legs due to -its becoming frozen. There is no proof that he was otherwise disabled. He was a veteran of World War II and evidently healthy enough to have passed the Army physical examination.

The Mayor of Winnfield testified that he knew Warren and knew that Warren was experienced in operating pumps and that on September 2, 1947, Warren was employed by the Town of Winnfield to attend to the pümps and to work out in the yard cleaning up and cutting weeds. Warren worked all day the 2nd, 3rd and 4th. On the night of the 4th he complained to his wife that he had gotten too hot and requested her to bathe his foot in cold water. The next day he returned to work at 8:00 a. m. At 11:00 a. m., Mr. Harrell, the Mayor of Winnfield, came to the premises. Warren complained that he was not feeling well and the Mayor suggested that he stay on the job until noon. At noon Warren walked from his work through a wooded road about a quarter of a mile to his home. On arrival there, he was too sick to eat his dinner, complained that he was “burning up inside,” went to bed and called for and was given hot drinks. He said he would feel better if he could perspire and got under a blanket. ITis condition deteriorated and Mrs. Warren sent for a doctor. When the doctor was not prompt in arriving, she left the house and went out in a taxi looking for the doctor. In her absence, about 3:15 p. m., Dr. G. M. Rodgers arrived. He found Warren’s temperature to be above 110 degrees F.; that he was having a difficult time breathing; that there was blood about the mouth of a coffee color, which the doctor believed to have been present as the result of a gastric hemorrhage. The doctor remained with him until his death some thirty to forty-five minutes later. He testified that Warren exhibited all the symptoms of a patient who is suffering with and dying of a heat stroke, and was positive in his opinion that Warren’s death was caused by heat stroke.

Three other doctors were called in the case, two for plaintiff and one for defendant. Their answers to the hypothetical questions on the whole support the diagnosis of Dr. Rodgers, who treated Warren and observed him closely during the final minutes of his life.

The medical testimony shows that the symptoms of a heat stroke are not hard to recognize. All of the experts, including the one called by defendant, agreed that a doctor who observes a patient is in the best position to determine whether or not he is suffering from a heat stroke, and, as the defendant’s own doctor put it, “I think it would be rather unusual for a doctor to miss a diagnosis of a heat stroke.”

The defendant contends that the plaintiff did not establish that the labor performed by her husband was strenuous enough to cause a heat stroke. But we conclude, as did the District Judge, that the evidence shows that Warren did suffer * heat stroke and that he was sick and that the condition was in existence before Warren left the job at noon on the 5th, and that this condition progressed rapidly until Warren’s death about 4:00 p. m. the same afternoon. We quote from the excellent opinion of the District Judge, with which we heartily agree, and which indicates the rapid progress of Warren’s condition on the day of his death:

“The evidence showed that the 4th and 5th were extremely hot days. In fact it is admitted that the temperature was more than 100 degrees during these two days. Deceased worked until about 10 or 10:30 of the morning of the 5th when he had to stop cutting weeds and merely stood around to see that the pump kept running until about 12:00 o’clock when he went to his home. He was offered a ride in an automobile but he preferred to walk a distance of between % and a % mile.
“About 11 o’clock of the same morning while deceased was watching the pump and after he had stopped working on account of feeling badly the Mayor, Hon. Eli Harrell, came to the plant and found Warren standing close to the pump and told witness he had been feeling kind of bad and witness requested him to keep the pump going until noon and let the rest of them cut weeds.
“Warren reached home on September the 5th about 12:15 and when he came in the house he told plaintiff (his wife) he was sick and laid down on the bed and said that he was burning up on the inside. She gave him a hot lemonade and placed a heavy blanket over him to get him to break out in sweat but it had no effect and he continued to grow worse and died about 4:00 o’clock in the same afternoon. Plaintiff finally succeeded in getting Dr. Rodgers about 30 or 40 minutes before he died with the result that Dr. Rodgers pronounced him ill with Heat Stroke and certified that to be the cause of his death.”

The above quotation, the testimony of Dr. Rodgers that deceased, in his opinion, unquestionably died of a heat stroke, and the opinion of all the medical experts that the doctor who observes a patient is in good position to determine whether or not he is suffering from heat stroke, all fortify, our conclusion that the plaintiff has established by the preponderance of the testimony, lay and medical, that her husband died as the result of excessive heat, resulting from his exertions and the high temperature prevailing while at work for defendant.

It has become well settled in the jurisprudence of this State that compensation is due in cases where death results from excessive heat, whether the heat come from boilers or other artificial means or from excessive heat or overexertion while in the course of employee’s duties. Lampkin v. Kent Piling Co., Inc., La.App., 34 So.2d 76, and cases there cited. A similar rule has been adopted in many other states. In the case of Milstead et al. v. Kaylor et al., 212 S.W.2d 610, 613, the Supreme Court of Tennessee stated the rule in that state as being: “Death caused by ‘heat prostration, sunstroke or heat exhaustion’ is compensa-ble in this state. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A.L.R. 1086.”

The judgment is affirmed, with costs.


text:
    WALKER et al. v. FITZGERALD et al.
    No. 6839.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.

      Stafford & Pitts, of Alexandria, for appellants.
    James II. Williams, of Colfax, for ap-pellees.
   KENNON, Judge.

Plaintiffs and their father, since deceased, executed certain gravel deeds or leases purporting to convey to defendants all the sand and gravel on a tract of land owned by plaintiffs in Grant Parish, Louisiana, and providing for payment of four cents per yard royalty on gravel mined from the premises. Suit was filed in Grant Parish. in which plaintiffs’ prayed for an annulment of the alleged gravel and sand deeds or leases and for a money judgment covering the value of sand removed.

The District Court rejected plaintiffs’ demands to have the alleged sales or leases annulled but gave judgment for $1,680.00, representing an allowance of four cents per yard for the 42,000 cubic yards of sand removed from the property.

The defendants appealed to the Court of Appeal. This appeal was transferred to the Supreme Court, 24 So.2d 263, and subsequently by that Court, 37 So.2d 712, returned to the Court of Appeal.

The following instrument was signed by the plaintiffs and their father, since deceased :

“ State of Louisiana
Parish of Rapides
“ Be It Known That on this, the 8 day of July, A. D., 1939 before me Lamar Polk, a Notary Public in and for the Parish of Rapides, State of Louisiana, duly qualified in accordance with law, personally came and appeared
X
X Hilda Coston
X Laura Williams
X Vera Kelley
X R. E. Walker
X Zelma Walker
all residents of the Parish of Grant, State of Louisiana, who declared unto me, Notary, in the presence of the undersigned competent witnesses, that for and in consideration of the price and sum of .Twenty-five & no/100 ($25.00) Dollars, cash in hand paid, the receipt of which is hereby acknowleged they have bargained and sold, and do by these presents bargain, sell, transfer and convey, and deliver, with full warranty of title and subrogation to all rights and action in warranty they may have against former owners, and free from all encumbrances, unto Charles E. Kerlin, married whose wife, born Miss Lula Sills still lives and resides with him, a resident of Rapides Parish, Louisiana, here present, accepting and purchasing for himself, his heirs and assigns, and acknowledging possession and delivery thereof, the following property, to-wit:
“ All of the sand and gravel on, in or under the following described property in the Parish of Grant, State of Louisiana to-wit:
“ E % of NE 14 of Section Seven (7) T. 5 N. R. 1 W. together with full rights of <?ngress and egress for the purpose of removing the same.
“ In addition to the above consideration, vendee shall pay vendors four cents (4‡) per cubic yard for' all gravel mined and removed from said property, said payment to be made weekly for all gravel removed during previous week.
“ To have and to hold the said property unto said purchaser and unto heirs and assigns forever. Certificate of Mortgages as required by law is waived and dispensed with by the parties, and all taxes due and exigible have been paid.
“ Thus done and signed at my office - Louisiana on the day and date above written, in presence of me, Notary, and the undersigned competent witnesses.
“Witnesses: H. L. Walker
Zelma Walker
Betsy Hubble, R. E. Walker
Mrs. Perry L. McKenzie. Vera Kelley
Hilda Coston
Laura Williams
C. E. Kerlin
(Seal) Lamar Polk,
Notary Public.”

On October 10, 1940, the vendee named in that instrument transferred all his rights thereunder to Frank Fitzgerald, who is a defendant in the case now before us. Fitzgerald subsequently moved in the necessary machinery and equipment and began to remove gravel and sand from the property, for which he paid royalty on the gravel at the rate of four cents per yard and in a total amount at the time of the trial of $3,441.46.

On April 13, 1942, plaintiffs, for the consideration of $100.00, executed a sale (or lease) of sand and gravel covering approximately six acres of land adjoining the eighty acres described in the 1939 instrument. This instrument was similar, except as to land description and the substitution of $100.00 for $25.00, to the July, 1939 document covering the eighty acres, and the two will be considered together in this opinion.

On March 23, 1942, plaintiffs’ attorney wrote a letter to defendants advising them that the gravel operations were unsatisfactory; that timber had been damaged; advising defendants that the lease was such that same could be terminated at the will of plaintiffs and notifying defendants that it was the desire of the landowners that the lease be terminated and that their equipment be removed.

On April 14, 1942, plaintiffs signed a document addressed to defendant Fitzgerald and reading as follows:

“April 14th, 1942.
“ Mr. Frank Fitzgerald,
Glenmora, Louisiana
“ Dear Sir:
“ The undersigned as co-owners of the E% of NE%, Section 7, T. 5 N. R. 1 W., Grant Parish, La., do hereby recognize your ownership in and to the sand and gravel on and under the said property in accordance with deed heretofore executed by H. L. Walker, et al, to Charles E. Kerlin, recorded in Conveyance Book 61, page 577, records of Grant Parish, La., and sale from the said Kerlin to Frank Fitzgerald, dated October 7, 1940, recorded in Conveyance Book 63, page 607, records of Grant Parish, La.
“ The undersigned hereby agree that in the mining of sand and gravel from said property by you, settlement for royalties due under said sale shall be payable on the 15th of each month for the preceding month. All of the undersigned likewise agree that all royalties due hereunder shall be paid to H. L. Walker, subject to the conditions hereinafter set forth.
“ So long as the royalties shall not exceed $40.00 per month, they shall be paid to the said H. L. Walker each month, and any month in which the Royalties due hereunder exceed the sum of $40.00, it is agreed that the first $40.00 shall be paid to the said H. L. Walker and any excess above said amount shall be applied by the said Frank Fitzgerald first on an indebtedness presently due and owing by the said H. L. Walker to the said Frank Fitzgerald, until said amount is liquidated. Thereafter, any excess over $40.00 each month shall be paid to the Federal Land Bank, or the Land Bank Commissioner at New Orleans for the account of the said H. L. Walker to apply on a mortgage presently on said property. When both of said debts are paid in full, thereafter the full amount of the royalties due hereunder shall be paid to the said H. L. Walker.
“Yours very truly,
H. L. Walker
Mrs. Hilda Coston
Laura Williams
Vera Kelley
Caesar Walker
R. E. Walker
Zelma Walker”

The record shows that plaintiffs and their father entered into negotiations with defendant Fitzgerald shortly after the March 23, 1942 letter was written by their father and his attorney and reached the agreement evidenced by the April 14th letter.

• The testimony shows that at- the time this April 14th agreement was signed, defendant advanced $600.00 to pay off the Federal Land Bank mortgage against the property and agreed to pay $40.00 a month as royalty directly to plaintiffs’ father ’before using the royalty for reimbursement of the $600.00 advanced on future royalties.

Plaintiffs’ contention that the original, transaction was void because it was based on insufficient consideration and potestative in character and had no fixed term, has passed out of the picture for two reasons. First, lessee actually mined large quantities of gravel and the landowners accepted substantial royalties therefor. Secondly, after, by letter bringing up the issue that the original agreement was void, the owners executed the April 14, 1942 instrument ratifying the transfer of same by the original grantee to defendant Fitzgerald. Slack v. Riggs, 177 La. 222, 148 So. 32, and cases there cited.

The legal situation between the parties after the signing of the April 14th letter, and the advance by Fitzgerald of sufficient money to constitute a valid consideration, was to confirm and make valid the existing arrangement under which Fitzgerald was mining sand and gravel from plaintiffs’ premises and to authorize the payment by Fitzgerald of the royalties as set forth in the letter signed by all the plaintiffs.

We consider it equitable to both plaintiffs and defendants to hold that the documents executed by the landowners are properly to be considered as leases rather than to constitute a sale of the sand and gravel to the grantee. This was the construction placed upon the instrument by the defendant who paid four cents per cubic yard royalty on the gravel from the very beginning of the operation on plaintiffs’ land. This was the construction which had been recognized by both parties in 1942 when the defendants paid a substantial consideration to the landowners for the execution of the letter above quoted ratifying the original document.

Having determined that defendants’ removal of sand and gravel from plaintiffs’ land was in the nature of a lease, it follows that defendants should pay royalty for all materials removed from plaintiffs' land. The royalty for gravel was set in the instrument itself at four cents per yard. No royalty amount was set for sand. The District Court allowed four cents per yard, the same as set in the contract for gravel. The only evidence in the record is that of plaintiffs’ witness, who testified that he was familiar with the price of sand and gravel in the vicinity and that “the usual price paid at operations for sand to the landowner” was two cents per cubic yard.

There is no evidence in the record that sand and gravel are of the same value. We therefore conclude that the value established by the record for sand is two cents per cubic yard.

Under the circumstances, it- is not necessary for the Court, at this time, to determine under just what conditions the arrangement thus approved between plaintiffs and defendants can be terminated by plaintiffs. Sufficient for the decision in this case is it to hold that, since plaintiffs, for a substantial consideration, on April 14, 1942, approved the operations which had been carried on for several years prior thereto and specifically recognized defendant Fitzgerald’s ownership of the sand; and gravel and authorized him to continue to mine same subject to payment of gravel royalties as specified in that letter, and since plaintiffs neither alleged or proved that defendant was not complying with his obligations and neither alleged or proved that defendant had in any manner ceased to actively operate the gravel piton plaintiffs’ land in the manner contemplated by the parties at the time the April. 14th agreement was entered into, plaintiffs were not entitled at the time of the-trial to cancellation of their agreement, with defendants. The record does not disclose what developments have taken place since the trial of the case, and in order to be sure that no injustice is done, we have determined that a proper judgment on plaintiffs’ demand to cancel on the the ground of lack of fixed term would be one of nonsuit.

For the reasons assigned, the judgment appealed from is amended by rejecting as of nonsuit plaintiffs’ demands for cancellation of the sales or leases on the ground that same' have no fixed term. The judgment is further amended by reducing the amount awarded plaintiffs from $1,680.00 to $840.00, and as amended, same is affirmed. Plaintiffs to pay costs 'of appeal; all other costs to be paid by defendants.

TALIAFERRO, KENNON, and HARDY, JJ., sitting.


text:
    ELLINGTON v. WALGREEN LOUISIANA CO., Inc.
    No. 7260.
    Court of Appeal of Louisiana. Second Circuit
    Jan. 6, 1949.
    K. Hundley, of Alexandria, for appellant.
    Gist, Thornton & Murchison, of Alexandria, for appellee.
   KENNON, Judge.

Alleging that defendant is the owner and operator of “Walgreen’s Drug Store,” located on one of the principal business corners in the City of Alexandria, Louisiana, and that he suffered injury as a result of the gross negligence of defendant in permitting the contents of a broken bottle of baby oil to remain on the floor, plaintiff filed this suit for more than $40,000.00 in damages for personal injuries to himself.

The petition alleged that the bottle of oil was knocked to the floor by an unknown customer of defendant before plaintiff entered to make a purchase of nipples for a baby’s bottle in the same department that the baby oil was situated and that the breaking of this bottle of oil was known to defendant’s agents and employees for a period of fifteen minutes or more; that defendant’s permitting the oil to remain on the floor constituted gross negligence and resulted in serious injury to the plaintiff when his feet slipped out from under him while he was in the act of reaching for merchandise which he expected to purchase. Plaintiff further alleged that defendant’s .action in displaying the oil for sale on a table where same could be easily knocked off constituted gross negligence and was ■one of the proximate causes of his injury.

An exception of no cause or right of action was filed and overruled.

Defendant’s answer admitted that plaintiff slipped and fell in the drug store as alleged and that a bottle of baby oil had been .accidently dropped at this spot by an un'known customer and set forth that when ■the bottle of oil was accidently dropped, ■the customer “immediately pushed the hroken glass under the edge of the display table and immediately passed on through ■the aisle toward the drug department counter on the south side of the store, and that •approximately at the same time said customer passed out of the aisle to the drug ■department side of the store, petitioner ■entered the store and while passing through ■said aisle, slipped and fell,” and that the period of time which elapsed between the •customer’s act of dropping the oil and the slipping and falling of plaintiff was so .short that it would have been impossible for the employees of defendant to have removed the oil from the floor or to have placed a guard around same.

The answer in the concluding paragraph set forth that the oil on the floor of the aisle where plaintiff was hurt was there as the result of a male customer having ac-cidently dropped a bottle of oil on the floor at a time almost immediately prior to entrance of plaintiff to the store; that the defendant had no' knowledge that the oil was on the floor until after plaintiff had fallen; that plaintiff fell within a minute or two after the bottle of oil had been dropped and that as soon as any of defendant’s responsible agents had notice that the oil was on the floor, it was immediately mopped up and removed.

The learned District Judge rendered a complete written opinion, finding that the defendant company was guilty of no negligence in placing the baby oil on the display counter, and that while the evidence indicated that defendant knew of the condition and allowed it to remain for a period of approximately fifteen minutes, such a delay did not constitute actionable negligence.

Plaintiff has appealed to this Court from the District Court’s judgment rejecting his demands.

The record shows that the oil was contained in the usual sort of Mennen baby package and was displayed and placed on the table in the same manner that defendant’s merchandise was displayed in other portions of the state and nation. We agree with the District Court that such a display of the merchandise on the counter did not constitute negligence, and consider plaintiff’s other alleged basis for recovery, namely, that the action of defendant’s employees in permitting the oil to remain in the aisle and in the path of prospective customers after this condition had come to their notice, constituted actionable negligence and was the proximate cause of his injury.

Since defendant in answer admits that the oil was accidently dropped by one of its customers and that plaintiff subsequently fell at the same spot, the principal facts left in controversy are: how mu'ch time elapsed between the breaking of the bottle and plaintiff’s accident, and whether or not, during this time, defendant’s employees had knowledge that the bottle had been broken and consequently knew of the dangerous condition of the drug store floor at the spot where the accident occurred.

The facts surrounding the breaking of the bottle of oil, the notice taken of the incident by the employees of defendant are covered in the following extract of the opinion of the learned District Judge:

“The accident occurred in the late afternoon when the store was fairly crowded with customers. It was summertime and there were several people at the soda fountain and in other parts of the store. It seems that there was little attention paid to the breaking of the bottle and the length of time that the oil remained on the floor was not very definitely fixed by the evidence. The witness Wagner was at the soda fountain. He heard the breaking of glass which, undoubtedly, was the bottle falling and breaking upon the floor and he remained there until the plaintiff slipped and fell. His testimony was to the effect that the bottle was broken on the floor approximately fifteen minutes before the plaintiff was injured. It was evident that this was an approximation as there was no reason for him to consider the length of time between the two events and did not know that he would ever be called upon to fix it. He merely judged thát it was about fifteen minutes.
“At the time of the accident Miss What-ley was in the employ of the defendant company and was dispensing soft drinks at the soda fountain which was approximately fifteen feet from the aisle in which the oil had been spilled. She was standing behind the soda fountain and she said that a man and a lady entered the store and the lady picked up a box which contained the oil and a can of baby powder and that when the lady had looked at it and started to place it back on the display counter the oil was dropped, the bottle was broken and the oil spilled on the floor. She continued to dispense soda as it was a busy hour and intended to notify the others in the store about the breakage but she did not have time as she was continuing to mix the soft drinks at the fountain.
“It was her testimony that it was oil: which dropped on the floor. Just how she determined that fact is not clear from the record. I was inclined to believe that she later learned it was oil and for that reason-testified that she saw the lady drop the bottle of oil. However, I will take her testimony as given which was to the effect that she knew at the time that it was oil which was spilled upon the floor. She was unable-to fix the time between the spilling of the oil and the accident. At first it appeared that it was during the time she was preparing one drink but when I questioned her as to how many drinks she had prepared during that time, she was unable to state and would not venture to fix the time nor the number of drinks prepared.
“The time element is important to be fixed but that can only be done approximately. I will take the testimony of Wagner in connection with that of Miss Whatley and in my opinion it could not have been more than fifteen minutes. Wagner had not left the soda fountain and neither had Miss Whatley had an opportunity to leave the fountain to go report it. I think it may reasonably be said that not over fifteen minutes elapsed.
“From the testimony it does not appear that any other employee knew that the oil had been spilled. The other employees definitely stated that they had no knowledge of the bottle being broken and especially that any of them knew that its presence upon the floor had caused the dangerous situation to exist which might-result in someone slipping thereon and getting hurt. However, Mr. Armstrong, employed as a druggist by the defendant and • a life-long friend of the plaintiff, stated to-the plaintiff after the accident and before-the plaintiff left the store that a lady had knocked the oil off the display counter and; that he had told the porter to clean it up and that the porter had plenty of time to. do it but had not done so. This is according to the testimony of the plaintiff.. He was corroborated in this by Officer Broussard who was called in from the front of the store to assist the plaintiff. He stated that Mr. Armstrong made the-statement in his presence that the bottle had been dropped on the floor and that the : porter had had time to clean it up. This was denied very definitely by Mr. Armstrong who had no recollection of making ^any such statement. However, he must have made the statement and in justice to Mr. Armstrong the reply indicated that being a very close friend of the plaintiff and seeing that he was hurt, expressed his regret and blamed the porter for not cleaning it up. However, other than this statement the evidence did not show that Armstrong or any other of the employees except Miss Whatley knew that the oil was upon the floor.”

We find that the breaking of the bottle in the aisle was noted by Miss Whatley, one of defendant’s employees on duty at the time of the occurrence, and that the existence of the oil and glass on the floor was also known to Mr. Armstrong, a druggist employed by defendant, for a sufficient length of time prior to plaintiff’s falling for same to have been cleaned from the floor.

Defendant’s manager testified that Miss Whatley’s primary duty was that of a soda dispenser, but that soda dispensers' sometimes worked in other portions of the store.

Plaintiff’s testimony was that Mr. Armstrong, who came to assist him following his fall, told him that a lady had knocked the baby oil off the display case and that he (Armstrong) had told the Negro porter to clean it upland that he had had plenty of time to do so. This testimony was corroborated by that of a customer, Mr. Wagner, and by that of police officer Brous-sard, who was called in to assist plaintiff immediately after he was hurt. Officer Broussard testified as follows:

“Q. Well, did Mr. Armstrong come up? A. Immediately after I got there Mr. Armstrong came up there.
“Q. Did he make any statement or did you ask him any questions? A. I asked Mr. Ellington what happened and he said he slipped and fell and I said, where at, and he showed me the oil on the floor there .and I says ‘Where’s the glass’ and the druggist said ‘Well, the porter boy picked it up’ and he said he didn’t know why he hadn’t picked up the oil and there was a big oil spot there and I said ‘How did it happen’ and he spoke and said ‘Some lady knocked a bottle of baby oil off on the floor and hadn’t had time to get to cleaning it up.’ ”

Defendant’s manager, Mr. Lamotte, testified that three porters were employed and that these cleaned up the drug store as often as necessary. He admitted that the presence of the baby oil on the floor “would make it slippery.”

After studying the record, we find ourselves substantially in agreement with the findings of fact of our learned brother of the District Court, who concluded that approximately fifteen minutes elapsed between the time the bottle of oil was dropped on the floor by one of defendant’s customers and the time plaintiff entered the store to make a purchase from the same counter.

The law applicable to the case before us was exhaustively reviewed by the Orleans Court of Appeal in the case of Boucher v. Paramount-Richard Theatres, Inc., et al., 30 So.2d 211 and in the decision of the case before us we accept the rule therein set forth, namely, that a storekeeper is not the insurer of the safety of his customers and he need only keep the floors and passageways of his premises in a reasonably safe condition and must exercise the degree of care which would be exercised by an ordinarily careful or prudent man under the same or similar circumstances.

We recognize the principle of law that the proprietor of a store is not responsible for what may occur to one customer as the result of the negligence of another customer. Plowever, if a storekeeper or his employees have knowledge of the existence of a dangerous condition of a portion of the store in which customers are invited to use, whether same be created by an act of another customer or arise from other circumstances, and neglect to exercise reasonable diligence in remedying the dangerous situation — by a clean up, repair or by barricading same — the storekeeper thereby becomes guilty of negligence and becomes responsible for injuries that may result to one entering his premises as a customer.

As set forth in the case of Welcek et al. v. Saenger Theatres Corporation et al., La.App., 5 So.2d 577, reasonable care is a relative term, varying with the situation and circumstances.

In the case before us, the record shows that the floor of defendant’s store was of a hard stone or tile-like substance; that the existence of a broken bottle of baby oil on same constituted a hazard to any customer who might unsuspectedly step on the spot affected and that this condition was known to defendant’s employees for approximately fifteen minutes time. The record further shows that defendant’s store is on one of the main corners of the populous city of Alexandria and that hundreds of customers customarily came into the premises on Sunday afternoon. Defendant Had numerous employees, including three porters whose duty it was to keep the floors clean. The bottle dropped contained five fluid ounces of baby oil. It would have been a relatively simple process to have picked up the glass and mopped up this oil. Under the circumstances, the neglect of defendant’s employees to take remedial action for a quarter of an hour period constituted a failure to exercise the degree of care to be expected of an ordinarily prudent person. ,

Therefore, while we substantially agree with the District Court in its finding of fact, we conclude that, under the facts of the case before us, defendant failed to exercise the reasonable care required of storekeepers.

Plaintiff suffered shock and some injury to his elbow, back and lower limbs in the fall. Plaintiff since childhood has had an impediment in the use of his lower limbs, although he has always been able to earn a good livelihood and to accumulate some property. Plaintiff, at the time of his fall, was already suffering from a double hernia. Immediately after his fall on July 21st he was taken to the Baptist Hospital, where he remained until August 6th. He returned to the hospital on August 21st and on August 24th underwent an operation for correction of the double hernia condition. His principal complaint at the time of the trial was of the inconvenience caused by the possible fracture of the end bone of his vertebra. His doctor testified that an operation would probably cure this condition.

We have found it difficult to distinguish between the suffering, loss of time and medical expenses incident to the hernia operation and those resulting from plaintiff’s fall, but have concluded that an award to plaintiff of $1000.00 for pain and suffering, of $1500.00 for loss of earnings, and of $750.00 for medical expenses, including cost of the corrective operation, would be fair under the circumstances disclosed by the record.

The judgment appealed from is reversed. Judgment is now rendered in favor of plaintiff, Robert W. Ellington, and against defendant, Walgreen Louisiana Company, Inc., in the sum of $3250.00, with 5% per an-num interest from judicial demand until paid, and for all costs.


author: McBRIDE, Judge.

text:
    CHRISTIAN v. MARTIN.
    No. 19131.
    Court of Appeal of Louisiana. Orleans.
    Jan. 10, 1949.
    Rehearing Denied Jan. 24, 1949.

      Siegfried ®. Christensen and I. Bernard Salomon, both of New Orleans, for plaintiff-appellant.
    M. E. Culligan, of New Orleans,'for defendant-appellee.
   McBRIDE, Judge.

This appeal involves an automobile collision which took place on the morning of June 28, 1948, at the intersection of Washington Avenue and South Broad Street, which are two main thoroughfares each having a neutral ground running down the center, and 'having two lanes for vehicular traffic. Washington Avenue runs from the river toward the lake, and South Broad Street runs in an uptown-downtown direction; in the -center of the intersection is an oval-shaped neutral ground, the elongated side being on South Broad Street, in the middle of which stands a semaphore light signal controlling traffic at the intersection.

These facts are conceded: Plaintiff, Morris Christian, was driving his 1941 Chevrolet automobile on Washington Avenue toward -the lake in the proper lane designated for traffic travelling in that direction. Defendant, James S. Martin, had been driving his 1937 Chevrolet 'automobile on the opposite lane of Washington Avenue, going toward the river, and had crossed the lane of South Broad Street nearest the lake and then turned left toward downtown into the other lane of South Broad Street. The cars collided in the downtown-river part of -the intersection. The right front part of the Martini car contacted the left side of plaintiff’s car..

The petition alleged that plaintiff’s car entered the intersection pursuant to a favoring green light, and that it was negligently run -into 'by the Martin car, which wa-s attempting the completion of a “U”' turn against the red light in order to proceed out Washington Avenue in the same-direction in which plaintiff was travelling-.. Defendant is additionally charged with failure to keep a proper lookout for traffic-in the lane travelled by plaintiff. Plaintiff alleged that the damage to his car was-$147.50, and judgment for that amount was» prayed for.

Defendant answered alleging that after turning left into South Broad Street he-stopped close to the oval neutral ground' to await a green light so that he could continue on down South Broad Street, and that while he was in such standstill position his car was struck on its right sid'e-toward the front by Christian’s automobile. Defendant disavowed negligence on: his part and charged that the accident occurred solely because of plaintiff’s negligence» in entering -the intersection on a redi light. Defendant reconvened fo:r $25,. which he alleged was the amount of damage inflicted upon his car. The trial court dismissed plaintiff’s suit and allowed defendant’s demand in reconvention. Plaintiff has taken this appeal.

Occupying the plaintiff’s car at the time-of the accident, besides" plaintiff himself,, were three passengers. The four were employed by the same concern, and at the-time of the collision were on their way to> work. Barring inconsequential contradictions and inconsistencies, which are prevalent in most cases of this kind, these four persons -told substantially the same story,, viz.: That Christian was travelling on the downtown lane of Washington Avenue, and. upon reaching the intersection the light facing him was red and traffic on South Broad Street had the green light. He •thereupon stopped behind three other cars,, and when the light changed to green im his favor he followed the three cars ahead of him and attempted to -cross the riverside lane of South Broad: Street; that justr as he had about completed the crossing his car was struck and sideswiped by the Martin car. These four witnesses stated emphatically that Martin was attempting to complete a “U” turn from the upper side of Washington Avenue into the downtown lane of said avenue, and that the attempt was made against a red light showing for traffic on South Broad Street.

It is not disputed that Martin turned left into South Broad Street on the same green light upon which Christian entered the intersection. Martin stated that when he made the left turn the red light was showing for traffic on Broad Street; that he respected this signal and stopped at the oval, and that his car was then run into by plaintiff’s car.

We notice that in the answer defendant alleged that Christian entered the intersection on a red light, but on his cross-examination Martin retracted this contention and admitted that Christian came into the intersection on a green light. Pressed for an explanation of the discrepancy between the answer and his testimony, Martin explained, “He had the green light, he was trying to beat the red light.” Defendant denied that it was his intention to make a “U” turn.

Mrs. Martin testified that her husband had stopped near the oval when she noticed Christian’s car coming at “full speed.” Her testimony generally agrees with.that of her husband, but she did -make a very significant admission. Although Martin vigorously denied that he intended to execute a “U” turn, Mrs. Martin said, “Well, we were right there making a U turn.”

Defendant produced also as a witness one Duysadon, who claims that he was standing at the intersection and noticed the accident in all of its details. To say the least, his evidence is unimpressive. Regarding the point as to which car had the favoring green light, his -testimony is: “A. Mr. Martin had the green light and the red light was facing from the river to the lake.

“Q. Well, if Martin had the green light why was his car stopped? A. Well, he was stopped, he was waiting for the green light.
“Q. Then he had -the red light if he was waiting for the green light? A. Yes, sir.
“Q. If that was true how could the light be red in any other direction? A. Well, it was.”

The Martins reside at 4418 Eden Street, and according to their, testimony it was Martin’s intention to travel down South Broad Street to a crossing -one block below Washington Avenue, -then turn into the lake lane of South Broad Street, in order to reach a fruit stand located at the, downtown-lake -corner of the intersection, -there to make a purchase. The most direct route to their home on Eden Street from the fruit stand would be back Washington Avenue -in the same direction that Christian’s car was moving. Weighing .the testimony of the plaintiff’s witnesses with the admission of Mrs. Martin, “Well, we were right there making a U turn,” we are led to the belief that Martin, coming from the lake pn the upper side of Washington Avenue, -attempted to go around the oval neutral ground at the intersection in the execution of a “U” turn into the other lane of Washington Avenue, -to reach the fruit stand and then proceed home. This short-cut maneuver of M-artin’s was an exceedingly dangerous one and necessitated a turn against the red light on Broad Street and entry into Washington Avenue which had the green light. We believe that the accident was solely due to the imprudence of defendant in thus heedlessly driving his car into the lane travelled -by plaintiff’s car.

We are reluctant to reverse -the lower court on a question of fact which entails the veracity of witnesses, but our careful reading of the record herein formulates the opinion in our minds that -the lower court -clearly erred in deciding for defendant. The admission of Mrs. Martin, “Well, we were right there making a U turn,” cannot'be overlooked.

The evidence shows -that plaintiff’s car sustained damage to its left side, particularly to the door, cowl, rear fender, and body, and at the time of the trial below the car had not been repaired. The only evidence respecting the amount which it would require to pl-ace the car in the condition it was in before the accident is three written estimates from automobile repairing establishments, which were admitted in evidence without objection, the highest estimate being’ for $147.50, and the lowest for $119. One whose automobile is damaged in a collision as a result of another person’s negligence is entitled to have his automobile placed in the same condition as it was before the accident, although the automobile has not been repaired. Folse v. Flynn, La.App., 200 So. 160. While the plaintiff claims $147.50, we believe that his recovery should be limited to the lowest estimate, which is $119.

For the above reasons, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and that there now be judgment in favor of the plaintiff, Morris Christian, and against the defendant, James S. Martin, for the full sum of $119, with legal interest from judicial demand; defendant’s reconventional demand is dismissed, and defendant is to bear -all costs of both courts.

Reversed.


text:
    RUIZ v. TROCCHIANO.
    No. 19023.
    Court of Appeal of Louisiana. Orleans.
    Jan. 10, 1949.
    Rehearing Denied Feb. 7, 1949.
    Writ of Certiorari Denied March 21, 1949.
    A. Lester Sarpy, of New Orleans, for plaintiff and appellee.
    Thomas Barr, III, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Defendant has appealed from the judgment in plaintiff’s favor for $480.00.

The trial judge gave written reasons for judgment, which in our opinion cover the case so thoroughly that we adopt them as our own.

“Plaintiff, Ruiz, a real estate broker, brings this suit against defendant, Troc-chiano, another real estate broker, for one-half of the amount of the commission received by the defendant for the sale of the property, 4201-03 Canal Street, New Orleans, Louisiana, by Mrs. Trolle to Mrs. Nuccio.

“Plaintiff alleges that the owner, Mrs. Trolle, entered into a written contract with ■plaintiff on November IS, 1946, under the ■terms of which he was given the exclusive right to sell the property for a period of 90 days. He further alleges that this contract was extended by oral agreement for an additional period of six months, and that during the renewal period the defendant contacted him with respect to the sale of said property. He alleges that he advised defendant that he had an exclusive contract on the property, that his ‘For Sale’ sign was still posted thereon, and that he would Ibe glad to cooperate with defendant in making a sale of the property. He avers that the defendant contacted the •owner and advised 'her that he would cooperate with plaintiff and agreed to divide the commission with plaintiff. He .further alleges that the property was sold for the •sum of $21,500, and that defendant collected the entire commission but has refused to pay to plaintiff one-half of the commission notwithstanding amicable demand.

“The defendant admits the execution of the original 90-day exclusive listing contract and admits amicable demand by plaintiff for one-half of the commission, but he denies all other allegations of plaintiff’s petition. In reconvention, defendant claims the sum of $5000 damages for humiliation and embarrassment resulting .from the bringing of this suit.

“The facts as established by the preponderance of the evidence are as follows:

“Mrs. Trolle, the owner of the property, 4201-03 Canal Street, gave to plaintiff, Ruiz, who had been handling the sale of all her real estate in the past, an exclusive written contract to sell the property for a period of ninety days from and after November 15, 1946. At approximately the time of its expiration date, this contract was extended verbally for an additional •period of six months, during which time plaintiff continued to advertise the property for -sale, maintained a ‘For Sale’ sign, approximately 4x8 feet, on the property, ■and contacted tbs. owner from time to time with respect to certain offers for the purchase of the property. During the period of the renewal, Mr. and Mrs. Glorioso, real estate salesmen in the office of the defendant, Trocchiano, and Trocchiano leam-ed that this property was for sale through one Lancaster, who was connected with plaintiff’s office, and also through the plaintiff’s sign which was still posted on t'he property. The Gloriosos called to see Mrs. Trolle about the sale of the property on behalf of a prospective purchaser named Mrs. Nuccio. Mrs. Trolle, t'he owner, advised the Gloriosos that Ruiz was handling the sale of her property and that in the event of a sale his commission would -have to be .taken care of. The next day Troc-chiano called upon Mrs. Trolle and told her it was customary for agents to cooperate with each other in the sale of property and advised her that if she would sign an authorization card, naming t'he price at which she would sell the property, he, Trocchiano, would see that t'he plaintiff would be taken care of with respect to his commission. Mrs. Trolle advised Ruiz of her submission of this offer and Ruiz told her he would be glad to cooperate in accordance with the usual custom of agents in New Orleans. The sale was completed. Trocchiano colleoted the entire commission ■and has refused to divide it with Ruiz.

“It has been established beyond question that the universal custom in New Orleans and the adjoining areas is for brokers to cooperate with each other in the sale of real estate and where they do so cooperate the agent who has an exclusive listing contract and the agent who procures the purchaser divide the commission equally between them. This custom was known to both the plaintiff and the defendant, and the defendant -on a prior occasion, while a salesman in the Clesi office, actually participated in suoh a division with the plaintiff, Ruiz, in connection with another similar ■transaction.

“It is true that it has also been shown ■that where one broker is a member of the New Orleans Real Estate Board, a private organization, and where the other broker is not a member, the broker who is a member may refuse to cooperate with the broker who is not a member; but where the member broker does so cooperate, as he may do -in his own discretion, the usual custom of dividing the commission prevails.

“It also is true that the defendant Troc-chiano denies that he told Mrs. Trolle that he would take care of plaintiff’s share of the commission. He testified that Mrs. Trolle told him that Ruiz’s contract had expired and that Ruiz failed to sell the property, and defendant says that Mrs. Trolle thereupon gave him an exclusive contract to sell the property. He is confirmed in this by Mr. and Mrs. Glorioso, his salesmen, who split the -commission with him. On the other hand, Ruiz and Mrs. Trolle are confirmed in their statements by Mrs. Hiller, who was present at the time the agreement was made between Mrs. Trolle and Troc-chiano.

“I was not at all impressed by the testimony of Trocchiano or by his attitude and and demeanor on the witness stand. There is considerable variance in material particulars between the testimony of the Glo-riosos themselves, that of Trocchiano and and that of Mrs. Nuccio, the purchaser. Trocchiano and the Gloriosos have an interest in the outcome of the case. It is true that Ruiz also has an interest in the outcome of the -case, and his testimony must likewise be discounted for that reason. I was -much impressed, however, by the apparent truthfulness and fairness of both Mrs. Hiller and Mrs. Trolle. Mrs. Hiller, a stranger not connected with any of the ■parties to the suit, was brought in from the country to testify and she gave a straightforward story of what happened. She has no interest whatsoever in the outcome of the case. I was also impressed by the testimony 'of Mrs. Trolle, who was an unwilling witness and who not only had no interest in the outcome of the case but in fact testified against her own interest, since her testimony exposed her to a possible double payment of commission. The, testimony of Mrs. Trolle, Mrs. Hiller and Ruiz is more in accordance with the probabilities, considering the fact that Ruiz continued to maintain his sign on the property, that the Gloriosos and Trocchiano learned that the property was for sale through this sign and -through Trocchiano’s office, and that it was the universal custom in New Orleans to split the commission under the conditions prevailing in this case.

“The defendant, has contended very vigorously that if there was an agreement between Trocchiano and Mrs. Trolle for a division of the commission between Troc-chiano and Ruiz, this constituted a contract for the benefit of a third person, and that since Ruiz did not accept the benefits of the contract, as provided by Art. 1890 of the Civil Code, he, Ruiz, is not entitled to recover in this case. As I see it, this-Article has no application to this case-Ruiz is not a third party beneficiary to -the contract. He is one of the principal parties to the contract as he had an exclusive contract with Mrs. Trolle under the terms of which he had an exclusive right -to sell the property and was entitled to the entire-commission on the sale made in this case. If there was any third party beneficiary to the -contract, it was Tro-cc'hiano-, who- came into the picture later for the purpose of cooperating in the sale and with the understanding that he would split -the commission with Ruiz. Furthermore, if any acceptance by Ruiz were required, that acceptance came about when Mrs. Trolle advised Ruiz of the negotiations and he agreed to .Trocc-hiano’s cooperating in the sale under the usual custom prevailing between brokers in New Orleans. Furthermore, Ruiz’s acceptance of one-half of the commission in lieu of the entire •commission due him under the contract is evidenced -by his amicable demand and his judicial demand for one-half of the commission in lieu of the entire amount to which he was entitled.

“The defendant further contends that Ruiz should file suit against Mrs. Trolle and not against Trocchiano, and that Mrs.. Trolle in turn should later file a suit against Trocchiano. Such a procedure would not be in accordance with the agreement which Trocchiano made with Mrs-Trolle and which she in turn with his authorization communicated to Ruiz, and it. would result in a multiplicity of suits, a. practice which is always condemned by the -courts.

“I believe that both in law and in equity and justice the commission in this case should be divided equally between Troc-chiano and Ruiz in accordance with their agreement and with the universal custom prevailing in New Orleans. Any other disposition of the case would -result in an unjust enrichment of Trocchiano at the •expense of either Ruiz or Mrs. Trolle, or both. There was only one sale; only one •commission should be paid; and that commission should be divided equally between the two cooperating agents.

“At the conclusion of plaintiff’s case, and .again at the conclusion of the entire case, the defendant filed an exception of no right ■of action based on the contention that the plaintiff had not alleged and 'had not .proved that he was a duly licensed broker •as required by law.

“It has been held on several occasions 'both by the Supreme Court and the Courts •of Appeal that where an agent sues for •commissions, he is not required to allege •or prove the payment of his licenses; his failure to have a license being a matter of •defense to be set up and proved by the defendant. Stanford v. Bischoff, 159 La. 892, 106 So. 371; Viguerie v. Davis, 5 La.App. 77; Layne v. Henderson, 9 La.App. 452, 121 So. 313.

“The exception therefore is not well-founded. However, in the interest of justice, I reopened the case in order that both' •plaintiff and defendant might offer proof with respect to the payment or nonpayment •of plaintiff’s licenses. Defendant offered no proof, but plaintiff produced his licenses for the years in question. There is therefore no merit in this defense.

“There will foe judgment in favor of ■plaintiff and against defendant for one-half of the total commission paid on the sale in •question, that is, for the sum of $480, with ■legal interest from the date of judicial •demand until paid, and for all costs. As .there is no merit to the reconventional demand, that demand will be dismissed.”

We do not see that any benefit could be derived from our attempting to .add anything thereto. All findings of fact •are amply supported by competent evidence, and there appears to be no error, manifest •or otherwise, in the judgment.

The only complaint of appellant which we deem worthy of mention addresses itself to the action of the trial court in reopening the case, over appellant’s objection, for the purpose of admitting additional evidence respecting whether plaintiff was duly licensed.

As the judge has correctly pointed out, a real estate broker suing for his commission is not required to allege or prove the payment of his license; the nonpayment of the broker’s license is an affirmative defense which must be set up and proved by the defendant. The case was reopened to permit both parties to submit evidence respecting the payment or nonpayment of plaintiff’s license.

It is well settled that the reopening of a case is a matter lodged within the discretion of the court. Lafield v. Balzrette, La.App., 21 So.2d 156; Ingargiola v. Schnell, La.App., 11 So.2d 281; Camden Fire Ins. Ass’n v. Fontenot, La.App., 11 So.2d 99; Lampton Reid & Co. v. Fortenberry, La.App., 168 So. 36; Campbell & Co. v. Texas & P. Ry. Co., La.App., 152 So. 351; Bolinger v. Williams Bros., Inc., La.App., 134 So. 356; Wyatt v. Texas Pipe Line Co., 9 La.App. 248, 120 So. 123; Gerth’s Realty Experts v. Kracke, 156 La. 36; 100 So. 41; Roberts v. Louisiana Ry. & Navigation Co., 132 La. 446, 61 So. 522, Ann.Cas.1914D, 1207; Le Blanc v. Nolan, 2 La.Ann. 223; Stone v. Carter, 5 La. 448; Richardson v. DeBruys, 4 Mart., N.S., 127.

Such a ruling should not be disturbed unless there is a clear abuse of discretion, and in view of the above authorities we find that the judge in this case correctly and equitably exercised his discretion.

Defendant, as reconvenor, alleged that this suit was filed maliciously and without probable cause, and that he was damaged thereby to the extent of $5,000.00, for which he prayed judgment in reconvention. As we have found for the plaintiff, the recon-ventional demand must fall.

The judgment appealed from will be affirmed. ,

Affirmed.


author: HAWTHORNE, Justice.

text:
    214 La. 538
    HUGHES v. ENLOE et al.
    No. 38678.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    John G. Gibbs, of Natchitoches, for plaintiff-applicant.
    J. H. Williams, of Colfax, for defend-ánts-appellees.
   HAWTHORNE, Justice.

This is a suit by plaintiff, Henry Hughes, against his former employer, H. E. Enloe, and Enloe’s insurance carrier to recover compensation for permanent total disability under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended.

The district court awarded plain-tiff judgment under Section 8(1) (d) (15) of the act [Act No. 242 of 1928, p. 358] for 50 per cent of 65 per cent of his weekly wages of $20.00 not to exceed 133 weeks from May 30, 1945, compensation having been paid for total disability for 17 weeks prior thereto.

On appeal by plaintiff the Court of Appeal, Second Circuit, found, as did the district court, that plaintiff was entitled to compensation under this section of the act, but amended the judgment so as to reduce the amount of compensation to 35 per cent of 65 per'cent of his weekly wages of $20.00. The judgment of the lower court was affirmed insofar as it allowed plaintiff $48.00 for expenses incurred by him, and also insofar as it taxed as costs an expert’s fee of $25.00.

The sole question presented is whether plaintiff is entitled to compensation for permanent total disability under Section 8 (1) (b) of the compensation act as prayed for in his petition — that is, 65 per cent of his weekly wages of $20.00 during the period of disability, not, however, beyond 400 weeks- — -, or entitled to compensation for -the permanent partial loss of the use of a hand under Section 8(1) (d) (15), as awarded by the district court and the Court of Appeal.

It is now well established and firmly fixed in our jurisprudence that a disability to do work of any reasonable character is deemed total within the intendment of Section 8(1) (b) of the law whenever it appears that the employee due to the injury is unable to perform work of the same or similar character as that which he was accustomed to perform. Knispel v. Gulf States Utilities Co., Inc., 174 La. 401, 141 So. 9; Barr v. Davis Bros. Lumber Co., Ltd., 183 La. 1013, 165 So. 185; Stieffel v. Valentine Sugars, Inc., et al., 188 La. 1091, 179 So. 6; Washington v. Independent Ice & Cold Storage Co. et al., 211 La. 690, 30 So.2d 758.

Plaintiff, while assisting in the loading of logs on trucks for defendant H. E. Enloe, the owner and operator of a sawmill in Bienville Parish, received an injury to his right forearm which resulted in some fibrosis of the tendons and muscles of this arm. Because of this fibrosis plaintiff has a 25 to 35 per cent limitation of flexion in the four fingers of his right hand, and this condition is admitted to be permanent. Due to this injury he is unable to close his hand completely and has lost the power to grip, being unable to grasp firmly any object such as an ax, a rope, a canthook, or other tools which he had formerly used as an employee of defendant herein. This condition of the muscles of plaintiff’s right forearm causes him to suffer pain, and his physician testified that a fibrotic muscle or tissue is often quite painful due to the fact that nerve tissue may be bound up in the fibrosis.

From these facts we must now dete'r-mine whether as a result of that injury plaintiff is unable to perform work of the same or similar character as that which he performed before the accident. Prior to the time of the injury, plaintiff worked as a “swamper” in logging operations, cutting logs, driving teams, loading logs on trucks, and was also engaged in farming. The evidence shows that after the injury he could not perform the work required of him as a swamper and was not reemployed by the defendant Enloe, and that he attempted to harvest a cane crop on a small tract of land, but due to the condition of his hand it took him one week- to strip the amount of cane that he formerly could strip in one day.

Plaintiff having lost power to grip and hold the tools necessary to perform the work which he was accustomed to perform, it follows that he is unable ány longer, due to this permanent injury, to perform work of the same or similar character as he was accustomed to perform prior to his injury, and therefore, in our opinion, he is entitled to compensation for permanent, total disability.

For the reasons assigned, the judgment of the Court of Appeal is reversed insofar as it denied to plaintiff his claim for compensation for permanent and total disability, and it is now ordered that he be awarded compensation of 65 per cent of his weekly wages of $20.00 not to exceed 400 weeks, less a credit of compensation previously paid during 17 weeks; in all other respects the judgment of the Court of Appeal is affirmed; defendants to pay all costs.

O’NIELL, C. J., is of the opinion that the Judgment of the Court of Appeal is correct.


text:
    214 La. 548
    HARRELL v. CROW et al.
    No. 38339.
    Supreme Court of Louisiana.
    Dec. 13, 1948.

      Dhu Thompson, of Monroe, for defendants-appellants.
    Anders & Anders, of Winnsboro, for plaintiff-appellee. *
   HAWTHORNE, Justice.

In the instant suit plaintiff-appellee, Mrs. Johnnie Jessana Raburn Harrell, seeks an injunction restraining and enjoining the defendants-appellants, Mrs. Viola Crow and Clint Harrell, from proceeding any further in a suit to foreclose a mortgage by execu-tory process, and the sheriff of Caldwell Parish from selling her undivided one-half interest in a tract of land described in the mortgage, situated in that parish, containing approximately 145 acres, which belonged to the community which had existed between plaintiff-appellee and her deceased husband, J. N. Harrell.

In a separate suit appellants herein, Clint Harrell and Mrs. Viola Crow, had applied for, and secured, an order of executory process, alleging in their petition that the deceased J. N. Harrell was indebted to them in the sum of $2000.00, as evidenced by a promissory note for the same amount, secured by a mortgage executed by the deceased on the above mentioned 145 acres of land, and that they were bona fide holders and owners for value and before maturity of this note. The foreclosure of this mortgage was by executory process which plaintiff herein now seeks to enjoin insofar as it operates against her undivided one-half interest in the property.

In the present suit Mrs. Johnnie Jessana Raburn Plarrell, as a basis for the injunc-tive relief prayed for, alleges that the $2000.00 note secured by the mortgage was executed by her deceased husband as a shield and screen against his creditors, who were threatening him with various lawsuits, and that it was not a valid or bona fide transaction; that there was no consideration for the $2000.00 note; that it was obtained by the plaintiffs in the executory proceedings at a time when the deceased was mentally incompetent; that they held the note without any right or title whatsoever and without consideration of any kind, and, further, that the note did not represent an obligation of the community which existed between her and her deceased husband.

In the alternative plaintiff alleges that, in the event the court should deny to her in-junctive relief, she, as surviving spouse of a deceased beneficiary, is entitled to the benefits of the homestead exemption provided for in, Section 1 of Article 11 of the Louisiana Constitution of 1921, as amended.

After trial on the merits the district court rendered judgment denying plaintiff’s demand for an injunction, and ordering and decreeing that the right of plaintiff to a homestead exemption on the property seized under the executory process be recognized, and further decreeing that the sale of the property should be null unless the property brought in excess of $4000.00, and that, in the event it brought in excess of that sum, the sum of $4000.00 be paid to plaintiff, Mrs. Harrell, in settlement of her homestead claim without the deduction of any costs.

From this judgment defendants have appealed, contending in this court that the lower court erred in recognizing the homestead claim of Mrs. Harrell and in establishing and fixing her right thereunder.

Plaintiff-appellee, Mrs. Harrell, reiterating her arguments made in the lower court, has answered the appeal, urging that that court was in error only insofar as it denied her injunctive relief. She further pleads the prescription of four and 10 years against the claim of defendants, but evidently this plea has been abandoned, as no mention is made of it in her brief, nor does she advance any argument or cite any authority in support thereof.

J. N. Harrell was married twice. Appellants, Clint Harrell and Mrs. Viola Crow, are children of his first marriage. Harrell married plaintiff-appellee, his second wife, on December 12, 1901, and they lived together until his death in June, 1944. The property described in the mortgage which defendants-appellants are seeking to have foreclosed was acquired by their father, J. N. Harrell, according to the testimony, in the fall of 1926, during his second marriage, and belonged to the community of acquets and gains which existed between him and his second wife.

Our examination of the testimony and evidence adduced at the trial in the lower court convinces us that there is no merit in plaintiff’s contention that there was no consideration for the$2000.00 note and that the execution of the note and mortgage was not a valid and bona fide transaction, or in her allegation that the deceased mortgagor was mentally incompetent and that these defendants had no right or title to the note.

On the other hand, the record conclusively shows that the $2000.00 note dated October 5, 1938, secured by the mortgage which these defendants are seeking to foreclose, was delivered to them under instructions of their father sometime in 1943 for the sole purpose of repaying and reimbursing them for funds of theirs used and expended by their father with their consent. The defendants inherited from their mother an undivided one-half interest in certain real property situated in the Parish of Union, which had belonged to the community of the first marriage. Subsequent to their father’s second marriage, oil and gas leases were granted covering this land, timber was sold therefrom, 'and in due course the land itself was sold. The proceeds of these various transactions, including delay rentals paid under the leases granted, were retained by defendants’ father, and the $2000.00 note represented the father’s indebtedness to these children as a re'sult of these transactions.

Appellee contends that the lower court erred in refusing to enjoin the sale of her undivided one-half interest in the property, averring that the note does not represent an obligation of the community which existed between her and her deceased husband. There is no merit in this contention under the pronouncement in Succession of Waechter, 131 La. 505, 59 So. 918, 920, as follows:

“ ‘Money belonging to a child of the father by former marriage, received by him during the second marriage, is a debt of the second community, and it bears interest from the date at which it was so received, and such community is liable for both the principal and interest of the debt.’ ” See also Succession of Boyer, 36 La.Ann. 506. Appellee has not cited or called to our attention any pronouncement of this court contrary to the rule quoted above.

Prior to the execution of the $2000.-00 note and until the death of J. N. Harrell, he and his second wife actually lived and resided on the property described in the mortgage which defendants are seeking to foreclose, and his surviving spouse continued to make this property her home. Without question the debtor, J. N. Harrell, could have claimed, and under such claim have been entitled to, the homestead exemption under Article 11, Section 1, of our. Constitution against the debt evidenced by the $2000.00 note, for the reason that under the testimony and evidence he came squarely within the provisions of this article. His surviving spouse is also entitled to the’benefit of the homestead exemption, as the third paragraph of the article provides that: “The benefit of this exemption may be claimed by the surviving spouse, or minor child or children, of a deceased beneficiary.” This court in Succession of White, 170 La. 403, 127 So. 883, 884, in discussing this provision of the Constitution said: .

“It cannot be disputed that the husband of the claimant herein, if he were living, could successfully claim the homestead exemption. Therefore it would be a strained and unnatural construction of the constitutional declaration to hold that his death deprived his widow, to whom he owed the high moral and legal duty of support, of the benefit of the exemption. The whole theory of the exemption of the homestead is that the obligation of the debtor to those whom he owes the duty to support is a higher obligation than the payment of his debts. The purpose of the framers of the law was to secure a home beyond the reach of financial misfortune, around which gather the affections of the family; the greatest incentive to virtue, honor, and industry. Hebert v. Mayer, 48 La.Ann. 938, 20 So. [170] 171. This purpose would certainly be defeated if we should hold that the exemption in favor of a husband and father was not transmitted on his death to his widow and children. We cannot so hold. On the contrary, our conclusion is that it is only where a widow seeks to claim the homestead exemption against her own debts that she must do so as the head of a family or have a dependent or dependents; that these conditions are not required when she claims the exemption against debts contracted by her husband or by the marital community-debts against which the husband, himself, could have successfully claimed the exemption; that in such a case the exemption inures to her benefit as the surviving spouse upon the death of her husband, the original beneficiary under the constitutional article.”

The second paragraph of Article 11, Section 1, reads ás follows:

“Provided, that in case the homestead exceeds four thousand dollars ($4,000.00) in value, the beneficiary shall be entitled to that amount in case a sale of the homestead under legal process realizes more than that sum; if the sale does not realize more than that sum, over and above all costs and expenses, said sale shall be null and void.”

The judgment of the lower court recognizing Mrs. Harrell’s homestead claim and establishing and fixing her rights thereunder is therefore correct.

The defendants-appellants urge that ■the affirmance of the decision of the district court recognizing the homestead right of the widow as to the whole property will violate the rights of appellants as heirs of their father to their one-half interest in the property. This contention is without merit for the reason that the appellants appear before us in this proceeding only as creditors of the second community, and not as heirs of their father. Our decision herein merely recognizes the surviving spouse’s right to claim, and be allowed, the homestead exemption against the community debt which these appellants are seeking to collect, and cannot in any manner affect the right or interest of the appellants, whatever it may be, as heirs of their father in the property or the proceeds therefrom, since that right or interest is not at issue herein.

For the reasons assigned, the judgment appealed from is affirmed; appellants to pay all costs.


author: PONDER, Justice.

text:
    214 La. 552
    GREENE et al. v. WILLIAMS. GREENE et al. v. McQUEEN.
    Nos. 38730, 38731.
    Supreme Court of Louisiana.
    Dec. 13, 1948.

      Lindsay McDougall, of Covington, Gus A. Fritchie, of Slidell, and H. H. Parker, of Poplarville, Miss., for defendants-appellants.
    Ellis, Ellis & Lancaster and James W. Ellis, all of Covington, for plaintiffs-ap-pellees.
   PONDER, Justice.

In these consolidated suits the plaintiffs, owners of a large tract of land located in St. Tammany Parish, seek to have the time limit for the removal of timber under a certain deed to be decreed expired and to enjoin any further cutting or removal of timber from the land. Exceptions of no cause and no right of action were interposed by the defendants based on the ground that the time limit for the removal of the timber was fixed in the timber deed at twenty years, which were overruled. On the trial of these suits'the lower court gave separate judgments decreeing that the time limit for the removal of the timber had expired under the terms of the timber deed and enjoined the defendants from cutting and removing timber from the land. The defendants have appealed.

On May 25, 1937, William C. Forbess, who was then the owner of the property, conveyed 'by deed all the standing and fallen timber on the property from twelve inches and up to Fred W. Renners, Refiners conveyed the timber to the Natalbany Lumber Company, Ltd. on December 23, 1941. The Natalbany Lumber Company, Ltd. deeded the timber tó H. A. Powell on December 19, 1941. Powell conveyed a portion of the timber to G. H. Williams on August 3, 1944 and the remainder to Lorett McQueen on August 10, 1944.

The defendants’ titles flow by mense conveyances from the original timber deed from Forbess to Reimers of May 25, 1937. Consequently, this original contract of sale must be construed in order to determine whether the time limit for the removal of the timber has expired. The pertinent provisions of this contract are as follows:

“(a) All such rights, ways, privileges, •servitudes and easements in, on, over and upon the said lands hereinabove described, as may be useful, convenient, or necessary for roads, tram roads, float roads, canals, railroads, skidders, or other equipment useful, necessary or convenient in cutting, manufacturing, conditioning, and removing timber and timber products from said lands and from other lands in the neighborhood, the timber upon which may be owned or controlled either by purchaser or by any company in which he is a stockholder, together with the right to build, construct, maintain, dredge and utilize canals, roads, tram roads, float roads, railroads and other facilities for -all of the purposes stated, all of which rights shall continue for the period of twenty (20) years from the date hereof, notwithstanding the termination of any or all other rights granted to purchaser hereunder.
“(b) All such rights, ways, privileges, ■servitudes and easements in, on, over and •upon the said lands hereinabove described, as may be useful, convenient, or necessary to establish, construct, maintain and operate logging camps and mills, and manufacturing establishments of all kinds, for the purpose of cutting, manufacturing, conditioning and removing timber and timber products of all kinds from said lands and from other lands in the neighborhood, the timber upon which may be owned or controlled either by purchaser or by any company in which he is a stockholder, these rights to continue for the period of forty-eight (48) months from the date hereof, hereinafter mentioned, plus any extension of said period which may be obtained by purchaser under the conditions hereof or otherwise.
“The purchaser is hereby granted the full term of forty-eight (48) working months from the date, hereof in which to cut and remove the timber purchased, it being understood that a working month is a month of thirty (30) working days, exclusive of Sunday, of ten (10) hours per day, during every day of which working month purchaser shall he able to log, remove and manufacture timber upon all of the property above described free from interference by mud, adverse weather conditions or high water in Pearl River or its tributaries. In case of such interference during any portion of any month, the forty-eight (48) month cutting period shall be extended for one additional day for each working day in which such interference may have occurred, plus such additional days as may be lost in withdrawing and replacing working forces. The said forty-eight (48) month cutting period shall likewise be lengthened: — (a) in case of strikes or other working conditions, either among purchaser’s working force or upon the railroads over which the logs are hauled, by a number of working days equal to those lost as a result of such strikes; (b) in case of the passage of any State or Federal laws decreasing the number of working hours in a working day or the number of working days in a working week by a corresponding additional number of working days.” '■

The appellants contend that the lower court erroneously overruled their exceptions of no cause and no right of action based on the ground that the time limit for the removal of timber was fixed in the contract at twenty years. They take the position that, when all the clauses in the original timber deed are considered by giving the words used therein their common and usual signification, by construing the contract in their favor and against the seller, and by giving effect to the construction placed on the contract by the parties to it, it was the intention of the parties to fix the time limit for the removal of the timber at twenty years. -Counsel has cited many authorities governing the construction of contracts whose -terms are uncertain and ambiguous. The authorities lend us no aid in construing this contract because the time limit for the removal of the timber is specifically fixed in the contract- itself and there is no ambiguity or uncertainty in its terms in this respect.

The evidencé shows that -at the time the original contract was entered -into Reimers was president -of the Natalbany Lumber Company, Ltd., which -owned -timber on adjacent lands. The provisions in the contract granting the purchaser rights of way, etc., for a period of twenty years was evidently placed therein for the purpose not -only of removing the timber from this land but that of adjacent lands owned and -controlled by the company with which he was connected. In fact, -it is stated in this provision of the contract that -such rights of way, etc., are granted for -the purpose -of removing timber from the land and adjacent lands. The -second provision in the contract undoubtedly was placed therein in order that the purchaser would in any event have forty-eight working months to remove the timber. The provision in the -contract fixing the time limit for the removal of the timber specifically fixes the time limit at forty-eight months with provisions granting additional time in cases Of strikes, etc., a-nd in case of the passage of any State or Federal laws decreasing working hours per day or working days per week. The provision fixing the time limit for the removal of timber contains no reference to a twenty year period and the provisions granting additional time undoubtedly are designed to take care of any time lost by reasons of strikes and the passage of such laws. The evidence does not disclose that any -time was lost because of strikes or on account -of the federal Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq.

On hearing of the merits, the trial judge arrived at the conclusion, after hearing the testimony of the witnesses, that logging operations could be conducted on the land in question for a period of seven months out of each year without the -interference of mud, adverse weather conditions or high water and, as one hundred and eleven months had expired -since the -contract had been entered into, that the defendant and their predecessors in -title had more than forty-eight working months in which to remove the timber. We have reviewed the testimony and find that the trial judge was amply justified in his finding of facts, and the record does not disclose any manifest error in his findings. As a matter of fact, the testimony discloses that timber operations were -conducted -over the entire land during a period of four years shortly after it was acquired and that during this period of time that these operations were carried on for a period of ten months each year.

The testimony discloses also that the timber has been removed from the entire tract of land on several occasions and that only a few scattered trees remain. thereon. The trial judge, after reviewing this testimony, concluded that under the holding of American Creosotc Works, Inc., v. Campbell et al., 172 La. 866, 135 So. 659, the privilege of removing the timber having 'been fully exercised by the vendees and their predecessors in title that they would not be warranted in removing any more 'timber from the land even though the time limit had not expired. Counsel for the appellants contends that the trial judge erred in considering this testimony because the plaintiffs did not plead the fact and based their suits solely on the ground that the contract had expired under its terms. The testimony was admitted without objection and the trial court took the position that it had the effect of enlarging the pleadings. While there are authorities to support the trial judge in this respect, it is not necessary for us to pass on the question for the reason we have concluded that the time limit fixed in the contract has expired under the testimony in this case.

For the reasons assigned, the judgments of the trial court in these consolidated cases are affirmed at defendants’, appellants’, costs.


author: PER CURIUM.'

text:
    KELLY et al. v. OZONE TUNG COOPERATIVE.
    No. 3034.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Writ of Certiorari Denied Feb. 14, 1949.
    Dalton J. Barranger, of Covington, and Deutsch Kerrigan & Stiles, of New Orleans, for appellants.
    Benj. W. Miller, of Bogaluisa, and Hugh Morrison, of New Orleans, for appellee.
   PER CURIUM.'

On October 15, 1948, within the delay period fixed by law, Act No. 16 of 1910, § 1, Dart’s Code of Practice Art. 9205, the appellants, James E. Kelly, Mrs. Sara Schwartz Kelly and Francis E. Bickford filed an application for a rehearing in this cause, contending that we erred in nine particular instances. After a thorough review of the record, we are unable to agree with the appellants that we have committed any errors in our finding of fact.

On November 4, 1948, thirty days after the rendition of our decree and after the delay period as fixed by the law had well ■expired, the appellants filed “a supplemental and amended application for re-hearing”, in which they contended that we erred in five additional instances. In their original application, the appellants had requested permission to amplify their application. It has been held by the Supreme Court that that court is powerless to grant a litigant additional time, to apply for a rehearing and to supplement the grounds for a rehearing after the statutory delay for rehearing had expired in that it would be equivalent to granting additional time in which to file the application for rehearing. See Gautreaux v. Harang, 190 La. 1060, 183 So. 349, 374. We therefore decline to pass upon the supplemental and amended application.

Application for rehearing refused.


author: REGAN, Judge.

text:
    GORE PRODUCTS, Inc., Plaintiff and Appellee, v. TEXAS & NEW ORLEANS RAILROAD CO., Defendant and Appellant.
    No. 18904.
    Court of Appeal of Louisiana. Orleans.
    Jan. 10, 1949.
    Miller & Bloch, of New Orleans, for plaintiff and appellee.
    Chaffe, McCall, Toler & Phillips and Harry McCall, Jr., all of New Orleans, for defendant and appellant.
   REGAN, Judge.

A careful reconsideration and thorough analysis of this matter convinces us that our former opinion and decree are correct and that they should be reinstated.

For the reasons assigned, our original opinion and decree herein are reinstated as the final judgment of this Court.

Original decree reinstated.


text:
    BAYOU STATE MFG. CO. v. AMMEN.
    No. 7246.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Irving Ward-Steinman, of Alexandria, for appellant.
    Leo Gold and Donald M. Garrett, -both of Alexandria, for appellee.
   KENNON, Judge.

This case is before us on an appeal by plaintiff from a judgment of the District Court sustaining an exception of no right or cause of action.

Plaintiff’s ‘petition sets forth that on March 25, 1947, it signed a contract with R. Leo Ball to furnish certain doors, windows and other mill work for a lump sum of $518.00; that the work was completed and the material delivered and accepted as satisfactory on April 28, 1947.

The plaintiff further alleged that defendant A. K. Ammen assumed this obligation of R. Leo Ball by virtue of his becoming a party to the letter-contract copied below:

“Alexandria, Louisiana May 22nd, 1947
“Mr. A. K. Ammen Bettes Building DeSoto Street Alexandria, Louisiana
“Dear Mr. Ammen:
“In line with our discussions of yesterday you are familiar with my financial condition and doubtless realize that under the circumstances it would be impossible for me to continue in the Contracting business or to complete the various contracts which you are financing.
■ “I need not particularly itemize these contracts, but I have reference to every uncompleted contract on which you have advanced money.
“Since you are able to complete these contracts, please accept this letter as my written authority for you to go ahead and complete the contracts at the earliest possible time as you in your judgment may see fit and apply any amount due me under the contracts toward the liquidation of my indebtedness to you.
“This will be your authority to receipt for me for the amounts due me and to give full discharge for the payment of same and I authorize you to use your discretion in any and all matters pertaining to this work.
“Thanking you, and with kindest regards, I am,
,Yours very truly,
/s/ R. Leo Ball
R. Leo Ball, Owner Ball and Ossenbeck Contractors
“Accepted:
/s/ A. K. Ammen A. K. Ammen”

The petition further stated that the effect of the above contract was to release R. Leo Ball from any further contractual duties in connection with the operations financed by the defendant, and that “defendant then and there assumed all of the obligations, duties and operations of R. Leo Ball, et al,” and that a valuable consideration was given by R. Leo Ball, to-wit, a second mortgage in the sum of $4000.00 upon his home.

In further substantiation of their claim that defendant Ammen was responsible to plaintiff for the $518.00 debt due for materials furnished Ball, plaintiff’s petition contained the following paragraphs :

“That altho R. Leo Ball et al, held themselves forth as contractors, they were in fact agents 'of the defendant; that it was the practice of R. Leo Ball et al, to receive invoices for work done on the sub-contracts they gave out on jobs financed by defendant; that the various sub-contractors knew that R. Leo Ball et al had no financial reserve of their own to pay for said work, but they relied on the defendant to pay for same and had a right to rely on defendant to continue paying for same since defendant in the past had caused previous sub-contractors on jobs financed by him and assigned thru and by R. Leo Ball et al, to receive payment per their respective invoices.

“That, inter alia, the facts establishing the relation of principal and agent between defendant as principal and R. Leo Ball et al, as agent, are these: that as each subcontractor submitted his invoice, R. Leo Ball et al, would take said invoice to defendant ; that R. Leo Ball et al would sign a check as payor but defendant caused to be inserted the name of the payee and the amount defendant wished to pay payee on the invoice; that defendant would then cause these completed checks to be sent thru the United States mail to the various creditors of R. Leo Ball et al acting in behalf of defendant; that defendant would then cause to be deposited in the Rapides Bank & Trust Company, the paying bank, a sum sufficient to cover the checks he authorized to be sent to the creditors; that the bank account was in the name of R. Leo Ball et al, but at no time did R. Leo Ball et al have any control over the same independent of the wishes, instructions and actions of the defendant.

"That R. Leo Ball et al told creditors that the various jobs he was subcontracting to them were being financed by the defendant, and that defendant did pay for work done on various lettings, sub-contracts, jobs and work done for his account; that defendant honored the contractual obligations of R. Leo Ball et al until on or about April 28, 1947, when the instant plaintiff’s demand for five hundred and eighteen dollars ($518.00) was ignored; said sum being justly due and undisputed. Amicable demand having failed plaintiff brings this action.”

Plaintiff in brief calls our attention to the fact that the petition in paragraphs six and seven sets forth that Ball, in the carrying out of his contracts, acted as agent for defendant Ammen.

For the purpose of passing on an exception of no cause or right of action, all well pleaded allegations are accepted as true. Plaintiff in petition has set forth that it has furnished more than $500.00 w.orth of material, etc. to R., Leo Ball, et al; that R. Leo Ball, et al were agents of the defendant and that therefore defendant is responsible for the debt contracted by Ball. These allegations are sufficient to set forth a cause of action against the defendant, unless the other allegations of the petition are such as to plainly and affirmatively show that the relationship of principal and agent did not exist between defendant and R. Leo Ball.

We agree with the District Court in finding that the letter-contract attached to the petition and the other facts set forth in the petition are not sufficient to establish the relationship of principal and agent and that — granting that plaintiff could establish these facts — it would nevertheless not be entitled to judgment against defendant. However, we must take notice that paragraph seven of plaintiff’s petition sets forth the circumstances enumerated as being facts “inter alia” which established the alleged relationship of principal and agent. The petition does not affirmatively show that plaintiff cannot establish this relationship by competent evidence of other facts not set forth in the petition.

As stated in West v. Ray, 210 La. 25, 26 So.2d 221, the general tendency is to be reasonable and even liberal in construing pleadings, with a view of the prompt disposition of the case on its merits and for the courts not to favor dismissal of a petition which adequately states a cause of action because additional information has been included in the petition which makes it probable — but not certain — that plaintiff cannot sustain the cause of action he has pleaded against the defendant.

For the reasons assigned, the judgment appealed from is set aside and the case is remanded for further proceedings in accordance with law. Gosts of. appeal to be paid by defendant. Other costs to await the final outcome of the litigation.

TALIAFERRO, KENNON and HARDY,, JJ., sitting.