author: WESTERFIELD, Judge.

text:
    LAGONDA CORPORATION v. CANCASCI.
    No. 17646.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1941,
    Daniel A. McGovern, Jr., of New Orleans, for appellant.
    Fontaine Martin, Jr., of New Orleans, for appellee.
   WESTERFIELD, Judge.

This is a suit for damages for breach of a written contract of lease. The original claim amounted to $313.50, but in order to bring it within the jurisdictional limit of the First City Court $13.51 was remitted. The Lagonda Corporation, through its agent, Oliver L. Clark, leased the premises, No. 1635 First Street, for a term of eleven months and ten days to George Lewis and Alfred Cancasci, for a monthly rental of $45. It was agreed that the failure to pay any installment of rent would cause the rent for the unexpired term to become due and exigible. The lessees and their families vacated the premises on March 21st, 1941, and no rent was paid thereafter. At that time six months and ten days remained of the term of the lease, consequently, under the acceleration clause and another provision of the lease, there was due plaintiff the sum of $285, plus attorneys’ fees of ten per cent., or $313.50. One of the lessees, George Lewis, was not sued, the explanation being that he had entered the service of the United States as a member of its armed forces under the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., though reservation of plaintiff’s right to sue Lewis is made in its petition.

In his answer, the defendant, Alfred Can-casci, denied that there was anything due under the lease, because, he avers, it had been cancelled in an oral agreement entered into between the lessee and Oliver L. Clark, the representative of the plaintiff corporation, the lessor, just prior to lessees’ removal from the premises.

During the trial below counsel for plaintiff announced that the Lagonda Corporation had entered into a new lease with another tenant beginning May 1st, 1941, at the same rental, and that, consequently, “there is at issue before the court now, only the question of the defendant’s liability, vel non, for the rental for the period between March 21st, 1941, through April 30th, 1941, inclusive, together, of course, with interest and attorneys’ fees”, whereupon the court asked counsel whether all the balance of the rent sued for was remitted and the answer was in the affirmative.

The court then considered the evidence ¡bearing upon the oral agreement cancelling :the written lease, and, being of the opinion •that the defendant had failed to establish the oral contract relied upon, proceeded to render judgment in favor of plaintiff in the sum of $61.50, representing the rent for one month and ten days, plus $25 attorneys’ fees (the minimum fixed by the lease). From this judgment the defendant has appealed. The plaintiff has answered the appeal alleging that the new tenant, since the trial of the case below had defaulted in the payment of his rent, causing the plaintiff to lose an additional two months’ rent, and praying that the judgment be amended so as to reserve its right to sue for this additional rent or any further damages it might suffer in another proceeding. To this answer the defendant countered by filing an exception of no cause of action.

We know of no precedent for the filing of an exception of no cause of action addressed to an answer to an appeal, nevertheless, the issue which it seeks to raise is properly before us by reason of the answer to the appeal.

As we have pointed out, the plaintiff in its answer to the appeal alleged that it had urged the lower court to reserve its rights as against the defendant for any further damages due to the default in the lease contract, but counsel is mistaken. Perhaps, he is referring to the remission of rent which he claims was misconstrued by the court below. If so, we answer that the remission was unequivocal, unqualified, clear and concise.

We shall first consider the question of whether or not there was an oral agreement cancelling the lease and we have no difficulty in reaching the conclusion that the record fails to show any such agreement.

It is well settled that when a tenant defaults in the payment of his rent the landlord is entitled to such damages as may result from the default, including the loss which might result from the failure of a new tenant to pay the rent for which the original lessee was bound.

In Bernstein v. Bauman et al., 1930, 170 La. 378, 127 So. 874, 877, the plaintiff had originally leased certain premises to L. J. Bauman, Wm. H. Baumann and K. C. S. Drug Company and, subsequent to their default had re-leased the property to a man by the name of Gordon for a smaller rental. The plaintiff wrote defendants a letter announcing the fact of the rental of the property for a smaller amount and demanded the difference of $45 per month. Subsequently, Gordon defaulted and defendants, when sued for additional rent, claimed that the plaintiff was estopped by his letter,, in which only the difference was claimed, but the court said:

“On February 10, 1928, plaintiff [lessor] addressed a letter to the defendants [lessees] informing them that he had leased the premises to A. E. Gordon at the rate of $105 per month, and that he would expect them to pay him the difference between that rental and the rental expressed in their lease, or, $45 per month. Defendants pleaded that by reason of the letter, plaintiff was estopped from ■demanding judgment against them for more than $45 per month.
“Plaintiff did not lease the premises to Gordon until defendants had abandoned them and after he had made due demand •upon defendants. He took possession of the premises and leased them to Gordon as a negotiorum gestor for defendants and for the purpose of minimizing the damage. There is no reason in law or equity why the defendants, who by reason of their abandonment of plaintiff’s premises without lawful cause are bound for the rent of the whole term, should not sustain the loss in the event of a default on the part of the new tenant.”

See, also, Sliman v. Fish, 1933, 177 La. 38, 147 So. 493, and Weil v. Segura, 1933, 178 La. 421, 151 So. 639.

In the Fish case, supra [177 La. 38, 147 So. 495], the Supreme Court said: “Where the lessee abandons the premises, the lessor may rent the property to other tenants, and does not thereby cancel the lease, or impair his recourse upon the lessee. He is, however, equitably bound to credit the lessee for the amount he received from the new tenants. Holden v. Tanner, 6 La.Ann. 74.”

Here, however, the question is not now the quantum of damages suffered as a result of the original default by defendant on the lease contract, but the validity of the judicial waiver or remission of the rent during the course of the trial below.

Article 2291 of the Revised Civil Code reads as follows:

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding'.
“It amounts to full proof against him who has made it.
“It cannot be divided against him.
“It cannot be revoked, unless it be proved to have been made through an error in fact.
“It can not be revoked on a pretence of an error in law.”

Counsel takes the position that his action in remitting the balance of the rent was based upon an error of fact and, reliance is placed upon the following articles of the Revised Civil Code:

Article 1893. “An obligation without a cause, or with a false or unlawful cause, can have no effect.”

Article 1897. “The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a future marriage is void by this rule, if the marriage do not take place.”

The error of fact which counsel claims misled him is the failure of the second tenant to pay his rent, or, as he puts it in his brief, “both parties to this proceeding believed at the time of trial — erroneously, it now appears — that the new tenant would continue to fulfill his obligations”. It is pointed out that the plaintiff was under an obligation to minimize his damages and that in renting the property to a second tenant, he was discharging that obligation. It is true that a landlord is legally obligated to minimize his damages by endeavoring to obtain a new tenant in the event of a default by the original tenant. Bernstein v. Bauman et al., supra; Sliman v. Fish, supra.

As to the error of fact, there was no existing fact concerning which counsel was mistaken, or of which counsel was not informed. He knew all that there was to be known at the time of his remission of the balance of his client’s claim, which was, that the defendant had defaulted and that he had a new tenant. He was not obliged to assume responsibility for the continued payments of the rent by the new tenant. He need not. have made any remission at all. He might have called the court’s attention to the fact that the property was rented in order that the court, in its judgment, could credit the defendant with the amount of the rent which he should collect from the second tenant, or he could have asked for a reservation of his right to sue for any rent which the second tenant failed to pay. He did neither. With all the facts before him, he chose to accept the new tenant at face value and assume the risk of the new tenant paying his rent. He not only made a voluntary remission, or waiver, of the balance of the rent, for which the new tenant had obligated himself, but repeated it in response to a question which the trial judge asked, without any equivocation, reservation, or qualification.

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

Affirmed.


source: Caselaw Access Project

author: HAMITER, Judge.

license: Public Domain

text:
    ROSEBERY et al. v. L. O. BRAYTON & CO.
    No. 6255.
    Court of Appeal of Louisiana. Second Circuit.
    April 4, 1941.

      Kennon & Kitchens, of Minden, and H. B. Barret, of Shreveport, for appellant.
    Campbell & Campbell and R. D. Watkins, .all of Minden, for appellees.
   HAMITER, Judge.

Defendant herein, L. O. Brayton & Company, during the month of September, 1939, undertook the cutting and clearing of a right-of-way and the erection of a light and power line through Webster Parish, Louisiana. This project traversed a tract of land belonging to A. J. Burns, Jr., who had previously granted permission therefor; and it lay immediately east of and parallel to the Minden-Shongaloo gravelled highway that likewise crosses said land and courses in a north and south direction. West of the Burns property are tracts owned by William B. Rosebery and H. Grady Slack.

In connection with the clearing operations, brush was deposited on the stumps existing along the right-of-way, and on Tuesday morning, September 19, 1939, it was fired by defendant’s employees.

The following Thursday afternoon, or on September 21, 1939, the timber, underbrush and grass lying immediately west of the gravel road a,nd opposite the brushheaps became ignited; and from this point fire spread across the lands of Burns, Rosebery and Slack.

The three named persons bring this suit to recover the property damage occasioned them by the fire. They urge separate claims, but make joint allegations of fact in the petition attributing negligence to defendant as the cause of their loss.

Additionally, the said Rosebery asks damages for timber that defendant allegedly cut and removed from his land without permission and for the asserted destruction by it of certain fences and a crop of sugar cane.

Defendant, in its answer, “denies all negligence in the premises, and denies all liability for any damage allegedly sustained by the plaintiffs.” No special defense is therein urged.

The district court, after a trial of the merits, condemned defendant to pay to Rosebery the sum of $232, to Burns $200 and to Slack $27.

Defendant prosecutes this appeal. It has been answered by plaintiffs who pray for an increase in the mentioned awards.

Appellant insists that the mentioned decision is erroneous for the following reasons :

1. The evidence discloses neither negligence of defendant nor causal connection between its acts and the claimed damage.

2. The claims of Burns and Rosebery are barred by their contributory negligence.

3. The method of assessing the amount of timber damage was improper.

The evidence, we think, preponderate^ supports the trial court’s finding of fact that the damaging conflagration resulted from the fires kindled on the right-of-way on Tuesday, September 19th. These fires, it appears, were not extinguished by the employees on their leaving the scene Tuesday evening, although some efforts to do so were made, and the stumps that were beneath the brushheaps continued to burn until the timber west of the highway and opposite that point was observed Thursday afternoon as being afire. At this time the wind was blowing from the east toward the west, sparks travelled with it, and fire was raging on both sides of the gravelled road.

It is a general rule that a person who intentionally kindles a fire ■ on his premises for a lawful purpose is liable for damages resulting therefrom if he is negligent either in starting it or in guarding against its spread. A duty devolves upon him to use ordinary or reasonable care in commencing the fire and in managing and preventing the spreading of it. This care must be commensurate with the danger reasonably to be anticipated and is dependent upon the circumstances of each particular case. 45 'Corpus Juris, verbo Negligence, Section 272; 22 American Jurisprudence, verbo Fires, Sections 15 and 16; Boudreaux v. Ledet, 4 La.App. 415.

Negligence, in our opinion, attended the efforts of the employees of defendant. The right-of-way on which the numerous fires were kindled Tuesday morning coursed through lands that were heavily wooded and covered with considerable grass and small growth. A severe drought was then in progress, and necessarily the ground and its coverage were extremely dry. Late Tuesday evening the workmen left the scene and did not thereafter return. According to their testimony, water was poured on the burning stumps before their departure, thus ending the fires; the proof is conclusive, however, that no extinguishment thereof was effected. Disastrous consequences of these fires, in view of their locations and the other mentioned circumstances, could reasonably have been anticipated by the workmen; and it seems to us that care commensurate with the probable danger was not exercised. At least one or more of them should have returned the following morning for inspection purposes.

Contributory negligence on the part of Rosebery and Burns, which is urged in connection with the second assignment of error, was not pleaded in the answer; however, appellant argues that evidence relating to a defense of that character was admitted without objection during the trial of the case and that the pleadings have thereby been effectively enlarged so as to authorize consideration of such a plea. If it be assumed that an enlargement of the pleading has resulted, we think that the named plaintiffs are not shown to have been contributorily negligent.

The evidence relied on by defendant, in bar of their rights to recover, is the admission of Burns that on Wednesday .morning he observed stumps afire on the right-of-way, and the testimony of Rose-bery that he saw the right-of-way fires at approximately 11:30 o’clock Thursday morning, which was some few hours before the occurrence of the highway crossing ; and in this connection the argument is advanced that those claimants should have made efforts to extinguish the blazes witnessed. It was not encumbent on Rosebery and Burns, as we appreciate the situation, to exert themselves as suggested. The fires at the stated times were small and confined to the right-of-way, and plaintiffs had the right to assume that defendant’s employees, who had commenced them, would soon return there and take proper precautions to prevent the spreading thereof.

The case of W. D. Hughes v. Lyon Lumber Company 2 La.App. 365, cited by defense counsel, seems to be inapplicable here. The facts of the two cases are distinguishable. In that cause the conflagration was raging when plaintiff noticed it, although some distance from his property, and was being fanned by the wind. Herein only burning stumps were observed by the claimants.

Considerable difficulty has been experienced by us in our consideration of the matter of quantum. The evidence on this question is not so satisfactory as it might be, and we are favored with no written opinion of the trial judge disclosing the composition of the awards granted. The briefs of counsel and parts of the record indicate, however, that the damages allowed the several claimants were for injuries to their respective properties caused by the fire, but not including the timber growth below pulp wood size or seedlings, and additionally to Rosebery for the timber cut without his permission and for the cane destroyed.

Defendant argues that the damage to the saw logs should have been fixed in accordance with the estimates given by its experts, these having been made with the aid of the Scrihner-Doyle scale, which argument is not replied to by plaintiffs; and plaintiffs contend, under their answer to the appeal, that the court erred in disallowing damages for destruction of their seedling timber, to which contention defendant makes no reply.

In support of the mentioned position of defendant, it cites Section 1 of Act 263 of 1918: “What is known as the ‘Scribner-Doyle’ rule or scale shall be the standard rule for the measurement of sawlogs in this State.” We find it unnecessary to pass upon the applicability of this statutory provision to the instant case, for it does not clearly appear that the use of the Scribner-Doyle scale by the defense experts was responsible for the considerable difference in measurement existing between their estimates and those given by the experts of plaintiffs. All were timber estimators of much experience, and each did his work independently of the others; and more than likely their disagreement as to which trees should be considered to be damaged and estimated caused the wide divergence of views. In fact there was a difference of opinion in this respect between defendant’s two experts.

The trial judge obviously accepted the estimates furnished by plaintiffs’ witnesses, for they seem to support the awards made; and we cannot say that error was thereby committed.

Plaintiffs complain of the court’s holding that damages for the seedlings destroyed are not recoverable, and with reference to the complaint the following is said in the brief of their counsel: “In this holding, we submit the court was in serious error and for that reason we have answered the appeal herein asking that the awards be increased to the amounts sued for. On the trial of the case it was proven by Mr. Jack Crane, a timber cruiser, buyer and forester of years experience, that there was approximately fifty acres of Mr. Rosebery’s young timber totally destroyed on which there were approximately four hundred stems (small trees from seedlings to below pulp-wood size) per acre; that there were approximately eighty acres of young timber running approximately five hundred stems per acre on the Burns’ tract which were totally destroyed; that there was approximately eighteen acres of young timber running approximately six hundred stems per acre on the Slack tract which was totally destroyed. In this testimony he was fully corroborated by Mr. A. L. Coffee, a timber estimator and cruiser of years experience.”

Recovery for the destruction of seedlings by fire is, in our opinion, supported by Section 5 of Act No. 90 of 1922, and by Ellis v. New Orleans Great Northern Railroad Company, 169 La. 797, 126 So. 64. The mentioned statutory provisions read: “That nothing in this Act shall be construed as affecting the right to damages. The liability of persons or corporations for all damages shall include the injury to young tree growth resulting from fires. The damage to such young growth shall be calculated as the expense of artificially planting and cultivating such small growth to the point of development at the time when the fire occurred.”

The proof in the record, however, is not sufficiently definite to permit a determination of the damage sustained by the seedlings of plaintiffs. As we appreciate’ the testimony of the expert Jack Crane, referred to in the above-quoted extract from the brief of plaintiffs’ counsel, his estimate regarding the number- of stems per acre on each tract included not only the seedlings but also trees furnishing saw logs and pulp wood. The witness Coffee fixed no specific number or qttantity. Under the circumstances, we think that plaintiffs’ demands respecting this item should be non-suited.

For the reasons assigned, the judgment insofar as it rejected plaintiffs’ demands for destruction of their seedling timber is reversed and set aside, and a non-suit of those demands is hereby decreed; in all other respects the judgment is affirmed.

Costs of both courts shall be paid by defendant.


author: DREW, Judge.

text:
    WEAVER v. MANSFIELD HARDWOOD LUMBER CO. et al.
    No. 6273.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1941.
    Rehearing Denied Nov. 28, 1941.
    See, also, La.App., 1 So.2d 103.
    W. T. Holloway, of Jonesboro, for appellants.
    John G. Gibbs, of Natchitoches, for ap-pellee.
   DREW, Judge.

Plaintiff instituted this suit for compensation alleging that he received an injury to his back in an accident while in the employ of the defendants; that said injury has rendered him totally and permanently disabled from the performance of any labor and prayed for judgment accordingly. He prayed for service and'citation on both defendants.

Personal service was made upon his immediate employer, H. D. Thomas, who was a subcontractor for defendant, Mansfield Hardwood Lumber Company of Louisiana, Inc., and service was made upon the latter by serving L. Harrell, manager of the Mansfield Hardwood Lumber Company in the parish of Winn. The suit was filed in Natchitoches Parish, Louisiana, and both defendants were domiciled in parishes other than Natchitoches.

Defendants filed pleas to the jurisdic-' tion ratione personae. Defendant Mansfield Hardwood Lumber Company, Inc., filed an exception to the citation alleging that its domicile was in Caddo Parish, Louisiana, and that its agent and officer for service of process was located in Caddo Parish, Louisiana; that L. Harrell is and was not qualified to receive service and citation and is a resident of Winn Parish, Louisiana. Both defendants also filed exceptions of no cause and no right of action.

On October 16, 1939, the lower Court sustained the exceptions to the citation and plea to the jurisdiction with leave to plaintiff to amend in each instance. The exceptions of no cause and no right of action were overruled. On application of the plaintiff, a rehearing was granted on the exception to the citation and the plea to the jurisdiction and, on the lower court’s own motion, a rehearing was granted on the exceptions of no cause and no right of action. These rehearings were granted on March 19, 1940.

The minutes of the court fail to show that the exceptions or the plea to the jurisdiction were ever retried'or passed upon by the lower court. The plea to the jurisdiction was, however, cured by plaintiff when he amended his petition and alleged that the accident complained of occurred in Natchitoches Parish, Louisiana.

On April 17, 1940, defendants filed their answers without first insisting upon a decision or ruling on the exceptions. By doing so the exceptions were abandoned.

Plaintiff was employed byJ the defendant, Thomas, a subcontractor of defendant, Mansfield Hardwood Lumber Company, Inc., at a wage of $2 per day for a six-day week. His work consisted of loading sawlogs onto gondola cars. At the time of the alleged accident plaintiff was “hooking tongs”. As we understand it, the logs were loaded by machinery, consisting of a power unit, a scaffold or tripod with pulleys. There is a cable from the power-unit which runs through the pulleys. On the end of the cable two ropes are fastened and on the end of each rope there is a metal hook called a “tong”. These tongs are fastened in the end of the log. The power is then applied by the power unit and the log is hoisted and swung over the car. When it has been safely landed, the tongs are disconnected from the log. To the tongs on each end of the log another rope is attached and an employee, one at each end, holds these ropes and guides the logs to their proper location on the car.

On the occasion of the alleged accident, the log was carried with too much force by the applied power and was swung over and beyond the car onto which it was to be loaded. On the side of the track where the gondola was being loaded there was a ditch three or four feet deep and five to eight feet wide. Plaintiff’s work required him to be on the opposite embankment of the ditch from the car. When the log went over the car, it jerked the rope plaintiff was holding. Before plaintiff could turn the rope loose, he was jerked .forward causing him to lose his balance. He did not fall but went forward down the embankment and across the ditch at a fast pace until he stopped his forward movement by bracing himself with his hands against the gondola car. It is very evident that the witnesses for defendants have attempted to minimize the occurrence and plaintiff’s witnesses attempt to magnify it. However, there is no dispute about such an occurrence taking place and that it was an unusual happening, as shown by some of the witnesses for defendants, who testified that they immediately asked plaintiff if he had hurt himself. They testify that he replied “no” or “hell! no.” He states that he replied, “I nearly broke my back”.

The witnesses for the defense and those for plaintiff differ as to the time of the occurrence, the former placing it at approximately 3 P. M. and plaintiff and his witnesses fixing the time at approximately S :30 P. M. Plaintiff contends he assisted in loading only a few logs after the accident and defendants contend that he assisted in loading two truck loads of logs. This difference of opinion is of little value as plaintiff does not contend he was totally disabled immediately after the accident.

We are convinced that the occurrence above related constituted an ac-' cident within the intendment of the Employers’ Liability Act of Louisiana (No. 20 of 1914, as amended), and that the accident could have caused the sacro-iliac sprain complained of by plaintiff. It is common knowledge and recognized by medical men who are familiar with back injuries that such an injury could occur from a slight jerk, awkward step or unexpected twist of the body. It does not always take a severe jolt or blow to the body to cause an injury to the back.

The serious question in the case is whether or not the accident above related caused the present disability which plaintiff is suffering or was it the natural result or culmination of an arthritic condition formerly existing in that region of the back and probably caused by two admitted former injuries?

Plaintiff suffered injuries to his back in the region of the sacrum and ilium in 1937 and in 1938 and settled both claims for compensation by compromise. The injuries suffered in those two accidents were to the left side of the back and the present injury is principally to the right. All the medical men admit this fact. They likewise admit that there was an arthritic condition existing in that region of the back and that it is possible for ¡arthritis to entirely disable plaintiff. It is clearly established that plaintiff’s back was weak and due to that fact was more susceptible to traumatic injuries than a normal one would have been. Most all of the physicians admit, when asked, that an accident such as happened in this case could accelerate and make more pronounced the weak condition existing in plaintiff’s back.

All of the doctors who testified for the plaintiff are confident that he is suffering from a sacro-iliac sprain on the right side of the back and some of the defendants’ doctors — especially Dr. Reed, of Oxford & Reed Clime — corroborate the finding of plaintiff’s doctors.

There is no question about plaintiff being disabled from performing manual labor at the time of the trial below and we are faced with these undisputed facts :

That plaintiff had been in the employ of defendants from the fall of 1938 until the date of the accident, June 14, 1939. During that time his duties were sawing logs and loading them on gondola0 cars. That on the morning after the accident he was unable to work and reported same to his employer and also requested to be taken to a physician. This request was not granted, but plaintiff found a way and did go on that day to a physician in Natchitoches, Louisiana. He was examined and his back strapped with adhesive tape. About two weeks later the same doctor fitted him with what he called a sacroiliac belt, which plaintiff has worn now for many months. He has not attempted to do any work since the date of the accident.

As a rule we look with great suspicion upon a case where the plaintiff has had several injuries to the same part of his body, but in this case the former injuries appear to have been on the left side while the present injuries are to the right side.

Several days after plaintiff had visited the physician of his choice and had knowledge that his back was in bad shape, he mailed a postal card to the Mansfield Hardwood Lumber Company demanding compensation and stating that he thought he was ruptured. He made no mention of the back injury. Defendants urge this to prove that plaintiff knew he had not injured his back on June 14, 1939. However, we accept the plaintiff’s explanation of this occurrence as satisfactory. He stated that he had reported the back injury to his immediate employer the morning after the accident occurred and saw no reason to report it again. That he had a burning sensation in his groin and thought he might be ruptured. He is corroborated in this respect bv one of the doctors who stated that plaintiff complained to him about the burning sensation in his lower abdomen. *

After all is said, the evidence is not as satisfactory as it might have been and there are numerous contradictions, but we do not feel justified, when taking it all together, in saying that the Judges of the lower court were in error in awarding plaintiff compensation for total disability.

The case was tried first by Judge Jones who awarded plaintiff compensation for a period not to exceed 300 weeks, finding him totally disabled but not permanently so. Because of an erroneous ruling regarding the medical examination of plaintiff, we remanded the case to the lower court, setting aside the judgment. When it was tried the second time, Judge O’Neal, of the First Judicial District Court, heard the case and awarded the plaintiff judgment for total and permanent disability for a period not to exceed 400 weeks. We cannot say there is manifest error in this judgment.

It therefore follows that the judgment is affirmed, with costs.


author: SIMON, Judge.

text:
    WALLACE v. MEYER.
    No. 17630.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1941.
    Rehearing Denied Dec. 15, 1941.
    J. L. Warren Woodville, of New Orleans, for appellant.
    L. R. Hoover, of New Orleans, for ap-pellee.
   SIMON, Judge.

The plaintiff, alleging that on November 26, 1940, while she was a tenant of defendant, Julius H. Meyer, in the premises No. 2503 Freret Street in New Orleans, she was injured by the fall of plaster from the ceiling of one of the rooms, brings this suit against defendant, as lessor and owner, and prays for judgment against him for $212.80. Though, in the body of her petition, she fixes her claim for damages in the sum of $262.80, which she itemizes to be $200 for her physical injuries, $50 for nervous and mental shock, and $12.80 for physician’s treatment and drugs, the prayer of the petition, which is controlling, fixes the total demand at $212.80.

In due course, the defendant answered, admitted the ownership of the building, but denied that plaintiff was a tenant therein. He specially denies the accident complained of or that the injuries alleged resulted from defects or vices-.in the building, and for further answer, avers that, if there was such an accident, it was attributable to a high windstorm, an Act of God, which absolves him from liability.

There was judgment below in favor of defendant and plaintiff has prosecuted this appeal.

We may at this time dispose of defendant’s denial of his relationship of landlord and tenant with plaintiff, because, as we have said in several recent cases, whether plaintiff was a tenant is of no importance. If her occupancy of the premises at the time of the accident was either as that of a tenant, or because of the right of occupancy of her mother and sister, Cora Mundy and Anita Wallace respectively, with whom she lived, and she was injured because of a defect in the building, defendant would be liable. If she was a tenant, defendant would be liable as a result of the obligations placed upon him by articles 2692-269S of the Civil Code. If she was a third person, defendant’s liability, as owner of the premises, would result because of the effect of Articles 670 and 2322 of the Civil Code.

Our holding in Hughes et al. v. Abate, 2 So.2d 68, 69, is as follows:

“ * * * Here, even if we could treat Elnora Hughes as not being a tenant, but only a third person rightfully on the premises, ’still she could hold Mrs. Abate liable — not under Articles 2692-2695, but under either Article 670 or 2322, for, under both of these articles an owner is rendered liable for an accident which has resulted from failure to keep his building in repair and, under the latter article, he is liable where an accident results from a defect in the building which ‘is the result of a vice in its original construction’. To state the matter very simply, an owner is liable to any person rightfully on or near the premises if, because of a defect, that person, being himself, without fault, is injured. Klein v. Young, 163 La. 59, 111 So. 495; Heath v. Suburban Building & Loan Association, La.App., 163 So. 546; Tesoro v. Abate, La.App., 173 So. 196; Morris v. Hava, La.App., 180 So. 216.”

There is, then, only one question which is presented, and that is one of fact, i. e., was there such an accident as charged, resulting in the injuries complained of.

In order to substantiate the averments of her petition, the plaintiff tendered the testimony of herself, her mother, and Dr. Richard P. Williams.

The plaintiff testified that, on the night of November 26, 1940, at about 2 o’clock, while asleep, a portion of the ceiling plaster, which is described to be about fifteen to eighteen inches in diameter, fell upon her, striking her on the side of her forehead, her right arm and back. She says that the violent shock of being thus aroused perplexed her and that, in her excitement, she inhaled dust caused by the falling plaster and that this produced an inflammation of her throat membranes and bronchial tubes. She further states that, as a result of this inflammation, whenever she expectorated or cleared Her nasal passages, there were traces of blood, this condition lasting a period of two or three days. She further relates that, on the morning following the accident, she was treated at the offices of Dr. Richard P. Williams, who thereafter treated her on three subsequent occasions and who had prescribed that she remain in bed; that, observing these instructions, she remained in bed a period of thirteen days.

Plaintiff’s mother testifies that she was in a rear room, asleep at the time of the accident, and, on being awakened by the noise of the falling plaster, she ran to her daughter’s bedroom, saw broken plaster on the bed and floor and the room filled with dust. She further relates that she placed plaintiff in bed in another room, and, during the early morning hours, telephoned the defendant. As to the extent of plaintiff’s injuries, she elaborates upon the shock and suffering which the plaintiff claims to have endured.

Dr. Richard P. Williams testified for the plaintiff and said that she called at his offices on the morning of the accident and that he found her suffering from a slight swelling of the right temple and a bruise on the arm; that he did not actually see her expectorate blood, or any bleeding from her nostrils, his statement on that issue being solely plaintiff’s complaint; that his first examination disclosed no inflammation of the throat; that he prescribed an ointment to alleviate the swelling and pain, and that he either visited plaintiff, or had her call at his offices, three or four times thereafter, for which he rendered a bill for $9.

Dr. P. L. Danna testified for defendant and said that he called at plaintiff’s home two days following the accident; that he found her in bed, complaining of nervousness and pains in the head, arm and back; that she did not complain of any inflammatory throat or bronchial condition, and that, on examining her, he found no evidence of injury, bruises or contusions.

Edward De Armas, an architect, testified that he had inspected the premises one year previous and found the residence in an excellent state of maintenance, save needed exterior and interior painting; that broken particles of plaster, which are in evidence, gave the appearance of having been sounded, or tested by some instrument. He admits, however, that this observation is only “a guess” and said that the marks may have been caused when the falling plaster struck the window sill, bed or floor.

Defendant testified that on the morning of the accident, he received a telephone call, informing him of the accident; that he called at the home of Mose Davis, his regular plasterer, and both went to the premises; that, on entering the room which plaintiff occupied, he saw pieces of broken plaster on the floor, which he placed in a container, and that there was a hole in the ceiling about fifteen inches in diameter. The ceiling of the room was then completely replastered. His testimony is fully corroborated by the plasterer.

Generally, in cases involving injuries to tenants by reason of vices and defects existing in the lessor’s premises, the only eye-witnesses are the plaintiff and his witnesses, and for that reason, we are compelled to rely upon plaintiff’s evidence. As a consequence, we should carefully scrutinize it to avert results which might unduly encourage the prosecution of fictitious claims.

We are likewise not unmindful of the well-settled rule that we should not reverse a judgment, based entirely on questions of fact, unless it is manifestly erroneous, again, making it imperative that we determine that the facts and other circumstances shown by the record are of sufficient probative force to justify the conclusion that the court, a qua, was obviously in error.

We fail to find any conflict in plaintiff’s evidence and that of the other witnesses in substantiation of the occurrence of the accident which would justify us to doubt the sincerity of her claim. Our appreciation of the evidence is that the plaster fell, striking plaintiff on the side of the head and arm, and that she received a small contusion or bruise on both parts of her body as a result thereof.

Defendant’s sincere effort to show that the plaster fell because of the application of persuasive force by someone, and not1 because of any existing defect, is not supported in the slightest by evidence of any acceptable character. The testimony of the architect that the markings on the broken pieces bore evidence of tampering is, as he concedes, purely speculation on his part, yet assigning other equally plausible reasons for this rather unusual disclosure. The broken particles, it is true, show rather firm and substantial plaster, yet it is also shown that this piaster was of a variety long since discarded and that this particular plaster had been installed fifty years ago. Defendant’s answer shows that, because of the leaky condition of the roof on the premises in question, a new roof was built a few months previous to the accident. It is not unreasonable to believe that, because of this leaky roof, with water accumulating above the ceiling, the plaster became loosened, eventually resulting in the accident.

The defendant’s effort to ascribe, the falling plaster to a windstorm is clearly discounted by the official reports of the United States Weather Bureau in that, at the 'hour of the accident, the highest wind velocity was sixteen miles per hour.

However, we believe that plaintiff has magnified her injuries and that she was feigning illness and pain during most of the period in which she says she was confined to her bed, this, undoubtedly in the hope that her lamentations and confinement would give the impression that she was more seriously hurt than was actually the case. Her own doctor describes her injuries as minor bruises, with no serious attending discomforts. We can appreciate the discomfort of inhaling powdered plaster or dust and its probable irritating effects and that plaintiff did experience such discomfort. But, again, her description of this inflammation is, we think, grossly exaggerated, and we shall make proper allowance for this experience.

In view of all the circumstances of the case, we believe that an allowance of $75 for the plaintiff’s pain and suffering would be ample, in addition to the amount of $12.80 for drugs and medical services she received.

For the reasons assigned, the judgment appealed from is annulled, avoided and reversed, and it is now ordered that there be judgment in favor of plaintiff, Mildred Wallace, and against Julius Meyer, defendant, in the full sum of $87.80, with legal interest from judicial demand and all costs.

Reversed.


author: TALIAFERRO, Judge.

text:
    PASSMAN v. ALEXANDER.
    No. 6329.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1941.
    James G. Palmer and John T. Carpenter, both of Shreveport, for appellant.
    Melvin F. Johnson and J. Edwin Bailey, Jr., both of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff sued upon a note executed by defendant to represent the deferred portion of the price of a Viking Case and Coils and a Brunner Condenser Unit. The purchased property, for the sake of brevity, will be hereinafter referred to as the “case”. The note is for $570, payable in twenty-four monthly installments of $23.75 each, the first one maturing on November 11, 1939, none of which was paid. A vendor’s lien and privilege on the sold property is asserted and its recognition prayed for. The suit is resisted upon the ground that the case did not and would not function efficiently and, therefore, was unsuited and unfit for the purposes for which purchased, to-wit: The preservation of fresh meats for reasonably long periods. In other words, that the case was so seriously defective as to render the sale thereof and the note sued on-null and void. Defendant prays accordingly. In addition, he prays for judgment against the plaintiff for $225, being the trade-in value of an old refrigerator accepted by plaintiff on the price of the new one.

There were two trials of this case below and in each instance judgment was rendered for plaintiff as prayed for by him. Defendant prosecutes appeal.

The note sued on is in favor of the Passman Equipment Company. The preamble of the petition, in part, reads:

“The petition of Otto E. Passman * * * doing business as the Passman Equipment Company”. Defendant objected to the introduction of the note in evidence until it was definitely proven that Otto E. Passman and the Passman Equipment Company are one and the same; that the company designation is merely a trade name. The note was admitted in evidence subject to the objection and evidently the trial judge decided that the evidence introduced on the subject was adequate to overcome the objection. We agree with this conclusion, although the testimony on the question is not as definite and specific as it doubtless could have been.

The memorandum of sale of the case, signed by defendant and plaintiff’s agent, discloses the seller as being “Passman Equipment Company, Otto E. Passman, sole owner”. This instrument was introduced in evidence without objection. The testimony of Mr. Pipes, plaintiff’s regular counsel, leaves practically no doubt of the fact that Mr. Passman is in reality the Passman Equipment Company. Counsel, during the second trial, when Mr. Passman was on the stand as a witness, inadvertently failed to interrogate him on the subject. Had this been done, any uncertainty concerning the matter would doubtless have been cleared up.

Defendant, at the time of purchasing the case, lived twenty-two miles from the City of Shreveport and there operated a small retail meat market. He had been using an old ice box or refrigerator in which meats were kept. This box became nondependable and he entered into negotiations with plaintiff’s agents, looking to the acquisition of a. new and better case. A trade was closed between them on September 21, 1939. The new case was installed October 9th by plaintiff’s service man, Mr. John M. Bate-man. He set the mechanism so that it would maintain a temperature of from 36° to 38°, conceded by all to be adequate to preserve fresh meats.

On Saturday of each week defendant procured a supply of fresh meat from a packing house in the City of Shreveport. After purchasing the meat, generally, as to beef, in quarter quantities, he would deposit it in an open passenger car and transport it to his place of business. The quarters would then be cut into smaller pieces in order to place them in the case where they would remain until again taken out and cut to accommodate customers. It soon developed that the portion of the meat not disposed of by the following Wednesday or Thursday would sour and spoil. This, defendant contends, occurred each week of the six or eight weeks the case was in operation.

One of plaintiff’s agents stopped at defendant’s place of business after the meats began to spoil and defendant complained to him that the case was not giving satisfactory service and stated that he thought the temperature thereof should be lowered considerably. The agent complied with the request and set the mechanism so that a freezing temperature would be maintained. The result was that all the meats froze. Soon thereafter this agent contacted Mr. Bateman, plaintiff’s chief service man, and imparted to him that defendant was complaining about the meats spoiling, and at that time he told Mr. Bateman what he had done toward lowering the case’s temperature. Bateman promptly went to defendant’s place and finding the meats frozen, readjusted the mechanism of the case so as to maintain a temperature of from 34° to 38°. At that time he employed the proper gauges to determine the case’s functioning and remained there for three or four hours to observe it. However, meat thereafter placed in this case would sour and spoil as before. Defendant discontinued the use of the case on or about November 25, 1939, without making any further complaint to plaintiff concerning its supposed defective condition. This was done by him notwithstanding the fact that he held plaintiff’s written obligation to service the case free of charge for twelve months and knew that plaintiff had competent service men in the City of Shreveport who would promptly respond to a request for service from him.

Plaintiff and his agents say that the case functioned efficiently and was free from defects, and accredit the spoiling of the meats to the manner and method in which such meats were handled by defendant after being purchased in Shreveport and until placed in the case. The lower court evidently agreed with this theory, and so do we.

Viking cases, it is not denied, rank with the best of the kind manufactured in this coitntry. Plaintiff has sold over fifteen hundred (1,500) of them and of this large number only one has proven defective. Of course, being mechanical, as is true of all other forms of mechanical devices, it is not impossible that occasionally an imperfect case would be found; but, imperfections of this character may be corrected by competent artisans.

Packing houses, in order to keep their fresh meat products in satisfactory state of preservation, maintain a temperature a few degrees above freezing. It is harmful to beef to allow it to freeze.

Defendant testified that it required from forty minutes to one hour to transport the meat from Shreveport to his place of business. It required several minutes to cut the meat into pieces small enough that the case would accommodate them. During the time he operated the case (from October 9th to November 25th) the weather, in the main, was warm. In addition, the meat was exposed while in transit to the added heat of the automobile. During the trip from the packing house to the case, under the mentioned conditions, it would not be surprising that the tissues of the outer part of the meat would undergo a transition not conducive to its continued wholesome preservation. We are convinced that this did occur and that therein lies the cause of the meats spoiling.

Mr. W. D. Smith, expert witness for defendant, testified that meat taken from cold storage would deteriorate if exposed to warm temperature but did not think an exposure of an hour would prove injurious. He stated that the length of periods in which such meats would begin to deteriorate depends upon circumstances, such as its temperature when removed from cold storage, the outside temperature, length of time it was exposed to warm air, etc.

Plaintiff has been in the refrigerator business for many years. He evidently understands it quite well. As a witness he demonstrated extensive knowledge of meats and their preservation. His testimony is not at variance with that given by Mr. Smith, with respect to the effect high temperature will have on meats removed from cold storage, save as to the element of time necessary to work injury thereto. He testified as follows:

“A. * * * If meat is fresh and at a cold temperature and you keep that meat out as long as forty minutes, the tissues begin to break down and when bacteria is in the top tissues it will break on through. Bacteria is going to set in whenever the temperature reaches forty-fi,ye or fifty decrees. You can ascertain this as being absolutely correct. If you leave the meat out for as long as one hour, you should not attempt to sell that meat unless you sell it the same day, because those tissues have broken down, bacteria has set in, and if the top part of the meat is spoiling, it is very definitely going to contaminate the meat next to it, and the first thing you know, the whole piece of meat is going to be bad. You can lose meat in cold storage at twenty-five degrees.
“If meat is taken out of a temperature of twenty-five degrees and put in a temperature of sixty degrees, and then you attempt to pull the temperature back down again, your meat is going to be bad in three or four days. If this gentleman had handled native meat it would have been different, but it has been testified that he handled packing house meat all the way through. He attempted to haul this meat in a car where the exhaust in the car may have been building the temperature up-to sixty degrees.”
* * -t * *
“A. If you take the chance of pulling meat out of cold temperature into heated temperature, and then pulling it back down to cold, and then expect that meat to keep three or four days, it just won’t do it.”

For the reason assigned by plaintiff, packing houses long ago ceased delivering their meat products to customers in open, non-refrigerated vehicles. They now employ vehicles with closed apartment in which the temperature is kept so low that there is no danger of the meat’s condition deteriorating.

It seems to us that if a case of this character will maintain the temperature adequate to prevent meat from spoiling for three or four days, and also a temperature sufficiently low to freeze meats, surely temperature between these extremes may be maintained. Defendant’s expert, Smith, is positive on this point. He testified that fresh meats should be satisfactorily preserved in this case for ten or twelve days. He was asked:

“Q. Mr. Smith, if a box can be so adjusted as to freeze meat, cannot that same box be so adjusted as to keep meat the length of time you have stated? A. Absolutely.”

It is .not without significance that after Mr. Bateman adjusted this case following the freezing of the meat, notwithstanding plaintiff says the meats continued to spoil, he made no complaint whatever to plaintiff or his agents regarding the same. As said before, he knew that he was entitled to twelve months of free service. It is also strange that when this suit was threatened and defendant’s attitude toward the note became known, he refused to allow plaintiff’s agents to reconnect the case and demonstrate its efficiency, although they went to his place of business and offered to do so.

The plaintiff carried the burden of proof on the issue tendered by the defense, to-wit:

That the case was not suited for the purposes for which bought and sold. This burden has been successfully discharged. A. Baldwin Sales Company, Inc., v. Mitchell, 174 La. 1098-1103, 142 So. 700.

Only a factual question is involved in the determination of this case. It was resolved against the defendant and in our opinion, properly so. Certainly no manifest error appears in the trial judge’s conclusions, and for the reasons herein assigned, the judgment appealed from is affirmed with costs.


text:
    EPPS v. STANDARD SUPPLY & HARDWARE CO. et al.
    No. 17625.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1941.
    Rehearing Denied Jan. 5, 1942.
    J. L. Warren «Woodville, of New Orleans, for appellant.
    Henriques & Mayo, of New Orleans, for appellees.
   WESTERFIELD, Judge.

This suit results from an intersectional collision between an. automobile owned by the plaintiff, Walter Epps, and driven by his minor son, Earl Epps, and a motor truck belonging to the Standard Supply & Hardware Company, driven by its employee, Roy L. Schilling, in the course of his employment. The accident occurred on July 3, 1940, at about 4:15 p.m., at the corner of Josephine and Constance Streets, in the City of New Orleans. The plaintiff, Walter Epps, on his own behalf, claims from the Standard Supply & Hardware Company and its insurer, the New Amsterdam Casualty Company, in solido, the sum of $1,117.26 and on behalf of his minor son the sum of $310 as damages, growing out of the accident which, it is alleged, was entirely due to the fault of the driver of the truck.

The defendants denied that the driver of the truck was responsible for the accident, which they aver was due solely to the negligence of plaintiff’s son, and, in the alternative, pleaded contributory negligence on the part of Earl Epps, the minor, which, it is claimed, should be imputed to the father, Walter Epps.

There was judgment below dismissing plaintiff’s suit and he has appealed.

There were four eyewitnesses to the accident — Roy L. Schilling, the driver of the truck, Earl Epps, the driver of the automobile, Walter Epps, his father, and Donald Desvignes, both passengers in the automobile.

The Epps car approached the intersection of Josephine Street traveling in the direction of Lake Pontchartrain. The truck was proceeding along Constance Street from the right of the Epps car and, in the direction of Carrollton Avenue, or what is colloquially known as “uptown”. Constance and Josephine Streets are one-way streets.

Earl Epps testified that as he drove up Josephine Street and when nearing its intersection with Constance Street, he blew his horn and brought his car practically to a standstill; that he looked down Constance Street in the direction of traffic and saw nothing, whereupon he proceeded slowly across the intersection; that as he reached a point about the middle thereof, his car was struck on its right side by the front end of the truck, causing it to move sidewise and strike a telephone post which was on the uptown lake corner of the intersection or, in other words, completely across Constance Street; that at the time he looked in the direction from which the truck approached, his automobile was at the curb line of Constance Street, but that he could not see more than fifty feet because of the presence of a church on the corner which, he claimed, made it a “blind corner”; that while the front of his car was abreast of the Constance Street curb when he slowed down, it was some distance away from the Josephine Street curb and near the middle of the street; and that he did not see the truck, which was moving very fast, until a moment before the impact.

Epps is corroborated by the two passengers in his car — his father, Walter Epps, and Donald Desvignes.

Roy Schilling, the truck driver, testified that as he reached the intersection he was traveling at about fifteen miles per hour; that when he reached the corner he looked out Josephine Street and not seeing any cars approaching, started across the intersection when the Epps car, running very fast, bore down upon him, whereupon he jammed on his brakes and because of the wet pavement (it had been raining) he began to skid and finally collided with the automobile. He was asked a number of times about when he first saw the automobile, but, for some reason, either because of wilful evasion or some other cause, he failed to answer.

Upon the testimony of the drivers of the colliding vehicles themselves, we have no hesitancy in saying that both parties were at fault. Epps’ statement that he could not see more than fifty feet down Constance Street when his automobile was abreast of the Constance Street curb is most remarkable in view of the fact that there are no buildings to obstruct his view at that point. The church, which he claimed obstructed his view, was, according to the evidence, about fifty feet from the corner, but if it had been on the property line it could not have interfered with his vision, because he was at the curb line when he looked. At that point he is positive that he did not see the truck; If so, he should have seen it, for it was, at that time, necessarily in plain view.

In Jackson v. Cook, 189 La. 860, 181 So. 195, 197, it is said:

“ * * * that the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

See, also, Denham v. Taylor, 15 La.App. 545, 131 So. 614; O’Day v. Kapanica, 18 La.App. 634, 138 So. 472; Delaune v. Breaux, 174 La. 43, 139 So. 753; Goodwin v. Theriot, La.App., 165 So. 342; Broussard v. Hotard, 4 So.2d 563, No. 17, 166 of the docket of this court, decided November 17, 1941.

Moreover, if he was all but motionless when he looked and did not see the truck, he should have been able to stop his car instantly and before making contact with the truck when he did see it, though it was but a moment before the impact. We might add that if the corner had, in fact, been a blind corner, as he says it was, there was all the more reason for the exercise of care in approaching the intersection, because his view would have been obstructed until he had passed the property line.

Schilling, the driver of the truck, like young Epps, did not see the automobile when he‘ looked in the direction of traffic on Josephine Street. The learned judge of the trial court took the trouble to visit the scene of the accident and has written strong reasons for his judgment. He did not discuss the negligence of Schilling, however, except to say that “even if he saw the Epps car on Josephine Street, he could not assume that this car was going to cross in front of him. He naturally assumed that the car would wait until traffic was clear before passing across Constance Street.” Schilling had the right of way under the traffic ordinance because he was on Epps’ right, provided, he reached the intersection at about the same time.

Article V, Paragraph 15(a), of the Traffic Ordinance, No. 13,702, Commission Council Series, reads in part as follows:

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

As the learned judge, a quo, properly observed, Schilling, having the right of way, was justified in relying upon the presumption that the Epps car would obey the traffic ordinance, but Schilling testified that he did not see the Epps car and, therefore, was in no position to know* where it was and, consequently, could not assume that it would respect a right of way which did not exist, unless the Epps car entered the intersection at about the same time. The fact that the Epps car was struck broadside by the front of the truck is an indication that it (the Epps car) had entered the intersection before the truck. . Schilling looked and did not see which is the same thing as not looking at all. Jackson v. Cook, 189 La. 860, 181 So. 195; Denham v. Taylor, 15 La.App. 545, 131 So. 614; O’Day v. Kapanica, 18 La.App. 634, 138 So. 472; Broussard v. Hotard, 4 So. 2d 563, No. 17, 166 of the docket of this court, decided November 17, 1941. If Schilling had the right of way he was not relieved of the duty of looking in the direction of traffic. Holderith et ux. v. Zilbermann, La.App., 151 So. 670.

Counsel for plaintiff criticizes a statement of our brother below to the effect that in an accident such as described by the pleadings that “there must be some negligence on the part of both”. In our opinion little fault can be found with this statement, for while we have often recognized the right of one party to an intersec-tional collision to recover, we said in Folse v. Flynn, La.App., 200 So. 160, 161, that “it is undoubtedly true, as we have heretofore observed, that in most inter-sectional collisions both parties are at fault. Guernsey et al. v. Toye Bros. Yellow Cab, Co., Inc., La.App., 172 So. 459”. This case is no exception to the rule and we find that both drivers were at fault.

It is said that the negligence of young Epps cannot be imputed to his father, who was riding with him in the car at the time of the accident, and that since the father has claimed $1117.26 on his own behalf, he should recover regardless of the negligence of his son because we have found the driver of the truck guilty of negligence. In other words, the father is in the position of a guest in the automobile.

Article 2318 of the Revised Civil Code reads in part as follows:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, * * * ”.

There is some indication in the record that young Epps resided with his father' and nothing to the contrary. We will, therefore, presume that young Epps lived a normal life under the roof of his father.

In Di Leo v. Du Montier, La.App., 195 So. 74, 76, the plaintiff sued for damages sustained by his automobile as the result of a collision due, in part, to the negligence of his son who was driving it at the time of the accident. Plaintiff was not permitted to recover notwithstanding the negligence of the driver of the other automobile. In our opinion in that case we said:

“Since it is shown that young Di Leo was a minor and was residing with his father, it follows that his said father is responsible for any loss resulting from his negligent acts. Revised Civil Code, Art. 2318. Therefore, being responsible for the results of these negligent acts of his son, he is prevented from recovering for the damage sustained by his car.”

In Douga v. Ancona Baking Co., La. App., 193 So. 271, 274, we said:

“It is strange indeed that the jury should have found in favor of the child’s father for the reason that, since the accident was the result of the contributory negligence of the child herself, it is obvious that the father could not recover for the expense to which he was put. It is well settled that the contributory negligence of an injured child is a defense to an action by the parent to recover money expended for medical attendance upon the child. Callies v. Reliance Laundry Company, 188 Wis. 376, 206 N.W. 198, 42 A.L.R. 712; Farrell v. Greene, 110 Vt. 92, 2 A.2d 196; 46 C.J., 1303; 20 R.C.L. 617, Note, 42 A.L.R. 717.”

It, therefore, follows that the plaintiff in this case, being responsible for the torts of his minor son, cannot recover.

For the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.


text:
    CONLEY et al. v. HENRY et al.
    No. 6092.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1941.
    Arthur C. Watson, of Natchitoches, for appellants.
    John G. Gibbs, of Natchitoches, for ap-pellees.
   DREW, Judge.

This case was argued and submitted to this court in May of this year. After argument it was learned that the record, which had been withdrawn from the court by one of the counsel in the case, was missing. We were requested to give time for the record to be located and returned here.

On September 29th past, attorneys for appellants filed the following application:

“Now into Court through the undersigned counsel comes J. H. Henry, Jr., defendant-appellant in the above entitled and numbered cause and with respect represents and shows the Court:

1. “That judgment was rendered against him in this matter on July 19th, 1939, which judgment was duly signed by Judge James W. Jones of the Tenth Judicial District Court on July 26, 1939. That from this judgment appearer took a suspensive appeal to this Honorable Court.

2. “That this appeal and entire record were properly filed _with this Court on or before September 17, 1939.

3. “That the said record has now been lost, misplaced or inadvertently destroyed. That a diligent search has been made for same, but to no avail, as the record has not been found.

4. “But that the record consists entirely of the pleadings and written exhibits which written exhibits were certified copies of the minutes and judgment in a previous case, which was entitled Dennis Roque V. J. H. Henry, Jr., No. 5929 on the docket of the Court of Appeal. That no testimony was introduced in the trial of this case whatsoever and that it will he a relatively simple matter to reconstruct the record.

5. “That in the event counsel are unable to reconstruct the record that the parties should be allowed and ordered to file new pleadings and the matter tried de novo.

“Wherefore appearer prays that this Honorable Court do remand this matter to the District Court of Natchitoches for the purpose of having the record reconstructed and prays in the alternative that if the said record cannot be reconstructed that this matter be tried de novo and the parties allowed and ordered to file new pleadings in the matter and prays for all general and equitable relief and for all orders necessary and proper in the premises.”

It is clear that we cannot render a decision in the case without the record before us. Therefore the application to remand is granted as prayed for.

       189 So. 358.


text:
    JACKSON v. AMERICAN EMPLOYERS INS. CO. OF BOSTON, MASS.
    No. 17597.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1941.
    Rehearing Denied Dec. 15, 1941.
    Writ of Certiorari Granted Feb. 2, 1942.
    R. A. Dowling and J. J. Jackson, both of New Orleans, for appellant.
    Edward Rightor and W. H. Sellers, both of New Orleans, for appellee.
   WESTERFIELD, Judge.

This is a suit against the American Employers Insurance Company of Boston, Massachusetts, in which it is alleged that the defendant had issued a policy of public liability covering a certain Ford sedan belonging to the Louisiana Department of Agriculture and Immigration; that on the 26th day of March, 1938, the Ford, operated by an employee of the Department, ran into and injured Ernest Jackson, a minor five years of age, under circumstances involving the negligence of the driver of the Ford, for ,the consequences of which plaintiff’s minor son, represented herein by his tutrix, Martha Jackson, seeks to recover $2,500 as damages for physical injuries. The defendant pleaded the prescription of one year which was sustained below and plaintiff has appealed to this Court.

The accident happened, as we have said, on March 26, 1938, and this suit was not filed until February, 1941, more than two years later. In the meanwhile, the same cause of action was made the subject of a suit in the Federal District Court for the Eastern District of Louisiana, against- the Employers’ Liability Assurance Corporation, Ltd., of London, England. It is the contention of .the plaintiff that this suit in the Federal Court, which was subsequently dismissed on February 7, 1941, although filed against a different corporation, that is to say, the Employers Liability Assurance Corporation, Ltd., of London, England, whereas the insurance carrier’s proper name is, as stated in the present pleadings, the American Employers Insurance Company of Boston, Mass., will serve to interrupt prescription.

The suit in ,the Federal Court was filed by counsel, now deceased, and there is a letter in the record, written in response to a letter from deceased counsel, from which it appears that there are three corporations known as the Employers Group, consisting1 of the Employers’ Liability Assurance Corporation, Ltd., the Employers Fire Insurance Company and the American Employers Insurance Company. All three of the group are represented by what is known as the “Gulf Claim Department” in the Hibernia Bank Building of New Orleans. Much is made of this circumstance, the contention being that plaintiff’s deceased counsel was misled by the letterhead of the Employers Group, since these companies held themselves out as a group “any confusion which might have existed was due to an act of theirs and not to any act on the part of the plaintiff”. Reliance is also placed on Act 39 of 1932, which reads in part as. follows: “The filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts”.

The case of Norwich Union Indemnity Company v. Judlin & Whitmire, 7 La.App. 379, is relied upon and a number of other authorities cited, all of which hold to the same effect and as follows that “a citation to defendant, even though insufficient to support a judgment, will yet suffice to interrupt prescription, if it serves to notify such defendant of the nature and grounds of plaintiff’s claim and that plaintiff means to assert the same”. Vernon v. Illinois C. R. Co., 154 La. 370, 97 So. 493. See, also, Babin v. Lyons Lumber Company, Ltd., 132 La. 873, 61 So. 855; Anding v. Texas & Pacific Railway Co. et al., 158 La. 412, 104 So. 190; Gueble v. Town of Lafayette, 118 La. 494, 43 So. 63.

The prescription, as established by Article 3536 of the Revised Civil Code, as against actions ex delicto, is one year. Unless interrupted as claimed by plaintiff prescription had run when plaintiff’s suit was filed in this court.

The Act of 1932 has no application. The only change which .that act made in the pre-existing situation with respect to prescription was, as stated by our brethren of the Second Circuit in Taglialavore v. Ellerbe, 149 So. 296, 297, that it “merely relieves the party who has a cause of action from responsibility for the delay or negligence of the officers of the court in making service promptly”. See, also, Interruption of Prescription by Judicial Action in Louisiana, 14 Tulane Law Review, 601.

Before the enactment of the Act of 1932, it was necessary that the defendant be cited wi,thin the prescriptive period. The mere filing of the suit was not sufficient.

“The mere filing of a petition within the prescriptive period is not sufficient to prevent prescription from accruing where no service has been made on the defendant. Service on the defendant is the only .thing that will prevent prescription from accruing and it is incumbent on the plaintiff to see that his petition is served before his right is barred by prescription”. (Syllabus) Ficklin et al. v. New River Drainage District of Ascension Parish, 133 La. 203, 62 So. 632.

Since the adoption of that Act, 39 of 1932, it is only necessary that the suit be filed within the year. The delay of the sheriff or constable, as the case may be, in making service of citation, does not now affect .the situation.

In Norwich Union Indemnity Company v. Judlin & Whitmire, supra, a case which was decided by one of the Judges of this Court, the suit was originally brought against Peter Judlin. A judgment was rendered in Judlin’s favor dismissing the suit upon the ground that it should have been brought against Peter Judlin, Inc., a corporation of which Peter Judlin was the president. Subsequently, more than one year after the cause of action had arisen, the plaintiff in the original suit, by supplemental petition, asked judgment against Peter Judlin, Inc., citing the corporation through its president. A plea of prescription filed by the corporation was overruled on the ground that “the tort sued on was committed on December 3, 1925; the citation addressed to and served on Peter Jud-lin on April 20, 1926, .though insufficient to base a judgment against Peter Judlin, Inc., was sufficient to interrupt prescription against the latter”.

The Judlin case is not applicable because it cannot be said that the original suit filed against the Employers’ Liability Assurance Corporation, Ltd., of London, England, could serve as notice of plaintiff’s claim to the American Employers’ Insur-anee Company of Boston, Mass. The corporation first sued is domiciled in England, whereas the present defendant is a Massa-, chusetts corporation.

The letter addressed to deceased coun- ' sel should not have misled him, since it plainly revealed the correct name of each of the three corporations represented in the employers group, which are printed on the letterhead. It was his duty to ascertain which one of the three corporations had issued the policy covering the Ford automobile and not simply to pick out the one which headed the list as seems to have been done in this instance.

In Broussard v. Rosenblum, 5 La.App. 245, 246, a suit was brought against a minor, whereas it should have been filed against the father of the minor. Though both father and son resided in the same house and though it was likely that both had knowledge of the suit, we held that the first suit as against the minor son did not interrupt prescription as against the father.

In Agnelly v. Goodheit, 6 La.App. 121, the plaintiff intended to sue the father of Albino Parelli, whose name was Manuel Parelli, but brought suit against Edward Parelli, another son of Manuel Parelli. Referring to the Broussard case, we said: “In that case we reviewed a number of pertinent authorities, to which we can add nothing by further discussion here. The present case can not be distinguished in principle, and, therefore, the Broussard case is controlling. If there was simply an error in the name of defendant a different case would be presented, bu,t in the Brous-sard case, as in this case, the defendant named in the petition was served. In both cases it proved to be the son of the party eventually sought to be held”.

Again in Calamia v. Mayer, La.App., 174 So. 668, the holdings in the Agnelly and Broussard cases were affirmed.

Our conclusion is that the suit filed in the Federal Court against the Employers’ Liability Assurance Corporation, Ltd., of London, England, did not serve to interrupt prescription as against the American Employers Insurance Company of Boston, Mass., consequently, and for the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.


author: DREW, Justice.

text:
    NEAL v. REEVES.
    Na. 6325.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1941.
    Eugene J. Coen, of Shreveport, for appellant.
    Wallace & Stinson, of Benton, for ap-pellee.
   DREW, Justice.

Plaintiff in his brief correctly states this case as follows:

“The plaintiff, Tony S. Neal, is a licensed real estate broker in Shreveport, Louisiana. In this suit he appears as the principal and claims a commission of $300.-00 subject to a credit of $100.00 due by H. Sherman Reeves, the defendant. The plaintiff averred that his representative and sub-agent, Joseph M. Hayden, secured a listing from the defendant, H. Sherman Reeves, the right to lease or sell a certain piece of real estate, located in Bossier City, Louisiana. The plaintiff contends that the defendant agreed to pay a commission of 3% of the total amount paid under the lease agreement which was secured by the plaintiff’s agent for the defendant or 3% of $6000.00, or $180.00 for this commission; and that in the event the lessees to whom the property was leased exercised an option contained in the lease to purchase the property that the commission due plaintiff would be 5% of the purchase price, which was fixed at $6000.00, or $180.00 for this commission; and that iu the event the lessees to whom the property was leased exercised an option contained in the lease to purchase the property that the commission due plaintiff would be 5% of the purchase price, which was fixed at $6000.00.
“The defendant filed his answer in which he denied all of the allegations of the plaintiff. The plaintiff contended that the property had been sold to the lessees within a year of the signing of the lease agreement, which contained the option to sell the lessees; that the price of the sale was $5000.-00, and that, therefore, the plaintiff contended that he was entitled to 5% of the sales price, or $250.00. The agreement as to the commission to be paid was verbal.”

The lower court rejected plaintiff’s demands and he is prosecuting this appeal. The testimony clearly preponderates in favor of defendant’s contentions that there was never a contract between the plaintiff or his agent and defendant, in fact, it is made plain by the evidence in the record that the defendant did not know that plaintiff’s agent with whom the contract was alleged to have been entered was a real estate agent until the lease between defendant and his lessee had been executed.

The facts are that defendant was in the process of constructing a building to be used as a restaurant in Bossier City, Louisiana ; and that plaintiff’s agent, in company with two or three other persons who afterward leased the building from defendant, drove up to the place. Plaintiff’s agent asked the defendant if the building was for lease or sale and was told that it was. There was nothing said at the time regarding listing the property with plaintiff. Several days later the lease was agreed upon and executed. After it had been executed plaintiff’s agent asked defendant for his commission. This, we are sure, was the first time defendant had any knowledge that a commission was to be claimed from him by the plaintiff or his agent. After arguing over the matter, defendant and the attorney who prepared the lease left the office to secure a cold drink and it was at that time that the attorney suggested to defendant that, although he was not legally bound to plaintiff for any amount, he pay him $100 and get rid of the whole matter. Defendant accepted his suggestion and paid the $100, refusing to pay any greater amount.

The record discloses that plaintiff’s agent had for several days been trying to find a location for the people who were in the car with him when he first contacted defendant. He had shown them a number of places in Shreveport and Bossier City. He may have had a contract with those persons who afterwards became defendant’s lessees and after that purchased the property, but he certainly had no contract with defendant. If defendant had known that plaintiff’s agent was in the real estate business he would have been justified in believing that hit was representing the lessee. It would have been a reasonable supposition. There was nothing that transpired from the time of the original approach by plaintiff’s agent until the contract of lease was consummated to cause defendant to think he was obligated or would be obligated to plaintiff in any amount if the lease and option were agreed upon and executed.

The plaintiff has failed to make out his case and the judgment of the lower court is affirmed, with costs.


author: JANVIER, Judge.

text:
    REX CREDIT CO., Inc., v. KIRSCH.
    No. 17590.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1941.

      Gerald Netter, of New Orleans, for plaintiff and appellant.
    Sydney J. Parlongue, of New Orleans, for defendant and appellee.
   JANVIER, Judge.

Rex Credit Company, Inc., named payee in a promissory note made by Charles Kirsch and William Donnaud, prays for judgment against Kirsch for the unpaid balance alleged to be due on the note together with interest and attorney’s fees as stipulated in the note. It is alleged that the note was originally for $300 and was payable in installments of $25 each due on the twenty-first day of each month, commencing with the payment which was due on September 21st, 1940, and that the first four installments have been paid, but that the amount due on January 21st, 1941, was not paid, and it is claimed that the failure to make this payment when due has, because of the acceleration clause in the note, matured all of the remaining installments and has also rendered the makers liable for an attorney’s fee of 20 per cent on the total amount due.

Kirsch admits the execution of the note and that the payment which was due on January 21st, 1941, was not made on that day and that it has not since been accepted by the payee, but he avers that each of the first four payments was made several days after it became due; that the amount due on January 21st, 1941, was tendered on January 31st, 1941, and he contends that, by accepting each of the first four payments several days after it was due, plaintiff acquiesced in the establishment of a course of conduct as a result of which, it should be held to have waived its right to enforce the acceleration clause unless it should first give notice to the makers of the note of its intention to insist that in future it would strictly enforce all of the stipulations contained in the note, and particularly that it intended to take advantage of the acceleration clause should there be further tardiness in the making of installment payments.

There was judgment ordering plaintiff to accept the amount tendered in payment of the installment due on January 21st, 1941, and dismissing the suit in all other respects. Plaintiff has appealed.

There is a well-established rule in this state that where payments are due in installments, if the payee customarily permits payments to be made after the day on which they are due, there is thereby established a course of conduct from which it is proper to say that the payee by acquiescence therein has waived the right to demand that the acceleration or any similar clause be enforced. Standard Brewing Company v. Anderson, 121 La. 935, 46 So. 926, 15 Ann.Cas. 251; Shnaider v. Graffagnini, 154 La. 363, 97 So. 491; Saxton v. Para Rubber Company, 166 La. 308, 117 So. 235; Id., 166 La. 866, 118 So. 64; Falco v. Gilbert, 2 La.App. 71, 72; Mahan v. LaFaye, 3 La.App. 445; Wunderlich v. Simpkin, 5 La.App. 35; Gottlieb v. Schloss, 5 La.App. 379; Richardson v. American National Insurance Co., 18 La. App. 468, 137 So. 370.

Defendant insists that the facts here bring the cáse fully within the rule followed in those cases, and that accordingly — since plaintiff has in the past acquiesced in the customary tardiness with which the payments were made and has not given notice of its intention to insist in the future on promptness — it has lost its right to take advantage of the acceleration clause.

Plaintiff, conceding that such a rule is well established, asserts that certain special clauses contained in the note sued upon justify the making of a distinction between those cases and this one. These clauses read as follows:

“The makers of this note * * * agree that the time of payment hereof may be extended from time to time one or more times without notice of such extension or extensions and without previous consent * * * that no modification hereof shall be binding unless hereon endorsed in writing and signed by the parties.
“No delay on the part of the Rex Credit Co. Inc., or any future holder or holders hereof in exercising any right hereunder shall operate as a waiver of said rights.”

Counsel for plaintiff declare that because of these special clauses which, and especially the last of which, were not contained in the notes sued on in the cited cases, there was no waiver of the right to insist on the enforcement of the acceleration clause. They argue that the makers were put on notice in advance that even should indulgences be granted, no waiver would result, and they point to certain other cases in which similar stipulations have been held to prevent the application of the doctrine of waiver. For instance, in Germann v. Keller, Orleans No. 8895 of our docket, Opinion Book No. 62, (See Louisiana and Southern Digest) the note contained the following stipulation: “Failure to strictly and promptly enforce these conditions shall not operate as a waiver of lessor’s rights, lessor expressly reserving the right to always enforce prompt payment of rent or cancel this lease regardless of any indulgences or extensions previously granted. Failure to comply with any conditions or obligations of this lease will make lessee liable for any damage sustained by lessor.”

In holding that this stipulation prevented the application of the doctrine of waiver, we said: “ * * * But the lease itself in its very terms avoids the indulgence claimed by defendant in this case * *

In Cantu v. Fenner, Beane & Ungerleider, 181 La. 743, 160 So. 399, the Supreme Court held that a somewhat similar stipulation prevented the maker from contending that a waiver had been established by a course of conduct, and in Villere & Co. v. Latter, 186 La. 91, 171 So. 705, 707, the Supreme Court considered the effect and meaning of a stipulation reading as follows: “Failure to strictly and promptly enforce these conditions shall not operate as a waiver of lessor’s rights, lessor expressly reserving the right to always enforce prompt payment of rent or to cancel this lease, regardless of any indulgences or extensions previously granted.”

Then the court said: “What that [provision] means and all it means is just what it says, which is that the lessor’s failure to exercise strictly and promptly the rights granted or the granting of extensions and indulgences by the lessor toward the lessee should not operate as a waiver of the lessor’s rights to enforce the prompt payment of the rent or to cancel the lease.”

It thus appears that there are two lines of cases, one holding that a stipulation providing for acceleration or for some other such harsh right is waived where the holder of the note, or the obligee in a contract, permits a departure from the strict provisions of the contract, and the other line of cases which does not seem to be in conflict, which holds that there is no waiver if the obligor or the maker of the note is put on notice in advance that the granting of such indulgences or delays will not be considered as a waiver of the right to insist upon the strict enforcement of the stipulation of the note or contract.

We find it unnecessary that we determine whether the stipulation which is involved here places this case among the group last cited, or whether it should be considered as being controlled by the doctrine of the Standard Brewing Company case and other similar cases, supra. Even those cases which hold that, by the course of conduct, there is established a waiver of the right to insist on the strict terms of the note or of the contract cannot be extended so as to include a case in which the indulgences were never acquiesced in, and were forced from the other party over his protest. Here the record shows that although it is true that the four preceding installments were tardily paid, this tardiness was never voluntarily agreed to by the holder of the note. On the contrary, it is shown that on each occasion the plaintiff protested and did all that it could to force the maker to make payment punctually, and that the delays resulted not from any acquiescence but solely, from the inability of the plaintiff to force the maker to make payment on time. Thus this case falls squarely under the rule which was followed in Briede v. Babst, 131 La. 159, 59 So. 106, 107, in which the Supreme Court said:

“It is perfectly evident from the evidence as a whole that plaintiff never expressly or otherwise waived his right to be paid his rent promptly; and that, if prompt payment was not exacted, it was because of an unwilling and forced indulgence on his part.
“To such a situation the doctrine of the case of Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926, 15 Ann.Cas. 251, is totally inapplicable. That doctrine can obtain only where the tenant is ready to pay the rent promptly and needs no indulgence, but delays in paying simply because he is under the impression, produced by the lessor’s past conduct, that it is a matter of no moment whether the payments be made promptly or a few days late.”

In Maestri v. Nall, 145 So. 128, 129, we said: “ * * * If the landlord accepts the rent money tardily tendered, not because he voluntarily agrees to the extension, but merely ‘because of an unwilling and a forced indulgence on his part,’ the doctrine that the written contract may be altered by custom is totally inapplicable.”

The case at bar, because of its facts, is controlled by the doctrine of Briede v. Babst and Maestri v. Nall. Consequently, there has been no waiver of plaintiff’s right to insist on the acceleration clause.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is amended, and that the amount thereof be increased to $200, with interest at 8 per cent from Januáry 21st, 1941, together with an attorney’s fee at 20 per cent on the total amount, defendant to pay all costs.

Judgment amended and affirmed.