author: JANVIER, Judge.

text:
    DIXIE MACHINE, WELDING & METAL WORKS, Inc. v. BOULET TRANSP. CO.
    No. 19020.
    Court of Appeal of Louisiana. Orleans.
    Jan. 24, 1949.

      Deutsch, Kerrigan & Stiles, of New Orleans, for plaintiff-appellant.
    Henican, James & Cleveland, of New Orleans, for defendant-appellee.
    St. Clair Adams and Son, of New Orleans (P. A. Bienvenu, of New Orleans, of counsel), for amicus curiae.
   JANVIER, Judge.

Dixie Machine, Welding & Metal Works, Inc., brought this suit against Milton P. Boulet, doing business as Boulet Transportation Company, alleging that, as the result of an oral agreement made with an authorized representative of Boulet, it made certain repairs to the boom of a hoisting crane belonging to Boulet; that a fair price for the work, $195,67, .had been charged, and that Boulet had failed and refused to pay for the said work. .Boulet denied that there had been any agreement for the repair of the said, boom and alleged that the said repairs had been made necessary because of negligence of employees of plaintiff corporation which had rented the hoisting crane from Boulet and had damaged it ^ through carelessness or lack of skill. Boulet averred that the repairs had been made voluntarily by the plaintiff cor-r poration and that he was in no way responsible for the cost thereof. He also averred that if there was any liability in him, the price charged was excessive.

Boulet then, assuming the position of plaintiff in reconvention, averred that he had rented the said hoisting -crane to plaintiff corporation and had secured an operator at.the request of the said corporation; that the charges for the rental of the crane and for the reimbursement of the wages an'd expenses incurred in connection with the operator had been agreed upon and that as a result there was due to him by plaintiff corporation the sum of $396.80, and he prayed for judgment in reconvention for that amount against plaintiff corporation, Dixie Machine, Welding & Metal Works, Inc. The amount claimed in the reconven-tional demand was subsequently reduced voluntarily to $356.40.

When the matter came to trial in the First City Court, counsel for plaintiff objected to any evidence in support of the reconventional demand on the ground that such evidence was irrelevant and incompetent for the reason that the reconventional demand was based on a claim not necessarily connected with nor incidental to the main demand. This objection to evidence was based on the provisions of Article 375 of our Code of Practice, which reads as follows: “In order -to entitle the defendant to institute a demand, in reconvention, it is required that such demand, though -different from the main action, be, nevertheless, necessarily connected with and incidental to -the same * *

After an extended trial, there was judgment dismissing the main demand and in favor of defendant, plaintiff in recon-vention, for $356.40. ■ Plaintiff has appealed.

The record shows that Milton. P. Boulet, engaged in business as Boulet Transportation Company, is the owner of a ten-ton crane having a sixty-foot boom, and mounted on the platform of a very large motor truck, and that this crane is used by Boulet in heavy construction work and is rented out by him to other persons doing similar work and who may need such a machine. Dixie Machine, Welding & Metal Works, Inc., among other businesses in this locality, is engaged in heavy construction work.

The Dixie Company obtained a contract for the erection of a smokestack at the plant of Johns-Manville Company located on the west side of the Mississippi River.

Early in June, 1947, a representative of the Dixie Company telephoned Boulet’s office and asked if it would be possible to rent the ten-ton crane of Boulet for use in the job at the Johns-Manville plant. The answer of Boulet was that that crane was not available at that particular time, but that it would be in a few weeks and that he would be glad to rent it to the Dixie Company, although, since, the crane had not yet completed the work on which it was engaged, there was no certainty as to just when it could be released to the Dixie Company. Boulet advised the Dixie Company that the charges would be $10.00 per hour and that there must be a minimum guarantee of forty hours’ work. The Dixie Company agreed to wait until that crane would be available. There is considerable dispute as to whether or not, at that time, Boulet was advised as to the details of the job in which the crane was to be used.

A few weeks later the representative of the Dixie Company again called Boulet to know if the crane had completed the work on which it was then engaged. A few days later another representative of the Dixie Company called Boulet to discuss the use of the crane and advised that the Dixie Company had secured another job, also across the river, in which it would need.the same crane as soon as it could complete the job at the Johns-Man-ville plant, and as a result it was agreed that the minimum time for which the Djxie Company would be charged in each job would be thirty-two hours.

There is also some dispute as to whether in any of these earlier conversations Boulet was asked to furnish an operator for the crane. When the crane was ultimately released from the job in which it had been engaged by Boulet, it was sent across the river to the point agreed upon and delivered to the Dixie Company. With it Boulet sent an operator, A. F. Zeagler, because prior to the time on which it was delivered he had been requested by the Dixie Company to furnish a competent operator. Zeagler reported to the superintendent or foreman of the Dixie Company, Albert Berniol, who took charge of the work and commenced the erection of the stack. During -the early afternoon, while an attempt was being made to lift the stack and it was partially off the ground being raised to an upright position, the boom of the crane buckled or bent in a sidewise direction and was badly damaged. Just what was the cause of this and to whose fault it is to be attributed, we shall later discuss.

Before discussing those questions, however, it is necessary that we determine whether or not the evidence supporting •the reconventional demand was properly admitted. Counsel for plaintiff vehemently protest that there was no' connection whatever between the charge which they say was based on a contract for repairing the boom and the claim of Boulet based on the allegation that the damage to the crane resulted from negligence chargeable to' the Dixie Company. Counsel say that only one issue was raised by the main demand and that this was whether or not there was an agreement for the repair of the crane. They say that if there was such an agreement, then there must be payment under this contract and that whether or not the Dixie Company is responsible in fort for the damage to the crane is a question not in any way connected with nor incidental to the claim made under the contract to repair the crane. We cannot agree with this view.

Defendant denies that there was a contract, but in effect says that if there was a contract for the repair of the boom, it was made necessary by the negligence of plaintiff. In other words, the tenor of the defense is that when it appeared that the boom had been damaged and that it was necessary that it be repaired at once in order that it might be used on that and other jobs, defendant did not object when he was advised that plaintiff could make or was making the necessary repairs, but that his acquiescence 'in allowing the piaintiff to make the repairs should not be construed as an admission that plaintiff was not responsible for the damage or that the defendant would pay for it. All of these contentions are so closely interwoven that it would unnecessarily extend and complicate litigation to say that defendant must go to trial on the question of whether he must pay to the Dixie Company for the repairs to his boom and then must be relegated to an entirely different and new suit to determine whether he may recover that identical amount from the Dixie Company.

Nor do we think that the cases upon which plaintiff relies, as supporting the contention that the reconventional demand should be considered, are analogous.

In Mente & Co., Inc. v. Louisiana State Rice Milling Co., Inc., 176 La: 476, 146 So. 28, the plaintiff sued for the balance due on the purchase price of certain rice bags which had been sold and delivered under .a written contract. In its recon-ventional demand, defendant sought recovery for the value of certain defective bags which had been delivered to it under an entirely different contract. It was held that the two claims arose out of two totally different contracts and that, therefore, the claim of the defendant, based on one contract, could not be set up in reconvention in the suit on the other contract.

Jones v. Davis, La.App., 155 So. 269, is in no sense in point here as can be evidenced by a mere reading of syllabus number three, which reads as follows: “Compensation and Reconvention: In suit on account by physician for services rendered and medicine furnished, credit claimed by defendant for potato plants sold physician' held not demandable in recon-vention, where physician and defendant were both residents of same parish and demand was not connected with nor in-cidéntal to main action (Code' Prac. art. 375).”

In Jackson v. Taylor Bros. Garage, Inc., La.App., 4 So.2d 41, in spite of the fact that the Court found that there was no connection whatever between a note for a part of the purchase price of an automobile truck on which one claim was based and an open account covering the sale of petroleum and other products on which the other claim was based, it did not dismiss the reconventional demand.

After reading. these decisions, we find ourselves confirmed in the view that there is a connection between the two claims which are here involved, and we consequently hold that the evidence tendered in support of the reconventional demand was properly admitted. . •

It thus becomes necessary that we determine just what was the reason for the buckling of the boom and just who was responsible for the negligence, lack or skill or fault which caused this buckling.

There is much disagreement as to the cause, and we think it unnecessary to set forth a detailed discussion of the testimony on this point. We reach the conclusion that the primary cause of the disaster was the method which was -employed in attempting to lift the stack and •to place it upright and- in position.

It is shown that the cable which passes' through the various pulleys or blocks was attached to the stack near its center and that it was intended that as the cable was-drawn in around the drum of the hoisting engine, the stack would gradually assume an upright position and that its lower end, which was weighted, could be placed in its proper location and -then the upper end could be raised until the stack should assume its final vertical position. It is shown, too, that the upper end of the boom was not directly over that part of the stack at which the cable was affixed and that, therefore, as the stack was raised, there was a side pull on the boom. It is shown, too, that a crane of this type is not braced so as to withstand a severe side pull.

Mr. Boulet, owner of the crane, did not witness the accident but he gave -a-statement, concerning' the cause and rendered an opinion based on what he knew of the facts, which coincides with the view which we have set forth concerning the effect-of the side pull. He said: “Well, the boom was over the stack cross-wise and it wa.s tied in the center, and when they started with that ■ block and line to pull it .in, whether that crane had jammed or not, .that boom was definitely certain to fold because- they were pulling against the side that had no .support, and as the stack was fifty-five feet up in the air they had .a leverage of fifty feet against that stack to bend it; the pictures you have there' show that's the direction the stack went over in, they were drawing the stack up against the.side of the boom; * *

As a secondary or contributing cause of the folding of the boom, the record indicates that, in an attempt to release 'a cable jam on the drum, the brake was partially released and the stack was permitted to drop suddenly a few feet in the hope that this sudden jerk would release the jammed -cable. This additional sudden jerk, coming as it did from a side position, undoubtedly threw upon the boom an additional side' strain greater than it could withstand.

' There - is no doubt in our minds that these two factors caused the folding of the boom. Who then is responsible?

We find that the crane was not' defective and that had it been properly used in the raising .-of this stack, - no accident would have occurred. -Tt necessarily follows that '-the cause, since it was not attributable- to a defect in the crane, must be -charged to carelessness on the part- of someone, or to the improper method of using the crane. It is made very clear that-in an.-operation of this-kind the foreman or superintendent is in complete charge and ¡that -his orders must be obeyed. This-foreman in this instance was Berniol, a1 -regular employee of the Dixie Company.-1 It''is made clear also that an op-eraW'of a crane, who, in this instance, was Zeagler,-has -no -right to refuse to1 obey orders of the superintendent except that if he believes that the carrying - out of the .orders, will: endanger himself, he may refuse to carry them out. But in such a case the superintendent may require him to leave and may then proceed with the operation, using such method as he thinks best. •

When the cable jammed it was impossible, without releasing this jam, to continue the' operation. Zeagler, the operator of the crane, and Berniol, the superintendent, discüssed the method to be employed in releasing the cablé and agreed that the brake should be released and the stack permitted to drop a few feet, in the hope that this jolt would release the jam. There is considerable dispute as to whether this method was suggested by Zeagler or by Berniol, but we. have no hesitation in finding that whoever suggested it, it was agreed to by Berniol, the general superintendent. He complains that, in releasing the brake, Zeagler did not await his' orders, and it is shown that it is customary for the operator of the crane to' operate it only after signals are given by the superintendent or someone in charge. We do not see, however, that this failure on the part of Zeagler to wait for a hand or other signal from Berniol had anything to do with the ultimate result. The method had been agreed upon, and when Zeagler mounted the crane and released the brake, he did what had been agreed upon, and we think that it was immaterial that he did not wait a few seconds for Berniol to give him the signal to do exactly what •he did do.

We, therefore, reach the conclusion that the fault was attributable to Berniol, — first, in attempting to raise the stack by pulling it sidewise and thus put-, ting a severe side strain on the boom, and second, in throwing upon it this additional sudden strain which resulted from the partial release of the brake. If we are in error in holding that Berniol was entirely at fault and in not finding that Z.eagler, too, might have. been careless, we do not. see that any different result would be brought about, for, as we view the evidence, it shows that Zeagler, during that entire operation, was the employee of the Dixie Company and was not the employee of Boulet.

Zeagler was not a regular employee of Boulet He was a member of the proper union and whenever Boulet needed someone to operate that crane, he would call on the office of the union to furnish. an operator. It is true that since he was of the opinion that Zeagler was a most competent man, -he asked for him whenever1 he was available. The record shows also that Zeagler was obtained by Boulet from the union office when Boulet requested that an operator be furnished with the crane. As a result of this situation, even if Zeagler had been regularly in the employ of Boulet, we think that when the Dixie Company rendered the crane and asked that an operator be furnished, when the crane and the operator commenced the job which the Dixie Company had contracted to perform, they did so under the orders of the Dixie Company and Zeagler became the employee 1 “pro ' hac vice” of the Dixie Company.

The fact that Boulet paid his hourly wages and required that the Dixie Company reimburse him for these wages and for such payments as had to be made for social security and for -those other myriad expenses -to which an employer is now subjected, did not change the situation. Boulet did this for the convenience of the Dixie Company. It was required that someone make the necessary social security returns; that someone keep the employment record of Zeagler, and Boulet ■agreed to do this and required the Dixie Company to make reimbursement. The fact that the reimbursement slightly exceeded the actual wages does not, we think,' change the situation. This slight excess was used for those additional deductions and also to cover the cost of bookkeeping made necessary by this method of procedure.

The truth of the matter is that Boulet had nothing whatever to do with the operation which was being conducted -by the Dixie Company, except that he rented to the Dixie Company his crane and secured -for the Dixie -Company the services of an operator. He was not a subcontractor employed to do any part of the job. The entire job was being done by the Dixie Company. And.that particular operation was being done under' the supervision of Berniol, the superintendent or foreman of the Dixie Company, ..

It is well settled that 'one who'is in the general employment of one employer1 may become' the borrowed servant of another employer .arid that when he does, the general employer is hot responsible for the. acts of that servant who has been loaned to the other ’employer.

In Vol. I A.L.R.2d p. 303, appears the following statement:' “Generally, one who has the status of general servant or employee may be lent or hired by his master to another for some special service so as to become, as to that service, the servant of such third person, the test being whether, in the particular service which he is engaged to perform, 'he continues to be under the , direction and 'control of his master or becomes subject to that of the person to whom he.'has' been let- for hire. And where an - employee, with his consent, has thus been let by . his general employer to another person, he. is deemed to have become, for all purposes of the relationship of master, and servant, the employee of the borrower. However,to establish the fact, under. the loaned servant doctrine, that the servant of.one has transferred his services to another pro hac vice it must appear that he has assented, expressly or impliedly, to such transfer. No on,e can transfer the services of his servant to another master without the servant’s consent. It must further.appear that the servant has, in . fact, .entered upon the service and submitted -himself to the direction and .control, of,, the new master. His assent may be established by direct proof that he agreed, ,to accept the new master, and to submit himself to his' control, or by indirect proof of circumstances justifying the inference óf such assent.”

We ourselves ¿ave recognized this situation in Spanja v. Thibodaux Boiler Works, Inc., La.App., 2 So.2d 668 and in Duke v. Dixie Building Material Co., La.App., 23 So.2d 822.

It has, also been recognized .by. .our Brothers of the First Circuit Court in Hutto v. Arbour, 4 So.2d 84, and in Cali v. Cloverland Dairy Products Co., 21 So. 2d 166.

In 39 Corpus Juris 558, section 669, the principle is . stated as follows: . “Servant of One Master Controlled by Another. Where one person lends his servant to another for a particular employment, the servant. for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him; and, if the servant receives injuries in such employment, from the negligence of a servant of the .person to whom he is lent, he cannot, recover therefor from the person to whom he is lent. Conversely, for the ■negligence of such servant in the particular employment of another master, the general master is not liable. The test is whether; in the particular service which 'he is' engaged to perform, he continues liable to the' direction and control of his mastér; of becomes subject to that of the party to whom'he is lent or hired. Nevertheless, the servant so loaned must consent to the change of masters, expressly or impliedly; and to bring the case within ■the' rule the services rendered by the employee "for the third person must be such as to Create the legal relation of master and servant. Actual exercise of the right to control the servant of the general employer in the service of a special master is not necessáry where the special master 'is willing to rely upon the experience and skill of the loaned servant. However, the fact' that’ the' general master pays the wages' ■ of 1 the servant does not preclude him from becoming pro hac vice the particular servant of another.” See, also, 56 C.J.S., Master and Servant, § 330.

An interesting question is raised by the contention of the plaintiff that when the damage was sustained Boulet requested that the repairs to the crane be made by the Dixie Company. The argument is that since Boulet asked that the repairs be made by the Dixie Company and by inference agreed that he would pay for the ■repairs, he cannot now be heard to say that the Dixie Company was responsible and should have made the repairs at its •own expense.

In the first place, the record leaves it considerably .doubtful as to whether Boulet made’ any such contract for the repair of the. boom. He says that the first knowledge that he had came to him on the day after the boom had buckled an.d that then he was merely told that the Dixie Company was making the repairs and was requested to give his permission to make some slight change in the boom. If this is true, obviously he had the right to assume that the Dixie Company recognized its responsibility and was making, the repairs because it had damaged his crane. If, on the other hand, however, he was told that the Dixie Company could make the repairs and would make the repairs for him, we see no reason why he would not have asked the Dixie Company to proceed with the repairs without thereby estopping himself to later contend that the Dixie Company was responsible for the damage which had made the repairs necessary'. Both he and the Dixie Company realized the extreme importance of having repairs made immediately so that the crane might proceed with the work in. which it was engaged for the Dixie Company, and might then undertake the second job which the Dixie Company had been employed to do and might then be released to him for such other work as he had on hand.

We do not see that it was necessary for Boulet to say to the Dixie Company that he did not wish them to make the repairs, that he would have someone else do so, pay that someone else and then make claim against the Dixie Company. It was most reasonable for him to ask the Dixie Company to make the repairs and then to leave open to discussion or litigation the question of who was responsible for the damage.

There seems to be no dispute over the, question of the amount to which Boulet is entitled if he may set up his claim in this suit, as we have held that he may.

The record conclusively shows that the amount claimed by him, $356.40, is correct.

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

Affirmed.


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    214 La. 744
    STATE v. MASINO et al.
    No. 39037.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Herve Raci-vitch, Dist. Atty. and Robt. E. LeCorgne, Jr., Asst. Dist. Atty, both of New' Orleans, for appellant.
    Louis E. Jung and Alex W. Swords, both of New Orleans, for defendants-appellees.
   MOISE, Justice.

This is a prosecution for “negligent homicide”. The Grand Jury of the Parish of Orleans returned an indictment against Anthony Sciambra, Paul Masino and Frank Perino for violation of Article 32 of the Louisiana Criminal Code. The indictment, drawn in conformity with Article 235 of the Code of, Criminal Procedure, as amended by Act 147 of 1942 and Act 233 of 1944-reads : “That one Paul Masino, one Anthony Sciambra, and one Frank Perino, each, late of the Parish of Orleans, on the nineteenth day of February, in the year of Our Lord one thousand and nine hundred and forty-six, with force and arms in the Parish of Orleans aforesaid and within the jurisdiction of the Criminal District Court for the Parish of Orleans, negligently killed one Willie Lee James, one Lelia James, one Adymar Wilson, one George Fortune, one Henrietta Harris, one Earl Harris and one Earl Harris, Jr., contrary to -the form of the Statute of the State of Louisiana in such case made and provided and against the peace and dignity of the same.”

To this indictment the defendant filed a motion for a bill of particulars. The State answered this motion and set out in substance that the deaths were the result of an explosion, the cause thereof being the alleged negligent acts of the defendants. Thereafter a motion to quash was filed. Evidence was -introduced on the motion to quash by the defendants and by the State. This motion was sustained by the court and the defendants were ordered discharged. From this ruling the State reserved a bill of exception which was perfected and the matter is now before us on appeal.

Article 32 of the Louisiana Criminal Code provides in part: “Negligent homicide is the killing of a human being by criminal negligence. * * * ”

Marr’s Criminal Jurisprudence of Louisiana, 2d Ed., Vol. 1, Sec. 345, p. 509, provides that “Defendant should -avail himself of the defects of an indictment by demurrer, motion to quash, or motion in arrest of judgment * * The court, in considering the motion to quash the indictment, must construe those facts as set'out in the bill of particulars to be true and determine whether or not, if proved, they .constitute the crime charged. It is of no moment whether we say that a bill of particulars is an amendment or an amplification of the indictment or a restriction of proof to be offered by -the State. It is easier to find fault with a remedy proposed than to propose a remedy that is faultless. We are dealing solely with the motion to quash. “A motion to quash an indictment on ground of defective recitals corresponds to the exception of ‘no cause of action’ in civil cases- — such motion should be disposed of on the face of the papers * * Marr’s Criminal Jurisprudence of La., Sec. 345, supra. The merit’s cannot be considered. It is true that evidence may be taken in a criminal case on a motion to quash, but the evidence is limited to procedural matters and may not include a defense on the merits.

The issue for decision has been well expressed in the case of State v. Bessar, 213 La. 299, 310, 34 So.2d 785, 789: “The indictment returned by the jury in this case being in the short form prescribed by the Code of Criminal Procedure, the defendant was entitled to a bill of particulars setting out more specifically and in detail the offense charged, i. e., the facts upon which the prosecution is based, Article 235, as amended, and this bill, when furnished, operated to limit the scope of proof on the trial -by restricting the introduction of evidence to -the proof of those facts set out in the bill of particulars. 31 Corpus Juris 752, § 310, 42 C.J.S., Indictments and Informations, § 156; 27 Am.Jur. 672, Section 112. See, also, .the annotations at 8 A.L.R. 550 and 10 A.L.R. 982. Consequently, the court in considering the motion to quash the indictment must construe those facts as set out in the bill of particulars to be true and determine whether or not, if proved, they constitute the crime charged.”

Here we are bound to reason from these factors: Does this indictment inform the court what offense is being charged, so that the proof will be restricted solely to the crime charged; and is the indictment sufficient on its face to support a plea of former jeopardy? These questions are answered in the affirmative. The issue to be decided on a motion to quash is whether or not the indictment itself is defective on its face, taking as true what is alleged in the bill of particulars. The fact that the defendants may have a good defense is not sufficient grounds to quash the indictment.

For these reasons, the judgment appealed from is avoided, reversed and set aside and the case is remanded to the district court to be there proceeded with according to law.

PONDER, J., absent.


author: KENNON, Judge.

text:
    DAVIS et al. v. SUREBEST BAKERY, Inc., et al.
    No. 7222.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.

      W. M. Harper, of Monroe, for appellants.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellees.
   KENNON, Judge.

On September 5, 1947, Rufus Lavelle Davis, age thirteen, was killed as he crossed U. S. Highway 80 at its intersection with State Highway 14. This intersection is four miles east of Monroe, Louisiana, near the Sicard overpass. This is a suit by his parents to recover damages against the driver of the truck, the bakery company which owned the truck, and its insurer.-

The petition alleged that the driver of the bakery truck saw the deceased and his brother as they were being discharged from a school bus upon which they were riding; that notwithstanding the fact that he was over 500 feet distant, Harris, the driver of the truck, continued downhill; without warning; without applying brakes; without looking where he was driving, and that he allowed the truck to get beyond his control and to strike their minor son with violent force, causing instant death.

After an exception of no cause of action was overruled, defendants filed a joint answer admitting the ownership of the truck, insurance coverage and the happening of the accident at the intersection described in the petition, but alleged that young Rufus Davis was killed when he ran out into the highway from behind the bus from which he had alighted and into the bakery company’s truck. In the alternative, and in the event that the driver of the truck be held negligent, defendants alleged that plaintiffs’ minor son was guilty of contributory negligence, and pleaded this as a bar to plaintiffs’ recovery.

The case is before us on an appeal from a judgment of the District Court rejecting plaintiffs’ demands.

In order to understand the details of the accident, it is necessary that the reader know the road situation at the point of impact and for some 200 feet westward and 700 feet eastward. The impact occurred at the east prong of the Y shaped intersection of State Highway 14 (from the north) and U. S. Highway 80 (running east and west). The east prong of this Y enters U. S. 80 at a point 680 feet west of the crest of the Sicard railway overpass. As U. S. 80 leaves the bridge portion of the overpass, it turns southerly, so that the neutral ground (between the east and west prongs of the Y intersection) is directly ahead of a west-bound vehicle coming down the incline from the overpass. Young Davis’ body was found across the black center line of U. S. 80 and opposite the center of the east prong of the Y intersection. From this point, it is approximately 700 feet eastward to the crest of the overpass and approximately 120 feet westward to the western end of the neutral ground between the prongs of the Y.

Plaintiffs introduced in evidence an engineer who had measured along the 820 feet of highway from the crest of the overpass down grade of 5 feet per 100 feet, to the final stopping place of defendant’s truck and noted the intervening features and distances; 306.5 feet from the crest of overpass to west end of bridge railing; 89 feet from west end of bridge railing to west end of north curb; 284.8 feet from west end of north curb (along which there is a level six foot shoulder) to east prong of Highway 14 intersection; 24 feet across intersection of U. S. Highway 80 with State Highway 14 (impact was in center of U. S. 80 opposite center of this intersection); 117 feet distance along parkway and north curb of U. S. 80 from, the east to the west prong -of Highway 14.

Mr. Foster, driver of the school bus, when he heard the noise of impact, was going up grade at a reasonable speed and immediately stopped his bus, 115'feet east of the point of impact, where it remained until the coroner, troopers, etc., arrived. The boy’s body remained in the center of the road where it fell and defendant’s bakery truck remained across U. S. 80 114 feet west of the point of impact. • These distances were noted by the State Troopers and other witnesses. We therefore know with certainty that the truck driver’s only warning was given at a distance of over 600 feet from the intersection and know that the boys were within the view of the truck driver for the last 80 odd feet of his travel preceding the impact. We know that there was slightly over 200 feet of distance between the spot where the truck driver saw the boys in the position of danger and the place he stopped his truck, against the south curb of U. S. Highway 80.

The. deceased, Rufus Davis, and his brother, James Davis, age fourteen, who was slightly crippled, had been to Monroe on the day of the accident. Mr. C. L. Foster, an employee of the Ouachita Parish School Board, gave the two boys a ride from the city limits eastward along U. S. Highway 80 to the point where State Highway 14 (on which the boys lived) intersected Highway 80. Mr. Foster expected to continue to his home further eastward and stopped on the right (south) side of U. S. 80 right in the mouth of the east prong of the Y road intersection of U. S. 80 and State Highway 14 leading north. This road intersection is at the foot of the Si-card overpass over the Missouri-Pacific railway. After the boys alighted, and as Mr. Foster started ahead, he observed a truck (defendant’s bread truck) coming over the crest (680 feet distant) of the overpass. By the time the school bus had proceeded a hundred feet eastward, the bread truck had passed and Mr. Foster heard the noise made by its striking Rufus Davis or running through the curb and shrubbery. The school bus driver quickly stopped and rushed back to the road intersection, where he found Rufus’ body almost in the center of the 22 foot wide road, with his head on the south side of the road and his feet on the north side. James Davis, unhurt, was standing over his brother’s body. The truck had proceeded on past the east arm of the Y intersection and’ instead of making the left turn with the road, had continued directly ahead and over the curb into a parkway through the shrubbery and parkway and back into the road and had finally come to a stop headed south with its front wheels against the south curb of Plighway 80 and blocking that highway. Its hood was dislodged during its careening progress.

In passing on plaintiffs’ allegations of-negligence, we have examined carefully what the record establishes as to the speed of defendant’s bread truck from the crest of the overpass to the point of collision; the distance the bread truck driver was from the intersection when he observed the Davis boys, near the center of U. S. 80 at that intersection (the distance of the school bus from the intersection at the time it was passed by the bread truck determines the spot where the bread truck driver could again see the Davis boys) ; the action of the bread truck driver in keeping straight ahead, instead of turning to the right after he observed the Davis boys; the defective pull-to-the-left condition of the bread truck’s brakes, particularly as this bore on the failure to turn out to the right; and the failure of the bread truck driver to give adequate warning of his approach to the highway intersection after he had seen the boys alight at the southern end and his view of the south half of U. S. 80 was obstructed by the school bus proceeding eastward. •

Harris, driver of the bread truck, at the time of the trial, testified that he was traveling 25 — and on cross-examination, possibly 30 — miles an hour at the time he saw the boys near the center of the road. However, he told the State Troopers in answer to their questions as they filled out their routine report, that he was going 45 miles per hour at the time “danger of accident first noticed” and that he had broken down the speed to 35 miles per hour at the time of impact. Young James Davis estimated his speed at 45 miles an hour, but the surest indication in our minds that his truck was making relatively high speed is the fact that it was not brought to a stop until it had gone more than 100 feet beyond the point of impact. During this time, it went over a seven or nine inch curb, down through approximately 100 feet of a dirt neutral ground, straddling hedges and finally came to rest 117 feet from the collision point, with its front wheels against the south curb of the highway. Since we find that he first observed the hoys in the highway when he was 85 feet from the collision point, his truck necessarily traveled over 200 feet between the time he sensed danger and stopped the truck.

There is a table of stopping distances and stopping times contained in a well written article in 14 Tulane Law Review, page 493, and while the special circumstances of each case must also be considered, the table furnishes a useful standard for comparison. At the time of the accident the pavement was dry, the weather clear and conditions were excellent for stopping, with the exception that defendant’s truck was traveling downhill. Special circumstances tending to aid the driver in slowing down the truck, were the seven -inch curbs around the neutral ground, the breaking effect of the hedges and shrubbery, which the truck straddled, the soft dirt of the neutral ground and the final barrier provided by the south curb of U. S. 80. The table shows that for a speed of 30 miles per hour, a vehicle under average conditions should be stopped in a distance of 83 feet, including reaction time. By comparison, a speed of 50 miles an hour, using the same table, requires a stopping distance, including reaction distance, of 193.7 feet.

Considering all the factors determining this stopping distance, such as speed, momentum and grade, efficiency of brakes, condition of road surface, the obstacles encountered, and the statement of Harris to the investigating police, we conclude that Harris was operating his truck at 45 to 55 miles per hour, a speed negligent under the circumstances.

Harris testified that as he came down grade, his view of the Davis boys was obstructed by the on-coming school bus (which was some eight feet high, eight feet wide and long enough to accomodate fifty or sixty children) ; that he first saw the children in the road when the cab of his truck was opposite the cab of the school bus, and that, at that time, the boys were coming from directly behind the school bus. On the distance his truck was from the children, his testimony is contradicted by that of the driver of the school bus, the living Davis boy, and all the other witnesses who testified as to the location of the vehicles and the distances involved. Mr. Foster, driver of the school bus, testified that he had moved the bus approximately 100 feet when he heard the noise incident to the impact; that the Davis boy’s body was 115 feet back of his truck and that this distance was stepped off after the police got there. The living Davis boy testified that the school bus was 70 or 80 feet away when his brother was struck. Marion Briley, who was on his back porch near by, said the school bus was 90 feet from the point of impact. Two State Troopers estimated this distance (without measuring) as approximately 80 feet. Harris himself, in assisting the State Troopers in the preparation of the accident report on the day it happened, in answer to the question as to the distance he was away when “danger of the accident first noticed" gave 85 feet as the answer. This admission — made when the accident was fresh in his mind — is in keeping with the testimony of the other witnesses. For instance, Daniel Chriceal, who was stopped on the highway some distance in rear of the school bus, testified that the bread truck was “behind the school bus” at the time the boy came across the center of the road. . Harris himself, in answer to the question as to whether he observed the boys between the time he saw them on the shoulder of the road and the time he saw them near the center of the road, gave as the reason for not seeing the boys that “the bus was pulling up.” The driver of the school bus testified that he was pulling up at the time the bread truck came over the crest 680 feet away.

The record as a whole convinces us that Harris was mistaken in his testimony at the trial concerning the distance between his truck and the boys at the time his view of them — previously obstructed by the school bus as it proceeded eastward — was uncovered. Foster testified that as soon as the boys alighted, he immediately moved forward and he further stated that his truck had a relatively speedy pick up. The fact that the boys had had time to pass around the rear of the bus and out to the center of the road indicated that the school bus had had time to go forward the distance Foster testified it had gone. The bread truck driver definitely places his position, at the time he saw the boys in the road, as being in line with the driver’s seat (near the front of the school bus), and having placed the spot where the boys began to cross the road with relation to the school bus as being close to 100 feet, we conclude that at the time Harris saw the boys, he was 75 to 100 feet away.'

As noted in judicial decisions and leading law journals on control of vehicle and the distance necessary to stop, there must be taken into consideration the “reaction time” of the driver. The average driver requires, after danger is observed, three fourths of a second to make his brakes effective. Defendant’s brakes became effective at a distance of 14 feeA from the deceased, as evidenced by the single skid mark along the pavement for th? final 14 feet before impact.

At a speed of 55 miles an hour, his truck would cover approximately 60 feet in three fourths of a second, and possibly a few feet more before the brake application reached skid mark effectiveness. Even at 30 miles an hour the “reaction distance” plus the 14 feet skid mark distance would have, of necessity, placed the deceased at more than 40 feet from Harris at the time he sensed danger. In view of the evidence of Harris, the driver, and the other witnesses, that the unfortunate boy, after starting to run, stopped, and instinctively put out his hands, which were struck by the front grill work, throwing his body against the left fender edge where a jagged broken place ripped his back open, it is obvious that, had the truck been turned even a few feet to the right during the approximately 85 feet that the driver traveled after sensing the “danger of accident,” his life would have been spared.

The only explanation for the truck’s keeping the fatal bee line instead of the ■indicated normal evasive right turn, is found in the test of the truck after the •accident by the State Trooper, which showed that its brakes pulled to the left.

This defective brake condition which caused the truck to pull to the left on application of brakes, is the principal and proximate cause of the accident, if a one principal cause could be assigned to an involved series of incidents leading to a fatality.. The boy’s body was found across the center line of the highway. All witnesses agreed that young Davis was never more than two or three feet across the center line and into the bread truck’s north half of the highway. The truck driver on the trial admitted that he saw the boys 25 to 35 feet in front of him— when talking to the highway officers he had placed this distance at 85 feet — the paved portion of the road was 22 feet wide, and, except for the faulty brakes, there is no explanation as to why the driver should have continued almost straight ahead after seeing the boys’ perilous plight. On a 22 foot road a truck would normally stay two or three feet on its own side of the center line as a matter of routine. Not only did the driver not pull to the right before the accident, but he continued straight ahead after the impact, as the photograph of the road shows that the U. S. 80 turns left and the neutral ground which the out of control truck entered after the accident, was straight ahead of the truck as it ran down the unfortunate boy.

The living Davis • boy’s testimony was that he did not hear the bread truck’s horn blow (doubtless he wouldn’t at 680 feet) and that the first time he saw the truck mas after it had passed the school bus, and when it was some 40 feet away from his brother, who had seen it first.

The truck driver recognized the necessity for giving warning for his approach to the intersection by sounding his horn when he came over the crest and first observed the boys and the vehicle which had discharged them. However, this warning at 680 feet was ineffective and he was negligent in continuing to approach the intersection without further warning and while his view of what was happening in the south half of U. S. Highway 80 at the intersection was obstructed by the on-coming school bus.

We conclude that the driver of the defendant’s truck was negligent in that he, after seeing the boys and the bus over 600 feet ahead of him when he topped the crest, did not slow down or bring his truck under control, but continued downhill at high speed even though he knew the intersection was in front of him and while his view of the south half of that intersection was obstructed by the on-coming school bus. The defendant’s truck driver was further negligent in operating his truck on the highway with improper brakes and in approaching a highway intersection, which had already been pre-empted by the Davis boys, without warning and at such a speed and with his brakes in such condition.

We next consider defendants’ defense that the plaintiffs are barred in their recovery by the contributory negligence of their son, who the answer alleged rushed out into the highway from immediately behind the school bus from which he had alighted and into the path of their truck, which he had failed to observe and in running into and against the right (doubtless defendants meant left) front portion of the truck; “and in otherwise violating the provisions of the Louisiana Highway Regulatory Act [Act No. 286 of 1938], common prudence, and.the rights of others lawfully using said highway, particularly the said Carl C. Harris.”

The first act of contributory negligence alleged is that the deceased failed to accord right-of-way to defendant’s truck. We find as a fact that the lad entered U. S. Highway 80 at the intersection point at a time when the truck was approximately 500 feet away, and on the point of who entered the intersection first, the pedestrian had clearly pre-empted the intersection. Pedestrians have the same right to the use of public streets and highways as motorists. Ward v. Donahue, 8 La.App. 335.

As to defendants’ second contention that the Davis boy ran into the highway from immediately behind the bus and directly into the path of the truck, when the truck was too close to avoid an accident, we find, as discussed earlier in the opinion, that the school bus had proceeded on up toward the overpass a distance of 75 to 100 feet — 85 feet was the distance given by defendant’s driver to the highway officers — and that this distance was “too close to avoid an accident” principally because of the excessive speed and momentum of defendant’s truck and the defective condition of its brakes.

On the question of failing to observe defendant’s truck, we find the evidence does not-show that the deceased looked eastward at the time Harris was at the crest and said he sounded his horn. Due to the obstruction of view by the school bus, defendant’s truck was not in view of the deceased as he crossed the south half of the highway, and the defendants have not met the burden of proving negligence in this regard.

As to the final allegation that the deceased was guilty of contributory negligence in running against defendant’s truck and otherwise violating the highway regulatory act and “violating the rights of others lawfully using the highway, particularly Carl C. Harris,” the testimony shows that the deceased, as he entered the Y intersection and crossed the south half of U. S. Highway 80, did not observe defendant’s on-coming truck because his view was obstructed by the school bus as it proceeded up grade and that when he had reached approximately the center of the highway, young Davis first saw the bread truck bearing down on him as it sped past the school bus. Faced with this sudden emergency, he first started to run. An instant later, possibly observing that the truck was coming with such speed and momentum, he decided that to stop might be the better avenue of escape and his maneuver of stopping was almost successful, as only his outstretched hands were struck by the front portion of the truck as it whizzed past; but after the slight contact, his body was turned and the jagged break in the front/ fender ripped his body open. Numerous ■cases in Louisiana and elsewhere have held that a person who due to panic does the wrong thing and fails to escape from a position of danger in which the carelessness of another person has placed him, is not responsible for his lack of choosing a different course of action which, from a “hindsight” view would have avoided the accident.

The burden of establishing contributory negligence is upon him who alleges it. The record shows that at tile time Rufus Lav elle Davis entered the intersection, no vehicles were coming from the west. Consequently it was safe for the boy to enter and cross to the center. The record does not show that young Davis would not have been safe at this point had the approaching vehicle been coming at a more reasonable rate of speed, or, regardless of speed, had the brakes not been defective to the extent of pulling the truck to the left. The deceased had the right to assume that any vehicle approaching the intersection from the east would be operated at a lawful rate of speed and that the driver would have same under reasonable control and that its mechanical condition would be such as to permit the normal maneuver in case the circumstances required stopping or turning. A pedestrian is not guilty of contributory negligence in presuming that approaching vehicles will be carefully operated in conformity with highway trafile regulations. Langley v. Viguerie et al., La.App., 189 So. 605.

A careful examination of the record leads to the conclusion that defendants have not established by the preponderance of evidence any of the allegations of contributory negligence contained in the answer.

In the case before us, we differ with our learned brother below on several findings of fact. For instance, his opinion contains a statement that the defendant's truck driver turned his vehicle clear off the road in an effort to avoid the accident. The testimony shows that his vehicle continued straight ahead from the time the driver discovered the boys’ peril, and that he entered the neutral ground, not by turning the truck to the right (the evidence showed the impact occurred near the center of the road and the truck driver never turned to the right), but by going straight ahead past the point where U.S. Highway 80, upon which he was traveling, turns to the left. ■ The testimony on this point is borne out by the pictures in the record, showing the body in the center of U.S. 80 and by pictures showing that the left turn of the highway places the neutral ground directly in front of the path of defendant’s truck.

Appellate courts should be, and we think always are, reluctant to reverse the judgment of a trial court when questions of fact are involved. The weight of the trial court’s finding should be recognized.

However, having determined that the facts of the accident in this case are such that, ’under the law applicable, the defendants are liable, it becomes our duty to render judgment accordingly.

As usual in cases of this sort, it is extremely difficult for the Court to measure in money the loss which the parents of the deceased have experienced and the principal guide in fixing the award is the action of Courts in similar cases. We have concluded to award $4500.00 to each parent, and an additional $330.00 to the father for funeral expenses and loss of time.

For the reasons assigned, the judgment appealed from is set aside and judgment is now rendered in favor of plaintiff, William ■ Anthony Davis, and against the defendants, Surebest Bakery, Inc. and National Automobile and Casualty Insurance Company, in solido, in the sum of Four Thousand Eight Hundred Thirty and No/ÍOO ($4830.00) Dollars, and in favor of plaintiff, Mrs. Nancy Lee Davis, and against the same defendants in solido, in the sum of Four Thousand Five Hundred and No/100 ($4500.00) Dollars^ both judgments to bear five per cent, per annum interest from judicial demand until paid. Defendants to pay all costs.


author: McBRIDE, Judge.

text:
    PAYTON v. JONES.
    No. 19122.
    Court of Appeal of Louisiana. Orleans.
    Feb. 7, 1949.
    Rehearing Denied March 14, 1949.

      Herman & Herman, of New Orleans, for plaintiff and appellee.
    Andrew H. Thalhein, of Gretna, for defendant and appellant.
   McBRIDE, Judge.

Anna Mathieu, wife of Sanders Payton, Jr., died intestate on April 6, 1947, and shortly thereafter Henry Jones, claiming to be her child by a previous marriage and her sole heir, accepted her succession purely, simply, and unconditionally, and was recognized and sent into possession by the Civil District Court for the Parishs of Orleans. The entire estate amounted to $2,-000 and consisted only of a lot of ground in Algiers, upon which there is a small house known as 1000 Odeon Street, which was her separate and paraphernal property inherited from her parents.

The matter before us is the suit of Sanders Payton, Jr., against Henry Jones, wherein plaintiff seeks to have annulled and set aside the judgment recognizing Henry Jones as the sole heir of Anna Mathieu. It is alleged that Henry Jones is not the lawful issue of the decedent, and that the collateral relatives of decedent, and Sanders Payton, Jr., as the surviving husband in community, are entitled to the property. In the alternative, plaintiff alleges that if the said judgment is not set aside or annulled, then he is entitled to recover from the defendant certain amounts due by the estate of Anna Mathieu, and judgment is prayed for accordingly.

Defendant filed two exceptions to the suit, which were referred to the merits by the court below. These exceptions have not been reurged before us, and we take it that they have been abandoned.

Defendant filed an answer which is equivalent to a general denial, and reconvened for rent allegedly due by Payton, who.continued to occupy the property after Anna Mathieu’s death.

There was judgment below dismissing Payton’s main demand, but on the alternative demands he recovered $1,154.94. All rights of defendant to proceed for possession of the property were reserved to him. Defendant was allowed $234 on his recon-ventional demand for rent. This present appeal has been taken by Henry Jones. Payton did not appeal, nor did he answer Jones’ appeal.

In his first alternative demand, Payton alleged that decedent, during 1942, borrowed $1,100 and secured her indebtedness by giving a mortgage on the property, and that Payton, out of community funds, paid a portion of the mortgage indebtedness and is, therefore, entitled to recover his community one-half of the aggregate of such payments from Jones.

The evidence discloses that on May 14, 1942, the decedent mortgaged .the property to secure a note of that date for $1,109 payable to the order of herself and by her endorsed, with interest at the rate of seven per cent, and payable at the rate of $16-per month. Payton testified that Anna Mathieu borrowed this money specifically for the purpose of making improvements to-1000 Odeon Street, which consisted of a new roof, shoring,-now siding, and replacement of sills and |looring, all of which cost the sum of $1,100. His testimony is un-contradicted. Jones admitted that a new roof and siding had been placed on the house, but stated that he does not remember the year in which the work was done.. We have no doubt that the decedent made the loan for the purposes mentioned, and that the proceeds of the loan paid for the-work.

Payton, up to decedent’s demise, •and out of his wages as a longshoreman, all of which fell into the community of ac-quets and gains then existing between himself and Anna Mathieu, whom he married on July 27, 1936, paid $569.88 on account •of the mortgage indebtedness. The trial judge allowed him one-half thereof, or $284.94, as his community share, and we think that such allowance was correct.

The payment by the husband of notes of the wife, secured by mortgage on her separate property, constitutes the husband her creditor to the amount of such payment. Aiken v. Robinson, 52 La.Ann. 925, 27 So. 134, 529. The heirs, by the fact •alone of the simple acceptance of a succession without benefit of inventory, contract the obligation to discharge all debts of such succession, to whatever sum they may amount. Rev.Civ.Code art. 1423.

The next claim is that Payton, out of his ■own separate funds, during the year 1938, extended certain monies for other capital additions and improvements. The evidence shows that Payton was a veteran and during 1936 received his World War I adjusted service bonds from the Treasury Department in the sum of $767.37. Plis un-contradicted testimony is that out of their proceeds the improvements and additions were paid for.

During 1938, Anna Mathieu had a bathroom added to the property, with plumbing and a cesspool. The work was done by Harold Belcher, who testified that he performed the services in 1938 and that his charge amounted to $278, which was paid by Payton. Defendant admitted that a new bathroom with the plumbing and cesspool had been added to the house, and we have little difficulty, therefore, in finding that the $278 was expended in improving •decedent’s house, and that the cost was paid out of Payton’s separate funds. There is no doubt that these betterments •enhanced its value, at least to the extent •of their costs. However, the court below was in error in allowing $485 for this item, and unquestionably it' should be reduced to the sum of $278. Defendant’s counsel, in contending for a disallowance of this item; argues that under our law it is the duty of the husband to furnish his wife with a home, and that whereas plaintiff lived in the house with Anna Mathieu he should bear the costs of the improvements.

We see no merit in this contention. It is well settled that improvements erected during marriage by one spouse on the separate property of the other belong to the owner of the soil, subject only to the duty of paying to the other spouse, at the dissolution of the community, the enhanced value of the property resulting therefrom. Rev.Civ.Code art. 2408; Succession of Singer, 208 La. 463, 23 So.2d 184; Succession of Meteye, 113 La. 1012, 37 So. 909; Succession of Webre, 49 La.Ann. 1491, 22 So. 390.

In Courrege v. Colgin, 51 La.Ann. 1069, 25 So. 942, the Supreme Court held that where expenses are incurred by which improvements of a substantial character are added to the wife’s separate estate, it is liable to the husband for the indebtedness incurred for such improvements.

The third claim is for the expenses of Anna Mathieu’s funeral. The decedent held two policies of insurance issued by the Unity Industrial Life Insurance Company. One was a life policy for $200 in which Sanders Payton was designated as beneficiary; the other was a burial policy, with Sanders Payton as beneficiary, stipulating that Anna Mathieu would receive a funeral and certain mortuary services to the value of $200, provided that the official undertaker of the insurer would be selected to conduct the funeral. "

The record indicates that Willis Funeral Home was the official undertaker, but Pay-ton declined to allow that establishment to handle the burial, because of statements he had heard from other persons that this official undertaker rendered unsatisfactory services, and that he wanted his wife buried by the Gertrude Geddes Funeral Home so that she would be “put away like she should.”

The funeral bill was $584.25. Payton surrendered to Gertrude Geddes the two policies, with the understanding that the undertaker would collect the proceeds and apply the same to the funeral bill. However, by virtue of a provision in the burial policy, to the effect that if the burial was not handled by the official undertaker then only sixty per cent of the iface of the policy, $120, would be paid to the beneficiary, the insurer made a deduction of $80 and paid to Gertrude 'Geddes the sum of $321.32, being $200 for the. life policy, $120 on the burial policy, and $1.32 representing a return of prepaid premiums on the latter. Payton paid the difference of the undertaker’s bill in cash.

Defendant’s counsel argues that it was Payton’s duty, in view of the burial policy, to have had Anna Mathieu buried by the official undertaker, so that there would have been no funeral charges. It seems to us that Payton’s reasons for not wanting to do business with the official undertaker were sound, and desiring to have his wife buried in a manner which he believed to be fitting, he placed her burial in charge of an undertaker in whom he had confidence. It is true that the funeral amounted to more than the one provided for in the burial policy, but we do not believe that Payton was unreasonable in giving her the more expensive interment. The only limitation placed on the amount of funeral charges, to our knowledge, is to be found in articles 3193 and 3194 of the Revised Civil Code, to the effect that the judge can never allow at the expense of an insolvent estate, on any account whatever, more than $200 for all the expenses occasioned by the interment of thé deceased.

There iá* nothing indicating that Anna Mathieu’s estate is insolvent. Her property, the house on Odeon Street, according to affidavits in the record, is valued at $2,000 The only indebtedness shown is the claims of Payton, and perhaps a small amount due on the mortgage hereinabove discussed.

We do not believe that the surviving spouse or the heirs of a decedent are privileged to burden his estate with exorbitant burial charges, but in determining whether such charges are reasonable it seems to us that the living standards, both financial and social, of the parties should be given consideration. Payton and Annai Mathieu were 'Colored persons who lived together in the Odeon Street house, which was owned by the wife, and in view of the apparent pride taken in their home, manifested by their modernizing it, we can surmise that theirs was a fair standard of living for colored persons. In the present times, too, we can only conclude that the-price of funerals, as well as that of all! other services and commodities, has risen considerably because of the depreciated dollar. Payton wanted his wife “put away like she should.” We do not believe the-bill was out of proportion with the value-of the estate.

Also to be taken into consideration! is the fact that the policy called for a $200 burial, for which defendant must be given full credit, notwithstanding the $80’ deduction made by the insurance company. It was Payton’s choice not to deal with the official undertaker, and we believe that he, and not Anna Mathieu’s estate should bear the loss of $80.

Defendant’s counsel also contends that Payton voluntarily remitted his claim for the undertaker’s bill, pointing to the following testimony of plaintiff:

“Q. Now, why was it that you contracted for a funeral expense of $584.25?' A. Because I wanted her to be put away decent, and after he made his account of what it would cost to have this thing done,. I just went and had it done. I didn’t care to have no return of any money, I wanted her to be put away like she should. * *

We do not believe that Payton’s words-should be construed as evidencing a remission of the debt. The Revised Civil Code, in treating “Of the Manner in Which Obligations May Be Extinguished,” provides in article 2130 that an obligation may be extinguished by voluntary remission. The remission may be either conventional, when it is expressly granted to the debtor by a creditor having a capacity to alienate,, or tacitly, when the creditor voluntarily surrenders to his debtor the original title under private act which establishes the obligation. Rev.Civ.Code art. 2199.

We fail to see how Payton’s words describing’ his mental attitude at the time the burial was contracted for, that he did not “care to have no return of any money,” can possibly be construed as a remission of his claim against defendant.

Deeply imbedded in our law is the old axiom that no one is presumed to have renounced a right unless it clearly appears that he intended to so do, and there appears nothing to indicate that Payton irrevocably intended to waive the claim.

The $200 life policy in which plaintiff was named as beneficiary formed-no part of the insured’s estate, but belonged exclusively to him. Nulsen v. Hern-don, 176 La. 1097, 147 So. 359, 88 A.L.R. 236. Payton must be given credit for this $200. In addition thereto, he paid $182.93 in cash, and the amount due him for the funeral charges is $382.93, and not $385, which was the amount fixed by the lower court.

Funeral expenses created after death are not community obligations, and are to be charged against the decedent’s separate property, or his net one-half of the community estate. See Succession of Lewis, La.App., 12 So.2d 7, and cases therein cited.

The trial judge allowed defendant, as reconvenor, $234 for rent, which was computed up to the date of the trial, but defendant asserts that the amount ■should be augmented so as to include rent to the date of the finality of our decree. Whether we would have the right to increase the amount so as to include accruals post-dating the trial is a question that need not be resolved, as there is nothing in the record disclosing that Payton ■occupied the property after the trial, or that he is living there at the present time, or that he owes any more than the amount fixed by the court.

For the reasons assigned, the judgment .appealed from is' amended so as to decrease the allowance to Sanders Payton, Jr., to the sum of $945.87, and as so amended, and in all other respects, it is affirmed; all costs are to be paid by plaintiff-appellee.

Amended and affirmed.


author: HARDY, Judge.

text:
    AMERICAN INS. CO. et al. v. A. L. & W. MOORE et al.
    No. 7254.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Jan. 6, 1949.
    Certiorari Denied Feb. 14, 1949.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellants.
    Redmond & Harkey, of Monroe, for appellees.
   HARDY, Judge.

This is an action in which Vernon W. Butler and his insurer and subrogee, American Insurance Company, seek to recover for damages caused the plaintiff Butler’s automobile in a collision with a truck owned by the defendants, a commercial partnership and the individual members thereof,, and driven by one of their employees. After trial there was judgment in favor of plaintiff Butler in the sum of $50, and in favor of plaintiff American Insurance Company in the sum of $393.55, from which judgment defendants have appealed.

The accident in question occurred about .6:00 P.M. of June 12, 1947, as both cars were proceeding in a westerly direction on Highway 80. Butler & Sons Lumber Company, in which plaintiff Butler has an interest, is located on the north side of said Highway 80 and is reached by a private road intersecting said highway.' The collision occurred at the point of the intersection. It is shown that at this point Highway 80 is.level and straight for a distance of several hundred yards in each direction. Most of the facts involved have been established without dispute. It appears that as the vehicles involved in the accident, both traveling west, were some 400 yards distant from the intersection above described, the plaintiff Butler, who was driving a Pontiac Sedan at a speed of some 40 to 50 miles per hour, undertook to pass two trucks which -were being driven at a speed of 20 to 30 miles per hour. Having completed this operation at a point which was established in the testimony of plaintiff Butler himself as being some 150 to 200 yards from the intersection, Butler swung his automobile into his right-hand lane of the highway, reduced his speed and began his turn into the private road leading to the lumber company, which was his destination. The only substantial conflict in the testimony is with respect to the manner in which Butler completed his passing operation and made his turn. The above statement is based upon his testimony but this is stoutly contradicted by -the defendant’s driver, who testified that Butler began his swing across the highway and into the lumber company road in one operation without having straightened out in the right lane of the highway.

There were five witnesses who testified as to the actual facts of the collision: the plaintiff Butler and his companion, who was a passenger on the front seat of his car; defendant’s driver and a fellow employee riding with him; and the driver of the truck which was following some 2 to 4 car lengths behind defendant’s truck. The latter witness did not actually see the collision but his testimony corroborated that of the plaintiff Butler on the fact that Butler had regained the right side of the highway before beginning his turn.

Inasmuch as this concerns a pure question of fact, we have devoted considerable attention to the statement of reasons for judgment as advanced by our learned brother of the district court. The district judge predicated his judgment upon a finding of negligence on the part of defendant’s driver, and, if this were the only point at issue, we would not be disposed to disturb the judgment. But we are convinced that the trial judge failed to give thorough consideration to the question of contributory negligence of a nature and to a degree which precludes recovery in this case.

In reaching this conclusion we have been influenced primarily by the testimony of plaintiff himself, and we quote portions of his testimony as follows:

“A. I was going in a westerly direction on Highway 80; I was traveling at approximately forty to forty-five miles an hour and I passed this Mack truck driven by Mr. Arrington I would say between three and four — I began my attempt to pass between three and four hundred yards from the place.
“Q. From what place? A. From the yard where I made my right turn, where the accident actually happened. Well, I had driven from a hundred and fifty to two hundred yards after completing that pass. Well, as I was making my — I gave a right hand signal, as I made the turn I was looking back in the rear view mirror and saw the. truck immediately on me, and I tried to whip off the road and it didn’t do' any good, I didn’t have enough speed, I had reduced my speed to about five or ten miles an hour.”
“Q. Now, Mr, Butler, before overtaking and passing the vehicle driven by John C. Arrington, did you overtake and pass any other vehicle ? A. I did..
“Q. What type of vehicle was that? A. It was a truck.
“Q. And about how far was this truck to the rear of the vehicle being driven by Arrington? A. At the time I passed?
“Q. Yes. A. That truck was following the one driven by Mr. Arrington.”
“Q. Did you pay any more attention to the Mack truck after you passed it, Mr. Butler? A. I gave the signal, and after giving the signal I looked in my rear view mirror and the truck was immediately on me.”
“A. It was during the turn I gave the signal. As a matter of fact that is when-I.took the signal down is when I saw he was going to hit me and then I tried to put both hands on the steering wheel - and whip the car off the road.
“Q. As soon as you looked up in the rear view mirror you realized that the truck was going to hit you if you made a right turn, is that true? A. I had already begun my turn.
“Q. Well, did you begin that turn without knowing where the car was that you had just passed? A. The truck, you mean?
“Q. Yes, sir. A. Did I start to turn—
"Q. Yes, sir; at the time you started your right turn did you have any idea where the following truck was on the highway? A. At the time I started to turn?
“Q. Yes, sir. A. Oh, I gave my right hand signal — no, sir; I didn’t not ’till I started to turn, or just immediately you might say prior to starting to turn * *

We think the above quotations from the testimpny of the plaintiff Butler gave a clear and truthful picture of the incidents leading to the accident. It is evident that Butler passed two trucks, turned in front of them, reduced his speed considerably, and then began his operation of turning to the right off of the road without taking the essential precaution of observing the position of the vehicles which he had reason to know were following almost immediately behind him. Under such circumstances we think his behavior constituted negligence of a nature which contributed to and was a proximate cause of the accident.

Some argument is made on behalf of plaintiff to the effect that defendant’s driver turned to the right instead of the left in his attempt to avoid the collision. The argument is predicated upon the proposition that there was no oncoming traffic and a turn to the left would have cleared the Butler vehicle. We think this contention unavailing in view of the fact that defendant’s driver was confronted by a sudden emergency. He explained his reaction and his reason for turning to the right on the ground that he was afraid to turn to the left and create a hazard with respect to possible oncoming traffic. In our opinion this explanation evidences sound judgment, but even conceding that under the circumstances it constituted an error of judgment the driver would be exempt from any liability resulting from such error under the well established rule which refuses to penalize an error of judgment resulting from action in response to the creation of a sudden emergency.

For the reasons assigned the judgment appealed from is reversed and set aside, and there is now judgment rejecting plaintiff’s demands at their costs.


author: TALIAFERRO, Judge.

text:
    HIGHLAND LUMBER & SUPPLY CO. v. YOUNG et al.
    No. 7223.
    Court of Appeal of Louisiana Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Jan. 6, 1949.
    Certiorari Denied Feb. 14, 1949.

      Robert J. Newson, of Shreveport, for appellant.
    S. N. Young, of Shreveport, for appellee.
   TALIAFERRO, Judge.

After opinion had been prepared in this case, the appellant, Robert J. Newson, filed motion to dismiss the appeal or remand the case for further proceedings on the ground that the questions raised and tendered for decision in the case on its merits had, since the case was argued and submitted, become moot. The basis of the motion, as reflected from the allegations thereof, is that Lot No. 188 of the Cedar Grove sub-division to the City of Shreveport, on which appellant herein has two special mortgages, and againist which plaintiff, appellee, is asserting material man’s lien and privilege, allegedly superior to defendant’s mortgages, had been recently sold in foreclosure proceedings on a mortgage that in rank primed said asserted lien and privilege and also defendant’s mortgages. The conclusion to be drawn from these allegations is that the lot above described may no longer be proceeded against by the parties to the present litigation since it has been sold under a mortgage superior in rank to the claims of each.

The allegations of the motion were verified by affidavit of the mover. Appellee, through counsel, answered the motion and denied the allegations of fact therein set forth. This answer is also verified by affidavit.

It is manifest that a serious difference exists between the appellee and appellant, Newson, as to what happened and the legal effect thereof in the foreclosure described in the motion.

While it is true, as said in Ruffo et ux. v. Marcotte, 161 La. 147, 108 So. 316, 317, that courts “do not sit to decide moot and abstract propositions, either of law or of fact, but only actual controversies at issue between interested parties”, i{ does not clearly appear that the questions submitted for decision in the instant case are definitely moot. In the Ruffo case the judgment debt involved was paid during pen-dency of appeal, but not the cost. The court declined to dismiss the appeal as tendering a moot question since the cost had no^been paid. And, so it is in the present case.

If, for no other reason, dismissal of the appeal does not lie on the ground that the questions tendered therein are moot, because liability for costs remains to be determined.

We do not feel warranted in remanding the case in order to take testimony on the issue raised by the motion and answer thereto. Such a course would necessarily prolong final decision in the case and also incur additional cost, both of which always should be avoided if possible.

The motion is denied in all respects.

On the Merits.

The primary question tendered for decision in this case is whether mortgages held by the defendant, Robert J. Newson, against lots in the City of Shreveport, Louisiana, formerly owned by Ogden A. Young, prime the material man’s lien of the plaintiff, which was registered subsequent to registry of said mortgages.

On and prior to October 10, 1947, Ogden A. Young owned unimproved lots Nos. 188 and 189 of the Cedar Grove sub-division in the City of Shreveport, Louisiana. On that date he and his wife executed a mortgage on said lots to Newson for $2,750.00 to secure payment of a note for that amount, due in ninety days. And on November 29, 1947, Young and his wife executed to New-son another mortgage on said lots for the sum of $1,100.00 to secure payment of a note for that amount, due January 10, 1948. It is declared in both mortgages that the money advanced on said notes was to be expended in the construction of improvements on the said lots. Both mortgages were promptly recorded in the records of Caddo Parish.

It appears that while improvements were heing placed on one of said lots, plaintiff herein sold and delivered to Ogden A. Young, at the locus of the improvements, building material of the value of $926.69 that was used therein. The first delivery of this material was on August 6th, and the last was on December 18, 1947. Evidence of the lien asserted by plaintiff was recorded January 13, 1948. On January 6, 1948, Ogden. A. Young sold and conveyed the lots with improvements thereon to Benjamin R. Young, the price of the sale being $2,000.00 cash, and the assumption by the purchaser of the two mortgages to Newson.

Newson filed foreclosure proceedings on his mortgages in the District Court of Caddo Parish and thereafter, on January 16, 1948, plaintiff instituted suit to foreclose its lien and impleaded as defendants, Newson, Ogden A. Young and his wife, and Benjamin R. Young. It is prayed therein, inter alia, that the asserted lien be recognized and decreed to be superior in rank and to prime the Newson mortgages. Personal judgment is_ asked against Ogden A. Young and his wife for the price of the material sold to him.

Of the several defendants, Newson only made appearance and resisted the suit. He first filed and urged exceptions of no cause and no right of action. These were referred to the merits and finally overruled. His answer to the merits is in the nature of general denial.

The case was tried and submitted on March 2, 1948. On the 31st of March, prior to judgment being rendered, Newson filed a plea attacking the constitutionality of Act 298 of 1926 and other acts relating to a material man’s liens “insofar as subsequently recorded liens, filed after a valid mortgage has been foreclosed upon by executory process, are concerned”. The plea also states that said acts violate article 19 of section 19 of the Constitution, as amended by the adoption of Act 35 of the year 1938. This plea of unconstitutionality was not passed upon nor mentioned by the lower court in its written reasons for judgment.

There was judgment against Ogden A. Young for the price of the building material with recognition of the asserted lien against lot 188 and the improvements thereon. The judgment decreed safd lien to be superior in rank to the mortgages to New-son, and ordered sale of the lot with improvements to pay the amount of the lien. Newson appealed.

It developed on trial that none of the improvements were placed on lot 189 and, for this reason, it was held that the asserted lien did not affect that lot

The exceptions are predicated upon two legal 'propositions, the first being that as executory proceedings had been filed by Newson the lien holder should have intervened in those cases and asserted therein its alleged superior rights and not have instituted an independent action to have the same recognized and enforced; and, secondly, that the evidence of the purported Men, as recorded, was inadequate to' serve as such and did not meet statutory requirements.

It is provided in Section 12;of Act 298 of 1926 that in addition to the lien therein created, the material man has a personal action against the owner for the price of material sold and delivered to him. This necessarily implies that 'in a suit to enforce the lien the holder thereof has the right to ask for personal judgment on his claim, as was done in the present case. This being true, the course adopted by the plaintiff appears free from reasonable legal objection. Anticipating that a controversy would arise between it and Newson, the mortgage holder properly impleaded New“son as a party defendant in order to give him opportunity to assert his rights under the. mortgages and to tender the issue of their rank as against the lien, and he did so. We have not been cited to any law that would preclude plaintiff from proceeding as it did. Had it not made Newson a party to the suit, Newson would have found it necessary to come into the case by third opposition, either before judgment or after judgment, when the property had been seized and advertised' for sale to pay the lien.

We are of the opinion that the second (asserted) predicate of these exceptions is equally unfounded. To effectively preserve the lien authorized by the 1926 act it is .only necessary that a copy of the estimate or an affidavit of the claim or any ■other writing evidencing same be recorded1. Prior acts dealing with this subject required that the items making up the claim, inter alia, be included in the record. It is clear that under the 1926 act this is not necessáry to the preservation of the lien as to third persons. In the present case the registered evidence of the lien is in the form of a bill against Ogden A. Young, sworn to by plaintiff’s manager. Therein it is stated that building material had been purchased by Young and delivered on said lots, beginning August 6, 1947, and ending December 18, 1947, which was used in the erection of improvements on the lots. The lots are accurately described in said bill. It was also stated therein that the price of said mate-rial, after allowing credit for that part returned, was $926.69. It is further stated in the bill that the seller had a lien and privilege on the lots and improvements to secure payment'of the debt, and that the affidavit was subscribed to and registry of the instrument made to preserve said lien. All of this, we think, met legal requirements.

The case of Berwick v. Eunice Electric Theatre Company, Ltd., 154 La. 99, 97 So. 328, cited and relied, upbn by defendant, arose under Act No. 229 of 1916, which required that the registered evidence1 of the lien contain the items of material sold and1 delivered to the owner or'contractor. It was held in City Savings Bank & Trust Co. v. White, 171 La. 727, 132 So. 124, that since no material had been furnished prior to recordation of the mortgage, the lien assérted in that case was inferior in rank to the mortgage. The 1926 Act was then in effect. Under opposite state of facts, the contrary was held in National Homestead Association v. Graham, 176 La. 1062, 147 So. 349.

Defendant also cites and relies upon Hortman-Salmen Company, Inc. v. White, 168 La. 1049, 123 So. 709, wherein in a contest between a mortgagee and material lien-ors, it was held that the mortgagé was superior in rank to the lien. However, it was first found and held that the mortgage was duly recorded before any material was furnished and delivered on the building site.

We are of the opinion that the ruling of the lower court on the exceptions is correct.

To prove the correctness of the material account sued on and that the material was delivered to Young on the lot site and used in constructing the improvements thereon, plaintiff called Young as a witness. His testimony definitely established plaintiff’s contentions.'

In this court appellant argues that the testimony of Young, a co-defendant, should not be considered and accepted as against him, Newson. No objection to the testimony on this ground was made at the time it was given, and in addition, defendant, without reservation, interrogated the witness to some extent concerning the mat- ‘ ters about which he testified in chief. Defendant does not challenge the truth of the testimony of Mr. Young but insists that his testimony is not' adequate to prove the verity of the lien; that as he is a co-defendant, what he testified to concerning these matters should not be weighed 'against appellant. We have been cited to no authority to support this position, and ¡we are of the opinion that it is not well founded as a legal proposition. In addition, since defendant, without reservation, cross examined Young and elicited from him testimony that goes far toward supporting plaintiff’s contentions, he cannot now escape the probative effect of such testimony.

We are not certain that the plea of unconstitutionality is properly before us. It was filed below after the case was closed and submitted for decision. It is not shown that the plaintiff was apprised of the filing when done. The plea is not mentioned in its brief in this court. However, as no objection has been tendered to us considering the plea, and as we believe it to be without merit, we shall pass on it.

Section 19 of Article 19 of the Constitution of 1921, so far as pertinent to the present discussion, reads:

“No mortgage or privilege on immovable property, or debt for which preference may be granted by law, shall affect third persons unless recorded or registered in the parish where the property is situated, in the manner and within the time prescribed by law # # f>

Certain privileges are 'excepted from the operative effect of this section of the organic law, but a privilege of the character involved herein is not one of them. This section was amended by the adoption by the people of Act 35 of 1938, but the original language, quoted above, was to no extent changed thereby.

It is readily observed from the unambiguous language of this section that for any privilege, not excepted therefrom, to affect immovable property and third persons, evidence thereof must be recorded “in the manner and within the time fixed by law.”

Ogden A. Young, the owner, did not contract with anyone to construct the improvements that were placed on lot 188. He, with the aid of other laborers, performed all of the work.

Section 12 of Act 298 of 1926 is the statutory law applicable to the facts of this case. We here quote those portions of said section pertinent to the question now before us, to-wit:

“When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the said owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required by-this act, then any person furnishing service or material or performing any labor on said building or other work may record in the office of the Clerk of Court or Recorder of Mortgages in the parish in which said work is being done or has been done a copy of his estimate or an affidavit of his claim or any other writing evidencing same, which recordation, if done within sixty days-after the date of the last delivery of all material upon said property or the last performance of all services or labor upon the same, by said furnisher of material q¡r said laborer, shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work of improvement, as his interest may appear.
^ ‡ ^ ^ ‡
“Said lien and privilege shall be superior to all other claims against the said land and improvements except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor’s privilege, whether arising from a sale or arising from a sale and resale to and from a regularly organized homestead or building and loan association, if said vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished”.

It is made indispensable to the potency of a material man’s lien that “a copy of his estimate or an affidavit of his claim or any other writing be recorded within sixty days” after the date of the last delivery of material upon said property. It ■is shown that the last delivery of material upon the property involved in this case was December 18, 1947, and that the evidence of the lien was registered in the • mortgage records January 13, 1948, which was well within the sixty days after last delivery of said material. Therefore, the requisites of Section 19 of Article 19 of the Constitution thát evidence of the lien be recorded in the parish where the property is situated, “in the manner' and within the time prescribed by law” have been complied with. On this score, Act 298 of -1926 tracks the constitutional provision and, therefore, is free of objection from a constitutional standpoint. Pertinent to this discussion, see Gleissner et al. v. Hughes, Sheriff et al., 153 La. 133, 95 So. 529, wherein it was held:

“Const. 1913, art. 186, providing that no mortgage or privilege shall affect third persons unless recorded or registered in the manner and within the time prescribed by law, leaves it to the Legislature to determine the manner and time within which liens and privileges for labor and materials shall be recorded to bind third persons such as mortgagees.”

Plaintiff having complied with the mandatory requirements of said act, the lien asserted by it is valid and effective as against the lot and the improvements placed thereon by Young. And, since Newson’s mortgages were executed and registered subsequent to deliveries of material by plaintiff on the lot, the lien primes and is superior in rank to them.

The law, with respect to the effect' and the rank of a .material man’s lien as against a mortgage on a particular piece of property, is more generous toward the mortgagee than it is with respect to liens-of laborers on the same property.' A laborer’s lien, under the express provisions of the mentioned act, primes all mortgages and vendor’s liens, regardless of the time of their registry, whereas as regards material men the lien does not prime mortgages and/or vendor’s liens registered pri- or to delivery of material on the ground. This gives the' mortgagee an opportunity to' protect himself by simple inspection of the ground where the contemplated improvement is to take place. If he finds building material on the ground and advances money thereafter on mortgage security against the ground and the contemplated improvement, he does so at his own risk.

Appellant also complains of the judgment in that it cast him in solido for costs. As to this, the judgment reads: “Defendant to pay all costs”. There were four defendants, and the quoted language, it is clear, includes all of them, although the real issue of .the case was confined to plaintiff and Newson; and this, -being true, we perceive no good reason why, since the appellant lost below, he should not bear some of the costs, necessarily incurred as. a result of.the issues raised by him.

In answer to the appeal, appellee charges that it is frivolous and prays that appellant be condemned to pay to -it the penalty provided by law in such a case. In view of the defenses, contentions and arguments of the appellant, reflected from the ■related facts and history of the case, we are clear in the opinion that the appeal should not be rated as frivolous. It cannot well be concluded from the record that the appeal was prosecuted in bad faith. See: Schmidt v. Ledbetter, 10 La.App. 337, 119 So. 573; Jung et al. v. Gwin et al., 176 La. 962, 147 So. 47.

For the reasons herein assigned, the judgment from which appealed is affirmed with costs.