author: McBRIDE, Judge.

text:
    PIAZZA v. LOUISIANA & ARKANSAS RY. CO. et al.
    No. 19444.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.

      Elizabeth Ridnour Haak, New Orleans, and Jos. R. Brown, Kansas City, .Mo., M. Truman Woodward, Jr., Milling, Godchaux, Saal & Saunders, New Orleans, of counsel for defendant and appellant, Louisiana & Arkansas Railway Co.
    George Piazza, New Orleans, for plaintiff and appellee.
    Ainsworth & Ainsworth, New Orleans, for defendant and appellee, Commercial Terminal Warehouse Company, Inc.
   McBRIDE, Judge.

Anthony Piazza, plaintiff, who operates a restaurant and bar at Gretna, Louisiana, purchased, during 1945, several carloads of beer manufactured by Eulberg Brewing Company at Portage, Wisconsin. Plaintiff deposited $1.00 on each, case of beer purchased, in order to assure the return to the brewery of the empty bottles, - and upon the return of such empty bottles the brewery would refund to plaintiff $1.00 on each case returned. On or about August 11, 1945, plaintiff shipped 2062 cartons of empty beer bottles and 206. cases of spoiled beer, for credit, to Eulberg Brewing Company at Portage, Wisconsin. The Commercial Terminal Warehouse Company, Inc., under a contract with plaintiff, loaded from its warehouse the cartons and cases into a freight car, placed seals on the doors of the car, and then turned the car over to the Louisiana & Arkansas Railway Company, for delivery to the consignee, the railroad company issuing a uniform straight bill of lading covering the car,’ and consigning it as directed. However, the car was diverted in transit upon instructions of the consignee, Eulberg-Brewing Company, to Hartig Brewing Company of Watertown, Wisconsin, the former “owing” the latter a large number of empty bottles, the car being diverted to the Hartig Brewing Company’s plant at Watertown for the purpose of permitting it to remove from the car the empty beer bottles therein.

When the car was opened by the Hartig Brewing Company upon arrival at Water-town, it was found that the contents thereof had been severely damaged. Some of the empty beer bottles were salvaged, and they, with the broken glass from the other empty bottles, were unloaded. All, or some, of the spoiled beer, was allowed to remain in the car, and the car was then consigned by Hartig Brewing Company to Eulbreg Brewing Company, Portage, Wisconsin, under a separate bill of lading issued by the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, and was subsequently delivered to the consignee.

Alleging that when the shipment reached Watertown, Wisconsin, 1062 cartons of empty beer bottles, valued at $1.00 per carton, and all of the 206 cases of spoiled beer, valued at $2.60 per case, had been damaged to the extent of complete destruction, plaintiff filed this suit for $1597.60 against the Louisiana & Arkansas Railway Company and Commercial Terminal Warehouse Company, Inc., in.solido, claiming that the da'mage to the shipment was caused by the negligence of the. railway company in transporting the car to Water-town, and intimating that the improper loading of the car by Commercial Terminal Warehouse Company contributed to the loss.

After the exceptions filed by the Louisiana & Arkansas Railway Company had been overruled, which exceptions, incidentally, were not reurged before us, said defendant answered, setting forth that its employees were free from negligence, and that if there was damage to the shipment, which was denied,’ that the damage was due to the loading of the bottles , in broken, weak, dilapidated cartons which were improperly placed and stacked within the freight car by the shipper’s agent. In the alternative, the railroad company prayed that if it should be cast in damages, then it should have a judgment for a corresponding ‘amount against the Commercial Terminal Warehouse Company, Ihc., which loaded the car. The warehouse company, in its answer, disclaimed any liability whatsoever.

A trial of the case on its merits in the court below culminated in a judgment in favor of plaintiff for $1597.60 against the Louisiana & Arkansas Railway Company; plaintiffs suit against the other defendant, the warehouse company, was dismissed. The railroad alone, has appealed from the judgment, and, therefore, the Commercial Terminal Warehouse Company, Inc., has passed out of the case, insofar as plaintiff’s claim against it is concerned.

The only basis upon which the Louisiana & Arkansas Railway Company, the initial carrier, can he held liable to plaintiff is under the provisions of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. § 20(11). Plaintiff originally adopted the position that his suit was one sounding in tort, and that his action was ex delicto rather than ex contractu. During the course of the trial below, however, plaintiff committed himself to an action on the contract, and introduced into evidence the bill of lading issued by the defendant railroad.

The bill of lading is marked with the letters “SL&C,” which, as is well known, means “shipper’s load and count.” It is well settled that where the car is furnished to the shipper who' himself loads his goods, he cannot recover for damages until he has alleged and proved that the-goods, when loaded, were not in the same damaged condition later complained of, and that the goods were properly boxed or crated if either appears to be necessary and customary, and were properly loaded and placed into the car. See Fowles v. Louisville & N. R. Co., 15 La.App. 421, 132 So. 240.

We direct our attention' first to the question whether the car was properly loaded by plaintiff’s- agent, the warehouse company. There is an abundance of testimony concerning the manner and method employed. The shipping and receiving clerk of the Commercial Terminal Warehouse Company, Inc., supervised this particular shipment, and the gravamen of his testimony, which .is unrefuted, is that the cartons and cases were stacked in the car in the usual and customary manner. The president of the warehouse company, who has been in the loading business for approximately forty years, testified that he inspected the shipment, and that the car was loaded properly and in the customary manner. He stated that during the year 1945 his concern had loaded 61 cars of empty beer bottles, all in the same manner as in the instant case, and that his company received no complaints of breakage.

The evidence shows that the cartons and cases were secondhand corrugated cardboard boxes of varying sizes, and that some of them were tied with string so that the contents would not fall out, and others were strapped with tape. The spoiled beer was stacked in the beam end of the car, 8 cartons across, which left a 6 inch slack, and the opposite end was loaded with 9 cartons across; the load reached to within a few inches of the roof of the car, and was characterized as “flush.” It was testified to by one of the witnesses for the warehouse company that the slack was left in the beam end, where the spoiled beer was located, because of the possibility of the beer exploding. The load was placed up against one of the doors of the car, and the other door was braced with wooden boards nailed to the posts of the door.

Warren T. Marseilles, who had been employed for 29 years as city auditor by the Western Weighing and Inspection Bureau, a subsidiary of all the railroads, and who testified that he is an expert on the loading of railroad freight cars, his exclusive work consisting of inspecting beer shipments, was present in the court below and heard the testimony of the employees of the warehouse company as to the method of loading the car, and examined the diagram submitted by those employees. Marseilles testified, under examination by counsel for the railroad company, that: “From this (loading diagram) and from what I heard Mr. Gilbert testify, I would say the car was properly loaded. * * * ”

On cross examination, the witness reiterated that from the explanation of Gilbert, he would say that the. car had been properly loaded, and in the manner in which his association advised shippers to load cars.

As to the corrugated cartons and cases, the evidence shows that while they were secondhand, they were serviceable, and that cartons and cases of the same kind had been used in making other shipments, about which there had been no complaints of breakage. Gilbert, of the warehouse company, stated than when Piazza received a carload of beer, it would be allowed to remain in his company’s warehouse, and that Piazza would withdraw, from time to time, such cases as the volume of his business demanded. Gilbert admitted that when cartons of empty bottles were received from Piazza to be stored in the warehouse for return shipment to the brewery, he would sometimes-find defective cartons, but in those instances he would remove filled bottles of Piazza’s beer from serviceable cartons in the warehouse, into which he would transfer the empty bottles from the defective cartons.

In addition to the above testimony concerning the condition of the cases and cartons, and the manner in which they were loaded, the record contains the depositions of the station agent of the Milwaukee Railroad at Watertown, who examined the car at Watertown. The station agent stated, “I think the car was loaded about as good as it ,could be loaded considering the condition of the cases.”

Both the station agent and another employee of the, Milwaukee Railroad testified that they noticed no bracing in the car, and they attributed the damage to shifting. However, all of the witnesses who testified for the warehouse company were emphatic that one door of the car was properly braced, and that the load was placed flush against the other door. But whether there was' any bracing placed on the interior of ¿e car is of no moment, as we find that Marseilles testified that it is not at all unusual when a flush load is being transported, such as a load of cartons, not to have bracing in the car.

After a careful examination of all the testimony concerning the loading of the car and the condition of the goods, we unhesitatingly conclude that the goods, cartons, and cases were not defective, nor was the stacking of the cartons and cases in the car improperly done..

Counsel for the railroad company, in brief and argument, advance the further defense that the inherent nature of the shipment was the proximate cause of the damage, and point to testimony in the record to the effect .that the slack was allowed because of a belief by the warehouse employees that there was a possibility that some of the spoiled beer might explode en route.

In Anderson, Clayton & Co. v. Yazoo & M. V. R. Co., 174 La. 762, 141 So. 453, 455, the Supreme Court stated the common law' rule governing the liability of a common carrier, as follows: ‘The liability of the common carrier by law, is, as has been seen, an unusual and extraordinary one, based upon considerations'of public policy which have survived the wonderful change in th,e circumstances under which they first arose. By that law the common carrier is regarded as a practical insurer of the goods against all losses of whatever kind with the exception of (1) those' arising from what is known as the act of God, and (2) those caused by the public enemy; to which in modern times, have been added (3) those arising from the act of the public authority, (4) those arising from the act of the shippers, and (5) those arising from the inherent nature of the goods.’ Hutchinson on Carriers (3rd Ed.) § 265. See, also, Elliot on Railroads, vol. 4, p. 605, § 2201.”

The Court said further: “ * * * As to defendant’s nonliability by virtue of the fifth exception to the general, rule, which comprises losses arising from the inherent nature of the goods, it does not appear, and there is no reason to hold, that the nature of cotton in bales is such as to make it subject to spontaneous combustion. Hence, as the burden of proof was on defendant, defendant having received the cotton, to show that the loss was occasioned by one of the five causes named, and having failed to do so, defendant is liable for the loss. 10 C.J. p. 373, sec. 576.” See also 13 C.J. S., Carriers, §§ 80, 254, pp. 158, 541.

No evidence whatsoever was produced by the railroad company to show that the spoiled beer exploded, or that the presence of the beer in the car proximately caused the damage which the shipment manifested at Watertown, and it is clear, therefore, that the carrier has not successfully shouldered the burden imposed upon it by law in its effort to exculpate itself from liability on the ground that the damage was caused by the inherent nature of the shipment.

Plaintiff’s counsel argues that the entire shipment showed evidence of total destruction upon its arrival at Watertown, and advances the alternative argument that even if some of the goods had not been destroyed prior to reaching this destination, such were destroyed on the journey between Watertown and Portage. Counsel takes the position that the railro.ad company had not .the right, without plaintiff’s consent, to divert the shipment upon the consignee’s instructions from Portage to Watertown, and that plaintiff is entitled to recover for all damage done to the shipment up until the time the car ultimately arrived at Portage, its original destination.

We cannot agree with counsel that Lou^ isiana & Arkansas Railway Company is to be held liable for the damage which the shipment reflected when it reached Portage, our opinion being that the carrier’s liability is to be founded upon whatever damage might have been sustained by the shipment before it reached Watertown.

While there are no Louisiana authorities touching this point, the rule prevailing in other jurisdiction is that the consignee under a straight bill of lading is to be presumed the owner of the shipment, and the shipment is under the control of the consignee, and he may direct its movements and divert it to another destination.

The rule is stated thus:

“ * * * the consignee designated in the bill of lading is presumptively the owner of the goods'shipped; and, in the absence of a bill of lading, or under an open bill of lading, it is presumed that the title vests in the consignee absolutely on delivery of the goods to the carrier, subject only to the carrier’s lien for freight, and the consignor’s right of stoppage in transit. Therefore, in the absence of notice to the carrier of the existence of a different relation, it must treat the consignee as the owner of the goods, with authority to control them in transit. * * * ” 13 C.J.S., Carriers, § 148, p. 291.

“While the owner of the goods is under no circumstances required to receive them before arrival at destination, as stated supra § 160 a, he may accept them at any place before or after arrival at destination, and this acceptance will work a discharge of the carrier from further liability ; but the acceptance of delivery at an intermediate point will not relieve the carrier from liability for damages already incurred, * * 13 C.J.S., Carriers, § 166, p. 324.

The Eulberg Brewing Company, according to the depositions of its president, ordered the car diverted to Watertown for the specific purpose of permitting the Har-tig Brewing Company to remove from the car and retain the empty beer bottles. Consequently, the Hartig Brewing Company can be considered no more or no less than the agent of the consignee, Eulberg Brewing Company, and the delivery by a carrier to the agent of the consignee under a straight bill of lading constitutes a final delivery of the shipment and a completion of the contract of carriage.

“ * * * A carrier may, however, rightfully deliver the goods to a person to whom the consignee has directed delivery to be made. Where a carrier receives goods for delivery under a ‘straight’ or nonnegotiable bill of lading for delivery to a person named, without any reservation of power of disposal by the consignor, a delivery to such person, or to his authorized agent, see infra § 172d, completes the contract and relieves the carrier from any further liability. * * * ” 13 C.J.S., Carriers, § 172, p. 331.

As to the proof required of a plaintiff in an action against the carrier for loss or damage to the shipment, our Supreme Court said, in Bancroft v. Yazoo & M. V. R. Co., 194 La. 115, 193 So. 481, 482; “ * * * jt therefore follows that in such cases it is only necessary for the consignee to allege and prove (1) that the initial carrier received the shipment in good condition, (2) that the shipment arrived at its destination in a damaged condition, and (3) the amount of the loss.”

The rule for measuring damages is set forth in Anderson, Clayton & Co. v. Yazoo & M. V. R. Co., supra, as follows: “ ‘The general rule is that, when goods delivered to a carrier for shipment are lost in transit, the carrier will he liable for the market value of the goods at the place of destination at the time when delivery of the goods should have been made, less the freight charges to the point of destination if they have not been paid.’ ” See also Gore Products v. Texas & N. O. R. Co., La.App., 34 So.2d 418.

Where property is injured in transit, the measure of damages is the difference between the market value of the property at the time and place of delivery in an uninjured condition, and its value in the depreciated condition in which it was delivered. . 13 C.J.S., Carriers, § 264, p. 610.

However, the market value of the goods at the place of destination is not the sole criterion for assessing damages against the carrier, for in countless freight movements, goods having no market value are transported, and in such cases the liability of the carrier is to be gauged by the intrinsic or actual value of the goods to the owner.

“Where there is no market value for the property at the point of destination, the intrinsic or actual value is the basis for determining the amount of damages sustained by reason of loss of, or injury to, such property, * * 13 C.J.S., Carriers, § 264, p. 614.

The court below, in awarding damages against defendant railroad, undoubtedly took into consideration the condition of the contents of the car upon its arrival at Portage, on the theory that the shipment (less the 1000 cartons of empty bottles unloaded at Watertown) was.a total loss at the ultimate destination.

Upon arrival at the plant of Hartig Brewing Company at Watertown, its employees could not open the car, and the station agent of the Milwaukee Railroad was called upon to assist the employees of the brewery, and he succeeded in opening the car door. Both he and another agent of the Milwaukee Railroad were present at times during the process of unloading, and both testified in their depositions that the shipment showed evidence of having been severely damaged. The station agent stated that it appeared to him as though the car had “ * * * gotten a pretty good jolt somewhere to bring the load out against the doors * *

But the only evidence in the record which details to' any degree the condition of the car, is to be found in the depositions of Harold F. McEvoy, president of Hartig Brewing Company, who supervised its unloading at Watertown. According to his statements, the contents of the car were damaged extensively, and were more in the nature of broken glass and junk than beer bottles. A concentrated effort was made to separate the broken bottles from those which were intact, and he placed four men on the car for more than two days in the unloading project. He finally concluded that the task was hopeless and would be very unprofitable to continue, as the labor cost necessary would have far exceeded the price of new bottles. Although he did not have his records with him, he stated that approximately 400 cases of empty bottles, and “not more than twenty-five cases” of the spoiled beer, were salvaged. Thereupon, the unloading was terminated, and the car, which still contained “ninety-five per cent” of the spoiled beer was consigned to the Eulberg Brewing Company at Portage.

According to the depositions of Alvin Bardin, president of the Eulberg Brewing Company, which were taken at the -behest of counsel for the defendant railroad, when the car reached Portage none of the beer could be salvaged, and the debris in the car was shoveled out and dumped. Bardin stated, however, that 1000-cases of empty bottles had been salvaged at Watertown, and that a settlement was made between his brewery and Piazza, whereby Piazza was paid $1000.00 for whatever empty bottles had been extracted from the car by the Hartig Brewing Company.

Counsel for the railroad filed in the lower court a plea of estoppel, contending that in view -of the written compromise entered into between plaintiff and Eulberg Brewing Company, plaintiff is debarred from asserting his claim against the railroad company for any damage to the shipment.

We see no merit in the plea of estoppel. The import of the document executed by the parties is that it was the contention of Eulberg Brewing Company that out of the shipment in question, all but 1000 cartons of the empty beer bottles had been destroyed in transit, and the sum of $1000.00 was paid to plaintiff by the brewing company,' representing $1.00 per carton, in settlement of whatever claim plaintiff might have against- the-Eulberg Brewing Company for' those empty bottles which were salvaged at Watertown. We fail -to understand how this settlement could even remotely adversely affect plaintiff’s right to assert his claim against the Louisiana & Arkansas Railway Company for the actual damage sustained by the shipment. -

In view of the conflicting evidence of the officials of the two breweries, the record does not establish with exactitude the condition of the shipment at Watertown, but there is no doubt whatever in our minds that severe damage had been suffered by the shipment en route to Hartig Brewing Company. McEvoy’s testimony is that approximately 400 cases of empty bottles; and not more than 25 cases of the spoiled beer, were’ salvaged, while on the other hand Bardin, a witness' for the railroad, stated that the shipment was a. total loss, excepting the salvaged 1000 cartons of empty bottles. ■

The employees of the Milwaukee Railroad, although present during the unloading, and who inspected the. contents of the car at Watertown, made no attempt to inventory or record the amount of the damage, and we have as a guide for the establishment of plaintiff’s damage only the testimony of the two brewery officials.

McEvoy supervised the unloading at Watertown, and witnessed the removal of the contents of the car. If his testimony is to be accepted to fix the carrier’s liability, 1662 cartons o'f empty bottles were destroyed. If the testimony of Bardin is to be accepted, then there was a loss of 1062 cartons of the empty bottles, which is the number plaintiff alleges were destroyed.

It is interesting to note at this point that although counsel for the Louisiana & Arkansas Railway Company applied for the commission to take Bardin’s depositions, as a defense witness, along with the depositions of the two railroad employees at Watertown, counsel did not see fit to introduce Bardin’s testimony into the evidence. Bardin’s depositions found their way into the record upon offer by plaintiff’s counsel.

Considering all circumstances prevailing in the case, we believe that we are warranted in concluding that when the freight car arrived at Watertown, all of the empty bottles had been totally destroyed in transit, except the 1000 cases which Bardin, who testified on behalf of the railroad, stated were salvaged by the Hartig Brewing Company, and for which Piazza was paid by the Eulberg Brewing Company.

We do not believe, however, that plaintiff should be allowed a recovery for any of the cases of spoiled beer, as there is no evidence showing how many cases of beer were damaged, or to what extent, in transit to Watertown. The only testimony in that regard emanated from McEvoy, and his evidence is highly confusing. He made the statement that not more than 25 cases were salvaged, and that about “ninety-five per cent” of the beer was permitted to remain in the car, which were consigned by him to Portage under a new bill of lading showing that 206 cases were shipped. He stated that the cardboard cases were wet and soggy, but he did not testify as to the amount of breakage. Perhaps some of the bottles containing spoiled beer were broken, but an indulgence in imagination and conjecture would be necessary in assessing liability against the carrier, and any figure arrived at would be a purely arbitrary one.

We do not know on what theory the railroad seeks judgment against the Commercial Terminal Warehouse Company, Inc., but at any rate the railroad’s prayer for such judgment is denied.

For the reasons assigned, the judgment appealed from is reduced by the sum of $535.60, the amount claimed for the spoiled beer, and as thus amended, and in all other respects, the judgment appealed from ' is affirmed. Plaintiff-appellee is to pay the costs of this appeal.

Amended and affirmed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    Succession of MONTGOMERY. MODERN FINANCE CO. v. MONTGOMERY.
    No. 19355.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    George T. Fisher, Samuel J. Tennant, Jr., New Orleans, for plaintiff-appellee.
    Ralph E. Orpys, Bernard A. Dempsey, New Orleans, for Mrs. Iris Antoine Montgomery, individually and as natural tutrix of Minor, Thomas Eugene Montgomery.
    Tolmas & Tolmas, New Orleans, for Wilbur Nickson, doing business as Louisiana Realty Co.

      Benjamin Y. Wolf, New Orleans, for Wm. P. Hickey, Recorder of Mortgages, defendant in warranty.
    Carroll & Plough, Moreau J. Jumonville, New Orleans, for Union Savings & Loan Ass’n, defendant in warranty.
   JANVIER, Judge.

In the Civil District Court for the Parish of Orleans, Modern Finance Company obtained a final judgment for $412, with interest and attorney’s fees, against Sterling N. Harris. This judgment was rendered on March 10, 1947, was signed on March 14, 1947, and was recorded in the office of the Recorder of Mortgages for the Parish of Orleans on March 24, 1947, in Book 1602, at folio 534. This is an attempt by the Modern Finance Company, by hypothe-cary action, to execute that judgment by the seizure and sale of certain real estate in the Parish of Orleans, standing on the records in the office of the Register of Conveyances for the Parish of Orleans in the name of Homer D. Montgomery.

The property is described as follows:

“That portion of ground, together with all the buildings and improvements thereon and all the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in any wise appertaining, situated in the First District of New Orleans, in square No. 719, bounded by Palmetto, Euphrosine, South Genois and Telemachus Streets and Washington Avenue, designated by the No. Eighteen (18) on plot of survey by F. C. Gandolfo, Surveyor, dated April 29, 1940, and revised Augusr 5, 1940 and redated August 20, 1941, annexed to an act passed before Gus Levy, Notary Public, on March 29, 1943 according to which, said lot measures fifty feet, one inch (50' 1'') front on Washington Ave., forty-one feet, four inches, five lines (41' 4'' 5' ") in width on the rear line, by a depth and front on Telemachus Street of eighty-three feet, five inches, one line (83' 5" 1' ") and a depth on the line of lot Nineteen (19) on said plan of one hundred eleven feet, seven inches and three lines (111' 7" 3'") and forms the corner of Washington and Telemachus Street. The improvements thereon bear the Municipal No. 4827 Washington Avenue.

“The said property was acquired by Mrs. Constance Deboisblanc, wife of Sterling Harris and Sterling Harris, from the Fidelity Homestead Association under act of sale dated November 10, 1943, passed before Allain C. Andry, Jr., Notary Public, registered in Conveyance Office, Parish of Orleans, in Book 528, folio 195.”

Homer D. Montgomery became the owner of the said property on April 22, 1947— twenty-nine days after the recordation of the above mentioned judgment — by act before John R. Legier, notary public, by purchase from Union Savings and Loan Association, which association had, on that same day, acquired it from" Mrs. Constance deBoisblanc, wife of Sterling Harris, and Sterling Harris. (Note the absence of a middle initial.)

In due course, Modern Finance Company, through its attorney, called on Homer D. Montgomery in writing to surrender the property for execution of the judgment. This Montgomery failed and refused to do. .

This proceeding was then instituted against Homer D. Montgomery, plaintiff, praying that defendant be condemned to deliver and relinquish the said property in order that it might be sold by the Civil Sheriff in satisfaction of the said judgment. Montgomery filed exceptions of no cause ^and no right of action, which were overruled. He then answered, for lack of information, denying all of the essential allegations of plaintiff’s petition and averring1 that he had purchased the property through the aforementioned homestead association from Mr. and Mrs. Sterling Harris and that Sterling N. Harris had never, at any time, been the record owner of the property.

Montgomery denied the right of plaintiff, in the execution of a judgment against Sterling N. Harris, to seize property which, at one time, stood in the name of Sterling Harris. Montgomery then called in warranty Union Savings & Loan Association from which -he bad purchased the property, Wilbur Nickson, doing business as Louisiana Realty Company, the real estate agent through whom he had purchased the property and W. P. Hickey, then the Recorder of Mortgages for the Parish of Orleans.

The call in warranty against the Homestead Association was based on the allegation that in purchasing the property, Montgomery had paid to that association a fee for title examination and that, therefore, the association would be liable to him should he be evicted.

The call in warranty against Nickson is based on the allegation that he, as real estate agent, negotiated the purchase of the property by Montgomery. The call in warranty against Hickey, the then Recorder of Mortgages, is based on the allegation that from the office of the Recorder of Mortgages there had been issued a mortgage certificate which did not disclose the recordation of any such judgment.

All three defendants in warranty filed exceptions of no right of action and no cause of action. So far as we can ascertain from the record these exceptions were never set down for trial, unless it be that they were tried -when the main controversy was submitted on the merits.

After many delays and before the matter came to trial, Homer D. Montgomery died and his widow, Mrs. Iris Antoine Montgomery, qualified as natural tutrix of their minor child, Thomas Eugene Montgomery, and she, in her individual capacity, and as natural tutrix of the minor, was made party defendant.

After a trial in the Civil District Court, there was judgment in favor of plaintiff and against Mrs. Iris Antoine Montgomery, individually and as tutrix of the minor, Thomas Eugene Montgomery, and the Succession of Homer D. Montgomery, condemning the defendants to deliver and relinquish the property' in order that it be sold in execution of the judgment against Sterling N. Harris. The judgment further dismissed the three calls in warranty as of nonsuit. Defendants have appealed.

The defendants in warranty did not answer the appeal nor did they take independent appeals praying that the judgment be amended and that it be made a definitive judgment of absoluté dismissal .of the calls in warranty. '

The Homestead Association and Nick-son, through their counsel, appeared before us and in brief and in oral argument contended that the judgment should be amended in their favor and that they should be finally and definitively dismissed as defendants in warranty. The former Recorder of Mortgages, through his attorney, appeared before us and in brief and stated that the said Recorder is probably no longer a party since he is not now the Recorder of Mortgages, and his attorney further stated that if the former Recorder is still a party, the judgment of nonsuit in his favor should be affirmed.

Counsel for the plaintiff in the main demand contend that the question presented is “moot” because the defendants produced no evidence whatever. We think that there is presented by the record which is before us the issue which, is raised by the answer, i. e., whether the recordation of a judgment against Sterling N. Harris affects property standing in the name of Sterling Harris.

Although on behalf of the defendants, no evidence was offered, the authentic acts, copies of which are before us, show that at the time the judgment was recorded, the property stood in the name of Mr. and Mrs. Sterling Harris — no middle initial appearing — and plaintiff itself has shown that the judgment which it is attempting to execute runs 1 against Sterling N. Harris, there being a middle initial shown in that judgment.

The record shows beyond any doubt— in fact there is no contention to the contrary — that the Sterling N. Harris, against whom the judgment was rendered and the Sterling Harris, who at one time, with his wife, was the owner of the property,. are one and the same person.

When we come to consider the question of whether the presence of the middle initial in the one case, and the absence of it in the other, has any significance, our attention is directed ■ to Article 2259 of the Civil Code which provides -that when an act of transfer is passed in the-Parish of Orleans, the registration thereof shall show, among other things, “the names, surnames and qualities of the contracting parties.”

Counsel for plaintiff maintain that since both the word “names”- and the word “surnames” appear in the plural this act means that where there is more than one name or more than one surname, all must be given and that, therefore, it is essential that the middle name be set forth.

We have given some thought to this suggestion, but" conclude that no special significance should be given to the fact that those words appear in the Article in the plural, for the reason that the word “parties” is also in the plural. In other words, the act requires that the names of all parties and the surnames of all parties shall be given. If the act provided that the names of each party and the surnames of each party should be set forth, then there might be some significance and it might be said that it was intended that if a party had more than one name or more than one surname, all must be given.

We find it to be well settled in practically all jurisdictions that only one Christian or first name is recognized in law and that the middle initial is of importance only where there is necessity to distinguish between two persons who have the same Christian or first name and the same family or surname.

In Bouvier’s Law Dictionary, Rawles Third Revision, under the word “Name,” appears the following: “One Christian name only is recognized in law.”

Bouvier also states: “An initial is no part of a name.”

From Black’s Law Dictionary, Deluxe Edition, we learn: “In law a man cannot have more than one Christian name.”

In Coral Gables v. Kerl, 334 Pa. 441, 6 A.2d ,275, 122 A.L.R. page 909, we find the following: “Under the early common law, it was the rule that the law knows but one given or Christian name and one surname, and does not recognize a middle name or initial; hence a mistake in, or omission of, the middle name of a person, in an indictment, or in pleadings or in process in a civil action, is immaterial. See 19 R.C.L. p. 1328, sec. 4. Also First Nat. Bank of Opp. v. Hacoda Mercantile Co., 1910, 169 Ala. 476, 53 So. 802, 32 L.R.A.,N.S., 243, Ann.Cas.1912B, 599; Fincher v. Hanegan, 1894, 59 Ark. 151, 26 S.W. 821, 24 L.R.A. 543; Dutton v. Simmons, 1876, 65 Me. 583, 20 Am.Rep. 729; Davis v. Steeps, 1894, 87 Wis. 472, 58 N.W. 769, 23 L.R.A. 818, 41 Am.St.Rep. 51.”

It is shown, however, that this rule has sometimes been departed from where there is a mistake in the middle initial and that where the incorrect middle initial is given, possibly it might be held that, as a result of the confusion, the recordation of a judgment against a person giving the incorrect middle initial, might not -be effective against property standing in a similar name but with a different middle initial. However, even in such case, we are of the opinion that the similarity would place upon the purchaser of property the duty of making certain that the two names did not represent the same person.

As to the presence or absence of a middle initial, note the following from American Jurisprudence, Verbo Judgment, Vol. 30, Section 92, p. 865: “ * * * In regard to the middle initial; some authorities hold that if a middle initial is used, it must be the proper one, especially where there are other persons in the district who have a similar name. Other cases, however, maintain that an error in the middle initial of the defendant in the entry and docket of the judgment recovered against him does not render it invalid.”

Also from the American Jurisprudence, Verbo Name, Vol. 38, section 5, p. 597 we again quote: “Some courts have held that while a middle name cannot be disregarded, a middle initial may be, and other courts, while deeming the entire omission of a middle name or initial to be immaterial, take the position that a mistake in the middle name or initial is a variance, especially in the case of a service by publication. Still other courts -hold that a mistake in the middle initial is fatal where a person is designated only by initials.”

We find the question of “names” discussed in 45 Corpus Juris, section 67, page 369, from which we quote as follows:

“It is the well settled rule in most jurisdictions, growing out of the custom observed in ancient times of having only one given name, that the law recognizes but one, although for purposes of identification a middle name may be very important; and so it has been repeatedly held that the insertion or omission of, or mistake or variance in, a middle name or initial, even in criminal cases, is immateral; and such name or initial may be dropped and resumed or changed at pleasure. If one is sued or prosecuted by his middle name, omitting his first name, the declaration or indictment is defective, and a judgment rendered thereon will be set aside, unless it be proved that he was also known by the name stated. Similarly, an indictment is defective which places another name before the Christian name, making the latter appear as a second or middle name.”

“There is a tendency, however, to give greater regard to the middle name or initial, especially to avoid unjust or absurd results, inasmuch as the rule has lost much of the reason upon which it was originally based, and in a few jurisdictions the middle name or initial is held to be a material part of the name, in civil as well as criminal actions, except in civil actions where the person is otherwise identified. In accord with this view, it has been said that the habitual and common use by a person of his middle or second name may not be ignored; and that the given name may not be one word only, but two or more, one of which may be as important as the other.”

A search of the jurisprudence of this State has brought to light very little on the subject. We ourselves, however, in Tran-china v. Williams, 10 La.App. 656, 120 So. 882, considered the question of whether the inscription of a mortgage in the name of John E. Tranchina should 'have been reported on a certificate applied for in the name of John Tranchina. The Recorder of Mortgages failed to show the recordation of the inscription against John E. Tranchina and we, in effect, held that the Recorder of Mortgages had been at fault in not reporting the inscription against John E. Transchma, but we did not hold?him liable for the reason that before the’ certificate was obtained, which failed to* show the inscription, the property had already been bought and the purchase price had already been paid.

Counsel for defendant-appellant cite several cases which, it is contended, establish the rule that if there is the slightest difference in names, the recordation against one will have no effect against the other. But in no one of these cases was there presented the question of the absence or presence of a middle initial. In each of the cases the difference in names was so great that in no one of them could it be said.that there was any similarity at all.

For instance, in Charrier v. Greenlaw Truck & Tractor Co., 2 La.App. 622 the re-cordation of the chattel mortgage, through error, indicated that the notary was the mortgagor. In other words, the name, of the notary, McEnerny, was recorded as the mortgagor, whereas the real mortgagor was O’Rourke.

In Giarratano v. Angermeier, 7 La.App. 375, the name which should have been recorded was “Callock”, whereas the certificate applied for was in the name of “Colark”. We said: “ •*, * * The names of ‘Colarle’ and ‘Callock’ are evidently different. Certainly different for the Conveyance Office where the researches are made from an index alphabetically arranged. In looking for the name ‘Callock’ the clerk would not run the letter ‘O’ nor the letter ‘A’ in looking for ‘Colark’, nor would any third person searching for a sale.”

We find several adjudications in other jurisdictions, and in only one case do we find a result different from that which we ourselves have reached. That is Stott v. Irwin, Common Pleas of Chester County, Pennsylvania, V. 2, Chest. Co. Rep. 137, the syllabus of which reads as follows: “The omission of the middle initial of a defendant’s name, in a mechanic’s lien, will postpone the lien to others correctly entered with the initial.”

While we do not ■ agree with that' conclusion, we call attention' to the' fact that it merely requires that the middle initial he used in .the recordation of a judgment or a lien. That was done in the case at bar.

Our conclusion is that the recordation of the judgment against Sterling N. Harris affected the property standing in the name of Sterling Harris.

We note another contention of defendant-appellant and that is, that if this judgment is permitted to he executed against this property, the effect will be violative of the provisions of the Servicemen’s Readjustment Act of 1944, as amended, 38 U.S.C.A. § 693 et seq., for the reason that this act limits the amount of a loan which may be made to any veteran and this property was bought with the aid of such a loan and the maximum amount was loaned by the Veterans Administration.

If the execution of this judgment against the property has that result, that is merely unfortunate for the Veterans Administration, but surely it could not be held that the holder of a valid and properly recorded judgment against the owner of property could be deprived of his right to execute the judgment by seizure of the property because it had been sold to a veteran.

• There is left for consideration only the question of whether the judgment, insofar as it dismisses the call in warranty, as in case of nonsuit, may be amended in favor of the defendants in warranty. ■ Defendants have offered no evidence whatever. There is not one word to show why a real estate agent, who negotiates a purchase, should be liable' to the ‘purchaser in the event there is a cloud on the title. Nor is there one word to show that there was a certificate secured from the Recorder of Mortgages. Nor is there proof that the homestead association received a fee for title examination. The notarial act by which Montgomery purchased from the homestead association contained a stipulation that the .transfer was made “without warranty and without recourse * *

In spite of these facts, however, we are powerless to amend the judgment in favor of the defendants in warranty, since they did not answer the appeal nor have they ,taken independent appeals of their own.

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

Affirmed.


author: REGAN, Judge.

text:
    FOX et ux. v. DOLL et al.
    No. 19397.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.

      Delvaille H. Theard, New Orleans, for appellants.
    Ray F. Montgomery and Geo. Montgomery, New Orleans, for appellees.
   REGAN, Judge.

Plaintiffs, Mr. and Mrs. William T. Fox, the vendees, brought this suit for $400.00 or double the amount of a deposit made on account of the purchase price of certain real estate, against the defendants, Warren A. Doll and Emile M. Doll, the vendors.

Defendants answered and admitted that $200.00 was deposited with them on account of the purchase price of certain real estate, but denied that plaintiffs were entitled to a judgment for double the amount of the deposit. Defendants further answered in reconvention by praying for specific performance of the agreement to purchase the property, and for all general and equitable relief.

The court, a qua, rendered judgment in favor of plaintiffs for $200.00 and dismissed defendants’ reconventional demand, hence this appeal by defendants. Plaintiffs have answered the appeal “praying that the judgment be amended by increasing the amount from $200.00 to $400.00, * * * or }n the alternative that said judgment be increased from $200.00 to $243.00 to cover the cost of certificates”.

The record reveals that on April 26, 1948, plaintiffs entered into an agreement to-purchase from defendants, for the price of $2,000.00, a certain piece of unimproved real estate, located in Royal Street, corner of Mandeville Street, in the City of New Orleans, and deposited on account thereof 10% or $200.00. In due course the title to this property was examined and the usual certificates were ordered and obtained by the notary employed by' plaintiffs to pass the act of sale. The paving certificate indicated a lien of $354.27, together with a penalty of 10% per annum delinquent interest. The correspondence which ensued thereafter, relative to this paving lien, between plaintiffs and defendants reflects the complete factual continuity of the matter and we shall, therefore, quote liberally therefrom.

Counsel for plaintiffs communicated with counsel for defendants and requested that the paving lien be removed and cancelled prior to the passage of the act of sale. On July 2, 1948, defendants’ counsel wrote to plaintiffs’ counsel that his clients, Messrs. Dolls, were “willing to put up $200.00 out of the cash portion of the Fox purchase to guarantee against all paving liens. This will be in escrow with the Globe Homestead. Mr. Doll is. having mimeographed copies made of the escrow agreement we have used in many cases. These will be ready probably tomorrow.”

On July 6, 1948, plaintiffs’ counsel replied to this letter by informing defendants’ counsel that he would not enter into such an escrow agreement as defendants’ counsel had suggested and that the “property must be delivered free from encumbrances within a reasonable time, say ten days, or I shall advise my client to demand the return of his deposit on. the ground that the vendor cannot deliver a clear and merchantable title, free from suggestion of litigation.”

On July 13, 1948, defendants’ counsel addressed and mailed a form of proposed escrow agreement to plaintiffs’ counsel. On the same date plaintiffs’ counsel wrote defendants’ counsel that his clients did not desire to enter into an escrow agreement and insisted that the property be delivered free and unencumbered from any paving liens. Plaintiffs’ counsel then made demand upon defendants “for the return of the deposit of $200.00 or that the outstanding paving claims against the property be cancelled within ten days from the date of this letter.”

On September 14, 1948, defendants’ counsel wrote plaintiffs’ counsel that his clients were “ready to transfer the property, Mandeville and Royal, to your client, Mr. Fox; and since your client is unwilling to agree to an escrow of part of the purchase price until pending litigation regarding paying liens on this property is settled, will pay the paving in full on or before the passage of the act of sale”.

On September 16, 1948, plaintiffs’ counsel wrote defendants’ counsel that his client had instructed him to “make amicable demand for the return of his deposit of $200.00 in default of which return, to file suit for its recovery. * * * The title to the property was not clear nor merchantable, being subject to a large unpaid and uncancelled paving lien, which lien is still outstanding. Mr. Fox was compelled to purchase another location for his business (the record shows that plaintiffs agreed to purchase another piece of property on July 27th, 1948, and the act of sale was passed August 10th, 1948) and therefore has no further use for your lot. Under these circumstances I cannot conceive on what theory you consider the agreement binding on Fox after the lapse of more than four months”.

On September 23, 1948, defendants’ counsel wrote plaintiffs’ counsel “since Mr. Fox had been notified that the defendants would pay the paving (paving lien was “paid out” by defendants on September’20, 1948), there can be no justification in law for his refusal to fulfill his contract” and that his clients insisted upon fulfillment of this contract.

Shortly thereafter plaintiffs instituted this suit against defendants to recover double the amount of the deposit.

Plaintiffs contend that the defendants could not deliver a clear title in view of the existence of the paving lien and, therefore, conclude that they are entitled to the return of double their deposit of $200.00 as earnest money.

Defendants, on the other hand, maintain “that they were never put in default and never called upon formally to deliver title free and clear of encumbrances, and that plaintiffs had never once declared that they were ready to comply with their agreement to take title, to the property”.

In our opinion the existence of a paving lien in the amount of $354.27 against this property which is the subject of a contract of sale for $2,000.00, is no justification for refusal to accept title thereto where the total amount necessary to cancel the paving lien is less than the sale price of the property.

In Palmer v. Gelpi, et al., La.App., 18 So.2d 59, we quoted with approval from Richardson v. Charles Kirsch & Co., et al., La.App., 189 So. 146, 152, as follows:—

“ * * * It is well settled that, where there are conventional mortgages against property which forms the subject of a contract of sale, this is no legal justification for refusal to accept title where the total amount due on those mortgages is less than the price at which the property is to be sold.

“ ‘As to the incumbrance, it is well settled that a mortgage on the property forms no legal justification for refusing to accept title where the price agreed to be paid for the property is more than -sufficient to satisfy the mortgage debt. Grimshaw v. Hart, 6 Rob. 265; Kinberger v. Drouet, 149 La. 986, 999, 90 So. 367; Murphy v. Hussey, 117 La. 390, 41 So. 692. Jaenke v. Taylor, 160 La. 109, 106 So. 711, 714. See, also Lomel Realty Corporation v. Chopin, 177- La. 474, 148 So. 683.”

A fortiori, in our opinion, the deposit of $200.00 made by the plaintiffs in connection with the agreement to purchase now belongs to defendants and can be retained by them; for when plaintiffs receded from their agreement to purchase, their deposit was forfeited to the vendors, the defendants.

On appeal the defendants have abandoned their plea in reconvention for specific performance of the agreement to purchase, and now contend that, although no special plea is contained in their answer for the retention of the deposit of $200.00, nonetheless, defendants are entitled to this relief under their prayer “for all such general and additional relief herein, as law, equity and the nature of the instant case may permit, justify and allow”.

Plaintiffs maintain that defendants are not entitled to this relief and point out that there was no special plea for the forfeiture of this $200.00 in the answer of the defendants; however, .defendants’ answer contained a full, complete and comprehensive prayer for general relief and under the existing uniform jurisprudence of our courts, we can properly render any judgment, although not specifically prayed for, which is justified by the pleadings.

“Under the prayer for general relief, suited to the nature and justice of the case, the court may render such judgment as would be given in a new suit, to avoid circuity of action.” I Hennen’s Dig. (p. 734, 4) No. 5.

In Legier v. Braughn, 123 La. 463, 49 So. 22, 23, we read: “A prayer for general relief authorizes all ordinary decrees which the pleadings and evidence may justify. Leland v. Rose, 11 La.Ann. 69.”

In Kinder v. Scharff, 125 La. 594, 51 So. 654, it was held that a prayer for general relief authorizes a court of equity jurisdiction to render such judgment as the nature and justice of the case may require.

In Stanga v. Lake Superior Piling Company, 214 La. 237, 36 So.2d 778, it was held: “Under prayer for general relief, suited to nature and justice of case, court could render such judgment as would be given in a new suit, to avoid circuity of action, though demands for nullification of timber deed, for damages, and for injunc-tive relief, could not be granted.” (Syllabus) See, also, 22 T.L.R. 459 and 24 T.L.R. 66.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment on the main demand in favor of the defendants, Warren A. Doll and Emile M. Doll dismissing plaintiffs’ suit at their cost. It is further ordered that there be judgment in favor of plaintiffs in reconvention, Warren A. Doll and Emile M. Doll, permitting them to retain the deposit of $200.00.

Reversed.


text:
    STREHLE v. GIAISE.
    No. 19496.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.

      Waverly A. Henning, Gretna, for plaintiff and appellee.
    Louis H. Marrero, III, Marrero, Joseph A. 'Casey, New Orleans, for defendants and appellants.
   JANVIER, Judge.

This suit for damages, for the cost of repairs to plaintiff’s automobile, results from an accident which occurred at about 11:30 o’clock on the morning of January 17, 1948, on what is known as the Belle Terre Road, near the Village of Marrero in the Parish of Jefferson.

The cars involved were a Chevrolet sedan, which was owned and driven by plaintiff, and a “pick-up” truck owned and operated by defendant.

Defendant, in the grocery business, had just made a delivery of groceries to1 a customer and, in doing so, had turned his truck to its left into the private driveway of the customer. After delivering the groceries, defendant backed his truck into the highway while plaintiff was approaching from the rear, and the two cars collided, causing damage to both.

Plaintiff, alleging that he himself was in no way at fault and that the sole cause was negligence on the part of defendant, brought this suit against him and prayed for judgment for $432.00 as the cost of repairing his car.

Defendant denied that he was in any way at fault and averred that the sole cause of the accident was the carelessness of plaintiff in running into defendant’s truck from the rear, and, in the alternative, pleaded contributory negligence.

There was judgment in favor of plaintiff for the amount prayed for, $432.00, and defendant has appealed.

Plaintiff’s contention is that as he approached the private roadway on which defendant’s truck was parked, he saw that defendant was about to back the truck out into the highway, and that he .sounded his horn and assumed that defendant would wait until his car had passed, but that just as his car was about opposite the rear end of defendant’s truck, defendant suddenly backed it out into the highway and struck plaintiff’s car near the middle of its left side.

Defendant’s version is that as he was about to back out into the highway, he looked and saw no other vehicle in either direction for a distance of about three blocks and that he backed out into the highway, turning his truck as he did so, so that it was facing in the same direction in which plaintiff was going with the rear of his truck towards plaintiff’s on-coming car, and that just as he had shifted his gears and was about to proceed in a forward direction, his truck was struck violently on its right ‘rear by plaintiff’s car which, after striking it, dashed to the side of the road and then, with its two right wheels in the ditch, “sideswiped” a tree alongside the road and came to a stop only when it struck a concrete culvert which was 74 feet beyond the spot at which the collision had occurred.

Plaintiff asserts that the speed of his car was not more than 25 miles an hour, and defendant, declares that it was much greater.

There is no doubt that the operator of an automobile who desires to drive from a private' driveway onto a thoroughfare must he extremely careful to make certain that it is safe to do so. And if the car is being backed out upon the highway the operator must be even more careful.

In Honeycutt v. Carver, La.App., 25 So. 2d 99, 101, the Court of Appeal for the First Circuit said: “* * * It is the duty of a person backing out of a private driveway into a public highway to exercise great care, and ascertain if any traffic is approaching from either direction.”

It is also true that as between an automobile on a private driveway and another on a public highway, the latter is entitled to the right of way. In Stroud v. Davis-Lawhead Funeral Home, 154 So. 476, 477, the Court of Appeal for the Second Circuit quoted with approval a statement from section 1024 of Berry on Automobiles, reading as follows; “ * * * A vehicle on a public highway has the right of way over one emerging from private grounds.”

Thus it seems probable that since the car of plaintiff was on the highway and obviously in view of defendant as he backed his car from the private roadway, defendant could easily have seen it had he looked as he says he did. However, even if we assume that defendant was at fault in backing out into the road without first making certain that it was safe for him to do so, it does not necessarily follow'that he is liable for if, when he was in the road in the.path of plaintiff’s on-coming car, plaintiff could still have avoided him by exercise of proper care, the proximate cause of the accident must be held to have been not the negligence of defendant in creating the dangerous situation, but the carelessness of plaintiff in not avoiding the collision that could have been avoided by the exercise of care had he been on the alert.

In Stroud v. Davis-Lawhead Funeral Home, supra, this question is discussed, and again the Court quoted with approval from Berry on Automobiles, seqtion 1024: “The fact that a car is being driven from a private driveway does not give the driver of a car on the public highway with which the driveway .intersects, an absolute and unqualified right of way. Both drivers are under the duty to act reasonably.”

The record leaves us in no doubt at all concerning the speed at which plaintiff approached the scene. We are certain that it was considerably in excess of 25 miles per hour. Plaintiff admitted that he knew that the maximum speed permitted by ordinance was 25 miles per hour. Most of the other witnesses say that the maximum speed permitted was 20 miles per hour. When plaintiff was first placed on the witness stand, before he was questioned as to his speed, he volunteered — apparently inadvertently — the statement that he was coming from the parish garage at a speed of about “30 or 35 miles an hour.” Later he attempted to change his estimate and said that it was not more than about 25 miles ari hour. He said that he was sure of this because he knew of the “speed zone” and knew of the ordinance1 and had looked at his speedometer only a short distance before.

. The high speed of plaintiff’s car is indicated by the physical facts which appear in the record.. Although in his petition he alleges that after the collision his car had proceeded a distance of only ten feet, .in his testimony he said that he skidded about 25 feet. One of his witnesses said that the distance the car had gone after the accident could be determined by the distance between the point of the impact an the concrete culvert and that this was about 40 or 50 feet. As a matter of fact, that distance was actually measured and shown to be 74 feet, and in' going that distance after the impact, his two wheels had fallen into the ditch which no doubt to some extent retarded it. It struck a tree badly damaging the side of the car and yet it did not stop until it had hit the concrete culvert, indicating that it might have gone considerably further if the culvert had not been there.

We thus have no difficulty in reaching the conclusion that plaintiff was operating his car at a speed greatly in excess of that fixed by the ordinance of the Police Jury and that he, therefore, was negligent since it has been many times held that: , * * * The violation of a law is per se negligence and is actionable when the proximate cause of injury to others * * Stuckey v. Hayden, La. App., 3 So.2d 443, 446.

In Tooke v. Muslow Oil Co., 183 So. 97, 101, the Court of Appeal for the Second Circuit said: “The violation of a traffic law, it has uniformly been held, is negligence per se.” See, also, Pettaway v. K. C. S. Drug Co., La.App., 166 So. 902.

We realize, however, that it is also true that the mere violation of a law does not render the violator liable unless the violation can he said to be the proximate cause of. the injury. In Roberson v. Rodriguez, 186 So. 853, 855, the Court of Appeal for the- Second Circuit said: “However, even if the evidence, which is conflicting, preponderates as claimed by plaintiff and discloses the mentioned violations, the negligence resulting would not be actionable unless it was the or a proximate cause of the injuries. * * . * ”

In Tooke v. Muslow Oil Co., supra, the Court said: “ * * * To supply the basis for an action in damages, such violation must be held to be the or a proximate cause of the injury for which damages are sought.”

However, we are convinced from the facts shown here that the negligence of the plaintiff in operating his car at a speed in excess of that permitted by law and his negligence in continuing to drive at this speed after he saw that defendant either had backed into the road or was about to do so, had causal connection with the ensuing accident. We are convinced that plaintiff’s version is not the correct one; that defendant’s truck did not back into the highway just as plaintiff’s car was about to pass. We are convinced, too, that defendant’s truck did not back into the side of plaintiff’s, car as plaintiff claims .because the most serious damage seems to be to the front of his car and not to the left side about the middle. All in all, the record convinces us that the accident would not have occurred had plaintiff been on the alert and had been exercising proper care.

Accordingly, the judgment appealed from is annulled, avoided and reversed, and plaintiff’s suit is dismissed at his cost.

Reversed.

REGAN, J., takes no part.


text:
    BLACKSHEAR v. LANDEY et al.
    No. 19344.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.

      Jacob H. Morrison, New Orleans, for plaintiff-appellant.
    George Sladovich, Jr., New Orleans, for defendants-appellees.
   JANVIER, Judge.

This is a suit for a real estate agent’s commission which is claimed to have been earned by obtaining a purchaser ready, willing and able to buy at the price at which the prospective vendor agreed to sell.

The defense is that the sale could not be consummated because after the contract to sell had been entered into, the wife of the prospective vendor, (one of the defendants here) acting under authority of Section 2 of Act 35 of the Extra Session of 1921, now R.S. 1950, 9:2802, registered in the office of the Register of Conveyances for the Parish of Orleans a declaration that the property, which was involved in the transaction, constituted the family home.

The real estate agent, Mrs. F. Blackshea^ is the wife of Dr. Stephen M. Blackshear, and he, as head of the community, brought the suit for ,the commission claimed to have been earned by her in her capacity as real estate agent.

In the district court, there was judgment for plaintiff for $40.61, representing the expenses' which the real estate agent incurred in .’obtaining the prospective purchaser, but rejecting the claim for the commission stipulated for in the contract. From this judgment plaintiff has appealed. Defendants have not answered the appeal.

In a carefully prepared written statement of his reasons for judgment the district judge discussed all of the facts and the law. His discussion is so thorough, and so adequately presents our views, that we have decided to adopt it as our own and on our part to discuss none of the questions involved except the refusal to allow recovery for attorney’s fees. We discuss this matter because counsel for plaintiff complains -that in his opinion the district judge “glossed over the attorney’s fees.”

The written reasons follow:

“This suit is brought by Dr. Stephen M. Blackshear on behalf of his wife, Mrs. May-bart Frost Blackshear, against Herbert M. Landey. Mrs. Blackshear is a real estate broker and agent in the City of New Orleans, and it is shown by the evidence that Mr. Herbert M. Landey solicited her services as real estate agent and broker to sell the premises 1309 Octavia Street, this city, which said property formed part of the community of acquets and gains existing between himself and his wife and was occupied by them as a family home.

“Mrs. Blackshear, at the instance of the defendant, listed the property on the regular form of the New Orleans Real Estate Board, on June 1,1, 1947. This listing included all the furniture except the furniture in the owner’s apartment. Mr. Landey signed an offer to sell, dated August 23, 1947, which is on file in these proceedings.

“It is shown by the record that on numerous occasions the property was shown to prospective purchasers by Mrs. Blackshear and her agents, and that Mrs. Landey, one of the defendants herein, cheerfully cooperated in exhibiting the property to the prospective purchasers, and that on August 23, 1947, through the efforts of Mrs. Blackshear and her agents, a prospective purchaser of the property was found in the person of Mrs. Evelina Crump, who signed an agreement to purchase in the sum of $15,500, which said agreement was accepted by the defendant Herbert M. Landey.

“It is also shown by the record that the date October 1, 1947, was fixed for the passage of the act of sale before Elmer D. Flanders, Notary Public, and that the Notary refused to pass the act of sale because of the fact- that between the date of the offer, August 23, 1947, and October 1, 1947, defendant Mrs. Erna Inez Spell Landey appeared before a Notary Public in the City of New Orleans on August 26, 1947, and executed a declaration of homestead as the wife in community insofar as the property 1309 Octavia Street was concerned, under the provisions of Act 35 of the Extra Session of 1921, declaring the said property as a home, said declaration being recorded in C.O.B. 557, folio 103; M.O.B. 1719, folio 599, for the Parish of Orleans, on August 27, 1947.

“Petitioner bases his claim first on a contract suit for commission, provided for in the employment agreement of June 11, 1947, and the agreement to sell dated August 23, 1947. Secondly he sues on a quantum mer-uit and relies upon the equitable doctrine of unjust enrichment. Thirdly, petitioner claims in tort, alleging that the recordation of the declaration of family home was the result of collusive conduct between the two defendants, the husband and wife, for the purpose of making impossible the sale of the property in question, and thus wrongfully attempting to deprive Mrs. Blackshear of her commission.

“Mrs. Landey never signed the contract in question. Plaintiff seeks to hold Mrs. Landey because plaintiff claims she assented to the sale of the premises by her actions in cheerfully showing prospective purchasers through the premises and never at any time interposing any objection to the sale prior to the time that the act of sale was set before the Notary, at which time there was evidence to the effect that she asked for additional time in order that she might obtain another dwelling for herself and her family.

“Mrs. Landey testified she is an ill woman, that she has children, and that she had no other place in which to live. She further testified that she was always against the sale of the property, that she discussed the matter with her husband on many occasions. She also testified that the sale of the premises 1309 Octavia Street became such á heated subject that it almost caused an estrangement between them. ■

“Mrs. Landey stated that she had shown prospective purchasers through the premises, and had not remonstrated, but that she didn’t conceive it was any of the business of the general public who were being shown ■through her premises, or of the real estate agents who accompanied them, that she was having an argument with her husband concerning the sale of the premises. No benefit accrued to her because of plaintiff’s efforts, and she was enriched in no way. It is true that the house sold one year later for approximately one thousand dollars more, but the furniture was included in the sale, whereas in the offer on file the furniture was not included in the sale.

“Mrs. Landey testified that at one time she did agree with her husband to the sale of the premises, but later changed her mind and decided to avail herself of the protection of Act 35 of the Extra Session of 1921, and without her husband’s knowledge she proceeded to the office of Oscar J. Tolmas, Notary- Public, and executed an instrument declaring the property to be a family home, and caused the same to be recorded. The record also shows that about one year later the property was sold for one thousand dollars more than the offer previosuly referred to.

“Mrs. Landey didn’t sign the contract, and the court does not believe she made herself a party to the contract by her remaining silent and her actions in showing people through the house. Plaintiff contends that his principal claim is based upon quantum meruit. Insofar as Mrs. Landey is concerned, she did not employ the plaintiff or his wife, by direction or indirection. She simply showed prospective purchasers through the house. No benefits accrued to her and she was enriched in no way.

“Plaintiff’s claim against Mrs. Landey, thirdly, sounds in tort. Plaintiff claims Mrs. Landey colluded with her husband to prevent the consummation of the contract in question by the recordation of the family home exemption.

“Under the law and the provisions of Act 35 of the Extra Session of 1921, Mrs. Landey had a legal right to record her declaration of family home. Watson v. Bethany, 209 La. 989, 26 So.2d 12 which reads in part as follows: ‘The rights granted the wife under such statute are individual and personal, and are to be exercised by her independent of her husband with the same legal effect as if she were a third person. Without that legislative authorization, or upon failure to comply with the statute’s specific provisions, she has no legal means of preventing a bona fide sale by the husband of the family home the title to which stands in his name.’

“The evidence in this case falls short of establishing collusion and fraud between the husband and wife, and this court holds that she committed no fraud in exercising her legal right given to her under the statute.

“The same contentions that are made against the wife are made also against the husband. With regard to the suit upon the contract itself, performance was impossible on the part of the husband after the wife had recorded her declaration of family home which effectively prevented him from executing the deed. Accordingly there can be no recovery by the plaintiff against the husband because of his inability to go through with the contract. Neal v. Halliburton, La.App., 19 So.2d 625; Deano v. Michel, 191 La. 233, 185 So. 9; Boisseau v. Vallon & Jordano, 174 La. 492, 141 So. 38.

“The record shows that the husband paid the expenses of the Notary in connection with the certificates. The Court can find nothing in the record to show that the husband was not in good faith in this transaction.

“As previously stated, plaintiff bases his principal claim on quantum meruit against the defendants. Plaintiff says if she cannot enforce her written contract, she is entitled to be paid for work and labor done. She states, as shown by the testimony in the record, that she went to considerable time, trouble and expense in advertising the property and having her agents to show prospective purchasers through it, and that she is entitled to recover for this effort.'

“The record shows that the husband stood ready and willing to perform, and was unable to do so because of the action of his wife in recording the declaration of family home. No advantage or gain accrued to him as a result of plaintiff’s efforts. It was impossible for him to perform his contract because of a legal barrier thereto.

“Act 35 of the Extra Session of 1921 has been interpreted in the case of Deano v. Michel, supra, and in the course of its opinion the Supreme Court said: ‘Deano, Inc., must'be held to have contracted subject to the right of Mrs. Michel to record the declaration of family home.’

“So here the plaintiff, Mrs. Blackshear, must be held to have contracted subject to the right of Mrs. Landey to record a declaration of family -home, and with regard to the claim based on quantum meruit the plaintiff must have exhibited the premises full knowing that Mrs. Landey had the right to record the declaration of family home. It will be noted in this case that neither the contract authorizing the plaintiff to list the property, nor the offer and acceptance, were recorded in the mortgage or conveyance office of the Parish of Orleans; that the only instrument recorded was the declaration of family home. (See also Watson v. Bethany, supra.)

“The court does not believe that the evidence in this case establishes any fraud or collusion between the defendants, husband and wife herein.

“Plaintiff has claimed, in addition to her commission, the expense to which she has been put, and as part of such expense she claims attorney’s fees on behalf of her attorney who advised her and who brought this action. The court believes that the plaintiff should be awarded her out-of-pocket expenses for advertising in the sum of $30.61, and for a sign placed on the premises in the amount of $10.00, making a total of $40.61.

“With regard to the claim for attorney’s fees, the contract on file in evidence obligates the party who defaults to pay all costs and fees for enforcement and collection of any claim. Plaintiff cites Blache v. Goodier, La.App., 22 So.2d 82, wherein the Court of Appeal awarded a judgment of $125 under a similar clause in a contract.

“The.contract in this case was impossible of fulfillment, and the court will not allow attorney’s fees based on the contract. Having decided that the plaintiff is not entitled to recover her commission on the basis of the contract, or on quantum meruit, or in tort, it follows that the attorney is not entitled to collect from the defendant attorney’s fees for the attempted enforcement of this claim.”

We shall now consider the question of attorney’s fees. • ,

It is well established, of course, that attorney’s' fees are not collectible unless they are expressly stipulated for or unless they are specially authorized by law. There is no statute which specially authorizes the collection of attorney’s fees in a matter of this kind and as the contract itself is not enforceable, the fees cannot be collected on the ground that they were stipulated for in the contract.

The recovery of actual expenses seems to be authorized by the decision of the Supreme Court in Baumann v. Michel, supra, which presented a situation very similar to that found here. There the prospective vendor could not deliver title because his wife filed a declaration of family home, and the prospective purchaser was allowed to recover, the actual expense which he had incurred in examining the title. The Supreme Court gave no reason whatever for allowing the expenses, merely saying, with reference to the defendant, “it is our opinion that the trial judge properly ordered the expenses in connection with the sale to be borne by him.” There were no attorney’s fees involved in that case, except those which were made necessary by the title examination. The fee for the filing of the suit was obviously not contemplated in the above expression by the Supreme Court.

Counsel for plaintiff, in oral argument, contended that at least a part of the fee claimed here was based on legal advice given to'the real estate agent when it became obvious that the sale could not be consummated, but in his brief he states very clearly that the fees claimed were based on the fact that the expenses could not be collected without the filing of a suit.

Whether the fees , claimed are in part based on services rendered in connection with the giving of advice concerning the duty of returning the deposit, we are unable to say, but we feel certain that the doctrine announced by the Supreme Court, that in a somewhat similar situation the expenses incurred should be borne by the party who is unable to make title, should not be extended so as to include within the contemplation of the word “expenses” attorney’s fees based almost entirely on the filing of the suit for the collection of those expenses.

We think that the attorney’s fees claimed here were expenses incurred in an attempt to collect those other expenses. If the fees here claimed are to be allowed, then we see no reason why attorney’s fees should not be allowed in any suit <?n any claim.

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

Affirmed.


text:
    ROGERS et al. v. ILLINOIS CENT. R. CO. et al.
    No. 19300.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    See also 40 So.2d 403.
    Ernest A. Carrere, Jr., and Edward F. Stauss, Jr., New Orleans, for plaintiffs and appellants.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for Illinois Cent. R. Co. and Maryland Casualty Co., defendants and appellees.
    George Piazza, New Orleans, for S. A. Matranga, defendant and appellee.
   McBRIDE, Judge.

Plaintiff, Percy Rogers, was injured on May 9, 1946, at about 2:30 o’clock, p. m;, while working as a laborer for W. L. Riche-, son & Sons, Inc., freight forwarders. At the time of the accident, he was engaged in pushing a hand' truck in an up-river direction along the extreme inboard portion of the apron of the Orange Street wharf in New Orleans. Defendant S. A. Matranga, acting within the scope and course of his employment by defendant Illinois Central Railroad Company, was driving his automobile down-river on the apron of said wharf, when his automobile and the hand truck being pushed by Rogers collided.

W. L. Richeson & Sons, Inc., claims to have expended a total of $329.83 in workman’s compensation payments to Rogers, and in medical and hospital expenses for the treatment of the injuries received by Rogers, and joins in this suit as a party plaintiff in its status as legal subrogee for the amount paid by it to Rogers in compensation, and the amount paid by it for medical and hospital expenses.

Percy Rogers and his employer claims damages in the total amount of $6507.25 from the defendants, who are S.. A. Ma-tranga, the Illinois Central Railroad Company, Matranga’s employer, and the Maryland Casualty Company, liability insurance carrier of said railroad, the petition alleging that Matranga was guilty of various acts of negligence which were the cause of the accident. The defendants, disavowing negligence on Matranga’s part, deny liability, and in the alternative plead that the accident was caused by the contributory negligence of Rogers, in that he deliberately or accidentally pushed his hand truck into the rear portion of Matranga’s automobile while the said automobile was stopped.

The appeal before us, which involves only questions of fact, was taken by Rogers from a judgment dismissing his suit, after a trial in the court below.

At the time of the accident, Rogers was engaged in loading cases of whiskey and rum into a box car. The paved apron on the land side of the wharf shed is thirty feet wide, measured from the end of the “curtain” of the shed, and the railroad tracks of the Public Belt Railroad parallel this apron; between a parked box car and the apron is a space of about eighteen inches, and entrance is made to the side door of the box car from the apron across what the witnesses term a “stage,” which runs from the apron to the door of the car. Laborers leaving the shed with freight, push hand trucks across the apron into parked box cars for loading and unloading, and the apron is also used by vehicular traffic traversing the river front.

Near the point where the accident happened was a large pile of lumber, stacked lengthwise alongside the wall of the wharf shed, and this lumber extended out about half the width of the apron, which left about fifteen feet clearance for the passage of vehicular traffic travelling on the apron.

Guy Green, a coworker of Rogers, was produced as a plaintiff witness. The burden of his testimony, and that of Rogers, the plaintiff, is that the box car which Rogers was loading was adjacent to Sections 41 or 42 of the shed, and that the freight being loaded was located in Sections 33 or 34, a short distance upstream. Plaintiff would load his hand truck in Sections 33 or 34, and then come down under the shed to Section 41, and then, from the door of that section, would push the truck across the apron into the freight car. In returning from the box car to the freight, he would traverse the same route with his empty hand truck. Rogers had delivered a load of freight to the car, and after unloading it, made his exit from the car; however, instead of entering Section 41, he turned to his right and proceeded along the outer edge of the apron in an uptown direction, and at the same time Matranga’s automobile was coming downstream at a speed of about twenty to twenty-five miles an hour, on Matranga’s own right-hand side of the apron. Green and Rogers say that at the time a large automotive trailer-truck, which had come from the direction of downtown, was endeavoring to turn into and enter Section 41, and that Matranga pulled over from his right-hand side to his left-hand side of the apron, in a maneuver to pass behind this truck, and then cut sharply towards his right, causing the left rear fender of the automobile to sideswipe Rogers’ hand truck. They say that the automobile travelled for about twenty or twenty-five feet after the accident, and that Rogers’ truck was hit at a point about thirty feet from the door of the box car. Neither of these witnesses saw a car approaching from the opposite direction.

Matranga and his witness, Garland, made no mention of the trailer-truck endeavoring to enter Section 41. Matranga’s testimony is that -he had parked his car on the apron, about one hundred feet upstream from the place of the accident, while he checked box car numbers and initials for his employer. After doing so, he got into his car and started off in a downstream direction, at a speed which he estimated to be about five miles an hour. He noticed two cars coming from the opposite direction, and as the pile of lumber blocked his path, he decided to pull over to his left and come to a stop, in order to facilitate the two cars coming from the opposite direction passing him, and that just as he was coming to a stop, at a point a few feet from the outer edge of the apron, Rogers came out of the box car, started to-cross the apron to go into the shed, and then suddenly changed his mind and made a right turn with his hand truck to go upstream-along the edge of the apron. Matranga was positive that just as he stopped, Rogers passed by the window on the left side of his automobile, and he then heard a noise,, opened the door and got out of his car, and' found that Rogers’ hand truck had collided with the left rear portion of his automobile, and he found Rogers lying on the apron.

Plaintiff’s counsel attach much importance to a statement made by Matranga, to-the effect that he was “kind of confused at the time, to tell you the truth,” and argue that the confusion existing in Matranga’s-mind caused him to make the reckless maneuver with the automobile, as described by-Rogers and Green. We believe, however,. that the import for which counsel contend should not be placed on Matranga’s statement, and we believe that Matranga satisfactorily explained the nature of his confusion. He stated that if he had kept on a straight path, he would have run into the lumber, and that he thought the best thing to do was to pull over to his left side and stop, and let the on-coming cars pass between his automobile and the lumber.

Ed. J. Garland, General Manager of the New Orleans Public Belt Railroad, appeared as a defense witness, and the trial judge was impressed by his statements. Garland substantially corroborates Ma-tranga. He was driving on the apron in an upstream direction, and when he reached the lumber there was another automobile (Ma-tranga’s) coming from the opposite direction, and Garland stopped to let the other car clear. He states that Matranga also slowed down and was almost stopped, and that he saw a colored man come out of the box car with a hand truck, turn sharply to his right, and start up the apron, and it appeared to Garland that the man with the •hand truck hooked the truck into the rear fender on the left side of Matranga’s automobile. Garland, however, stated that he did not see Rogers fall.

The trial judge gave these brief reasons for judgment: “Plaintiff has the burden of making his case reasonably certain. This court cannot disregard the testimony of the General Manager of the Public Belt. His testimony was in favpr of defendants; Judgment dismissing plaintiffs’ demands.”

A careful study of the record reflects that there are some minor inconsistencies in the testimony, but an analysis of all of the evidence convinces us that the testimony of Matranga and Garland should prevail, as their testimony appears to be more plausible than that of Rogers and his witness, Green.

As the judgment appealed from is based solely and only upon facts, it should not be disturbed, unless clearly erroneous, and we believe that the findings of the trial judge, who heard and saw the witnesses testify, are correct, and nothing appears in the record which would indicate there is reversible error.

The judgment appealed from will be affirmed.

Affirmed.