text:
    LE BLANC v. HESTER.
    No. 3182.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Joseph J. Piccione, Lafayette, for appellant.
    Dugas & Bean, Lafayette, for appellee.
   DORE, Judge.

This is a suit for the sum of $57.26 with legal interest from the date of judicial demand and costs. It was filed upon the Clerk’s Docket of the Parish of Lafayette, Louisiana, and the demand was in the form of a simple citation with a sworn itemized statement of the account attached thereto. No petition was presented, the demand was not articulated or verified.

Preliminary default was taken before the Clerk of the Court and was confirmed before the Clerk of the Court and was signed by a Deputy Clerk of Court. From this judgment, the defendant has appealed on the ground that in the rendition and signing of the judgment, the Clerk of Court was without jurisdiction and that the judgment is contrary to the law and to the evidence and is null and void.

• Counsel for defendant-appellant contends in his brief that this- suit was brought “under the procedure set out in the provisions of Act No. 223 of 1928 of the Legislature. That Act provides a procedure for bringing causes of action which do not require a written demand, nor articulation, nor verification, and provides for the proof of demands and. the taking of defaults before -the Clerk or Chief Deputy Clerk of the Court, which shall be as valid as though done before the judge. However, the special- procedure for pleadings, etc., provided for ,in that Act is limited. Section 1 of Louisiana Act 223 of 1928 provides as follows, to-wit: ‘The procedure in the several District Courts of the State, in cases in which those courts have concurrent jurisdiction with Justice of the Peace Court other than municipal courts, shall be as follows

“The Language of the Act clearly limits the special procedure therein set forth to apply only to those cases brought in the District Court in which the District Court has concurrent jurisdiction with a Justice of the Peace Court ‘other than Municipal Court’. As though this language were not sufficiently clear on the limited application of said special procedure, Section 13 of that Act provides as follows, to-wit: ‘In suits arising within the territorial jurisdiction of Municipal Courts established under any legislative act of this State, where the jurisdiction of the District Court is invoked, the ordinary rules of practise, pleading and procedure observed in said District Courts shall govern.’

“The present case comes squarely under the provisions of Section 13 of Louisiana Act 223 of 1928 above quoted. It is clear from the record that this suit arose within territorial jurisdiction of a Municipal Court established under a legislative act of this State, and that the demand is one where the District Court has concurrent jurisdiction with the said Municipal Court and not with any Justice of the Peace Court.”

Article 7, Section 29 of the Constitution of the State of Louisiana sets forth the jurisdiction of the Courts of Appeal as follows: “The Courts of Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only,' which jurisdiction shall extend to all cases, civil and probate, of which the Civil District Court for the Parish of Orleans, or the District Courts throughout the State, have exclusive original jurisdiction, regardless of the amount' involved, or concurrent jurisdiction exceeding one hundred dollars, exclusive of interest, and of which the Supreme Court is not given jurisdiction, except as otherwise provided in this Constitution, and all appeals shall be both upon the law and the facts.”

It is well settled that the Court should take notice ex propria rriotu of its want of jurisdiction rationae materiae, and under the uncontradicted statement above quoted from plaintiff’s brief and from the record, this Court is without jurisdiction and this appeal is therefore dismissed.

ROBERT D. JONES, J., sitting ad hoc.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    LIRETTE v. SHARP et al.
    No. 3189.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      A. Deutsche O’Neal, Houma, for appellants.
    Ellender & Wright, Houma, for appellee.
   DORE, Judge.

This is a suit under a contract of lease. The plaintiff alleges that on January 6, 1948, under a written contract, he leased to Liberty Motors, a commercial partnership composed of J. W. Sharp, Jr., and Thomas F. Glover, certain premises owned by him and situated in the City of Houma, for a period of fifteen months beginning on January 1, 1948 and continuing to March 31, 1949, at a monthly rental of Two Hundred Twenty-five and no/100 ($225.00) Dollars, payable monthly, for the purpose of conducting an auto sales and repair business, a copy of the written contract of lease being attached and made a part of the petition. He further alleges that the rent on the premises leased has not been paid since December 1, 1948 and the said defendants removed their goods from the leased premises and abandoned said premises without lawful cause during the month of December, 1948, and have failed to surrender the keys of the premises. He seeks payment of rent for the four months from December 1, 1948 to March 31, 1949, at the monthly rate of $225.00, or a total of $900.00, for which amount he prays for judgment, with legal interest from date of judicial demand and for costs.

Defendants, in their answer, admit the execution of the lease; admit that the last four months of the lease period have not been paid; admit that they abandoned the leased premises during the latter part or November or the first days of December, 1948, but deny that their abandonment of the leased premises was without legal cause; and they admit that they 'have not surrendered any keys of the premises to the plaintiff, because there were no keys to surrender. They deny any indebtedness to plaintiff for any sum of money.

Further answering and assuming the position of plaintiffs in reconvention, they aver that “before, during, at and after the time of the execution of the lease, * *, all parties were aware of the fact that the contemplated and later leased premises was not fit to be used for the defendants’ business, due to the decayed, rotten and worn out condition of the roof and ceilings — all parties knowing that large leaks occurred and tremendous amounts of water poured through the roof of said building during rains to such an extent that practically the entire premises would be unusable during rain.” They further aver that they, during their tenure of the premises, repeatedly and at divers times notified the plaintiff of the condition of the roof and constantly pleaded with the plaintiff to repair said roof, and he, the plaintiff, would promise to make the necessary repairs, but would fail to do so. Defendants aver that they, in an effort to get along peacefully in their 'business operations, “played along” with plaintiff as long as they could possibly do so, and finally abandoned the hope of having plaintiff properly fix the roof, and did, during the latter days of November, 1948, begin to evacuate the building after having remonstrated with plaintiff and advising him that they could not stand the situation any longer.

Defendants claim the sum of $60 as damage done to an automobile by having tar leak upon it through the roof.

In addition to this $60, they claim damages in the sum of not less than Fifteen Hundred ($1500.00) Dollars for “loss of time, loss of labor, loss of work, loss of jobs, and were considerably, annoyed and harassed by the condition of the roof, and by plaintiff’s failure to put same in good condition as required by his obligation to defendants as lessor.”

In their prayer, defendants pray for a dismissal of plaintiff’s demand, for a cancellation of the lease as of the end of November, 1948, because of the defective condition of the roof, and for a judgment in their favor and against plaintiff for the sum of $1560, with legal interest from judicial demand until paid, and for all costs.

On these issues the case was duly tried, resulting in a judgment, with written reasons assigned, in favor of the plaintiff and against the defendants for the sum of $900, with legal interest from judicial demand; judgment in recorivention in favor of defendants and against plaintiff in the sum of $60.00, with interest from judicial demand; the costs were equally divided between plaintiffs and defendants. Defendants have appealed.

Revised Civil Code Article 2692, provides that, “The lessor is bound from the very nature of the contract, and without any clause to that effect: 1. * * *. 2. To maintain the thing in a condition such as to serve for the use for which it is hired. 3. * *

The following facts seem not to be disputed. The leased premises in the contract of lease is declared to be “That portion of that certain commercial building located at the corner of Lafayette and School Streets, (situated in the City of Houma), and bearing the municipal No. 301 Lafayette, on the first floor and consisting of the Filling or Service Station and Repair Department, as. formerly occupied and used by said lessor.” According to “Exhibit P-9,” and as found by the trial judge, the structure leased measures 70 feet by 130 feet, a total area of 9100 square feet, less a portion reserved by plaintiff for a grocery store involving an area of something less than 2000 square feet, thus making a net area of more than-7000 square feet. Defendants admit that these premises were “hired” for the purpose of conducting an automobile repair,, sales and filling station business, and according to their testimony, the premises, were used for such purposes. It was this “use” for which the lessor, plaintiff, had to maintain the roof of the structure in a satisfactory condition. It should be mentioned at this time that the Lirette Grocery Store, operated by plaintiff’s son, occupied part of the same structure and was covered by the same roof.

The record further discloses that the defendants occupied these premises, on a month to month basis at a monthly rental of $225 per month, in the early part of October, 1947, and were so occupying the premises when, on January 6, 1948, they executed the written lease for a term of fifteen months at the monthly rental of $225. The defendants abandoned the premises on or about December 14, 1948, without paying or offering to pay the December rent or any portion thereof, and without notifying the plaintiff of their intention in so doing.

The finding of fact by the trial judge is as follows: “The testimony shows that there were leaks from time to time during heavy rains, that Lirette was given notice of such leaks, that he made efforts to repair the same, but that the leaks were never so completely repaired as to completely prevent their recurrence during heavy rains. However, the testimony does not show (not even the testimony of Liberty’s witnesses) that ‘tremendous amounts of water poured through the roof of. said building during rains to such an extent that practically the entire premises would be unusable during rain’. On the contrary, our appraisal of the testimony is that the leaks consisted more of drips under which buckets were hung, and which evidently served the purpose until repairs were made. If the leaks had been so extensive that ‘Tremendous amounts of water poured through the roof’, the use of some two or three buckets would have been an absurd, vain and useless gesture. The fact that buckets were used indicates to us that the leakage could not have been nearly so extensive as Liberty alleges. Consequently, it is our belief that while there were some leales which afforded Liberty some inconvenience and even resulted in some damage, they were hardly sufficient to impair the use of most of the premises and to justify the abandonment thereof.”

We do not deem it necessary to state the testimony of each witness. We find it sufficient to say that after a careful reading of the transcript of testimony consisting of some ISO pages, we are in entire accord with the trial judge’s conclusion of facts. Furthermore, we must say that the testimony justifies the further finding that the leaks, in comparison to the area of the roof, were not as extensive as the defendants would want us to conclude, but were occasional drips.

The first question presented for our consideration, under the facts and circumstances as found by the trial judge and us, is whether the defendants had a right to consider the lease dissolved and abandon the premises in the beginning of December, 1948.

It is fundamental that under Revised Civil Code Articles 2692, 2693, and 2729, it is the duty of a lessor to maintain in repairs the roof in condition such as to serve for the use for which the structure has been leased during the continuance of the lease, and in the event that the lessor neglects to fulfill this duty, then the lessee may ask for a dissolution of the lease or may himself cause the repairs to be made and deduct the price from the rent due on proving that the repairs were indispensable and that the price which he has paid was just and reasonable.

However, under our jurisprudence the dissolution of leases is granted only in extreme cases such as was done in the case of Goldstein v. Stone, 12 La.App. 702, 127 So. 73. In that case, a dwelling house was involved. The roof leaked very badly causing the premises to be uninhabitable and damaging the lessee’s furniture. In fact, the plaintiff, lessor, admitted that the roof leaked, ignored the demand of the lessee to repair the roof, and contended that it was the duty of the lessee, defendant, as a matter of law under the provisions of Revised Civil Code Article 2694, to repair the roof and deduct the cost thereof from the rent.

In the present case, the structure leased was a filling station and garage. Defendants, lessees, were not deprived absolutely of the use of the premises. They were subjected to inconveniences at times, it is true; but, the structure was still being used. The plaintiff made repeated attempts in stopping and did stop the leaks upon 'being advised of the leaks. The defendants abandoned the leased premises without sufficient and legal cause and thereby became legally liable for the remainder of lease rent. We see no use of discussing the question raised as to whether defendants retained possession of the premises by not delivering the keys and in keeping an old damaged automotive vehicle and a stove on the premises. If they abandoned the lease without legal cause, they owe the four months’ rent sued for.

The next question presented is the contention of the defendants that it was the duty or obligation of the plaintiff to rent the premises in mitigation of the damages or loss of rent. They contend that the plaintiff could have rented the structure for as much or more than defendants had obligated themselves to pay if plaintiff had stopped the leaks and desired to lease the premises, thus saving the loss of any rentals for the unexpired term.

We are free to confess that we know of no law which makes it the duty of the lessor to minimize the damages by endeavoring to obtain a new tenant in the event of an abandonment of the premises by the original tenant. It is true that in the case of Lagonda Corporation v. Cancasci, La.App., 4 So.2d 775, 777, Court of Appeal, Orleans, we find: “It is pointed out that the plaintiff was under an obligation to minimize his damages and that in renting the property to a second tenant, he was discharging that obligation. It is true that a landlord is legally obligated to minimize his damages by endeavoring to obtain a new tenant in the event of a default by the original tenant. Bernstein v. Bauman et al., supra (170 La. 378, 127 So. 874, 877); Sliman v. Fish, supra (177 La. 38, 147 So. [493], 495).”

A study of this case clearly shows that such a pronouncement or holding is but an obiter dictum on the Court’s part. The question presented on the answer to the appeal was the effect of voluntary remission, or waiver, without any equivocation, reservation, or qualification -by the lessor of the balance of the rent, for which a new tenant had obligated himself. Further, the two cases cited by the -Court do not support such pronouncement or holding.

In the Bernstein case, syllabus 3 states [170 La. 378, 127 So. 874]: “Lessees, having abandoned premises without justification, held liable for rent during term, notwithstanding landlord after abandonment re-leased premises.”

This syllabus is fully borne out by the expression of the Supreme Court, viz.: “Plaintiff did not lease the premises to Gordon until defendants had abandoned them and after he had made due demand upon defendants. He took possession of the premises and leased them to Gordon as a negotiorum gestor for defendants and for the purpose of minimizing the damage. There is no reason in law or equity why the defendants, who by reason of their abandonment of plaintiff’s premises without lawful cause are bound for the rent of the whole term, should not sustain the loss in the event of a default on the part of the new tenant.” (Italics ours).

The Sliman case is authority for the rules that (1) “The abandonment by defendant of the leased premises had the result of maturing the whole amount of the rent under the lease. Hyman v. Hibernia Bank & Trust Co., 144 La. 1074, 81 So. 718,” [177 La. 38, 144 So. 494] and (2) “Where the lessee abandons the premises, the lessor may rent the property to other tenants, and does not thereby cancel the lease, or impair his recourse upon the lessee. He is, however, equitably bound to credit the lessee for the amount he received from the new tenants. Holden v. Tanner, 6 La.Ann. 74.”

These cases therefore are authority for the rule that when the lessee abandons the leased premises without justification, such abandonment matures the whole amount of the rent under the lease and the lessor, acting as negotiorum gestor for defendant, may lease the premises to another tenant without impairing his recourse against the lessee, provided however, that if he so acts, the lessee is entitled to credit for the rent received. There is nothing in these cases which hold that there is any legal duty on the lessor’s part to act as. a negotiorum gestor for defendant. He has the discretion of demanding his whole rent or may act as a negotiorum gestor for the defendant and re-lease the premises for the -benefit of the lessee. In our case, the lessor chose to claim the whole rent. It appears to us that it was more the duty of the defendants to sublease the premises than the plaintiff.

In their brief defendants also cite the case of Weil v. Segura, 178 La. 421, 151 So. 639, as sustaining their contention. We do not find wherein that case is authority for their contention; to the contrary, we find that it is wholly in accord with the holdings of the Bernstein and Sliman cases, supra.

We now pass to the reconventional demand of the defendants-appellants.

In so far as the $60 damages allowed by the trial court is concerned, we are not concerned with it in that the plaintiff has not appealed nor has he answered the appeal.

The defendants complain that they should -h-ave been permitted to prove further damages and that the case should be remanded for further hearing and the introduction of evidence. Their -complaint is based on the ruling of the trial judge, on objection of counsel for plaintiff, excluding evidence on the reconventional demand of $1500, as the allegation with reference thereto was too vague, too general and indefinite to warrant such introduction of evidence.

The allegations of defendants’ recon-ventional demand are as follows:

“17. Defendants consequently suffered loss of time, loss of labor, loss of work, loss of jobs, and were considerably annoyed and harassed by the condition of the roof and by plaintiff’s failure to put same in good condition as required by his obligation to defendants as lessor.”
“18. Defendants aver that in addition to the particular Sixty Dollars item here-inabove referred to, they have suffered injury and damage because of the conditions and circumstances above recited in the sum of not less than Fifteen Hundred ($1500.00) Dollars.”

The defendants in their brief admit these allegations do not set out their claims in detail but contend that they are sufficient to advise the plaintiff as to what the damages consist of so that he may be prepared to meet the issue. With him, we must disagree. In our opinion, the trial judge properly excluded evidence as to such claims, as a mere reading of these allegations shows that they are so vague, so general and indefinite that plaintiff was placed in a position in which it could not defend itself against such claims. For instance, how did the defendants lose any time, any labor, and what jobs did they lose, and for what amount? It was the duty of the defendants, in their reconven-tional demand with reference to these alleged items of damages, to set out clearly how they were incurred and the amount claimed as they did for the sixty dollars claimed.

The defendants also complain of the ruling of the trial judge in barring evidence relative to some photographs and evidence relating thereto sought to be introduced on surrebuttal. Without passing on the correctness thereof, we find that this evidence would not change the conclusions we have reached.

Finding no error committed by the trial judge in his finding of fact and the law applicable there, the judgment appealed is affirmed.

Judge ROBERT D. JONES, sitting ad hoc.


text:
    FIDELITY GUARANTY FIRE CORPORATION v. VARISCO et al.
    No. 3177.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Stafford & Pitts, Alexandria, for appellants.
    Davidson & Davidson, Lafayette, Richard C. Meaux, Lafayette, for appellee.
   DORE, Judge.

On January 23, 1948, at about 8:30 at night, at the intersection of Buchanan and Cypress Streets in Lafayette, a collision occurred between a 1947 Kaiser automobile belonging to Louis C. Bristow and being driven by him, and a Dodge truck belonging to Nunzia J. Varisco, and being driven by Frank Varisco. As a result of the collision, the Bristow automobile was damaged to the extent of $555.15 and under a collision insurance policy in his favor from Fidelity and Guaranty Fire Corp., the plaintiff, Bristow was paid the sum of $505.15, being the full damage less $50 deductible under the terms of the insurance policy. The plaintiff sues for the said sum of $505.15, plus legal interest and costs, the said Nunzia J. Varisco, owner of the truck involved in the accident, and his insurer, the Great American Indemnity Company, alleging that the collision and resulting damages were caused entirely by the gross negligence of Frank Varisco, who was driving the truck in the course and scope of his employment by Nunzia J. Var-isco. The specific acts of negligence charged are:

“(a). Driving at an excessive and reckless rate of speed in view of the condition of the streets at the time, which were very icy and slippery;
“(b). Failing to maintain a proper lookout;
“(c). Failing to have his truck under proper control;
“(d) Driving his truck in such a reckless manner that he was unable to bring it under control, or to bring it to a complete stop in order to avoid the collision.”

The petitioner alleges further that Bris-tow was entirely free from negligence, and in the alternative, that if he was guilty of any negligence at all, which is denied, that petitioner is still entitled to recover for the reason that Frank Varisco had the last clear chance of avoiding the accident.

The defense is to the effect that Frank Varisco was guilty of no negligence whatsoever and that he was operating his truck at a slow rate of speed because of the dangerous condition existing caused by the coating of ice on the streets; that the truck was in perfect mechanical condition, and that he was driving on his own side of the street and stopped the truck on the right side of the street as soon as he saw the Bristow car approaching, out of control; that the accident was caused by the negligence and faulty driving of Bristow in that he was operating h»is car too fast under the circumstances, failed to keep a proper lookout for approaching traffic, lost control of it on the icy street to the extent that it skidded or veered on to his left or the wrong side of the street, where it hit the stopped truck. In the alternative, the defendants plead contributory negligence.

After trial of the case, the District Court, for oral reasons (which appear typed in the record), found that the accident was caused by the negligence of Frank Varis-co, and accordingly, granted judgment as prayed for. The defendants have appealed.

After this case was argued and submitted, but before our final decision of the case, the defendants filed an exception of no right of action predicated upon the specific provisions of Act 55 of 1930, which provides a right of direct action under certain circumstances, contending that such direct right of action is limited to an injured person or his heirs and not to a subro-gee of said injured person. They cite as authority for their position, the case of World Fire & Marine Ins. Co. v. American Auto Ins. Co., La.App., 42 So.2d 565.

Examination of the cited case fails to show wherein it is apposite to the case at bar. In the cited case, the Court was very careful to point out that the plaintiff, an insurance company, as subrogee of its insured, sought to recover, by direct action, against the insurer of the owner of a motor truck which was involved in an accident with plaintiff’s subrogor’s automobile; in other words, the plaintiff brought the suit clearly under the provisions of Act 55 of 1930. In the case at bar, plaintiff, an insurance company a's subrogee of its assured, is seeking to recover from Nunzia J. Varisco, the owner of the alleged offending motor vehicle. Act 55 of 1930, clearly has no application to a suit brought against a tort feasor himself 'but relates only to a direct action against the insurer alone. Thus Act 55 of 1930 cannot have any bearing upon the suit against defendant Nunzia J. Varisco.

Furthermore, in Article 3 of the petition, it is alleged that the Great American Indemnity Company was the insurer of Nun-zia J. Varisco in that it had written its policy of insurance in favor of said Varis-oo which covered the particular offending motor vehicle, and that the said policy was in full force and effect at the time of the accident, and consequently, the insurance company and the said Varisco were responsible in solido for the amount of the damage suffered by the plaintiff. In answer to these allegations, the defendants, in their answer, state: “The defendants admit that prior to January 23, 1938, (the date of the accident), the Great American Indemnity Company had issued to Nunzia J. Va-risco, a policy of insurance, generally called a public liability policy, covering the operation of a Dodge truck, (the alleged offending truck), bearing Louisiana license number 58-25, and the said policy was in full effect at the time of the accident referred to in plaintiff’s petition.”

Upon these admissions, it is clear that any judgment rendered against Varisco must, of necessity, be paid by the insurance company under the terms of the policy, whether the insurance company is made • a party to the suit or not. As previously stated, we are of the opinion that Act 55 of 1930 has no application whatsoever to a case of this kind where the owner of an offending motor vehicle and tort feasor himself is a party defendant to the action, but the provisions of the Act relied upon in this case for the maintenance of the exception relates solely to the right to institute a suit against the insurer company alone. The cited case supra' relates only to the right of action under the said Act against the insurer company alone and has no reference whatever to a situation as herein presented.

For these reasons, the exception of no right of action is overruled.

A review of the evidence shows that the accident occurred at a five-way intersection and it is clearly shown that the streets at the time were coated with ice, and since the accident occurred at night, it readily can be seen that it was incumbent on both drivers to proceed with great care. The main question involved is whether or not the plaintiff has sustained the burden of proving that its assured did proceed with the care necessary and sustained the burden of proving that the accident was caused solely by the negligence of the truck driver. As far as the amount of damage is concerned, the time of the accident, and the condition of the streets, these are admitted by stipulation. In accordance therewith, the accident happened at about 8:30 or 9:00 o’clock, after dark, the streets were covered with a coating of ice and the damages sustained by plaintiff amount to the sum of $505.15.

In order to determine liability, it seems proper to summarize the testimony contained in the record:

Louis C. Bristow, the driver and owner of the Kaiser automobile involved, testified that shortly prior to the accident, he was driving on Buchanan Street in a Southerly direction at a rate of speed of bétween twelve and fifteen miles an hour; that the lights on his automobile were burning, that he was driving on his right lane of traffic, that; “As I approached the intersection of Cypress and Buchanan, I noticed the lights of a vehicle on my left on Cypress and I slowed down my car and actually stopped before I had entered the intersection. Just at this moment, I noticed the lights of this other vehicle swing in a semi-circle direction out of Cypress Street, that is, from my left out of Cy--press Street, and the vehicle collided with the front end of my car.”

He testifies further that at the time he stopped he was approximately eighteen to twenty feet from the left curb of Buchanan Street; that is, to his left; that after the accident, traffic continued to pass both ways on Buchanan Street, to the left of his parked car.

Mr. G. L. Pierret, witness for plaintiff, testified that when the accident happened he was a half block behind the Bristow car; that he had followed Bristow just far enough behind him to be able to stop on the icy roads all the way from Crowley and that he does not think he ever got over twelve or thirteen miles an hour. He testifies that he saw the automobiles after the collision and in explaining the position of the vehicles after the collision, states that, “There was enough room on the left of Bristow’s car for two-way traffic to pass.” He states further that, “The front of the truck was all mixed up with his (Bristow’s) automobile. It was just a head-on collision. I think the bumper of the truck was into the body of the car.” His testimony is clearly to the effect that the collision was in the lane of travel in which the Bristow car belonged.

This witness also testified that he talked to both drivers right after the accident and that the truck driver admitted that his truck slid into the automobile, “but Bristow had been so nasty about the whole thing, I would take $20,000.00 and spend it rather than see him recover a nickel from the insurance company.”

Larry G. Logan, witness for plaintiff, testified that he witnessed the accident while 'he was at the corner of Buchanan Street getting ready to cross Buchanan Street to go down Cypress Street. Upon being asked to state in his own word's exactly what he saw, he stated: .

“A. Well, the truck, was coming down Cypress heading North and .the car was coming up from, I guess it is a continuance of Cypress, coming South and he was driving very slow, and the truck wasn’t going too fast and I was about to cross the street and the car stopped and I guess he was deciding to see which way the truck was going and the truck swerved around. I thought he was going straight and he turned around and before he realized the car was there he tried to stop and slid on the ice. There was a lot of ice on the ground.
“Q. Did he hit the car? A. Yes.
“Q. Was the car stopped at the time? A. I think it was.
“Q. Approximately how fast did you estimate the truck was traveling at the time of the accident ? A. I figure-he was going around twenty miles an hour.
“Q. Can you estimate the distance that the automobile was from the intersection or its position? A. He was a good ways from the intersection. It is a sort of big circle. It was a wide intersection and he stopped about the middle of it.
“Q. Where, in relation to the center of Buchanan Street, was the automobile of Mr. Bristow at the time you saw it? A. Well, it was just about at the center. It is pretty hard to explain, but it is a big kind of intersection there and he was in the center of it where he had stopped.
“Q. Approximately how far would you say that his automobile was from his left ditch? A. About that I don’t know. I could not give you anything definite because it has been a good year, but I guess he was about six, eight or nine feet. Something like that. I cannot give you anything definite.”

Frank Varisco, called toy defendants, testified that as he was traveling along Cypress Street and getting ready to turn at the intersection, he was in first gear and going about four and a half to five miles an hour, that he was traveling in that manner because of the ice on the ground, that when he got to this big intersection and saw that Bristow was coming “I knew he was going to jump the ditch or turn one way or the other. I stopped right there. I didn’t want to take a chance.”

He states that when he stopped his truck he was about fifteen feet into the intersection and that the Bristow car coming South on Buchanan skidded to the left and struck the right bumper of his truck; that no damage whatever was done to the truck since merely the right bumper was struck.

He denies having made a statement to Mr. Herret, that his truck skidded into the car, but admits that he and Mr. Bristow had some unpleasant words and that Bris-tow called him a “no-good-son-of-a-bitch”, hut that he himself did not get mad. He states, “No, I was going to get bad (mad), but I thought with all that ice I might break one of my arms and hurt myself.” He admits that when Mr. Pierret came along he acted as a peacemaker and tried to keep trouble down.

John Hebert, a City Policeman of Lafayette, testified that as part of his official duties he investigated the accident and went to the scene and thereafter made a sketch of the position of the automobiles, which sketch is marked Defendant A, and according to his testimony, the accident occurred approximately in the center of the intersection of Cypress and Buchanan and on Bris-tow’s lefthand side of Buchanan. His evidence contradicts the testimony of the other witnesses as set out hereinabove and as set out in other sketches introduced in connection therewith, marked P-1, P-2, P-3 and P-4.

As is usually the case in these automobile collision cases, the evidence is contradictory, but it is apparent that the trial judge concluded that the version of the accident as given iby plaintiff’s assured was correct and was sufficiently corroborated by the testimony of Mr. Pierret and of Mr. Logan, both neutral witnesses. Their testimony is contradicted somewhat by Officer Hebert, but he was not actually present at the scene when the accident occurred, as were the other two witnesses. We are particularly impressed by the testimony of Mr. Pierret to the effect that right after the accident traffic continued in both lanes to the left of the Bristow automobile, which had been hooked on its left side by the bumper of this heavy truck.

It is our conclusion that the preponderance of the evidence is to the effect that the truck ran into the Bristow automobile due entirely to the negligence of the truck driver in failing to keep a proper lookout under the existing circumstances, and the judgment appealed from is correct.

For these reasons, the judgment appealed from is affirmed.

JONES, Judge ad hoc, dissents in so far as the overruling of the exception of no right of action is concerned, and. is of the opinion that the Defendant Insurer should be released from this suit.


author: JONES, Judge ad hoc.

text:
    FUHRMANN et al. v. CATANESE.
    No. 3187.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Pettigrew & Duval, Houma, Robt. W. Polchow, New Orleans, for appellants.
    Ellender & Wright, Houma, for appellee.
   JONES, Judge ad hoc.

The plaintiffs, who are the members of an architectural firm in the City of New Orleans, bring this suit seeking the recovery of $1,699.71, which they allege is due them by the defendant for architectural fees as a result of their employment by said defendant. In the alternative, they allege that, if the court should find that they had no verbal contract of employment with said defendant, then they are entitled to recover on quantum meruit.

Defendant denies in the answer that he ever employed the plaintiffs and, even though he admits the plaintiffs performed certain services for him, he alleges that these services were for a building which cost greatly in excess of the amount that he had intended to spend. Defendant further admitted paying the plaintiffs $200 for their services, but denied owing any further amount.

The trial court rendered judgment rejecting the plaintiffs’ demand for recovery on the contract, 'but awarded plaintiffs $200, with legal interest from judicial demand, on the alternative demand (quantum meruit). The plaintiffs have appealed from said judgment.

The facts in this case show that during the latter part of the year 1946 the defendant was desirous of constructing a building in Houma, Louisiana, and that he was contracted by a contractor — D. D. Pittman —who sought to obtain said work. Some few days later the defendant and his wife called on Mr. Pittman, at the latter’s home in the City of New Orleans, to further discuss the proposed building. At this time, Mr. Pittman called in one of the plaintiffs, Mr. Fuhrmann, who entered into the discussion with the parties heretofore named. The evidence shows that the defendant and his wife desired to build a brick and tile store building with a residence on the second story and, at this time, they had in mind a building that would cost in the neighborhood of between $15,000 and $20,000. At this meeting, the plaintiff Fuhrmann testified that he explained his duties to the defendants and what he would charge for his services, but this is denied by them. It was, however, agreed at said meeting that Fuhrmann, the architect, would prepare a preliminary sketch of the building and contact the defendant in the immediate future. Some two weeks later, these plaintiffs went to the home of the defendant at Houma, .Louisiana with a preliminary sketch of the two-story building, as heretofore d&scribed, and discussed said sketch with the defendant and his wife. Some slight changes were suggested by the defendant and, accordingly, the plaintiffs returned to New Orleans and revised the sketch and, some two weeks thereafter, they again went to the defendant’s home, where they had a general discussion regarding the building. It was at this second meeting that the plaintiffs testify they stated to- the defendant that their fees for architectural services would be six percent (6%) of the cost of the building, and they further testify they definitely explained to the defendant that they would prepare the drawings, plans and specifications and secure the bids for 75 percent of 6 percent of the cost of the building and that the remaining portion of the fee was to be paid when they supervised the construction of the building. Further, at this meeting, the plaintiffs handed •to the defendant a copy of the American Institute of Architects Standard Form of Agreement between Owner and Architect, and they testify that they told the defendant that they worked along the lines which the agreement called for. The plaintiffs testify that, at the conclusion of this meeting, the defendant told them to go ahead with the plans for the building. About one week after this second meeting, defendant notified the 'plaintiffs that he did not desire to build the apartment above the store for the reason that his mother-in-law had died. So, on November 24, 1946, the plaintiffs again visited the defendant and obtained from him the description of the building he then desired to build, which (as is shown) was a one-story building with three units. On January 5, 1947, the plaintiffs again visited the defendant at his home, at which time they took a partially completed drawing of a one-story building to the defendant and discussed the construction of this building at some length. It was at this meeting, the plaintiffs testify, that they asked Mr. D. D. Pittman, the contractor, in the presence of the defendant and his wife, about the possible cost of the building, in order that there might be no misunderstanding. They testify that Mr. Pittman made the statement that the building would cost about $45,000 and, of course, they are corroborated in this by the contractor, Mr. Pittman. Plaintiffs testify that, after the estimate was made by the contractor, they asked the defendant if they should continue with the plans for this building and the defendant replied. “Yes, if I haven’t got the money, the bank has”. Accordingly, the plaintiffs returned to the City of New Orleans and again worked on completing the plans and specifications. About ten days thereafter, they sent the defendant a bill for $500, for the first payment on account, and on February 17th they received a check for $200, along with a letter from the defendant. On February 19, 1947 the plaintiffs mailed the completed plans and specifications to the defendant, with a bill for $800. Sometime thereafter, the defendant notified the plaintiffs to advertise for bids from contractors other than Pittman, the lowest of these being that of Mr. Pittman in the sum of $42,215.81. The defendant decided not to build and notified the plaintiffs to stop their architectural work and send their bill. Accordingly, the plaintiffs billed defendant for the amount herein sued for. Defendant denied that he owed the amount, but did write to the plaintiffs to the effect that, since he had decided not to build, he would be willing to pay them an additional $200 for their services.

The questions to be decided herein are: Did the parties enter into a contract for the plaintiffs to furnish architectural, services to the defendant for a fee of 6 percent of the cost of the building, and, if not, are the plaintiffs entitled to recover on a quantum meruit? There can be no question but what certain essential elements must be present before there can be a valid contract. Article 1779 of the Civil Code. One of these essential elements is that consent must be legally given and, in order for consent to be legally given, there must have been a common intent. See Article 1945 of the Revised Civil Code. It is argued by counsel for defendant, and so held by the trial judge, that this common intent was lacking and, therefore, there was no valid contract entered into between the parties. The testimony of the plaintiffs in this case showed that, at the time they had the second meeting with the defendant at his home in Houma, Louisiana, they explained to him in detail the nature of their duties and further outlined to him specifically the percentage of the cost of the building that they would charge for their services. They further testify that, at this meeting, they handed to the defendant a copy of the American Institute of Architects Standard Form of Agreement between Owner and Architect and stated they would work along the lines which the agreement called for. We note that, in Article 8 of the petition, it is alleged that this agreement was given to the defendant by the plaintiff Fuhrmann and, even though said article is denied in the answer, the defendant admitted on the witness stand that said agreement was given to him. After this agreement was given to the defendant, the plaintiffs testify they were instructed by him to proceed with the work and this testimony of the plaintiffs is corroborated by that of the defendant, who, when ¡being asked about the discussion that took place between him and the plaintiffs on the second meeting, testified at page 138 of the transcript as follows:

"Q. You understood then that you were to pay Mr. Fuhrmann and Mr. Geier for their services? A. I understood they were going to charge me six percent on the cost of the building.
“Q. And you told them to go ahead and make the working drawings and plans for the building? A. Thafs it."

There is other evidence by the defendant to show that, at subsequent meetings, he was willing to pay the architects for their services 6 percent of the cost of the building. Thus, we are satisfied from the record that, as a result of the conversations, the plaintiffs were to receive 6 percent of the cost of the building for their services as architects. However, it is shown that, at the second meeting, the plaintiffs handed to the defendant the American Institute of Architects Standard Form of Agreement between Owner and Architect, which was to be used as a guide between them. This form was not signed by the parties, nor were the blanks therein filled out, such as the percentage the architects were to receive for their services. However, since the parties agreed that the architectural work was being performed under the terms and conditions of this written form, it must ibe considered as a part of their contract. It, therefore, becomes necessary to examine the Form, filed in evidence and marked “P-1”, in order to determine if the plaintiffs have complied with the terms and conditions thereof.

The only two paragraphs of this form of agreement that are necessary to consider, in disposing of this case, are paragraphs No. 5 and No. 8. The first of these, or paragraph No. 5, provides the manner in which payments to the architect shall be made on account of his fee and it is shown that when the architect has completed the preliminary studies he is to receive a sum equal to 20 percent of the básic rate, computed upon a reasonable estimated cost. The preliminary studies by the architects in this case were not actually completed until January 5, 1947 and immediately thereafter they sent the defendant a bill for $500, which constituted substantially 20 percent of the basic rate of the estimated cost of the building as fixed by the contractor at $45,000. Consequently, we do not consider that the plaintiffs, under the circumstances, violated the provisions of Paragraph No. 5 of the Form. Further than this, Paragraph No. 5 has to do with payment to the architect and, therefore, sets out primarily an obligation on the part of the defendant to pay upon a certain percentage on a reasonable estimated cost. In addition to this, we are not convinced by a reading of the paragraph that the duty devolved upon the architect to compute the reasonable estimated cost. As an illustration, the computation, under the very wording of the paragraph, could have even been made by the contractor.

Paragraph No. 8 of this Form provides that the architect, when requested to do so, will furnish preliminary estimates on the cost of the work. (Italics mine.) It is argued by counsel for defendant that these preliminary estimates were not furnished by the architect and he, therefore, violated this provision of the agreement. It is further argued that, if these preliminary estimates had been furnished, the defendant would have realized the building was costing too much and could have withdrawn from the contract. There is not one scintilla of evidence in this record to show that the defendant ever requested the architect to furnish him with preliminary estimates on the cost of the work and, in the absence of such request, the failure of said architects to furnish such preliminary estimates could not and does not constitute a violation by the plaintiffs of Paragraph No. 8 of the form of agreement.

As we are of the firm opinion that the defendant understood the verbal agreement and since the plaintiffs have complied with the written form of agreement, which became a part of the contract between the parties, then the plaintiffs are entitled to recover herein on said contract if the defendant understood prior to the drafting- of the final plans and specifications the cost of the building he was to construct.

It is true that originally this defendant did not contemplate a building which would cost in excess of $15,000 or $20,000, but it is admitted by him that, after several discussions, the contractor (Mr. Pittman) told him that the building he contemplated building would cost about $40,000. After this information was given to the defendant, he permitted the preliminary studies to continue and various sketches and drawings to be made. Finally, on January 5, 1947, the plaintiffs presented a scale model of a one-story building to the defendant and the testimony of the plaintiffs, as well as Mr. Pittman, shows that the plaintiffs asked Mr. Pittman at that time, in the presence of the defendant, what the probable cost of the building would be. The testimony shows that Mr. Pittman answered that it would be about $45,000 and, further, that when the defendant was asked if he wanted to go ahead with the building he replied: “Yes, if I haven’t got the money, the bank has”. It is true that the defendant and -his wife denied that Mr. Pittman made the estimate of $45,000 Ibut, upon being questioned about the statement which he made, to the effect that if he did not have the money the bank had it, the defendant answered: “Well, that was in joking business”. Further than this, the defendant’s wife testified that she knew about Mr. Pittman estimating the building would cost $40,000, but that he did not make an estimate of $45,000. As a matter of fact, the testimony reflects that no one heard Mr. Pittman make the estimate of $40,000 on the two-story building to the defendant except the defendant and this was quite some time prior to January 5th, when the estimate was made on the one-story building. The testimony of the defendant’s wife shows that when defendant made the statement that if he did not have the money the bank had it was when the parties had a scale model of the one-story building before them. Thus, the statement by the defendant relative to the bank having the money was in answer to the estimate of how much the one-story building would cost and we are convinced that the defendant understood that the building would cost about $45,000.

We have reviewed the cases of McDonnell v. Dreyfous, 144 La. 891, 81 So. 383, and Sully et al. v. Pratt, 106 La. 601, 31 So. 161, which are strongly relied on by the defendant. However, in the McDonnell case the architect agreed to prepare plans for a building to cost about $50,000 and the plans which were prepared called for a building that would cost $69,000 a-nd, consequently, the owner was held not liable to the architect for the plans. In the Sully case, while it is true the owner engaged the services of the architect to prepare plans for a building costing $100,000, the owner was not apprised of the schedule of charges, which were on a percentage basis, and had no knowledge of same. As a matter of fact, the charges were fixed by the architect in accordance with a schedule obtaining among architects. The court, accordingly, held that the defendant owner was not bound by such schedule.

The above cases are not controlling here for the reason that the facts of the said cases differ from the facts of this case. Here the defendant agreed to pay a certain percentage, which was understood by him, and he further understood the cost of the building was to be about $45,000.

Accordingly, for the above and foregoing reasons, the judgment of the lower court will be reversed and there will be judgment in favor of the plaintiffs and against the defendants in the full sum of $1,699.71, with legal interest from date of judicial demand until paid; appellees to pay all costs.


text:
    SIMON v. LANGLINAIS et al.
    No. 3178.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    Kibbe & Bailey, Abbeville, for appellant.
    O. H. Deshotels, Jr., Kaplan, Edw. F. LeBlanc, Abbeville, for appellees.
   JONES, Judge ad hoc.

This is a suit in damages by the plaintiff for the recovery of Fifteen Thousand ($15,000.00) Dollars for personal injuries suffered by him as the result of a collision of a motor scooter on which he was riding and a jeep driven by Calvin Langlinais, who, it is alleged, is the minor son of vVally Langlinais, the owner of said jeep. Both the owner and the driver are made defendants herein. The district court rejected the plaintiff’s demands and he has perfected this appeal.

The allegations of the petition show that on the 26th day of October, 1947, between the hours of five and six o'clock P.M., the plaintiff was operating a two-wheel motor scooter on Cushing Avenue in the Town of Kaplan, Louisiana; that the said Cushing Avenue runs in a northerly and southerly direction and is divided by a neutral ground; that plaintiff was driving on the western lane of said Cushing Avenue in a southerly direction, approaching the intersection of the said western lane by Third Street; that as the said plaintiff approached the intersection he observed the jeep, being operated by the defendant Calvin Langlinais, stop between the neutral grounds on Cushing Avenue, near the intersection of Cushing Avenue with Third Street; that said jeep was facing in a westerly direction; that as petitioner entered the said intersection the defendant, Calvin Langlinais, suddenly and without any warning drove the jeep into the intersection and it was impossible for the plaintiff to swerve around said jeep and the resultant injury, was caused which forms the basis of this suit.

The answer admits that the jeep was driven by Calvin Langlinais; that it was parked immediately north of the silent policeman in the center of the intersection, just prior to the collision; that said car stopped at first to permit another car to pass, going in a southerly direction along the western lane of Cushing Avenue; that after this car passed the defendant released the clutch on the jeep and traveled the distance of approximately four feet, when he .noticed the scooter approaching the intersection from the north and then immediately stopped the jeep to permit the scooter to pass; that when the said jeep was stopped for the second time it was not more than one foot into the western traffic lane of Cushing Avenue and when it stopped the. scooter was more than thirty feet north thereof. Consequently, defendant answers that Calvin Langlinais, under the circumstances, was guilty of no negligence in failing to keep a proper lookout as there was over forty feet of open road in front of the jeep. The answer further sets forth that the plaintiff was guilty of negligence in failing to observe and see the stopped jeep and, further, failing to avoid the impending accident.

The facts established on the trial of the case show that Cushing Avenue is a boulevard which runs in a northerly and southerly direction, having a wide neutral ground in the center thereof and having traffic lanes on both its east and west side. Immediately preceding the accident, the plaintiff was traveling south on Cushing Avenue, in the west traffic lane, and the defendant, Calvin Langlinais, was traveling north on said Cushing Avenue in the east traffic lane. When Calvin Langlinais came to the intersection of Cushing Avenue with Third Street, he. made a left turn and stopped some three feet north of a silent policeman, which silent policeman is equidistant from the ends of the neutral ground on the north and south edge óf Third Street and in the center of thé intersection. The évidence shows that Cushing Avenue is a right-of-way street, having been made so by ordinance of the Town of Kaplan. While Calvin Langlinais was stopped in the jeep, two automobiles passed going south on Cushing Avenue and when these cars passed he released the clutch and moved some few feet and stopped again with the front of the jeep protruding into Cushing Avenue a distance of about one foot. When he stopped the second time the scooter ridden.by the plaintiff was some twenty to twenty-five feet away and just entering the intersection. For some reason, which is not absolutely clear from the- evidence, the scooter began to veer to its left, or in a southeasterly direction, and ran into the jeep, hitting the bumper and fracturing the plaintiff’s leg.

There is no question but what the scooter was traveling at a slow rate of speed' because the plaintiff remained seated thereon after the impact, and it is difficult to understand how such a slight impact could have occasioned such a serious injury. While we have heretofore stated that the evidence does not reflect with certainty why the scooter veered immediately prior to the accident, yet it does show that the veering of the scooter was caused by one of two things; namely, that the plaintiff was attempting to look around a corner, veered the scooter and ran into the jeep as a result thereof, or that he intended to proceed in a southeasterly direction and go into Third Street, the direction of his home, and (not keeping a proper lookout) came too close to the parked jeep and thereby ran into it.

We are of the opinion that the evidence in this case unqualifiedly shows that the jeep was stopped in the intersection with the front of said jeep about one foot in the western lane of Cushing Avenue, and that it was so stopped immediately prior to the accident and at a time when the scooter entered the intersection a distance from said jeep of twenty to twenty-five feet. When Calvin Langlinais drove the' jeep one foot into the western lane of Cushing Avenue he was guilty of negligence but this was not the negligence that was the proximate cause of the accident. The stationary jeep, protruding one foot into the western lane of Cushing Avenue, did not, under the circumstances, create an emergency. The plaintiff, at that time, was some twenty to twenty-five feet away and had he continued in a straight course, south on Cushing Avenue, this accident would not have happened. However, he did not continue in a straight course but veered to his left, or in a southeasterly direction, at which time he was not keeping a proper lookout and it was the veering of the motor scooter, together with plaintiff’s failure to keep a proper lookout, that was the proximate cause of this accident.

We have examined the cases cited by counsel for the plaintiff, namely: Scruggs v. V. Frank Lynn Co., Inc., La.App., 6 So.2d 86; Butler v. O’Neal, La.App., 26 So.2d 753; Austin v. Baker-Lawhorn & Ford, La.App., 188 So. 416; and Hero v. Toye Bros. Yellow Cab Co., La.App., 19 So.2d 887, but we do not believe the facts in those cases are applicable to the facts herein presented. In these cited cases, the facts show that the driver on a right-of-way street has the right to rely on the assumption that the driver on the less-favored street will not proceed into the intersection until the vehicle on the favored street has passed. It is further shown by these cases, however, that the driver on the less-favored street actually proceeded out into the intersection and created an emergency and the driver on the favored street had no time to do anything except collide with the vehicle that had entered from the less-favored street. The facts in this case are quite different from the above-cited cases, for the reason that no emergency was created under the circumstances, and the' plaintiff actually deviated from his original course and, without keeping a proper lookout, ran into the jeep which was stationary.

The facts of this case convince us that the negligence of the plaintiff was the proximate cause of this accident and the judgment of the district court will be affirmed. Plaintiff to pay all costs of this appeal.


author: PER CURIAM.

text:
    PATTERSON v. CARON.
    No. 19314.
    Court of Appeal of Louisiana. Orleans.
    Jan. 30, 1950.
    Harry R. Cabral and William M. Campbell, Jr., New Orleans, for plaintiff and appellant.
    Clay & Coleman, James Julian Coleman, Louis J. Dutrey, and Leonard M. King, Jr., New Orleans, for defendant and appellee.
   PER CURIAM.

Defendant-appellee moves to dismiss this appeal on the ground that the amount in controversy, which exceeds $2000, is above our maximum jurisdiction.

Joseph G. Patterson, the plaintiff, who owns the premises 730 St. Louis Street in the City of New Orleans, in which there are located several apartments, is engaged in the business of leasing said apartments to various tenants. The defendant, John Car-on, in 426 Bourbon Street, which abuts plaintiff’s property, operates a business styled “Club Slipper,” which consists of a bar and place of entertainment, in which he furnishes music to his patrons through the media of an orchestra and a juke box. Plaintiff instituted this suit in the Civil District Court for the Parish of Orleans, and alleges that the music is played in defendant’s establishment during both day and night, and that the music and noises emanating from the Club Slipper causes damage to his business, in that his tenants are greatly disturbed thereby, and he has suffered and will continue to suffer the loss of revenue occasioned 'by the removal of tenants from the apartment house, and that he will soon lose all interest and value in his property. He seeks an injunction against the defendant, prohibiting him from allowing the noises and music to emanate from the Club Slipper. Plaintiff also coupled with hi's demand a claim for accrued damages in the sum of $2600.

This appeal was taken by plaintiff from the judgment of the lower court which dismissed his demands.

Clearly we have no jurisdiction of this appeal, under Const. 1921, art. 7, secs. 10, 29, because:

Firstly, plaintiff claims damages in the sum of $2600.

Secondly, the petition sets forth that the value of petitioner’s business, which it is alleged will be destroyed, is in excess of $3000. Counsel stipulated in the court below that plaintiff’s business is worth more than $3000. See Jay v. United Packinghouse Workers, La.App., 34 So.2d 526, wherein we said that in cases where a right sought to be protected has a pecuniary value, such will govern jurisdiction of an appeal.

Thirdly, we have been furnished with an affidavit in which the appellee sets forth that the right to have music in his place of business is worth to 'him over and above the amount of $3000.00 per year. See Frierson et al. v. Cooper, 196 La. 450, 199 So. 388, wherein the Supreme Court held that it has jurisdiction where the right sought to be enjoined is of a value in excess of $2000.

Act 19 of 1912 authorizes an appellate court to transfer to the proper appellate court the record in any case where the appeal was brought up through mistake in the jurisdiction, instead of dismissing the appeal, and we believe we should order such transfer.

It is now ordered, adjudged, and decreed that this appeal be transferred to the Supreme Court of Louisiana in accordance with law; the transfer is to be made within sixty days after this decree becomes final, and if such transfer is not made, then the appeal is to stand as dismissed. The plaintiff-appellant is to defray the costs of appeal in this court.

Appeal transferred to Supreme Court.


text:
    PATOUT v. BOURRIAQUE.
    No. 3186.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Knowles M. Tucker, New Iberia, Robt. M. Fleming, New Iberia, Edmond L. Guid-ry, Jr., St. Martinsville, for appellant.
    C. Arthur Provost, New Iberia, George D. Ernest, Jr., New Iberia, for appellee.
   DORE, Judge.

This is a suit on a promissory note executed by the defendant in favor .of the plaintiff in the principal amount of $650.00 with interest at the rate of eight percent per annum from October 1, 1947, plus fifteen percent attorney’s fees. The execution of the note and nonpayment thereof is admitted, hut the defendant contends that it was given in connection with a lease contract and that this lease contract was violated by plaintiff, and that therefore, he is not indebted to plaintiff on the note.

The defendant further assumes the position of plaintiff in reconvention and seeks damages in the amount of $6,000.00 based on the allegation that plaintiff prevented him from saving some nine hundred (900) barrels of rice on the leased premises; that plaintiff permitted a re-entry on the leased premises by plaintiff’s lessees, disturbing the defendant’s peaceable possession; and that while the lease was in effect, the lessor caused the fences to be repaired and released cattle in part of the rice field for .grazing purposes; that he also burned another part of the rice crop and had another area plowed up, all of which he claims caused him to lose some nine hundred (900) barrels of rice from which he would have realized a profit of $6000.00.

In the alternative, the defendant sets forth that because of a hurricane which occurred in September, 1947, his rice crop was flattened, thereby causing a loss of two-thirds thereof, and that as a result of this fortuitious event, he is entitled to a reduction of two-thirds of the rental sued upon.

After trial of the case, the trial judge rendered judgment in favor of plaintiff and against the defendant as prayed for and dismissed the defendant’s reconven-tional demand. Defendant has appealed.

As shown in the trial judge’s written reasons for judgment, there is no question as to liability of the defendant on the promissory note identified by the contract of lease. The only real question in the case is whether or not there is any merit to the reconventional demand and as correctly stated by the trial judge, the burden of establishing the reconventional demand rests upon the defendant, and we agree with the trial judge’s findings, as follows:

“It is asserted, on the one hand, that plaintiff breached the contract of lease by taking possession of the leased premises prior to the termination of the lease contract, that is, prior to the defendant having completed the harvesting of his rice crop, this contention being predicated upon the fact that on September 8, 1947, plaintiff executed two separate lease contracts affecting, in part, the premises then under lease to the defendant. These two new contracts of lease embraced a total of 337 arpents of land, the lease to defendant, included therein, having an acreage of 130 acres. Though the two new leases were executed on September 8, 1947, a reading of the documents (Ex. D-2-D-3) discloses that the leases were made for a period of four years commencing September 8, 1947 and ending at the termination of the harvest of the rice crop of 1951. It further appears, however, that the purpose and objects to be served thereby was to enable these two new lessees to grow and harvest annually, beginning in 1948, a rice crop on said land. It has been amply established, without contradiction, that plaintiff notified these two new lessees of defendant’s occupancy and possession under the latter’s lease and that they would not be able to takfe possession of the area covered by defendant’s lease until the latter had completed the harvesting of his rice crop. It clearly appears from the record that these two lessees, Abshire and Patin, did not move on the leased property until October 29, 1947 and that in doing so they did not attempt to exercise occupancy or possession of the property covered by defendant’s lease, but on the contrary, proceeded to remodel and rehabilitate the tenant houses which were to be occupied by them. These houses and lots had never been occupied or used by the defendant, nor were they included in his lease from plaintiff. The only evidence of any possession being exercised by these two new lessees was a showing that between Christmas Day and the New Year they proceeded to plow up approximately twenty (20) acres of land, five of which had never formed a part of defendant’s lease. The reason which this comparatively small area was plowed-up during the time afore-stated is because whatever remained of defendant’s crop in that small area was worthless, having completely rotted from saturation beyond the reach of salvage and which the defendant, from all appearances, had abandoned, his last effort in the harvesting thereof, being in the latter part of September 1947. It is also shown that the rice harvesting season ends in the early days of the month of December of each year.
“In the granting of leases covering farm lands for agricultural purposes, it is not unusual, but on the contrary, it is a well established custom, to do so during the months of September, October and November of each year, more particularly where new tenants are to occupy the premises for the succeeding crop year. This is a practice which is observed by most land owners, one of the primary reasons therefor being to obtain the best available tenants. It is well known and accepted that available tenants are limited in number, and more particularly, those who are considered experienced and reliable lessees. Hence, this prevailing condition creates competition among land owners, for should a land owner wait until the arrival of the new crop year before obtaining a lessee, his hopes of doing so are not only considered most unfavorable, but may result in idle farm lands or unprofitable farming operations.
“In addition thereto, it is not the execution of a lease contract which creates, vel non, a disturbance in fact. The peaceable possession of a lessee which a lessor warrants under our law is one of fact. The adverse possession of another ousting the former possessor or causing a disturbance of the latter may be proven like any other fact. There is not one iota of evidence in this record establishing that the defendant was disturbed in his peaceable possession, much less was there any act of adverse possession on the part of those two new lessees until after the harvesting season for that year had terminated. Not only did the plaintiff notify these two new lessees of defendant’s possession and occupancy and that the latter should not be disturbed until after the harvesting season, but it is also shown that these two new lessees scrupulously respected and observed this notice.”

It appears to us from the evidence that if the defendant lost part of his rice crop, it was due entirely to his own fault in harvesting his rice only once, at which time he secured a yield of 58S barrels subsequent to the alleged hurricane; we agree with the trial judge that there is no proof of the heavy losses alleged in the reconven-tional demand, and see no reason for allowing the defendant a reduction in the rental because of the alleged damage caused by a hurricane. In any event, we agree with the lower Court that the defendant has failed to establish any damages caused by plaintiff to a legal certainty.

For these reasons, the judgment appealed from is affirmed.

ROBERT D. JONES, J., sitting ad hoc.


author: FOURNET, Chief Justice.

text:
    216 La. 579
    GENERAL MILLS, Inc. v. UNITED FRUIT CO.
    No. 39026.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Dart, Guidry & Price, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks & Claverie, Ash-ton Phelps, New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

The plaintiff, General Mills, Inc., instituted this suit against the defendant, United Fruit Company, to recover damages in the sum of $10,480.20, being the cost to it of reconditioning 3,500 sacks of flour that had become infested with weevils and pin worms, allegedly due to the defendant’s failure to carry out its contract to transport this flour to the Port of Limón, Costa Rica, in accordance with an oral agreement.

The defendant, admitting the flour had been booked for transportation over its lines and that, accordingly, it had been delivered to its wharf at New Orleans and it had issued its dock receipt therefor, contends that under the terms of this receipt it was relieved of any responsibility for failure to transport due to lack of conveyances or facilities, and, further, that since the actual cause of the failure to ship this flour was due to the condition of war existing at the time, it was also relieved of any responsibility in connection with failure or delay in shipping this cargo under the express stipulations contained in the bill of lading that was made a part of the dock receipt by reference. The defendant’s final contention is that when it became apparent no further shipments could be made to Limón, it so informed the plaintiff and advised that from that time the flour was at the plaintiff’s risk. In a supplemental and amended answer the defendant pleaded, alternatively, the prescription of 1 year as provided in 46 U.S.C.A. § 1303(6) of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, and the limitation of 6 months contained in paragraph 22 of the bill of lading. It also averred that the plaintiff was without right to institute this suit, having subrogated its rights in the matter to its insurance underwriters.

The plaintiff is appealing from the judgment of the lower court dismissing its suit and rejecting its demands.

According to the record it appears that during the middle of 1942, shortly after the United States became engaged in the conflict that is termed by the historians as World War II, a pressing need arose for the immediate and constant flow of flour to the Republic of Costa Rica in order that this country might maintain its economy. At this time shipping through the Gulf of Mexico from the Port of New Orleans was greatly restricted by governmental agencies charged with the maintenance of security measures because of increased action by enemy submarines in that body of water that had resulted in the sinking of many ships. However, as the need for this flour in Costa Rica increased, the plaintiff, joined by the diplomatic representatives of the Costa Rican legation in Washington importuned the defendant, United Fruit Company, to book 6,000 sacks of flour for shipment to Port Limón, Costa Rica, through the Port of New Orleans on vessels of the company then assigned to the Limón run. Under this pressure the company, that had already lost two of its three vessels on this run, i. e., the Tela and the Heredia, finally agreed orally to accept this flour for shipment on the third of these vessels, the San Pablo, due to sail from New Orleans on July 8, and it was stipulated that the flour should be delivered to the defendant’s wharf in New Orleans between June 15 and June 29, 1942. The 3,500 bags involved in this suit actually arrived in New Orleans on June 30, 1942, and were turned over to the defendant at its wharf on July 2, at which time the defendant issued its dock receipt therefor and delivered this receipt to George M. Leininger & Co., Inc., the plaintiff’s broker in New Orleans. For reasons of security the receipt did not specify the name of the vessel on which the flour was to be moved, but, as above stated, the evidence discloses it was scheduled to be transported on the San Pablo. On July 2, the very day on which the company issued this receipt, the San Pablo was sunk in the Port of Limón, which left the company without any vessels assigned to this specific run. After exhausting all efforts to secure space in other vessels, although aided to this end by the plaintiff and the Costa Rican legation in Washington, and it became apparent it would be unable to transport this flour, the defendant, on August 14, 1942, wrote the plaintiff advising it to this effect and stating that the cargo “then on hand or on docks is entirely at your risk and expense,” and that speedy steps should be taken to protect the plaintiff’s interest therein. Despite such advice, however, the defendant, the plaintiff, and the Costa Ri-can representatives continued their efforts to secure space, although conditions by then were growing progressively worse and the situation seemed hopeless. The plaintiff, most anxious to get the flour out of the country because, being a product of Canadian wheat, it could not be disposed of here, then approached the defendant with the suggestion that it might be moved through some Pacific Coast port on other vessels of the defendant bound for Panama, Cristobal, or Puntarenas, this latter port being on the west coast of Costa Rica, and from there transported to Limón. After these arrangements had finally been concluded during the latter part of September, and it was agreed that the defendant would handle the shipment from Los Angeles during October on board vessels bound for Puntarenas, an examination was then made of the flour and it was disclosed to have become infested with weevils and pin worms, necessitating its reconditioning in the Buffalo, New York, plant of the plaintiff at a cost of $10,480.20.

The defendant in receiving the goods on its dock for shipment on an unnamed vessel bound for Limón under a bill of lading that was then being used by the United Fruit Company for similar shipments, issued its dock receipt dated July 2, 1942, acknowledging that the flour had been received “in apparent good order and condition externally.” This receipt contained the following provision: “Said goods are received subject to delay and default in shipment caused by * * * lack of conveyances, room or facilities of any sort and the like.” In this receipt it is also stipulated that “The United Fruit Company shall not become responsibile for the goods as carrier until the goods are actually loaded on steamer; until such loading, it shall be liable only for loss or damage occasioned by its fault, such as an ordinary bailee is liable for, but subject also to the conditions, exceptions and limitations of liability and value contained in said bill of lading with which shippers are understood to have acquainted themselves and to assent toThis bill of lading was never actually issued because of the inability of the defendant to place the cargo on board in New Orleans, but its provisions, which were made a part of the dock receipt by reference, contained the stipulation that “Goods * * * are accepted by the Carrier subject to delays or failure in shipment, transportation, delivery or otherwise, occasioned by war * * * ; shortages of * * * conveyances or room; lack of facilities of any sort; * * * and notice to shipper or others of any danger of such delay or failure is hereby waived; and the Carrier shall not be responsible for any such delay or failure; * * * and all conditions, exemptions, 'exceptions, and limitations of the liability of the Carrier contained in this contract shall be deemed to apply also to such warehouseman’s liability as well as to liability as a carrier.” (Italics ours.)

The theory advanced by the plaintiff, that is, that “where, during then existing war conditions, a carrier agrees to transport merchandise it is liable for damage suffered by the merchandise while in its possession due to delay in loading and transporting it,” is untenable in view of the conditions under which the goods were received by the defendant. This flour was received for transportation under the conditions stipulated in the receipt that the defendant would not be responsible for any delay or default in making the shipment because of lack of conveyances, and also because of the conditions then existing because of the war, as stipulated in the bill of lading that was customarily used by the defendant and formed a part of the agreement between the parties. Notice of such conditions was specifically waived, but, in any event, the plaintiff was advised of the delays and conditions causing them, in so far as the security restrictions of the nation permitted, and it admitted in its correspondence that it knew the defendant was exerting every possible effort to move the flour out of the country. The authorities relied on by the plaintiff are clearly without application under these facts and no useful purpose could be served by analyzing and distinguishing them.

Having reached this conclusion, it is unnecessary for us to pass upon the alternative pleas of prescription.

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

MOISE, J., recused.