author: FRUGÉ, Judge ad hoc.

text:
    HARTFIELD v. THOMAS.
    No. 3233.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Carter & Erwin, Franklinton, for appellant.
    Richardson & Richardson, Bogalusa, for appellee.
   FRUGÉ, Judge ad hoc.

This is a suit by plaintiff, Skylar Hart-field, against B. Z. Thomas, both of Bogal-usa, Washington Parish, Louisiana, for damages ex delicto, in the sum of $25,000, for the alleged unlawful, unwarranted and unprovoked shooting of himself by the defendant at defendant’s place of business in Bogalusa. The defendant answered admitting the shooting and pleading justification on the ground that the plaintiff provoked the difficulty and was therefore not entitled to recover any sum as damages under the law. The Trial Judge dismissed plaintiff’s suit from which he appeals.

The Trial Judge in his written reasons for judgment thoroughly analyzes the evidence. It appears that on September 29, 1948, the plaintiff, at about the hour of 3:30 P.M., went to the office of Talley and Anthony in the City of Bogalusa and signed certain papers in connection with divorce proceedings between himself and his wife. The plaintiff then returned home, some two miles distant, where he remained until 6:00 P.M. when he returned to Columbia Street which is the main thoroughfare in Bogalusa. On his return to town he played pool a while with one of his nephews, then drove out with his nephew to Champagne’s Service Station which is across the street from defendant’s service station. Plaintiff went across to defendant’s service station and engaged defendant in a conversation. Plaintiff’s version of this conversation is that he simply went over to tell the defendant that he had signed papers in connection with his wife’s divorce and wanted the defendant to know that he was not mad at him. The defendants version of the situation is that the plaintiff came to his place of business and started raising a fuss with him and began to threaten him about having gone with his wife. Defendant testified that he asked the plaintiff •on three different occasions to go away and leave him alone which the plaintiff refused to do and that finally when the plaintiff assumed a threatening and menacing attitude and suddenly advanced on him with a knife in his hand he, the defendant, was forced to shoot the plaintiff in order to protect himself. There were only two other witnesses who testified to what actually transpired immediately prior to the shooting. One is Tom Strahan who was seated in a small room of the filling station within a few feet of the defendant, and his testimony is to the effect that the plaintiff said he would kill the defendant if the defendant would come outside the room. The other eye witness was George Thomas who stated that immediately prior to the shooting plaintiff was advancing on the defendant with his hand in his pocket. There is a variance between the testimony of George Thomas and the defendant, himself. The Trial Judge states that in his opinion the plaintiff came to the service station of the defendant in an unfriendly attitude. The Trial Judge found from the evidence that the plaintiff came to the filling station fussing and threatening the defendant. There were several other witnesses but their testimony is of events which took place immediately after the shot was fired. ■

The trial judge states that after a careful review of all the testimony in this case he is of the opinion that the plaintiff actually provoked the difficulty by threatening the defendant and refusing to leave the defendant’s place of business even though requested to do so by said defendant many timesj and that in his opinion the provocation was sufficient to lead the defendant to believe that he was in danger of suffering bodily hárm at the hands of the plaintiff. He further states that he is of the opinion that the plaintiff provoked the difficulty by insults, abuses and threats which were calculated to arouse resentment or fear on the part of the defendant and that plaintiff cannot recover for the battery even though this defendant might not have been justified in law in his conduct. He further points out that defendant did not shoot the plaintiff until he felt that he had to and that he shot him only once and he did not continue shooting nor did he further molest ^ the plaintiff after the one shot, He points out that defendant used only such force as was necessary to repel his assailant and went no-further.

We cannot say that the Trial Judge, in his finding of facts, is manifestly erroneous, and we will therefore not disturb his ruling.

We believe the law applicable here, which is well established in this State, is that one who provokes a difficulty with another cannot recover damages for injuries' inflicted on him as a result thereof, even though the conduct of the one who inflicts the injuries was not justified in law. The authorities sustaining this rule are voluminous and hence it will suffice merely to mention a few.

In the early case of Vernon v. Bankston, 1876, 28 La.Ann. 710, the Supreme Court had this to say: “The jurisprudence of this state is well settled that one who is himself in fault cannot recover damages for a wrong resulting from such fault, although the party inflicting the injury was not justifiable under the laws.”

This rule was reaffirmed in another of the early cases, Bankston v. Folks, 1886, 38 La.Ann. 267 wherein the above ruling from the Vernon case was quoted with approval.

The above rule was again reaffirmed in the case of Lide v. Parker, 1927, 6 La.App. 648, quoting from the first syllabus: “One who is the aggressor and at fault in bringing on a difficulty in which he is injured cannot recover damages for such injuries even though the person who injures him was not justified in law in his conduct.”

In the Lide case the above Bankston and Vernon cases were cited with approval as well as the Miller v. Meche, 111 La. 143, 35 So. 491; Massett v. Keff, 116 La. 1107, 41 So. 330; Johns v. Brinker, 30 La.Ann. 241; Bonneval v. American Coffee Co., Inc., 127 La. 57, 53 So. 426. This Court, in the late case of Landry v. Himel, La.App., 176 So. 627, held that where a plaintiff provokes a difficulty by insults, abuses and threats or other conduct calculated to arouse resentment or fear on the part of the defendant, plaintiff cannot recover for assault and battery although defendant may not have been justified in law in his conduct.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fred NELSON v. ASSOCIATED BRANCH PILOTS OF PORT OF LAKE CHARLES et al.
    No. 3219.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Thos. C. Hall, Lake Charles, for appellant.
    Joe J. Tritico, Lake Charles, for appel-lees.
   PER CURIAM.

In his application for rehearing, plaintiff complains of our interpretation of certain parts of the evidence. Pie contends that we erred in setting out that the plaintiff worked during the month of January, 1947, and was inactive only during the months of February and March of 1947. We acknowledge our error. The facts show that plaintiff was “off the books”; in other words, did not work, for the months of January, February and March of 1947. However, we do not consider this error of any importance, at least not the importance that plaintiff attaches to it. The fact remains that the plaintiff had the use of the boat for the prior months and that the repairs made in February, 1947 to the boat were brought about by the previous use of the boat, and not by any accident during the months which plaintiff was “off the books”. The error committed by us does not alter or change our conclusion.

Application for rehearing refused.


author: DORE, Judge.

text:
    PATIN v. LIFE & CASUALTY INS. CO. OF TENNESSEE.
    No. 3223.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Ashton L. Stewart, Baton Rouge, for appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for appellee.
   DORE, Judge.

Mary Patin, as the beneficiary of an accidental life insurance 'policy which was issued to Joseph Johnson on April 30, 1934, by the defendant, the Life & Casualty Insurance Company of Tennessee, sued the defendant, alleging that the said defendant was indebted unto her in the sum of $1,000, under the terms and conditions of the said insurance policy, because of an accident which happened while Joseph Johnson was working in a ditch on the Scenic Highway in the Parish of East Baton Rouge, at or near the refinery of the Standard Oil Company, during the course of and in the scope of his employment by T. L. James & Co., Inc., in completing its contract for the repair of said highway with the Department of Highways of Louisiana. She alleges that the said Joseph Johnson “was accidentally crushed to death when the bank of said ditch was pushed in on him by a large vehicle propelled by gasoline passing on said highway at said time and place.” She further alleges “that said Scenic Highway, at the time and place, was opened and actually being used by the public generally for vehicular traffic.” The policy of insurance was annexed and made a part of the petition.

Defendant filed exceptions of no cause and no right of action which were referred to the merits and subsequently overruled. Thereafter, defendant answered. In its answer, the defendant admits the issuance of its policy to Joseph Johnson in which, subject to the terms, conditions and provisions therein contained, it agreed to pay the designated beneficiary therein named, the sum of $1,000 in the event that Joseph Johnson was accidentally killed, under circumstances that were within the coverage and meaning of said policy of insurance. They admit that Joseph Johnson was killed, while working for his employer in a sewerage ditch being dug along the extreme eastern side of the Scenic Highway (off of main traveled portion of said highway); otherwise, it denies that the accidental death of Joseph Johnson was caused in any manner by a gasoline propelled vehicle passing along said highway at the time and place this accident occurred. It denies that the Scenic Highway, at the time and place, was opened and actually being used by the public generally for vehicular traffic, but avers that at the time this accident occurred, the Scenic Highway was under construction and was closed to heavy traffic; that the only traffic permitted was vehicles of a small type or class, and at the time this accident occurred, those vehicles which were permitted to proceed along said highway were required to move slowly along the extreme western side thereof, the eastern side being closed to traffic of all types. In further answer, defendant denies any liability unto plaintiff for the reason that under its policy it has no obligation whatever to pay plaintiff the amount sought to be recovered in that the said Joseph Johnson did not meet his death by coming “in physical contact”-with the large vehicle alleged to have been passing along said highway.

The trial on the merits resulted in a judgment, with written reasons assigned, overruling the exceptions of defendant and dismissing plaintiff’s suit. Plaintiff has appealed.

In this court, defendant is re-urging its exceptions. In the beginning, we may state that we find merit in the exceptions. However, having reached the conclusion that the judgment rendered by the trial judge, on the merits, is correct, we find it unnecessary to discuss and pass upon, these exceptions. '

The policy of insurance involved in this case is called an “industrial and pedestrial policy.” The death benefit is $1,000, the weekly premium being 5‡. The policy covers “bodily injuries received and effected solely by external, violent and accidental means strictly in the manner hereafter stated subject to all the provisions and limitations hereinafter contained, as follows:

“If the injured shall be struck by actually coming in physical contact with the vehicle itself and not coming in contact with some object loaded oh or attached thereto, or some object struck and propelled against the person by said vehicle, which is being propelled by steam; cable, electricity, naptha, gasoline, horse, compressed air or liquid power, while the insured is walking or standing on a public highway, * * which term, Public Highway, shall not include any Public Highway which although dedicated to the public has not in fact been officially opened to the public generally for vehicular traffic.”

The policy further provides that; “The premium charged in this policy has been adjusted to the liability assumed by placing therein various conditions, exceptions and limitations, and it is the intention of the parties that each of these limitations, exceptions, and conditions are to be literally construed, that none of them are to be stricken out, or ignored or disregarded in its interpretation, either on the ground that they are ambiguous or wholly or partially or substantially repugnant or for any other reason, but each is to be given its full and literal meaning, it being further understood by the parties that the said premium will buy only such protection as the terms of the policy literally show.”

The premium paid was 5‡ weekly.

■ The' trial judge, in his reason for judgment, states:

“The facts in the case are more or less indisputed and the Court finds them to be as follows:

“During the spring and summer óf 1948 the Scenic Highway was being repaved and widened into a four lane highway or street. A part of that work required the installation of underground storm sewerage and plaintiff was engaged in assisting in the digging of a ditch approximately 8 feet deep along the east side of the highway for the purpose of installing this underground storm sewerage. While in this ditch on the 17th day of June, 1948, the ditch caved in on him and crushed him to death. The ditch was dug by a mechanical ditch digger and Johnson’s job was to give the operator of this digger a level from time to time when required to do so. At the time he was crushed the digger had been stopped, the boom swung to the side of the ditch, and Johnson was in the ditch giving the operator this level. The dirt from the ditch was piled to the west of the ditch and took a space of approximately one traffic lane. To the west of this one way traffic was allowed to proceed at intervals in the northward and southward direction. This was necessary due to the fact that the operations were in front of the Esso Standard Oil gate and it was necessary for people to get in and out of the Standard Oil Refinery, and for the’ further reason that the vehicles which were used in the construction of the road itself necessarily had to ply back and forth. It was shown that the old concrete of the highway was being broken up for the widening process and that these concrete chunks were being hauled out .all along this one way traffic lane. It is the contention of the plaintiff that one of these vehicles in passing caused the ground to vibrate and cave in and crush the insured.

“Two questions arise in this connection. The first is, Would this action on the part of the vehicle constitute and come within the provision of the policy which plainly reads ‘or some object struck and propelled against the person by said vehicle’?. The second question is, Assuming that the provision of the policy is broad enough to cover the situation as contended for by plaintiff, did the plaintiff establish that the caving in resulted from vibration caused by a vehicle which was passing at the time of the unfortunate accident?

“This Court believes that both of these questions must be answered in the negative, and contrary to the plaintiff’s contentions. The Court believes that the provision of the policy would only include some object being struck and propelled directly by the vehicle. In other words, if this truck had come along and had struck this spoil and caused it to strike the insured and crush him, that would be within the meaning of the policy, as some other object having been actually struck and propelled against the insured. The Court does not believe that the provision is broad enough to include a mere vibration which would then cause the caving in of a ditch. The Court feels certain that no' such far reaching interpretation was intended by the insurer or insured.

“However, even if that question should be answered in the affirmative, which the Court does not believe is proper, this Court is of the opinion that the plaintiff failed to establish by a preponderance of evidence that any truck or any vehicle was the direct cause of this ground caving in and crushing the insured. It is true that some of the witnesses testified that they felt the earth tremble from time to time as these vehicles would pass by, and it is further true that some of these witnesses testified positively that such would have a direct effect upon the ditch caving in. However, none of the witnesses are in a position to state positively that at the time this particular cave-in occurred that any vehicle was passing the point where the insured was crushed. None of the witnesses could even say positively that they felt the ground being shaken at this particular moment. The testimony indicates that the soil here was what is called a ‘poor type’. It was described as ‘mealy and crumbly’. The ditch was alongside an old sewer line and the spoil from the ditch was piled along its edge. As was shown by the testimony of Mr. George Stevenson, the Department of Highways engineer on this job, many factors must be taken into consideration in deciding what caused this dirt to cave, such as the type of the soil, the moisture content, this old sewer line, the weight of the spoil, and others.

“Accordingly, the Court is clearly of the opinion that- plaintiff failed to establish by a preponderance of the evidence that the insured was. struck and killed by • some object struck and propelled against him by a motor vehicle.”

After a careful examination of this record, we are firm in our conviction that the trial judge has correctly stated the facts in this case and we do not find any reversible error in his holding that under these facts the plaintiff has failed to bear the burden of proof showing liability in defendant under the policy. It is to be noted that plaintiff, in her attempt to recover, specifically, and unqualifiedly alleged that Joseph Johnson “was accidentally crushed to death when the bank of said ditch was pushed in on him by a large vehicle propelled by gasoline passing on said highway at said time and place." We find no evidence sustaining such allegation. (Italics ours).

For these reasons, the judgment appealed from is affirmed.


author: ELLIS, Judge.

text:
    DICKERSON et ux. v. LORREN et al.
    No. 3234.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Ott & Richardson, Bogalusa, for appellants.
    Talley & Anthony, Bogalusa, for ap-pellees.
   ELLIS, Judge.

This suit is the result of an intersec-tional collision between an automobile being driven by the plaintiff, Mrs. Ernest Dickerson, and one owned and being operated by the defendant, Leon Lorren, which occurred at the intersection of Fifth Street and Avenue F in the City of Boga-lusa, Louisiana, at or near 3:00 p. m. on March 4, 1949. The plaintiff alleged that Avenue F was a right of way street by an ordinance of the City of Bogalusa, and that Mrs. Dickerson was proceeding south thereon and that the defendant Lorren was proceeding west on Fifth Street, up an, incline into the intersection of the two streets; that the weather was clear and by the exercise of reasonable diligence the defendant Lorren could and should have seen the approaching automobile; that Lor-ren failed to keep a proper lookout, all of which was the proximate cause of the accident.

The defendant Lorren and his insurance carrier denied the material allegations of plaintiff’s petition and reconvened for the damage to Lorren’s automobile, all of which had been paid except $50.00 under a deductible clause by the defendant insurance company, and it having been subrogated to the right of Lorren, prayed that judgment be rendered in its favor for the money so paid, and Lorren asked for judgment for the $50.00 damage which remained unpaid.

The defendant Lorren alleged that he was traveling in a westerly direction on Fifth Street at a speed of about twenty miles per hour just prior to the accident, and that as he approached the intersection he looked in both directions on Avenue F to see if it was safe for him to proceed on into the intersection; that he could see for quite some distance but didn’t see anything approaching, whereupon he proceeded into the intersection and had driven almost across the same when a car driven by the plaintiff, Mrs. Dickerson, ran into and struck his car near its center.

There was judgment in the Lower Court in favor of the plaintiff Ernest Dickerson and against both defendants, in solido, for $294.00, the amount prayed for as damages to the car being driven by Mrs. Dickerson. From such judgment the defendants have appealed.

It is admitted that Avenue F is a right-of-way street and that one travelling west on Fifth Street must go up an incline just prior to reaching the intersection of these two streets. The defendant contends that he had preempted the intersection and that despite this fact, Mrs. Dickerson negligently ran into the side of his car.

The record discloses that Lorren approached the intersection at a speed of approximately from 15 to 20 miles an hour and that upon reaching it brought his automobile practically to a stop and then proceeded on into the intersection, and that when the front of his automobile was approximately two or three feet across the center of the intersection it was struck on the right fender and door by the automobile driven by Mrs. Dickerson. Lorren testified that he could see fifty yards to his right into Avenue F and that he looked when he practically stopped his automobile at the intersection and that he did not see any automobile approaching. There is no doubt that he slowed down and practically stopped at the intersection, for Mrs. Dickerson and one of the occupants of her car testified to virtually the same fact.

Mrs. Dickerson contends that she was within close range but does not fix the exact distance at the time the defendant Lorren' slowed down at the intersection which lead her to believe that he was going to stop and allow her to pass. She, therefore, proceeded on and when she realized that he was going to proceed into the intersection, she did not have time to stop although she applied her brakes.

There are two questions presented — first, whether the defendant looked for approaching traffic to his left and if so, could he or should he have seen Mrs. Dickerson approaching, and, second, approximately how far from the intersection was the automobile being driven by Mrs. Dickerson at the time the defendant entered the intersection.

Counsel for defendants complains of the finding of the trial judge that the two automobiles reached the intersection at approximately the same time. Under the facts, they did not reach the intersection at the same time. The Lorren automobile reached the intersection first but this fact alone would not give it the right to proceed across a favored street without ascertaining that he could safely cross under ordinary circumstances. In the present case, if we take the speed of the Dickerson automobile at 30 miles per hour, and the speed of the Lorren automobile as it entered and began to cross the intersection at 10 miles per hour, and use the Speed Chart as given in Vol. 9, Blashfield’s Cyclopedia of Automobile Law and Practice, Part 2, § 6237, page 706, we find that Mrs. Dickerson was travelling 44 feet per second and the Lorren automobile was travelling 141/2 feet per second. The distance which the front of the Lorren automobile travel-led into the intersection was at or about 11 feet which, according to the Speed Chart, required % of a second. In the same length’ of time, or % of a second, the car driven by Mrs. Dickerson would have travelled 33 feet. As the accident happened approximately in the center of the intersection, then Mrs. Dickerson had travelled 9 feet in the intersection, which would place her approximately 24 feet from the intersection at the time the Lorren automobile began to enter the intersection.

There is no doubt from the testimony that one second prior to the collision Mrs. Dickerson was approximately 44 feet from the point of impact. There is no reason why the defendant Lorren- could not -and did not see her automobile on Avenue F at the time he arrived at the intersection. Under the facts she was within 24 to 30 feet of the intersection when he said he looked and did not see her. Pie was clearly negligent in not seeing her. The automobile of Mrs. Dickerson at the time that Lorren reached the intersection was close enough ■and approaching at a speed of 35 miles per hour so that the defendant Lorren could not possibly have assumed that he could safely cross the intersection without a collision. In order to relieve himself of liability for a collision it was necessary that the defendant Lorren definitely ascertain that he could safely cross the intersection without the danger of collision, from approaching traffic on the favored street. Had he looked as he said he did he was bound to have seen the approaching automobile on Avenue F and would have realized that it was impossible for him to cross the intersection in safety.

Under the facts of this case, we do not think that the authorities relied upon and cited by counsel for the defendants are applicable. This is not a case wherein a driver on a right-of-way street attempted to force his way over the driver on the less favored street. We are of the opinion that although the defendant Lorren entered the intersection first that he did so without looking, or if he did 'look he is chargeable with seeing Mrs. Dickerson who was on the favored street and considering her proximity to the intersection and her' speed, the defendant Lorren could not have assumed that he could safely cross the intersection without a collision, and his negligence in proceeding into the intersection under the facts and circumstances of this case was the proximate cause of the accident.

The judgment of the City Court is affirmed.


author: FRUGE, Judge ad hoc.

text:
    WARE v. LAICHE.
    No. 3230.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Cashio & Cashio, Baton Rouge, for appellant.
    Nicholls Pugh, Livingston, for appellee.
   FRUGE, Judge ad hoc.

This is an action in tort for damages instituted by plaintiff, Arthur M. Ware, against Orval J. Laiche, for the loss of a horse.

On September 5, 1948, at approximately 3:30 p. m. the defendant, was operating his 1942 Model Chevrolet automobile on U. S. Highway 190 in an easterly direction, enroute from Baton Rouge, Louisiana, through Livingston Parish, Louisiana. The defendant was accompanied by his wife and two children and when he was approximately two miles west of the Village of Livingston, Louisiana, an accident occurred between his car driven by him and a horse owned by Mr. Ware, the plaintiff. The horse died as a result of this accident.

The plaintiff instituted suit in the Twenty-first Judicial District Court in and for the Parish of Livingston, wherein the accident occurred, for the sum of $175.00, which he alleged was the value of the horse. The defendant filed an exception to the jurisdiction “ratione personnae” alleging that he was a resident and domiciled in the Parish of East Baton Rouge, and therefore the Court was without jurisdiction to try the matter. The exception was properly overruled and thereafter an answer and re-conventional demand was filed by defendant stating that the accident was not caused by any negligence whatsoever on the part of the defendant, but was caused by the gross negligence and carelessness on the part of plaintiff’s nephew who was chasing said horse across a thoroughfare and busy highway. The defendant alleged in his reconventional demand that his automobile was damaged in the amount of $78.00 and prayed for same. The case went to trial on the merits in the District Court and resulted in a judgment in favor of plaintiff in the sum of $175.00. Being aggrieved, the defendant and plaintiff in reconvention has appealed from said judgment.

From a careful consideration of all the testimony in the case relating to the actual occurrence of the accident, we are led to the conclusion that the plaintiff has not sustained the burden of proving the negligence charged by him to the defendant for which he seeks to recover damages. We are of the opinion rather that the preponderance of the evidence tends to show that the accident was an unavoidable one caused by the sudden running.of the horse onto the highway into'the path of the defendant, and there were no steps which he could have taken to avoid the accident.

Mr. Laiche, the defendant, testified that while he was traveling in an easterly direction on U. S. Highway 190 he noticed two horses being chased by a young boy on the south side of the highway. He stated that he first noticed these horses when he was approximately 600 feet from them; that these horses were being driven by a boy who was also riding a horse; that suddenly the two horses crossed the highway from the south side over to the north side in front of the automobile driven by Mrs. Gene Davison and also being occupied by Mr. Gene Davison; that the boy riding the horse also crossed the highway in pursuit of the horses that had previously crossed the highway. All traffic going east came to a partial stop on seeing these horses being chased by this young boy. After the horses crossed the highway, the traffic again proceeded east. Shortly after Mr. Laiche, the defendant, had endeavored to proceed east behind the traffic the horse belonging to Mr. Ware, the plaintiff, suddenly came running from the north side of the highway at a high rate of speed and when the horse hit the pavement on the north side of the highway, said horse slipped and fell and skidded into the automobile operated by the defendant.

The defendant was substantiated in his testimony by the testimony of Mr. Gene Davison, the owner of the automobile, who was proceeding in an easterly direction on the same highway as defendant and was only a very short distance ahead of defendant at the time of the accident, and he is further corroborated in his testimony by his wife, Mrs. Laiche.

Mr. Ivy Stafford, who was called as a witness in behalf of the plaintiff also substantiated the testimony of defendant. Mr. Stafford was, at the time of the accident, driving his automobile behind the automobile of defendant. He testified that the horse came running onto the highway from the north side and when it came onto the north side of the highway it slipped in front of the automobile being driven by defendant. He stated that the defendant was traveling at a rate of speed of approximately thirty miles per hour.

The speed of the automobile driven by defendant was not excessive and in fact the plaintiff does not allege that the defendant was traveling at an excessive rate of speed. It is noted that when the two horses which traversed the highway from the south side onto the north' side of the highway the traffic traveling eastward came to a partial stop and it was not until the boy Johnny Ellis, the nephew of defendant, had crossed the highway and was a sufficient distance from said highway that the automobile began to increase its speed. While Mr. Laiche, the defendant, frankly admits that he was not looking at the horses after they had crossed the highway from the. south side to the north side and were practically due north of him, it cannot be said that he was negligent in that respect as all the law requires of the driver of a car is to keep a proper lookout on the road ahead of him which the driver in this instance was doing.

The defendant and plaintiff in reconvention has alleged that the sole cause of the accident was the gross negligence and carelessness of plaintiff’s minor nephew, Johnny Ellis, in chasing the horse along the highway when it was easily foreseeable that the horse might run onto the open highway and cause an accident

The highway where tne accident occurred, namely U. S. Highway 190, was a highway wherein stock was permitted at large, and all along said highway there are signs informing travelers that stock is at large. The plaintiff had the right to let his stock roam on the highway and naturally he had the right to remove them from said highway. If his horse suddenly darts onto the highway into the path of an oncoming automobile or into an automobile, as in this case, while he is seeking to drive them back into pasture, he, the owner of the horse, cannot be said to have been negligent.

For the above reasons it is now ordered that the judgment appealed from be voided and set aside, and that plaintiff’s suit and defendant’s reconventional demand, be both dismissed. Plaintiff to pay all costs.


author: KENNON, Judge.

text:
    JACKSON COOKIE CO., Inc., v. BURKS et al.
    No. 7466.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    John S. Webb, Shreveport, for appellant.
    John T. Carpenter, Shreveport, for ap-pellees.
   KENNON, Judge.

Plaintiff, in an original and two supplementary petitions, sets forth that the defendant, Milton L. Burks, as an unemanci-pated minor, and with the consent of his father and co-defendant, L. C. Burks, received for re-sale merchandise from plaintiff of a total retail value of $601.62. Alleging further that this merchandise was sold by young Burks and that while he was entitled to retain only 20% as a commission, he had actually retained the entire amount, plaintiff asked for judgment against both defendants for the balance due.

Defendants filed an exception to plaintiff’s capacity to sue and an exception of no cause or right of action. Apparently, the principal issue tendered by the exceptor was the incapacity of the minor to make a valid contract, or to be held liable for restoration of the value of the goods delivered.

The minutes show that on August 1, 1949, the exception of no cause or right of action was sustained. Plaintiff filed a motion for rehearing in order that it might file a supplemental petition curing the defect upon which the Court had based its opinion sustaining the exception of no cause or right of action. On August 2, 1949, the acting City Judge signed an order permitting the filing of the supplemental and amended petition, which contained the following allegation: “ ‘That said sum of $481.-30 was the proceeds received by Milton L. Burks from the sale of plaintiff’s merchandise, which said merchandise was sold by Milton L. Burks who kept the money, being the sum of $481.30, received by him from such sale and which said sum he applied to his own use.”

On August 15, 1949, a formal judgment was signed sustaining the exception of no cause or right of action and dismissing plaintiff’s suit. The case is- before us on appeal from that judgment.

Since the formal judgment sustaining the exception of no cause or right of action was not signed until A ugust 15, 1949, and the City Judge had signed an order on August 2, 1949 permitting the filing of the supplemental petition (above quoted from), we conclude that the allegations of the August 2d -supplementary petition must be considered in determining the correctness of the judgment signed on August 15, 1949 sustaining defendants’ exception of no cause or right of action.

Article 1793 of the Revised Civil Code provides as follows: “If, in a contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit of such incapacitated person, any consideration be paid or given, and the contract be afterwards invalidated on account of such incapacity or want of form, the consideration so paid or given must be restored, if it was applied to the necessary use or benefit of the incapacitated person.” (Italics ours.)

It is noted that the above quoted clause from the second supplementary petition does not contain the allegation that the moneys received by the younger Burks were applied to his necessary use or benefit. The language of the petition simply being that the money was kept by young Burks and by him “applied to his own use.” It is needless for the Court to observe that a young man under twenty-one years of age —and older ones too — may often apply money “to his own use” without same being applied “to the necessary use or benefit” of the spender. Under these circumstances, we conclude that the Judge of the City Court correctly held that the petition failed to set forth a cause of action against the younger Burks, who, at the time of the contract, was an incapacitated person within the meaning of Article 1793 of the Revised Civil Code.

The basis of plaintiff’s claim ■against the elder Burks is that the failure by the minor to account for the moneys received was in the nature of an offense, quasi-offense or tort under Articles 237 and 2318 of the Civil Code, citing as its principal authority for this contention the recent case of Smith v. Freeman et al., La.App., 31 So.2d 524. We agree with counsel on the general principle of law that a father is responsible in damages for the illegal -acts and torts of a minor son residing with him. Plaintiff’s case against the father fails here because its claim against the minor is under a business contract. The authority cited was a case involving assault and battery which was clearly a tort and not applicable to the case before us, where the minor’s .liability, if any, to plaintiff is contractual in nature.

The judgment is affirmed, with costs.


text:
    BAKER v. DYE et al.
    No. 3225.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Wilson B. Holcombe, Fred G. Benton, George Mathews, Edw. Donald Moseley, Baton Rouge, for appellant.
    Durrett & Hardin, Baton Rouge, Sam J. D’Amico, Baton Rouge, for appellees.
   DORE, Judge.

This case arises out of a collision between a 1940 Chrysler coach automobile owned and being driven by the plaintiff, and a 1942 two-door DeSoto automobile owned and being driven by Charles N. Dye, defendant, and which collision occurred on September 28, 1945, at about 4.00 o’clock in the afternoon, at or near the extension of Florida Street and Jasmine Boulevard, just east of the city limits of the City of Baton Rouge. Florida Street is a four-lane highway, running east and west, with a neutral ground in the center and two lanes of travel on the south side and two lanes on the north side. Just prior to the accident, the defendant had been traveling east on Florida Street, on the south side thereof, and the plaintiff had been traveling west on Florida Street, on the north side thereof. When defendant arrived at Jasmine Boulevard, he turned left at a passage afforded for vehicles desiring to turn from the south lane of said highway into the north lane, and thereupon proceeded to the north lane, and he was run into by plaintiff, who as the petitioner, alleges that the collision was due solely to the negligence of the defendant, particularly in the following respects:

“1st: In making a left turn without ascertaining that the same could be made safely, without endangering approaching traffic.

“2nd: In making a left turn at a time when petitioner was approaching from the opposite direction in plain view and driving directly in the front of petitioner’s automobile as heretofore shown.

“3rd: In not keeping- a proper lookout.”

As a result of the accident, plaintiff alleges that he sustained damages to his automobile and personal injuries necessitating medical expense, causing loss of time and pain and suffering, totaling $7,377.26. For that amount of damages, he sues the defendant, Charles N. Dye, and his alleged insurer, The Indemnity Insurance Company of North America.

The insurer filed an exception based on the grounds that the alleged policy of insurance had been cancelled on May 23, 1945, prior to the date of the accident, and in the alternative, that if it should be found that the policy had not been cancelled, that since the first notice of the accident was under date of June 6, 1946, received on June 7, or June 8, 1946, the conditions of the policy were not fulfilled, and therefore, no action against the insurer properly could be taken.

Reserving its rights under the exception filed, the defendant insurer filed an answer setting forth, the same averments contained in the exception, and setting forth further, in the alternative, in the event that the policy of insurance should be found to be in full force and effect at the time of the accident, that the plaintiff was guilty of negligence contributing to the accident, and that said contributory negligence bars the plaintiff from any recovery. .

Defendant Dye, in his answer, makes the same allegations of contributory negligence as set forth in his insurer’s answer, particularly as follows:

“(a) Plaintiff was driving at a grossly excessive and dangerous and reckless rate of speed which amounted to negligence on his part which was the proximate cause of said accident.

“(b) Plaintiff was not keeping and did not keep a proper lookout and failed to heed the Dye automobile properly stopped at or near the intersection which amounted to negligence on the part of plaintiff which was the proximate cause of said accident.

“(c) Plaintiff was guilty of negligence in steering to the left side of the road and running squarely into the defendant’s automobile at a time when it was properly parked or stopped and at a time when there was ample room for plaintiff to have remained on the paved highway and to have avoided striking the defendant’s automobile which amounted to negligence on the part of plaintiff which was the proximate cause of- said accident.

“(d) Plaintiff was guilty of negligence in failing to slacken the speed of his automobile when he saw or should have seen the car backing out from Sam’s Seafood Place, which amounted to negligence on the part of plaintiff which was a proximate cause of said accident.

“(e) Plaintiff was guilty of negligence, carelessness and reckless driving in connection with the accident sued on.”

After trial of the case, the district judge came to the conclusion that the plaintiff was guilty of contributory negligence which was a proximate cause of the accident, and, consequently, he dismissed plaintiff’s suit at his cost. Plaintiff has appealed, praying for judgment as originally asked for. Defendant insurer has filed a motion to dismiss the appeal on the ground that the appeal refers to a judgment granted on December 13, 1948, when as a matter of fact, the judgment was filed on December 16, 1948. Defendant insurer has also filed an answer to the appeal, praying that the judgment below be affirmed on the ground on which it was based by the district judge.

In so far as the motion to dismiss the appeal on the ground that there was no final judgment on December 13, 1948, but that on that date the written reasons for judgment were filed and the final judgment was not signed until December 16, 1948, we are of the opinion that there is no merit to the motion based on the technicality that the appeal was taken from the judgment as having been rendered on December. 13th. There is no question that the only judgment appealed from is the particular judgment rendered in this proceeding and the mere-mistake made in the petition for appeal, the citation of appeal and the -order granting the appeal as to the correct date of the judgment is not prejudicial to any of the parties involved in this proceeding. The modern trend of our jurisprudence is to favor appeals. The motion to dismiss is overruled.

The case merely involves a question of fact, and it is fundamental that unless we can find manifest error in the conclusion of the trial judge on this question of fact, his judgment should be affirmed. As brought out in his written reasons for judgment, the only eye witnesses to the accident were plaintiff Baker and defendant Dye, and their versions as to how it happened do not agree. The defendant, Dye, states that when he reached Jasmine Boulevard he made a very slow turn into the passageway -across the neutral ground, and that upon perceiving the plaintiff approaching from the east, on the north lane of Florida Street, at a distance approximated at 300 feet, he stopped his car, after having entered the south lane of the north side of Florida Street, about two feet. He further testified that while his car was so stopped, the plaintiff skidded his car some 75 feet, and that finally, the right front fender and grill of the plaintiff’s car came in contact with the right front fender and right side of defendant’s car back to the door of his said two-door car. Defendant states that there was ample room for the plaintiff to have proceeded westerly on Florida Street as he had emerged two feet into the south lane of the north double lane of said highway. It is shown that the neutral ground between the south side and north side of Florida Street at the situs of the accident was 15 feet wide and that the defendant entered this neutral ground while traveling very slowly and was clearly seen by the plaintiff some 250 or 300 feet away. There is no definite testimony as to the width of the two lanes on the north side, but it appears that the two lanes were about 10 feet each, or twenty (20) feet altogether, which, according to defendant’s testimony, would have left 18 feet for plaintiff to pass him.

. The plaintiff, on the other hand, testifies that he noticed defendant when he turned to his left, at which time he was some 250 feet east of the point of contact. He testified that he was traveling at approximately 35 miles per hour; that he didn’t slacken his speed as he felt that defendant would not enter the north double lane of the highway without stopping; that when he noticed that the defendant would not stop, he applied his brakes and skidded some 59 feet; that the pavement was slick from a previous shower; that he struck the defendant at a point approximately 8 feet north of the south curb of the north double lane, and that the impact pushed defendant’s car back so that when the vehicles came to rest, the front of defendant’s car extended about 2 feet into the south lane of the north double lane. Plaintiff further testified that from the corner of his eye he saw something moving out from Sam’s Seafood House, which is a restuarant located on the north side of the highway where the accident occurred, and it was for that reason that he decided to attempt to proceed around the rear of defendant’s car, thinking that defendant would “shift and get away”.

It was further shown that the plaintiff moved his car before any traffic policeman arrived at the scene and parked it on the curb of the north lane on the north side of Florida Street. We therefore do not have any evidence as to the location of his automobile after the collision except his own testimony, which is to the effect that his car, after the collision, had its front heading southwest and its rear in the north lane of the north side of Florida Street in such manner as to block traffic on said north lane. His testimony does not sound logical for the reason that it is dear that- he collided with the Dye car and it is difficult to understand how he could have pushed the Dye car within 2 feet of the curb on the south lane and ended up in the north lane as he states. In so far as the .object which plaintiff states that he thought he saw at Sam’s Seafood Restaurant, there is no evidence whatsoever that any object was present at the time of the accident. The trial judge states:

“I am not unmindful of the extra care and" caution which the law-prescribes that a motorist should exercise when making a left turn — especially into a busy aitery such as Florida Street is. However, in my opinion if the plaintiff had exercised proper care he could easily have avoided this accident by bringing his car under control and proceeding on the north lane of the north double lane of traffic. According to his own testimony, as a fact, there was nothing to obstruct his passage — though he thought he saw a moving vehicle out of the corner of his eye. This is not a case where the defendant made a sudden turn into the highway, for both parties testified that defendant was proceeding very slowly prior to the accident.”

On that statement he reaches the conclusion that plaintiff was guilty of contributory negligence which prevented his recovery, and we cannot see whereby that conclusion is in any way erroneous. To the contrary, we fully agree with the conclusion of the trial judge.

For these reasons, the judgment appealed from is affirmed.


text:
    ASCH v. GROSCH et al.
    No. 3240.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Arthur J. Finney, Covington, for appellant.
    Ellis, Ellis & Lancaster, Covington, for appellees.
   DORE, Judge.

This is a suit by a contractor, plaintiff herein, for the alleged balance due him for work performed under contract on the home of Mrs. Ann Shade Grosch, wife of John J. Grosch, located in the City of Mandcville, Louisiana. According to the evidenqe, the total work contracted for amounted to the sum of $4341.72, on which a cash payment of $1500 was made by defendant John J. Grosch, leaving a balance of $2841.72. On this balance of $2841.72, plaintiff has allowed $21 credit for 150 square feet of aluminum screen wire at 14 cents per square foot, as shown by statement of August 1, 1947, marked Exhibit P-1 in the record, which then leaves the amount of $2820.72 as the balance claimed as of August 1, 1947. On this balance it is admitted by plaintiff that on his authority the defendants paid to independent contractors the total sum of $1632.28, to-wit, $429.30 to B. Commenge for all roofing and gutter work on the house, the sum of $559.78 to Fontan Becker Specialties for cabinets, sinks and materials, and $643.20 to Guy A. Smith for all necessary plumbing, leaving ■ a ngt balance claimed of $1189.64. The suit is against Mrs. Ann Shade Grosch and her husband, John J. Grosch, and the amount claimed is $1419.-28, but clearly should be $1189.64 as contended by the defendants.

The defense is to the effect that certain work contracted for by plaintiff was not done at all, and that other work was done improperly, and to the damage of the defendants in excess of the amount claimed by plaintiff. In their answer, they pray that plaintiff’s claim be disallowed in its entirety, and that the defendants have a reservation in the judgment to proceed against plaintiff for the overpayment and for damages.

After hearing the case, the trial court, for written reasons assigned, rendered judgment in favor of defendants and against the plaintiff, rejecting plaintiff’s demand at his cost. The plaintiff has appealed, again asking for an award in the amount pr-ayed for of $1419.28 with interest and cost. The defendants have answered the appeal asking that the judgment be amended so as to award to them an additional credit of $108 resulting from defective plumbing work and so as to reserve to defendants the right to proceed against plaintiff for damages and for whatever overpayments that may have been made by them as prayed for iñ their answer in the district court, and as thus amended, that the judgment be affirmed.

This case involves strictly questions of fact, which are very ably discussed in the reasons for judgment of the lower court. It is our conclusion that the real amount in dispute is the sum of $1189.64, to which possibly ten per cent additional could be added, but we believe that plaintiff is bound by his estimate of August 1, 1947, and that theiefore, the true amount in dispute is $1189.64, as contended by defendants. The amounts claimed by defendants as an offset because of failure of performance are:

(a) $279 by painting performed by E. L. Cooper and paid for by defendants to Cooper and yet included in plaintiff’s claim; (b) Additional expense of $40 paid by defendants to Mr. Pettigrew for completing steps admittedly built in rough by plaintiff; (c) Expense of defendants of plumbing to remedy emergency conditions, $108; (d) Deduction of claim by plaintiff for removing varnish, which work was not performed by him, $168; making a claim in the total sum of $595 for work not performed and contemplated by the contract. All these items were sufficiently proved and allowed by the trial court except Item (c) with reference to plumbing, in the sum of $108. We believe that this plumbing item was properly disallowed for the reason that the contract price for the plumbing work was supposed to have been $750, and for the additional reason that the plumbing work was paid to a sub-contractor in the sum of $643.20. The items properly allowed by the trial court aggregate the sum of $487.00, and by subtracting that from the amount claimed of $1189.44, we find a balance due of $702.44. The defense to this item is whether or not the evidence shows sufficient defective work to at least offset that amount as found by the trial judge.

On that question, the evidence consists of the testimony of Mr. Robert L. Lobdell, a reputable architect and contractor of wide experience, and Mr. Robert Lowe, a reputable contractor of many years’ experience, their testimony is based up on a personal and apparently a careful inspection of the house in question and their testimony was apparently accepted by the trial court. The plaintiff had every opportunity to contradict their testimony by his own testimony and that of contractors who were acquainted with the house, but did not do so. According to the testimony of these two men, the varnish in the house was not removed as contracted for, and that item is included in Item (d) of the non-performance of plaintiff as alleged by defendants. In addition thereto, these two witnesses estimated that due to defective work, the sum of $1086.52 would be required to be expended by the defendants in order to place their home in the condition contemplated by the contract with the plaintiff. In connection with their testimony, they use a statement made by them at the time of their inspection and this statement is contained in the record, although it was not admitted in evidence, and motion for this deletion and striking out of this statement has been made before us by the plaintiff. It is not necessary to consider the statement in arriving at a conclusion as to the defendants’ claim of damage and we can readily do so from the testimony of Mr. Lobdell and Mr. Lowe with reference to their inspection of the premises. It is true, as contended by counsel for plaintiff, that the estimate of the defective work to be corrected made by these witnesses is, after all, merely the opinion of Mr. Lobdell and/or Mr. Lowe. Mr. Lobdell frankly admits in his testimony that said estimate could be somewhat inaccurate, hut that he used his best judgment in arriving at it. It must be noted, also, that there is no contradiction on the part of plaintiff as to the estimate, as well as to the alleged defects found by these witnesses. He even admits that the Morlite boards supposed to have been placed in the kitchen, were not placed therein, and the testimony of witness Lowe is to the effect that this small item would have cost $73.24. The other items testified to by Lobdell and Lowe consist of:

(a) Bracing, removal and replacement of finished roofing and other repairs on roofing, including rafters and materials and labor, $193.

(b) Repair of upstairs shower bath improperly constructed and improperly placed, and repair of damages caused by leaky condition and being placed in the wrong position; a total of $387, as explained in detail by the witnesses.

(c) Witnesses testify that due to the fact that the kitchen and glazed porch floors were out of line 1%", a total damage was done necessitating an expenditure of approximately $168.

(d) That as a result of the improper placing of the kitchen and porch floors, the linoleum could not be placed properly and the life thereof was thereby reduced by approximately one-third of the cost of $120, being a damage of $40.

(e) That the casement windows in the kitchen were improperly constructed due to defective sills and that to correct this condition would entail an expense for labor and materials of $67.50.

(f) That the open wall behind the stove received no finish and would require for that purpose, an expenditure of $8.

All of these items, amounting to the sum of $936.74, are explained in detail by the witnesses and the sum thereof seem to be reasonable. Like the trial judge, we are of the opinion that the only benefit of doubt which we can give to plaintiff is that these items of damages do not exceed the amount claimed by plaintiff. In any event, we feel that substantial justice was done by the trial judgment in balancing the amount allegedly due plaintiff and the amount of offset claimed by defendant. We find no manifest error in his judgment, which is based almost entirely on questions of fact and which is not based on any certain definite figures.

For these reasons, the judgment appealed from is affirmed.


author: HAMITER, Justice.

text:
    216 La. 961
    YOUNG v. MULROY.
    No. 39040.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.
    Wm. C. Orchard, Dart, Guidry & Price, New Orleans, for plaintiff* and appellant.
    George E. Konrad, Warren M. Simon, New Orleans, for defendant-appellee.
   HAMITER, Justice.

The dispute in this petitory action concerns the ownership of a certain double cottage in the City of New Orleans, bearing Municipal Nos. 1129-1131 Fourth Street, the record title to which was in the name of Jacob Young (hereinafter sometimes referred to as decedent) at the time of his death.

Plaintiff, Mrs. Wilhelmina B. Young, claims it by inheritance from decedent (her son). The position of defendant, Miss May Louise Mulroy, is that the property was purchased by her and that the title thereto was placed in decedent’s name solely for her benefit and convenience. In support of this position she relies on a document termed a counter letter purportedly signed by decedent.

The district court, after trial, rendered judgment in favor of defendant. Plaintiff appealed. After the lodging of the transcript in this court plaintiff filed a motion to remand so that alleged newly discovered evidence could be received.

The record discloses that by a notarial act of sale dated December 30, 1942, the Home Building & Loan Association of New Orleans transferred and conveyed the property in question to Jacob Young. The deed recited a credit consideration of $3200, payable in monthly installments of not less than $27 each, which was secured by the usual vendor’s lien and special mortgage.

Jacob Young died intestate on August 7, 1943. In his succession proceedings, by an ex parte judgment of date December 10, 1943, plaintiff (decedent’s mother) was recognized as his sole heir at law and was sent into possession of all of his property, particularly the contents of a jewelry store and the above mentioned disputed real estate.

On December IS, 1943, defendant appeared before a Notary Public of Orleans Parish and executed an act of deposit with respect to the document on which she relies herein. The notarial act so executed, which describes the deposited document, reads in part as follows:

“ * * * Said appearer declaring that she has left said document with me, Notary, to be herewith attached and to remain so attached for future reference.

“Said document reading as follows, to-wit:

“New Orleans, La. 3/16, 1943

“No. 1129-1131 Fourth Street is the property of Miss May Louise Mulroy. It has been put in my name for convenience only.

“(Signed) Jacob Young.

“(written on a portion of a National Bank of Commerce check, bearing check No. 1723.)

“And now the said appearer, Miss May Louise Mulroy, further declared that she makes this Act of Deposit, for the purpose of creating public notice of the counter letter herein deposited, executed by the said Jacob Young, whose signature is thereunto affixed, as a result of said property having been purchased in his name; and of the fact that she is the bona fide owner of the said property Number 1129-1131 Fourth Street, which is more fully described as:

* * * * * *

“That said property w-as acquired in the name of Jacob Young, as per Conveyance Office Book 526, Folio 160, for convenience only, which fact was duly declared by the said Jacob Young, as per t'he said counter letter herewith deposited, * *

The date on the deposited document, according to the record, was inserted with pen and ink, whereas the language immediately above the signature was typewritten.

On this appeal the primary question presented for determination is whether such document is genuine. If it is, the district court correctly decreed the dismissal of this suit; if not, plaintiff is entitled to judgment.

In urging that it is not genuine plaintiff’s counsel contend: (1) The alleged counter letter was not executed as such by Jacob Young, but rather the typewritten words were inserted above his signature by Miss Mulroy, the defendant, or someone else without his knowledge; and (2) It is nothing more than a simulated or gratuitous transfer, i. e., a sale without consideration.

With reference to the preparation of the disputed document, defendant testified that on the date thereof (March 16, 1943) decedent came to the office of the Youngstown Sheet & Tube Company, located in the Whitney Building of New Orleans, where she was employed as a secretary; that he withdrew from- his pocket a blank check, bearing No. 1723, and cut it in two pieces; that on one of the pieces she typed, in his presence and in accordance with his instructions, the language in question, after which he affixed his signature; and that she placed the document in her wallet and thereafter kept it in her possession until the execution of the notarial act of deposit. ■

Plaintiff’s counsel sought to contradict this testimony of the defendant only by means of cross examination, using in connection therewith some of decedent’s check stubs and cancelled checks which, they -contend, appear to be partially in the handwriting of defendant. They proceeded on the theory that defendant often aided decedent in the preparation of his checks by writing the payee’s name and the date on each check -and on the accompanying stub; that the decedent would then affix his signature to the check and subsequently write in the amount when determined; arid that the check used in the execution of the counter letter was one thus partially prepared and signed, the defendant having retained it and later cut off and destroyed that portion thereof containing the payeels name which, according to the matching stub -bearing No. 1723, was “Southland”. This theory, of course, is suggestive of fraud on the part of defendant; the record, however, is insufficient to ■convict her of it. Plaintiff’s counsel offered no evidence whatever identifying the alleged payee “Southland” or showing that its account was never paid. Moreover, if fraud had been perpetrated the decedent, undoubtedly, would have discovered it prior to his death which did not occur until August 7, 1943, almost five months after the date noted on the check stub No. 1723. He was a reputable business man, engaged in the jewelry business, and it must be assumed that he would have made an investigation of any of his checks outstanding for that period of time.

As to the second contention of plaintiff, which is that the counter letter evidenced merely a simulated sale or gratuitous transfer, defendant testified: For about sixteen years she, along with her mother and sisters, occupied the controverted premises. In the latter part of 1942 she and Jacob Young, to whom she was engaged to be married, negotiated for her purchasing the property. After their several conferences with the then owner, Mrs. Elizabeth C. 'Callan, an agreement was reached whereby decedent would give to such owner his unsecured promissory note of $1000 and would finance the balance of the purchase price by a loan from a homestead association. ■ The title was to be taken in the name of Jacob Young, as a convenience to defendant, because the homestead loan was necessary and she had no credit rating. Since December 30, 1942, the date on which Mrs. Callan transferred the property to the Home Building & Loan Association and it in turn conveyed to Jacob Young (in keeping with the agreement), the defendant has made all of the payments due; she has contracted and paid for all necessary repairs and has taken care of the taxes; she has paid no rent to anyone; and she has continuously lived in the premises with her mother and sisters.

The defendant further testified, as before shown, that decedent came to the place where she was employed on March 16, 1943 (approximately two and one-half months after the purchase), and she, in accordance with his instructions, prepared the disputed counter letter which he executed.

Appearing as a witness for the defendant was Miltner J. Goll, secretary-manager of the mentioned Home Building & Loan Association and who had been connected with that organization since April 12, 1937. It was his testimony that Jacob Young, whom he had known for many years, “ * * * cauec¡; me up and j went up to his place, but I had been up there quite a number of times, and he asked me to look at this particular piece of property before anything was ever done on it. He and I went over there one evening in my car and he wanted to know how much I would lend on it and he said that his girl friend wanted to buy the property; that they lived there a long time ago. I didn’t know any-think about this and I told him I didn’t know just exactly how much we would lend —it would be subject to the C. A. B. — Central Appraisal Bureau. He then told me that he would like to find out. And I had the property appraised and he asked me then if it would be better to put it in* his name because of the fact that his friend didn’t have a credit rating, or something to that effect. I told him * * * probably it would be better, and he filed the application for the loan.”

Mr. Goll further testified that most of the payments on the loan were by cash; that defendant and Young (prior to his death) always came together to the company office to make them; that after Young died defendant paid all of the installments except one, or possibly two, which was by check given 'by some one the name of whom he didn’t remember; and that defendant herself contracted for all repairs on the property.

The only witness offered by plaintiff in rebuttal of the testimony of defendant and of Mr. Goll was Nicholas Callan. He merely testified to the negotiations had between Young and 'his mother (who had since died) for the purchase of the property; that Young gave the unsecured $1000 note to his mother; and that certain payments had been made on that note, but whether by Young or by the defendant he did not know.

From the record as made up we must conclude that plaintiff has failed to discharge the 'burden which she carried of showing, as she contends, that the document produced and relied on by defendant is not genuine. In fact, the evidence before us fully sustains the written reasons given by the trial judge in announcing his judgment, they being as follows:

“The court had all of the testimony transcribed, and I am satisfied that the counter letter was signed and executed by Jacob Young in the manner as testified to by Miss Mulroy.

“Counsel for plaintiff would have the court decide this case on pure conjecture, contending that the counter letter was not executed as such by Jacob Young; that the check on which the counter letter was executed, dated March 16, 1943, and signed by Jacob Young at that time, was held by defendant until after his death, and that then there was typed in the “writing” constituting the body of the counter letter, between the date and the signature of Jacob Young. There is no evidence to sustain such contention. In order for me to be in accord with such theory I would have to hold that Miss Mulroy’s testimony was absolutely false and untrue, and this I cannot do.

“I am of the opinion that the property in question was purchased by the defendant, May Louise Mulroy; that said property was placed in the name of Jacob Young by her for her benefit and convenience; and that Jacob Young executed the counter letter in pursuance thereof.”

The motion to remand cannot be granted. In it plaintiff urges that there is newly discovered evidence which should be received, it tending to show that on several occasions defendant, after the death of Jacob Young and prior to the recordation of the counter letter, offered to lease and rent the property. Applicable here is the observation made with reference to a similar motion in the case of Kinnebrew et al. v. Louisiana Ice Company, Inc., 216 La. 472, 43 So.2d 798, 808, which was that II * * * we are not disposed to permit litigants to try their cases by piece meal and continue protracted litigation as to facts that could have been established on the original trial.”

For the reasons assigned the judgment appealed from is affirmed.


author: FOURNET, Chief Justice.

text:
    216 La. 972
    STATE v. HILAIRE.
    Nos. 39636-39642.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.

      Bertrand DeBlanc, Lafayette, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., R. J. Putnam, Dist. Atty., Abbeville, and Allen J. Lacobie, Asst. Dist. Atty., Lafayette, for appellee.
   FOURNET, Chief Justice.

Defendant, Joseph LeRoy Hilaire, when called for arraignment on seven charges by bills of information, six with having committed simple burglary and one with the theft of a bicycle, pleaded guilty to each offense, waived legal delays, and requested the court to pass sentence on him forthwith ; whereupon he was sentenced to serve at hard labor in the State Penitentiary for a period of five years on each burglary charge and two years on the theft charge, the sentence for theft and for three of the burglary charges to run concurrently with the sentence first imposed. On the next day the defendant filed a motion through counsel for an appeal, based on the suggestion “that the record * * * shows error to his prejudice.”

Counsel for the defendant contends that, under the provisions of Article I, Section 9 of the Constitution of Louisiana, the defendant, being charged with a felony, was entitled to the assistance of counsel learned in the law to defend him; and that the failure of the trial judge to assign counsel to defendant constitutes a violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. He further contends that the State did not sustain the burden of proving that the defendant was over the age of 17 years when the alleged crimes were committed, and that by his plea of guilty defendant did not waive his right to allege, plead and prove his age.

The right to defend one’s self when charged with a felony, or to have the assistance of counsel to aid in such defense, did not exist under the common law as practiced in England until the year 1836, when by act of Parliament the full right was granted in respect of felonies generally. However, that harsh procedure was never accepted in this country; and when the thirteen colonies sought to band together, they made certain to secure this human right which they considered inalienable and consented to uniting under a constitutional form of government only when assured of the right to defend one’s self in criminal prosecutions and to have the assistance of counsel for such defense, Sixth Amendment, U. S. Constitution. The constitutions of the various states contain •similar provisions, and in the Bill of Rights of the Louisiana Constitution of 1921 is contained the provision that “No person shall be deprived of life, liberty or property, except by due process of law. * * * ” Art. I, Sec. 2, as well as the following provisions: “In all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury; * * * The accused in every instance shall have the right to be confronted with the witnesses against him; he shall have the right to defend himself, to have the assistance of counsel, and to have compulsory process for obtaining witnesses in his favor * * Art. I, Sec. 9. The Bill of Rights of the several preceding Constitutions of the State contain provisions similar to those quoted above. See: 'Const, of 1913, Art. 9; Const, of 1898, Art. 9; Const, of 1879, Art. 8; Const, of 1868, Art. 6; ■Const, of 1864, Art. IOS; Const, of 1852, Art. 103; Const, of 1845, Art. 107; Const, of 1812, Art. 6, Sec. 18.

In order to safeguard this right, the lawmakers of our State, in adopting the Code of Criminal Procedure in 1928, under the heading “Right to Counsel,” incorporated the provision that “The accused in every instance shall have the right to defend himself and to have the assistance of counsel * * * ”, Art. 142, C.C.P.; and in order to make secure this right to' an accused who is unable to procure or employ such counsel, incorporated the further 'provision that “Whenever an accused charged with a felony shall make affidavit -that he is unable to procure or employ counsel learned in the law, the court before whom he shall be tried, or some judge thereof, shall immediately assign to him such counsel; * * Art. 143, C.C.P. (Emphasis supplied.) This was but a codification of the prior existing law, with slight modifications. See Revised Statutes, Sec. 992, and the jurisprudence thereunder.

It has. been the universal practice and procedure in the trial of all criminal cases in this State to furnish the accused, upon his request in proper cases, with counsel-to assist him in the trial and defense of his cause, and the trial judge’s failure to do so' constitutes a reversible error, State v. Blankenship, 186 La. 238, 172 So. 4; State v. Neely, 186 La. 171, 171 So. 840, but the court need not appoint counsel for the accused unless he requests it, State v. Kelly, 25 La.Ann. 381; State v. Ziord, 30 La.Ann. 867; State v. Doyle, 36 La.Ann. 91; State v. Perry, 48 La.Ann. 651, 19 So. 684, and authorities there cited; State v. Whitesides, 49 La.Ann. 352, 21 So. 540; State v. Sims, 117 La. 1036, 42 So. 494; State v. Charles, 130 La. 683, 58 So. 509; State v. Williams, 162 La. 590, 110 So. 766; State v. Davis, 171 La. 449, 131 So. 295, and where, the defendant, charged with a felony, pleads guilty (except in capital cases -where such pleas are prohibited under our law) without the assistance of counsel, he has no valid cause for complaint, State v. Crane, 121 La. 1039, 46 So. 1009.

Counsel for the defendant, relying on the case of State v. Youchunas, 187 La. 281, 174 So. 356, contends that the trial judge committed reversible error patent on the face of the records in that the minutes of court fail to show that the accused was represented by counsel at the time of his arraignment and his entry of pleas of guilty. In that case the defendant, who was tried for the offense of breaking and entering in the nighttime, did not plead guilty, as did the accused here, but protested his innocence, went to trial even without the assistance of counsel, and upon his conviction persevered in the attempt to prove his innocence by appealing to this Court; and while the Court in that case, after finding certain irregularities, did use language in the opinion which seems to support defendant’s contention, the same is not only without precedent or legal basis but is directly contrary to the law, the procedure, and the established jurisprudence. We will therefore not follow that decision and in the interest of uniformity of practice and procedure it is hereby overruled.

For us to hold otherwise -at this time, after the several courts of this State have been accepting pleas of guilty on arraignment without assigning counsel to the accused under the practice and procedure long prevailing, would only serve as an avenue for the release of a majority of the inmates of the Louisiana State Penitentiary who are now serving under pleas of guilty.

We therefore conclude that the defendant, having been convicted and sentenced on his own plea, without suggesting to the trial judge that he needed or wanted the assistance of counsel in making said plea, was not deprived of his liberty without due process because of the failure of the minutes to show that no counsel was appointed to represent him.

The defendant’s second contention, that the State did not sustain the burden of proving the defendant was over the age of seventeen years when the alleged crimes were committed, is equally without merit. Counsel does hot contend that the offenses were not committed on the dates alleged in the informations, but argues rather that the State “did not sustain the burden of proving that the minor child was over the age of seventeen years when the alleged crimes were alleged to 'have been committed.” In this respect he is not supported by the record, which shows that the age of the accused was judicially determined before sentence was passed. In this, the learned trial judge is supported by the only evidence which we find in the record, a baptismal certificate showing that the defendant was born on the 12th day of July, 1932, thus making him seventeen years and one day old on the 13th day of July, 1949, seventeen years and two days old on the 14th day of July, 1949, and seventeen years and three days old on the 15th day of July, 1949- — the dates of the commission of the alleged offenses.

It is further to be noted that the defendant did not allege nor seek to prove in the court below, nor is his counsel claiming here, that he has any proof which will establish the age of the accused to have been under seventeen years at the time of the commission of the acts; but even if he were contending such is a fact, this court, being in criminal cases a court of appellate jurisdiction only, and the record being barren of any other evidence than the certificate referred to, is consequently bound by such evidence. However, if the defendant actually was not 17 years of age at the time of the commission of the alleged offenses and has proof to establish that fact, his remedy is to plead such in a petition for writ of habeas corpus, Arts. 116 and 137, La.Code of Criminal Procedure; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367, and, if established, the sentences imposed would be nullified, since only the Juvenile Court would have jurisdiction. See 'Constitution of Louisiana, Article VII, Sec. 52.

For the reasons assigned, the judgments appealed from in the several above-numbered causes are affirmed.


author: PONDER, Justice. HAMITER, Justice

text:
    216 La. 980
    WELCH v. PITRE.
    No. 38501.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.
    Thompson, Lawes, Cavanaugh & Hickman, Lake Charles, for defendant-appellant.
    Wood & Wood, Leesville, for plaintiff-appellee.
   PONDER, Justice.

The plaintiff brought suit against the defendant seeking a partition by lieitation of approximately 1937 acres of land located in Vernon Parish. The defendant opposed the partition 'by licitation and asked for a partition in kind. On trial the lower court gave judgment in favor of the plaintiff ordering the lands sold at public sale and the proceeds to be divided equally between the parties after the payment of costs. The defendant has appealed.

The defendant contends that the judgment of the lower court is erroneous and that he is entitled to have the lands divided in kind.

The plaintiff and the defendant were partners for about 25 years and the most of these lands were bought for the timber growing thereon. The evidence shows that the lands were bought for speculation. The lands are scattered over 9 townships and consist of 44 different tracts of land. The tracts of land are widely separated and are all classified as denuded, cut-over, pine lands. There are no improvements on any of the tracts of land and none of them can be classified as being cultivated or used for farm purposes. Only a small portion of the lands are suitable for agricultural purposes. The smallest tract contains 5 acres and the largest tract contains approximately 200 acres. The character of these lands and the growth of timber thereon is varied. There is hardwood on some of the tracts and timber on other portions of the lands. There is no timber on some of the lands. There'are outstanding mineral leases and mineral deeds which are not in controversy herein.

From the testimony of the plaintiff and four other witnesses, it appears that the lands cannot be divided in kind and if so a division in kind would result in a diminution of their value and a loss to the co-owners.

The testimony of the defendant and three other witnesses is to the effect that the lands can be divided in kind, but their testimony is general and the only plan presented for a division in kind does not evaluate the various tracts and the timber thereon or present specific information upon which this court could arrive at the conclusion that the lands, could be divided in kind without a diminution in value or a loss to the owners. While there is testimony in the record indicating that some of the tracts might be divided in kind, there was no evaluation fixed or any information adduced upon which the court could so find.

It appears that the timber constituted the principal value of the lands and that they would be more valuable as a whole. This fact is borne out by testimony of some of the witnesses who had long experience in the timber business. Their testimony is to the effect that those engaged in the timber business would pay a greater price for a large tract of timber than they would for a smaller tract.

This case presents purely a question of fact and we can find no just reason to disturb the judgment of the lower court. The lower court concluded that the lands were not divisible in kind without causing a diminution of their value or a loss to their co-owners. The district judge in his written reasons for judgment pointed out that the plaintiff, during the course of the trial, offered to pay the defendant $10,000 for his half interest in the lands or take $8,000 for his half interest, indicating his good faith and belief that the lands could not be divided in kind without a substantial loss to him. It was also pointed out that both of the parties were financially able to protect their interests when the lands are sold and that no undue hardship would result.

Article 1336 of the Revised Civil Code reads as follows: “The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the coheirs, in conformity, nevertheless, with the following provisions.”

Article 1339 of the Revised Civil Code reads: “When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order at the instance' of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time -of notice and advertisements prescribed by law, and in the manner hereinafter, .prescribed.”

Article 1340 of the Revised Civil Code is as follows: “It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.”

This court has consistently followed the provisions of these articles of the code when lands cannot be conveniently divided without diminution of value or loss or inconvenience to the owners. In most of the cases, this court has stated that the law favors partition in kind, but that it is not obligatory when the property cannot be conveniently divided .without a diminution of value or loss or inconvenience to the owners. Grouchy v. Williams, 161 La. 909, 109 So. 545; Raceland Bank & Trust Co. v. Toups, 173 La. 742, 138 So. 652; Pryor v. Desha, 204 La. 575, 15 So.2d 891.

For the reasons assigned, the judgment •is affirmed at appellant’s cost.

HAMITER, Justice

(concurring in part and dissenting in part).

The record discloses, and counsel concede, that several of the separate tracts can be divided equally. These, in my opinion, should be partitioned in kind. A partition by licitation should be ordered as to the remaining tracts.


author: PONDER, Justice.

text:
    216 La. 986
    C. W. GREESON CO. et al. v. HARNISCHFEGER CORPORATION.
    No. 39714.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.
    Bullock & Bullock, Shreveport, for plaintiffs-appellants.
    Thomas M. Hayes, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendant-appellee.
   PONDER, Justice.

In this suit the plaintiffs are seeking to recover damages from the defendant for alleged defects in a dragline excavator, which they had purchased from the defendant and for the loss of the use of the machine for a period of sixty days on account of the defects in the machine.

The plaintiffs sought to interpose this claim for damages by way of reconvention in a suit brought by the defendant against them for the balance due on the purchase price of the machine. The lower court refused to entertain the demand for damages as a reconventional demand and it was docketed and proceeded with in the lower fcourt as a separate suit.

In this suit for damages service was made on a purported representative of the defendant corporation. The service was contested and the court, on motion of counsel for the plaintiffs, ordered service to be made on the Secretary of State.

The defendant corporation entered a plea challenging the jurisdiction of the court ratione personae. The plaintiffs petitioned the court in these proceedings for an attachment to protect the plaintiffs’ rights in the suit alleging that the defendant was a nonresident corporation, obtained an order of court appointing a curator to represent the defendant and seized the rights and interests of the corporation in the suit it had filed against the plaintiffs seeking to recover the balance due on the purchase price of the machine. The lower court sustained the plea to its jurisdiction ratione personae and the plaintiffs’ demand for a personal judgment against the defendant was dismissed. The plaintiffs applied to this court for writs which were denied on the ground that they had an adequate remedy by appeal. Plaintiffs have appealed.

The defendant has moved to dismiss the appeal on the ground that the judgment is interlocutory and that there is no appeal from the judgment in the absence of any showing of irreparable injury.

The plaintiffs’ suit was instituted to recover a personal judgment for damages and the attachment proceedings were brought to protect the plaintiffs’ interests in the suit because the lower court had refused to entertain it as a reconventional demand. The attachment proceedings are ancillary. The judgment dismissing the plaintiffs’ suit for damages is final and the plaintiffs are entitled to an appeal. Article 565, Code of Practice. The fact that the ancillary proceedings have not been disposed of does not alter the fact that the judgment is final. No further steps can be taken to secure a judgment for personal damages in the lower court and the plaintiffs’ only remedy is by appeal.

For the reasons assigned, the motion is denied.


text:
    216 La. 989
    STATE v. PRINCE.
    No. 39672.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.

      Drew & Drew, Minden, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. General, M. E. Culligan, Asst. Atty. Gen., Fred L. Jackson, Dist. Atty., Homer, for appellee.
   PONDER, Justice.

The defendant was tried and convicted under an indictment charging him with attempted aggravated rape and sentenced to serve three years and six months in the penitentiary. He has appealed.

On this appeal we are presented with six bills of exceptions that were taken during the course of the trial to the rulings of the trial court.

Bills of exceptions No. 1 and 2 .were taken to the overruling of the objection of counsel for the defendant to the answer to a motion for a bill of particulars and the overruling of a motion to quash the indictment predicated on the same ground, viz.: that the defendant was being tried for two separate and inconsistent crimes.

The answer to the bill of particulars informed the defendant that he was being prosecuted for attempted aggravated rape under subsections(l) and (2) of Article 42 of the Criminal Code. Article 42 of the Criminal Code reads as follows:

“Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:

“(1) Where the female resists the act to the utmost, but her resistance is overcome by force.

“(2) Where she is prevented' from resisting the act by threats of great and immediate 'bodily harm, accompanied by apparent power of execution.

“(3) Where she is under the age of twelve years. Lack of knowledge of the female’s age shall not be a defense.

“Whoever commits the crime of aggravated rape shall be punished by death.”

Counsel has cited no authority to support his contention. A mere reading of Article 42 of the Criminal Code refutes this contention. The offense may be committed under one or more of three stated circumstances. We observe from the per curiam of the trial judge that the prosecu-trix resisted to her utmost and that the defendant drew a knife on her and made threats in his attempt to prevent her from resisting the act. There is no merit in these bills of exceptions.

Bill of exception No. 3 is leveled to the court’s overruling of the defendant’s objection to going to trial. This bill is predicated on the ground that' his counsel did not have sufficient time to prepare his defense. The defendant was indicted on September 7, 1949. He was arraigned on September 9th and, after having pleaded not guilty, his case was set for trial for October 3, 1949. On September 16, 1949 the lower court permitted counsel to withdraw the defendant’s plea of not guilty in order that he might file a motion for a bill -of particulars. The district attorney answered the motion setting out the particulars. Counsel for the defendant contended that this answer was not sufficient and the court permitted opposing counsel to argue and submit the matter on September 23, 1949, on which date the lower court ruled that the answer sufficiently informed the defendant of the subsections of Article 42 of the Criminal Code under which the defendant was being tried. On October 3d, the date fixed for trial, counsel for the defendant objected to going to trial on the ground that the defendant had not been legally arraigned. He took the position that the arraignment had previously been set aside when the motion for a.bill of particulars was filed. The defendant was re-arraigned and counsel objected to going to trial on the ground that he did not have sufficient time to prepare the defense.

While counsel argues that additional witnesses, might have been obtained on behalf of the defendant, he does not point out who they might be or what he could prove 'by them. We find in the record a motion filed by counsel on September 27, 1949 wherein he requested an order to summon and attach two witnesses residing outside the parish by whom he expected to prove the innocence of the accused. The lower court granted the order and it appears that these witnesses were present at the trial.

There is no merit in this bill because the defendant had ample opportunity to prepare his defense and no showing is made that he could have secured any additional evidence had a continuance been granted. His counsel evidently knew that the arraignment was set aside only for the purpose of permitting him to file a motion for a bill of particulars on September 16th because he filed amotion on September 27th requesting an order for the summoning and the attachment of the two witnesses residing out of the parish to appear on October 3d, the date of the trial.

Bill of exception No. 4 was taken to the overruling of a motion for a continuance based on the ground that a defense witness was absent. An attachment was issued and this witness appeared and testified in the case.

Counsel for the defendant concedes that there is no merit in his 'bill of exception No. 5.

Bill of exception No. 6 was taken to the overruling of a motion for a new trial based on grounds alleged in the bills heretofore considered and that the verdict was contrary to the law and the evidence. Having disposed of the grounds urged in the bills of exceptions, there is no merit in this bill.

For the reasons assigned, the conviction and sentence are affirmed.


author: PIARDY, Judge.

text:
    WISE v. TEXAS & P. RY. CO.
    No. 7451.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.
    Gahagan & Pierson, Natchitoches, for appellant.
    Frank H. Peterman, Alexandria, for ap-pellee. .
   PIARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $255, alleged to be the value of two head of cattle killed by one of defendant’s passenger trains at a point on its main line railway where the right-of-way was unfenced. Plaintiff alleges negligence of the defendant’s employees operating the train in failing to keep a proper lookout; failure to give warning; failure to attempt to bring the train to a stop, and, generally, by operating the train in a negligent manner. Defendant specifically denied the charges of negligence and affirmatively asserted facts in substantiation of the defense that the killing of the animals by its train was an unavoidable accident. After trial there was judgment for defendant rejecting plaintiff’s demands, from which plaintiff prosecutes this appeal.

There is no dispute as to the law involved in this matter and the judgment turns, therefore, solely upon the determination of questions of fact.

The accident occurred after daylight on the morning of March 27, 1948, at a point on the main line of defendant’s railway in Natchitoches Parish, Louisiana. One of defendant’s regular passenger trains, made up of a locomotive and six cars, was proceeding east in the direction of Alexandria at a speed of about 55 miles per hour. At the situs of the accident the main line is paralleled by a switch track and there is an embankment beyond the switch track on the south side of the main line, being to the left of the direction in which the train was proceeding. The embankment in question is of sufficient height to conceal cattle either wholly or partially from the view of the engine crew. The point is unfenced, which fact, concededly, places the burden of proof upon defendant to show lack of negligence in connection with the accident.

There was only one eye witness, the locomotive fireman, who was seated, according to his testimony, in his regular position on the left-hand side of the engine cab. This witness testified that the cattle suddenly appeared in view from behind the embankment to the left of the switch track at a distance of some two or three telegraph poles, that is, approximately 300 to 500 feet from the locomotive. The fireman testified that the cattle were running at an angle toward the train; that as a warning he immediately yelled “cows” to the engineer, who sounded-his whistle and applied the brakes. Contemporaneously with this action on the engineer’s part the fireman was ringing the bell in the attempt to warn the stock from the track. The cattle were struck and killed by the locomotive.

The testimony of the locomotive engineer is to the effect that he did not see the cattle, his only knowledge of their proximity being the shouted warning of his fireman. The engineer further testified that his equipment and appliances were in good condition, and that, at the speed of operation at the time, a distance of approximately 2,000 feet would have been required to bring the train to a stop. A further significant portion of his testimony is that he was prevented from perceiving the approach of the cattle by the locomotive boiler which extended some 80 feet in front of his cab and completely obstructed his view. It is obvious that the cattle came upon the right-of-way suddenly, else the boiler would not have served to conceal the animals from the view of this witness.

Diligent counsel for plaintiff strenuously contends that the testimony of the witnesses above summarized was refuted by the testimony of the section foreman of defendant railway, who testified for defendant, and under cross-examination admitted that there were a number of cattle tracks at the point of the accident. From this testimony counsel draws the conclusion that the cattle were and had been on or near the track for a sufficient period of time to have been viewed by the engine crew. This conclusion does not necessarily follow in view of the fact that the witness referred to also testified that there were cattle tracks leading from the embankment to the railway line. The fact that there were numerous cattle tracks at the point is further substantiated by one of plaintiff’s witnesses, who also testified that he did not observe any tracks that appeared to have been made by animals at a run.

This testimony, in our opinion, is negative in effect and does not serve to overcome the direct and unimpeached testimony of the fireman and engineer. We think that a clear preponderance of the testimony ■absolves defendant’s employees of any negligence and completely substantiates the defense of an unavoidable accident.

The facts in the instant case are very similar to those considered by this Court in Friedman et al. v. Texas & P. R. Co., La.App., 18 So.2d 845, and Abraham v. Texas & P. Ry. Co., La.App., 24 So.2d 886, in both of which cases we found for the defendant.

For the reasons set forth, the judgment appealed from is affirmed at appellant’s cost.