author: FRUGE, Judge Ad Hoc.

text:
    LEJEUNE et al. v. COLLARD et al.
    No. 3220.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Plauche & Plauche, Lake Charles, for appellants.
    Thos. F. Porter, Lake Charles, Thos. L. Raggio, Lake Charles, for appellees.
   FRUGE, Judge Ad Hoc.

This is a suit in tort by the plaintiff, Mrs. TSTita Lejeune, individually, and as natural tutrix of her minor children, Bobby Joseph Lejeune and Dennis Joseph Lejeune, for the wrongful death of her husband and against the defendants, George W. Collard, operator of the Lake Charles Aviation Service and his insurer, the Firemen’s Fund indemnity Company.

Plaintiff alleges that her deceased hus--band, Hillman Joseph Lejeune, was the father of her. two minor children, issue of their marriage, and that he was a veteran of World War II and as .such was taking flying instructions , under the G. I. Bill of Rights from the defendant, Collard, who operated an aviation school wherein he trained pilots, giving them a regular course of instructions with licensed instructors and under the supervision of the Civil Aeronautics Authority.

It is further alleged and admitted that the deceased had completed his dual training and had completed eleven hours of solo flight; that he had made only one cross-country flight prior to the fatal accident which was a dual flight with his instructor; that the accident in which the decedent was. killed occurred while he was returning on the homeward leg of his first solo flight which flight .was from Lake Charles, Louisiana, to Houston, Texas, and that the accident occurred at a .point south of Sulphur and about ten miles west of Lake Charles.

It is further alleged that the cause of the accident and resultant death of the decedent was due solely to the gross negligence and carelessness of the defendant and sets out the following specific acts of negligence :

(1) “In allowing decedent to take off for a different cross-country flight when to defendant’s knowledge, decedent did not have sufficient flying skill to make such a flight and when decedent especially lacked the skill with which to make an emergency landing in the event of an engine or structural failure.”

(2) “In allowing decedent to takeoff on a certain cross-country flight in an aircraft which was in poor mechanical condition so that engine trouble and failure were certain to occur during defendant’s extended flight.”

(3) “In allowing decedent to take off in the said aircraft which had not been given proper and timely engine and aircraft checks and inspections; and in the failure to make the required repairs and other maintenance measures to place the aircraft in proper flying condition.”

The defendant denies the above allegations and the case went to trial on the merits which resulted in the'judgment of the Trial Court dismissing plaintiff’s suit. Plaintiff appeals.

The Trial Judge found from the evidence that the above three specific acts of negligence were not supported by the evidence and that the evidence fell far short of convincing him with that degree of certainty requisite for-plaintiff to recover. We have made a very careful study of this record with particular attention to the evidence and we have come to, the conclusion that the Trial Judge ruled correctly. We will therefore not disturb his conclusions.

With respect to the first specific act of negligence alleged by plaintiff, the Trial Judge had this to say in substance, among other things, and we agree:

That the deceased was an apt pupil, that he had. flown one hour more than is required for a solo cross-country flight; that the cross-country flight from Lake Charles to Houston was not a difficult one; that there are highways and railroads and landing fields interspersed to assist the pilot in this-flight and that therefore this particular cross-country flight was not difficult and that the decedent did have sufficient flying skill and training to make the flight. Further, that the deceased had sufficient training in making emergency landings and in controlling his. plane during emergencies.

Coming to the second specific act of negligence alleged, the Trial Judge, in substance, came to. the conclusion that there was positive evdience to the effect that the particular plane flown by the deceased at the time of the accident had been flown- by the instructors immediately prior to the time that the. deceased started on his fatal flight; that these men had flown the airplane and that the plane was in good mechanical condition and it was the best plane among the ten which were owned and operated by the defendant Collard.

With respect to the third act of specific negligence alleged by plaintiff, the Trial Judge stated that it was not substantiated by the evidence in the case; that while it was true that the log. book did not show that the hundred-hour inspection had not been made, as required by CCA, that as. a matter of fact, while not noted in the log . book, the inspection was actually made and that the only negligence on the part of the defendant was not to the making of the inspection but merely making a notation of said inspection in the log book and that the failure of defendant to note such inspection in the log book did not amount to negligence; that the evidence conclusively proved that the inspection was made pri- or to the time the student pliot started his cross-country flight and that the hundred-hour inspection was completed and that the inspectors found the plane tó be in good, safe flying condition; the evidence further shows that the student pilot flew the plane from Lake Charles to' Houston and back from Houston to within ten miles of Lake Charles without having any recordéd trouble and that the plane was, therefore, in a good and safe flying condition at t-he time it was turned over to the student pilot. The Trial Judge further 'states that - the only.' evidence in this case which might be considered as showing that the accident was due in any wise to the failure of the aircraft or its engine is the testimony given by the witnesses who' were at or near the scene of the accident.- To' put this testimony in narrative form, the evidence shows that the plane' in which the- deceased was-' flying was coming from a westerly direction at a rather high altitude; that some of the witnesses testified approximately three thousand feet; that when the motor quit or was shut off the deceased descended to within a few feet of the ground; that when he was within a few feet of the ground he circled over the house of one of the witnesses ánd near to' another house, making at least three complete circles and passing so close to the house and so- close to the ground that one. of the witnesses crouched down .thinking that he was in danger of being hit by the plane; that while' the defendant'was circling in such a manner, the motor was popping or running intermittently ; that when he passed over and near the house for the last time, and in order to avoid an electric wire that was strung along a highway in front of the house, he evidently tried for altitude with his plane but because Of an- insufficient amount of speed or power, the plane went into a stall and nose-dived into the ground; and that the ignition was on and the throttle wide open after the accident.

It is strongly argued by counsel for plaintiff that the motor of the plane was not functioning properly and that the deceased was seeking a landing place which was the cause of his circling near to the houses and near the ground as has been described. The Trial Judge could not accept this theory and stated that the evidence conclusively showed that the deceased was not looking for a landing pláce, many of which were available in the immediate neighborhood of the accident, but was flying near to these houses in a playful attempt to disturb or terrify the occupants and that the accident resulted from his miscalculation of the power of the motor of the plane to pull him up and out of danger. He further'states that the plaintiff has failed to establish the negligence of the defendant in any degree whatsoever and .thus dismissed the suit. -

As heretofore stated we agree with the Trial Judge on his finding on the facts. Plaintiff has especially pleaded in Article 17 of his petition the application of the doctrine of res ipsa loquitur and in his árgument before,-this court has.made a very able presentation of that issue. That doctrine has no application in this case .for the reasons that the defendant did not have possession or control of the accident and because the defendant alone could not be expected to -have had knowledge as to the cause of the accident and that for the further reason that we have come to the conclusion that the accident might, have .occurred through the negligence o.f the deceased, Lejeune, in indulging in playful flying at a low altitude over the 'houses at the site of the accident.

In the case of Ross v. Tynes et al., 14 So.2d 80, which is an Orleans Court of Appeal case, the surviving widow brought suit for the death of her husband, who was killed while working on a sidewalk, when a double wheel of a passing truck came off and struck him.

The court in that case had occasion to define the doctrine of res ipsa loquitur, 14 So.2d at page 81 as follows:

“In other words, when an injury is caused by an instrumentality under the exclusive control of the defendant, as. in. this case, and it is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, there arises an inference or presumption of negligence.. Whether the evidence is such as to exonerate the defendants' remains to be seen.”

In one of the Coca Cola cases, towit (Piacun v. Louisiana Coca-Cola Bottling Co., et al.), another Court of Appeal case from Orleans, 33 So.2d 421, 423, wherein a coca cola bottle exploded in the hands of a cold drink merchant, and where he relied for recovery on the res ips.a loquitur doctrine, the court had this to say:

“The doctrine, where it is applicable,- is based on the theory that because the thing which causes the, accident is completely within the control of the defendant, or because the defendant alone can be expected to have knowledge as to the cause, the explanation must come from that defendant.”

At page 424 of this opinion this doctrine was further discussed in the following language:

“only conditionally, that is to say it has application only after the person to whom 'the bottles were delivered shows that between the time of the delivery and the time of the accident/ -the particular bottle involved was not ‘opened or tampered with or improperly handled.’ ”

The court found-that the defendant carefully handled and selected the bottles, etc., and that therefore there was no negligence shown, and accordingly, plaintiff’s demands were rejected.

In the case at bar., Lejeune, the pilot,, and not Collard, the owner of the plane, was in exclusive control of. the aircraft, and according to the evidence Lejeune had every opportunity during his. few minutes of “buzzing” to put the plane into a maneuver that would crash it.

In the case of Pittman v. Gulotta, another Orleans Court of Appeal case, 25 So.2d 343, 344, is relied on by 'both counsel for plaintiff and for the defendant in this case. Judge McCaleb was the organ of the court and at page 345 of this opinion he had this to say with respect to the application of the doctrine:

“We are unable to discern the applicability of the doctrine.here: Res ipsa loquitur (or the thing speaks for itself) pertains only to cases where the nature of the acci-den is such that it would ‘not ordinarily happen in the absence o'f fault. It has pertinence in matters where the instrumentality causing the damage explodes or otherwise fails to function properly and, in other instances, where, because of the peculiar facts involved and the relationship of the parties, the defendant and not the plaintiff is in better position to produce explanatory evidence in order to absolve himself from ah inference of fault. Neither one of these circumstances appear here — for the accident admittedly did not occur as result of a mechanical or electric failure of the fan and it is certain that plaintiff, whose finger came in contact with the fan, is in far better position to explain the accident than the defendant, who was not present and did not know anything about the occurrence until after it happened.”

We think that in our case here the pilot who was flying the air plane at low altitudes making turns, flying over houses, was in a better position to explain this accident than was the defendant Collard who was at his place of business in Lake Charles.

The doctrine of res ipsa loquitur has no application in this case because of the fact that the accident might have occurred through the negligence of the pilot, Le-Jeune.

This result is well recognized and stated in the case of Dunaway v. Maroun et al., La.App., 178 So. 710, 712.

“The rule will not be applied where the evidence discloses that the injury might have' occurred by reason of the concurrent negligence of two or more persons or causes, one of which was not under the management and control of the defendant.”

See also the case of Gerald et ux. v. Standard Oil Company of Louisiana, 1934, 204 La. 690, 16 So.2d 233, 237.

We are further of the opinion that the doctrine of res ipsa loquitur has no application in this case for the reason that it has been affirmatively shown by the evidence that the defendants were guilty of no- negligence. The case of Anderson v. London Guarantee and Accident Company, La.App., 36 So.2d 741, to-wit:

“An essential element in the application of the doctrine of res ipsa loquitur is a showing that a defendant failed to use proper care as to the instrumentality under his control.” 36 So.2d page 745.
* * * * * *

“It is too well established to admit of argument that even under the doctrine of res ipsa loquitur there must be a showing of some negligence, either active or passive, on the part of the defendant. This is to say that it is not sufficient simply because an agency or instrumentality under the control of a defendant causes injury, liability on the part of such defendant is necessarily implied. There must be a showing that the accident is of a nature which does not ordinarily occur where due care is exercised (Schon v. James [La.App., 28 So.2d 531] and Watkins v. Gulf Refining Co. [206 La. 942, 20 So.2d 273], supra), and, further there must be a showing either of some act of negligence or of the omission of some precaution which constituted an actionable want of care. Our jurisprudence is replete with cases which clearly define the degree of care required of an actor, from some of which we cite extracts as follows:

“ ‘It is incumbent upon plaintiff, in order to recover, to show some negligence on the part of the defendants * * ” Woodley v. Service Cab Co. et al., La.App., 159 So. 124, 125.

Plaintiff, however, is vigorous in the presentation of the application of the doctrine of res ipsa loquitur in this case. He points out that the defendants admit in answer to plaintiff’s allegation that the aircraft was under the exclusive care and maintenance of defendant and his employees, and that at no time did decedent ever engage in the repair, care or maintenance of the said aircraft, and that defendants further admit that the said aircraft and its engine have been maintained and repaired exclusively by its owner and its employees.

He further points out that in this case, in view of the above admissions, the plaintiff was therefore in no position to show the precise reason or cause of the engine’s failure. He then goes on to argue that under the general well' established principles the doctrine of res ipsa loquitur peculiarly and forcefully applies to the present case. He cites the case of Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233 and quote's from the syllabus which in effect states that where the plaintiff cannot be expected to have any information as to the cause of accident, while on the other hand the defendant must be assumed to be fully informed on the subject, and accident is of the kind which ordinarily do not occur when due care is exercised, rule of evidence is that the accident speaks -for itself and that a presumption of negligence arises from the fact of the accident. He then calls to our attention the language used by Judge McCaleb set forth in Pittman v. Gu-lotta case supra wherein it was stated that the doctrine pertains only to- cases where the nature of the accident- were such that it would not ordinarily happen in the absence of fault; further that it has pertinence where -the instrumentality causing the damage explodes or otherwise fails to function properly and that because of the peculiar facts involved-and the relationship of the parties, the- defendant and not the plaintiff is in a better position to produce explanatory evidence in order to absolve himself from an inference of fault.

Along the same line of thought he cites and quotes from Schon v. James, La.App., 28 So.2d 531.

We do not find fault with the law called to- our attention hereinabove by able counsel but in view of the facts in this case we do not believe that they are applicable here. We have already found that the accident was not caused by any negligence of the defendants and that to the contrary the aircraft was in good condition up to the time when the accident occurred. The air plane and the resultant unfortunate accident was under the control and knowledge of the plaintiff and not the defendant.

The judgment of the District Court is affirmed. Costs to be paid by plaintiff-appellant.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    REID et ux. v. MONTICELLO et al.
    No. 3211.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Porteous & Johnson, New Orleans, for appellants.
    Bass & Brame, Lake- Charles, for ap-pellees.
   DORE, Judge.

This is the second occasion this case is-before this Court. On the first occasion, a judgment had been rendered in favor of Mr. and Mrs. Kinney E. Reid and against Frank Monticello and Car & General Insurance' Company, in solido, with no- disposition of the suit as -against the Hardware Indemnity Insurance Company of Minnesota, another defendant, although in-his written reasons for judgment, the trial-judge stated that this company should be-released under its special defense of failure t5 give timely notice. Thereafter, the-trial judge, at the request of counsel for Hardware Indemnity Insurance Company, rendered a judgment, termed a supplemental judgment, in which he dismissed plaintiffs’ suit -as to it. Monticello and the .Car & General Insurance Company not only appealed, from the judgment in favor of the plaintiffs, but also appealed from the so-called supplemental judgment, relieving the Hardware Indemnity . Insurance Company of liability. Plain,tiffs answered the appeal, limiting their answer to.a demand for an increase .in the amount of the judgment to the sum originally prayed for. The Hardware Indemnity Insurance Company filed -a motion to dismiss the appeal as to it, based on the proposition that as between coappel-lees,, the judgment o,f the trial court could not be changed. We maintained the motion to dismiss the appeal in so far as Hardware Indemnity Insurance Company is concerned. We further affirmed the judgment of the lower court of the plaintiffs against Monticello and Car & General Insurance Company with the exception of slightly reducing the amounts thereof. For full particulars -régarding the pleádings, the facts found by us, and the opinion rendered, see 33 So.2d 760.

After rehearing was refused by 'this court, Monticello and Car & General Insurance Company applied to the Supreme Court for a writ of certiorari, which writ was granted, restricted however to a review of our ruling maintaining -the motion filed by the defendant Hardware Indemnity- Insurance Company. The Supreme Court reversed this court and overruled the motion of the Hardware Indemnity Insurance Company, maintained the appeal as to it, and remanded the case to us for a review of the lower court’s judgment, dismissing the suit as to this -company. See 215 La. 444, 40 So.2d 814.

The only question now presented is whether or not the trial court was correct in dismissing the suit as to the Hardware Indemnity Insurance -Company because of some seven months’ late notice of the accident. ....

The facts -pertaining to the question are: Frank Monticello, the main defendant, operated a super-market in,Lake Charles. Oji January. 22, 1946, Mrs. Kinney E. Reid, one of the plaintiffs, sustained an accident while shopping in the super-market of Monticello. Monticello had á public liability insurance policy with Car & General Insurance Company. He gave prompt notice to his insurer of the accident allegedly sustained by Mrs. Reid. Car' & General Insurance Company made a prompt and thorough investigation of the accident and denied liability to t-he plaintiffs. The plaintiffs then filed suit on June 5, 1946 against Monticello and his insurer, Car & General Insurance Company, for damages allegedly sustained by them as a result of the accident.

On August 27, 1946, some seven months after the accident, a field representative of Hardware Indemnity Insurance Company was in Monticello’s store, and Monticello, 'by way of -conversation, mentioned to said representative Mrs. Reid’s accident and that suit had been -filed against him, whereupon the representative informed Monticello that he, the representative, was sure that Monticello had an insurance policy with his company covering stich accident. Monticello was surprised to learn that he had two insurance policies covering such an accident. The representative then returned to his office in -Crowley, and after checking his records, notified Monticello that he had a liability policy covering such an accident and t-hen reported the accident to his company’s investigation department. Thereafter, an adjuster of the Hardware Indemnity Insurance Company contacted Mr. Monticello and informed him that the said Hardware Indemnity Insurance Company would proceed to investigate the accident -and defend the suit under reservation of all of its rights under the- policy due to failure of Mr. Monticello to give the company prompt notice. Subsequently, a non-waiver agreement was obtained from Mon-ti-cello by the company.

As soon as the Hardware Indemnity Insurance Company became interested in the case, Car &. General Insurance Company, through its representative, made available to Hardware Indemnity Insurance Company, its entire file and explained to the representative of the Hardware Indemnity Company the nature of the claim and explained all of the facts developed as a result of the investigation.

It may be proper at this time to note that the investigator of Car & General did not, at first, take written statements from Mrs. Reid, Monticello or the other witnesses. However, on September 12, 1946, almost eight months after the occurrence of the accident, he did obtain written statements from Monticello and two of his employees. He was unable to obtain a statement from Mrs. Reid on account of her refusing to sign such a statement. He also failed to 'have Mrs. Reid examined by a physician until November, 1946.

The plaintiffs, upon being informed that Monticello had an insurance policy with the Hardware Indemnity Insurance Company covering such an accident as sustained by Mrs. Reid, by supplemental and amended petition filed on January 21, 1947, almost a year from the day of the accident and almost five months after the Hardware Indemnity Insurance Company had had notice of the said accident, made the Hardware Indemnity Insurance Company a party defendant to their suit.

The pertinent provisions of the policy of insurance in question are as follows: “Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and available witnesses.”

The law governing the rights of the injured party under a policy of this kind is Act No. 55 of 1930, § 2, amending Act No. 253-of 1918, which reads as follows: “Section 1. That * * *. Provided further-that the injured person or his or her heirs, at'their option, shall have a right of direct action against the insurer company within. the terms, and limits of the policy * * *, and . said, action 'may be brought either against the insurer company alone or against the assured and the insurer company, jointly and in solido.”

The question before us is: Is an insurer released from liability for damages arising from an accident involving’'its assured, by-reason of the insured’s delay of some seven months in giving notice of the accident to the insurer, within the terms and provisions of the policy of insurance requiring such notice “as soon as practicable”?

The jurisprudence of this state with reference 'to the effect of delayed notice in a case of this kind is- somewhat confusing. We have had the question presented to this court in two cases, namely: Duncan v. Pedare, 161 So. 221; Duncan v. Pedarre, 164 So. 498 and Jackson v. State Farm Mutual Automobile Ins. Co., 23 So.2d 765.

In the Pedare case, in our first decision, 161 So. 221, we held that a delay in the giving of notice of eight months and seven days did not preclude insurer’s liability to a guest where the guest gave notice of injury twenty-six days after he was aware of the extent of his injury and the assured gave insurer notice' two days thereafter. On rehearing, 164 So. 498, we reversed our former decree, by a divided court, and held that the notice, was not timely given, and principally for the reason that both Duncan and Pedare.knew that the accident had happened, Duncan exclaiming at the time of the accident, that his back was broken, and apparently Duncan was suffering seriously with the injury thus received. The writer of this opinion dissented principally for the reason that Pedare, the assured, was not fully informed of the fact that the accident had caused a loss covered by the policy and the extent of the injury; that as soon as he was informed of the extent of the injury and a claim for damages made upon him, Pedare gave notice to the insurer. It is to be noted, however, that our former decree in this case was reversed principally -because the majority of this court found that Pedare was not negligent, and on which finding the writer of this opinion also dissented. The Supreme Court did not grant a writ in the case evidently on their 'finding' that a question of facts was presented, that is, the negligence of Pedare.

In the Jackson v. State Farm Mut. Automobile Ins. Co. case, 23 So.2d 765, we held, by a divided court, that a delay in the giving of notice of .eighty-two (82) days after the occurrence of the accident precluded recovery by the plaintiffs against the insurer of the assured. In that .case, we- reviewed all the cases bearing upon the question.

However, the Supreme Court-granted a writ of certiorari to review our holding, and the Supreme Court reversed this court and held that the delay of eighty-two (82) days in giving the notice of the accident by the assurer to the insurer did not relieve the insurer of liability to the party injured. See 211 La. 19, 29 So.2d 177. Incidentally, this seems to be the last case decided by the Supreme Court on the subject matter.

In the Jackson-State Farm case, 29 So.2d 177, 179, the Supreme Court has unequivocally handed down a rule for our future guidance in solving this question, viz.: “Each case involving delayed notices must stand upon its own facts and circumstances. The Court may consider in balancing the equities, not only the time intervening between the accident and the date of notice to the insured, and whether or not the claim, is a direct one by the injured persons, under Act 55 of 1930, but also when, the parties first discovered that substantial injury had been done or that a claim would be made'; the time when the injured party discovered that insurance existed and knew the identity of the insurer; what prejudice to the insurance company’s defense has been caused by the delay; the good faith of the insured and injured party; and the existence of any special circtvmstances, especially those indicating fraud or collusion (Italics ours.)

Considering this case in the light of this rule, with particular emphasis on the italicized portion of this rule, we find that' the delay of seven months in the giving of notice of the accident by Monticello to the defendant Hardware Indemnity Insurance Company should not relieve the said insurer of liability to the plaintiffs and should be held in solido with Monticello and Car & General Insurance Company for the following reasons: Monticello did not realize that he had insurance with Hardware Indemnity Insurance Company at the time of the accident. He had coverage with Car & General Insurance Company to the amount of Five Thousand ($5,000.00) Dollars and Ten Thousand ($10,000.00) Dollars. Plaintiffs were claiming Ten Thousand, Seven Hundred Fifty ($10,750.00) Dollars and Fifteen Hundred ($1500.00) Dollars as damages. It was to his advantage to give notice to Hardware Indemnity Insurance Company had he known that he had coverage with them. He gave Hardware Indemnity Insurance Co. notice of the accident as soon as he knew that he had coverage with the company. He was in perfect good faith in his delay.

Furthermore, we cannot find wherein Hardware Indemnity Insurance Company was prejudiced in its defense. It is true that the suit 'had been filed against Monticello and Car & General Insurance Company. However, as soon as Monticello found out that he had coverage with Hardware Indemnity Insurance Company, he and Car & General Insurance Company cooperated in every way with Plardware Indemnity Insurance Company in the defense of the suit. Hardware Indemnity Insurance Company was given the full benefit; .of the investigation done by Car & General Insurance Company. The only complaint Which we can gather from the record and the brief of Hardware Indemnity Insurance Company is that the representative of Car & General Insurance Company failed to obtain written statements from Mrs. Reid, Monticello and his two employees. Upon being so informed, the representative obtained written statements from Mr. Monticello and his employees. Mrs. Reid refused to give a written statement. It is not shown that the Hardware Indemnity Insurance Company representative could have done any better. Furthermore, the Hardware Indemnity Insurance Company was not made a party to the suit until some five months after notice had been given to it. It had ample opportunity to make its own investigation and very probably did so. The case was well defended. Suffice it to say, there was no substantial prejudice to Hardware Indemnity Insurance Company.

For these reasons, the supplemental judgment appealed from, dismissing Hardware Indemnity Insurance Company as a defendant, is reversed and set aside, and it is now ordered that our former decree be and the same is hereby amended by casting the defendant Hardware Indemnity Insurance Company of Minnesota in solido with the defendants Frank Monticello and Car & General Insurance Company, Ltd., and as thus amended, it is made the final judgment of this Court.

J. CLEVELAND FRUGE, J., sitting ad hoc.


text:
    LAMBERT v. McKINSTER et al.
    No. 3208.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Bass & Brame, Lake Charles, for appellant.
    Plauche & Plauche, Lake Charles, for appellees.
   DORE, Judge.

This is a suit ‘to recover from H. D. McKinster and ' his wife, individually and in solido, the sum of $36,875 for personal injuries and property damages sustained by the plaintiff, Samuel Webb Lambert, in a collision between his 1938 two-door Ford automobile, which he was driving, and the 1939 Oldsmobile of the defendants, which was being driven by Mrs. McKinster alone. The collision occurred at the intersection of Broad Street, which runs East and West, and Kirkman Street, which runs North and South, on the morning of September 23, 1945, at about 8:30 o’clock. The plaintiff alleges that the accident was caused entirely through the negligence and carelessness of the defendant, Mrs. McKin-stér, particularly in entering the intersection while traveling East on Broad on a red traffic light, and thereby running broadside into the left middle of plaintiff’s Ford automobile.

The demand against the defendant, H. D. McKinster, is based upon the proposition that Mrs. McKinster at the time of the accident was driving the automobile belonging to the community, with the expressed or implied consent of her husband, on an errand or mission with which the community was concerned, and, therefore, was acting as an agent of the community, and that the husband, as head and master of the community, is liable for the tort committed by his wife while so operating the car.

The defendants answered, denying that Mrs. McKinster was guilty of any negligence and averring positively that the accident was caused solely by gross negligence of plaintiff Samuel Webb Lambert, particularly in entering the intersection while the light was red for him, and assuming the position of plaintiffs in recon-vention, Mr. McKinster claims damages to the automobile and for the medical and doctor’s bills of his wife resulting from the accident, and Mrs. McKinster claims damages for her personal injuries.

Defendants further allege that Mrs. Mc-Kinster was on a mission purely and entirely of her own, and that, therefore, defendant H. D. McKinster cannot be held liable.'

In the alternative, the defendants plead contributory “ negligence on the part of plaintiff, barring his recovery.

After the trial of the case, the Lower Court, for written reasons assigned, rendered judgment in favor of plaintiff and against the defendant, Mrs. “Jimmie” Mc-Kinster, for the sum of $1,968, and rejected the demand against H. D. McKinster, her husband, as well as the reconventional demand of Mr. and Mrs. McKinster. Plaintiff has • appealed, praying that the judgment be amended so as to impose liability on Mr. McKinster as well as on Mrs. McKinster, and the quantum should be increased by some $4,000. The defendant, Mrs. “Jimmie” M. McKinster, has answered the appeal, praying that the judgment against her should be reversed and set aside and that the plaintiff should be condemned to pay all costs.

There are three main questions to be considered in this case. First, was Mrs. Mc-Kinster guilty of negligence which was the sole cause of the accident, as found by the trial judge? Second, if that be true, was she at the time of the accident, on a mission of her own, or was she on a mission on behalf of the community? Third, if the conclusions of the trial judge are correct with reference to liability, did he correctly assess the quantum of damage, or should it be increased as prayed for by the plaintiff? It may be noted that the defendant in his brief does not complain of the quantum, but on the contrary, insists that it is very fair if liability against the defendant or defendants be found.

These three questions are purely questions of fact. As to the cause of the accident, the large preponderance of the evidence shows that the sole and only cause was the failure of Mrs. McKinster to keep a proper lookout and entering the intersection on a red light after it had been preempted by plaintiff Lambert, who had entered the intersection properly on a green light. It is clearly shown that defendant Mrs. McKinster struck the automobile of plaintiff Lambert on the left side thereof, in the center, a very strong blow, as shown by the pictures of the car. Lambert was traveling North and she was traveling East, and the collision occurred slightly South of the North center line of Broad Street, and East of the center line of Kirkman Street, and after the collision, the Lambert car was facing Northwest and the McKinster car continued some ten feet towards the Southeast.

Mrs. McKinster testified that she was watching the light and that within about a half block therefrom, noticing that it was red, she slowed down, and as she approached the intersection, seeing that it was green, she proceeded to accelerate her motor and continuing. We believe that she made a mistake, probably due to the fact that traveling East at 8:30 in the morning on a bright sunshiny day, she was blinded and could not really tell whether the light was green or red. We are borne out in that belief by the testimony of witness Edward M. Ball, who arrived at the scene immediately after the accident, and who states that due to the sun, he was unable to see the light except by coming to a full stop and shading his eyes. Moreover, there is the testimony of the plaintiff and his wife, denied by Mrs. McKinster, however, to the effect that she made the admission to them while discussing the collision some days after its occurrence, that she really did not definitely know whether the light was green or red on account of facing the sun. The only corroboration of defendant’s theory that she entered the intersection while the light was green for her, is the testimony by deposition of W. T. Rayford, who states that at the time of the collision he was parked at Kirkman and Broad Streets on the North side of Broad and the West side of Kirkman, waiting to turn to the East on Broad; that his reason for being stopped was to wait for the light •to turn from red to green. In other words, according to his testimony, the light was green for Mrs. McKinster at that time and red for plaintiff. He claims that he was parked in a LaSalle automobile, and at the time he made no statement to any one and did not give his name as a witness, and there is no showing of any kind of his having actually been at the scene. On the other hand, we have the testimony of Mr. Tor-bert Slack, a landscape architect for the State Highway Department, and a resident of Lake Charles since 1920, to the effect that he was parked or approaching the intersection at the spot where Rayford claims to have been, and that there was no other car present there, and that as he approached the intersection, the light turned from red to green for him, and just prior thereto, he had seen Mrs. McKinster approaching from the West, traveling East on Broad. His testimony flatly contradicts that of Ray-ford and there is no question that Mr. Slack was at the scene. There is some other corroboration with reference to the .light by a taxi driver, and we believe that the trial judge was correct in his conclusion with reference to the light, that plaintiff entered the intersection on a green light, whereas, defendant, Mrs. McKinster, entered it on a red light, is well established by the “credible” ’testimony. There is no showing that plaintiff Lambert was in any way negligent and we must believe that he entered the intersection cautiously and in no way could have avoided being run into by Mrs. McKinster. He could not very well anticipate that she would violate the traffic light. We therefore conclude that the sole cause of the accident was the negligent driving of Mrs. McKinster.

With reference to the second question as to whether or not she was on a mission for the community, we do not feel that it is necessary to indulge in a long discussion of the testimony on that score. The trial judge believed the testimony of the defendants, and we see no reason for not doing the same. The fact as established by their testimony is that on the morning of the accident, at about 6:30, Mrs. Mc-Kinster listened to a sermon by a minister in the City of Beaumont, and after the sermon, upon hearing the announcement that the same minister, whom she admired greatly, would speak at a certain place in Beaumont at 10 o’clock that morning, she suggested to her husband that they drive over there to listen to him. He was not disposed to do so, and as a result, they had a discussion, and in the meantime, he de.cided to go to the rest room. They were living in a trailer camp and the rest room was in the main building, some one hundred yards away from their camp. The husband went there to take a bath, shave, change clothes, and while he was gone, being somewhat upset because he had not agreed to take the Beaumont trip, she got in the car and drove to town, she says, to regain her composure and think the matter over. She finally parked, on Ryan Street near Broad, and went into Walgreen’s Drug Store, purchasing cosmetics, and thereafter did some “windowshopping”, and finally decided to return to the camp', and she was on her way back when the collision occurred.

The Supreme Court in the case of Adams v. Golson et al., 187 La. 363, 174 So. 876, 879, stated: “It is our opinion, therefore, that in order to hold the husband liable as head and master of the community for torts committed by his wife within the meaning and contemplation of the provisions of article 2986 of the Revised Civil Code, it would have to be shown affirmatively that she was expressly or impliedly authorized to and was, at the time of the commission of the act, actually attending to the affairs or business of the community.”

We reach the same opinion in the case at bar.

With reference to the quantum of damages, the third question involved, there is no question that the item of $375 for'the automobile was properly proved, as well as the item of $93 for the doctors and hospital bills. The only questionable item is that of $1,500 for pain, suffering and loss of earnings, all of which are lumped in that one item. Apparently the trial judge approximated the loss of earnings at the sum of $500 and granted an additional $1,000 for the pain and suffering. On the question of loss of earnings, it was shown that the accident happened on September 23, 1945 and that thereafter, the plaintiff was unemployed until about October 17th. He then continued to work until some time in May, 1946, at which time he began to have trouble with his heart and with his teeth, and stopped his work at the' trailer camp where he was employed. On or about January 1, 1947, he went back to the camp and continued to work there until it was closed. Meanwhile, it appears that he engaged in carpentry work here and there, although he claimed that he was unable, and is still unable t'o do' any hard work, and in that respect, is corroborated by his brothers and other 'witnesses. It is pretty difficult to' determine accurately exactly what his loss of wages amounts to, based on this evidence. It is true that his salary at the trailer camp was $200 per month, but aside from that job, the evidence is not clear as to what his earnings are or were after the accident. On the question of personal injuries, it is shown that he was treated first by Dr. Goldsmith, and that no serious objective symptoms were found by this doctor and he was released after a very short treatment. Right at the time of the accident there is considerable evidence to the effect that he spat up blood and the implication that the blood came from an internal injury. There is no doubt that the plaintiff was struck rather severely on his chest as a result of the collision; that is, he struck his chest on the windshield and on the front panel of his car when his car was struck by Mrs. McKinster.

After the first treatment by Dr. Goldsmith and hospitalization for some two days, he stayed at his sister’s home for approximately a week or longer, and she claims that for several days he continued to spit up blood. Later, after he had worked at the camp again, he complained of being in a nervous condition (nervous heart), and was thereafter treated by Dr. DiGiglia, who attributes his condition possibly to the accident. His testimony on that score is somewhat vague. About the only conclusion we can reach is that the plaintiff was severely jolted in this collision, and undoubtedly suffered considerable pain, but the fact remains that there is no positive showing of any permanent injury. X-rays failed to reveal any broken bones or injured tissue.

Under the circumstances, we can find no error in the trial judge’s estimating the personal injuries and loss of time in the sum of $1,500; the two, as a matter of fact, go more or less, hand in hand. As stated before, the defendants do not complain' of the amount of the award. As far as increasing the award, besides the fact that the evidence is vague as to the amount of injury and pain sustained, as well as to the amount of time lost from work, we have the principle' of law that the ability of the defendant to pay must also be considered. -Bearing that'principle in mind, and the fact that Mrs. McKinster has no separate estate, and her husband, an insurance salesman, appears to make only a living, together with the actual facts of injury, loss of time, and damage, we are of the opinion that the award is ample.

For these reasons, the judgment appealed from is affirmed.

J. CLEVELAND FRUGE, J., sitting ad hoc.


author: FRUGE, Judge ad hoc.

text:
    CRYER v. CRYER.
    No. 3197.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    J. S. Pickett, Many, for appellant.
    Kay & Kay, DeRidder, for appellee.
   FRUGE, Judge ad hoc.

The plaintiff, John P. Cryer, instituted action against the defendant; alleging that he was the owner of certain lands in the Parish of Vernon, La., and that the defendant was cutting- a right of way and constructing a fence so as to enclose a portion of his property. He alleged that because of defendant’s conduct he would suffer irreparable loss and damage and prayed in his petition that the judge issue a temporary restraining order restraining said defendant from entering upon and trespassing upon his property and from constructing a fence. He further prayed for a rule to be fixed by the Court and that the defendant show cause why a preliminary writ of injunction enjoining and prohibiting said defendant from going upon plaintiff’s property and constructing a fence on said property. The Court issued the temporary restraining order upon the plaintiff furnishing bond in the sum of $500 and further ordered the defendant to show cause on the 8th day of August, 1949, why a writ of injunction should not issue.

On the 6th day of August, 1949, plaintiff moved by written motion that the temporary restraining order be continued and extended for an additional period of ten days for the reason that the Court reporter would not be available on August 8, 1949. The Court continued the restraining order for a period of ten days from August 8, 1949. Thereafter on August 17, 1949, another written motion was filed by plaintiff asking for a continuance of the temporary restraining order and that a rule nisi be fixed by the Honorable Court for a hearing on the writ of injunction. The Court again extended the temporary restraining order for ten days but did not fix a date for the rule. Then again on the 29th day of August the plaintiff moved for a continuance of the restraining order and again it was extended for a period of ten days from the 28th day of August but no rule was fixed for tire defendant to show cause why a writ of injunction should not issue.

Thereafter defendant moved to dissolve the temporary restraining order, alleging the following:

1.That the bond filed by plaintiff was null and void in that it was signed by plaintiff’s attorney who was not specially authorized to and had no authority to sign bond for his client.

2. That the order extending the temporary restraining order from the 8th day of August, 1949, for ten days was not a true copy of the original order, nor was there any date fixed for the hearing, nor service made on the defendant of the extended order as the law requires.

3. That the remaining orders extending the temporary restraining order failed to fix a date for a hearing nor was there any service made on the defendant as the law requires and are illegal and unwarranted in the law.

The defendant also alleged in the alternative and the Court quotes the remaining part of Article 6 of defendant’s motion to dissolve, “ * * * only in the event that this Honorable Court should hold that such temporary restraining order could be legally extended beyond August 18, 1949, then in such event the said temporary restraining order is defective and illegal in the following respects, to wit:

“a. That said temporary restraining order does not disclose what the immediate and irreparable loss or damage that plaintiff alleges he will suffer if such temporary restraining order is not issued.
“b. Petitioner does not set forth that the threatened injury which he claims could not be compensated in money, together with the reasons therefor.”

Defendant in his motion to dissolve also alleged that it was necessary to employ counsel and that he was entitled to the sum of $500 to cover attorney’s fees upon the dissolution of the temporary restraining order.

Upon defendant’s motion the Court ordered the plaintiff to show cause on the 19th day of September, 1949, why the temporary restraining order should not be dissolved and set aside.

Thereafter on the 19th day of September, 1949, plaintiff, John P. Cryer, filed an exception of no cause of action alleging that the defendant, J. W. Cryer in his motion to dissolve the temporary restraining order proceeded by rule to obtain a money judgment. On the same date the plaintiff moved that his suit be dismissed at his cost, as of non-suit and the same was dismissed as non-suit on that date by the Court. The exception was tried on the 18th day of October, 1949, and on the 20th day of October, 1949, the lower Court entered judgment sustaining the exception to dismiss the rule to dissolve the temporary restraining order, reserving to plaintiff in said rule the right to sue for whatever damages- he might have sustained on account of the issuance of the temporary restraining order. The only question for this Court’s determination is whether or not the judgment sustaining the exception of no cause or right of action to the rule to dissolve the temporary restraining order was properly sustained.

This Court is of the opinion that the exception of no cause of action is an exception to the method of procedure and not really an exception to no cause of action. It is merely an objection to the method of procedure, that is, an objection to the plaintiff in rule seeking damages in á summary proceeding. It is true that a money judgment cannot be recovered by a summary proceeding if objected to by the defendant as Article 754 and Article 755 of the Louisiana Code of Practice sets out the only instances in which summary process may be availed. McMahon, in his second volume on Louisiana Practice at pages 1738 through 1739 further sets forth the instances and the authorities in which summary process may be availed. However, as stated before, the objection is an objection to the procedure and a proper ruling to such an objection is not to allow the plaintiff in rule to introduce any evidence as to damages but to limit his evidence to his motion to dissolve the temporary restraining order.

In the case of Younger Bros., Inc., v. Spell, 1939, 194 La. 16, 193 So. 354, 356, Chief Justice O’Niell stated: “The appellant’s exception to the method of procedure, however, is not really an exception of no cause of action. An exception of no cause of action, properly so called, may be filed at any stage of the suit. But the exception filed by the appellant in this instance is merely an objection to the method of procedure by which the defendant obtained judgment on his reconven-tional demand for damages. Such an objection is- waived if the party proceeded against by summary procedure submits without objection to the method of procedure.

Usually the party who is seeking to dissolve a temporary restraining order or injunction does seek damages in his motion but the Court, when rendering its decision on the motion, merely reserves the right to plaintiff to recover damages- for the wrongful issuance of the injunction or restraining order, Albert Pick and Co. v. Stringer, 171 La. 131, 129 So. 731.

As said before a motion to dissolve a conservatory writ is a summary proceeding and a claim for damages such as defendant’s claim in his motion to dissolve, in this case, is one which might be asserted ordinary by the ordinary proceeding and not by the summary proceeding when objected to by defendant but the motion to dissolve should not be dismissed. The objection should be sustained, limiting to the plaintiff in his motion to dissolve evidence pertaining to the dissolving feature of the restraining order and not evidence pertaining to damages suffered by plaintiff.

We see in this case that the plaintiff in the original proceeding, on the same day that he filed his exception of no cause or right of action to the rule to dissolve, dismissed his suit as non-suit. The right of plaintiff to discontinue his suit any time before judgment is rendered on his demand is an absolute right provided for by Louisiana Code of Practice, Articles 491, 492.

It might be said then that after the dismissal of the suit the motion to dissolve is a moot question for there is nothing to dissolve. However, plaintiff in his rule to dissolve should have his day in court because if the temporary restraining order was illegally or unlawfully issued then he -could, in a separate proceeding, sue for damages that lie might have sustained on account of the unlawful issuance of the restraining order.

Plaintiff in rule submits that the judgment sustaining the no cause or right of action should be reversed and set aside, and that there be judgment sustaining the rule and dissolving the temporary restraining order as having been wrongfully issued with right reserved to defendant to sue for whatever damages he might have sustained on account thereof. This Court cannot pass on the motion to dissolve because the question of whether the temporary restraining order issued unlawfully was not considered in the District Court.

For the reasons assigned it is ordered that judgment be reversed and remanded for further proceedings not inconsistent with the views herein expressed, and that the cost of this appeal be borne by ap-pellee. All other costs to await final judgment.

Remanded.


author: PONDER, Justice. HAMITER, Justice

text:
    216 La. 655
    J. B. BEAIRD CO., Inc. v. BURRIS BROS., Limited.
    No. 39035.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Carter & Erwin, Franklinton, for defendant-appellant.
    Melvin F. Johnson, Shreveport, for plainT tiff-appellee.
   PONDER, Justice.

J. B. Beaird Company, Incorporated, brought Suit -against Burris Brothers, Limited seeking to recover $2,109.59 with 5% interest' from July 31, 1945 until páid for the balance due on the purchase 'price of a Beaird Challenger Dehydrator. In answer to the suit the defendant alleges that the machine has failed to dehydrate potatoes in the quantity guaranteed by the plaintiff. The defendant reconvened asking for the rescission of the sale and in the alternative for a reduction in the purchase price. The plaintiff interposed a plea of prescription of one year to the defendant’s reconventional demands under the provisions of Article 2534, Revised Civil Code. On trial of the case the lower court gave judgment in favor of the plaintiff and the defendant -has appealed.

It was conceded in the argument on this appeal that the defendant has sold the machine. Since the defendant is not in position to return the machine, the demand for the rescission of the sale passes out of the case. Consequently, the only'questions are whether or not the defendant is entitled to a reduction in the amount of the purchase price " and whether or not the plea of prescription'is applicable.

It appears from the evidence that Milton Laporte, an agent and representative of the plaintiff, contacted J. M. Burris, president of the defendant corporation, with the view of selling the defendant a dehydrator. Burris and Lubye Green testified that La-porte represented to them that the machine would produce 600 pounds of dehydrated potatoes per hour and at that time Burris gave Laporte an order for the purchase of the machine. Laporte was not called as a witness and this testimony has not been contradicted. Burris testified that he relied upon these representations when he purchased the machine; that-the plaintiff assisted in installing the machine; that Fuller, a representative of the plaintiff, supervised the unloading and setting up of the machine; that the final adjustment was made by Rickerson, another representative of the plaintiff; that Rickerson ran the machine for about four days without success; that Rickerson told him, after he had failed to make the machine operate, that he could not understand it and did not know what the trouble was; that the production at the time Rickerson was there was so small they never checked it; that Rickerson remained in Franklinton about ten days and the plaintiff at his request sent three other representatives to assist; that the three representatives were Laporte, an engineer and another person whose name he could not remember; that he had continuous trouble with the machine the entire season of the year 1945; that he kept tests of the output and that the machine turned out an average of 451 pounds per hour of dehydrated potatoes for that season; that at such rate the machine could not be operated at a profit; that Edward F. Nield, Jr. and J. B. Beaird came to Franklinton on November 1, 1945 at his request; that Paul H. Allen, a representative of the plaintiff, called on him sometime in the middle of the summer pf 1946; that eight of the representatives of the plaintiff came to Franklinton to observe the machine in operation during that period of time; that he secured the services of a Mr. Vessier, a machinist, in order to step up the production of the machine which resulted in no success; that he had a couple of other engineers, John Green and Howard Barrlow to watch the machine in operation and see if anything could be done to step up the production; that these engineers could not do anything to step up the production; that he and his employees have done everything within their power to step up the production; that the greatest production that he has been able to obtain from the machine was during a two week period of the season of 1947 when the machine turned out 475 or 478 pounds of dehydrated potatoes' per hour; that if he was not badly mistaken Neild told him at the time he observed the machine in Shreveport that it would produce 600 pounds of potatoes per hour.

Mr. Green testified that he was present when Laporte stated to Burris that the machine would produce 600 pounds per hour and that he knew that Burris would not be interested in the machine if’it did not produce that much. He stated that he was considering going into the venture with Burris at that time and that it was on the personal guarantee of Laporte that the machine would produce 600 pounds per hour that induced Burris to buy the machine.

Robert McKelvin, who operated the machine for the defendant, corroborates Burris’ testimony as to the output of the machine.

Neild, vice-president of plaintiff corporation, testified, on behalf of the plaintiff, that he was present when Burris observed the machine in Shreveport and told Burris that the machine was designed originally to take-thirty bushels of raw potatoes; that the-tests being conducted showed that it would, equal or exceed that capacity and that he felt sure the machine would be good for 600' pounds per hour; that Laporte was a salesman for the plaintiff with only authority to bring the customer in contact with the plaintiff; that Laporte did not work directly for him but there was no reason to believe he was not confined within those limits ; that at the time he came to Franklinton the defendant was getting 480 pounds per-hour of dehydrated potatoes from the machine; that he and Beaird came to Frank-linton at Burris’ invitation to find out what, was going on; that on that occasion, in-November 1945, they suggested to stop the.-machine in order to make some adjustments ■on the burner and were told that there was no need to stop it because it would stop anyhow; that they made adjustments of the fan and allowed the machine to cool down and tightened the chain belt; that after the machine operated for several minutes the output was weighed showing that it was producing 600 pounds per hour; that during the conversation at the end of that day they assured Burris that it was their intention to make the machine comparable with later machines; that they sent two of their men to Franklinton to accomplish this; that the two men remained in Franklinton about one week installing a larger fan, a larger exhaust duct and made other mechanical modifications; that the reason Burris called him was because he was not satisfied with the production of the machine and getting less production than he thought he should. On cross-examination Neild testified that a machine subsequently built produced 733 pounds per hour; that it was the same model wherein the mechanical defects found in the Burris machine had been excluded; that he did tell Burris, prior to the purchase -of the machine, that it was doing better than the designed basis and he felt sure the production of 600 pounds could be expected ; that he did not consider it to be operating at normal capacity; that the machine Burris purchased was the first one that was placed on the market; that since that time various improvements have been made. This witness admits that Burris was dissatisfied with the machine.

Allen testified on behalf of the plaintiff that Burris tried to get him to condemn the machine so he could buy another; that he operated the machine when he visited Franklinton for about one hour and made a spot test for about five minutes and it showed about 750 pounds per hour.

We find in the record the following correspondence with reference to the transaction to the effect, viz.: Letter from the defendant to the plaintiff on May 21, 1945, referring to a telephone conversation of May 21, entering an order for a dehydrator, stating that Laporte had quoted the price of the machine delivered and installed and that it was the understanding with Laporte that delivery would be made not later than July 15th. In reply the plaintiff stated that it had a definite promise for the completion of the machine for delivery on that date and informing the defendant that it was enclosing two copies of a formal contract. A copy of the purported contract was introduced which reads as follows:

“Mr. J. M. Burris June 5, 1945

Burris Bros. Ltd.,

Franklinton, La.

We propose to furnish one (1) Beaird Challenger Dehydrator for the processing of sweet potatoes for stock feed, for the sum of Forty-five Hundred Dollars... .$4500.00 The above price covers this machine complete in every respect, ready to operate and is f. o. b. cars or truck, our plant, Shreveport, Louisiana.

We do not include motive power for driving the machine, water or fuel supply system.

It is anticipated that the machine will be ready for shipment in ample time to process the 1945 crop, however, our ability to make shipment will be dependent upon release of the necessary raw materials and mechanical parts by the War Production Board and other Governmental Agencies.

Your acceptance of this proposal, in the space provided below, will constitute a contract between us, guaranteeing acceptance of the machine and payment therefor, by you, on shipment.

Terms: To be arranged to the satisfaction of our Credit Department.

Respectfully submitted,

The J. B. Beaird Company, Inc.

C. S. Finegan, Manager of Sales

Accepted:

/s/ J. M. Burris

June 12, 1945.”'

Letter of December 28, 1945 from plaintiff to defendant stating that the plaintiff regretted that it was taking so long to get the replacement parts for the machine; letter of January 10, 1946 from plaintiff to defendant stating that it was sending Mr. Rickerson and crew to Franklinton on January 16th to make the necessary changes and improvements on the dehydrator and stating that these changes and improvements should give the machine .an increased production which should place it in the same condition of the . dehydrators now being completed; letter of February 8, 1946 from plaintiff to defendant stating that. the. plaintiff had incorporated all the latest improver ments on defendant’s machine and that it did not believe that defendant would experience any further difficulties; a letter from the defendant to plaintiff in reply to a letter from the plaintiff of January 8, 1946 wherein the amount of the balance due was acknowledged and the defendant stated that it was withholding- payment until the" machine was tested, after the alterations had been made, to see if it was capable of the job that it was guaranteed to defendant in the contract. A letter from the assistant treasurer of the plaintiff corporation of date May 17, 1946 wherein it- .is stated that Beaird and'Neild had assured him that they had made the necessary changes in the machine thereby making it comparable to any other machine that they had in the field and, as stated over the telephone, that the company would be glad to handle any complaint that the defendant might have to its entire satisfaction. A letter from plaintiff to defendant on June 20, 1946 that due to the acute market condition at the-time-the dehydrator was completed it was'impossible to obtain or equip the machine with - a roller chain on the drum drive and that it was forced-to use another type of chain. It is stated in this letter that the plaintiff was shipping a new drive-sprocket and a roller chain for replacement. A letter from plaintiff to defendant dated May IS, 1947 demanding payment of -balance 'due on the machine wherein it is stated that a general review of the entire situation seems to disclose that the machine does not produce as the defendant expected and th.at the plaintiff still holds to the opinion that the condition is the result of the operation methods and not of any fault on the part of 'ihe product. -, Letter from tb,e defendant. to the plaintiff of date. May 17, 1947 in answer to communication of May 13 stating that the defendant was aware of the fact that he..owed a balance on the machine but the machine was sold to it with a guarantee to produce at least 600 pounds of dry potatoes per hour which it .had failed to do. . It is stated in this letter that the defendant had made several trips to Shreveport and. had spent a great deal of time and money trying to get the matter adjusted. It, is further stated that. the defendant would welcome the plaintiff showing how the machine -could be operated if" the method used by the defendant was the cause of the low production and that it is odd- that the defendant has not heretofore been shown the correct method of operation. It is suggested in this letter that if the plaintiff would talk to their servicemen it would be enlightened on the matter. A letter from the plaintiff to the defendant of date May 27, 1947 wherein-it is stated that there is no provision in the contract guaranteeing the machine to-produce 600- pounds per hour and that: Beaird and Neild recalled the defendant’s-statement to them that,the machine has-produced more than that quantity.. We say here that this statement is not borne out by the testimony of Neild. It is stated in this letter that generally speaking 600-pounds of potatoes would be a conservative performance of the machines the plaintiff has in operation throughout the country..

From the testimony in this case it-appears thát the machine involved in this suit was one: of the first of this type of machine manufactured and that all machines subsequently manufactured have-been producing- more than 600 pounds of" dehydrated potatoes per hour. The machine: undoubtedly has not- been producing at. this-rate. The only testimony to the . contrary is that of Neild and Allen .wherein on-two occasions the machine was only operated for a few minutes. The evidence-shows that replacements have been made-in the machine from time to time and. that eight, different representatives .of the-plaintiff corporation have attempted to correct its deficiency in production. There is. no question in our mind but what Laporte-made the iepresentation to Burris at the-time the -order for the machine was .placed, because the testimony of Burris and Green to that effect has not been contradicted. Rickerson, a representative of the plaintiff” corporation, ■ who spent some several days in Franklinton endeavoring to step up the production without success .was not .called as a witness. Irrespective, of the fact that the. .purported contract did not contain the guarantee it. is apparent that warranty of the thing sold was not waived. The evi■dence shows that the .{iefendant would not liave bought the machine if it could not "have been profitably operated and that, it ■could not be profitably operated at its rate •of production. From the representations of Laporte and the statement of Neild that the defendant could expect 600 pounds per hour production, the defendant was justified in believing that he would secure this amount of production at the time it purchased the machine. We are not impressed with the testimony that the failure of the machine to sufficiently produce was because of the method of operation for the reason that the defendant did every thing in its power, with the assistance of eight different representatives of the plaintiff, to step up the production of the machine.

The machine was undoubtedly defective because so many replacements were made in an attempt to step up the production. Irrespective of the representation of the agent as to the output of the machine, the defendant .had the right, to rely on the implied warranty that the . thing sold is suitable for the purpose intended because warranty was not waived, Unless warranty is waived the .seller warrants the thing sold as fit for the purpose intended, A. Baldwin Sales Company, Inc., v. Mitchell, 174 La. 1098, 142 So. 700. Under the provisions of Article 2475 pf the Revised Civil Code a seller warrants the thing which he sells and under the provisions of Article 2476 the seller warrants that there is no hidden ' defect in the thing sold. Under the provisions of Article 2520 a sale may be avoided where a vice or defect in the thing sold renders it useless, or so inconvenient or imperfect, that it must be supposed the purchaser would not have purchased it had he known of the vice. '

“Whether the defect in the thing sold be such as to render it useless and alto'-gether ünsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.” Article 2541, Revised Civil Code.

“The buyer may also' content himself with resorting to this action, - when the-quality, which the .thing sold has been declared to possess and which it is found' to want; is not of such importance as- to induce him to demand a redhibition.” Ar-tide 2542, Revised Civil Code,

«xhe action fof a; reduction 0f priCe is subject tQ the.same mles and t0 the same limitations' as the redhibitory action.” Ar--tíde 2544) ReVised civil Code.

The defendant does not have to Prove the exact cause whidl- renders the machine incapable of functioning and is oldy required to ^ prove the failure of it to SQ do. Especially is this true regard-complicated machinery. Crawford v. Abbott Automobile Company, 157 La. 59, 101 So. 871.

The plea of prescription is not .well founded because the defendant is not using the demand for the reduction in price as a weapon of attack but using it as a shield or defense in 'resisting the payment of the balance of the purchase price. He is not precluded by prescription from urg-mg this defense. Holcomb & Hoke Mfg. Co. v. Theodora, 1 La.App. 445,; Thompson v. Milburn, 1 Mart., N.S., 468; Lastrapes v. Rocquet, 23 La.Ann. 68; Edwards & Kurz v. Plaquemine Ice & Cold Storage Company, 46 La.Ann. 360, 15 So. 61; Otis Texas Company, 153 La. 384, 96 So. 1.

We have arrived at the conclusion that the defendant is entitled to a reduction in the purchase price but there is no Evidence in the récord upon which we could arrive at the 'ampuht of reduction the defendant is entitled to. Such being 'the cáse, it is necessary to remand the case in order that the amount of the reduction may be ascertained.

.For.-the reasons assigned, the -judgment-of .the l.ower court is reversed. and -set aside and"-the case- is now remanded--to be proceeded with consistent- with - the ' vxews herein expressed. All costs to await the final disposition of the case.

HAMITER, Justice

(concurring in part and dissenting in part).

The plea of prescription, I agree, is without merit.

I am unable to conclude, however, that the judgment rendered by the district court in favor of plaintiff should be reversed. Except for the mentioned plea of prescription, the appeal presents only two questions of fact, both of which were resolved by the trial judge favorably to plaintiff. He found, to quote from his written reasons for judgment, that (1) “* * * the defendant has failed to prove that the dehydrator was guaranteed to produce six hundred (600) pounds of sweet potatoes per hour,” and that (2) “ * * _ * this dehydrator, if properly operated, will actually produce an average of six hundred (600) pounds of dehydrated potatoes per hour.”' These findings of fact, after my careful study of the evidence, do not appear to me to be manifestly erroneous.


author: HAMITER, Justice.

text:
    216 La. 670
    STATE v. McLEAN.
    No. 39402.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.
    Michael E. Culligan, Jr., New Orleans, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E.. Culligan, Asst. Atty. Gen., Herve Racivitch,. Dist. Atty., Wm. J. Wegmann, Asst. Dist.. Atty., New Orleans, for appellee.
   HAMITER, Justice.

In a bill of information filed by the District Attorney of Orleans Parish the charge-was made that Louis W. McLean, the de--fendant herein, did on October 6, 1948, “issue to the Compañía de Astral of South America in exchange for bananas of the value of Nine Thousand, Seven Hundred 'Thirty-One Dollars and' Sixty-Eight Cents •($9,731.68) in the lawful money of the United States of America, with intent to -defraud, a check for the payment of money in the sum of Nine Thousand, Seven Hundred Thirty-One Dollars and Sixty-Eight Cents ($9,731.68), dated October 6, 1948, drawn on the Hibernia National Bank in New Orleans, payable to the order of Com-pañía de Astral of South America and signed by L. W. McLean, knowing at the time of the issuing that he, the said Louis W. McLean had not sufficient credit with said bank for the payment of such check in full, upon its presentation.”

Following the overruling of his demurrer and motion to quash, defendant was tried on the recited charge and found guilty. Thereupon he tendered motions for a new trial and in arrest of judgment. The court denied both of these motions and sentenced bim to pay a fine of $3S0 and to serve seven months in the Parish Prison, with an additional five months in default of payment of the fine.

On this appeal defendant relies on three •bills of exceptions for a reversal of the •conviction and sentence. One of these, •reserved when the motion for a new trial was denied, appears to have merit, and we meed discuss only it.

Under the motion for a new trial defense counsel contends that there was no evidence adduced (a transcript of all the evidence received is before us on this appeal) in proof of certain essentials of the crime charged. This court, of course, can-mot pass upon the sufficiency of the evidence in a criminal case where there was some proof (of all material elements) to sustain the conviction. But where the complaint is made, as here, that the conviction was had without any evidence at all establishing essentials of the offense, a question of law is presented which we must and will determine. State v. Wilson, 196 La. 156, 198 So. 889; State v. Lassiter, 198 La. 742, A So.2d 814; State v. Nomey, 204 La. 667, 16 So.2d 226; State v. Wooderson, 213 La. 40, 34 So.2d 369.

The charge against this defendant was drawn under and pursuant to the provisions of Article 71 of the Louisiana Criminal Code, Act No. 43 of 1942, reading in part: “Issuing worthless checks is the issuing in exchange for anything of value, with the intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank or other depository for the payment of such check, draft, or order in full upon its presentation.”

This language indicates that the crime denounced is committed only when there is a concurrence in point of time of an intent to defraud, the receipt of title and possession of a thing of value, and the giving of the worthless check in payment therefor; it does not include the giving of a check for an antecedent debt. Thus, the definition specifically provides- for the issuance of the check, with intent to defraud, in exchange for anything of value. If the check is given subsequent to the receipt of the thing the required exchange does not take place, and no intent to defraud attends the check’s issuance. Rather, in such a case, the check is issued in payment of an antecedent debt — a debt created by a previous sale and delivery of the thing on terms of credit, on a promise to pay, not on the faith of- a check. And on the issuance of the check the vendor is not by the check defrauded; the fraud, if any, occurred when credit was extended.

That the quoted definition of Article 71 of the Criminal Code does not contemplate the issuing of a worthless check in payment of an antecedent debt is supported by the comment printed immediately beneath that article and reading in part as follows:

“This article is a restatement of the former Louisiana statute on' the subject. Dart’s Gen.Stats. (1939) Secs. 676, 677 [Acts 1914, No. 209, §§ 1, 2] (worthless checks). * * *
“The Reporters originally proposed a different version (which would have made the offense include issuance of the check for an antecedent debt, and would- have relieved the state of proving a positive intent to defraild), but at the suggestion of the Advisers, the article retains the substance of the former Act. It is possible that the activity 'denounced by this article would amount to theft under the Code, but it was thought necessary to have a special article nevertheless.”

And with respect to the mentioned former statute on the subject this court observed in State v. Alphonse, 154 La. 950, 98 So. 430, 431, that:

“In prosecutions under this statute, one of the essential ingredients of the .crime is fraudulent intent. It is sacramental that an intent to defraud be alleged and proved. * * * * . * *
“The fraudulent intent must unite with the; overt act, and they- must concur in point of time. *.*.*”

The undisputed facts disclosed by the transcript of evidence are that on-the might of October 3, 1948, the:Compania de Astral of South America, through its agents-, sold (according to weight) and actually delivered to the defendant in person at shipside a quantity of bananas.. .-Immediately some were hauled -away in-five motor trucks and the remainder in a railroad car. ¡Weights of the truck loads were ascertained at that time, but the weight of the carload was not available from the railroad company until later. On October 6, 1948 (three days after delivery), defendant received invoices listing all . of the . weights and the total amount due for the ljnnanas,' and he -then issued his check of $9,731.68 to the vendor in .payment. The check was deposited in the bank for collection, but it was returned with the notation “Not sufficient funds”.

From this factual situation it is Clear that the "worthless' check was not given in exchange for the bananas with the intent'to defraud. The bananas had been entrusted-'and delivered-to-the defendant three days earlier,'obviously on the strength of his promise to' pay' when all weights were ascertained. The check, hence, was in payment of an antecedent debt,- a. transaction which Art. 71 of the Criminal Code does not denounce.

There was evidence adduced, it is true, indicating that the parties' intended the sale to -be for cash. But irrespective of their original intention, the fact is that a credit transaction resulted when delivery occurred without payment. The vendor very well might have conditioned the relinquishment of the merchandise on payment, but this it did not do. . .

For the reasons assigned the conviction and sentence are set aside and the case is demanded for the purpose of affording to defendant a-néw trial.


author: HAWTHORNE, Justice.

text:
    216 La. 677
    DAVIDSON v. BOLTON et al.
    No. 38981.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.

      Dickson & Denny, Shreveport, for plain-r, tiff-appellant.
    Cook, Clark & Egan, Shreveport, for, defendants-appellees.
   HAWTHORNE, Justice.

Plaintiff, Louis L. Davidson, instituted this- suit against the' Commercial National Bank in Shreveport, as- executor, of the estate of S. G. Sample, and the heirs -of S. G. Sample, praying to be.-recognized as the owner of one-half of the minerals in an 80-acre tract pf land situated in DeSoto Parish, which he had allegedly, purchased from the surface owner, Sidney Norris,- and for the cancellation of a certain . oil and gas lease .covering-the -east 40 acres of this tract, executed by the .defendants to- Milton J. Houston, and for.-damages in the sum of-$4000.00, resulting-from the refusal of the defendants to' -renounce - their-claim to all fhe minerals under the entire tract and to cancel, the leas'e. After trial the district- court rendered judgment recogniz-. ing the plaintiff to be the owner' of one-ha'lf of the minerals -in the tract and ordering the cancellation of -the lease, but rejecting plaintiff !s demand for a money judgment. , From this judgment the plaintiff has appealed .insofar as it dismissed his demand for a money judgment. ,

On April 22, 1944, defendants executed an oil, gas, and mineraljease covering the east one-half of the property here involved. Thereafter, on September 6, 1944, plaintiff through his attorneys addressed a letter to the defendants in care of the Commercial National Bank, requesting the cancellation of this lease. On September 13 the bank through its attorneys answered this letter, asserting that the Sample estate was the owner of all the mineral rights covered by the "lease and declining to comply with the request of plaintiff for its cancellation. The present suit was instituted on July 19, 1945.

Since only the plaintiff has appealed, the questions of ownership of the minerals and of the cancellation of the lease are not before us for consideration. The only question presented is the correctness of the ruling of the district court denying to plaintiff his money demand for damages. It is plaintiff’s contention that the defendants’ refusal to cancel the lease and to renounce their claim to the ownership of all the minerals under the tract resulted in a loss to him of the sale of one-half of the minerals for $2000.00 and likewise a loss of the sale of an oil’and gas "lease 'on the premises for a like amount. Defendants contend that they were justified in their refusal to cancel the lease and to renounce the-minerals because they owned the minerals orí the date on. which they-were requested to do so in' plaintiff’s létter and still owned them on-the date on-which the instant'suit was filed.' ■

S. G. Sample, father of-the, Sample -heirs, sold, this land-many years, ago to ¡plaintiff’s .vendor, with reservation, of all;the minerals. His wife died on. September. 7, 1918, leaving minor: heirs, and the minority of these heirs had the effect of suspending the liberative . prescription which had been running for about 11 months against the servitude." This prescription began to run again on July 31, 1937, whén" the youngest of these heirs attained his majority, and would" have ' accrued on August 30, 194&, if Act No. 2$2 of 1944 had not been énacted. ' Under the provisions of this act, their rights terminated on July 26,-1945, .as to-all the minerals .reserved by S.- G. Sample. .The defendants therefore were .justified in their refusal to renounce this mineral, interest and to, cancel the lease, since at the time of notice, as well as on the date of the filing of the present suit, defendants’ interest in the minerals had not expired, and plaintiff is not entitled to damages resulting from their refusal.

For the reasons assigned, the judgment appealed from is affirmed; plaintiff-appellant to pay the costs of this appeal.


author: FOURNET, Chief Justice.

text:
    216 La. 681
    GENERAL SECURITIES CO., Inc., v. JUMONVILLE.
    No. 39039.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.
    L. C. Parker, Baton Rouge, for defendant-appellant.
    Sargent Pitcher, Jr., Baton Rouge, for plaintiff-appellee.
   FOURNET, Chief Justice.

The plaintiff, General Securities Co., Inc., upon the refusal of the defendant, J. E. Jumonville, to pay the eighth installment due on his note dated January 13, 1947, in the principal sum of $7,022.40, under the acceleration clause of the note instituted proceedings to recover the balance due— $2,926.28, plus interest and attorney’s fees; and under a writ of sequestration seized the caterpillar diesel tractor and equipment on which it held a chattel mortgage to secure payment of the note. The defendant fiied a motion to dissolve and set aside the sequestration on the ground that the plaintiff was proceeding on a usurious contract. He also filed exceptions of no cause or right of action. In his answer, contending that the transaction is an illegal one, being in direct violation of law and particularly of Act No. 94' of 1942 in that his note was discounted at a higher rate of interest than is permitted by the statute,- defendant claimed that he was entitled to recover in reconvention the amount already paid the plaintiff, namely, $4,096.12, and prayed accordingly.

The trial judge, having referred the motion to dissolve the writ of sequestration and the exceptions to the merits, rendered judgment in favor of plaintiff as prayed for. Defendant has appealed.

On January 13, 1947, defendant executed a note for $7,022.40, payable to order of bearer in installments of $585.16 per month and a final installment of $585.70, conditioned to bear interest at 8% per annum from maturity and providing that failure to pay any installment would mature all remaining installments; and for 20% attorney’s fees. The note was paraphed for identification with an act of chattel mortgage covering a caterpillar diesel tractor and equipment. The plaintiff acquired the note from the defendant at a discount of $772.40, or 11% of its face value, paying the defendant only $6,250.00. Monthly payments were made until September, 1947, at which time defendant declined to pay further, and this suit followed.

Defendant’s argument that the Small Loan Law is controlling, since the plaintiff is operating as a “licensee” under that law, is without merit. As pointed out by the trial judge in his well considered opinion, Act No. 94 of 1942, commonly known as the Louisiana Small Loan Law, is clearly without application; for, as indicated by its title, the object of the act is “To provide for the licensing and regulation of the business of making loans in sums of Three Hundred Dollars ($300.00) or less, secured or unsecured, at a greater rate of interest than eight per centum per annum; * * and a perusal of its provisions readily discloses that it is not opposite under the facts of this case.

The law governing usurious contracts is to be found in the Revised Civil Code, Chapter 3 of Title XII, “Of Loan,” under the heading. “Of Loan on Interest,” the pertinent part of Article 2924 reading as follows:

“The amount of the conventional interest can not exceed eight per cent. * *
“Except in the cases herein provided, if any person shall pay on any contract a higher rate of, interest than the above, as discount or otherwise, the same may be sued for and recovered within two years, from the time of such payment.
* * * * * *
“The owner of any promissory note, bond or other written evidence of debt for the payment of money to order or bearer or transferable by assignment shall have the right to collect the whole amount of such promissory note, bond or other written evidence of debt for the payment of money, notwithstanding such promissory note, bond or other written evidence of debt for the payment of money may include a greater rate of interest or discount than eight per cent per annum; provided, such obligation shall not 'bear more than eight per cent per annum after maturity until paid. * * * ” (Emphasis supplied.)

The note sued on clearly comes within the above exception, and since it does not bear more than 8% interest after maturity it cannot be said to carry usurious interest. See Carruth v. Carter & Bro., 26 La.Ann. 331; Mutual Nat. Bank of New Orleans v. Regan, 40 La.Ann. 17, 3 So. 407; In re Leeds & Co., Ltd., 49 La.Ann. 501, 21 So. 617; Chadwick v. Menard, 104 La. 38, 28 So. 933; Lichtenstein v. Lyons, 115 La. 1051, 40 So. 454; Roux v. Witzman et al., 125 La. 300, 51 So. 205.

The defendant further contends that the plaintiff is without right to recover attorney’s fees for the reason that “no specific fee is provided for in the note.” The defendant is in error in this contention for the note specifically states: “It is further agreed that in the event this note is placed in the hands of an attorney for collection, we (maker) will pay, in addition to principal and interest according to the face of the note, a reasonable attorney’s fee, which shall not be less than .twenty per cent of balance, principal and interest * * *.” Moreover, a certified copy of the chattel mortgage, made a part of the petition, contains the following: “ * * * mortgagor binds himself to pay the fees of the attorney-at-law who may be employed for that purpose, which fees are hereby fixed at twenty per cent (20%) of the amount due and exigible * *

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