author: LECHE, J. ELLIOTT, J. MOUTON, J. LECHE, J.,

text:
    No.-
    First Circuit
    BUSCH, SR., ET AL., v. SCIMECA
    (December 6, 1927. Opinion and Decree.)
    (April 11, 1928. Opinion and Decree on Rehearing.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles—Par. 7, 7(b).
    Where one fails to “stop, look and listen” before crossing a highway on which there ' is constant automobile traffic she is contributorily negligent and cannot recover for the resulting injuries to herself.
    REVERSED ON REHEARING
    2. Louisiana Digest — Automobiles—Par. 7.
    Where the evidence does not show that there was a failure of the person injured to use care and prudence in crossing the street and not to attempt to cross it without looking up and down the street for automobiles, there is no contributory negligence on her part proven.
    3. Louisiana Digest — Automobiles — Par. 4(c).
    One who drives an automobile on a street at thirty-five to forty miles an hour through considerable traffic and while pedestrians are crossing is negligent and liable for injuries inflicted to a girl while crossing the street.
    4. Louisiana Digest — Appeal—Par. 594,625.
    The finding of the trial Judge on a question of fact is presumed to be correct and unless there is manifest error when the testimony is conflicting, it will be affirmed.

      Appeal from the Parish of East Baton Rouge. Hon. Geo. K. Favrot, Judge.
    Action by Louis Busch, Sr., et als. against Sam Seimeca.
    There was judgment for plaintiff and defendant appealed.
    On the original hearing the judgment was reversed, but on rehearing judgment was amended and affirmed.
    Jess Johnson, of Baton Rouge, and Carbajal and Gaudin, of New Orleans, attorneys for plaintiff, appellant.
    R. F. Walker, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

The claim in this suit is for damages alleged to be due to the minor daughter of the plaintiff, as the result of injuries inflicted upon her person when struck by an automobile driven by the minor son of defendant. The District Judge rendered judgment in favor of plaintiff in the sum of Seven hundred fifty dollars for injury to the daughter and rejected plaintiff’s personal claim for damages for loss of time and expenses.

Plaintiff has appealed and defendant, in answer to the appeal, prays that the judgment be reversed.

It is undisputed that defendant’s son was driving an automobile which came in collision with Miss Rhea Busch, daughter of plaintiff, aged about fourteen years, on the continuation of North Street, near the eastern limit of the City of Baton Rouge, where the continuation of said street is known as the Greenwell Springs road. That the. accident happened in daylight, about 6 o’clock in the afternoon of July 10, 1926, and that Miss Busch was painfully injured and was slightly disfigured by blemishes to her face, resulting from small cuts and bruises. It is also undisputed that Miss Busch, in company with her brother and Mrs. A. A. Randolph was about to cross the street or road at a point near the street car line which extends across that street or road, when she stopped on the south side of the street on or near a bridge which spans the gutter, in order to make some alteration in her personal appearance. Miss Busch says she stopped to wipe off an excess of powder on her face, but the occupants of defendant’s automobile say that she stooped down as if to tie her shoe or pull up her stocking. Mrs. Randolph and young Busch kept on going north across the street and while Miss Busch had thus stopped, or after she had started to cross the street to rejoin her companions, an automobile driven by defendant’s son, aged about sixteen years, appeared on the road going in a westerly direction, towards the" City of Baton Rouge, and it collided with Miss Busch, inflicting the injury for which compensatory damages are herein sued for.

All the testimony which has any bearing upon the question of negligence, is very conflicting. Defendant’s contention, which is supported by testimony, is that Miss Busch was stooping down when the automobile approached the point where she wished to cross the street, that she raised her head and then started across without looking. That it was impossible to stop the automobile in time to avoid striking her, that the boy chauffeur first thinking that he could pass to the right of her position, steered to the right, that the young lady kept on advancing, and as he steered to the left, she hesitated and started back, and was struck by his left front fender.

The contention of the plaintiff, also supported by testimony, is that Miss Busch was standing near the bridge on the edge of the street, that the boy driving the automobile was laughing and talking to his companions, and did not look where he was going, and deliberately steered his car to the left side of the road where Miss Busch was standing, struck her and ran over her.

The speed at which the defendant’s automobile was being driven, as in most cases of this kind, at best, is mere guess work. According to plaintiff’s witnesses it was very fast and according to defendant’s witnesses it was very slow. It may be that plaintiff’s witnesses are more worthy of belief, but on the other hand, considering the natural proclivity of human nature, and the ordinary rules by which men are guided, and using that as a standard, one is inclined to believe that the version of the accident advanced by defendant is more likely and probable, and if that version be accepted, then .Miss Busch violated the well known rule “to stop, look and listen,” before crossing a highway on which there is constant automobile traffic. It is almost incredible that defendant’s son either purposely or maliciously steered his automobile to the left in order to run into and strike Miss Busch.

To justify a court of justice in accepting this as a proved fact, the evidence should be of a convincing nature.

Plaintiff has not proved his case with certainty and by a preponderance of evidence. His demand should be rejected, and it is so ordered.

ON REHEARING

ELLIOTT, J.

As our original opinion herein in effect stated, plaintiff contends that defendant’s car was being driven westward along North Street in the City of Baton Rouge at a high rate of speed and in a reckless, careless and dangerous manner. That while his daughter, Miss Rhea Busch, was standing on the south side of North Street and just east of the street car tracks, which enter it from Duggan Street, cross and then leave it by way of Fryous Street, Nick Scimeca, defendant’s son, with startling suddenness and quick as a flash, carelessly, without cause, and with wanton recklessness, turned and drove the automobile to his left, towards plaintiff’s daughter, causing it to swoop upon and strike her. That it was because of the high speed, reckless, careless, imprudent and wanton manner in which the said Nick Scimeca "was operating said automobile, that -plaintiff’s daughter was struck and injured. That there was no fault on her part, etc.

Defendant denied the negligent, fast, reckless and wanton driving alleged against his son, and alleges that the striking was caused by the acts of plaintiff’s daughter in dashing in front of his son’s automobile without looking to see if a car was coming, and at a time when it was impossible for his son to avoid striking her. Plaintiff’s daughter and defendant’s son are both minors. Plaintiff therefore sues in behalf of his daughter and defendant defends in behalf of his son. The evidence on the subject of negligence is conflicting, as stated in our original opinion, but upon looking into it again, we conclude that plaintiff’s case is established with reasonable certainty.

The evidence shows, as stated in our original opinion that plaintiff’s daughter, Miss Rhea, about fourteen years of age accompanied by her brother, Louis, about fifteen years old at the time, and Mrs. A. A. Randolph, a cousin, were walking on the south side of North Street and preparing to cross it just east of the street car tracks, which enter it from Duggan Street, cross North Street, and then leave it by way of Fryous Street. North Street ends near this place, and thence continues on as the Greenwell Springs Road. The street is thickly populated and closely built up at this place with residences, stores, shops, garages, etc., and is in frequent use by automobiles and people on foot traversing and crossing it. Miss Busch stopped on the culvert which spans the gutter on the south side of the street a minute or so for the purpose of removing some powder from her face. This culvert is spoken of by the witnessing as a bridge. Mrs. Randolph and Louis Busch walked on, while she delayed, and when she started up and started to cross, her brother and cousin had gotten practically across the street. Miss Busch says in her testimony that as she stepped off the culvert and started to cross the street, she looked up the street and saw defendant’s car coming, going west at a great speed. That she stopped where she was at the time for it to pass by. That as it came near her, it swerved toward her, and came on so fast that it hit her before she could move. According to the objects mentioned by her as being opposite the place where she first saw the car as it was coming, it was one hundred feet or more distant from the place where she was at the time. She estimated that she was some four or five feet out in the street at the time, but could not say exactly how far out she was. That she was standing still watching the car, and not her brother and cousin, and did not stoop down to fix her shoes or stockings. That the car could and would have missed her, had it not swerved towards her. That it knocked her about ten feet in front of it, and as she fell, it hit her again, knocking her about ten feet further. That the street was straight and unobstructed. That there was nothing in the street which interfered with defendant’s son seeing her, etc. Her testimony is supported by Mrs. Randolph, Mrs. Hall, Mrs. Phelps, and in regard to the speed of the car, by Mr. Randolph. Her testimony is supported by Leon Raiford, except that he says she was not standing stiil when struck. He says that as the car came close to where she was, that she jumped back and attempted to dodge it, but in all other respects he agrees with her and the other witnesses above mentioned. That she was out in the street some five or six feet from the culvert, that the car coming in the middle of the street, swerved south and struck her. He estimated that the car was within five or six feet of her when it commenced to swerve; says that there was no obstruction in the street that made such a swerve necessary; that if it had not been swerved southward, she would not have been hit, as she jumped back far enough to escape, if it had not been swerved toward her; that the car seemed to be going fast, etc. Mrs. Randolph says that defendant’s son was not looking at the road ahead of him, but had his face turned at the time toward his companion sitting in the car beside him, and was laughing. She further testified that on Saturday evening about 9 o’clock, after the occurrence, and after Miss Busch had been taken to the Lady of the Lake Sanitarium, that Sam Scimeca accompanied by two parties, one of whom he introduced to her as his brother-in-law, and whom she recognized on the trial as Joe Lece, came to the Sanitarium. That Sam Scimeca informed her that he was in Plaquemine at the time of the accident. That he had been notified of it by telephone, and had come to Baton Rouge immediately to see about it. That he told her not to spare any expense in regard to Miss Busch, that he would pay the bill, etc. That she asked the party with him if he had seen the occurrence, and he answered that he had not. On the trial of the case she recognized the party who had so been introduced to her and had informed her at tho time that he had not seen the occurrence, as Joe Lece. Joe Lece testifying as a witness for the defense, that he had seen the occurrence, etc., denied that he had gone to the Lady of the Lake Sanitarium with Sam Scimeca, and denied that he had stated to Mrs. Randolph in response to question by her, that he had not seen the occurrence. During his testimony he was asked if he knew Leon Raiford, witness for the plaintiff who had preceded him on the stand, etc.

“Q. Did you see this man the evening of the accident?
“A. No, sir. He didn’t see it.”

His answer in no wise responsive to any question previously asked him, indicates a certain mental course resolved on, and with which he was obsessed. Plaintiff’s counsel informed him that he had not answered the question asked him, etc. He then stated that after seeing the occurrence himself that he had left the place, and on his way home had met Mr. Raiford coming to town, which, if true, would mean that Mr. Raiford had testified untruly in saying that he had seen the occurrence, etc. The witness Lece also says in one part of his testimony that plaintiff’s daughter was in the middle of the street at the time she was struck, and in another place, that she was within four or five feet of the sidewalk at the time. Sam Scimeca says that he called at the sanitarium Sunday morning instead of Saturday night as claimed by Mrs. Randolph, and to support his denial, he tendered rebuttal evidence to show that he was in Plaquemine on Saturday night and was there on Sunday morning, and didn’t know of the occurrence in question until Sunday morning, when he was arrested. The Court refused to permit him to introduce the evidence, and we do not therefore know what he might have proved, but the tender, had it been permitted and the offer made good, would have contradicted Nick Scimeca, his son, who had previously testified that his father did come back to Baton Rouge Saturday night, and was at home the night in question. He also attacks the testimony of Mrs. Phelps. After the case had been partly tried and the testimony of Mrs. Phelps and a number of others heard, court was adjourned for several days. In the interim, and before the trial was resumed, defendant called on Mrs. Phelps. He was asked by plaintiff’s counsel:

“Q. Why did you go there?
“A. Because after I got the suit paid for, I was going around to see who knew about this wreck, so I went to the lady yonder. She told me that she saw this boy going sixty miles an hour and hit. the girl. Then I asked her if she was going to be a witness for these people. She told me she was in business, and ‘I ain’t going to witness for nobody.’ After that she turned and told me, ‘Who pays me the most I will witness for,’ and I have got somebody to prove it.
“Q. Why did you go to Mrs. Phelps’ house after the trial last week?
“A. Because she never told the truth.
“Q. Why did you go to Mrs. Phelps’ house?
“A. Because she never told the truth.
“Q. Didn’t you shake your finger in her face and threaten her?
“A. I said, ‘Why didn’t you tell, the truth like -you did inside the store, etc.”

Mrs. Phelps called in rebuttal, testified that. defendant called at her store after she had testified, shook his finger at her, and said: “You told me if I paid you, you wouldn’t say nothing.” That she told him he was a liar.

We are satisfied that the testimony of Mrs. Randolph, Mrs. Phelps and Leon Raiford was given sincerely. There are some differences in their statements, but the attacks made on same have created in our mind an effect, the opposite thereby intended.

Nick Scimeca says that Miss Busch stopped to fix her shoes or stockings. That he slacked up when he saw her on the bridge. That when he got within ten or twelve feet of her, she ran across the road. That she saw him coming, and was nearly on the north side of the street. That she then tried to turn back to the south side. When she did, that he swerved his car to miss her. Then she turned back north, and he swerved his car to miss her again, and hit her. That he was going eighteen or twenty miles an hour at the time.

“Q. What did you do if anything, when you saw her cross the road?
“A. Slacked up. I see her on the bridge. When I got right up to her, she ran across the road. The left fender hie her in the center of .the road and knocked her down.”

After he had made it plain that after he had come up within ten or twelve feet of where Miss Busch was standing, he swerved his car first to one side and then to the other in his efforts to miss her, but that each 'time she had turned and placed herself in his way, and was at last hit, plaintiff’s counsel asked him:

“Q. Can you swerve your car to the right, then swerve back to the left, and then back to the right again in ten feet?
“A. I didn’t do all that.
“Q. What did you do?
“A. I told you what I did.
“Q. Well tell it again.
“A. I ain’t going to do it.”

Instructed by the Court to answer, he did so, but his answer was different from his previous statements on the subject. The questions had caused him to reflect on the difficulty of swerving a car, as he contends he did, going eighteen or twenty miles an hour while traversing a distance of ten or twelve feet. A number of witnesses testified as did ' defendant’s son.

We are satisfied on reconsideration that defendant’s car was being driven at the time and place in question at about thirty-five or forty miles an hour. The noise it made as a result of its speed, and the fact that it knocked Miss Busch some fifteen or twenty feet when it struck her, corroborates plaintiff’s witnesses, that it was running at great speed. It was being-run entirely too fast for the street it was on, at the place in question. It was not under control, therefore, its speed was reckless. We are moreover satisfied that defendant’s son was not looking ahead in the direction he was running, and that he did not see plaintiff’s daughter until his car got within ten or twelve feet of her. The effort he then made was of no more effect, at the speed he was running, than if none had been made. The street was straight. There was nothing in the street to prevent him seeing plaintiff’s daughter. Therefore he should have seen her and would have seen her if he had been looking ahead, ’ and on his guard. Plaintiff’s daughter and some of his witnesses claim that she was standing still at the time she was struck. The witness Raiford says that she jumped back just before the car hit her. The defense witnesses testified on this subject as heretofore stated. It is likely that being frightened at the car bearing down on her, she did jump back. It was a natural impulse and she may have done it about the time defendant’s son swerved his car, and she may have jumped in the direction in which he swerved. If she did, it was an involuntary act on her part to escape being run over as a result of the wrongdoing o‘f defendant’s son. It makes no difference, as we see the case, whether she was standing still at the time, five or six feet in the street or walking across it. If defendant’s car had been under control, and if his son had been looking ahead and on his guard, he would have seen her in time to have had his car under control and avoided running over her. Defendant’s contention that plaintiff’s daughter negligently dashed in front of his automobile, without looking to see if cars were coming on the street is not a proper conclusion from the facts and circumstances of the case.. It was the duty of his daughter to use care and prudence in crossing the street and not to attempt to cross it without looking up and down the street for automobiles. The evidence does not show a failure on her part in that respect.

We think that the primary and governing cause of the injury to plaintiff’s daughter was the reckless and uncontrolled speed of defendant’s car while being driven on the street by defendant’s son without looking ahead and without observing proper care, and that defendant is responsible for the harm thereby done.

The cases of Burvant vs. Wolfe, 126 La. Ann. 787, 52 So. 1025, and Albert vs. Munch, 144 La. 686, are applicable to the present situation.

The judgment appealed from is correct except as to the amount of damages. The necessary expenses of plaintiff at the Lady of the Lake Sanitarium, bills of physicians, nurses, druggists, etc., amount to $452.00. The sufferings of his daughter were intense and endured for three or four months, and she had not entirely recovered for nearly nine months after the occurrence. She had suffered as a result of her injuries a serious facial disfigurement. We have concludéd that the amount allowed plaintiff on account of the injuries sustained by his daughter should be increased to $1,000.00, but that his other expenses claimed in his petition were properly rejected.

For these reasons our previous opinion and decree herein is finally set aside. The judgment appealed from is now re-instated and increased to $1,000.00 with legal interest thereon from March 2, 1927, until paid, and as thus amended, affirmed. Defendant to pay the costs in both courts.

ON REHEARING

MOUTON, J.

concurring. Nick Scimeca, the minor son of defendant, was driving the car that collided with the daughter of the plaintiff, and as a witness, gave his account of the occurrence. In concurring with the judgment rendered by Judge Elliott, I wish to refer to the testimony of Nick Scimeca when he testifies as to what occurred immediately before and at the time Miss Busch was struck by the auto he was driving. He saw her, he says, standing near the bridge “fixing something about her foot or shoe,” that he drove about ten feet from her, and she then straightened up and started northward across the street; that he was then going ten or twelve miles an hour, and that he threw on his brakes; that as she swerved north he swerved his car in that direction; that she got excited, came back south, and that he swerved his car that way. Thereafter, he repeats that she turned twice, with only this difference, that he then says she first swerved to the south and then to the north. However, this may be, the fact remains according to the testimony of Nick, that when Miss Busch struck out in opposite directions, she was then only about ten or twelve feet in front of the auto. Nick also stated in his testimony, that a car traveling at a speed of eighteen miles an hour can be stopped in ten or twelve feet.

It will be noted that he said, as we have above shown, that she was about ten or twelve feet ahead of his car when she started to cross the street and that he had applied his brakes. If he had been going, at the time, at the rate of ten or twelve miles an hour, and had thrown on his brakes as he testified, his auto would have been stopped ^before it struck Miss Busch, and no injury would have resulted. Instead of stopping in time to avoid the accident, as would have been the case if his testimony is to be believed, Miss Busch was carried a good ’ distance away by the severity of the impact, and was severely injured. Not only does Nick testify to the facts above stated as being what really occurred at about the time of the collision, but he also says that he had veered his auto from the north to the south or from the south to the north in the attempt he was making to avoid the accident. This swerving of his auto in opposite directions, it must be observed, was done according to his testimony after he had put on his brakes, and. all of this in a space of ten or twelve feet, which he says separated his auto from Miss Busch .when she started across the street. It occurs to me, that if such had been the conditions under which he was operating his car the accident would never have happened and it is practically certain that the car would never have passed the point of collision by several feet as is shown by the record. It is quite true that it is impossible for a bystander looking at a moving car to say with any degree of accuracy at what speed it is actually traveling. For instance, no one as a mere looker-on would dare venture the statement that a car was traveling say, at the rate of fifteen, twenty or twenty-five miles. No one would testify thereto as a positive fact, but most any person wh'o has observed the movement of cars, can say if it is moving at an unusual or reckless speed. Two or three witnesses said the auto in question was moving at the time at about forty miles an hour. It may be that the estimate of its speed by these witnesses was greater than the rate at which it was traveling, but from their testimony, we have no reason to doubt it was moving with unaccustomed rapidity on that street where the evidence shows there was considerable traffic. The accident, I think, was the result of reckless driving by a boy of sixteen, who, from some cause or another, lost control of his car, and swinging it as best he could, perhaps in an earnest effort to avert the collision, inflicted the injury of which plaintiff complains.

Miss Busch denies that she was stooping to fix her shoe, or apparel when she was injured. She testifies she had stopped to take powder off her face, that she looked eastward, saw the car coming at great speed, and that before she could move, it suddenly swerved and struck her. Mrs. Mary Hall says she saw when the car made a sudden curve and struck Miss Busch, who was in a standing position. She testifies she was in Rica’s store, and that the car was coming so fast she came out to see “what it was.” This witness is not a relative of the plaintiff, and as far as the record discloses has no interest whatsoever in the outcome of the suit.

The District Judge did not give written reasons for his judgment. It is obvious that he must have accepted the version which was given of the occurrence by Miss Busch and the other witnesses of plaintiff, and from their testimony, concluded that the collision had resulted . from the reckless, careless, incompetent or negligent driving of the auto. I find, after a reexamination of this case, that it is more rational to credit the version of the accident as given by plaintiff’s witnesses, than to accept the improbable narrative of the occurrence by the driver of the auto.

In any event, the District Judge so found, on this, a question of fact, and his judgment comes -up to us with a presumption of correctness, or else there would be no value in such findings by trial courts. Unless such error is clear or manifest, when the testimony is conflicting, our duty is to affirm. Scopini et al. vs. Bossier Levee Board, 111 La. —, 36 So. 102; Dunn vs. Brual, 155 La. —, 99 So. 296; Gilliand vs. Feibleman’s, Inc., 161 La. —, 108 So. 112; Smith vs. Minder Lbr. Co., 114 La. —, 38 So. 821. This has been the established doctrine dating from our earliest decisions. When such error appears, an appellate court should not hesitate to reverse; otherwise it should leave undisturbed the conclusions arrived at below. I find here that the proof entitled plaintiff to damages, and that there is certainly no error to warrant a reversal.

With an amendment to the judgment below increasing the amount allowed to $1,000.00, it should be reinstated and affirmed.

LECHE, J.,

dissenting. There is no reason why a claim for damages for personal injury should not be supported by the same preponderance of evidence and proved with the same certainty which the law requires in a suit upon a claim of any other character. The only fact established with certainty in this record, is that Miss Busch was painfully injured when she was struck on a public highway by an automobile driven by the minor son of defendant. It is shown with equal certainty that the accident happened outside the limiis of the City of Baton Rouge, practically in the open country, on a public highway known as the Greenwell Springs road, and not at a street intersection, and it also appears that there is a great deal of vehicular traffic at this particular place.

Ordinary prudence and the law both require that a pedestrian stop and look before attempting to walk across such a highway. The whole case hinges upon the question whether Miss Busch exercised, as she should have done, common ordinary prudence before stepping out into the road and in the path of an automobile which was admittedly within the range of her vision. What happened after she left the sidewalk and crossed over the bridge span-, ning the drain ditch, is the subject of very conflicting accounts by the witnesses, few if any, of whom were free from intense bias. Estimates from such witnesses, of the speed of defendant’s automobile and of distances are given in an almost reckless manner and are on their face, absolutely worthless.

Miss Busch when struck, was in the road, in the path of vehicular traffic, where defendant’s son had to pass, where he had the right to drive his automobile and where Miss Busch should not have been, except after making sure that it would be safe for her to pass.

There is no testimony from any witness, which justifies Miss Busch in thus risking her safety and her life, and the conclusion is irresistible that she was injured as the result of her own imprudence. The version of the accident, as given in our original opinion, seems to me, the only one consistent with the admitted facts and consonant with ordinary reason.

I respectfully dissent from the conclusions reached by my associates.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,485
    Orleans
    MATTHEWS v. N. O. PUBLIC SERVICE INC.
    (April 2, 1928. Opinion and Decree.)
    (May 7, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Street and Interurban Railroads — Par. 27.
    Riding outside of' the car on the step is unusual, dangerous and negligent if there is room inside.
    2. Louisiana Digest — Street and Interurban Railroads — Par. 34.
    The burden is on plaintiff to prove that he was riding there from necessity and not from choice.
    3. Louisiana Digest — Street and Interurban Railroads — Par. 19.
    Passengers on street cars assume the risk of injury from ordinary jars and jolts incident to a careful operation of the cars.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by E. C. Matthews against N. O. Public Service Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed
    Norman, Breckwoldi and Schwartz, of New Orleans, attorneys for plaintiff, appellant.
    B. W. Kernan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff claims of the defendant $20,000 for damages alleged to have been suffered by him while riding upon one of defendant’s cars.

He alleges that on October 1, 1924, at about five o’clock p. m., he boarded a car of defendant company at the corner of Canal and Lopez going towards the river; that other persons boarded the same car at the same time and place; that the rear platform of the car over which he had to pass to get into the car proper, was so crowded that it was not possible for him to get upon the platform immediately upon boarding the same, and that he had to ride upon the side steps of the car behind another passenger, and that said car had traveled midway between Lopez and Salcedo Streets before he could get upon the rear platform; that up to that time the only hold he could get was the rear post forming the corner of the rear vestibule and that his hold was insecure owing to that position; that the rear platform was jammed with laboring men returning to the city, and" was obstructed with tool boxes and other packages belonging to passengers on the car, and that it was not possible to get upon the platform or into the car proper without stumbling over these tool boxes;, that the car had reached about midway between Lopez and Salcedo before it was possible for him to move from the step of the car to the platform; that when the car had reached the intersection of Salcedo Street, or one square from the point where he had boarded the car, he had both feet upon the edge of the platform of the car; that when the car was proceeding over the said intersection he endeavored to take another step, when he stumbled over one of the tool boxes, or packages which obstructed the floor of the platform and which it was not possible to see owing to the crowded condition of the rear platform; that simultaneously with his stumbling, the motorman put on the air brakes of said car which caused said car to suddenly slack its speed, swaying the passengers upon the platform towards the rear of the car, resulting in his being thrown from the car out upon the street; from which he suffered the following injuries: Breaking of the left leg, bruising of hip, dislocation of left shoulder and elbow, and scalp wound; that he was taken to the Charity Hospital where he remained one week; that he was still, on January 5, 1925, under the care of a physician, and that his injuries will make him a cripple for the balance of his life; that it is customary for passengers to ride upon the steps and rear platform of defendant’s cars, and the defendant permits it to be done.

That he is no longer able to follow his occupation of insurance solicitor; that “his injury was caused by the deliberate, malicious, wanton, wilful, and unlawful action on the part of the defendant’s employees and agents;” that the defendant is liable for its “lack of due diligence, care, and safety;” that it is bound to use the utmost care and skill in the performance of its duties towards petitioner who was a passenger; that it was the duty of the defendant to furnish a safe and unobstructed entrance for" its passengers and not to permit the rear platform to become so crowded with passengers and packages as to endanger and prevent the safe receiving and carriage of passengers boarding said car, and that he in no way contributed to the accident. For all of which plaintiff claims $20,000 damages.

The defendant denied all the allegations of plaintiff’s petition. Further answering it averred, that the plaintiff, while standing on the rear step of the car, lost his balance and fell off the car; “that whatever injuries the plaintiff sustained were due to his own negligence and imprudent conduct in riding upon the platform of the car by the open door, and in failing to take that degree of care required by the circumstances then and there existing,” and that he might have gone into the car where there was room.

There was judgment for defendant and plaintiff has appealed.

The reasons for judgment were as follows:

The plaintiff boarded an Esplanade car of defendant line inward bound at Lopez Street about 4 or 5 o’clock in the evening.

He alleges that the car was overcrowded and that he stood on the back part of the step leading into the car because, as he avers, the rear platform was so obstructed that he could not enter the body of it as the safest place for passengers to ride. The evidence in part shows that he either stood on the step with both feet or had one foot on the step and the other on the bumper on the back of the car. Either position is unusual for passengers to ride. He rode nearly one entire block when the stopping of the car at the next corner for other passengers jolted him and he fell from his perilous position inflicting the injuries sued for.

It is true that if the Company, by indirection, makes a passenger ride in a dangerous place the passenger is entitled to so ride, and the liability of the defendant is enhanced thereby. But there must be certainty that the accident was not caused by the continuous contributory negligence of the injured party. I think the evidence shows conclusively that the platform forming the entrance of the door of the car, and a safe place for 'passengers, was not so crowded or obstructed that plaintiff could not easily reach a safe place to ride. Even had he used care in the dangerous place lie had taken by holding onto the post of the vestibule, the slight motion resulting from the slowing of the car for its next stop, would not have jolted him off, inflicting the damage sued for. He was guilty of contributory negligence continuously and I think not entitled to judgment. Suit dismissed.

The plaintiff examined two witnesses covering many pages of testimony.®

1st. Prank Grancelloni testified that he boarded the car at the corner of Lopez and Canal at the same time as the plaintiff and also a lady and a littlfe girl; they got into the car, but the witness and the plaintiff could not, because there were fool boxes on the platform; they remained on the lower steps, witness holding the front grab handle and plaintiff behind him;' the tool boxes were scattered all around, right in the passage way, two of them in the doorway .leaving about four inches' passageway for passengers to get into the the ear; he saw no other obstruction; the tool boxes were open,' with carpenter tools protruding, hammers, squares, and things like that; he saw three tool boxes in the doorway about five inches from the edge of the platform; there were about five tool boxes on the platform and about five or six passengers; the conductor was standing in the middle of the platform; the tool boxes prevented plaintiff from getting upon the platform; he asked the conductor to stop the car that he might get off as he and the plaintiff were falling off, but the conductor paid no attention; plaintiff fell right on the corner of Salcedo; he had not gotten on the platform of the street car at all, he was on the back steps all the time; when, he fell off the car he had his right foot on the platform and the other on the steps; he fell backwards; the car was running in the middle of the block about 15 miles an hour; when it got near the corner it reduced its speed to about six miles, when the plaintiff fell on his back towards the lake; when they boarded the car they did not get upon the platform because the conductor rang the bell and did not give them time; after the accident he got back into the car and sat down, and rode to the corner of Dryades; he did not notice any one remove the tool boxes; he gave his name to the plaintiff as a witness; he did not give it to Mr. Murphy, agent for the defendant; there were not many people inside of the car; the tool boxes were laying on the platform within fire inches of the edge and lengthwise of the car, and were. two and a half feet long, laying in a triangle; the plaintiff had his’right foot on the platform and the other on the step; witness never rode on car steps; witness was a chauffeur for the University automobiles.

2nd. R. M. Chamberlain boarded the car at Carrollton Ave.; there were three open tool boxes on the ■ platform and Some kindling wood and half dozen passengers; the inside of the car was not crowded, there were vacant seats in front; he had no difficulty getting into the car noticing his step.

3rd. The plaintiff testified that he boarded the car at Canal and Lopez coming into town; four other persons were waiting to take the car, a lady and a child and two other men; the entrance of the car was' blocked with the tool boxes and bundles of wood; the lady pmd the child got into the car and the other gentleman next; he was the last one to board the car; he did not get into the car because it moved on before he had time to get in; he was holding on to the post of the rear vestibule with his left hand, trying to get into position to get into the car; these tool boxes were in his way not more than four inches from the end of the car; two or three feet long and ten inches deep and wide; hammer handles, and a square, and a hand saw were protruding from them; it was necessary to step over them or to go between them to work your way into the car; there were ten to twelve inches between the boxes; he was hurt in making an effort to get on to the platform; he stepped on the platform with one foot, and when he made the other step, he hung his trousers in the handles of one of the tool boxes and the car seemed to come to a sudden stop or slowed its speed up considerably, and hanging his trousers in this handle of the tool box, he lost his balance and it threw him out “backwards.”

On behalf of defendant.

1st. F. B. Martin testified that he was president of the First National Insurance Company; that Chamberlain worked for him from May to July, 1925, as an agent and that the plaintiff was assistant manager over Chamberlain.

2nd. Peter James testified that he boarded the same car at the corner of Lopez and Canal upon which the plaintiff was, and that he had a tool box, with him which he produced; it was a closed box, always closed with a lock on it; his helper, Peters, and another young man got on the car with him; his helper put fhe tool box against the door of the left hand side going into Canal Street and stood in front of witness.; witness stood in the back and on the bumper; there were very few people on the platform, 5 or 6; he saw the accident happen; the plaintiff had one foot on the step and one on the back bumper; he was right near witness on the right hand side; the car was coming to a stop and some man tried to board the car, and he and plaintiff reached for him, and plaintiff lost his balance, and as the car was coming to a stop, plaintiff swung around and fell, and witness jumped off the car and picked him up, and an automobile came along and'took him to the hospital together with witness; there was one tool box on the platform, three shovels and a pick ax, all on the left hand side well out of the way; there was another man on the bumper on his left side; he boarded the car with witness; witness never worked, for the defendant company, was working for Schiro; there were no other obstructions on the platform; the step of* the platform up into the car was absolutely clear; there were lots of room to board the car; there was no one next to plaintiff on the platform, except a little man who was in the front end of the step.

3rd. Elbert Peters testified that he worked for W. D. Cleary and in October last was working for Peter James; he was on the car with James when the accident happened, got on at the same time; was standing on the platform; he put the tool box against the closed door and stood in front of it; there was no other tool box there.

This witness was so uncertain and contradictory in his testimony that, at the suggestion of the Court, the defendant called another witness.

4th. Charles Root is a sheet metal worker; he was on the car at the time of the accident; he was standing on the rear platform between the controller and the edge of the platform; he boarded the car near Carrollton Avenue; there were quite a number of people on the platform; when he boarded the car he did not notice any tool boxes at all on the platform; if a tool box had been right by where he was standing he would have noticed it, he did not notice any against the body of the car; the plaintiff when he fell was standing on the step or the edge of the platform; the car made the regular stop, there was no difference between that stop and the ordinary stop, it did not bother him any; there were a few people on the back platform; he did not try to get in as he was in his working clothes; there was a clear space in front of him; he does not remember seeing any bundles of wood on the platform; he does not think there was any one between him and the step; on the left was the conductor.

5th. Eugene Jones is a painter; he lives down on Frenchmen Street, he boarded the car on Lopez; he was riding on the car from which the accident occurred; he was standing on the back of the bumper, another little fellow was standing along side of him, and then came the platform; the plaintiff had one foot on the step and one on the bumper; there was one tool box on the platform on the left hand side of the car; there were no other tool boxes; the car approached Salcedo Street at an ordinary speed and stopped; no unusual jolt; there was another passenger on the step with the plaintiff; some one tried to board the car before it came to Salcedo Street and slipped; the plaintiff tried to catch him and fell into the street; the owner of the tool box picked him up and drove to the hospital with him; plaintiff had lots of room to get into the car; only a few people in the. vestibule; the pick ax and shovels were on the left hand side in the back by the window.

6th. R. H. Cochran was conductor for the defendant car whence the accident happened; he was standing by the controller; there were half a dozen people on the left hand side of the platform; he believes there was one tool box on the left hand side of the door; with shovels and tools; the plaintiff was standing on the step with his right foot, his left foot on either the bumper or the back fender; the platform was clear all the way through and one could get into the car all right; it was not the crowded condition of the car that made plaintiff assume .the position he was in; no one called upon the witness to stop the car to let him get in.

7th. George E. Murphy, employed by the defendant, investigated the accident, he interviewed Granelloni; Granelloñi told him that he boarded the car at the corner of Lopez and Canal; that he was on the. steps with the plaintiff; that when the car started he lost his balance and the plaintiff attempted to keep him from falling, and in so doing, lost his balance and fell out in the street; the next day he saw the plaintiff who told him that when the car approached the corner of Salcedo, in coming to a stop, it jolted and threw him from the car into the street; he never said anything about toql boxes; both told him the car was crowded.

Several witnesses testified that at the time of the accident the plaintiff was under the influence of liquor and that a flask of whiskey was removed from his hip pocket; others denied this.

We have seen from the opinion of the trial judge that he came to a conclusion on two points:

1st. That the plaintiff, by choice, either stood upon the step with two feet, or with one foot upon the step and the other upon the bumper, on the back of the car, and

2nd. -That the platform was not so crowded with passengers or obstructed with tool boxes that plaintiff could not have easily reached a safe place to ride.

We are of the opinion that the great preponderance of the testimony, both in numbers and in weight supports his opinion and we agree with him.

Having selected that more dangerous position the plaintiff was guilty of negligence. Bosey, et al., vs. L. R. & N. Co., 137 La. 457, 68 So. 824.

“Riding outside of the car on a running step is unusual and dangerous. If one’s negligence proximately contributed to the injury, so that without his concurring fault it would not have happened,, he cannot recover for the injury.” Sibley vs. Rrd., 49 La. Ann. 588, 21 So. 850.
“But if there is standing room within the car it is negligent to occupy the platform * * * So long as there is standing room in the cars he must ride there” * * * upon this point the burden of proof was with the plaintiff. “He must •prove that he was there from necessity and not from choice.” Idem, p. 592.

According, to the plaintiff’s own testimony when he proceeded, to board the car' he saw a thick crowd upon the platform and a number of tool boxes and spades, and bundles of wood obstructing the entrance upon the platform. Notwithstanding these obstacles he voluntarily chose to board the car, to remain upon the step, and to take the. chances and risks of the situation. He did this by choice and not by compulsion. He was not taken by surprise. .“He who loves danger shall perish by it.”

In Olivier vs. Rrd., 43 La. Ann. 804, 9 South. 431, this Court said:

“A party voluntarily boarding a ■ crowded train and taking his place on the platform of a car without complaint or effort to obtain a seat, or other better accommodation, cannot assign the overcrowding of the train as negligence in the railroad company. On the other hand, when the conductor sees him in that position and collects his fare without objection, the Company cannot attribute its occupancy as negligence. In such case the passenger is bound to conduct himself with the care and caution which his position requires, and the Company is bound to guard him from dangers incident to the position arising from its own acts.”

In the case of Hopkins vs. Rrd., 150 La. 61, 90 So. 512, the Court reversed the verdict of a jury and by a divided Court held the defendant liable. The present case seems to rest upon that case for a judgment. But this difference distinguishes the two. In the Hopkins case the plaintiff, a woman, suffered injuries “while alighting from a street car.” She had a right to leave the car and in order to do so she was obliged to pass over, the platform and the Company was under obligation to secure to her a safe exit. While in the case under consideration, the plaintiff was not obliged to board a crowded car, nor to stand upon the steps, for he might have waited for another car. If he chose to board it and with his eyes open, to remain in the dangerous position he. was negligent; and if he suffered from the conditions of the situation he had selected and not from any fault of the defendant he cannot recover from it. Viator vs. N. O. Ry. & Light Co., 139 La. 439, 71 So. 733. Plaintiff attributes his fall to the tool boxes on the platform. But he had seen those. According to him there were three boxes, according to one of his two witnesses there were five boxes. In the case of Williams vs. Liberty Stores, 148 La. 450, the Court held:

“It is negligence for a store proprietor to leave a box in the aisle used by customers inspecting merchandise. A customer in a store who stumbled over a box in an aisle while going in a hurry, the box being in full view for a distance of 27 feet, held contributorily negligent as a matter of law.”

Plaintiff’s main witness, Granelloni, attributes plaintiff’s fall to the jolting of the car when it retarded its speed on. approaching Salcedo Street.

There is no evidence whatever that there were any unusual jolts, or jerks, or jars, or lurches that preceded the stopping of the car. But if there were the defendant could he made liable only for unnecessary or extraordinary jolts, or such as do not necéssarily occur with a careful handling of the car. Moby vs. Morgan’s La. & T. R. R. & Steamship Co., 45 La. Ann. 1329, 14 So. 61; Aiken vs. Southern Pac. Co., 157-120 La. 933, 29 So. 1; McGinn vs. N. O. Ry. & Light Co., 118 La. Ann. 811, 43 So. 458; Bosey vs. L. R. & N., 137 La. Ann. 452, 68 So. 824; Veith vs. N. O. Ry. & Light Co., 152 La. 47, 92 So. 730; Philips vs. Rrd., 106 La. 592, 31 So. 135.

“Prom the whole case, as presented, we conclude that the plaintiff left his seat whilst the car was in motion and took a position upon the lower step of the platform preparatory to alighting, when the car should reach the crossing. It may be that the motorman had slightly miscalculated, and that it became necessary just then to accelerate the motion of the car in order that the rear platform might be exactly over the crossing when the car should stop, and that the plaintiff, resting possibly on one foot, was taken by surprise by the forward movement and lost his balance. But slight irregularities of movement are common incidents of the starting and stopping of street cars, and those who prepare to alight, and who do alight whilst the cars are in motion assume the risk resulting from such irregularities.”
“Therefore his act of leaving his seat and standing was one of the proximate causes of the accident and under well settled law. (Rapaje Dig., Vo. 2, p. 440) precludes recovery if it was done negligently; that is to say, if it was done without necessity and with knowledge, actual or presumptive, of the danger.” Shanblin vs. Rrd., 114 La. 487, 38 So. 421 (473).
“Passengers on electric street cars assume the risk of injury from ordinary jars and jolts incident to the operation of such cars with due care and in the usual manner.” Vincent vs. Rrd., 134 La. 654, 64 So. 654; Sharp vs. N. O. City R. Co., 111 La. 395, 35 So. 614; Masicot vs. N. O. Ry. & Light Co., 141 La. 622, 75 So. 490.


text:
    No. 11,162
    Orleans
    DIXIE BLDG. MATERIAL CO., INC., v. CHARTIER
    (April 23, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Mechanics’ Privileges —Par. 23.
    A furnisher of materials loses his privilege if it is recorded more than 45 days after acceptance of the work.
    2. Louisiana Digest — Mechanics’ Privileges —Par. 45, 46.
    Under Section 5 of Act 139 of 1922' and the amendment thereof by Act 230 of 1924, if the owner fails to require a bond he becomes liable to furnishers of materials to. the same extent as the surety would have been.
    3. Louisiana Digest — Things—Par. 4; Mechanics' Privileges — Par. 8.
    A heater resting upon the floor of a building without other connection to it than its smoke pipe inserted in a crock through the wall is not immovable and does not constitute materials for the erection of the building.
    Appeal from the First City Court. Hon. Val J. Stentz, Judge.
    Action by Dixie Building Material Co., Inc., against Paul Earl Chartier.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Frymire and Ramos, of New Orleans, attorneys for plaintiff, appellant.

      Rene A. Yiosca, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of building materials.

The plaintiff alleged that on January 9, 1926, it sold to J. E. Hagin, contractor, and P. E. Chartier, owner of premises No. 5709 Catina Street, building materials, paints, etc., to the amount of $157.48, which were used by the contractor in the construction and repair of said property; that there was no formal contract recorded in the mortgage office or any bond furnished by Hagin in favor of materialmen as required by law; that plaintiff has a privilege upon the land and' buildings of the property 5709 Catina Street; that on July 27, 1926, plaintiff recorded in the mortgage office his privilege and served attested account's upon said contractor and owner; that the said Hagin on June 30, 1926, filed his schedule in bankruptcy and was adjudicated a bankrupt on the same day, and was therefore relieved of all his debts and specially of the one claimed herein. Plaintiff prayed for judgment for $157.48 against Paul E. Chartier with privilege upon his property.

The defendant excepted that plaintiff’s petition disclosed no cause of action and, for answer, denied all the allegations of each paragraph of the petition.

The plaintiff thereupon filed a supplemental petition in which it reiterated all the allegations of the original petition and further averred that “in the alternative and in the event the Court should decide that your petitioner has no lien upon the premises of the said Paul Earl Chartier, as particularly described in the original petition filed, then your petitioner shows, as a matter of fact and law, that the said Paul Earl Chartier is indebted unto your petitioner in the full and true sum of $157.48 with legal interest from July 26, 1926, and all costs of the petition, by reason of the fact of his failure to comply with the building law of the State of Louisiana being Act 139 of the Acts of the Legislature for the State of Louisiana for the year 1922 in that the said Chartier ' failed to obtain from his contractor, Jamd's E. Hagin, a bond in favor of the furnishers of materials and laborers, the owner who fails to so require a bond being liable to the furnishers of materials to the same extent as the surety on such a bond would have been liable.”

To this supplemental petition, the defendant reiterated his original exception and answer.

The itemized bill annexed to plaintiff’s petition is for bricks, lime and cement, and one crock amounting to $17.98 and $138 for one Sunbeam Heater, and $1.50 for recording his privilege.

There was judgment in favor of plaintiff and against the defendant for $17.98.

From this judgment the plaintiff has appealed.

The defendant has answered the appeal and prayed for judgment rejecting all of plaintiff’s demand.

It was admitted that the defendant was the owner of the property upon which the materials were furnished and that the bill is correct; that the defendant employed Hagin as contractor to repair the property at an expense exceeding $1100 without any written contract or surety, and that defendant has paid Hagin “the full amount due him by way of offset of part of the indebtedness due by the contractor to the owner,” and that there are recorded privileges to an amount exceeding $500; that Hagin completed his contract in February, 1926, and his work was accepted in the same month; that Hagin was discharged as a bankrupt on June 30, 1927; that Hagin was an. independent contractor.

The owner defends on three grounds:

1st. That the plaintiff has no privilege. Plaintiff’s privilege was recorded more than 45 days after acceptance of the work and therefore too late. Section 2 of Act 229 of 1916; Rose vs. Eunice Elec. Theatre, 154 La. 81, 97 So. 322; Cook vs. Carter, 160 La. 88, 106 So. 704.

2nd. No personal claim against the owner. In 1 La. App. 27, Utley Paint Co., we decided under Act 139. of 1922, Sec. 5, that the owner who fails to require a surety in favor of materialmen makes himself personally liable for the payment of materials ordered and used by the contractor.

Defendant argues that this Act has no application to this case which is governed entirely by Act 229 of 1916. He refers to McDonald vs. Harris, 2 La. App. 241.

There was no question in that case of making the owner liable personally.

In the case of Gleisner vs. Hughes, 153 La. 133, 95 So. 529, Act 139 of 1922 was not invoked or interpreted, only Act 229 of 1916.

Rose vs. Eunice Electric Theatre, 154 La. 81, 97 So. 322, involved the same Act and Act 229 of 1916. The Act of 1922 is not mentioned. The same may be said of Cook vs. Carter, 160 La. 88.

But section 5 of the subsequent Acts 139 of 1922, p. 293 and Act 230 of 1924, provides:

“If the bond is found to be insufficient in amount or not to have a proper and solvent surety, or if the owner fails .to require a bond, or if he fails to record the contract and bond during the time herein provided, he shall be liable to subcontractors, journeymen, cartmen, truckmen, workmen, laborers and mechanics, and furnishers of materials to. the same extent as the surety would have been.”

To ignore these statutes and to deny “furnishers of materials” recourse against delinquent owners would be to disregard a plain law. The Act of 1922 is entitled:

“An act relative to building contracts; providing for the bond .to be given in connection therewith * * * and to provide for the protection of materialmen * * * and all others who shall do or perform any work or labor upon or furnish material * * * for any building * * * upon land in this State.”

The repealing clause reads:

“All laws and parts of laws in conflict or inconsistent herewith on the same matter be and the same are hereby repealed, except, etc.”

The Act 167 of 1912 contains the following clause on ¡page 304:

“The purpose of this Act is to require owners to secure bond with solvent and sufficient surety from the undertaker, contractor, master mechanic, or engineer for the protection of all parties interested in ■the contract, as their interests may appear, which said surety is to stand in the place and stead of a defaulting undertaker, contractor, master mechanic, or engineer.”

The same clause is repeated in Act 221 of 1914, p. 420, and in Act 262 of 1916, p. 538.

The argument is made that this is a harsh law that makes one responsible for the payment of another’s debt. Every law has its reason. It was provoked by owners and contractors who undertook work for a price at which it was impossible to build. The contractor would receive the second or third payment, which he would keep as his profit, and then abandon the job without paying the furnishers of materials.

But in this case, if we interpret the admissions correctly, the hardship might be upon the materialmen, if the owner succeeded in his defense. He did not pay the contractor in money, but only “by way of offset of part of the indebtedness due by the contractor to the owner (himself).” The contractor had no right, in law or in morals, to pay his debt to the owner by giving in payment materials which he had not paid for; nor did the owner have the right to apply such unpaid materials to the payment of his contractor’s debt to him. Act 76 of 1926 makes it a misdemeanor for any contractor to apply any money received on account of his contract to any other purpose than the payment of bills for materials furnished to perform his contract.

3rd. We are in accord with the defendant in holding that the Sunbeam heater does not constitute “materials,” which went into the building, as part of it. The evidence is that the heater rests upon the floor like an ordinary stove and that its smoke pipe is inserted into a crock iS the wall to carry away the smoke. No part of the heater is attached permanently to the building with plaster, mortar, or nails; it can be removed without breaking or injuring any part of the building. C. C. 468-469 Act 51 o.f 1912, p. 60, makes heating plants and furnaces “immovable” when actually connected with or attached to the building by the owner for the use or convenience of the building.

In the case of Lhote vs. Fulham, 51 A. 780, the Supreme Court decided that chandeliers screwed to pipes which themselves were immovable by destination did not form part of the building.

See also Scovel vs. Shadyside Co., 137 La. 918, 69 So. 745; Scott et al. vs. Brennan, 161 La. 1017, 109 So. 822.

It is therefore ordered that the judgment be affirmed.


author: WESTERFIELD, J.

text:
    No. 11,265
    Orleans
    LeBLANC v. CHECKER CAB CO., INC.
    (April 23, 1928. Opinion and Decree.)
    (May 21, 1928. Rehearing Refused.)
    (July 2, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4.
    A taxicab driver should regulate the speed of his cab to conform to traffic conditions. On a carnival night when the streets are crowded with automobiles and pedestrians unusual care must be observed by the driver of a taxicab and his cab should be at all times under control and its speed such as to permit a complete stop in a short distance.
    2. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 103.
    No rule obtains, and no standard exists for measuring damages due to physical or mental injuries. The awards in cases are necessarily inaccurate and lacking in uniformity.
    Appeal from Civil District Court, Div. “D.” Hon. Walter A. Gleason, Judge.
    Action by Mrs. Joseph A. Le Blanc against Checker Cab Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Louis L. Rosen, of New Orleans, attorney for plaintiff, appellee.

      P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   OPINION

WESTERFIELD, J.

Plaintiff in her own behalf, and on behalf of her four minor children, claims damages for the negligent killing of her husband, Joseph A. LeBlanc.

The accident, which resulted in the death of LeBlanc, occurred on the night of February 24, 1927, Mardi Graá, just after the passing of the Comus parade at St. Margaret’s Place at the intersection of Prytania and Clio Streets. A taxicab, operated by a servant of the defendant, struck plaintiff, as he stepped on the sidewalk, or, as some witnesses say, after he had reached the sidewalk on the river side of Prytania Street. He was knocked down and rolled over, his ribs were broken, his spleen and liver crushed and otherwise bodily injured. He was conscious of the fatal character of the accident, spoke of his great agony while being transported to the hospital, and died before reaching the hospital.

It is admitted that LeBlanc was without fault, but insisted that the driver of defendant’s cab was also blameless, the accident being imputed to .the fault of an elderly couple by the name of Moran, who, it is alleged ran in front of defendant’s taxicab at a time when the driver could only avoid hitting them by swerving sharply to the left, and in doing so killed LeBlanc, an unavoidable accident due to an emergency, created by the negligent conduct of the Morans.

As has been said, the accident occurred on Mardi Gras night, which is the statement of the witnesses, but counsel, in their brief, say the Thursday before Mardi Gras, or the night of the Moinus parade. We must accept the evidence in the record, but there is little difference, so far as this case is concerned, because as is well known, the streets in the vicinity of carnival parades before, during and just after carnival parades, are crowded with pedestrians. Richard Scott, defendant’s taxicab driver testified that at the time of the accident, he was proceeding up Prytania Street toward Jackson Avenue at about eight or ten miles per hour and at that speed he could stop his cab within three feet, that, as he neared Clio Street, the Morans ran out from a group of people, on the sidewalk, just in front of his cab when only eight'feet from his front fender, and that to avoid hitting them he swerved sharply to the left and struck LeBlanc, who with his wife was just stepping on the sidewalk; that he did not drive on the sidewalk either before or after striking LeBlanc and that LeBlanc was not on the sidewalk when struck, but just stepping out of the street tO’ the banquette; It is difficult to believe that an old couple would dart in front of his moving cab when only eight feet distant. A young couple might do so, for youth is venturesome, but the aged are more conservative, and conscious of their limitations in agility •and otherwise. But if the Morans did, as the witness declared they did, why not stop the cab in the eight feet, since it could be stopped in three. Moreover, the Morans could not have progressed very far in the intersection, since they only entered when the cab was eight feet distant. They must therefore have been near the curb, the lake curb, which according to the testimony was forty feet distant from the opposite curb, where LeBlanc was struck and killed. What necessity was there to swerve to that extent.

But we incline to the view that Scott was driving must faster than he will admit. The Morans testify that when they started to cross they saw the headlights of the taxicab at about Calliope Street, which is one block away. Albert F. Wei-dig, a witness for defendant, testified that when the Morans entered the street the taxicab was 135 feet distant. Two witnesses testify that the morning after the accident they visited the scene and measured the skid marks of an automobile which commenced at the lake side rail of the car track and ended at the curb, forming the corner of Clio and Prytania Streets, and that this track or skid mark measured fifty-six feet. Moreover, the Morans, or, at least, Mr. Moran, was knocked down by the taxicab. According to the taxicab driver Moran and LeBlanc were on opposite sides of the street, almost forty feet distant. It is apparent that the driver is mistaken.

We believe the record establishes the negligence of the taxicab driver, and that he was driving too fast under the conditions obtaining and whatever emergency arose was due 'to that fact.

The Court, a qua, allowed $5,000.00 to the widow and $5,000.00 to the four minor children. Plaintiff asks an increase and defendant would have the amount reduced. Deceased was 54 years old and earned $26.60 a week as a carpenter and millwright. His life expectancy was 18 years. Counsel contends that the loss and support alone amounted to $24,897.60. Perhaps the value of earning capacity of deceased would exceed that sum as it is probable that his wages would be increased from time to time. But courts can not award adequate compensation for this, or other items of damages claimed here and in similar actions. How, we ask, would it be possible to accurately appraise physical or mental suffering, the widow’s grief, or the child’s loss due to the negligent killing of his father or mother.

The sums awarded in these cases are not compensatory and are not standardized. While it may be said that some uniformity should be attempted, so many differences exist in apparently similar cases that little uniformity of award exists or, in the nature of things can be accomplished. In so far as decisions rendered more than ten years ago' are concerned, they are not reliable, because expressed in dollars worth then far more than now, because of the notorious decline in the purchasing power of money.

The considerations we have mentioned influence us in our conclusion to affirm the quantum as allowed by the trial court.

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


text:
    No. 11,292
    Orleans
    RENEAU v. BROWN
    (June 18, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 143.
    No appeal lies from an unsigned judgment. A minute entry, which in the customary phraseology declares “judgment read, rendered and signed in open court, this 16th day of December, 1927” will not prevail over the original judgment in the record which hears no signature.
    Appeal from First City Court, Sec. “C.” Hon. William V. Seeber, Judge.
    Action by James T. Reneau against Mrs. Marie Brown, et als.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed for want of signature to judgment.
    L. Doubourg, of New Orleans, attorney for plaintiff, appellant.
    John Singreen, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The judgment appealed from is not signed.

Appellant obtained an order from this Court, in response to which a certified copy of the minutes of court have been presented wherein appears the words (referring to the judgment in question):

“Judgment read, rendered and signed in open Court, this 16th day of December, 1927.”

This minute entry is relied on to save the situation for appellant because, it is claimed, it is proof that the judgment was signed.

But the original judgment is before us. It contains the identical words we have quoted, and it hears no signature. It is evident that the minute entry is erroneous and written in the stereotyped form which assumes the signing of the judgment as a matter of course.

The appeal must be dismissed. La. Digest, Verbo Appeal, Vol. 1, page 336; Tally vs. Conservation Commission, 3 La. App. 623.


text:
    No. 10,633
    Orleans
    SOUTHERN PRINTING CO., INC., v. COMMUNITY BURIAL SERVICE CORP.
    (April 23, 1928. Opinion and Decree.)
    (June 4, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment will be affirmed when the defendant fails to show that it is erroneous.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Southern Printing Co., Inc., against Community Burial Service Corp. et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Neil A. Armstrong, Jr., of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit on a promissory note.

The plaintiff alleged that it was the holder of a promissory note for $468.50, payable 60 days after date', drawn and endorsed by the defendant, payable and endorsed also by J. P. Hodgkins, and bearing six' per cent per annum interest from date and ten per cent attorney’s fees in case of suit, payable in weekly install-meats', the failure to pay one. installment to mature the whole amount; that the defendant has paid on account $102.75, leaving a balance due of $365.75 for which plaintiff claims judgment with interest and attorney’s fees against the maker and endorser.

The defendant corporation denied every allegation of the petition except the payment of $102.75 on account.

There was judgment for plaintiff against .both defendants and the corporation alone has appealed.

John T. Convery, attorney at law, testified that he made demand of the defendants for the payment of the account due to plaintiff; they stated that they were not able to pay in full but would give a note for $468.50, payable weekly, which he accepted; the note was brought to his office by one of the representatives of the corporation and a payment of $102 was made on account of the note; they several times pleaded for extensions; Mr. Burns told him that he was in charge of the corporation, that Mr. Hodgens was the president, and that he had signed the note.

J. T. Burns testified that he was secretary-treasurer' of the defendant.

H. F. Sirgo testified that he was president of the plaintiff company and that it did printing for the defendant, on- account of which there was a balance due of $365.75; he produced a letter from the defendant dated April 26, 1926, signed by Community Burial Service Corporation, admitting an indebtedness of $365.75.

The defendant produced no witness to deny its indebtedness.

The claim seems to us to be established and therefore the judgment is affirmed.


text:
    No. 10,776
    Orleans
    HOTARD, ET AL., v. PERRILLOUX
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Mandate—Par. 48, 57.
    Authority to make a compromise or a transaction must be express and special.
    2. Louisiana Digest — Servitude—Par. 1, 22, 24.
    The right of the owner of property subject to a servitude of drain to substitute another location for the exercise of the servitude must be determined by the court in case of opposition from the owner of the dominant property.
    Appeal from 24th Judcial District Court, Parish of St. John the Baptist. Hon. J. Robert Rivarde, Judge.
    Action by Noel Hotard et al. against Andr'e P. Perrilloux.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Wiess, Tarrut and Stich, and L. W. Cockfield, of New Orleans, attorneys for plaintiff, appellant.
    C. A. Buchler, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.

On May 28, 1923, in the suit of Vicknair et al. vs. the same defendant, No. 8887, this Court recognized the right of plaintiffs by virtue of contracts and of the law, to drain their lands upon the property of defendants, and affirmed a judgment of the District Court of September 22, 1922, in damages against the defendant for obstructing that right. In that suit the defendant admitted plaintiff’s right of drainage.

That right was again recognized by this Court in an opinion reported in 7 La. App. 281.

Notwithstanding said judgments and said admissions, defendant again resisted plaintiff’s right of drainage, forcing another suit which is the one before us now, in . which plaintiffs reiterated the allegations of the first suit and the decisions above mentioned.

The defendant, did not deny plaintiffs’ rights under the contracts and decisions cited above, but alleged two grounds of defense:

1st, That plaintiffs’ attorney had made an agreement with defendant to substitute another location for the exercise of the right of drainage; and

2nd, That according to Article 777 of the Civil Code they have the right to change the location of the drainage right and that they have tendered to plaintiffs the location agreed upon by plaintiffs’ attorney.

I. S. R. Hotard, son of Noel Hotard, testified that he represented all the plaintiffs in this suit; that as soon as he heard of the proposition of their former attorney to compromise the matter by substituting another drainage canal, he went to the defendant and told him that they were not going to be bound by any agreement Mr. Wilkinson made, with his son and they were not going to be held responsible for Mr. Wilkinson’s actions, and that they never acquiesced in or consented to, the substitution of the ditch of the servient canal, and that it was never offered; and that neither he, nor his father, nor any of the petitioners had authorized Wilkinson to enter into an agreement regarding the change of ditches. That testimony is not denied by either Lawrence or Andre T. Perrilloux, the defendant.

C. C. 2997 (2966): “Thus the power must be express and special to compromise * * * to make a transaction.” C. C. 3071 (3038): “This contract (contract or compromise) must be reduced to writing.”

A mandate relative to real property must be in writing. Reinack vs. Jung, 122 La. 610, 48 So. 124; 6 La. Dig. 691; Moore Planting Co. vs. Morgan’s La. & T. R. R. & S. S. Co., 126 La. 844, 53 So. 22.

II. Article 777 reads as follows:

“The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient. Thus he cannot change the condition of the premises nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
“Yet, if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his right, and the owner of the estate to which the servitude is due cannot refuse it.”

But this right cannot be exercised arbitrarily. In case of refusal of the creditor there must be a judgment of court to determine the right of the debtor estate. 12 Demol., S. 843; 1 Pardeosus, S. 62, 220, 223, 56, 62, 70.

There was judgment in the District Court in favor of the defendant. This was clearly an error.

It is therefore ordered that the judgment appealed from rendered October 13, 1926, be reversed and set aside, and it is now ordered that there be judgment in favor of the plaintiffs, Noel Hotard, Charles D’Arensbourg, Ernest Vieknair, John Wilson, Morris Perrilloux, and John Hall, and against the defendant, Andre T. Perilloux, restraining and enjoining him from interfering with or in any way preventing the plaintiffs above named or their agents from digging and clearing out the drainage ditch mentioned and described in the petition herein, and condemning him to pay all the costs of this suit.


text:
    No. 10,224
    Orleans
    CLARK v. SOVEREIGN CAMP WOODMEN OF THE WORLD
    (June 4, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Associations — Par. 21; Insurance — Par. 169.
    The stipulation in an insurance certificate, issued by a fraternal order, limiting the time in which actions may he brought thereunder to one year is valid.
    Appeal from Civil District Court, Div. “B.” Hon. Mark M. Boatner, Judge.
    Action by Mrs. Delia Clark, tutrix,' against Sovereign Camp Woodmen of the World.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    George Sladovich, of New Orleans, attorney for plaintiff, appellant.
    A. B. Booth ánd P. D. Olivier, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff appeals from a judgment maintaining a plea of prescription of one year as against a suit on a life insurance certificate issued by the defendant, a fraternal order or society.

James B. Murphy held an insurance certificate in the defendant society in which the plaintiff is named as beneficiary. He died June 9, 1920, Mrs. Clark, the present plaintiff, brought a suit on the certificate June 9, 1921. That suit was dismissed on exception of no cause of action by judgment signed July 28, 1922. This suit was filed January 4, 1924. The policy sued on contains a clause reading as follows:

“No suit shall be maintainable to enforce the performance of this contract after one year from the date of such loss.”

Such stipulation is valid. Blanks vs. Insurance Company, 36 La. Ann. 602.

It is clear that this suit was brought after prescription had run, even if the first suit in which the demand was made in plaintiff’s behalf, whereas this suit is brought by her, as tutrix of her minor children, be considered as an interruption of prescription.

The judgment appealed from must be and it is affirmed.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    DARENSBOURG v. CASSANO, ET ALS.
    (April 11, 1928. Opinion and Decree.)
    (May 8, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Automobiles—Par. 8; Pleading — Par. 56.
    Where one is hurt by the negligence of the drivers of two automobiles which collided he can sue both for damages in solido. Exception misjoinder is overruled allowing each defendant to sever his defense from that of the other.
    Appeal from District Court, East Baton Rouge. Hon. Geo. K. Favrot, Judge.
    Action by H. H. Darensbourg against Henry Cassano, et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed, exception of misjoinder overruled, and case remanded to lower court for trial.
    Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    D. J. Sanchez, of Baton Rouge, attorney for Henry Cassano, defendant, appellee, and Cross & Moyse, of Baton Rouge, attorneys for J. L. Jeffries, defendant and appellee.
   ELLIOTT, J.

The petition, exceptions and judgment in this case, are, in all respects like that in the case of Joseph A. Patin vs. the same defendants, except that this suit was brought by H. H. Darensbourg.

For the reasons given by this Court in the suit of Joseph Patin vs. Henry Cassano, et als., this day decided, the judgment appealed from herein is annulled, avoided and set aside.

The exception of misjoinder filed by Henry Cassano and that by J. L. Jeffries are overruled, and the case is remanded to the lower court to be proceeded with in the manner and form prescribed by law.

Defendants to pay the cost of the exception and the cost of appeal.


author: JONES, J.

text:
    No. 11,296
    Orleans
    CONNECTICUT FIRE INS. CO v. HOTEL GRUNEWALD CATERERS, INC.
    (April 23, 1928. Opinion and Decree.)
    (May 20, 1928. Rehearing Refused.)
    (July 2, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Hotels and Inn- ■ keepers — Par. 3.
    The liability of a hotel for loss of baggage where the husband and wife are guests in the same apartment is under Art. 2971 of the Civil Code only one hundred ($100.00) dollars.
    Appeal from Civil District Court, Division “C.” Hon. E. K. Skinner, Judge.

      Action by Connecticut Fire Insurance Co. against Hotel Grünewald Caterers, Inc.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellant.
    John C. Davey, of New Orleans, attorney for plaintiff, appellee. .
   JONES, J.

Plaintiff brings this suit as subrogee of one Joseph Lazarus of Cincinnati, 'Ohio, who with his wife, was a guest at the Hotel Grünewald in February, 1921. A trunk containing the property- of Lazarus was' lost by the. Hotel Company and the plaintiff as insurer of Lazarus paid Lazarus the sum of two thousand ($2,000.00) dollars, taking subrogation to the claim against the Hotel ■ Company.

The loss is proved. Defendant, however, relies upon the limitation of liability expressed in Article 2971 of the Revised Civil Code of Louisiana as follows:

“No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for ‘any loss sustained by such guests or party of guests by theft or otherwise, in any sum exceeding one hundred- dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been contracted for.”

The District .Judge concluded that the liability of the Hotel Company in this case should be limited to one hundred ($100.00) dollars, and accordingly gave judgment in favor of plaintiff for that sum. From this judgment plaintiff has appealed.

Plaintiff in his brief states his contention as follows:

“Your Honor® will note that the limitation of liability provided for by the Article of the Code applies in the case of guests occupying the same apartments or party of guests occupying the same apartments. There is no limitation of liability in the case of a single guest occupying a room by himself. In such cases the innkeeper is liable for the full amount of his guest’s loss. The limitation of liability applies only when there .are two or more guests occupying the same apartments.
“We respectfully submit that where husband and wife occupy the. same room, as happened in the instant case, the limitation of liability should not apply. The liability of the innkeeper should be the same as when a single guest occupies a room by himself, that is, liability for the full amount of the loss.
’“The evident intent of, the Article of the Code is to free the innkeeper of the obligation of guaranteeing his guest against the dishonesty of another -guest occupying the same room. The' law was never intended to apply in.the case of husband and wife occupying the same rooms.”

We agree with the trial judge that such an interpretation of the act is entirely unjustified. As the husband and wife were clearly “guests” of the hotel, they come Within both the letter and the spirit of the law. The use of the plural word “guests” is . justified not only by the rules of grammar, but also by everyday usage. No one would say, “Mr. and Mrs.-: — ■ are a ‘guest’ at the hotel.” Certainly the Legislature never contemplated protection of husband against dishonesty of wife.

We think that a more logical argument could be made to thq effect that it was the intention of the legislature to limit liability generally and, therefore, to use the singular word “guest” as the third word in line three of the above quoted section for it seems tantological to repeat the words “party of guests” after the “guests.”

However, .we do not find it necessary to pass on that point now, as the act clearly covers the present case where husband and wife were guests in the same apartment.

For above reasons the judgment is affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    PARKER v. W. G. BAGLEY LUMBER CO.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 729.
    Where record is incomplete because of omission of lump sum settlement, the case will be remanded for completion of record.
    Appeal from the Parish of Beauregard. Hon. Thos. F. Porter, Judge.
    Action by George W. Parker against W. G. Bagley Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Case remanded for completion of record.
    M. L. Stewart, of Hake Charles, and E. L. Stewart, of DeRidder, attorneys for plaintiff, appellant.
    Cline and Plauche, of Lake Charles, attorneys for defendant, appellee.
   MOUTON, J.

In his written opinion the District Judge says on the trial of the plea of prescription defendant offered in evidence the lump sum settlement agreement between the parties, signed in April, 1924, and approved in that month by the Court.

Appellant contends that the document or proof showing that settlement, is necessary for a proper consideration of this appeal, and that the record is incomplete because of its omission therein or absence therefrom, and prays to have the case remanded for the completion of the record.

It is therefore ordered and decreed that this record be returned to the Clerk of Court of the Parish of Beauregard for completion; that the document or proof hereinabove referred to be inserted in the record of the case¡ and that when complete the record be sent to the Clerk of Court at Lake Charles for the next regular term of this Court in said city.


author: LECHE, J.

text:
    No.-
    First Circuit
    SKINNER v. HEXT
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Payment—Par. 21,24; Evidence — Par. 59.
    Where defendant, in suit on open account pleads payment, the burden is on him to prove it.
    2. Louisiana Digest — Appeal—Par. 625,635.
    Where there is not sufficient showing by defendant, on whom the burden of proving payment rested, that the trial judge erred as to matters of fact, the judgment will be affirmed.
    Appeal from the Parish of Beauregard. Hon. Jerry Cline, Judge.

      Action by Alonzo Skinner against Henry Hext.
    There was judgment for plaintiff and' defendant appealed.
    Judgment affirmed.
    Ped C. Kay, of DeRidder,' attorney for plaintiff, appellee.
    E. L. Stewart, of DeRidder, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sues for a balance due him by defendant on an open account.

The only facts that are made clear in the evidence, are, that plaintiff is a merchant, that defendant bought merchandise from him and owed him at one time six hundred sixty-five and 33-100 dollars; that defendant paid plaintiff on each of two occasions, fifty dollars, thus reducing the debt to $565.33, that subsequently defendant delivered to plaintiff a. quantity of sugar cane syrup, the proceeds whereof were also to be credited to defendant on the open account.

Plaintiff admits as a witness on cross-examination, that he received from defendant syrup of the value of $197.00 or $196.00, then one hundred and ten gallons in half gallon cans, then two hundred and five gallons in one gallon cans. Plaintiff then says that he had consented to accept the syrup at the price of (.85) eighty-five cents per gallon when contained in half gallon cans and (.80) eighty cents per gallon when contained in one gallon cans. He concedes that he could have made mistakes in accounting for the syrup.

Defendant contends that the syrup was worth one dollar per gallon, that he did not know that plaintiff was unwilling to pay more than eighty and eighty-five cents per gallon. In his answer to plaintiff’s demand, defendant claims that he delivered to plaintiff the same amount of syrup which plaintiff admits as a witness, to have received, but that he is entitled to be credited at the rate of one dollar per gallon, instead of eighty and eighty-five cents per gallon.

Taking the admissions of plaintiff as a witness to be true, they do not show an indebtedness to him by defendant, of $258.63 as claimed in his petition, and taking the facts alleged in defendant’s answer as true, they do not support his defense to the effect that he has fully satisfied his indebtedness to plaintiff.

Of course the burden of proving payment rests on the defendant. We do not believe that he has fulfilled this legal requisite. There were filed in evidence, two sheets of note paper covered with figures in pencil, but no writing to indicate what these figures represent, and from these figures defendant contends that even accepting plaintiff’s showing as correct, he is at least entitled to have the judgment of the District Court against him, reduced from $86.79 to $73.93. We do not think that we would be justified in accepting these figures as admissions against interest by plaintiff, as they are unexplained and there is nothing to indicate that plaintiff, if he made the pencil memoranda, intended any such admission.

The evidence is by no means clear to us. The trial judge believed that defendant still owes plaintiff $86.79 and there is not sufficient showing by defendant that the judge has erred. Plaintiff did not appeal and did not answer defendant’s appeal, and the only legal and reasonable disposition that we can make of the appeal, is to affirm the judgment of the District Court, and it is so ordered.