text:
    No. 1930
    Second Circuit
    WILLIAM E. NOEL, SR., v. WILLIAM ELDER
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest—Landlord and Tenant —Par. 102.
    Where the defendant’s demand for damages were on the ground only that plaintiff’s provisional seizure was wrongfully obtained, defendant could not recover for the wrongful seizure of property not subject to seizure under the writ.
    2. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on matters of fact, being manifestly correct, is affirmed.
    3. Louisiana Digest—Landlord and Tenant —Par. 102; Attorneys—Par. 70.
    Where the testimony is not clear to show what portion of attorney’s fees were for defending the suit as a whole and what portion was due for dissolving the writ of provisional seizure, the defendant’s demand for damages for attorney’s fees must be denied.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    This is a suit under a writ of provisional seizure for rent of a tract of land.
    The defendant denied liability and asked that the provisional seizure be dissolved with damages.
    There was judgment for plaintiff and rejecting reconventional demand.
    Defendant appealed..

      Judgment affirmed.
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit under a writ of provisional seizure claiming $650.00 as rent of a tract of land on the Mooringsport-Shreveport road for the years 1921 and 1922.

Defendant denied liability and asked that the writ of provisional seizure be dissolved for the reason that the affidavit on which it was issued was insufficient in law and unfounded in fact, and in reconvention asked for $250.00 damages for the wrongful issuance of the. writ.

There was judgment for plaintiff for $168.50 for rent for the year 1921 and defendant’s reconventional demand was rejected. Defendant has appealed.

The testimony of W. E. Noel, Sr., establishes that defendant leased plaintiff’s farm for the year 1920 and retained same in possession and cultivated same during the years 1921 and 1922.

Under the law of reconduction defendant owed plaintiff rent for the place for the years 1921 and 1922.

The district judge, in a well-reasoned written opinion gave plaintiff judgment for $168.50 as rent for the year 1921, holding that the rental was two bales of cotton per annum, and that defendant had paid the rent for the years 1920 and 1922, and rejected defendant’s demand for damages for the reason that defendant had only asked for damages on the ground that plaintiff’s seizure was wrongfully obtained and therefore defendant could not recover under his pleadings for the wrongful seizure of property not subject to seizure under the writ.

This holding of the District Court is correct.

But defendant insists that the pleadings have been enlarged by evidence introduced without objection.

This principle of pleading is well established and recognized in our jurisprudence, but the evidence relied on by defendant as an enlargement of the pleadings is not sufficient to base a judgment for damages on.

Defendant in his testimony dealing in glittering generalities as to the value of his time and as to the value of oil and gas, but nowhere says that any of his losses complained of was caused by the illegal issuance of the writ of provisional seizure or the illegal seizure of his property under said writ. He frankly admits that he made no complaint to plaintiff or his attorneys on account of his property being seized on which plaintiff had no privilege, and that he made no effort to get the same released from seizure. His en tire effort was directed towards defeating plaintiff’s claim for rent for the year 1921.

Defendant testified, page 29:

“Q. Now this cotton was left there in your care, where it was at the time that it was seized. Is that correct?
“A. Yes, sir.
“Q. Did you ever try, in any way, did you ever go to Noel Bros, or their lawyers and try to get the three bales released, stating that it did not come off the Noel place?
“A. Never have.
“Q. Did you ever go and try to get the corn released on the ground that it was seized fifteen days after it had been removed from the place?
“A. No, 'sir, never did.”

Any damage that might have occurred to the cotton seized under the circumstances as shown by the defendant’s testimony could not be recovered against plaintiff.

Barrimore vs. McFeely, 32 Ann. 1179.

Defendant further testified, page 29:

“Q. How come you to make three trips to see about it?
“A. Three trips; the first trip I made was to see a lawyer and the next time I came back to. see and talk with the lawyer about whether we wanted to get it released or let continue under seizure, and then the trip today.
“Q. No trouble about getting it released?
“A. If we had wanted it released, we could have bonded it.”

And on page 30:

“Q. Did you ever make any effort, ever go. to Noel or his attorneys, and ask for the release of the corn on the ground that it had been removed from the place more than fifteen days?
“A. No, sir.
“Q. Then you came down here to see a lawyer when the seizure first took place, employed a lawyer?
“A. Yes, sir.
“Q. Now what other trip did you make specially to see about the cotton?
“A. Well, the second trip was to see in regard to whether—come to see, thought probably wanted it released, get a general opinion on it, talk to the attorney.”

And on page 24:

“Q. You had a contract with your attorneys, did you?
“A. Yes, sir.
* * * ❖
“Q. For the attorney’s fees for dissolving the writ of provisional seizure, or representing you in the suit generally?
“A. I do not know, both I suppose.”

From this testimony it is clear that the court is unable to say what portion of the attorney’s fees are for defending the suit as a whole and what portion was due for dissolving the writ of provisional seizure, and defendant’s demand for damages for attorney’s fees must be denied.

The judgment of the District Court is correct, and it is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 1936
    Second Circuit
    L. S. FRIERSON v. SHREVEPORT GROCERY COMPANY
    (October 21, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Automobiles—Par. 4 (a), 4 (d); Roads, Bridges and Ferries —Par. 19.
    Where the plaintiff in an automobile accident was driving on the wrong side of the road at a speed of 20 to 25 miles an hour, he was negligent and cannot recover.
    2. Louisiana Digest—Automobiles—Par. 4 (a), 4 (d); Roads, Bridges and Ferries —Par. 19.
    Where the defendant in an automobile accident was driving on the right side of the road at night but without lights he was negligent and cannot recover on a reconventional demand for damages.
    3. Louisiana Digest—Negligence—Par. 39; Pleading—Par. 40.
    It is not necessary to label pleadings as a plea of contributory negligence so long as you set up the facts that constitute contributory negligence.
    4. Louisiana Digest—Pleading—Par. 120, 123.
    Where evidence introduced without objection of contributory negligence, it will have the effect of enlarging the pleadings.
    5. Louisiana Digest—Roads, Bridges and Ferries—Par. 19.
    He who can comply with the laws of the road and does not carries the burden of showing that his fault did not cause the accident.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit arising out of an automobile collision. There was a reconventional demand filed by defendant. Judgment against the plaintiff on the main demand and against the defendant on his reconventional demand.
    Judgment affirmed.
    Herndon and Herndon, of Shreveport, attorneys for plaintiff, appellant.
    C. H. Lyons, of Shreveport, attorney for defendant, appellee.
   REYNOLDS, J.

This is a suit to recover $437.50 damages to plaintiff’s Dodge car caused by a collision between plaintiff’s car and defendant’s truck on the night of October 27, 1922, on or near a curve on the highway near Lucas in Caddo parish.

The defendant denies liability and in re-convention asks for $112.00 damage done to his truck in the collision.

The evidence shows that the collision occurred on or near a curve after dark; that the truck was being driven without lights at a slow rate of speed, three or four miles an hour, on the driver’s extreme right—the correct side of the road.

Plaintiff’s Dodge car at the time of the collision was being driven on the driver’s left—the wrong side of the road—at a speed of between twenty and twenty-five miles an hour; and the driver of plaintiff’s car testified, page 3 of the evidence, that he was within ten or twelve feet of defendant’s truck before he saw it.

In our opinion the drivers of both plaintiff and defendant were at fault and the collision was caused by the joint fault of the two drivers and neither plaintiff nor defendant can recover from the other.

It was negligence on the part of defendant to allow its truck to be driven on the highway after dark without lights, and its demand in reconvention must be denied.

It was negligence on the part of plaintiff to allow his car to be driven on the highway after dark on or around a curve at the driver’s left or wrong side of the road at a speed of from twenty to twenty-five miles an hour to within ten or twelve feet of the truck with three bales of cotton loaded on it before seeing it.

If the curve obstructed the driver’s view it was his duty to slow down and place his car under control so as to be able to steer it around a truck moving very slowly on his side of the road.

If the curve did not obstruct the driver’s view and the lights did not illuminate the road for a greater distance than ten or twelve feet it was the duty of the driver to regulate the speed of his car so as to be able to avoid striking an object when he came within the circle of the radius of his lights; and failing to do so was negligence that bars his right to recover damages from any one he might run into.

The law of the road is a reasonable one and exacts of both parties an equal degree of care.- If the circumstances are such as to compel one to go to the left it is not negligence to do so, but in the absence of such justifying condition the duty of each is to concede to the other his side of the road. He who can and does not, carries the burden of showing that his fault did not cause the accident.

Potter vs. Glassell, 146 La. 687, 83 South. 898.

Where the driver of an automobile chooses to use the wrong or left hand side of a curve at night in the dark he usually does it on account of the rapid rate of speed he is making and he does so at his own risk.

Huddy on Automobiles, section 307.

“One restriction on his speed is that he shall keep the machine under such control and operate it at such speed that he can stop the machine and avoid an obstruction or other traveller within the distance that the highway is illuminated by his lights. As was said in one case: ‘It was negligence for the driver of the automobile to propel it in a dark place in which he had to rely on the lights of his machine at a rate faster than enabled him to stop or avoid any obstruction within the radius of his lights or within the distance to-which his lights would disclose the existence of obstructions. * * * If the lights on the automobile would disclose obstructions only ten yards away it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects further away than ten yards, and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen’. This proposition applies when the driver is making a turn in the road, and is applicable when the bright light from another machine is shining in the face of the driver.”

Plaintiff insists that defendant has not pleaded contributory negligence and hence cannot enjoy the benefit of that defense.

We think the allegation in defendant’s answer:

“That at the time aforesaid, the said truck of defendant had crossed the track coming towards Shreveport just at the point where the said road turns sharply to the left, and as it did so, and while it was still in the bend of the road, the driver thereof, looked ahead and saw the car of the plaintiff coming towards it at some distance away at a very high and rapid rate of speed, which speed was greatly in excess of 25 miles per hour; that the said driver then drove the truck farther to 'the right and got the right front wheel and the right back wheel about two feet off the road to the right and stopped his truck; that the lights on the plaintiff’s car were burning brightly and that plaintiff could easily, with due diligence, have seen the truck of defendant in time to have stopped and avoided the accident; that the said person driving the car of plaintiff did not slacken his speed, and when a short distance from the said truck, he turned the car of plaintiff sharply to the left and crashed into the truck; that the direct and proximate cause of the accident was the speed at which the car of plaintiff was being driven, and the turning of plaintiff’s car sharply to the left as aforesaid; that there was ample room on the right side of the road for plaintiff’s car to have passed without touching the said truck.”
“and that by plaintiff’s negligence in not looking ahead, and by turning sharply to the left when he should have kept to the right, the accident was caused, and that plaintiff had the last clear chance to avoid the accident and failed to do so.” áre equivalent to and in effect constitute the plea of contributory negligence.

It is not necessary to label pleadings as a plea of contributory negligence so long as you set up the facts that constitute contributory negligence. Besides, in this case the evidence establishing contributory negligence was introduced without objection and therefore it must be considered under the well-established rule that evidence introduced by the plaintiff himself or by the defendant without- objection enlarges the pleadings.

Ryan vs. L. N. O. & T. R. Co., 44 La. Ann. 806, 11 South. 30.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


author: ODOM, J. CARVER, J.

text:
    No. 2326
    Second Circuit
    MRS. JULIA S. HANSON v. THE TEXAS COMPANY, ET AL.
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest—Appeal—Par. 628, 629.
    The verdict of the jury and judgment of the court in a suit for damages for personal injuries arising out of an ■automobile accident, causing injuries to a pedestrian, that the defendant was negligent in driving off the pavement where he hit the plaintiff, being manifestly correct, is affirmed.
    2. Louisiana Digest—Damages—Par. 105.
    The verdict of the jury and judgment of the court for $10,000 for injuries and suffering and $743.00 for medical expenses to the plaintiff for permanent personal injuries, including a fracture of the skull about the base of the brain, being manifestly correct, is affirmed.
    (Civil Code, Art. 2315. Editor's note.)
    ON APPLICATION FOR A REHEARING.
    3. Louisiana Digest—Appeal—Par. 628, 629.
    Where the circumstances surrounding an accident, together with the evidence of the witnesses, shows that the defendant was negligent, the verdict of the jury and judgment of the court to that effect must be affirmed.
    4. Louisiana Digest—Damages—Par. 105.
    $10,000 is correct quantum of damages where there was a permanent injury of the skull due to a fracture and some mental impairment which probably would grow worse.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit for personal injuries growing out of an automobile accident caused by the negligent driving of defendant’s chauffeur.
    There was judgment for plaintiff and defendant appealed.
    Plaintiff answered the appeal asking that the amount of the award be increased.
    Judgment affirmed.
    Pugh & Boatner and J. N. Marcantel, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Randall & Freyer, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

This is a suit against The Texas Company and Andrew Gourrier, an employee of said company, in which plaintiff, Mrs. Julia S. Hanson, seeks to recover damages for personal injuries which she received when an automobile driven by said Gourrier struck her.

The case was tried in the District Court before a jury. The plaintiff was awarded $10,000.00 for her injuries and suffering and $743.00 for expenses in the way of medical and hospital bills. The defendants have appealed. Plaintiff has answered the appeal, asking that the amount of the award be increased.

OPINION

Only questions of fact are involved in this case.

It is admitted that the automobile driven by Andrew Gourrier, who was an employee of his co-defendant, The Texas Company, struck and injured plaintiff. Plaintiff charges negligence on the part of the driver of the car. Defendants in answer deny the charges of negligence and aver that the accident was caused solely on account of the carelessness of plaintiff in failing to heed the warnings given by the approaching car and in leaving the place of safety on the side of the road where she was walking and going upon the portion of the road reserved for vehicles.

Defendants, after denying negligence on their part, plead contributory negligence on the part of plaintiff.

The Shreveport-Texarkana highway has a pavement seventeen and one-half feet wide in the center. On each side of this pavement there is a strip of road about five feet wide which is graveled. On July 7, 1924, the plaintiff and her sister, Mrs. Cain, were traveling this road on foot going north. They were walking on the right-hand side of the road on the graveled strip. The two sisters were walking side by side, Mrs. Hanson, the plaintiff, being on the side next to the pavement, and her sister, Mrs. Cain, on the outside, next to the ditch.

The defendant, Gourrier, was in his automobile going north on the road, and as. he overtook them the right-hand fender of his car struck the plaintiff, inflicting the injuries of which she complains.

As we understand the case, it is admitted by counsel on both sides that if the plaintiff was walking on the graveled portion of the road referred to.by counsel as a “place of safety” and was struck by the automobile while on this place of safety, then the defendants are liable. On the contrary, if the driver of the automobile did not leave the paved portion of the road and if the plaintiff left her side of the road and got up on the paved portion thereof in front of the automobile so suddenly that it was impossible for the driver of the car to avoid the accident, then the defendants are not liable.

The whole case, therefore, hinges on the point whether the plaintiff was over on the graveled portion of the road when struck or whether she was on the paved part.

The 'testimony all shows that there was no reason or necessity for the driver of the car to leave the paved portion of the road nor was there any reason why the plaintiff should leave the graveled portion thereof and go over on the pavement.

The plaintiff contends that the driver of the car left the pavement and ran his car over on the graveled portion of the road where she was walking and struck her, and as there was no reason or necessity for him to do so he was grossly negligent and therefore liable.

On the contrary, defendants say that the driver of the car did not leave the pavement but that the plaintiff got on the paved portion of the road unexpectedly by him and that when he discovered her there he could not stop his car in time to avoid the collision.

The accident occurred about 8 o’clock P. M. on the evening of July 7, 1924. The witness says it was about “dusk dark”. At any rate, it was dark enough to make it necessary for motorists to put on their ■lights.

All the testimony shows that the plaintiff and her sister were walking along the road on the right-hand side on the graveled part of the road usually used by pedestrians. Both plaintiff and her sister testify that they were walking close together éngaged in conversation. Neither, it seems, was aware that an automobile was approaching them from the rear. The plaintiff says that she did not hear the car nor did she observe the lights; ' that the first knowledge she had of the presence of the car was when it struck and knocked her down. She is positive in her statement that at the time she was struck she was on the graveled portion of the road and that at no time did she go on the pavement until Gourrier’s car struck her. Mrs. Cain, plaintiff’s sister, says that plaintiff was walking by her side when •the car struck her. She is positive that plaintiff did not leave the graveled portion of the road until struck by the car. She says,' also, that the car ran very close to her, Mrs. Cain, so close that it “swished” her skirts around her ankles. She did not see the car hit her sister as the car approached them from the rear and they were both looking forward.

The defendant Gourrier’s version of the accident is substantially as follows: He was driving north on the paved portion of the road at a moderate rate of speed, about fifteen miles an hour. He saw the plaintiff and her sister walking on the right-hand side of the road on the graveled portion. When he saw them they were about fifty feet ahead of him, and he says that he was looking at them from the moment he first saw them until his car struck plaintiff. He says that he was over on the right-hand side of the paved part of the road and moving in a- straight line and that if plaintiff had continued to walk along the gravel his car would have missed her about eighteen inches or two feet. He says that just as he overtook them the plaintiff either stumbled, stepped or fell over on the pavement in front of his car when it was so close to her that it was impossible for him to stop it in time to avoid the accident.

Aside from some conflicting statements, Gourrier’s testimony is that his car at no time left the paved portion of the road and that plaintiff in some way left the place of safety where she was walking and got in front of his car on the pavement.

His testimony on the main point is corroborated by that of Mr. Golden and his wife and Mrs. Hughes, all three of whom were traveling in an automobile going south on the same road, meeting the other parties at the scene of the accident. Each of these witnesses says that plaintiff and her sister were walking on the side of the road on the gravel as the Gourrier car overtook them; that the Gourrier car was on the paved part of the road, and just at the moment that the car overtook them the plaintiff stepped, stumbled or fell over onto the paved part of the road immediately in front of the car. They each use about the same language in describing how she got onto the pavement. She either “stumbled or fell” or stepped onto the pavement.

We think it fair to state with reference to the testimony of these witnesses that they believe that plaintiff either “stumbled or fell” over onto the paved portion of the road. But our belief is, after a most careful reading and consideration of all the testimony, and considering the surroundings as detailed by all the witnesses, that their statement that plaintiff either “stumbled or fell” is only a conclusion which they have reached from the fact that they saw her walking over on the graveled portion of the road just prior to the moment of the collision and that the Gourrier car was, at the time they first saw it, running on the pavement and that when Gourrier stopped his car after striking plaintiff the car was still on the pavement. When Mr. Gourrier stopped his car it was on the pavement and plaintiff was lying under the. front axle. These witnesses have considered all these facts and have, we think, reached the conclusion that plaintiff either “stumbled or fell” in front of the car. That is the only way they can account for the fact that she got hit.

However, their testimony, taken as a whole and in connection with that of the other witnesses and with all the surroundings, leads us to belive that the conclusion is erroneous.

It must be borne in mind that both plaintiff and Mrs. Cain state that they were over on the side of the road walking side by side at the moment of the collision. They both state that at no time did plaintiff go on the pavement until she was struck by the car.

Mr. Gourrier and each of the other witnesses who testified on the point say that at the time the car struck plaintiff she was standing upright. She was not in a leaning or falling position. It seems reasonable to us to conclude that if she either stumbled or fell her body would have been leaning towards the road instead of being upright at the time she was struck.

Again, Mr. Gourrier says that he saw plaintiff when, he was fifty feet behind her and watched her until the very moment of the accident. According to his testimony he was in a position to see every movement she made. He was asked, page 53 of the testimony:

“Q. What did they do before the accident?
“A. B(efore the accident? Walked straight ahead.
“Q. At the moment of the accident what happened?
“A. As near as I can tell, just like this: As I came out Mrs. Hanson either stepped or fell, or something, in front of me, just as I came there she came in front pf me some way or other; I never could see how she got in front like that; she either stepped or fell.”

If plaintiff made any sudden movement towards the road, Gourrier was in a position to know what that movement was. She either stepped or fell, he says. Being so close to her, with his lights on, if he was watching her as he should have been doing and as he says he was, he should know whether she stepped over onto the road or whether she stumbled and fell.

Plaintiff and Mrs. Cain both say that she did neither.

In view of the fact that Gourrier’s testimony on this point is corroborated by that of the other witnesses who saw that plaintiff either stumbled or fell onto the road, we might be in some doubt on the point if it were not for the fact that the surroundings at the moment of and just before the collision were such as to make it impossible for them to know precisely what happened.

As stated, Gourrier was traveling north on the road, the direction in which plaintiff was walking. At some' distance north of the scene and in front of him, the distance being variously estimated at between 200. and 500 yards, Mr. Golden came onto the highway in his car from a side road. On reaching the main road he turned south and met Gourrier at or within a few feet of where the accident happened. Gourrier says that the Golden car was only 30 or 3.5 feet in front of him when his ear struck plaintiff. All the testimony shows that when the Gourrier car and the Golden car were stopped they were practically opposite each other on the road. The lights on the Golden car were on and there is no testimony that they were dimmed. After the Golden car came into the main road another car approached it from the rear and ran at a rapid rate around it and passed it. This other car, in order to pass the Golden car, ran over on the left-hand side of the road going south—the same side of the road on which Gourrier’s car was running. After passing the Golden car the other car swerved back to the right-hand side of the road and met Gourrier’s car just before the moment of the accident. Therefore, just a moment before and at the time his car struck plaintiff Gourrier had the glare of these headlights in his face which; according to common experience, was sufficient to practically blind him. The witnesses say that this other car had passed on, but just how far none of them stated; but if it be said that this car was out of the way, it is probable that the glare of its lights had affected Gourrier’s vision to some extent at least. Then as soon as he had passed it he was confronted with the lights of the Golden car in the road only a few feet in front of him.

Gourrier had, of course, observed the car which had just passed his and which had run around the Golden car and he, of course, saw the Golden car' coming. We do not think under these conditions Gourrier could see very clearly. Furthermore, seeing this other car getting over on his side of the road in order to pass the Golden car, and having to meet it and the Golden car, naturally caused Gourrier to swerve over to the right in order to avoid a collision with these cars.

This paved part of the road is only seventeen and one-half feet wide, which allows none too much margin between cars meeting. Gourrier, of course, took no chance on a collision with either of them, and in order to he safe -we have no doubt he centered his attention very largely on them and gave them a wide margin. Having his attention centered to some extent at least on the passing cars to his left, and being necessarily blinded somewhat by the bright headlights, he was not .in a position to watch plaintiff all the time, as he says he did, and therefore was not in a position to see and to watch her movements.

His testimony, therefore, that plaintiff stepped or fell onto the road in front of his car, in view of these surroundings and in view of the fact that he cannot say whether she stepped or fell, is greatly weakened, if not destroyed.

The graveled portion of this road where plaintiff was walking is practically, if not quite, on a level with the pavement. We are not informed as to whether the line of demarcation between the edge of the pavement and the gravel is very clear. In view of all the conditions we doubt if either Gourrier or those in the Golden car were in a position to know whether Gourrier’s car got off the pavement or not.

There is nothing in the testimony to show that there was any obstruction on the graveled portion of the road where plaintiff was walking or any depression therein which would cause her to stumble or fall, and there is no suggestion that she had any reason for leaving that portion of the road which she had selected on which to walk and get on the paved portion thereof, and it would seem strange that having selected this portion of the road as a place of safety she would leave it and take a position on the paved portion of the road while an automobile was meeting hpr and only a' few feet in front.

There is some conflict in the testimony given by those witnesses in the Golden car. The only point on which they all agree is that plaintiff either stumbled or fell on the pavement. Mr. Golden, for instance, says that the other car going south did not pass his ear but was in front of him when he got onto the main highway. His wife and Mrs. Hughes, who were in the back seat, both say that this other car overtook them and passed them. Again, Mrs. Hughes says that Mr. and' Mrs. Golden were talking and laughing just before the accident and that Mrs. Golden was “kidding” her husband about something and that she was listening and laughing. However, neither Mr. or Mrs. Golden recall that Mrs. Golden says that she remarked to the others in the car that the plaintiff was walking dangerously near the edge of the pavement. Neither Mr. Golden nor Mrs. Hughes remember this remark, and on cross-examination Mrs. Golden finally admitted that she probably “thought that to herself” and did not make the remark. We are thus caused to wonder why they are all together on the vital point at issue and are apart on other details.

The testimony convinces us that the plaintiff was walking on the gravel when she was struck by the defendant’s car and that she did not get on this pavement until after the collision, and that the accident was caused solely on account of the negligence of the driver of the car in swerving too far to the right.

Our conclusion on this point is strengthened by the undisputed fact that his ear ran very close to Mrs. Cain, who was walking on the outside near the ditch. Plaintiff and Mrs. Cain say they were walking side by side, close together. Other witnesses say that there was a space of two or three feet between them. There is no suggestion that Mrs. Cain made any move toward the road and yet the car ran so close to her that her skirts “swished” around her ankles. Mrs. Cane must have been walking at least four feet from the edge of the pavement, according to all the testimony. Gourrier’s car must therefore have left the pavement in order to run so close to her.

As already stated, it is conceded that if Gourrier' left the pavement and went over on the .gravel where plaintiff was walking and struck her there, he was grossly negligent and that he and The Texas Company, by whom he was employed at the time, are liable.

The most favorable aspect of the case from the standpoint of defendants is that the testimony is conflicting on the vital point, the plaintiff and her sister swearing to one state of facts and the defendants’ witnesses to another.

The case was tried before a jury. The jurors saw the witnesses and heard them testify and.' were in better position, of course, to pass upon their credibility than we are. Their unanimous verdict was in favor of the plaintiff, and we think they made no error. Even if we were in some doubt, we should give great weight to the jury’s verdict, based as it was on questions of fact and on conflicting testimony. Especially in view of the fact that the defendants made no motion for a new trial and this court, therefore, has not the benefit of the views of the trial judge.

See:

Mequet, et al., vs. Algiers Mfg. Co., 147 La. 364, 84 South. 904.
Masicot vs. N. O. Ry. & Light Co., 141 La. 622, 75 South. 490.
Strickland vs. La. Ry. & Nav. Co., 134 La. 238, 63 South. 888.
Bofill vs. N. O. Ry. & Light Co., 135 La. 995, 66 South. 339.

ON THE QUANTUM OP DAMAGES

Plaintiff was knocked down and thrown under the automobile and was seriously injured and permanently disabled. She was carried to a sanitarium on July 7 and remained there until July 30, when she was removed. She was returned to the sanitarium on August 28 and remained there until September 17, being in the sanitarium in all about seven weeks. She was bruised about the body, her skull was badly fractured, she had hemorrhages from the brain, one of her eyes is permanently injured, she had a contusion or bruise over the right eye and right temple, she was unconscious for several hours and had bruises and abrasions on other parts of the body.

Dr. J. D. Young, whose practice is limited to mental and nervous diseases, attended the plaintiff shortly after she was carried to the sanitarium on July 7, and he described her condition as follows:

“At the time I examined Mrs. Hanson she was unconscious, in a state of coma. She had marked abrasions over the right shoulder and on the right leg. Both eyes were completely closed. She had marked rigidity of the neck, complete loss of all reflexes. The right eye was closed. The pupil of the eye on the right side was marked dilated. The right eye was unable to move in any direction at all at that time. She had paralysis of the left side of the face. The X-ray showed a fracture of the right parital, right skull, extending through the base, and due to the fact that there was no depression of the bone and the symptoms indicated marked intracranial pressure, that is pressure within the skull, a spinal puncture was done, and the spinal fluid found and the increased pressure was around thirty milometers, normal twelve, which showed that she had a large hemorrhage into the meninges of the brain, that could drain by the spinal puncture.”

Dr. Young says that he' has treated her since that. He says, on page 78 of the testimony:

“There was a marked hemorrhage of the meninges, the covering of the brain. Several hemorrhages directly into the brain.”

Further describing the injury to the skull, he stated that the fracture extended from the right parital region down to the base. He was asked if the conditions found by him were such as are likely to cause paralysis in any part of the body, and he said:

“Depending upon where the hemorrhages are. We have certain paralysis in Mrs. Hanson’s case. There has been hemorrhage into the mucuos that serves the mid-brain, involving the three meninges on the right side. She also had a hemorrhage into the pois, lower down, involving the right part of the face, causing paralysis or paresis of those nerves.”

He was then asked:

“Are the conditions you found likely to cause nervousness, irritability and a condition of dizziness?”

And he answered:

“Mrs. Hanson, today, is suffering from the standpoint of nervous diseases, with what is called a mild type of argo dementia. That is to say, she has not the full mental capacity of doing tne things that she did before.”

He says that she has marked irritability, manifested by inco-ordination, and that she is unable to do certain mental things that she did before, and that she has marked dizziness, especially with the eyes closed, head thrown back, having a tendency to fall backward. Being asked what he had to say with respect to the permanency of Mrs. Hanson’s condition, and her infirmities, he said:

“The conditions found of lesions of the central nervous system reach their maximum improvement at the end of three months, and I am bound to think that they are permanent.”

He says that Mrs. Hanson is able to do a small amount of work in which there is no risk, such as sweeping and things of that type, but that' for a patient suffering with the condition that Mrs. Hanson is in at this time it is dangerous for her to do any work like that around a cook stove or hot water.

Dr. R. C. Young, an eye specialist, testified that when he first saw the plaintiff she had a marked contusion of the right eye, a marked swelling, “a condition of adenia of the retina of the eye, paralysis of five of the muscles of that eye, all of them except one paralysis or stricture of the pupil”.

He says that she has double vision in the right eye and says that her condition is permanent and that she will never be able, in his opinion, to use both eyes at the same time.

Dr. J. C. Willis testified that he attended and examined the patient and that she had a fracture of the right temporal bone that extended to the base. He says that in addition to his own staff he called in Dr. J. D. Young and Dr. Carl Young. He was asked to state his opinion as to the results of the injuries which the plaintiff received, especially in regard to the impairment of her general physical condition, earning capacity and the like, and he stated:

“That varies quite a good deal, could not say in any particular case, of course, temporarily there is total disability to do anything. Of course, it depends largely on the amount of hemorrhage that occurs at the base of the brain as to how much temporal disability there is, but as to the ultimate result, that is uncertain.”

He further testified that there were hemorrhages of the brain, and he was asked if in his opinion a person who has suffered fracture of the skull about the base of the brain ever fully recovered, and he said:

“I doubt it.”

Under this testimony of the experts we think the jury was warranted in fixing the amount of damages at $10,000.00.

Mrs. Hanson is a young woman, only 32 years of age. She is permanently disabled.

Plaintiff has asked an increase of the amount awarded by the jury. We do not feel disposed to disturb the Verdict as rendered.

There seems to be no dispute over the amount allowed for expenses incurred by plaintiff on account of the accident in the way of medical and hospital bills.

For the reasons assigned it is ordered, adjudged and decreed that the verdict of the jury and the judgment of the lower court based thereon be affirmed with costs.

ON APPLICATION FOR REHEARING

CARVER, J.

In an able brief filed in support of their application for a rehearing defendants’ counsel quote from McGinn vs. N. O. Ry. & L. Co., 118 La. 811, 43 South. 450.

“Were we to sustain the verdict of the jury and the judgment of the court, we would have to ascribe fault to the defendant arbitrarily without any proof, and even really without any suggestion.”

And counsel say that much is the case here.

In the McGinn case a woman passenger on a street car alleged as her cause of action that after the car came to a full stop and while she was rising from her seat to leave the car the conductor gave the motorneer the signal to go ahead, whereupon the motorneer applied the power to the car which then went forward with great force, throwing plaintiff violently down in the' car.

No testimony was introduced to support these allegations. On the contrary, as a witness the plaintiff gave an uncertain, confused and somewhat contradictory account of the accident, saying that the car after stopping did not move either forward or backward but, on the contrary, claiming that something rose up under her. . Her son testified that he neither saw nor heard any signal to go ahead but that the car, after stopping, moved forward about half an inch, saying at one time that he saw but did not hear the jolt and at another that he heard it. He inferred that the motorneer must have applied the power.

The conductor and motorneer both testified that after the car stopped no signal to go ahead was given and the car did not go ahead.

The motorneer further testified that it was not possible for the car to move only half an inch under any way he had of feeding the power.

Pfeifer, a passenger, gave testimony so different from that of all the other witnesses that no notice seems to have been taken of it.

Mueller, the only other passenger, was positive that after stopping the car made no move either forward or backward.

In the Supreme Court plaintiffs’ counsel evidently recognizing his utter failure to prove the negligence alleged, or any other, seems not to have relied on any claim of proven negligence but asked for a judgment on the legal proposition that the contract between a passenger and a carrier for hire being one for safe passage, in case of injury a presumption of negligence arose which the carrier was obliged to rebut. The court said:

“The particular cause assigned by the plaintiff for the accident after the car had come to a full stop at her place of destination was that the conductor in charge of the car gave the motorman the signal to go ahead, upon which signal the latter applied the power to the car, which went forward with great force, throwing her down violently and breaking her leg. This has been disproved. We are satisfied that the car did come to a full stop as she alleges it did, but we are also satisfied that the conductor gave no signal to go ahead, and that the latter did not, in fact, do so. We fail to find any fact disclosed by the evidence which would warrant or justify us even in inferring that either of those employees had been guilty of negligence or failure of duty in any particular. The plaintiff does not pretend that the appliances of the car were not such as they should have been, nor does she intimate that the track was out of order. * * *”

And then added the quotation copied above on which defendant’s counsel rely herein.

We cannot agree with counsel that this is a proper-case in which to pursue the course taken by the Supreme Court in the McGinn ease.

The testimony of plaintiff and her sister, if true, is full proof of negligence on the part of defendant, and we do not find the contrary evidence, such as to warrant us in saying it is not, when the jury evidently believed it.

As to the testimony of the defendant’s witnesses, we deem it unnecessary to add anything to what was said in our original opinion concerning the glaring car lights and other things which easily could have interfered with their ability to make accurate observation of the occurrence.

The physical facts do not seem to us such as to require the inference drawn by defendant’s counsel.

If Gourrier turned to the right, getting off the pavement, and then just as or just after striking plaintiff turned to the left, getting back on the pavement, this, we think, might reasonably account for the location of plaintiff’s wounds and for her position and that of the car when it stopped.

The oncoming of what is called the “unknown car”—swerved to or towards Gourrier’s side of the road as it had to do to pass the Golden car—is a fact quite persuasive towards the conclusion that he did turn toward the right. If he did, and left the pavement, then he surely did make the left-hand turn, because when he stopped he was back on the pavement.

Premising that plaintiff and her sister were walking shoulder to shoulder at the very moment of the accident; that plaintiff was first struck on the left leg; that the inside point of the fender, which is evidently what first struck plaintiff, is 18 inches from the outside point, counsel argue that the account given by plaintiff and her sister cannot be true, because if so the sister would have been struck, which she was not.

None of these circumstances are proven and one at least is not true.

Plaintiff and her sister say they were walking side by side, but this does not necessarily mean side to side. If a foot or two apart, they might reasonably speak ofcthis as side by side.

The width of a Ford fender at its front end and for a few inches back is not 18 inches wide but only about 8 inches.

The plaintiff was dragged about 10 or 11 feet and various parts of her body were struck. It is guesswork to say which part of her body was struck first.

Defendant’s counsel complain that the damages allowed by the jury, $10,000.00, are excessive, and cite many cases where lower awards were made.

In our opinion most of these cases are not comparable to this one and in none of them were the injuries so serious.

Our original opinion fully states the extent of plaintiff’s injuries, amongst which were fracture of the skull, serious and permanent impairment of . vision and nerves, some injury to mentality and practically total destruction of earning power.

Amongst the cases cited by defendant’s counsel are four, in each of which $7500.00 was allowed. These are:

Miley vs. Saw Mill Co., 141 La. 484, 75 South. 214.
Knight vs. V. S. & P. Ry. Co., 142 La 357, 76 South. 799.
Dingle vs. Railway Co., 142 La. 717, 77 South. 513.
Clemmons vs. T. & P. Ry. Co., 148 La. 1050, 88 South. 394.

In the Clemmons case the only injury was the loss of a leg.

In the Dingle case the injuries were dislocation of right knee, splitting of one of the bones of the right leg, which the surgeons thought would necessitate her always walking with crutches, or a crutch and cane, and an injury, not described, but said to be serious, to her right arm, permanently impairing it to some extent. The court found that plaintiff was under no necessity of earning her own living, having devoted daughters who cared for her wants, and this consideration seems to have been an element in fixing the damages as low as was done.

In the Miley case the only injury was to a leg, though it was very serious, crippling Miley for life, but he could probably have his condition improved by having it amputated.

In none of these eáses was there any injury to nerves, eye or mind, which, in our opinion, are three of the most serious injuries which one could suffer.

In the Knight case there was no fracture of the skull and no injury to either eye. There was some mental impairment, though not very much; there was a possibility and perhaps a probability that this would grow worse.

Comparing the injuries in this case to those in the four above mentioned, we cannot say the jury erred in fixing the damages at $10,000.00.

Rehearing refused.


author: CLAIBORNE, J.

text:
    No. 9106
    Orleans
    MIKE SHIELDS v. R. LEE BREMER, Appellant
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest—Evidence—Par. 351.
    The testimony of the defendant that plaintiff told him to retain a certain amount out of a sum of money collected by defendant for plaintiff but denied by plaintiff, is not sufficient to entitle defendant. to a judgment.
    Appeal from Civil District Court, Division “A”. . Hon. Hugh C. Cage, Judge.
    This is a suit for the recovery of money.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. C. Scharff, of New Orleans, attorney for plaintiff, appellee.
    Daly & Hamlin, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for the recovery of money.

The plaintiff, a “horseman”, owned a racehorse. He approached the defendant to secure the loan of $300.00 on his horse. The defendant sometimes takes chances on racehorses. The defendant declined to make the loan, but offered to introduce plaintiff to parties with whom he might deal. Plaintiff accepted. Defendant then introduced plaintiff to Messrs. Netto and Raabe. They all four met at the defendant’s house. In consideration of plaintiff giving Netto and Raabe the name of his horse, which he said would win in the next race, Netto and Raabe agreed that they would bet $100 each on plaintiff’s horse in his name. At the next race Netto and Raabe bet 30 to 1 on plaintiff’s horse, which came ahead by one inch. Plaintiff won $3500.00. Netto and Raabe immediately paid plaintiff $1000.00 and told him to send at their residence for the balance, $2500.00. Plaintiff sent Bremer, who received $2500.00 from Netto. Bremer then paid plaintiff $2000.00. All the above facts are agreed to be correct. But at this point Bremer swears that when plaintiff sent him to collect the $2500.00, plaintiff told him to keep $500.00 for all his trouble in introducing him to Netto and Raabe and collecting the $2500.00.

The plaintiff denied this.

He says that defendant was sufficiently paid by the information given to him of the name of the winning horse, and that it was his fault if he did not take advantage of it.

Defendant says: “I thought I would bet on the horse until I saw. the price, and when I saw the price I was scared out of my wits; I thought the man was crazy.”

The defendant is not corroborated by any witness or by any circumstance. There is no pretense that any promise of reward was made by plaintiff at the conference.

The district judge did not believe the defendant. He gave written reasons for judgment and at the conclusion says: “It was perfectly plain that he, Bremer, believed that Shields had made too much; he wanted a piece for himself. It was nothing more than conversion, it was embezzlement. It was -handed to him by Mr. Netto for the purpose of handing to Mr. Shields, and his retention of a portion of it was a piece of embezzlement and in my opinion he could be indicted and prosecuted for it.”

If not embezzlement it was vicious intro-mission.

The judgment of the District Court is affirmed.


author: WESTERFIELD, J.

text:
    No. 9603
    Orleans
    JAMES ROBINSON, Appellant v. T. SMITH & SONS, INC.
    (Nov. 2, 1925, Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest—Master and Servant— Par. 154, 160 (j).
    Where under the compensation law there is doubt as to the date of recovery of an injured employee, and medical experts, testifying in the cause are uncertain, the doubt will be resolved in favor of the employee in accord with the spirit of the compensation law.
    Appeal from Civil District Court, Division “D”, Parish of Orleans, Hon. Porter Parker, Judge.
    This is a suit for compensation to an injured employee under the Workmen’s Compensation Law, Act No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    E. M. Stafford, Daniel Wendling, of New Orleans, attorneys for plaintiff, appellant.
    Walter Carroll, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit under the compensation law claiming $18.00 per week for thirteen weeks, or $234.00 plus $4.00 for doctor’s fees.

There is no denial of plaintiff’s injury, nor dispute as to the amount of weekly compensation due him under the act. Defendant paid plaintiff the weekly indemnity of- $18.00 for several months, or from February 21, 1922, the date on which plaintiff was injured, to May 10, T922, and discontinued payments on that day on the ground that plaintiff was completely recovered and able to go to work. Plaintiff insists that he did not recover from his injuries until thirteen weeks thereafter and the sole issue before us is one of fact, i. e., when did plaintiff recover from his injuries?

The trial court rendered judgment for defendant dismissing plaintiff’s demand.

The judgment cannot be affirmed, if for no other reason, because defendant has admitted owing four days more and. defendant’s medical expert, Dr. Cole, has testified that plaintiff was able to go to work on May 18, 1922, and since payments stopped on May 10, 1922, there must be at least eight days more of compensation due plaintiff.

But plaintiff says he was incapacitated for thirteen weeks longer. His occupation is that of longshoreman. He is a negro of about 48 years of age and was injured by a piece of heavy timber falling on his left foot. He claims he was unable to return to work until September 1, 1922. His sister, sister-in-law, and two negresses, friends of plaintiff, all testify in support of his contention, saying that he was confined to his home or moved abroad only with the aid of crutches or a cane; that his foot was swollen and. required bathing daily in hot water during all the time for which he claims compensation. Plaintiff called on a Dr. Newman several times after being discharged by Drs. Phillips, Harrison and Cole, a firm of doctors who had been treating him for account of his employer. On the other hand, Dr. Cole testified that plaintiff was well when discharged by him in May, but admitted that there was still a little swelling in the foot. Dr. Henriques, a radiologist, testified that there were no bones broken and that the foot was all right on May 16, 1922, but he also admitted that there was some swelling. There is considerable testimony by both doctors to the effect that plaintiff was a chronic sufferer from hypertrophic arthritis of the dorsum with a spur on the os calcis and in addition had flat feet. It is suggested that a foot thus afflicted might prolong plaintiff’s recovery and that subsequent to May 18, 1922, plaintiff might have been beset, by one of the ancient infirmities of his feet and not the effects of the falling timber. Perhaps, but we are convinced from a perusal of the evidence of the medical experts that James Robinson might and prohahly would have gone to his grave without knowing that the dorsum of his foot was afflicted with hypertrophic arthritis or that there was a spur on his os calcis, if it had not been for the blow on his foot caused by the falling timber. However, we are not satisfied that Robinson should require thirteen weeks to recuperate from an injured foot after two reputable doctors pronounced his foot well enough for him to go to work. Two receipts of two dollars each of Dr. Newman given plaintiff for his fee for office visits are in the record, the last one dated June 13, 1922. Dr. Newman says he was not well on that day, though he cannot say when he recovered. It is unlikely that plaintiff would pay a doctor a fee of two dollars for consultation if his foot was normal. Giving plaintiff the benefit of the doubt, which is in accord with the spirit of the compensation statute, we will allow him six weeks additional compensation.

It is therefore, ordered that the judgment appealed from be reversed and it is now ordered that there be judgment in favor of James Robinson, plaintiff herein, and against defendant, Smith and Son, Inc., in the sum of $108.00, with five per cent interest from June 10, 1922, until paid, with costs of both courts.


text:
    No. 9751
    Orleans
    MARY ALICE GILLESPIE v. MR. AND MRS. GEORGE P. BLAISE, Appellants
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest—Animals—Par. 15.
    The owner of a gentle dog wbieb has always been of a kind temper and has never attempted to bite anyone and has never given occasion to suspect that it would bite, is not liable in damages by the mere fact that the animal has bitten someone.
    2. Louisiana Digest—Animals—Par. 18.
    The owner of a domestic animal is not liable for any injury committed by it when he shows affirmatively that the animal was not previously vicious and that he had no knowledge that it was vicious.
    (Civil Code, Art. 2321. Editor's note.)
    Appeal from Civil District Court, Division “E”. Hon. M. H. Byrnes, Judge.
    This is a damage suit against'the owner of a dog who bit the plaintiff.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Prentice E. Edrington, of New Orleans, attorney for plaintiff, appellee.
    Louis L. Rosen, Chas. Rosen, of New Orleans, attorneys for defendants, appellants. .
   CLAIBORNE, J.

This is a damage suit against the owners of a dog who bit the plaintiff.

The plaintiff alleges that she called upon a person living on Pine street for the purpose of soliciting aid for her' church; that while standing upon the porch of said house waiting for the bell to be answered a large Spitz dog, the property of defendants, escaped from their yard and rushed upon the porch upon which plaintiff was standing, attacked her and bit her upon the calf of the leg, inflicting a painful wound and causing her much fright and confining her to her bed for several days; that Spitz dogs are notoriously vicious; that the defendants’ dog had snapped, attacked, and bitten several other persons prior to that date and that the defendants knew of that fact.

Plaintiff claims $1000 damages.

The defendants denied all the allegations of plaintiff’s petition. Defendants averred that “the said dog is not vicious, but, on the contrary, is a domestic pet and is gentle, docile, kind and friendly, and has never bitten or snapped at anyone to the knowledge of defendants”. They also pleaded that the plaintiff provoked the dog.

There was judgment for plaintiff for $200.00 based on a written opinion.

The defendants have appealed.

The case turns upon the interpretation of Article 2321 (2301) of the Civil Code, which reads as follows:

“The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day he may discharge himself from this responsibility by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done without being allowed to make the abandonment.”

This Article ■ is taken from Article 1385 of the Code Napoleon, which reads as follows:

“The owner of an animal, or the one using it, while he is using it, is responsible for the damage causea by the animal, whether the animal was under his care or whether it had strayed or escaped.”

The leading case upon the subject is Martinez vs. Bernhard, 106 La. 368, 30 South. 901.

The syllabus, written in those days by the organ of the court, reads as follows:

“The "owner of a gentle animal which has always been of a kind temper, and has never attempted to bite anyone, and never given occasion to suspect that it would bite, is not liable in damages by the mere fact that the animal has bitten someone.”

This decision was followed by this court in Ladrix vs. Magio, 8 Orl. App. 167, where the jurisprudence of this state on this question was reviewed.

The Martinez case was cited in Bentz vs. Page, 115 La. 560, 39 South. 599.

"Where a stallkeeper was kicked .by a mule the defendant was held blameless.

The court said:

“In either event it is not shown that the defendant or the foreman had reason to believe that the mule which injured plaintiff was a vicious mule, or that there was any danger to the person who fed it.”

Rabbach vs. Pelican Ice Co., 141 La. 952, 76 South. 160.

The rule announced in the Martinez case is the same at common law.

1 Ruling Case Law p. 1089, S. 33:

“The owner of an animal not "naturally vicious is not answerable for an injury done .by it when in a place where it has a right to be, unless it was in fact and to his knowledge vicious.”

3 C. J. 89, S. 318:

“But the owner of a domestic animal is not liable, in the absence of a statutory provision, unless it is affirmatively shown either (1) that the animal was vicious and that the owner or keeper had knowledge of the fact also.” S. 329.
“At common law the owner of a dog is not liable for injuries caused by it unless it is vicious and notice of that fact is brought home to him.” P. id. p. 97, S. 330.
“If a man keeps a dog or other brute animal used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences if he knows of such evil habit.” Note 13: “But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal.” 2 Blackstone, p. 124, S..153.
“The owner of a domestic animal is not, in general, liable for an injury committed by such animal unless it be shown that he had notice of its vicious propensity.” 2 'Kent. Marginal. p. 348 note. Cooley on Torts, p. 342. Addison on Torts, p. 22, 185 —1 Labat, Master and Servant, S. 206— 2 Sedgwick on Damages, p. 581, Marginal, p. 570. Shearman and Redfield, p. 218, S. 188. 1 Thompson, p. 52, "Wharton, S. 917.

In Spring vs. Edgar, 99 U. S. 645, the court said:

“Damage may be done by a domestic animal kept for use or convenience, but the rule is that the owner is not liable to an action on the ground of negligence without proof that he knew that the animal was accustomed to do mischief. * * * Domestic animals, such as oxen or horses, may injure the person or property of another, hut courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted, the owner of the animals is not liable for such an injury, unless he knew that the animal was accustomed to be vicious, and in suits for such injuries such knowledge must he alleged and proved, as the cause of action arises from the keeping of the animal after the knowledge of its vicious propensity.” Authorities: Spring vs. Edgar, 99 U. S. 645 (654).

In every case in our reports where the owner of an animal was held liable there was evidence that the animal was known by the owner to be dangerous or had injured someone at some prior time. DeLisle vs. Bourriague, 105 La. 84, 29 South. 731; Montgomery vs. Koester, 35 La. Ann. 1091; McGuire vs. Ringrose, 41 La. Ann. 1029, 6 South. 894; Bentz vs. Page, 115 La. 56, 39 South. 599; Serio vs. American Brewing Co., 141 La. 290, 74 South. 998.

In Bentz vs. Page 115 La. 560, 39 South. 599, and Serio vs. American Brewing Co., 141 La. 298, 74 South. 998, the court said:

“In order to bring this case within the ruling of Martinez vs. Bernhard. 106 La. 368, 30 South. 901, it was necessary for defendant to show that the animal had always been of a kind temperament, had never attempted to bite anyone, and had never given occasion to suspect that he would bite.”

Therefore, if the defendant made such proof plaintiff’s suit against her must be dismissed.

Mrs. Blaise testified that she had owned that dog for four or five years and had kept him all that time in her house; it was given to her by Miss Mildred O’Conner; she kept the dog in the back yard if she went out, or in the house when she was homé, because it was her pet; but never kept it under lock and key; a gate separates the back yard from the front yard; her dog never bit anybody nor showed any disposition to bite anybody to her knowledge; she does not keep the .dog as a watch dog but as a pet.

George P. Blaise testified:

“This dog never displayed vicious propensities to his knowledge; never saw it snap at anybody or bite anybody; the children in the neighborhood play with him; the dog never bit any of the children that he knows of; they keep the dog around when visitors come to the house; the dog never snapped at them, on the contrary he wants to make friends; he is a friendly dog.
“Mrs. Pruch is his sister-in-law; she lives in the adjoining half of the double house he lives in; there was no partition in the back and the dog would go there; when they went out of town Mrs. Pruch kept the dog for them; she knows as much about the dog as Mrs. Blaise does.”

Mrs. A. B. Pruch testified that she kept the defendants’ dog many times when they went out; she never did tell Mr. Edrington that she was almost tickled to death when her sister-in-law (Mrs. Blaise) came home in order to relieve her of the work of keeping the dog; she never spoke to him; the dog was a regular pet; she kept him in the house; he was harmless and never did anything; she has known the dog since it was a baby, since Mrs. Blaise had it; never saw the dog bite anybody or snap at anybody nor display any vicious tendencies.

Miss Mildred O’Conner testified that the dog had been given to her; she had it for about four months, and then she gave it to Mrs. Blaise; the whole time she had it it was very nice and never snapped or anything like that; very good disposition; you could play with it and children could and never annoyed anybody coming in the house, even strangers; it was a month old when she got it; she did not give the dog because it was bad, she gave it because she was going away; she is positive the dog was not bad; he barked as all dogs do, but never snapped.

Mrs. Robert Sullivan lives next door to Mrs. Blaise; she has four children; she has a little boy two and a half years old who crosses over and plays with Mickey the dog; last Wednesday, the baby was missing and she went out in the back yard, looked over the fence, and there was Maurice John on Mickey’s back; she has other children who play with it and pet it, and she pets it herself; he never snaps or bites at her or at the children; the children are not afraid of it, they play with it; never saw it snap at anybody; she first saw the dog the day she moved into her house; it was on the porch and she stood there until Mrs. Blaise came and she petted it; she sees the dog very often; she has been on the porch with him time and again alone; it has never snapped; she is from Chicago; moved to New Orleans in October.

Mrs. A. L. Bauers, sworn, said: She lives next door from the house formerly occupied by Mrs. Blaise; she has two children; she knows the dog, Mickey; he is a very friendly dog; I don’t like dogs myself, and yet any time I sit down he will put his head on my knee and want his head scratched; the children have always played up and down with it and it never touched them; the children play right up and down the street; he never snapped or hit that she ever saw. “I don’t think Mickey would ever bite anybody. We take him riding in our automobile; he jumps from one side to the other with the children, in the front and back seats, and never tried to bite anybody, and I don’t think he would.” Mrs. Blaise’s dog is a pet dog; she never saw the dog snap or bite at anybody; in her yard a dozen children played and Mickey would be with them and never snapped at any of them.

John J. Ramp is a plumber; he did some work for the defendant at her house; the dbg was there; he went there four times; ■the dog neither barked nor snapped at him nor bit him; he worked alone in the room with the dog; when he first went there the dog was in the yard and it did not trouble him.

Sigsbee Bagnerise swears; he is a chauffeur for George P. Blaise:

“I have not known him to bite anyone. I took him several' times home and he played with both my kids, one of them about two years and eight months, and he was blowing a horn at him and my little girl had candy in her hand and he was sitting in the chair, the dog was, and when I got ready to go I wanted her to get away from the dog, and she pulled two hands of hair out of him, and that’s all he did. I called him in the car and he came along; never saw him snap at anybody or bite; the dog is about 18 inches high.”

Silas Castine is a gardener for Mr. Blaise; the dog never barked or snapped at anyone or bit anyone; he acts in a friendly way towards strangers.

Cornelius Castine is a son of Silas Castine; he is also employed by the defendants as a gardener. J. B. Spearce works at defendant’s garage. Both testify that they never knew the dog to bark or snap at anyone or to bite; it is loose in the yard.

It was admitted by -counsel for plaintiff that if a witness for the defendant, named Dr. Young, were to be sworn and testify in the case, he would testify to the following facts:

“That he is a partner of Dr. Ford and has been a veterinarian for many years; that he had occasion in 1923 and also in 1924 to clip the Blaise dog, without the necessity of muzzling him on either time, which is unusual, as most dogs are afraid to be clipped and have to be muzzled; that Spitz dogs are generaly not vicious dogs, but “are gentle household pets.”

In order to contradict these witnesses and to prove the vicious character of the dog, the defendants called two colored boys as witnesses; one, Clarence Lewis, a delivery clerk for a grocery store. He testified that Mrs. Blaise had requested him to deliver at her front door and not in the back yard “because the dog was in the hack yard”.

The other, Joseph E. Clark, another delivery clerk.

He testified that the defendant told him “not to go to the back on account he (the dog) might bite me”. Mrs. Blaise denies that she warned them not to pass through the back gate on account of the dog. But if she did, it was only a reasonable precaution, and nothing that indicated that the dog would bite.

She says that she did not want these boys to pass by the gate and through the yard, as she had missed small articles, such as hatchets, hammers, and sprinklers.

We do not think the testimony of these two witnesses overcome defendant’s testimony.

Plaintiff also examined two experts on dogs. It is for the court to determine the weight of expert testimony. 99 U. S. 646.

R. C. Duncan testified that a Spitz or Eskimo dog is “ugly, unreliable, and usually vicious” as a general disposition; they will hite; they have trouble in getting them out of their stalls if the owner is not there; he would class them as pets in the house, but nowhere else; if they get out into the street they are liable to bite or be vicious; the Spitz dogs are a fad; they are used exclusively as pets; a good many people have them as such in this city; he never saw the defendant’s dog; the most vicious of all dogs is the Shepherd, then the Chow or China dog, and last the Spitz; never saw a Spitz dog bite outside of a show; once in a while you will get a vicious airedale; poodles are vicious; a fox terrier will sometimes bite; the English bull dog, that is a mistaken idea, he is an unusually gentle dog; the bull terrier will bite; the pet bull terrier or the búll terrier will often bite.

Silas A. Oviatt, superintendent of dog shows, testified that he got rid of his Spitz dogs because they were troublesome; barked at night; afraid to trust the dogs; could not tell at what time they would bite; his own dogs twice snapped at his relations or family; at times they are docile, at other times snappish and vicious; same as poodles and one or two other dogs; an uneven disposition; the most troublesome dogs at shows are the German police, bulldogs, pet bulls, poodles, chows and Eskimo spitz; a spitz dog should be kept in the house or in the yard; all dogs should be kept inside of the premises; the spitz dog is practically used only as a house pet; all the above named dogs are ninety per cent vicious; all dogs should be kept inside of the yard when not accompanied by their owner.

What these experts say of the spitz may be asserted of the bulldog and of every other dog, that is that dogs of every breed are liable to bite. But because every dog may, as an exception, bite under given conditions, it does not follow that it is negligence or a fault to own a dog, otherwise no one could own a dog without exposing himself to damages. This court has decided that “the mere fact that they were bulldogs, or bull terriers, about a year old and fifteen inches or so in height, does not of itself and alone suffice to show that they were vicious or dangerous, at least there is no evidence that such is the case, and we do not know it of ourselves.” 8 Ct. App. 172.

Some dogs only are vidious.

Plaintiff must prove that the defendant’s dog to her knowledge was vicious in order to charge her with negligence, or defendant may prove that her dog was not vicious or that she did not know that it was vicious, and thus absolve herself from liability.

The witness Ramp testifies;

“I have gone in several houses where spitz dogs were when I was working on the milk wagon, and they never troubled me, plenty places. The only one tackled me was the shepherd.”

It is therefore ordered that the judgment appealed from be reversed and annulled and that there be judgment in favor of the defendants rejecting plaintiff’s demand at her cost.


text:
    No. 9949
    Orleans
    MRS. THERESA PONCET v. SOUTH NEW ORLEANS LIGHT & TRACTION CO., Appellant
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court)
    1. Louisiana Digest—Carriers of Passengers and Goods—Par. 42.
    Tbe fact that a passenger is injured while riding in a street car creates a presumption of negligence' on the part of the Street Railway Company operating the street car.
    2. Louisiana Digest—Pleading—Par. 40, 114.
    Contributory negligence is a special defense and must be specially pleaded.
    3. Louisiana Digest—Carriers of Passengers and Goods—Par. 44.
    The fact that plaintiff’s wrist was in a weakened condition, due to a previous injury, will not be considered in mitigation of damages caused by a blow upon the weakened wrist by a falling screen used by a street railway company as a means of separating the races in its street cars.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    This is a suit for damages for persqnal injury to a passenger in a street car.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Habans & Coleman, of New Orleans, attorneys for plaintiff, appellee.
    McCaleb & McCaleb, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff alleges that while a passenger on a street car owned and operated' by the defendant street rail-the purpose of separating the white and colored races and was seriously injured”. She sues for $5000.00.

Defendant for answer denies in articulate form all the allegations of plaintiff’s petition.

There was judgment helow in plaintiff’s .favor for $1000.00 and both plaintiff and defendant ask its revision in this court.

The evidence convinces us that the accident occurred in the manner described in the petition. In fact, there is no evidence to the contrary except the conductor, who says there was no accident and the motorman who says he. knew of none. The conductor must be mistaken, for several persons, passengers in the car at the time of the accident testify that they saw the screen ■ fall and hit plaintiff. Plaintiff being a passenger and having been injured in defendant’s street car, defendant is presumed to be negligent.

“It is sufficient for a passenger suing on a contract for safe passage to show that he was not set down safely at his destination to throw the burden of explanation on the carrier to prove what negligence and whose prevented the fulfillment of the contractual obligation.”
“The burden is on the carrier to establish affirmatively the contributory negligence of the passenger.”

Hopkins vs. N. O. Ry. and Light Co., 150 La. 62, 90 South. 512.

In the case at bar there is no plea and no proof of contributory negligence. The only question, therefore, which remains is the quantum.

The injury resulting from the accident is thus described by the radiologist who radiographed plaintiff’s wrist:

“Fracture of the styloid process of the ulna, with displacement.”

About a month and a half previous to the accident plaintiff had trouble with the same wrist as a result of a fall, and the description given her injuries then by a way company, she “was struck on the right arm and wrist by the falling of the heavy partition or screen used in the car for different radiologist was “fracture of the styloid process of the ulna, position of fragments good.”

From the evidence in the record we find that plaintiff had broken her wrist in a fall and had practically recovered when she sustained a blow on the same wrist by the falling screen, which broke the same bone again or reopened the broken parts as previously fractured. The only difference between the X-ray picture of plaintiff’s wrist following the first accident and that following the second accident is that in the first case the position of the fragments were good, while in the second case there was said to be displacement. The medical testimony indicates that in the first accident the bones were in correct apposition for calcification or the deposit of lime salts by which nature repairs the damage. In the second accident the broken bones were not in proper relation to each other.

Defendant contends that only nominal damages can be awarded because only slight damages could be caused to a normal wrist by the falling of the screen, and plaintiff must be limited to the recovery of such damages as would have been suffered by a like blow upon a normal wrist. We are referred to Lanier vs. Hammond, 141 La. 829, 75 South. 738 and Caldwell vs. Shreveport, 150 La. 465, 90 South. 763: We do not consider the Lanier case in point. In the Caldwell case it is true the Supreme Court said:

“The evidence shows too that the one and only disease from which locomotor ataxia or tobes dorsalis may result was lurking in plaintiff’s system.
“It appears that the district judge did not make allowance for the fact that plaintiff’s infirmity was not all due to the accident.”

The judgment. of the District Court was reduced from three to two thousand dollars because “plaintiff is entitled to be compensated only for so much of his affliction as is the result of the accident.” (Supra p. 469.) The rule is different under Workmen’s Compensation. See Hicks vs. Meridian Lumber Co. 152 La. 975, 94 South. 903.

In the case at bar the plaintiff had recovered the use of her wrist and hand, and but for the accident of the falling screen would have experienced no further trouble. The mere fact that the wrist of plaintiff was particularly susceptible to injury at the time cannot be considered in mitigation of the damages. In cases involving injuries to pregnant women no allowance is made for the fact that women in that condition are more easily injured and because of their condition more seriously upon light occasion than at other times.

The rule is well stated in Lapleine vs. Railroad and Steamship Co., 40 La. Ann. 661, 4 South. 875. In that case an injured child was said to have been afflicted with latent hysterical diathesis when injured and the court observed at page 665:

“Admitting, therefore, that the child had a latent hysterical diathesis, in order to escape liability it would devolve on defendant to show that such diathesis was by itself a sufficient independent cause which would have operated in producing or aggravating the damage independently of the accident.
“In this defendant has entirely failed.
“If the hysterical diathesis concurred with the accident in producing the damage, in determining which of the two is the proximate cause, we must inquire which was the cause that set the other cause in motion.
“In the language of the Supreme Court of the United States, ‘the proximate cause is the efficient cause, the one that necessarily sets the other causes in motion’. Ins. Co. vs. Boon 95 U. S. 117.
“We are cited to a Colorado case which holds that where the physical condition of the person injured is, at the time of the injury, such that the injuries caused by the negligence,are thereby aggravated, the railway is not liable for that aggravation. P. P. C. Co. vs. Barker, — Col. 344.
“We think, however, the doctrine is not sound and is not in accord .with the weight of authority. The duty of care and of abstaining from injuring another is due to the weak, the sick, the infirm, equally with the healthy .and strong, and when that duty is violated the measure of damage is the injury inflicted, even though that injury might have been aggravated, or might not have happened ' at all but for the peculiar physical condition of the person injured.
“Thus, in one case, a person afflicted with scrofulous disease was injured by the negligence of a municipal corporation in failing to keep its streets in repair, and suffered damage greatly in excess of what he would have suffered but for his disease; yet the court held that the corporation was bound to keep its streets in repair for the sick and infirm as well as for the well, and held the city liable for the whole damage. Stewart vs. Ripon, 38 Wis. 584.
“In another ‘case a pregnant woman was injured, resulting in malformation of the child carried and its subsequent delivery, dead; and the author of the negligence was held liable for the whole damage. Shartle vs. Minneapolis, 17 Min. 301, 10.
“A railway was held liable for cancer following at an interval of three weeks after a blow on the breast of a female. B. C. P. Railway, vs. Kemp 61 Md. 74; (see also) Ry. vs. Buck, 96 Ind. 346; Jucker vs. R. R., 52 Wis. 150; Delic vs. R. R. 51 id. 400; Sauter vs. R. R., 66 N. Y. 50; Beauchamp vs. Mining Co., 50 Mich. 163; Barbee vs. Reese, 60 Miss. 906; Patterson’s Ry. Acc. Law, 29, 278; 2 Thomp. Neg. 1099.”

The district judge allowed $1000.00 and we are not prepared to say the amount is excessive.

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


text:
    No. 10,086
    Orleans
    SALVADORE PALMISANO v. E. J. STEWART, INC., Appellant
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Brokers—Par. 19, 23.
    Where a real estate agent procures a customer, who agrees to buy certain property upon terms fixed, or agreed upon, by the vendor, the agent is entitled to his commission unless it is shown that the customer refuses to consummate the sale. The burden of proving the customer’s default rests upon the proposed vendor.
    Appeal from First City Court, Division “C”. Hon. Wm. Y. Seeber, Judge.
    This is a suit by a real estate agent for a commission.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John T. Convery, of New Orleans, attorney for plaintiff, appellee.
    Frank P. Krieger, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a real estate agent for a commission. Defendant, E. J. Stewart, Inc., is in the business of constructing and selling residences or other buildings upon lots belonging to prospective purchasers and upon occasion defendant will buy the lot and erect such building as the purchaser desires.

Plaintiff, Palmisano, was employed by defendant to solicit buyers, and among other buyers Palmisano secured a Miss Lacoume, who entered into an agreement with defendant for the purchase of a “double residence and store building” to be erected at the corner of Oleander and Dante streets in this city.

The contract between defendant and Miss Lacoume was entered into May 1, 1924, and on May 6, 1924, defendant wrote plaintiff a letter in which it acknowledged an indebtedness to plaintiff in the sum of $200.00 as a commission on the Lacoume contract, together with $287.00 on another contract. Both commissions according to this letter, are “based on homestead payments, or payment of commissions are due and payable as we receive payments from the homesteads, or, if not financed through the homesteads, on the completion of the buildings”.

Miss Lacoume did not take title to the property she contracted to buy, though she deposited $200.00 with Palmisano, who delivered it to defendant as “earnest money” (as counsel argues) or on account of the purchase price, which seems more likely from the terms of the contract.

The question we are called upon to determine is whose fault it was that the sale did not go through. If defendant was to blame, plaintiff must recover, and if Miss Lacoume, plaintiff’s customer, was at fault, then plaintiff cannot recover, for in order for a broker tp collect a commission on a sale there must be an actual sale or a willingness on the part of his customer to go on with the trade. McWilliams vs. Lyons, 5 Orl. App. 231; Loyacano vs. Suc. of Thompson, 4 Orl. App. 345; Gurley vs. Loeffor, 14th Orl. App. 424; Maloney vs. Aschaffenburg, 143 La. 509, 78 South. 761.

But we are unable to determine from the proof submitted whether Stewart, Inc., or Miss Lacoume is the cause of the transaction falling through. Plaintiff alleges, and has offered without objection, some hearsay evidence to the effect that the reason Miss Lacoume did not take the property was because it was not finished in ninety days as agreed upon in her contract with defendant. Defendant, though no special defense is pleaded, has introduced the same kind of evidence, also without objection, for the purpose of proving that Miss Lacoume refused the property because another store had been erected or opened in the same neighborhood and that she feared the competition. But Miss Lacoume, who «might have given us some light on the subject, did not testify, nor does it appear that either side made any effort to obtain her evidence.

It was defendant’s duty to prove that Miss Lacoume was to blame and not plaintiff’s obligation to prove the contrary. When plaintiff brought a customer to defendant who agreed to buy the property upon its terms, plaintiff earned the agreed commission, unless his customer subsequently refused to carry out her contract. Therefore, the burden of proof rested upon defendant to maintain this special defense and this defendant has failed to do.

The judgment appealed from is, for the reasons assigned, affirmed.


text:
    No. 10,092
    Orleans
    ROSINA N. CLESI, WIFE OF GEORGE JACOBS v. BENJAMIN GRISHMAN, Appellant
    (November 2, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Damages—Par. 69, 71, 77, 107.
    A plaintiff who has entrusted a fur to the defendant for redressing will be entitled to recover from the defendant who fails to return the same such sum as will enable plaintiff to purchase another similar fur.
    Appeal from the First City Court, Division “C”. Hon. Wm. Y. Seeber, Judge.
    This is a suit for the return of a fur left with defendant for repairs.
    Defendant’s answer contained a demand for the cost of repairs with the privilege for their payment.

      There was judgment for plaintiff and dismissing defendant’s demand.
    Defendant appealed.
    Judgment amended and affirmed.
    Paul W. Maloney of New Orleans,. attorney for plaintiff, appellee.
    Marx .& Levy, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff' claims the value of a fur.

The plaintiff alleged that in October, 1922, she left with the defendant one otter fur to be retanned, redressed and softened at a cost of $25.00 and to be returned in one month; that she has made repeated demands for the return of said fur without-success, the defendant pretending that he has mislaid the same and offering another in its place which plaintiff refused; that the said fur is valued at $150.00. She prays for a judgment recognizng her as owner of said fur and ordering its return to her or in default for a judgment for $150.00.

The defendant admitted the deposit of the fur with him, but denied all the other allegations; further answering, he averred that the fur left by plaintiff with him for repairs is now in his possession and that the repairs have been made as requested; that he has a privilege upon the same for the payment of the price of the repairs made for $25.00, and that he has always been willing to deliver said fur on payment to him of $25.00. He prayed that plaintiff’s claim be dismissed and for judgment in his favor for $25.00 with privilege.

There was judgment for plaintiff for $110.00 dismissing defendant’s demand.

The defendant has appealed.

The evidence is that when the plaintiff called upon the defendant for her fur, the plaintiff refused to accept the fur tendered to her upon the ground that the fur tendered to her was not.her fur; -that it was not the one she had left with the defendant to be retained, redressed, and softened; that .the one tendered was narrower shorter, and tendered to the plaintiff the same one of a lighter color.

The question therefore is, was the fur which she had left with the defendant.'

The plaintiff swears that she bought that fur as a raw fur, from one Adam Bell, a trapper, in 1919, and that she had it tanned, softened, and dressed by a woman whose name and address she forgot; that the fur was wider and longer and of a dark brown; and that the fur tendered to her by the defendánt was smaller than her fur and of a lighter color, and was not her fur.

Adam Bell has been a trapper for thirty years; he caught the otter and sold the fur to the plaintiff; the fur tendered the plaintiff is not the fur he sold to her; the fur tendered is light brown, while the fur he sold was dark brown; the fur he sold was about 18 inches longer and 6 inches wider.

Plaintiff’s' husband swears his wife’s fur was dark brown.

On the other hand, the defendant, Benjamin Grishman swears that the fur. he tendered the defendant was the same one that she delivered to him; that he had no other otter fur in his store; that he affixed a tag to the fur .when it came in, and that the tag is still there.

Solomon Grishman is a brother of the defendant and connected with him in business; he did not see plaintiff bring the fur, but he saw the fur after the defendant took it in to be reworked and saw the tag upon it; the defendant' had no other fur in the house.

We believe the preponderance of the testimony is with the plaintiff. Her testimony is corroborated by that of Bell, who is a disinterested witness.

Besides, the trial, judge was of that opinion.

The defendant’s testimony is only partially corroborated by that of his brother, who is an interested witness.

As to the measure of damages, the rule of law is that when a contract is broken the market value at the time of the breach is to govern the assessment of damages. Seaton vs. Second Municipality of New Orleans, 3 La. Ann. 44; 8 Ruling Case Law 487.

The value of property taken or destroyed is to be determined by the time and place of its taking. Simon & Loeb vs. S. S. Fung Shuey, 21 La. Ann. 363; Lewis & O’Neil, Skipwith & Osborn vs. The Ship “Success”, 18 La. Ann. 1.

The value is of such sum as will enable the owner to buy other property to replace the one claimed. Cottain vs. I. C. R. R. D. No. 9065 Orl. App.

The evidence in this case is that the plaintiff paid $75.00 for the fur and $35.00 for tanning and-1 dressing it.

But Bell testifies, however, that at the time he sold the fur, the market price for such furs was only $40.00 or $50.00; he obtained that price only because he did not want to sell the fur and plaintiff wanted it.

The testimony also is that at the time defendant failed to return the fur the price was about $50.00. We must take into consideration the fact that the fur in 1922 was probably not in as good condition as in 1919 and therefore not as valuable.

We cannot take in consideration the cost of the original tanning and dressing.

The advantages of those had evidently disappeared inasmuch as plaintiff had taken the fur to the defendant to be re-tanned and redressed and softened.

The plaintiff is therefore entitled only to $50.00.

It is therefore ordered that the judgment herein be amended by reducing the amount of the same allowed to plaintiff from one hundred and ten dollars to fifty dollars; and as thus amended the judgment is affirmed at the cost of the defendant in both courts.