author: MOUTON, J.

text:
    No. 599
    First Circuit
    McCASKY REGISTER CO. v. SMITH
    (May 6, 1930. Opinion and Decree.)
    Hiddleston Kenner, of Lacombe, attorney for plaintiff, appellant.
    A. D. Schwartz, of Covington, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff company, through its salesman, H. W. Torlage, sold a cash, register and a credit system, two distinct appliances, to defendant.

The cash register, including one dozen rolls at $2 for $282; and the credit system at $627.

The sum of $32 was paid cash on the cash register, leaving a balance on the contract of $250, for which defendant gave his note.

Fifty-two dollars was paid cash on the price of the credit system, and upon which a credit of $150 was allowed under the contract for an old system defendant had in use, leaving a balance of $425 represented by a promissory note executed By defendant. Defendant subsequently paid an installment of $25 on tbe last-mentioned obligation, reducing it to a balance of $400. Plaintiff admits receiving $33.34 on account of the note of $250, leaving a balance thereon of $216, thus totaling on the two notes a balance of $616.66. He claims interest in the sum of $20 o<n the $400 note, and $12.50 on the other.

He is also asking $71 for surety sales-books, and 500 special separate score cards he alleges to have sold defendant, May 5, 1927; also, $8.50 for a carriage A-27 cash system sold defendant; and $150 attorney’s fees.

Defendant in his answer admits the execution of the two notes, but denies any liability thereunder. He admits that the surety salesbooks and score cards were shipped to- him, but denies any liability therefor, avers that the carriage cash system was also shipped but without his consent or knowledge, and that it was never accepted by him. He denies that he is liable for the attorney’s fees, but admits he paid $58.34 on the two notes, in cash, as by plaintiff alleged, but avers that $25 thereof was paid through misapprehension and error.

Further answering, he pleads that the contract signed April 27, 1927 — which embodied the amount for the note of $425 after deducting the cash payment and the credit for the old system, to which we have hereinabove referred — was signed through error brought about and resulting from artifice on the part of the agents or officers of the plaintiff company. He then pleads payment in full of the note for $280, meaning the contract, upon which, as we have before stated, a payment of $32 in cash had been made. This contract really amounted to $282, including one dozen rolls to which we have heretofore referred, leaving a balance of $250, after deducting the $3'S cash payment, and for which amount of $250 the note was executed.

He pleads that in the return of shipment of the goods and wares for which he disclaims liability he has incurred an expense of $50, which he has paid to minimize damages, and claims that amount in re-convention.

The district judge rejected plaintiff’s demand, and likewise defendant’s claim in re-convention.

Plaintiff appeals.

The main complaint of defendant, as appears from his testimony, is directed to the written contract in reference to his purchase of the credit system. He says it was understood with Torlage, the salesman for plaintiff, that he had the privilege of returning the machine, if, after trying it out, it was not satisfactory. It is clearly shown that the contract was placed on a desk in defendant’s place of business where he signed it. His daughter and a clerk, Henry Smith, were near by at the time, and so was Torlage, the salesman. There is no proof whatsoever of any fraud, deceit, or artifice being practiced on defendant. His signature was voluntarily affixed to the contract, and there is no evidence upon which a plea of error could be grounded. The defendant says that he did not read the contract before signing it, but as there was no fraud, misrepresentation, or error appearing prior to or when it was executed, he cannot be relieved of his obligations thereunder because he signed it without reading the agreement. Franks vs. Davis Bros. Lumber Co., 146 La. 803, 84 So. 101.

The fact is that the contract had across its face in large, striking type and in capital letters the words, “CAUTION — NO GOODS SOLD ON TRIAL,” and immediately following in smaller print an express agreement that the order was exclusive, and could not be altered by “any verbal agreement or understanding.” It is impossible to believe that he signed this contract without having noticed the caution it carried so conspicuously that a defective eye could have seen it.

Although he was bound by the agreement, as we before stated, even if he did not read it, we will, however, consider the evidence relative to his contention that the salesman had given him the right to return the credit system if it did not suit him.

This salesman Torlage, unqualifiedly denies that he gave defendant any such optional right. Torlage says that when the contract was signed defendant asked him in case he was unable to use the system if he would not take it ‘‘off of his hands.” Torlage answered that it would not be taken back by the company, but if defendant later on could not use it he would try to dispose of it for him, and which he did.

In connection with this statement by the salesman, a letter written by defendant to plaintiff company throws some light on the subject under discussion. In that letter, which is dated September 8, 1927, about four months after the contract was signed and the notes executed, defendant, after saying he is unable to use the machine, thus expresses himself: “Therefore Would thank you to advise if you cannot transfer this machine to some one else.” How well these words “transfer this machine to some one else” correspond with the promise Torlage says he personally made defendant when the contract was signed. Again in the letter defendant continues and says: “Of course we know that this depends upon a sale you are about or may soon make.” That statement embodies almost precisely the relief Torlage had promised if defendant could not use the credit system. In concluding the letter defendant, after stating he was not able to use the machine, finally says: “But find that we cannot consistently do so in our business.” These concluding words are not at all suggestive of any defect or trouble with the machine, and merely say that defendant could not “consistently” use it in his business.

If defendant had had, as he claims, an agreement that he could return the machine if not suitable, it is simply inconceivable that a letter couched in such terms would have been written plaintiff some four months after1 the execution of these contracts and promissory notes. This letter, as we have hereinabove intimated, has no reference to the purchase of the cash register.

The defense urged against the contract and note of $250 for the cash register is one of full payment or settlement. The proof is that defendant paid $32 on that purchase, and the plea of payment in full urged by defendant is therefore not sustained. The evidence shows that the contract for the register was signed at a hotel and not in the store of defendant. The fact remains, however, that the contract was signed with equal opportunity to defendant to read it, and that it was executed without fraud, error, or misrepresentation. Defendant is equally bound on this transaction and note as upon the other, not having settled it as urged in his pleadings.

It was shown that defendant sent a check for $139 to plaintiff with a notation that it was in full settlement of his whole debt, which was declined, and properly for the reasons hereinabove given and did not constitute a legal tender.

As to the claim for $71, we find that the goods were not serviceable as they should have been; and as to the carriage cash system, that it was returned to plaintiff. The amount claimed for these two items is denied. The notes stipulate attorney’s fees at not less than 10 per cent of balance due when placed in the hands of an attorney for collection.

The amount due on the two notes, after making the proper deductions, totals the sum of $616.66.

The note of $425 was made payable in monthly installments divided into 17, and the other divided into 15 payable monthly also. A payment of $25 was made on the $425, leaving a balance of $400, and on the other, a payment of $33.34 for two installments, was received by plaintiff, leaving a balance of $216.66. Plaintiff is entitled to legal interest to the date of the institution of this suit amounting to $8.15 figured on the date the respective installments became due on the $400 note, and to $4.40 on the other note, calculated on the same basis. The sum due on the notes amounts to $616.66, for interest on the notes to $12.55, aggregating a total of $628.26, which plaintiff has the right to recover. He is • also entitled to 10 per cent attorney’s fees on $628.26 and to legal interest on $616.66 from judicial demand.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, except as to the re-conventional demand; and it is further ordered, adjudged, and decreed that plaintiff have judgment against defendant for the sum of $628.26, with 10 per cent attorney’s fees thereon, and legal interest bn $616.66 from judicial demand and cost.


source: Caselaw Access Project

license: Public Domain

text:
    No. 595
    First Circuit
    GREEN v. FREDERICK, SR.
    (April 14, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    Harvey E. Ellis and R. D. Jones, of Covington, attorneys for plaintiff, appellant.
    Morgan & Simmons, of Covington, attorneys for defendant, appellee.
   MOUTON, J.

This suit was originally instituted against Edward J. Frederick. Subsequently by supplemental petition the St. Tammany Ice & Manufacturing Company was made a co-defendant.

In February, 1928, plaintiff leased a dwelling house in Covington from defendant. She alleges that there were no front steps to the house, and that the only means of egress and ingress from and to the house were the rear steps, which were in a bad or defective condition; that while going, on April 18, 1928, out of the premises over the rear steps, they gave way, and that she fell on her back, causing the injuries for which she brings this suit in damages.

Two witnesses for defendant swore that there were no steps in the rear of the building, while plaintiff and her husband testified that there were.

It is obvious that, if there were no rear steps, they could not have given way, and that plaintiff could not have fallen therefrom. This ease revolves around that issue. It appears from the record that there are close neighbors to the house in question, and that from these neighbors or others it could be established with certainty whether there were rear steps or not to the building. If the solution of the case depended solely on the testimony of the four witnesses, two testifying one way and two the other, we would affirm the judgment under the well-recognized rule that, when the evidence is conflicting and evenly balanced, the judgment appealed from will not be disturbed.

Here, however, from the peculiar circumstances and facts which appear of record, we find that the ends of justice would not be met by the application of the 'foregoing rule. In connection therewith, it may also be remarked that it is brought to our notice in plaintiff’s brief that one of the attorneys, Mr. Robert Jones, who represented plaintiff at the trial, was for the first time conducting the trial of a case alone. We will, therefore, in furtherance of justice, remand this case for the reception of evidence to show as to whether or not there were rear steps to the house which was occupied by the plaintiffs, at the time of the accident, and for no other purpose.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided, annulled, and reversed; and that the case be, and is hereby, remanded for the reception of evidence in accordance with the views hereinabove expressed; appellee to pay the cost of this appeal, those of the lower court to abide the decision of the case.

LeBLANC, J., not participating.


author: LeBLANC, J.

text:
    No. 643
    First Circuit
    THE LONG-BELL LUMBER CO., INDUSTRIAL LUMBER CO., INC., FOREST LUMBER COMPANY v. LA. TAX COMMISSION ET AL.
    (May 6, 1930. Opinion and Decree.)

      F. E.. Powell, of De Bidder; Thompson & Ferguson, of Leesville; Hackenyos, Provosty & Staples; White, Holloman & White and C. K. Staples, of Alexandria, attorneys for plaintiffs, appellees.
    C. D. Reed, of Oakdale, and Rene A. Yiosca, of New Orleans, attorneys for defendants, appellants.
   LeBLANC, J.

The issues in these three cases are the same. They were consolidated in the lower court for the purpose of trial, and the evidence in each was to be considered in all, as far as it was applicable.

From a judgment favorable to each plaintiff in the district court, an .appeal was granted to the defendants in each case. In this court, the cases are again consolidated for argument and hearing.

The question involved is the assessment, for purposes of taxation, of cut-over pine lands in Allen parish. The combined area comprises approximately .60,000 acres. Each owner had returned his acreage for assessment at $3 per acre. The taxing authorities increased the valuation in each case to $4.25 per acre, whereupon these suits were instituted to have the increased valuations declared illegal, null, and void, and to have the court order the proper reduction, basing the amount of taxes on an assessment of $3 per acre.

For the purpose of taxation, the price for which land can sell for cash, without incumbrance, is to be used as the actual cash value in making the assessment. There is an abundance of evidence in these cases, that these lands, taken as a whole, do not have a selling value of more than $3 per acre. Indeed, as we read the brief of counsel for defendants, they yield this point, maintaining only that the unit rule or system of assessment cannot be applied in the case of these plaintiffs, as they each have offered for sale and in some cases have actually sold small quantities of these lands at prices exceeding $5 per acre.

In upholding the unit rule, the district judge applied the principle which governed the Supreme Court in deciding the case of Lyon Lumber Co. vs. Louisiana Tax Commission, reported in 158 La. 990, 105 So. 39, 40. In that case the owner had rendered for assessment at $3 per acre some 53,000 acres of land, of which almost 30,000 acres were denuded pine lands, about 1,500 acres hardwood lands and the balance fresh-water marsh-lands. The taxing authorities, as in che present cases, had increased the valuations, and suit was brought to compel a reduction. To this extent it can be said that the main issue involved was the same as we have now before us. After hearing considerable testimony as to the character of those lands, their selling and other values, as well as the unsuccessful efforts that had been made to sell them, the lower court rendered judgment ordering a reduction of the assessment, which judgment was amended by the Supreme Court ordering a still further reduction. In the course of its opinion, the court said:

“The land of plaintiff lies practically in one body. ‘In estimating land which is to be assessed as one parcel, the estimate should he of the whole, and not parts separately, and then added together.’ The question in this case is not ‘what would this or that part of it sell for, if separated from the rest, hut what would the property as it is — as the owner actually holds it — sell for at a fair private sale?’ State Colwell, Prosecutor v. Abbott, 42 N. J. Law, 115; People ex rel. Empire Mort. Co. v. Cantor, 197 App. Div. 437, 189 N. Y. S. 646. We think that this question is clearly answered by the facts of the case. The tract as a whole should be assessed at $3.50 per acre, the price at which the owner still offers the property for sale.”

It would be difficult to escape the force and effect of that language in considering the facts in the cases now before us.

The defendants have built their argument around the expression, “As the owner actually holds it,” as used in the opinion quoted from, contending that the offers for sale and actual sales made by the owners, in these cases, of smaller tracts from the larger area, preclude them from claiming that they hold their lands as a whole. We do not construe that expression as relating so much to the manner in which the owner holds his land for sale, as it does to the way in which he actually and physically owns it. Conceding their point, however, and giving their argument all the force that we can, the facts in these cases refute it, as the evidence is overwhelming that the real desire and intention of the owners is to sell their lands in a body, and as such they offer and hold them for sale. Moreover, it strikes us that the defendants have gone far in recognizing the fact that the lands are held as a unit when they themselves use thé unit system in placing them on the assessment roll at $4.25 per acre. It seems a bit inconsistent for them to use the method of assessing lands at a uniform value per acre and deny that same right to the owner in making his rendition.

The trial judge was correct in holding that a few sales - of smaller tracts by these owners, because of their more favorable location and peculiar conditions that gave them a greater relative value, could afford no reasonable basis for the valuation of the tract as a whole. In an effort to weaken the force of the court’s finding on this point, and in criticism of its calculation of the percentage of the acreage so sold, as compared to the total acreage, counsel for the defendants point to the fact that another corporation holding a vast acreage of land of the same character, has actually disposed of 165,000 acres at an average price of $20 per acre. It is a fact, testified to by Mr. Robert Scalfi, field manager of the Long-Bell Farm Land Corporation, a subsidiary of the Long-Bell Lumber Company, that, out of a holding of about 400,000 acres in Beauregard and other neighboring parishes, he did manage to sell approximately 165,000 acres at an average price of $20 per acre. But it took him sixteen years of hard and persistent effort and the application of the most modern methods of a great sales organization to accomplish that task, and his company found, after balancing their accounts on these sales, that the selling cost per acre averaged $16. Moreover, at this time they have had to repossess 48 per cent, of the quantity sold by reason of default on the part of the buyers on their contracts of sale. In the light of these facts and under these conditions, it can hardly be said that the venture of that company was profitable, and it is very doubtful that the net yield per acre averaged more than $3.

It seems that, in most of the sales of the smaller tracts at prices of $5 or more per acre, the expenses of sale were always correspondingly more, and, besides, any amount realized over $3 per acre was always figured as affording a means of further reducing the average price per acre in offering for sale the tract in a body.

We conclude, as did the district judge, that, considered in its entirety, no one of any of the three tracts of land involved in these cases has a greater cash selling value than $3 per acre, and that, being the value to be used in assessing them for taxation, the plaintiffs are entitled to have them placed on the assessment roll at that valuation.

The judgment in each case is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 11,558
    Orleans
    EAST BANK LAND CO., INC., v. HOFFSTETTER
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Granted by Supreme Court.)
    (May 5, 1930. Opinion and Decree in Supreme Court.)
    Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for plaintiff, appellant.
    Richard A. Dowling and Wm. R. Kinsella, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff corporation is engaged in the business of real estate brokerage. It alleges that it obtained a purchaser for a ipiece of property, owned by defendant, upon terms acceptable to her, as evidenced by her signature to an agreement of sale; that defendant declined to execute the contract, and that therefore plaintiff’s commission is due. Defendant filed ’ an exception of • no cause of action, which was overruled, and on the trial of the case on its merits judgment was rendered in favor of defendant. The exception of no cause of action is based upon an alleged potestative condition in the terms of the offer of purchase of defendant’s property. The price agreed upon in the contract was $8,000, $6,500' of which was conditioned upon the offerer obtaining a homestead loan for that amount, or, as it is .phrased in the contract, “subject to homestead loan of $6,500.00.”

We have repeatedly held that similar conditions in contracts for the purchase of real estate are potestative and deprive the contract of legal validity. Titus vs. Jackson et al., 7 La. App. 37; Parks v. Cilluffa, 7 La. App. 749; Mathews Bros. vs. Schoenberger, 11 La. App. 155, 123 So. 133. In the last-cited case we held that a contract, in which the consideration was stated to he "$6,000.00 cash Bal. thru homestead,” could not be enforced.

In Decker vs. Renaudin, 10 La. App. 725, 122 So. 600, an offer to purchase “subject to homestead loan — gotten thru Conservative Homestead or any obtained by E. P. Smith Co.,” was considered and declared potestative.

In the case of Morrison vs. Mioton et al., 163 La. 1065, 113 So. 456, the Supreme Court held that, where a particular homestead was mentioned (in that ease the Orleans Homestead Association), the condition was not potestative, because its fulfillment was not dependent solely upon the will of the offerer. In the case before us, however, we find nothing to distinguish it from the cases we have referred to, holding similar conditions to be potestative.

The exception of no cause of action should have been maintained, but, since-the trial court, in passing upon the case on its merits, has reached the same result, its judgment will be affirmed.

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


author: ELLIOTT, J.

text:
    No. 612
    First Circuit
    STATE OF LOUISIANA EX REL. LA. HIGHWAY COMMISSION v. YOUNG ET AL.
    (May 6, 1930. Opinion and Decree.)
    Lewis Morgan, of Covington, attorney for plaintiff, appellant.
    Charles T. Wortham, of Donaldsonville, attorney for defendants, appellees.
   ELLIOTT, J.

The state of Louisiana, through the state highway commission, requires the condemnation of a strip of ground belonging to Nelson Young, for the purpose of constructing the Baton Rouge and New Orleans air-line highway. An expropriation suit was brought against Young fo'r the purpose. Numa S. Landry held a mortgage on the property and was made a party defendant on that account.

The defendant in his answer claims $2,-567.06 as the value and worth of the property taken from him, together with losses, expenses, and damages caused by the taking; ■ the total sum claimed being the amount in dispute.

T-here was judgment in the lower court in favor of the plaintiff, awarding the land to the highway commission, and awarding the defendant the sum of $1,250 as compensation for the taking of his land.

The plaintiff moved for and was granted an appeal from the judgment returnable to this court. The defendant moved for and was at the same time granted an appeal returnable to the Supreme Court. The defendant Young appeared in this court and filed a motion to dismiss the appeal taken by the plaintiff to this court, on the ground that it was not made returnable to and was not returned to this court within the time prescribed by the law for appeals taken in expropriation suits. Revised Statutes, sec. 1490.

It appears to us that the amount in dispute is that claimed in the answer, and that jurisdiction of the amount is vested in the Supreme Court.

Therefore, under the authority of Act No. 19 of 1912, it is ordered that the appeal herein brought to this court by the state of Louisiana, through the Louisiana Highway Commission, be transferred to the Supreme Court of Louisiana, on or before June 2, 1930. The clerk of the Court of Appeals to return this record, together with a copy of this decree, to the clerk of court of the parish of Ascension. The clerk- of court of the parish ftf Ascension to make up the transcript, in conformity with the rules of the Supreme Court, and transmit same to the Supreme Court at New Orleans, La., as the law directs.


text:
    No. 597
    First Circuit
    SUCCESSION OF CUMMINGS
    (May 6, 1930. Opinion and Decree.)

      S. W. Provensal, of Slidell, attorney for plaintiff, appellant.
    Harvey E. Ellis and Lindsay W. McDougall, of Covington, attorneys for defendants, appellees.
   ELLIOTT, J.

On motion to dismiss appeal.

Matilda Henderson Cummings, wife of Octave Cummings, departed this life May 12, 1925, intestate, leaving no ascendants nor descendants; but left her husband, Octave Cummings, and a number of people who claimed to be her collateral relatives, such as first and second cousins.

She left property consisting of land and interests in lands. The parties who claim to be her relatives claim that she left debts, and it is admitted that she was indebted to Mrs. O. R. Brugier, also known as Mrs. Josephine E. Brugier.

Rosella Cousin, who claims to have been a cousin, claimed the administration of her estate, received the appointment, and provoked the sale of all of the real estate and interest in real estate which had been left by the decedent.

She alleged in her petition for the sale that the sale was necessary for the purpose of paying debts. An order for the sale was obtained; it was made by the sheriff, and Mrs. O. R. Brugier and L. V. Menard became the purchasers thereat of all the property, a total of $1,385 resulting therefrom.

On April 26, 1927, Octave Cummings, husband of the decedent at the time of her death, alleging that the property had been sold, brought suit against Menard, Mrs. Brugier, and Rosella Cousin, praying that the sale be annulled, avoided and set aside on the ground that it had been made for the purpose of defrauding him out of his property. He alleges that his wife left no debts, except one due to Mrs. O. R. Brugier. That the said Rosella Cummings, Sam Crawford, Severine Smallwood, George Green, Lena Cummings, Charles Henderson, and Carrie Henderson, alleged by Rosella Cousin in her petition to be appointed administratrix. to have been the cousins of the decedent, were not her cousins nor her heirs at law. That his wife left no relatives; that as surviving husband he was her sole heir.

Mrs. O. R. Brugier, usually referred to and appearing by the name of Josephine E. Brugier, and Rosella Cummings appeared and urged against his suit an exception of non-joinder of parties defendant, upon which Sam Crawford, Severine Smallwood, George Green, Lena Cummings, Charles Henderson, and Carrie Henderson were made parties defendant. It was contended that there were still other relatives, upon which Rosa Lawrence, Charlie Benjamin and Gustave Benjamin were also made defendants. And Sam Crawford having died, his heirs, Eugene, Samson, Leslie, Augusta, and James Crawford, were made parties defendant in his place. And Severine Smallwood having also died, Sophie Magee, her heir, was made a party defendant in her place.

On May 14, 1928, Lena Cummings, George Green, Sam Crawford, Rosa Lawrence filed an answer. They alleged in their answer that Matilda Henderson Cummings owed debts other than the one due Mrs. Brugier; denied plaintiff’s charges of fraud alleged against the sale; alleged that they, together with Rosella Cousin, Charles Benjamin, Carrie Benjamin, and Carrie Smallwood were cousins of the decedent, and were, as such, her heirs at law. They deny that the plaintiff had any interest in the property left by his wife. They allege that Charles Henderson, father of Matilda Cummings, had three sisters, to-wit, Rebecca, Matilda, and Elizabeth. That Elizabeth married Gistent Crawford, father of Sam Crawford, defendant, one of the heirs. That Gistent Crawford died and Elizabeth then married Paul Smallwood, father of Severine Small-wood, defendant and heir. That Rebecca married George Green, father of George Green and Lena Cummings, defendants, heirs. That Matilda was the mother of Rosella Lawrence, defendant.

On June 13, 1927, L. V. Menard appeared and excepted to plaintiff’s demand on the ground that his petition disclosed no right or cause of action. This exception by Menard was sustained by judgment rendered June 15, 1927. The judgment sustaining this exception states that evidence was heard on the subject, and that the law and the evidence was in favor of the defendant Menard, and dismissed him from the suit. Supposing the proceedings to have been regular, the only evidence that could have been heard must have been for the purpose of showing that the property in suit had been inherited by Matilda Cummings, and was therefore her separate and paraphernal estate, and that she left collateral relatives, defendants, in which event the plaintiff would have had no right of action to attack the sale. Code of Practice, art. 15. No appeal was taken from this judgment, and it is therefore final.

On July 11th Mrs. Brugier excepted to plaintiff’s demand, urging that his petition disclosed no right or cause of action against her, but this exception was, by order of the court, referred to the merits. Mrs. Brugier then filed an answer in which her demands, averments, and allegations are, in all material respects, similar to those urged in the answer of Lena Cummings, George Green, Sam Crawford, and Rosa Lawrence.

On May 16, 1929, the case was taken up for trial on the answer of Lena Cummings, George Green, Sam Crawford, and Rosa Lawrence, and that of Mrs. Brugier. A statement made at the top of the note of testimony is to the effect that the case was taken up on regular assignment, the counsel for plaintiff not being present, but had been notified of the. assignment. The evidence presented by the defendants was heard and judgment rendered in favor of defendants the same day. The judgment states that the case came on to be heard on the exception of no right or cause of action previously filed, and referred to the merits. That the law and the evidence being in favor of defendants Josephine E. Brugier, Edgla Crawford et al., and against the plaintiff, Octave Cummings, the said exception was sustained and the suit dismissed.

On June 5, 1929, the clerk of court, acting on the suggestion of Octave Cummings, plaintiff, signed an order directing that Rosella Cousin, administratrix, show cause why she should not file an acfcount and produce her bank book. A provisional account was filed on July 8, 1929, but it seems that the bank book was not produced, because July 19, 1929, the chief deputy clerk of court, acting on the suggestion of Octave Cummings, plaintiff, signed a further order directing Rosella Cousin, administratrix, to show cause why she should not be adjudged guilty of contempt for not having produced her bank book. On July 15, 1929, Rosella Cousin, administratrix, excepted to the rule, and she at the same time excepted to an opposition which the said Cummings had filed to her provisional account, on the ground that the said Cummings had “no right or interest in this succession, and no right or cause of action to oppose the said account.” She urged in her exception that it had been decided in the judgment of May 16, 1929, that said Cummings had no right or interest in the succession, and that his suit had been dismissed. That said judgment was res judicata as to the matters decided. She urged the judgment as a bar against his said proceedings against her and also as a bar against his opposition to her account. The court on the same day, to-wit, July 15, 1929, acted on the exception of the administratrix and sustained same, holding that said Cummings had no right nor interest in the succession of the decedent. The effect of this judgment was to not only exclude the opposition which Octave Cummings had filed to the provisional account, but it also set aside the other proceedings which he had instituted against the administratrix.

In his petition for appeal he complains of the judgment of May 16, 1929, in favor of the defendants, Mrs. Brugier, Edgla Crawford et al., and of the two judgments of July 15, 1929, in favor of Rosella Cousin, administratrix. He urges various grounds of complaint, the enumeration of which would be of no help in sustaining his appeal.

The judgment in favor of L. V. Menard, purchaser of part of the property, signed June 15, 1927, sold under the same order and in the same sale,( is final and cannot be reviewed. The result creates a situation, should the review of the proceedings leading to the sale whereby Mrs. Brugier purchased the other part of the property be undertaken, very similar to that which existed in the Succession of Todd, 165 La. 453, 115 So. 653. But that is not a ground on which we think it well to act in this case.

The record shows that Sam Crawford, Josephine E. Brugier became surety on the bond which Rosella Cousin gave as administratrix.

The petition for appeal, article 5, alleges that the judgment rendered, mentioned in article 2 of her petition for appeal, which was the judgment of May 16, 1929, and the judgment on the rule against the administratrix and her surety to show cause why the administratrix should not be taxed with the statutory penalties for failure to obey the order of the court in the production of her bank book, and the judgment refusing to permit him to oppose the provisional account, which were the judgments of July 15, 1929, are contrary to the law and the evidence, and that petitioner is aggrieved thereby and desires to appeal therefrom, devolutively, etc. He then prays as follows:

“Wherefore petitioner prays for an order of devolutive appeal from the judgment rendered May 16th, 1929, and signed the same day, from the judgment on the rule to show cause why the administratrix and her surety should not be condemned to pay the statutory penalties for failure to obey the order of the court in the production of her bank book, and from the judgment denying your petitioner the right to be heard on the opposition to the provisional account,” etc.

Petitioner further prays for service and citation upon Rosella Cousin, ' administratrix, and upon Josephine E. Brugier, surety, and for all costs and all general and equitable relief.

The order of appeal, so far as pertinent, reads:

“Let petitioner be and he is hereby granted a devolutive appeal as prayed for in the foregoing petition, * * * Let a copy of this petition and order and citation of appeal be served upon Rosella Cousin, administratrix, and Josephine E. Brugier, surety, according to law.”

Bond was given and the appeal is before us.

L. V. Menard filed a motion to dismiss the appeal on the ground that several terms of court had passed since June 15, 1927, at which time judgment was rendered in his favor, and no appeal was taken therefrom. That there were a number of defendants, but the only persons given notice of the appeal were Rosella Cousin, administratrix, and Mrs. Josephine E. Brugier. That no appeal having been taken at the term of court at which the judgment in his favor was rendered, and that, as he is not a party to the present appeal, it should be dismissed. We do not act on this motion; no appeal was taken from the judgment rendered in favor of Menard. He is not a party to the appeal; consequently he has no right to have it dismissed.

But Mrs. Josephine E. Brugier and Rosella Cousin, administratrix, have also filed a motion to dismiss. Their motion urges that the appeal be dismissed, on several grounds; one of the grounds urged 'is that no appeal was taken from the judgment signed May 16, 1929, dismissing plaintiff’s suit, at the term at which it was rendered. That there were, besides Mrs. Brugier, a number of other defendants, in whose favor said judgment was rendered. The other parties are named in the motion, and it is urged that these other defendants, not having been made parties to the present appeal, said judgment, meaning the judgment of May 16, 1929, cannot be reviewed.

They also urge against the appeal that none was taken from either of the judgments signed July 15, 1929, at the term of court during which the said judgments were rendered, and that said judgment cannot be reviewed because all the parties defendant are not parties to the present appeal. We understand the meaning of the motion to be that a review of the two "judgments of July 15, 1929, would be ineffectual, unless the judgment of May 16, 1929, dismissing plaintiff’s suit, was also reviewed, and that the judgment of May 16, 1929, cannot be reviewed, because the parties necessary to that end have not been made parties to the present appeal.

And whether that is the meaning and one of the grounds of the motion or not, the record shows that the situation is such that, unless the judgment of May 16, 1929, has been brought up and can be reviewed on the present appeal, then the appeal must be dismissed ex officio, because no relief can be adjudged nor decreed on appeal in favor of said Cummings.

The petition for appeal does not request that anybody be made parties to the appeal, except Rosella Cousin, administratrix, and Mrs. Brugier, as surety. The citation of appeal to Mrs. Brugier is addressed to her as Josephine E. Brugier; but it is to answer the petition for an appeal, the concluding prayer of which is that she be cited as surety. The only capacity in which she is surety is that she is such on the bond of Rosella Cousin as administratrix. It therefore appears that there is no prayer for, consequently no order granting, an appeal, except from the two judgments rendered in favor of Rosella Cousin, administratrix, on July 15, 1929.

The judgment of May 16, 1929, is therefore not subject to be reviewed on this ap•peal, and, as it appears that the fault for not having necessary parties for the purpose before the court is imputable to the said Cummings, appellant, the appeal must, be dismissed.


author: JANVIER, J.

text:
    No. 13,144
    Orleans
    CABIRAC, JR., v. BLANCHARD
    (June 2, 1930. Opinion and Decree.)
    E. S. Lazarus, of New Orleans, attorney for plaintiff, appellant.
    R. A. Viosca, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is an action in boundary. There are two defendants, since it developed, after the suit was filed, that the property, which we will hereafter call the Blanchard property, in facts belongs to both Max Blanchard and his sister, Miss E. M. Blanchard.

Plaintiff and defendants are the owners of contiguous properties fronting on Moss street, which is the street parallel and adjacent to Bayou St. John.

In the rear of the properties and in the rear of all the other properties which front on Moss street on the north side of Esplanade avenue is the old brick wall -of St. Louis Cemetery No. 3, and it is conceded by all of the surveyors who made surveys of the land in question that that brick wall is in its proper location and forms the continuous real line of all of the properties from Esplanade avenue to the northward. The boundary lines between all of the properties to which we have referred as fronting on Moss street were, as originally laid out, parallel to one another, but one of the properties, that which is now occupied by Camp Nichols as an old soldiers’ home, and which we understand is the seventh property from Esplanade avenue, was, a great many years ago — probably more than thirty years — incorrectly fenced in; the wooden fence, which was intended to be on the northern border, having been so located that, on the Moss street end, it was and is something over two and one-half feet on the south side of the proper line.

At one time one Zambelli owned all of the properties from the Old Soldiers’ Home northward. He determined to have all of this property surveyed with reference to actual conditions, and he thereupon employed Ernest L. Eustis, deputy city surveyor, to make this survey. In doing this work Mr. Eustis accepted as the correct boundary line the wooden fence to which we have referred as being sortie two and one-half feet to the south of the northern boundary of the Old Soldiers’ Home. It therefore resulted that the Eustis survey showed partition lines between the various lots some two and one-half feet out of line on the Moss street end. We have no doubt whatever that the survey of Mr. Prank Waddill, which shows all of the partition lines as parallel to one another, and as being at .right angles to the old cemetery wall, represents the correct locations of the various lots as they should have been laid out, but we also have no doubt that the survey of Mr. E. L. Eustis, which commences on the northern boundary of the property of the Old Soldiers’ Home, also represents the actual conditions, as the properties were in fact developed.

The property which was sold to and is now owned by Cabirac, and that which was sold to and is now owned by the Blanchards, were both sold in accordance with the Waddill plan, and in both of these titles that plan is referred to. We are therefore called upon to determine whether or not Mr. Cabirac shall be allowed, in establishing the boundary line between his property and that of the Blanchards, to follow the plan of Mr. Eustis, or shall be required to establish the boundary in accordance with the plan of Mr. Waddill, which is the one referred to in his title. Counsel for plaintiff calls to our attention Riddell vs. Jackson, 14 La. Ann. 135, in which owners of contiguous properties litigated over the location of the boundary between them. Both had acquired from the same owner and, according to a survey referred to in the respective titles, it was evident that the dividing line, as it actually existed, was not located in accordance with that survey, and it was also evident that, if the line were moved to conform with the survey, buildings and improvements already located on the respective properties would be thrown across the dividing line, with the disastrous result referred to by us in Provosty vs. Clark, 11 La. App. 147, 119 So. 763. In Riddell vs. Jackson the court said:

“These designations of visible objects, constituting by far the most valuable part of the thing sold, must control an alleged measure of invisible lines, falsely stated by an incompetent or careless surveyor.”

But that is not the situation which confronts us here. The survey, that of Waddill, according to which plaintiff and defendants bought, is not incorrect, but, on the contrary, shows the true boundary between the properties in question just where it should be. We are thus called upon to say that, where two contiguous property owners bought from the same vendor and according to the same survey, one can force the boundary to be moved to a position different from that shown in the survey, where that survey is shown to be correct, merely because some one else on another boundary has erected a boundary fence which does not conform to the survey in question.

In other words the question is not, as it was in Riddell vs. Jackson: “May we correct an erroneous survey?” but is, rather, “Must we disregard a correct one merely because someone else has disregarded it?”

Nor do we find that there is presented here a situation similar to that which confronted us in Provosty vs. Clark, supra. There an entire square and, in fact, an entire series of squares, were out of proper place, provided a certain theoretical survey be accepted as correct. We cited F. H. Rosenblath vs. Marabella, 3 La. App. 584, in which the Court of Appeal for the Second circuit said:

“Where a street is given as one of the boundaries in the sale of a lot of ground, the street as open and in actual (use) at the time of the sale rather than (the) street as platted should be considered to be the one intended by the parties to the sale.”

Here the error resulted solely from the incorrect location of the fence near the northern boundary of the Old Soldiers’ Home, with the resulting erroneous location of the boundary now in dispute, due to the fact that, in fixing that boundary, the measurements were taken from that fence as though it were on the correct line. The evidence shows that the other properties owned by Zambelli were later sold in accordance with the Eustis survey and therefore, since all of the property was owned by the one ancestor in title, those various purchasers should be forced to establish their boundary lines in accordance with that survey. If there is a conflict between the owner of the property contiguous to the Cabirac property on its northern side and Cabirac, that must be determined with reference to the respective dates of the two purchases from, Zambelli, but, inasmuch as all of those properties were purchased in accordance with the Eustis plan, we do not see that a correction of the boundary line, in accordance with the Waddill plan, of the two properties now in dispute will necessarily require that the boundaries of all of the other properties, sold in accordance with the Eustis plan, must be changed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, ordering the boundary in dispute fixed in accordance with the Waddill plan, dated February 20, 1918, be, and it is, affirmed, at the cost of appellant.


text:
    No. 13,275
    Orleans
    ORLEANS DISCOUNT CO., INC., v. RHODES ET AL.
    (June 2, 1930. Opinion and Decree.)

      Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Merrick, Schwarz, Guste, Barnett & Red mann, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff sues Joseph Lee Rhodes and Anthony C. Symmes on a promissory note signed by both. Judgment was rendered by default against both defendants, and both have now appealed.

The citation was not served upon Symmes, and counsel for plaintiff concede that the judgment as to him is a nullity, but they contend that their client, plaintiff, should not be required to pay the costs, and, in support of this contention, say that the judgment as to Symmes was rendered as the result of an error of the minute clerk of the division of the civil district court which rendered the judgment; that they did not attempt to prove up their case as to Symmes and that no judgment would have been rendered against him, except for the carelessness of the minute clerk to whom we have referred.

They cite no authority to support their contention, and, in the absence of authority, we are constrained to hold that it was . their duty to see that the judgment rendered in their favor was properly rendered and did not include a defendant against whom no judgment should have been rendered. We therefore conclude that the judgment as to Symmes should be reversed, and the suit dismissed, at the cost of plaintiff.

Defendant, Rhodes, concedes that the judgment as to him is subsequently 'correct, but contends that, inasmuch as he made a payment of $107.32, the judgment against him should have given him credit for this amount as of the date paid, to-wit, June 22, 1929, which would have made a difference in interest of something in the neighborhood of $5 or $6.

It is admitted that at the time the suit was filed there was a balance due of $550, with interest thereon from June 2, 1929, and it is also admitted that the amount for which credit was given, to-wit, $107.32, was not paid until after the suit was filed. We are therefore of the opinion that the district court was correct in rendering' judgment for the full amount with interest at 8 per cent, as stipulated in the note, and subject to a credit of- $107.32, and that the amount of $107.32 should not have been deducted and the interest re-figured from the date of that payment.

We therefore conclude that, as to Rhodes, the judgment appealed from is correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed as to the defendant, Joseph Lee Rhodes, at his cost, and that it be, and it is, reversed, as to the defendant, Anthony C. Symmes, and the suit as to him dismissed, at the cost of plaintiff and appellee.


author: WEBB, J.

text:
    No. 3759
    Second Circuit
    WINN v. SCARBOROUGH
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Granted.)
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    Breazeale & Hughes, of Natchitoches, attorneys for defendant, appellant.
   WEBB, J.

R. L. Scarborough, a judgment creditor of Sam Winn, seized a one-half undivided interest in four bales of cotton in the possession of Sam Miller on whose land the cotton had been raised by Sam Winn. Miller filed with the sheriff, the officer who made the seizure, an affidavit claiming the ownership of the property seized, but did not press his claim, and Sam Winn, brought the present action against R. L. Scarborough, the seizing creditor, and the sheriff.

Plaintiff alleged the facts above stated, and further that the four bales of cotton was the harvest of a crop which had been planted and cultivated by him on lands of and under the supervision and control of Sam Miller under an agreement that Miller would sell the crop and pay plaintiff onejhalf the proceeds, less such amount as plaintiff was indebted to Miller, in lieu of wages; that the amount due plaintiff was one-half of the four bales of cotton, or about $200; that he had a laborer’s privilege on the crop to secure his wages, which were exempt from seizure and sale; that in order to protect his rights, it was necessary that an order issue to the sheriff to retain the proceeds of the sale of the cotton in his hands in abeyance of the further orders of the court; and plaintiff prayed for the issuance of such order, for service of process, and for judgment against R. L. Scarborough, the seizing creditor, and the sheriff, recognizing a laborer’s privilege in favor of plaintiff and ordering the proceeds of the sale delivered to plaintiff without deduction for cost of sale, etc., and for general relief.

An order was issued as prayed for, and service made on defendants, who filed several exceptions which were overruled, and defendants answered, admitting the seizure and alleged that the property had been sold, and otherwise • pleaded a general denial.

On trial it was shown that the property seized had sold for $140, and evidence was introduced to show the contract between Sam Miller and plaintiff, Sam Winn, and judgment was rendered in favor of plaintiff against defendants, R. L. Scarborough and the sheriff, recognizing a laborer’s privilege on the proceeds of the sale, after payment of the cost of sale, etc., which was $100, and ordering the sheriff to deliver same to plaintiff. Defendant appeals, and plaintiff has moved to dismiss the appeal on the ground that the amount in contest was only $100, and that the judgment of the district court was final.

The action is somewhat novel. But it is apparent from plaintiff’s petition that he claims he had been employed by Miller to plant, cutivate, and harvest a crop on Miller’s land, and under Miller’s control and supervision, for a portion of the proceeds of the crop, and the action is to fix the amount due plaintiff and to have the same declared not to be subject to the payment of the judgment of Scarborough.

Considering the motion to dismiss the appeal with relation to the claim of plaintiff that he was an employee or laborer and that the amount due was one-half of the proceeds of the crop, the evidence showing that one-half interest in the crop sold for $140, fixed the amount due, and plaintiff’s petition shows he claimed that amount. Plaintiff did not enter any remittitur, and when the cause was submitted the amount claimed was sufficient to give either party the right to appeal, and defendant could not be deprived of the right by plaintiff’s acquiescing in the judgment. Norwood vs. Lake Bistineau Oil Co., 145 La. 823, 83 So. 25.

On the merits the cause suggests a number of questions, but as we understand appellant concedes that the judgment is correct if plaintiff was an employee of Miller and not a lessee, we consider only this question.

In support of the position that Winn was a lessee, reference is made to the decision in Louisiana Farm Bureau vs. Clark, 160 La. 294, 107 So. 115, and Louisiana Farm Bureau vs. Bannister, 161 La. 957, 109 So. 776, in which cases, it is suggested, it was held that whenever the agreement is that a person cultivating a crop on land of another shall receive a portion of the crop or its proceeds, the contract must be held to be a lease and the person cultivating the crop a lessee, in the absence of an agreement that he should receive tne portion of the crop or its proceeds in lieu of wages.

As we understand, the question of control is the determining factor in such cases (Swain vs. Kirkpatrick Lumber Co., 143 La. 30, 78 So. 140, 20 A. L. R. 665), and we do not read the decisions referred to as holding that it is essential that the parties should agree that the portion of the crop or its proceeds to be received by the person cultivating the crop should be received in lieu of wages, or even that such a stipulation would affect the matter where the facts were that the owner of the land had control and supervision of the work. But whatever should be the construction to be placed upon the agreement where the person cultivating the crop is to receive a portion thereof and there is not any evidence showing who had control and supervision or other facts or circumstances showing the nature of the contract, in the present instance it was admitted that plaintiff was to receive a portion of the proceeds of the crop, and we are of the opinion that such fact shows he was an employee of Miller and not a lessee. Bres & O’Brien vs. Cowan, 22 La. Ann. 438; Lalanne Bros. vs. McKinney, 28 La. Ann. 642.

The judgment is therefore affirmed.


text:
    No. 13,174
    Orleans
    MADISON LUMBER CO. v. FEDERAL SURETY CO. ET AL.
    (May 5, 1930. Opinion and Decree.)
    (May 19, 1930. Rehearing Refused.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for Federal Surety Co., defendant, appellant.
   JANVIER, J.

Plaintiff, Dendinger, Inc., is in the business of furnishing lumber and building supplies and materials and operates under the trade name “Madison Lumber Company.”

William C. Durning is a contractor.

Mrs. DeJean is the owner of certain premises, for whom Durning undertook to construct certain work, and Federal Surety Company is surety on the contractor’s bond furnished by Durning.

Plaintiff seeks to recover from the contractor and/or the surety $2,803.13, claiming this to be the balance due on a bill for lumber and materials used in the construction of the work for Mrs. DeJean. Plaintiff also asks for attorney’s fees at 10 per cent, on the total amount of the claim, which attorney’s fees are provided for under Act 225 of 1918, and plaintiff also prays for the recognition of its lien on the premises of Mrs. DeJean.

Judgment was rendered against Durning and against the surety company, as prayed for, subject, however, to a credit in favor of the surety company for $1,561.16, which the surety company admitted was due and which it paid. Claims for certain other credits originally set up have been abandoned, and at the present time the only matters remaining in controversy are:

First, that credit for an additional payment of $324.42 should have been allowed.

Second, that credit for $89 should have been allowed as the cost to the contractor of correcting certain defects in millwork sold and delivered by the plaintiff, and

Third, that the attorney’s fees should not have been awarded.

Since the second item, to-wit, the claim for a credit of $89, the alleged cost of correcting defects in the materials sold, is most easily disposed of, we will consider that item first.

We find in the record no definite proof of this claim. There is, it is true, certain testimony to the effect that some of the millwork did not fit, and that certain expenses were necessitated in order to alter it, but the record falls far short of convincing us that the amount claimed on this item is correct, or that any particular amount should be allowed. Of course, the burden of proof is on the defendants to sustain their contention that this credit should be allowed and, in the absence of proof sufficient to form the basis of a judgment in their favor, this claim must be disallowed.

The claim for credit for an additional payment of $324.42 is, on the other hand, in our opinion, well founded. The record shows that materials totaling $1,513.80 had been delivered for the DeJean job, and that plaintiff had been in communication with Durning, the contractor, with reference to payment therefor, and that Durning had telephoned to a Mr. Wild, who seems to be a solicitor, salesman, and collector for plaintiff, that if he, Wild, would call, a check would be forthcoming. Thereupon Wild called upon Durning and Durning produced a bill for $1,513.80 covering materials sold and delivered for the DeJean job, which bill had been mailed him by plaintiff, and he also produced and handed to Wild a check for that exact amount.

Thereupon Wild took the check, receipted the bill to which w© have referred, and handed it back to Durning. However, when Wild returned to the office of plaintiff, it is alleged that the bookkeeper discovered that Durning had been indebted to plaintiff on old accounts in the sum of $324.42, and thereupon, according to the testimony of some of the plaintiff’s witnesses, a portion of the check given in payment for the DeJean bill was imputed to the payment of the old account and, thus, the DeJean account was left showing a balance due amounting to $324.42. We have no difficulty whatever in reaching the conclusion that, when Durning handed Mr. Wild a check for $1,513.80 and Wild received it and receipted the bill for the DeJean materials, that that amounted to an imputation of the entire amount of the check to the DeJean account, and there is little dispute that, had the matter ended there, the imputation should and would have been made entirely to that account. Plaintiff, however, attempts to show that, with the consent of Durning, the original imputation was changed. In an effort to show this, Wild testifies that he went back later and advised Durning of the facts to which we have referred, and that Durning agreed to the change in the imputation of the payment. Durning positively denies this.

Since there is no doubt of the original imputation, we are of the opinion that the burden of proving the change rests upon the plaintiff company, and we are further of the opinion that the preponderance of the evidence does not sustain the contention that the change in the imputation was agreed to.

Plaintiff also relies upon that fact that later certain statements were sent to Durning, and that these statements showed that the change in the imputation had been made and that Durning accepted them without protest. We have examined one statement relied upon by plaintiff and confess our utter inability to interpret it as showing that a part of the payment to which we have referred was imputed to the payment of another account. We are quite certain that no one, not an expert bookkeeper or accountant, could interpret the statement referred to as showing the change in the imputation of the original payment, and we do not think that there is anything in it to put Durning on notice that such a change had been made.

Since we have come to the conclusion that the payment should have been imputed entirely to the DeJean account, we find it unnecessary to discuss the question of whether or not plaintiff had knowledge as to the source from which the funds were derived. But we say again, as we have often said before, that we find it very difficult to believe that a furnisher of materials, constantly calling upon the contract- or for money, and whose collector, as was shown here, called at the work two or three times each day, had no knowledge of the fact that so large a sum as $1,500 had been derived from the owner of the work.

The third item in dispute, to-wit, the claim for attorney’s fees at 10 per cent., must fall by reason of the fact that a part of the' claim of plaintiff is disallowed by us. The act under which this claim is made, to-wit, No. 225 of 1918, provides “that the said ten per cent, attorneys fees shall only be recoverable where the full amount claimed by the suitor is recovered.” We are, therefore, of the opinion that the judgment appealed from should be amended by reducing the amount thereof by the sum of $324.42, and by disallowing the attorney’s fees.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended, so as to read as follows:

“It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Madison Lumber Company, and against the said defendants, Federal Surety Company and William C. Durning, jointly, severally and in solido, in the full sum of $2,803.13, with 5 per cent, interest thereon from September 12, 1928, until paid and for all costs. It is further ordered, adjudged and decreed that the Federal Surety Company be credited with the sum of $1,561.16 paid February 21, 1929, and that both defendants be credited with the sum of $324.42 paid July 12, 1928, both credits to apply on this judgment.”

As thus amended, the judgment is affirmed.

ON APPLICATION FOR REHEARING

Our attention is called to the fact that in the decree rendered by us we inadvertently allowed defendant, William C. Durning, credit for $324.42, thus amending the judgment in his favor, though he had not appealed.

The decree is accordingly amended so as to read as follows:

“It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Madison Lumber Company, and against the said defendants, Federal Surety Company and William C. Durning, jointly, severally and in solido, in the full sum of $2,803.13, with 5% interest thereon from September 12, 1928, until paid, and for all costs. It is further ordered, adjudged and decreed that the Federal Surety Company be credited with the sum of $1,561.16 paid February 21, 1929, and with the sum of $324.42 paid July 12, 1928, both credits to apply on this judgment.
“As thus amended the judgment is affirmed.’’

The rehearing prayed for is refused.


author: ODOM, J.

text:
    No. 3798
    Second Circuit
    HICKS v. LOWERY
    (June 2, 1930. Opinion and Decree.)
    Edward Everett, Jr., and J. R. Dawkins, of Farmerville, attorneys for plaintiff, appellee.
    J. W. Elder, of Ruston, attorney for defendant, appellant.
   ON MOTION TO DISMISS APPEAL

ODOM, J.

Defendant appealed devolutively from an order of seizure and sale under executory process. Appellee has moved to dismiss the appeal on the ground that the writ has been executed and the mortgaged property sold.

In the case of Trimble vs. Chavis, 11 La. App. 208, 123 So. 513, 514, we said:

“Inasmuch as the mortgage has already been foreclosed, the writ executed, and the property sold, this devolutive appeal can avail appellant nothing. She is without interest to prosecute it further. If this court should reverse the judgment appealed from, it would not have the effect of undoing that which has been done — that is, of annulling the sale of the mortgaged property already made. Ouachita Nat. Bank v. Shell Beach Construction Co., 154 La. 709, 98 So. 160; Gouaux v. Lockport Central Sugar Ref. Co., Ltd., 156 La. 889, 101 So. 255; Jones et ux v. Bouanchaud, Sheriff, et al., 158 La. 27, 103 So. 393.
“There are only two methods by which a defendant in executory proceedings can stay the execution of a writ; one is to appeal suspensively and give bond, and the other is to enjoin the sale, setting up the grounds for relief. D.efendant did not take a suspensive appeal, but asked for and was granted a devolutive appeal. * * *”

It is therefore ordered that the appeal be dismissed, at appellant’s cost.


author: HIGGINS, J. JANVIER, J.

text:
    No. 13,105
    Orleans
    McLELLAN v. NEW ORLEANS & NORTHEASTERN RAILROAD CO. GUERINGER v. NEW ORLEANS & NORTHEASTERN RAILROAD CO.
    No. 13,104
    (April 7, 1930. Opinion and Decree.)
    (May 19, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    H. M. Robinson, E. M. Stafford and H. W. Robinson, of New Orleans, attorneys for plaintiffs, appellants, appellees.
    Monroe & Lemann and Walter J. Suthon, Jr., of New Orleans, attorneys for defendant, appellee and appellant.
   HIGGINS, J.

These are two suits instituted by a husband and wife for damages for personal injuries and property damage arising out of an accident at the intersection of St. Louis street and North Carroll-ton avenue in the city of New Orleans on May 24, 1927, at about 9 o’clock p. m. Defendant denied liability and specially pleaded contributory negligence. There was a verdict and judgment in favor of the husband for the sum of $250 and in favor of the wife for the sum of $1,500. Plaintiffs appealed, and thereafter defendant appealed.

North Carrollton avenue is a very wide street, with a neutral ground in the center, and paved roadways on each side of it, and extends or runs from uptown to downtown. This avenue intersects St. Louis street, which is occupied by thirteen tracks of the defendant company that measure, from outer rail to outer rail, 180 feet. These tracks are protected by two gates and the width or distance between them is 260 feet. Traffic moving on North Carrollton avenue below Canal street uses the river side of the avenue, and traffic moving from the direction of Esplanade avenue towards Canal street on North Carrollton avenue uses the lake side of the thoroughfare. St. Louis street runs from the direction of the river towards the lake and intersects North Carrollton avenue at a right angle. The traffic gates which protect the railway company’s tracks consist of a long wooden arm, from which is suspended a red light, and is controlled and operated by air pressure by a flagman, who is stationed in a tower located among the tracks, and so situated that he is in position to see the trains and traffic traveling on St. Louis street and North Carrollton avenue. The to.wer referred to is 20 feet above the ground. There is one gate on the river side of Carrollton avenue protecting the traffic proceeding on Carrollton avenue from Canal street to Esplanade avenue, and another gate on the lake side of Carroll-ton avenue protecting traffic moving on North Carrollton avenue from the direction of Esplanade avenue towards Canal street. The last or thirteenth track towards Esplanade avenue is the north or outbound main line, and the twelfth track is the south or inbound main line track. There is a coal chute 35 feet square and 40 feet in height situated in the middle of the tracks about 200 feet from the crossing towards the river on St. Louis street. One block from the intersection in the direction of the river is also located the company’s roundhouse, occupying more than a half square. There is also a carpenter’s house 50 feet from the roundhouse that measures 50 by 75 feet, and also an oil house in the same block, 60 feet by 150 feet. The oil house and carpenter shop are located where the tracks are, near the corner of Scott street, on the Canal street side, about a block in the direction of the river from the intersection where the accident occurred. The coal chute is 50 feet from the northbound main line toward Canal street. The carpenter shop and the oil house are 150 feet from it. The streets, going in the direction of the river from North Carroll-ton avenue, that cross St. Louis street and the tracks of the defendant company, are, first, Scott street, and, second, Cortez street. The eleven tracks adjacent to the two main line tracks are located on the Canal street side thereof on St. Louis street, and there is considerable switching done on these tracks between North Carrollton avenue, Scott and Cortez streets. The crossing is illuminated by the city lights, but towards the river and lake on St. Louis street it is very dark.

On the night in question, Mrs. McLellan, one of the plaintiffs, was driving her five-passenger Franklin sedan on the river side roadway of North Carrollton avenue, with her husband seated on the right-hand side of the front seat of the car. When she reached the intersection of St. Louis street and the railroad tracks, due to the fact that there was an engine about to pass, the flagman in the tower lowered the gates so as to protect traffic from the engine. There were four or five automobiles which also stopped where plaintiffs’ car was standing due to the gate being down. As the engine passed, the gate, together with the red light suspended from it, lifted and plaintiffs proceeded in the lead to go over the- tracks. As their car reached the thirteenth or last track, which is the north or outbound track, it was struck on the right rear side by a passenger train consisting of an engine, a day coach, and two private cars. This train was proceeding north or towards the lake on the thirteenth or northbound track and was in charge of an engineer, fireman, conductor, and flagman. The automobile was going about ten or fifteen miles an hours and the train about ten. As a result of the collision the automobile was knocked some 40 feet in the direction of the neutral ground toward Esplanade avenue on North Carrollton avenue and overturned twice. A bystander and some neighbors rescued plaintiffs from the automobile and after administering first aid treatment sent them to Charity Hospital.

In this court the defendant concedes that its employees were guilty of negligence, but contends, first, that the plaintiffs were guilty of contributory negligence, and, second, that the defendant’s employees did not have the last clear chance.

We will first take up the question of whether or not the plaintiffs were guilty of contributory negligence.

In Cherry vs. Louisiana & A. Ry. Co., 121 La. 471, 46 So. 596, 17 L. R. A. (N. S.) 505, 126 Am. St. Rep. 323, it was said:

“Where the distance across four railroad tracks is only 49 feet, a traveler about to cross the tracks exercises all due legal care and prudence if he stops and looks and listens before venturing upon the first track. He is not required to repeat the precaution with each of the tracks in succession.
“One who, on a public highway, approaches a railroad track, and can neither hear nor see any indication of a moving train, is not chargeable with negligence in assuming that there is none sufficiently near to make the crossing dangerous.”

See, also, Seelhorst vs. Pontchartrain R. R. Co., 11 La. App. 586, 123 So. 626.

In Strotjost vs. St. Louis Merchants’ Bridge Terminal R. Co. (1916) a Missouri case (App.) 181 S. W. 1082, it was held that one on the highway may regard the raising of the gates as an invitation to him to pass forward in safety.

In Pulcino vs. Long Island R. Co., 125 App. Div. 629, 109 N. Y. S. 1076, affirmed in 194 N. Y. 526, 87 N. E. 1126, it was held that it was for the jury to say whether the gates were raised enough to warrant the deceased in believing that the raising of them was a declaration to him that the way was safe and to go ahead, and to what extent his vigilance was thereby lessened. This was a case where the gates were only partly raised.

In Chicago & E. I. R. Co. vs. Schmitz, 211 Ill. 446, 71 N. E. 1050, it was held that the raising of -gates after the passage of a train was an invitation to the traveler to cross, and whether she was justified in doing so, and whether she took proper pains to look to see if any train was coming, were questions of fact for the jury.

As further authority for the acceptance of the lifting of the gates as an invitation to cross, we quote from 33 Cyc. Railroads, p. 1028:

“Where a railroad company maintains a flagman, gates or other signals or warnings at a railroad crossing whether voluntarily, or by law or custom, the public generally has a right to presume that these safeguards will be reasonably maintained and attended, and in the absence of knowledge to the contrary, the fact that the gates are open, or automatic bells not ringing, or that the flagman is absent from his post, or if present is not giving warning of danger, is an assurance of safety and an implied invitation to cross upon which a traveler familiar with the crossing may rely and act within reasonable limits, on the presumption that it is safe for him to go on the crossing. The extent to which a traveler may rely on such assurance is a question of fact, and while ordinarily the same degree of care and vigilance is not required of a traveler under such circumstances as otherwise, he has no right to rely exclusively upon such circumstances, nor will such presumption or assurance excuse the traveler from using every reasonable precaution that an ordinarily prudent man would use under like circumstances. * * *”

Prom the same volume of Cyc., page 946, we quote, “Duty of Railroads as to Management of Gates”:

“* * * The public have a right, when the gates are open, or the flagman not in his accustomed place of duty, to presume, in the absence of knowledge to the contrary, that the gateman or flagman is properly discharging his duties, and it is negligence for a gatekeeper or flagman to leave his post, knowing that an engine is approaching, without giving some signal of danger. If the flagman or watchman neglects to give any warning, or does not give a warning until the traveler is in great danger, especially where the view of the approaching train is obstructed, and no signals are given by it, the railroad company is responsible. Where gates are established, although there is no statute requiring their maintenance, it is negligence if they are not constructed, attended, and maintained, with ordinary care and prudence, so as to give the proper warning of an approaching train, or so as not to injure a passerby by the manner in which they are maintained or closed.

The defendant points out, in support of this plea, that the view of the plaintiffs was unobstructed when the automobile was about 50 feet from the thirteenth or northbound track in the direction from which the train came, as the testimony of its witnesses show that the main line track is straight for a distance of about three blocks in the direction of the river. However, it is conceded by the defendant that, at the point where the plaintiffs’ automobile stopped before going on the tracks, prior to the raising of the gate, the coal chute obstruction made it impossible for the plaintiffs to see the train approaching on the last track. Defendant further concedes that the evidence is conflicting as to whether or not the bell and whistle signals were given by the train and that the evidence on that issue does not preponderate in favor of the defendant. Defendant also concedes that the burden of proving by a preponderance of the evidence that plaintiffs are guilty of contributory negligence is upon itself. In its last analysis the contention of the defendant is that, as the plaintiffs’ view of the approaching train was unobstructed when within about 50 feet of the track, and as the electric headlight on the engine was burning, that this was sufficient warning to place the plaintiffs on their guard of the impending danger of the approaching train, and that, in failing to observe the train, they were guilty of contributory negligence. Defendant cites a long list of authorities in support of this contention to the effect that the driver of an automobile must stop, look, and listen at a point where such action on his part would be effective in preventing the accident.

The evidence convinces us that, as the gates lifted, Mrs. McLellan, the driver of the automobile, proceeded to cross the tracks at a careful and moderate rate of speed with the other four or five automobiles, but in advance of them. She was required, under the circumstances, in order to carefully drive, to keep a lookout to the left, where trains might approach and where the other automobiles were moving in the same direction that she was driving and had a right to pass her car on that side. She also had to look forward or ahead, where she was going, as well as to the right of her, where trains might approach. She had to keep under observation thirteen tracks on her right and left, and could not look in these respective directions simultaneously. Both Mrs. McLellan and her husband testify that they did look to the right but saw no approaching train due to their view being obstructed by the coal chute. It is admitted that she had to be within 50 feet of the thirteenth track in order to obtain an unobstructed view towards her right, the direction from which the train came. If, at that moment, she was looking to the left, or straight ahead, where it was likewise her duty to also look, and failed to observe the train, which was approaching from the right, we cannot say she was not maintaining a proper lookout as an ordinary prudent and careful driver would have done under the circumstances, because she was invited to go upon the tracks by the raising of the traffic gate, a signal that there were no trains approaching. The signal relieved her of the necessity of extraordinary vigilance and care. She was proceeding at a careful rate of speed and drove her car as any ordinary, prudent person would have done under the same circumstances.

The flagman stationed in the tower, a witness for defendant, testified that trains were switching that night at 9 o’clock in the squares between Cortez and Scott streets and Scott and Carrollton avenue, and that there were freight trains on the tracks which were not used as the main line tracks, and that there were two or three of them switching in this area; that there were some box cars on these tracks, but he could not say how many were on the side tracks in those squares at the time, but that there were some there. It may well be that some of the box cars on the other tracks prevented the plaintiffs from seeing the passenger train approaching.

We are convinced that the plaintiffs’ view of the oncoming train was obstructed and that they did not see the train until it was upon them, because the flagman in the tower testifies that he did not observe the approaching train until it was within 50 feet of the crossing. Under the circumstances we are of the opinion that the plaintiffs were not guilty of contributory negligence.

We do not consider the cases of Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367, and Ladner vs. N. O. Terminal Co., 139 La. 262, 71 So. 503, which able counsel for defendant have cited, as applicable, because we find from the evidence that the plaintiffs did stop, look, and listen and exercise such ordinary care and prudence required of them under the circumstances.

As to the quantum of damages, the evidence shows that the automobile was struck and knocked about 40 feet, overturned twice, and was demolished; that it was three and a half years old, having a trade-in value of twelve or thirteen hundred dollars; that it was so badly broken and smashed that the wreckage was traded in for $150.

Mr. McLellan suffered multiple contusions and bruises over the head, body and legs, and testified;

“I do not think I have any place that would measure twelve inches that was not damaged. At the present time this foot (indicating his left knee) bothers me. It is very weak.”

He further testifies that he was 77 years of age and in good physical condition before the accident, and that he still suffers headaches from the blows he received on his head; that his memory is poor as a result of the injuries received; and that before the accident he was able to go up and down stairs unassisted, but presently is unable to do so without assistance. Dr. Lucien Landry, who examined him on May 27, 1927, corroborates Mr. McLellan’s testimony as to subjective pains as follows:

“Pain in the right shoulder, arm and hand, pain in left chest from mid-sternal line to axillary region. That is under the arm right back to the scapular or shoulder blade. So much so that he is unable to lie on the right side. Has a headache all the time and experiences considerable vertigo when he stoops, has pain in right ankle and heel radiating towards the toe. Pain in right muscles of the neck, posterior. That is the right side of the back part of the neck. We found a new scar on the dorsal surface of the right hand near the thumb. That is the result of a lacerated wound; * * * a decided impediment in walking. He walked with difficulty. I tried him on the steps and he was very hesitant in negotiating the stairway and that he was in a very nervous state, which could be attributable to the accident or to his advanced age.”

This doctor only saw the plaintiffs on one occasion.

Dr. G. A. Jung treated Mr. McLellan at his home on May 6, 1927, and described his injuries as follows:

“Mr. McLellan had general contusions, first of the middle third of right arm and hand; second, lower part of left leg and foot; third, right foot at heel; fourth, right chest; fifth; his head.”

The doctor further testified that Mr. Mc-Lellan was extremely nervous and had a tremor, which, in his opinion, resulted from shock; that he saw the patient off and on for possibly three months; that he was confined some time to bed and other times he was around the place. Mr. McLellan also claimed $12 for the cost of a violet-ray machine, which the doctor recommended that he use, medicine $11.20 and one of the doctors’ bill $38, a total of $61.20. The patient was also treated by Dr. Nelson for stomach trouble, but we do not believe this ailment was sufficiently connected with the accident. The medical testimony also convinces us that some of his ailments are due to his advanced age and not to the accident. The jury allowed a sum of $250. We regard this as inadequate and believe that the damages for personal injuries should be increased to $500, plus $61.20 for the above-enumerated items.

Mrs. McLellan was also treated by Dr. G. A. Jung and testified that this examination -on May 6, 1927, revealed the following:

“* * * Mrs. McLellan had contusions of the first middle left thigh; second, left leg below knee; third, left chest; fourth, left arm at elbow; fifth, right thigh, middle third; sixth, right hand, palmer surface; seventh, along sympysis pubis; eighth, about the head.”

He further testified that Mrs. McLellan was nervous and upset and suffered from acid burns on the right shoulder and left shoulder, on her left side and left chest, and had severe bruises on the upper third of the leg; that he applied heat first and then medicine towards relieving the pain and used the ultra violet rays to reduce contusions; that he used bromide as a sedative and on one occasion codine to relieve the pain; that he treated her possibly for the same period of three months that he treated Mr. McLellan; that she was confined to her bed in her home for a like period of time, being sometimes in bed and sometimes just around the place; that her nervous condition at the time was due to the shock, but that her injuries were not permanent. Dr. Landry’s testimony is corroborative.

Mrs. McLellan also sued for the cost of the Franklin sedan, her separate property, which cost $3,350 new and was about three and a half years old and had a trade-in value at the time it was wrecked of twelve or thirteen hundred dollars. This was testified to by the representative of the agency that sold her the car. The wrecked car was traded in for the sum of $150 on a new Franklin automobile. The jury allowed Mrs. McLellan the sum of $1,500 for injuries and property damage. Assuming that the trade-in value of the car would be $1,250 and the wreckage brought $150, Mrs. McLellan’s net loss on the automobile would be $1,100. The jury, therefore, only allowed her $400 for her personal injuries and suffering. Mrs. McLellan was confined to the hospital for two nights and a day and a half, and the evidence shows, as well as her testimony, that she suffered multiple bruises and contusions of the body and that the sulphuric acid from the automobile battery burned her on the shoulders, chest, lower part of her body, and upper part of her thighs. It is not suggested that Mrs. McLellan’s ailments were in any way the result of her advanced age, as in the case of her husband. While her age is not given, it appears she is much younger and was in better physical condition before the accident than her husband. She was more severely and painfully injured than he was.

Under the circumstances, we believe that she was entitled to the sum of $1,000 for personal injuries and suffering and $1,100 for the loss of her automobile, or a total of $2,100.

For the reasons assigned, the judgment of the lower court is amended by increasing the award in favor of Orris J. McLellan to the sum of $561.20 and the award in favor of Mrs. Emma Gueringer, wife of Orris J. McLellan, to the sum of $2,100, with legal interest from judicial demand until paid, and as thus amended the judgment of the district court is affirmed, defendant to pay all costs.

JANVIER, J.

(dissenting). There are certain facts which are not in dispute and which in themselves convict Mrs. McLellan of contributory negligence:

First, on the front end of the approaching locomotive there was a brilliant electric headlight.

Second, the coal chute was 200 feet from the automobile driveway and 50 feet from the railroad track, so that even if when the automobile was more than 50 feet from the track, the view of Mrs. McLellan was slightly obstructed by the chute 200 feet to her right, nevertheless, when she.reached a point 50 feet from the track, that obstruction passed entirely out of the case and no longer interfered in the slightest degree with her vision in the direction from which the locomotive was approaching.

Third, the other buildings mentioned were all farther away than was the coal chute and at no time obstructed the view to any extent at all.

Fourth, the drivers of the four or five other automobiles alongside of and to thg rear of Mrs. McLellan’s car all saw the approaching train and stopped to let it pass.

Fifth, the bell on the train was automatically ringing by steam.

In addition to these facts, it is abundantly proven by the record that there were no box cars or any obstructions to interfere with the clear view which Mrs. McLellan would have had had she looked.

Even plaintiff’s witnesses did not testify positively that there were standing on the tracks box cars which would have interfered with her vision, but contented themselves with saying that at times in the past box cars had been parked on those tracks.

There is no doubt of the- primary negligence of defendant’s tower man in raising the gates after the first train passed, and in thus inviting Mrs. McLellan and her husband to enter upon the crossing. But this invitation cannot be considered as a guaranty that they might proceed safely 180 feet across thirteen tracks, without ever again taking the usual precautions of looking out for trains.

The fact that the night was dark and that there were few, if any, street lights in the vicinity from which the train was approaching, accentuated the brilliancy of the electric locomotive headlight. Del Buono vs. Ill. Central R. Co., 12 La. App. 35, 124 So. 694; Gliniecki vs. Pere Marquette Ry. Co., 238 Mich. 361, 213 N. W. 168.

With reference to the question of whether the raising of gates constitutes an invitation to cross without taking any precautions whatever, I call attention to several cases decided by the courts of this state and elsewhere.

In Ladner vs. N. O. Terminal Co., 139 La. 262, 71 So. 503, 504, the court said:

“Plaintiff appeared to think that because of the failure of the defendant company to lower the gates, and he testified that it failed to lower them in this instance, he was relieved of all responsibility to look and listen while crossing the tracks of the defendant company. In this he was mistaken. He should have looked and listened while crossing a street in which cars are being operated in a city.”

In Union Pacific Railroad Co. vs. Rosewater (C. C. A.) 157 F. 168, 171, 15 L. R. A. (N. S.) 803, 12 Ann. Cas. 851, it was said:

“Does the signal of a flagman at a railroad crossing of a city street relieve the traveler on the highway of the duty to look and listen before venturing upon the tracks? The additional, precautions to prevent accidents, such as gates and flagman, with their means of giving warning are adopted in view of the greatly increased dangers at such crossings. The noise of city traffic, the number of pedestrians and vehicles upon the street, the haste and activity of urban life, the frequency of the passing of engines and trains, and the proximity of buildings and other structures to the tracks make such precautions necessary. They are designed to meet the increase of peril resulting from local conditions and the congestion of traffic. Such additional precautions are not imposed by statute or municipal ordinance upon railroad companies, or voluntarily assumed by them for the purpose of relieving the travéler upon the streets from the taking of those simple precautions for his own safety which the long-settled rule of law requires of him. To hold otherwise would tend to defeat the very purpose for which gates and flagmen are maintained. It would result not so much in lessening danger and ensuring safety as in the mere transference of a mutual obligation to exercise care entirely to the shoulders of one of the parties.”

In Tucker vs. N. Y. C. & H. R. R. Co., 124 N. Y. 308, 26 N. E. 916, 917, 21 Am. St. Rep. 670, it was said:

“But if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross, and was then eleven feet from the south rail of the first track. To look then, and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise.”

This court, in a case in which there were only four tracks, Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367, 369, said:

“This court has never yet held directly or by reasonable inference that the failure of a railroad company to close the gates at public crossings and to keep them closed continuously in times of danger is of itself such a breach of duty and such an act of negligence as to constitute the immediate and proximate cause of an accident resulting in injury, and which would relieve the injured party from the duty of looking and listening or from exercising ordinary care and prudence to see for liimself that there was no danger and that the route was sure and safe.
“To hold so would he to make -the railroad company an insurer against every accident happening at such crossings hy collision with its trains when the gate was open, and that, too, without regard to whether the gate was left open intentionally, by accident, or through some defect in the appliances.
“To establish such a rule of jurisprudence, as said by some learned authority would be ‘to make gates and flagman harmful creators of negligence instead of helpful aids to safety.’ * * *
“Our conclusion is that the failure of the plaintiff to look and listen, and to exercise such ordinary care and prudence as necessary to assure his safety before going upon the railroad crossing, amounted to such contributory negligence as to bar his recovery for injuries to his person and to his automobile. The gate being located at a station crossing, and the railroad tracks being inclosed, the mere fact that the gate was open did not absolve the plaintiff from the exercise of that due care and caution which is required from one going into such a known place of hazard and danger.”

Here there were thirteen tracks, and the distance between the raised gate and the track on which the accident occurred was nearly 200 feet. Does the raising of a gate under such circumstances relieve the traveler on the highway of the obligation of taking ordinary precautions at a point 200 feet beyond the gate and after he has traversed twelve tracks? I think not.

Cherry vs. L. & A. R. Co., 121 La. 471, 46 So. 596, 17 L. R. A. (N. S.) 505, 126 Am. St. Rep. 323, cannot save the situation for Mrs. McLellan. True she was not obliged to stop at each track, but she was under the obligation of keeping constantly and continuously on the alert and of doing what an ordinarily prudent driver would have done and what the other drivers alongside her did do. She should have glanced from side to side. The merest glance to her right at any time after she reached a point 50 feet from the track would have brought to her attention the approaching train. In the Cherry case the crossing consisted of only four tracks and was only 49 feet wide. I call attention particularly to the word “only” in the following quotation from the syllabus thereof:

“Where the distance across four railroad tracks is only 49 feet, a traveler about to cross the tracks exercises all due legal care and prudence if he stops and looks and listens before venturing upon the first track. He is not required to repeat the precaution with each of the tracks in succession.”

With reference to the contention that Mrs. McLellan had to look in both directions because there might have been trains coming from the other direction also, and that she therefore could not see everything in either direction, I call attention to the following:

“It is negligence for a person to be upon the track of a railroad without keeping watch both ways for trains.” Thompson vs. Morgan, 167 La. 335, 119 So. 69.
“It is the duty of the driver of an automobile, before attempting to cross two or more parallel railroad tracks to stop, look and listen for moving trains, cars or locomotives before entering upon the first trade and to continue to look and listen for them until he is over all of the tracks.” Branch vs. Missouri Pac. R. R. Co., 7 La. App. 257.

Nor does the fact that the conductor who was on the step of one of the passenger coaches and who, though he saw the auto approaching the track, did not signal the engineer to stop, render the company liable, because the testimony shows that, when this occurred, though he was nearly 200 feet from the crossing, the locomotive was almost at the crossing and the train could not have been stopped. Furthermore, as I have said, he was some distance from the locomotive and did not have immediate control thereof, and the intervening seconds between his view of the automobile and the collision were not sufficient for him to communicate with the engineer and for the engineer to stop. Then, too, both the automobile and the train were approaching the crossing at a very moderate speed, and he was justified in assuming that the automobile would stop, as so many do, just before it reached the track.

“Trainmen have a right to believe that a person approaching the railroad track will exercise his senses of sight and hearing so as to perceive the approaching train in time to avoid all accidents.” Nolan vs. I. C. R. R. Co., 145 La. 483, 82 So. 590.

On this same point I call attention to the unanimous jurisprudence to the effect that the doctrine of the last clear chance has no application, and will not serve to render a defendant liable, where the negligence of the injured party continues to the moment of the accident. Jarrow vs. City of New Orleans, 168 La. 992, 123 So. 651; Harrison vs. La. Western R. Co., 132 La. 761, 61 So. 782; Castile vs. O’Keefe, 138 La. 479, 70 So. 481. That all the other autoists saw the train and stopped, and that those on the train saw the automobiles, is conclusive proof of the fact that Mrs. Mc-Lellan could have seen the train had she looked.

I cannot but feel that to affirm a judgment for Mrs. McLellan would do violence to the jurisprudence of tihis state and of the United States, which jurisprudence is, in my opinion, well expressed in the following:

“Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railway crossings; but no failure on the part of the railroad company to do its duty will excuse any.one from using the senses of sight and hearing upon approaching a railway crossing, and, whenever the due 'use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.” Brown vs. T. & P. Ry. Co., 42 La. Ann. 350, 7 So. 682, 684, 21 Am. St. Rep. 374.
“When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him.” B. & O. R. R. Co. vs. Goodman, 275 U. S. 66, 48 S. Ct. 24, 25, 72 L. Ed. 167, 56 A. L. R. 645.

As to Mr. McLellan, the legal situation is different. The negligence of his wife as the driver of the car is not chargeable to him. Churchill vs. T. & P. Ry. Co., 151 La. 726, 92 So. 314; Vitale vs. Checker Cab Co., 7 La. App. 653; Daull vs. N. O. Ry. & Light Co., 147 La. 1012, 86 So. 477; Southern Surety Co. vs. M. L. & T. R. R. & S. S. Co., 6 La. App. 575.

Of course, as was recognized in the Churchill case, there may be and there often are circumstances under which a guest in an automobile is guilty of negligence independent of that of the driver: for instance, where the driver is plainly incompetent, or is manifestly intoxicated, or guilty of such continuous recklessness as to demand remonstrance or protest from any ordinarily prudent person. But these circumstances do not seem to have been present here.

I therefore concur in the decree amending and affirming the judgment in favor of Mr. McLellan, but respectfully dissent from the decree amending and affirming the judgment in favor of Mrs. McLellan.