author: WESTEREIELD, J.

text:
    No. 11,685
    Orleans
    BROWN v. JOSEPH RATHBONE LBR. CO.
    (June 24, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Edward S. Spiro, of New Orleans, attorney for plaintiff, appellee.
    John May, of New Orleans, attorney for defendant, appellant.
   WESTEREIELD, J.

Plaintiff, a timber cutter by occupation, alleges that on December 9, 1926, while in defendant’s employ at its lumber camp near Ponchatoula, La., and in the act of cutting down a large cypress tree, he was struck on the head by a falling branch with the result that the occipital and frontal bone of his skull was fractured; he alleges that he was rendered unconscious by the blow and removed to a hospital in New Orleans, where he was confined to his bed for forty-five days; that his injury caused severe headaches, impairment of vision, stiffness of the neck and pain in moving his head and that in consequence of his condition he is unable to perform work of any nature and will be totally ’ and permanently incapacitated for work of any reasonable character; he alleges that his wages were $22.50 per week and that he was paid compensation by defendant at the rate of 65 per cent, thereof or $14.62 per week up to February 24, 1927, that notwithstanding the fact that he was treated by defendant’s physicians until July 1, 1927, no further compensation was paid to him; that when discharged by defendant’s physicians on July 1, 1927, he was compelled to engage other doctors because of the refusal of defendant to give further medical aid, and that he has incurred obligations for such services in excess of the sum of $250, for which amount he sues in addition to compensation in the sum of $14.62 for 400 weeks with interest, less the amount paid him.

Defendant admits plaintiff’s' employment under circumstances entitling him to compensation for his injuries; it admits his injury but denies, however, that his skull • was fractured; it admits the weekly wage and the payment of compensation on that basis to February 24, 1927; it also admits that the. medical bills incurred by plaintiff were in excess of the sum of $250. It is contended, however, that when plaintiff (was discharged on February 24, 1927, he had entirely recovered from his injury i and that such physical disability as plainly tiff may have suffered since that time was not due to the accident.

We are referred to paragraph 4 of section 8 of the Workmen’s Compensation Law, which provides that;

T~ “All findings of the fact must be based upon competent evidence, and all compensation payments provided for in this act shall mean and defined to be for injuries, and only such injuries as are proven by competent evidence, of which there are or have been objective conditions and symptoms proven, not within the physical or mental control of the injured employee himself.” I

Defendant argues that since the symptoms, complained of by plaintiff in this case, are subjective, under quoted provision there can be no liability because compensation can be recovered only for “such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven.”

The object of this provision of the Compensation Law is to prevent imposition and fraud, but it is not intended to relieve an employer from the obligation to pay compensation within the limit fixed by* the statute during the disability caused** by the injury to the disabled workman,* whether the objective symptoms have disappeared or not. It is only necessary that' there should have, been “objective condi-** tions or symptoms proven,” and such, subjective result as may be imputed to the original objective condition is compensable under the law. The more fact that the wound in plaintiff’s skull has healed is not important, the question is whether he has recovered from the effects of his injury. J

As has been stated, defendant ceased paying compensation February 24, 1927, upon the ground that, at that time, plaintiff was no longer disabled as a result of the accident. However, the evidence shows that the same physician, Dr. Harrison, who had been treating plaintiff for defendant’s account, continued to treat him up to July 1, 1927, plaintiff calling weekly at his office and receiving certificates of illness which, enabled him to obtain weekly benefits from an insurance company in which he had a small policy. These certificates bore the name of Dr. Harrison, defendant’s physician and certified that plaintiff suffered from the result of “a fracture of. the base of the skull.”

It is explained that the treatment of plaintiff was continued upon a charity basis, for an illness which was not deemed to have been caused by the accident and that insofar as the certificates are concerned, they were issued without the knowledge of defendant’s physician, by a clerk in his office.

In addition to Dr. Harrison, defendant introduced Dr. Connely, who testified that -he was of the opinion that the symptoms, complained of by plaintiff, were due to toxic neuritis and not attributable to trauma. He found no evidence of any <? head injury. It was admitted that Dr. Menville, a radiologist, had taken x-ray pictures of plaintiff’s skull and that the pictures showed no evidence of a fracture.

On the other hand, Dr. Rudolf, a general practitioner, believed that plaintiff -suffered from the effects of his injury and he is corroborated by a specialist in nerves and mental diseases, Dr. Holbrook, who describes plaintiff’s condition as “typical traumatic constitution or incapacity resulting from brain injury is my opinion. He is totally and permanently disabled. Later this may be changed to partial disability.” When asked to explain why the x-ray pictures of plaintiff failed to reveal a fracture of the skull he answered: “The x-ray very readily shows fractures of the vault of the skull, but frequently there are fractures of the base of the skull that are not revealed by x-ray examination. That happens very often.” In discussing the possibility of plaintiff’s condition being attributable to traumatic psychosis, he answered, “From my point of view, it does not make much difference whether there was a fracture of the skull or not, because it is not the fracture of the skull that is important. It is the brain injury, and frequently severe brain injury takes place where there are no fractures * * *. The symptoms that Curtis Brown presents are symptoms of brain injury and'1 not of fracture of the skull at all; fracture of the skull is incidental and it does not make any difference whether it is present-or not, because brain injury may be just as extensive and the incapacity just as great whether the skull is fractured or not.”

The testimony clearly preponderates in plaintiff’s favor and convinces us that so far as medical science may determine, plaintiff’s injuries and present disability are attributable to the accident which occurred while in defendant’s employ.

The trial judge was of this opinion and rendered judgment accordingly. We find no error in his judgment and it is, for the reasons herein assigned, affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,019
    Orleans
    HAWKINS v. COSTLEY ET AL.
    (May 27, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)
    (November 19, 1929. Opinion and Decree of Supreme Court on Writ of Certiorari and Review.)
    Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for 'plaintiff, appellant.
    Spearing & Mabry, of New Orleans, attorneys for P. D. Costley, defendant, appellee.
   JANVIER, J.

Plaintiff sues defendants for $503.10, with interest, etc., alleging that he is the holder and owner of a certain check for $500, drawn by Prank D. Costley and indorsed by R. A. Davis. He alleges that the check was received by him in due course and that, having received it, he expended the proceeds, but that, when the check was presented, ¡payment was refused because defendant Costley had issued to the bank on which it was drawn an order to stop payment.

Davis, the other defendant, calls Costley in warranty.

Costley resists payment, denying that plaintiff is the holder in due course and alleging that the said check was transferred to plaintiff for the sole purpose of creating the appearance of its being in the hands of an innocent third person.

Costley further alleges that the check was given to Davis to be invested by him for account of Costley in an oil venture, and that, before Davis had used the check, or undertaken any obligation in connection therewith, notice was given to Davis of Costley’s intention to withdraw from the venture.

Of course, at the outset there can he no doubt that under section 16 of Act No. 64 of 1904, there is a presumption that plaintiff is the holder in due course. It appears, however, that a commission was issued to take the testimony of plaintiff, and of a witness for plaintiff, for the purpose of showing that plaintiff was the holder in due course and that he had expended the money in connection with the enterprise. Unfortunately, when the answers of these witnesses, taken under the commission referred to, were returned into court, they were found by the trial court — and in fact by two different divisions thereof — to be fatally defective in that certain questions propounded under cross-examination were not answered, and in that certain documents called for were not attached.

Because of this situation, counsel for defendant Costley objected to the reading of the depositions in evidence and this objection was sustained. We find in the record no formal bill of exceptions by counsel for plaintiff to this ruling, nor do we find any informal protest or objection. Under these circumstances, we are of the opinion that the depositions, although they are physically in the record, cannot be considered by us. We base our opinion on a decision of the Supreme Court of Louisiana in the matter of Stovall & Sons vs. Hubier, 143 La. 1028, 79 So. 830. This case was decided long after the passage of Act No. 55 of 1908, which makes it unnecessary to reserve formal bills of exception, but requires that the stenographic notes shall show an objection by the party against whom the ruling is made. It is manifest that some protest or objection is necessary, and that such protest or objection must be shown in the record.

In the case to which we have referred the trial court refused to consider a supplemental petition. No objection to this ruling appeared in the record and yet the Court of Appeal took into consideration the supplemental petition. The Supreme Court said:

“It was error on the part of the Court of Appeal to consider the supplemental petition * *

An exclusion of the depositions of plaintiff leaves the record in an unsatisfactory state, so far as the contention of plaintiff is concerned, for we find that plaintiff, although called upon to testify, in fact did not do so. Erom this situation results the presumption that plaintiff’s testimony would have been adverse to his interests. At any rate, the record as it now exists contains the testimony of defendant Costley to the effect that he instructed Davis not to send the check to Hawkins and the further testimony that Hawkins did not become the holder of the check in due course.

The trial court rendered judgment of non-suit. We think, however, that in view of the facts above set forth, this judgment should have been in favor of defendants and against plaintiff.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is anulled, avoided and reversed, and that there now be judgment in favor of defendants and against plaintiff, dismissing plaintiff's suit at his cost.


text:
    No. 11,046
    Orleans
    MAHON v. SPENCE
    (June 24, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Normann, Breekwoldt & Schwartz, of New Orleans, attorneys for plaintiffs, appellees.
    Milner & Porteous, P. M. Milner, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

James Richard Smith, a steel worker and riveter, was killed as the result of a fall from a building being erected for the Orange Grove Refining Company, near Braithwaite, Plaquemines Parish, La.

Spence had been employed to place in position and bolt together the various members constituting the steel framework of the building. His contract did not include the riveting together of those members, the work of riveting having been undertaken by the owners themselves.

Smith was employed by the owners as a riveter and his work commenced after the work of Spence was completed.

On the morning of December 1, 1924, Smith, while operating a riveting machine, attempted to brace himself on a steel bar known as a sagger bar, which had been placed in position by the employees of Spence, but which had been bolted only at one end, and which pulled out of its bearing on the other end, with the result that Smith fell to the ground about thirty-five feet below. The bar should have been bolted at both ends.

This suit is brought by the parents of the deceased, who seek to hold Spence liable on the ground that the death of their son was caused by the negligence of the employees of Spence in not properly bolting the bar.

It is admitted that the parents have already recovered from the employers of Smith compensation under the state compensation laws.

Smith’s employers, by intervention, ask that the amount which they have paid in compensation be returned to them out of such judgment as may be awarded to plaintiffs.

Defendant resists payment, contending that there is no privity of contract between him and plaintiffs, and that, if plaintiffs have any cause of action, it is solely against the employers and results from the failure of the employers to furnish a safe place to work.

It is manifest that the proximate and sole cause of the accident was the negligence of Spence’s employees in failing to properly bolt into place the sagger bar, against which Smith braced himself. Their failure in this regard created what seems to us to have been a trap, and if, as the evidence shows to be the case, in the usual course of events, it was customary tor riveters, or other structural workers, to make use of these bars for bracing themselves, then it would appear that the failure of Spence’s employees in this regard constitutes actionable negligence.

It is quite true that there was no contractual relationship between Smith and Spence, and that Spence was under no contractual obligation to furnish to Smith a safe place to work. However, it was Spence’s duty to perform his contract in such a manner that those who might thereafter come into contact with his work might not, by using it in the ordinary, customary way, be injured as a result of defects therein.

The situation is the same as if Spence’s workmen had erected for the owner a scaffold to be used by the owner’s employees. It is evident that those employees would have had a cause of action against the contractor for injuries sustained as a result of defects in the scaffold.

In- such a situation as that to which we have just referred (Devlin vs. Smith, 89 N. Y. 470), the court held that a contractor who built a scaffold for a painter was liable for injuries sustained by employees of the painter, upon the ground that the contractor who -built the scaffold invited the painter’s workmen to use it, and on the ground that the contractor knew that the scaffold, if improperly constructed, was a most dangerous trap and that he knew that it was to be used by the workmen painting the building. The court further held that the contractor owed those workmen a duty, irrespective of their contract with their master.

The entire question is one not of contractual obligation, but of liability imposed by law.

We concede that this liability does not exist in favor of the general public, but only for the benefit of those who may, in the ordinarily contemplated course of events, be brought into contact with the defective work. That the law requires the master to furnish to the employee a safe place to work and that, therefore, the master, in the absence of compensation laws, might have been liable in tort, wiil not relieve Spence of his responsibility, because, to the extent that Smith was. justified in using the sagger bar as a brace, Spence was, in effect, the agent of the • employer for the purpose of making safe the place furnished for the performing of the work.

Since it was customary for riveters to brace themselves against sagger bars, and since Spence was an experienced contractor, he is charged by that experience with knowledge of the fact that the bars would be so used.

He also knew that his work did not complete the building; that others had to do ■the riveting, and) that still others had to attach the metal covering, and that those others had to make use of his work in performing theirs.

In Sherman & Redfield’s Law of Negligence, 5th ed., vol. I, sec. 116, page 183, we find what appears to be a very good statement of the rule applicable:

“The true question always is: Has the defendant committed a breach of duty, apart from contract? If he has only committed a breach of contract, he is liable to those only with whom he has contracted; but if he has committed a breach of duty, he is not protected by setting up a' contract in respect of the same matter with another person.”

Counsel for defendant says in his brief:

“Suppose you are erecting structural steel and a column falls or a beam falls or rods fall or nuts or tools fall and hurt somebody, you are liable.”

This is quite true and it is also true that if one is erecting structural steel and so erects a column or a beam that another, whose duties require him to lean against the column, or to step upon the beam, is hurt because the column or the beam is not properly attached, the contractor at fault is liable to the person injured. For what length of time this possibility of liability remains extant, we find it unnecessary to determine. Whether Spence would have been liable to an employee of the owner, who, years after the erection of the building, might find it necessary to climb upon a sagger bar, we do not undertake to say, because it might well be argued that it was not within the contemplation of the parties that these bars would form a perpetual scaffold on which it might be contemplated that employees would at all times in the future find it necessary or convenient to climb. Suffice it to say that it was almost a certainty that, in the completing of the construction work, someone would step upon the particular bar in question, and the probability of such a happening is what renders defendant liable.

We do not think that defendant’s plea of prescription is well founded. The original petition alleged that Smith was employed by Ansonia Iron & Copper Company, and that Spence was employed by that company to erect the steel framework. To this petition answer was filed, alleging that Smith was employed by Orange Grove Refining Co., Inc.

Thereupon, supplemental petition was filed, alleging what seem to be the true facts.

As this supplemental petition was filed more than one year after the death of Smith, defendant, contending that the issues had been changed by this supplemental petition, filed a plea of prescription of one year. It does not appear to us that the issues were changed to the detriment of defendant. By the filing of the first suit, all necessary matters were brought to his attention and such new allegations as were contained in the supplemental petition were of no material harm to the legal position of defendant.

In the syllabus of Southern Iron & Equipment Co. vs. Cardwell Stave Co., 154 La. 109, 97 So. 332, we find the following:

“The law favors the amendment of pleadings to avoid injustice, when amendment does not make the situation better for the party amending or worse for the other party than if the new allegations had been made in the original pleadings.”

To the same effect, we said in James M. Delaney vs. Mrs. Charles Little, 3 La. App. 348:

“The tendency of modern practice is to yield as little as possible to technicalities and to afford aid as far as practicable to the filing of amendments which work no injury and prevent useless delays and costs and subserve justice.”

As an additional defense, defendant contends that Smith was guilty of contributory negligence in standing or placing himself against the bar. The evidence convinces us, as we have already said, that it was quite customary for these bars to be used for the purpose for which Smith used them. Therefore, there was no negligence on the part of Smith in so using the bar, unless he could see that it was not properly fastened. His view of the ends of the bar was obstructed by the flanges of “I” beams. He was justified in assuming that the bar had been properly fastened and there was no obligation on his part, before leaning against the bar, to examine both ends of if. We do not believe that he was guilty of contributory negligence.

Smith’s employers, having settled with plaintiffs under the compensation laws of Louisiana, have, by way of intervention, asked- that they be reimbursed to the extent of such settlement ($3,285) out of such judgment as plaintiffs may recover. To this the employers are entitled under the act. (Section 7 of Act 20 qf 1914, as amended by Act 247 of 1920.) But defendant contends that, since the intervention was not properly served on defendant, interveners cannot obtain a judgment directly against defendant. In this defendant is correct, and, intervener having failed in this regard, must recover through and only through plaintiffs. The judgment below in favor of interveners was against plaintiffs only and not against defendants.

The trial court awarded plaintiffs a judgment for $7,500. Under the circumstances of the case it seems to us that this award was correct and we find no request that it be either increased or reduced.

The interveners have asked for reimbursement' to the extent of $3,285, and to this they are entitled out of the judgment awarded plaintiffs.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


author: HIGGINS, J.

text:
    No. 10,925
    Orleans
    CLADE v. CHECKER CAB CO.
    (November 18, 1929. Opinion and Decree.)
    Fred C. Marx, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit to recover the sum of $300, the alleged value of a mule, which plaintiff claims was killed through the negligence of the defendant’s employee. The defendant filed an exception of no cause of action based on the ground that the petition did not allege that the employee was acting within the scope of his employment.

The district judge maintained the exception with leave to amend. Defendant then answered, reserving the benefit of the exception, denying liability.

There was judgment in favor of plaintiff for the full amount claimed and defendant has appealed.

Counsel for the defendant has renewed the exception of no cause of action before this court. In disposing of the exception and upholding the judgment of the district court, we think it sufficient to cite the case of Francis vs. Barbazon, 10 La. App. 55, in which this Court said:

“Counsel has renewed his exception of no cause of action in this court and has argued ably in support thereof. His contention is that the petition alleges malicious and willful injuries by Defendant’s driver, without making the essential averment that these injuries were done within the scope of the driver’s employment.
“This conclusion seems to us untenable, when the petition is taken as a whole, but, even if the exception were maintained, plaintiff would be entitled to amend, for the whole trend of modern procedure is to do away with technicalities, and to permit additional averments by supplemental petition, where the failure to state a cause of action is due to insufficiency of allegation. See Blake v. Jefferson-St. Charles Tr. Co., 8 La. App. 310.”

On the merits of the case, the record shows that on January 27, 1925, at 5:30 o’clock p. m., a collision took place between defendant’s Ford car and plaintiff’s mule on the downtown river side of the intersection of Yillere and St. Louis Streets in the city of New Orleans. Plaintiff was the owner of a team of mules and a dump wagon which was being driven by a negro man at the time of the accident. This team was proceeding on the right-hand side of Villere Street in the direction of Esplanade Avenue. The Ford car of defendant was proceeding on the right-hand side of St. Louis Street in the direction of the lake and was in charge of its superintendent. At the same' time there was another car moving on the right-hand side of St. Louis Street in the direction of the river.

Plaintiff contends that the mules had actually crossed St. Louis Street and were on Villere Street at the time the one on the right-hand side was struck, and, therefore, the team having entered the intersection and almost crossed it, had the right of way to proceed and defendant’s driver was guilty of negligence in not slackening his speed or stopping in order to permit the team to pass. Plaintiff further contends that defendant’s driver was running at such an excessive rate of speed that he was unable to stop the car and was, therefore, guilty of negligence in approaching an intersecting street when his car was not in proper control.

Defendant contends that its automobile had reached the intersection of the streets and as it was approaching from the right under the ordinance of the city of New Orleans, it had a right to proceed and that the team should have stopped. That the driver of the team was guilty of negligence in permitting the mules to gallop across the intersection without having the reins in his hands.

We have carefully read the record and are convinced that the contention of plaintiff is sound and find as a matter of fact that the mules had actually passed from St. Louis Street into Villere Street at the time that the defendant’s automobile ran into the mule on the right-hand side and broke his leg necessitating the destruction of the animal.

We are also satisfied that defendant’s car was traveling at such a rate of speed that the driver was unable to stop or sufficiently slacken its speed in order to avoid striking the mules. He was, therefore, guilty of negligence in approaching the intersecting street at such a rate of speed that he was unable to stop or slacken the speed of his car so as to avoid striking anything that might have previously entered the intersection of the streets.

The evidence also shows that the automobile, traveling on St. Louis Street, in the direction of the river, was passing to the rear of the wagon at the time that defendant’s car approached and that, therefore, defendant's car was prevented from going to the rear of the wagon in order to avoid striking it. This forced defendant’s driver to sharply turn into Villere Street, in the direction of Esplanade Avenue, where his car struck the mule.

There was nothing to intercept the view of the driver of defendant’s car, and he should have seen the mules in sufficient time to have applied his brakes so as to slacken the speed of his car or stop, in order to permit the team of mules and the wagon of plaintiff to proceed in safety.

The evidence shows that the value of the mule was $300. The district judge rendered judgment in favor of plaintiff for the full amount and we see no reason to disturb the judgment.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,459
    Orleans
    WAGNER v. TARRANT AND MARINE BANK & TRUST CO. (Garnishee)
    (November 18, 1929. Opinion and Decree.)

      Weiss, Yarrut & Stieh, of New Orleans, attorneys for plaintiff, appellee.
    Terriberry, Young, Rault & Carroll, of New Orleans, attorneys for garnishee, appellant.
   JANVIER, J.

Plaintiff obtained a judgment against defendant Tarrant for an amount in excess of $800. Being unable to collect this judgment directly, plaintiff caused garnishment proceedings to issue against various banks in New Orleans, including the Marine Bank and Trust Company. The interrogatories propounded required the garnishee to state whether it had in its possession any property or funds belonging to Robert Hayne Tarrant. To all of the interrogatories the garnishee answered “no.”

To a rule to traverse, the garnishee filed an answer in which it admitted that there was on its books an account in the name of “R. H. Tarrant, Agent” and that there was to the credit of this account at the time of the service of the garnishment, $106.24.

Mr. A. J. Crozat, assistant cashier of the garnishee, was placed on the stand and he testified that the account on the books of the garnishee stood in the name of “Robert H. Tarrant, Agent,” and that he knew that the Robert H. Tarrant, Agent, was the same Robert Hayne Tarrant against whom judgment had been rendered.

The trial court held that the garnishee had not made a full and complete disclosure and that as a result it became liable to plaintiff in the sum of $106.24. The garnishee contends that its obligation to answer the interrogatories was fully complied with in that the interrogatories.stated that the defendant was Robert Hayne Tar-rant, whereas in truth and in fact the account stood on garnishee’s books as Robert H. Tarrant, Agent. It will be noted that there are two differences between the account, as it stood on the books of the bank and the name of the defendant as it appeared in the interrogatories. In the first place, the middle initial was used on the books of the bank, whereas the middle name was given in full in the interrogatories. In the second place the word “agent” appeared on the books of the bank, whereas no descriptive title was given in the interrogatories.

Interrogatory No. 1, reads as follows:

“Had you in your hands, or under your control, directly or indirectly, at the time of service of these interrogatories, or at any time since, any money, rights, credits, or other property whatsoever, belonging or due to the said defendant, in or in which he has or had any interest for the whole or for a part; and if yes what is the nature, description and amount thereof, and is the same sufficient to pay or to satisfy the full amount of said judgment or if less, to what amount? * * * you being asked and required to make a full disclosure in relation to the same.”

Article 262 of the Code of Practice provides :

“The garnishee, who has been cited in a suit, must put in his answer within the usual delay, declaring in the same, fairly and truly, what property belonging to the defendant he has in his possession, by whatever title he may possess the same, as well as what sums he may owe to such defendant.”

The garnishee .contends that the case of Edward Thompson Company vs. Durand, 124 La. 381, is authority for the position assumed by it here. In that case the account stood in the name of “Louisiana Auto Club, W. J. Durand, President.” The Supreme Court held that the garnishee, which denied that it had on its books anything due to W. J. Durand, had discharged its full duty in making such answer. We do not believe that that case authorizes us to hold that the bank here has done its full duty. We believe that the word “agent” without the disclosure of any principal did not relieve the garnishee of the duty of disclosing the fact that Robert Hayne Tarrant had, to its knowledge, an account on its books in the name of Robert H. Tarrant, Agent.

It is contended that under Article 264 of the Code of Practice plaintiff cannot recover against the garnishee because there was not offered in evidence either written proof of the falsity of the answers nor oath of two witnesses. We do not think that this article of the Code of Practice is applicable here, because here the garnishee itself admitted that it had such an account and no question of fact is presented for determination. The article of the Code of Practice referred to is applicable only when a question of fact is in dispute and merely fixes the amount of proof necessary to determine such dispute. The facts are all admitted and, for the reasons we have given, we think the law is against the garnishee.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,430
    Orleans
    DUGAY v. CURREN ET AL.
    (November 18, 1929. Opinion and Decree.)
    A. Melville Wolfson and Albert J. Pere, of New Orleans, attorneys for plaintiff, appellee.
    John E. Unsworth, and Arthur M. Curtis, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

Plaintiff brings this suit as lessee against the owners of the' premises No. 2312 Louisa Street, alleging that, during her occupancy, she was injured by reason of the collapse of the front steps.

The judge a quo allowed her $300 and defendants have appealed.

The liability of defendants is practically conceded and the only question presented by brief and in argument in this court concerns the quantum.

According to one of the physicians who attended plaintiff, her injuries consisted of severe contusions on her body, knees and legs. She was kept in bed for four weeks and confined to her room for an additional four weeks. She is a negress and earned her living by washing clothes.

The court below found that plaintiff was injured in the manner claimed, but that in other respects her testimony was unreliable. The evidence of her physician was also found unsatisfactory. The court itemized its award as follows:

(a) For loss of earnings________________________$153.00
(b) Medical expense (doctor’s bill) 75.00
(c) Pain and suffering________________________ 72.00
Total_______________________________________$300.00

The greatest amount plaintiff claims to have earned in any week was $9. Consequently, if we assume her1 disability to have covered a period of eight weeks, she is entitled for loss of earnings to the sum of $72. The doctor’s bill, considering the circumstances of his. patient, seems to us excessive, and we believe $50 to be ample. Giving plaintiff the benefit of the doubt as to the item of pain and suffering, we will not disturb the award in' this respect.

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff from $300 to $194, and, as thus amended, it is affirmed.


text:
    No. 11,625
    Orleans
    PRENDERGAST v. KATZ
    (November 18, 1929. Opinion and Decree.)
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellant.
    Feitel and Feitel, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff sues for damages alleged to have been caused by the illegal removal by defendant of certain household articles, which had been sold by defendant to plaintiff and his wife. There is considerable dispute as to whether or not the particular articles which defendant removed had been paid for but this is of no importance because, if defendant improperly attempted to take tbe law into his own hands and to remove by force the property, he would be liable for such damages as may have been caused by such illegal action, even if no payment whatever had been made.

The evidence, however, is quite convincing that defendant removed the articles in question with the consent of plaintiff’s wife. The wife herself had testified, when her evidence was taken prior to the trial, that-“he said he wanted to take the pillosws so I gave them to him.”

This testimony by itself might not be helpful to defendant, because it would be entirely proper for a sick woman in the condition in which Mrs. Prendergast was, rather than engage in a controversy, to give in and allow the removal of the articles, but the evidence of Mrs. Calvo, who, we conclude from the evidence, was with Mrs. Prendergast at the time of the removal, is to the effect that Katz used no violence but that the articles were voluntarily given to Katz by Mrs. Prendergast. This testimony is as follows:

“Q. What conversation took place between Mrs. Prendergast and Mr. Katz?
“A. He said, ‘Good morning, Madam. I come for the table and pillows.’ She said she ‘was sick and could not be worried. He said, T am sorry the lady is sick and I hope you get well.’ In the meantime Mrs. Prendergast took the slips off the pillows and gave them to him.”

We attach no importance to the subsequent conversations with regard to blackmail, etc., as the evidence is conflicting with regard thereto, and, we do not believe that this evidence, if true, ^ would alter the rights of the parties which had previously accrued.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,893
    Orleans
    EMDON v. OLYMPIA ROOFING CO. ET AL.
    (November 18, 1929. Opinion and Decree.)
    Paul Maloney, of New Orleans, attorney for plaintiff, appellee.
    Thomas Tomney, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

This is a suit on a written contract for the return of certain money paid under the terms of the agreement and for damages. The petition alleges that on November 10, 1925, plaintiff and defendant, a co-partnership, entered into a written contract, under the provisions of which, the defendant undertook to place a roof on plaintiff’s building, 6147 Catina Street, New Orleans, for the price of $160, and in which contract the defendant guaranteed the roof for a period of ten years. The petition also alleges that, shortly after the roof was placed on the building, it began to leak, due to defects in the construction of the roof by the defendant, and that the defendant was repeatedly notified of the leaks and repeatedly attempted to correct them, but without success. The petition further alleges that on June • 14, 1928, plaintiff notified defendant by letter that the roof continued to leak, and that on August 18, 1928, a new roof was installed for the sum of $200 by a third party. Plaintiff asked for the return of the price of the roof — i. e., $160 — and for damages caused by the leaks in the roof.

Defendant denies liability, and alleges that the roof was properly installed in a workmanlike manner and with good material, but that the leaks were due to the defective construction of the building, particularly the manner in which the sheathing boards were placed on the roof, and to the sagging of the roof due to the sinking of the foundation. There was judgment in favor of the plaintiff for $160, and defendant has appealed. The plaintiff did not answer the appeal.

The guaranty reads as follows:

“This roof guaranteed both by ourselves and the manufacturers for a period of Ten years from date of application when subjected to ordinary usage.’’

The evidence shows that the building was about three years old and originally had a similar roof on it which also leaked. That the sole and only reason why the plaintiff had defendant place a new roof on the building was to get a weatherproof roof on the building. The defendant undertook to place the new roof over the old one without removing it, and, in spite of the fact that the building then had two roofs, it continued to leak.

The representative of the defendant admits that he inspected the building before installing the new roof, and after its installation issued a ten-year guaranty to plaintiff. There is quite a conflict between plaintiff’s and defendant’s evidence as to whether the leaks were caused by the improper installation of the roof or bad material, or whether they were caused from the sheathing boards not being properly placed on the building. However, when the third roof was installed by the third party, the two first roofs were removed and the new roof was placed on the building. The new roof did not leak, notwithstanding several heavy rains. The evidence shows conclusively that only certain small portions of the sheathing, where the water had leaked and caused it to rot, were removed and properly replaced, before the third and present roof was placed on the building. We are therefore convinced that it was neither the settling of the building nor the improper sheathing of the building that caused the leaks in the roof, but that they were due either to the improper laying of the roof or defective material used in installing it.

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


text:
    No. 11,924
    Orleans
    CANAL STEEL WORKS v. CRESCENT FORWARDING & TRANS. CO., LTD.
    (November 18, 1929. Opinion and Decree.)
    Feitel & Feitel, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor and W. H. Sellers, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit for damages resulting from a collision between plaintiff’s Ford coupe and the defendant’s truck. Defendant denies liability. There was judgment in favor of plaintiff for the sum of $117.04 and defendant appealed.

The evidence shows that the plaintiff’s coupe, in charge of an employee, was being driven out Alvar Street, on the right hand side, and when within thirty feet of North Robertson Street, had slowed down to about eight miles per hour. Defendant’s truck, in charge of its chauffeur, while turning into Alvar Street from North Robertson, at a speed estimated about twenty-five miles an hour, was unable to remain on the right hand side of Alvar Street, with the result that it crossed to the left hand side of the street. In so turning, the left front wheel of the truck struck the left rear wheel of the Ford coupe, jamming the coupe against the sidewalk curbing on Al-var Street and causing the damages in question.

The only witnesses to the accident were the driver of plaintiff’s coupe and the driver of defendant’s truck. Plaintiff proved a prima facie case by the testimony of the driver of the Ford coupe and the mechanic who repaired the car. The defendant was content to cross-examine these witnesses without offering any rebuttal evidence.

We are convinced that the damages complained of were the result of the carelessness and negligence of the driver of defendant’s truck and that the charges for the necessary repairs were reasonable.

The case presents simply an issue of fact, and the judge of the lower court having decided it in favor of plaintiff, and there being no manifest error, the judgment is affirmed.


author: WEBB, J.

text:
    No. 3031
    Second Circuit
    TEX-LA REALTY CO., INC., v. EARNEST (FEDERAL SECURITIES CO., INC.), Intervener
    (November 18, 1929. Opinion and Decree.)
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    T. Overton Brooks, of Shreveport, attorney for intervener, appellant.
   WEBB, J.

Plaintiff, The Tex-La Realty Company, Inc., a corporation domiciled in Caddo parish, La., leased to L. L. Earnest certain premises situated in Caddo parish, and the lessee failing to pay the rent when due, plaintiff instituted suit against him for the rent due, and obtained the issuance of a writ of provisional seizure, under which the furniture and effects in the dwelling house and¡ a Ford automobile in a garage or outhouse on the leased premises were seized, and the plaintiff asserted a lessor’s privilege and pledge on all the property seized to secure the payment of the rent.

The Federal Securities Company, Inc., a corporation domiciled in the parish of Caddo, intervened in the suit, alleging that the automobile belonged to Jerry Lewis, a resident of Madison parish, La., who had purchased it from a dealer in that parish, giiving a note in part payment of the purchase price, the payment of which was secured by vendor’s lien and chattel mortgage on the automobile, which had been duly recorded in Madison parish, where the automobile was located, and that the note had been acquired by the intervener in due course, and that there was a balance due on the note, and prayed that the automobile be released from seizure and delivered to it, and in the alternative for judgment recognizing it to have a superior privilege on the automobile.

On trial judgment .was rendered in favor of plaintiff, recognizing its asserted privilege against the property seized, including the automobile, and rejecting intervener’s demands, and intervener appeals.

The law grants to the lessor a privilege on all movable property found on the leased premises, including the movables owned by third persons which are on the leased premises with the consent of their owners, where it is not shown that the property was only transiently on the premises. (Articles 2705, 2706, 2707, 2708, Civil Code.)

Conceding that the automobile was the property of Jerry Lewis, the debtor of intervener rather than that of the lessor (as to which the evidence is conflicting), it is not shown that the property was not on the premises with the consent of its owner, and the only questions urged here are, whether or not the evidence established that the automobile was only transiently on the leased premises, and, if not, whether the rights of the intervener under the chattel mortgage, which was not recorded in the parish of Caddo, were affected by the seizure.

Intervener carried the burden of proof to establish that the automobile was only transiently on the leased premises (Sanchez vs. Hertzfeld, 4 La. App. 576), and while it was shown that it was only temporarily on the premises, or until such time as necessary funds could be procured to obtain a license so that the car could be driven on the highways, it was not shown that there was any agreement that any storage charges would be paid.

It cannot be said that the automobile was on the leased premises under a sublease, and we do not think that it can be said to have been transiently on the premises under the provisions of article 2708 of the Civil Code.

The article referred to in substance provides that, the movables of a third person, when they are only transiently or accidentally in the leased house, store or shop, such as the baggage of a traveler in an inn, merchandise sent to a workman to be made up or repaired, and effects lodged in the store of an auctioneer to be sold, are not subject to the lessor’s right of pledge-it is -not suggested that the automobile was placed in the garage by a guest of the lessee, or that it had been left on the premises to be repaired, or that the lessee was an auctioneer and that it had been lodged in the garage to be sold.

Many decisions are cited in which the Supreme Court has considered the provisions of the statute quoted, but it has not been held in any of the cases cited that the movables found on the 'leased premises were transiently thereon unless the facts established clearly placed the property in a class analogous to one of the three classes stated, that is, “the baggage of a traveler in an inn, merchandise. sent to a workman to be made up or repaired, or effects lodged in the store of an auctioneer to be sol'd.”

In Loque vs. Motor Co., 157 La. 124, 102 So. 91, 93, the court, after reviewing many decisions in the provisions of article 2708 of the Civil Code, said: “It therefore seems that this court has heretofore held to the view that article 2708, R. C. C., is exclusive rather than inclusive,” hut stated that special facts, such as presented in Underwood Typewriter Co. vs. Vatter, 14 Orl. App. 410, may warrant the court to modify its views.

The facts as presented in that case are not analogous to those presented here, and the fact that the property of the third person may have been temporarily in the house, shop or store does not show that it was only transiently on the premises (Twitty vs. Clarke, 14 La. Ann. 503), and confining our opinion solely to the contention that the property was only transiently on the leased premises, we find that the evidence failed to establish the contention.

There is not any authority cited in support of the contention that the rights of the intervener under the chattel mortgage were not affected, but it is urged that the mortgage having been recorded in the parish where the owner resided and where the property was located, and the evidence not showing that it had been removed from that parish with the consent of the intervener, it should be held that the lessor had notice of the privilege and rights of the intervener under the mortgage.

The property became affected by the lessor’s right of pledge in the parish of Caddo, where the mortgage was not recorded, and we do not think that the lessor oan be held to have had notice that the property was mortgaged (Wilson vs. Lowrie, 156 La. 1062, 101 So. 549; Gulf Finance Co. vs. Taylor, 160 La. 946, 107 So. 705), and it is not suggested that if the lessor did have notice that the movable was brought or placed on the leased premises by the lessee without the consent of its owner, the lessor’s right of pledge would not affect such movable, or would be subordinate to the vendor’s privilege or lien of the chattel mortgage, and we have not been able to find any ruling in this state to that effect.

The judgment is affirmed.


text:
    No. 11,850
    Orleans
    HORTMAN-SALMEN CO., INC., v. NAQUIN ET AL.
    (November 18, 1929. Opinion and Decree.)

      Edrington & Carmouch, of New Orleans, attorneys for plaintiff, appellee.
    John B. Fisher, of New Orleans, attorney for defendants, appellants.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Appellant filed the following motion and order for a suspensive appeal which was granted, and in due course the appeal was lodged in this court:

“On motion John B. Fisher, Attorney for Felix Famularo, one of the defendants herein, and on suggestion to the Court, that mover is aggrieved by the judgment, herein rendered on the 21st, day of January, 1929 and signed on the 25th day of January, 1929, in favor of plaintiff, Hortman-Salmen Company, inc., and against this mover in the sum of Eleven Hundred fifty dollars and thirty seven cents with interest.
“That mover feels that the said judgment ought to have been subject to a credit of seven hundred dollars.
“That the said judgment is contrary to the law and the evidence and that mover desires to appeal suspensively therefrom to the Court of Appeal for the Parish of Orleans.
“It is ordered that a suspensive appeal be granted to the said defendant, Felix Famularo, returnable to the Court of Appeal, Parish of Orleans on the 28th day of February, 1929, upon mover furnishing bond with good and solvent security according to law.”

Appellee moves to dismiss the appeal on the ground that there has been an acquiescence in the judgment, citing Raines, et al. vs. Dunson et al., 143 La. Rep. 321, 78 So. 574.

The acquiescence is alleged to have resulted from the language used by the appellant in his motion for the appeal, to the effect “that the said judgment ought to have been subject to a credit of $700.” In other words, it is argued that the judgment which was for $1148.87, was indivisible and that in asking only for a credit of $700, there is necessarily involved an admission that the judgment is correct.

We cannot follow counsel in his argument, as it seems to us in seeking a modification of the judgment to the extent of $700, defendant not only did not acquiesce in the judgment, but complained of it. It is not pretended that any part of the judgment has been paid by appellant.,

“It is essential to an acquiescence in a judgment that will take away the right of appeal, that there must be an unconditional, voluntary, and absolute acquiescence by appellant, and he must have intended to acquiesce and abandon his right of appeal.” Saunders vs. Busch-Everett Co., 138 La. 1049, 71 So. 153.

Louisiana Digest, Volume 1, Verbo “Appeal,” page 352.

The case relied on by appellee in his motion to dismiss is not in point.

For the reasons assigned the motion to dismiss the appeal is denied.


author: ODOM, J.

text:
    No. 3034
    Second Circuit
    SOUTHERN IRON & EQUIPMENT CO. v. DREW GRAVEL CO., INC.
    (November 18, 1929. Opinion and Decree.)
    Hayes & Mclnnis, of Minden, attorneys for plaintiff, appellee.
    A. S. Drew, of Minden, attorney for defendant, appellant.
   ODOM, J.

The transaction out of which this suit arose took place in 1924. On April 12th, of that year, the defendant, Drew Gravel Company, Inc., wired plaintiff to know if it could make immediate delivery in Arkansas where defendant’s gravel plant was located, of certain dump cars, and if so, to wire specifications as to make, price and present location.

On April 14th, plaintiff wired defendant as follows:

“Have inspector see Superintendent Brooks Galloway Bauxite Arkansas terms half cash balance thirty sixty ninety days six per cent satisfactory understand, will examine tomorrow.”

On April 16th, defendant wired plaintiff as follows:

“Will have inspector at Bauxite tomorrow morning if cars satisfactory wish same loaded same day have your man ready.”

On the same day, plaintiff wired defendant as follows:

“Per yours date are instructing Brooks Calloway accordingly thanks.”

On April 17th, defendant wired plaintiff as follows:

“Inspector reports cars OK ship four four yard side dump thirty six inch cars to Delight Arkansas draw on Bank of Webster Minden La for four hundred fifty dollars forward notes for balance due thirty sixty and ninety days to Minden.”

On the same day, plaintiff wired the defendant:

“Yours date will have cars shipped promptly thanks.”

On April 19th, defendant wired plaintiff as follows:

"Mail deferred payment notes to Min-den Louisiana.”

The testimony shows that the Drew Gravel Company, defendant, sent a man, named Dalton, to Bauxite, Arkansas to inspect and pick four dump cars to be shipped. Out of a great many dump cars which Dalton found there he picked out four, acce'pted them for defendant and ordered them shipped to defendant at Delight, Arkansas. The cars were shipped, as per the orders. But, when the shipment arrived at Delight, it was i'efused by defendant on the alleged ground that the cars were unfit for use. On April 29th, defendant wired plaintiff as follows:

“Cars are completely worn out represented to be in good condition by New Orleans branch I must have cars at once will pay freight and unload and use until you can furnish us four cars in good shape then reload the ones we have if you are unable to secure four yard cars will take two or three yard cars in good shape no inspection made of cars sent laborer to hurry loading if arrangement is satisfactory wire Bank of Webster to release bul of lading without ¡payment of draft answer at once wire.”

So far as the record discloses, all negotiations between the parties ceased at this point. Defendant, having refused to accept the cars at Delight, Arkansas, they were shipped by plaintiff back to Bauxite. The freight on the cars from Bauxite to Delight and from Delight back to Bauxite, plus demurrage accrued at Delight, amounted to $295.86.

This suit is against defendant to recover that amount. The defense is that plaintiff breached its contract by shipping cars unfit for use. The defense might be good, but for one thing, to-wit: the cars were picked out, accepted. and ordered shipped by defendant’s inspector and agent, Dalton. The ¡plaintiff company did not own the cars, but was selling them for another. It had no interest in shipping these particular cars instead of others which might have been selected by Dalton. The cars would not have been shipped if Dalton had hot picked them out and ordered them shipped. The testimony shows that the identical cars selected by Dalton were shipped.

The fact that Dalton had full authority to make the selection of cars to be shipped and in that respect to bind defendant company can not be, and in fact, is not seriously disputed. In defendant’s telegram to plaintiff of April 16th, it said: “Will have inspector at Bauxite tomorrow morning. If satisfactory wish same loaded same day. Have your man ready.” The man designated by plaintiff to pick out cars for inspection and to ship, if satisfactory, was on the ground and met Dalton, defendant’s inspector. He testified that Dalton selected the cars he wanted and ordered them shipped. Following this, defendant wired plaintiff on April 17th, as follows :

“Inspector reports cars OK. Ship four four-yard side dump 36 inch cars to Delight, Arkansas. Draw on Bank of Webster, etc.”

The fact that plaintiff was made to suffer a loss of $295.86 on account of defendant’s refusal to accept the shipment is not disputed. The district judge thought defendant should respond. We think so, too.

For the reasons assigned, it is ordered that the judgment appealed from be affirmed, with costs in both courts.


text:
    No. 3103
    Second Circuit
    HAMILTON v. ROCKEFELLER ET AL.
    (November 18, 1929. Opinion and Decree.)
    Murff and Perkins, of Shreveport, attorneys for plaintiff, appellant.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for Dr. Eichelberger.
    Cook & Cook, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff, a lady about sixty-five years old, owned a piano which her father gave her when she was a child and which, for that reason, she prized very highly as an heirloom. The case, as well as the decoration and legs, were made of rosewood. As a musical instrument, it had lost its usefulness, due to age and wear, but she wanted to preserve it as nearly as she could and decided to have the material converted into a table. To that end, plaintiff turned the piano over to defendant, who is a skilled cabinet maker. The defendant made the table, delivered it to plaintiff, and, for his services, she paid him the agreed price of $160. At first, she did not examine the table carefully due to the fact that her niece was soon to be married, and wedding presents which were then being sent in were placed upon it. Later on, plaintiff and her two sisters examined the table and reached the conclusion that the material out of which it had been made was not the material which came from the piano, and naturally, plaintiff was dissatisfied. She brought this suit alleging that defendant had used the material from her piano in a table which he had built for Dr. Eichelberger; that both Rockefeller and Dr. Eichelberger were in bad faith — Rockefeller, for having knowingly used her material in the table for Dr. Eichelberger, and Dr. Eichelberger, for having accepted the table which he knew was made of her material. She seeks judgment decreeing her to be the owner of the top placed by Rockefeller on Dr. Bichelberger’s table, and the moulding, corners, and all other material taken from the piano and not used in the table made for her, and ordering that defendant surrender such parts; and in the alternative, in case: such parts should not be surrendered, that she have money judgment against them in solido for $75, as attorney’s fees, and $300 for the' value of such parts.

Rockefeller’s defense is that he used the materials from plaintiff’s piano in making her table; and Dr. Eichelberger defends on the ground that he employed Rockefeller to build a table for him, for which he paid $175, and that he has no knowledge as to where the material which Rockefeller used in his table was obtained.

The district court rendered judgment for plaintiff against Rockefeller and Dr. Eichelberger in solido for $20; and against Rockefeller, individually, for $5. From this judgment, plaintiff alone appeals.

OPINION.

Plaintiff’s suit is grounded upon the proposition that Rockefeller did not use the material from her piano in the construction of the table which he delivered to her, but that he knowingly used said material in making one for Dr. Eichelberger. •

If she failed to make out her case on that point, her suit, of course, must fall.

Due to • the fact that plaintiff feels so much aggrieved at what she no doubt sin.cerely believes to be a gross injustice done her by these defendants in robbing her of a family heirloom, a gift from her father, a relic of her childhood, we have given the testimony most careful scrutiny and our conclusion is that plaintiff’s grievance is wholly fancied — not real. We are convinced that plaintiff has in the table delivered to her by Rockefeller the identical materials which came from her piano.

Plaintiff and her two sisters testified that it was not the same material, but they could give no satisfactory reason for that conclusion. The case of her piano was made of rosewood, and she, and every other witness called, testified that the table made and delivered to her is of rosewood. But piaintiff said: “The table top is not mine.” When asked how she knew that, plaintiff said:

“Because it isn’t material like my piano and it does not compare in color with it. You know when a table is varnished it shows light and dark streaks of wood and shows the grain of the wood and does not compare with my piano or the sides of my piano or the top of my piano, — it does not compare with it and does not compare with the piece that I have left of the top.”

She and her sisters said also that they could see slight defects in the wood of which the table was made which did not show in the piano. A small piece of the top of the piano was sawed off and not used and was returned, and plaintiff says it does not “compare” with the top of the table.

All this is easily explained. The top of the piano which was used for the top of the table was highly polished on both sides; but, in order that the framing of the table might be glued to the top, it was necessary to remove some of the polish from the under side because glue will not hold to a highly polished surface. When the polish was removed, the grain of the wood and whatever defects there may have been therein, were exposed. The bottom of the table had a different appearance. Plaintiff and her witnesses say that the difference they detected was in the appearance of the under side. But the table top had been retouched or refinished. Rockefeller had applied a coat of shellac, all of which naturally gives the wood a somewhat different appearance. The small portion of the piano top which was returned was in the same condition as to finish that it was when removed, and it was partly by comparison that plaintiff reached the conclusion that it was of a different piece.

Mr. R. L. Barbee, a cabinet maker, whose experience has extended over a period of twenty or twenty-five years, examined the table and the piece sawed off. He said he “failed to find any place where the grain matched.” However, he said, “that might have been due to the dyes used in the refinish of the other top, but I don’t think so.” Further testifying, he said:

“I base my opinion on that on the grain strictly. That is the only thing I can base it on. My opinion is that these grains do not match, though I would not swear whether it is the same top or not. There might have been a piece cut out between that end and the other piece, but at the same time it does not match now. I presume it is just like it was cut off. If both pieces of wood were naked or without any finish on it you could arrive at it perfectly; but one is a highly polished finish and the other is a dull finish.”

This expert witness gave a very good reason why he could not “swear whether it is the same top or not.”

Now Mr. Rockefeller swore positively and unequivocally that he used plaintiff’s material in making her table. He was the only witness called who could be absolutely certain on that point. We see no reason to doubt either his veracity or his accuracy. He had no reason whatsoever to use other material in plaintiff’s table. True, he made a table for Dr. Eichelberger, but he had other wood of the same kind with which to- make it. It made no difference with him or with Dr. Eichelberger whether the Eichelberger table was made of plaintiff’s rosewood piano top or a rosewood top from some other piano, and Rockefeller had several in his place at the time. The use of plaintiff’s material in Dr. Eichelberger’s table could not inure in the slightest to Rockefeller’s benefit.

The district judge rendered judgment for plaintiff in a small amount, probably based on what he considered a fair value of the portions of material which Rockefeller considered worthless and destroyed. Defendant did not appeal. The judgment appealed from is affirmed; with costs in both courts.


text:
    No. 3187
    Second Circuit
    WHYTE FEED MILLS v. COX
    (November 18, 1929. Opinion and Decree.)
    C. M. Roberts, of Minden, attorney for plaintiff, appellee.
    Mclnnis & Campbell, of Minden, attorneys for defendant, appellant.
   WEBB, J.

This is an action for damages alleged to have been sustained by plaintiff as the result of defendant’s alleged violation of a contract of sale. The contract was for a carload of feed to be shipped by plaintiff from Pine Bluff, Arkansas, to Cotton Valley, Louisiana, and the shipment was consigned to the seller with directions to notify buyer, and with bill of lading and draft for price attached, and on arrival of the shipment, defendant refused to accept, and the shipment was after some negotiations returned to plaintiff.

The damages claimed consist of freight charges from Pine Bluff to Cotton Valley and return, expense of unloading the car, alleged to have been paid by plaintiff, and loss of anticipated profits, and further, for liquidated damages alleged to have been stipulated by the parties, aggregating $160.13.

The defense set up was a general denial and certain special defenses; and on trial judgment was rendered in favor of plaintiff in the sum of $94.56, which amount comprehends the freight charges and expenses of unloading the car and for alleged liquidated damages, from which judgment defendant appeals, and plaintiff answered the appeal praying that the judgment be amended and that the full amount originally demanded be allowed.

The contract was .in writing, and while the parties complain of the construction placed on the contract, the principal complaint on behalf of appellant is that the evidence did not establish that the amounts allowed for freight charges and unloading had been paid by plaintiff, while appellee contends that the evidence established, and the court should have allowed the claim for loss of profits.

While the construction of the contract might give rise to considerable speculation, the construction of the court appears to have been substantially in accord with the construction of the parties indicated by their pleadings and evidence, and from our review of the record, we find that the judgment is supported by the evidence, and it is affirmed.


text:
    No. 3243
    Second Circuit
    CULPEPPER v. JORDAN
    (November 18, 1929. Opinion and Decree.)

      D. S. Scarborough, of Natchitoches, attorney for plaintiff, appellee.
    Gunter & McClung, of Natchitoches, attorneys for defendant, appellant.
   ODOM, J.

On October 10, 1927, about 7:30 p. m., plaintiff was riding in his Buick automobile on the Natchitoches-Shreveport highway going towards Shreveport, and met defendant, driving a Ford car, going towards Natchitoches. The two cars collided, resulting in the wreck of each. Plaintiff sued for damages, alleging that the collision was due solely to the fault and negligence of defendant; that plaintiff was driving his car at a moderate rate of speed, about 15 miles an hour, and was on his extreme right hand side of the road; that defendant left his side of the road, driving his car over to the opposite side and ran into plaintiff’s car.

The defendant, in answer, denied any negligence whatsoever on his part, but, on the contrary, alleged that the bright lights of plaintiff’s car blinded him and that he turned his car over to his extreme right hand side of the road so that two of his wheels were over in the ditch, and that plaintiff, while running at a highly excessive rate of speed, left his own side of the road and struck defendant’s car while partly in the ditch, dragging his Ford some 20 or 25 feet back towards Shreveport.

The district judge found for plaintiff and rendered judgment in his favor against defendant from which judgment defendant has appealed.

The only question presented is one of fact. The testimony of the plaintiff and that of defendant is as conflicting as could possibly be. Plaintiff testified, in support of his allegations that he was driving cautiously over on his extreme right hand side of the road and that defendant ran into him on that side of the road. The defendant, on the contrary, testified that plaintiff’s car ran into his while it was on the extreme right hand side of the road going towards Natchitoches, with its right wheels over in the ditch. The plaintiff and defendant were the only persons who witnessed the accident. In view of their conflicting statements, the case must necessarily turn on the physical facts.

A careful reading of the testimony of other witnesses who arrived at the scene of the accident a few minutes after the collision, makes it perfectly clear that the collision took place over on plaintiff’s side of the road.

Luke Mondello, Willie Dixon, A. D. Etheredge and Tom Hart each visited the scene immediately after the accident. Luke Mondello and Willie Dixon testified that when they reached the place, plaintiff’s car was in the road over on the right hand side, going to Shreveport, within about two feet of the ditch and that the defendant’s car was “tied into it’’ with the radiator of the Ford upon the running-board of the Buick; that the Buick car was sitting parallel with the road and that the Ford was almost at right angles with the Buick. In order that traffic might not be hindered, these two, with the help of others, pulled the two cars apart and set the Ford back on its side of the road. Mr. Hart, a Deputy Sheriff, testified that he got there about 8 o’clock, after the two cars had been pulled apart, and that plaintiff’s car was standing “up and down the road as nicely as if it had been parked there.”

The testimony shows that the Buick car had not been moved and shows beyond question, we think, that when struck, it was over on its side of the road. The defendant testified that when his ear was hit, it was standing still, partly in the ditch, and that it was dragged bach up the road some 15 or 20 feet. If this were true, we take it that there would be some physical evidence of the dragging or skidding in the road. While there were quite a number of witnesses who visited the scene immediately after the collision, not one of them discovered any skid marks or evidence of dragging, although some of them examined the road carefully with a flash-light. Several witnesses visited the place on the following day, but none saw 'any evidence of skidding or dragging. The testimony further shows that near the center of the road there was glass found, and, while there is some testimony that some of the glass was found over on defendant’s side of the road, the preponderance of the testimony is that practically all of it was near the center of the road.

Some of the witnesses visited the scene on the following day and found car tracks over in the ditch on defendant’s side of the road, but they were not able to say, of course, whether those tracks were made by defendant’s car.

There is no way to reconcile the undisputed physical facts in this case with the version of the collision as given by defendant. It is inconceivable that plaintiff’s car could have struck defendant’s over on the wrong side of' the road and dragged it back, without having left evidence thereof in the road, and it is highly improbable that plaintiff’s car could have been left standing in the road, as it was, if it had crossed over from defendant’s side, dragging defendant’s Ford car, as testified to by defendant.

The testimony satisfies us that the collision was due to the fault and negligence of the defendant.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be affirmed; with costs in both courts.


text:
    No. 3298
    Second Circuit
    ROYAL INDEMNITY CO., INC., v. SHREVEPORT MACARONI MFG. CO., INC.
    (November 18, 1929. Opinion and Decree.)

      Coolr & Cook, of Shreveport, attorneys for plaintiff, appellant.
    C. D. Egan, of Shreveport, attorney for defendant, appellee.-
   WEBB, J.

Plaintiff instituted this action to recover judgment against defendant for an alleged balance due for premiums on certain insurance policies, and it appeals-from a judgment rejecting its demands.

The evidence shows that the policies were issued to protect the defendant against amounts for which the defendant might become liable to its employees for injuries sustained by them, as provided by the Employer’s Liability Law (Act No. 20 of 1914 as amended) and that the premium to be paid was based upon the payroll of defendant and the rate was to be fixed or classified on the character of work in which the employees were engaged.

At the time the policies were issued, there was an estimate made of the amount of the premium to be paid which appears to have been based upon an estimate of the payroll and classification made at that time, it being, however, stipulated and agreed that the insurer would audit plaintiff’s books and fix the premium -on the payroll and classification, and the additional amount claimed in the present action is based upon an audit and classification made by the insurer.

The audit made was not filed in evidence, and there is not any proof in the record that either the audit or classification based thereon was correct, and while the officers of the defendant testify that they had submitted a statement of the amount of the payroll and classification thereon, and had made payments in accordance therewith, it is not shown that the payroll was correct or that the classification was in accord with the schedule under which the classification should have been made, and the schedule of classification' was not offered in evidence.

While we do not find that the evidence establishes the claim made by plaintiff, it does not appear with any certainty that defendant has paid the amount due under the policies, and the court should have dismissed plaintiff’s suit as of nonsuit, rather than rejected its demands It is therefore ordered that the judgment appealed from be amended and that plaintiff’s suit be dismissed as of nonsuit; plaintiff to pay all costs.


author: REYNOLDS, J.

text:
    No. 3402
    Second Circuit
    MORRIS v. OLIPHINT
    (November 18, 1929. Opinion and Decree.)

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellee.
    Edward Huson, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff sued defendant to recover $213.20 with legal interest from judicial demand, of which amount $175.20 is for an alleged balance of wages due him for services as a mechanic, and the balance of $38 is for an alleged balance of wages due R. L. Davis for services as a mechanic assigned to plaintiff by Davis.

The answer of defendant is, in effect, a general denial. And she alleges that she was the lessee of the premises where plaintiff and his assignor were employed and of a garage equipment therein, and that she sublet the premises and let the garage equipment to her husband, Zach Oliphint, under an agreement that whenever the profits of the business should justify it he was to purchase the lease and the garage equipment from her.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $175.20 with legal interest thereon from judicial demand and defendant appealed.

opinion;.

Plaintiff’s claim for $175.20 balance of wages claimed to be due him for services as a mechanic rendered by him to defendant was clearly established by the evidence. Plaintiff did not appeal from the judgment nor has he answered defendant’s appeal and therefore his demand for $38 for balance of wages alleged to be due R. L. Davis by defendant for services as a mechanic rendered by him to her is not before this court.

The contention of defendant that she is not liable to plaintiff for the reason that she had sublet the premises in which the garage business was conducted to her husband and was to sell him the garage equipment whenever the profits of the business would justify a purchase is without merit.

Husband and wife are incapacitated from contracting with each other (Civil Code, article x790) except in certain well defined cases of which the present is not one.

Plaintiff kept a record of the services rendered by him and the wages due him therefor and of the amounts paid him on account thereof and the dates whereon they were paid, and this record establishes the validity of his claim. The defendant kept no record of the services he rendered or of the payments made him on account thereof and was therefore in no position to dispute the accuracy of his record.

We find no error in the judgment appealed from and accordingly it is affirmed.


text:
    No. 3408
    Second Circuit
    CONTINENTAL SUPPLY CO. v. BROWDER
    (November 18, 1929. Opinion and Decree.)

      Poster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

By this suit plaintiff seeks to recover of the defendant $200 balance due on a promissory note, dated May 16, 1927, together with attorney’s fees and interest, and the sum of $250, alleged to be due for storage on a drilling rig, at $25 per month, this being the amount of storage due up to the date of filing of this suit, and for the further sum of $25 per month, as storage on said rig for such additional time as the rig may be stored with plaintiff.

Defendant answered admitting the execution of the note and admitting further that it was due plaintiff the sum of $225 storage on the drilling rig; but specially denied its liability to plaintiff in any sum whatsoever for the reasons and causes set up in a suit which he had previously instituted against this plaintiff in which it was alleged that plaintiff was due him a large sum as damages for its unlawful detention of the drilling rig; and set up specifically that plaintiff had unlawfully caused on several occasions the drilling rig to be seized and advertised for .sale and had unlawfully and without right repeatedly refused to deliver the drilling rig, to him, notwithstanding he had offered to pay plaintiff whatever amount he was due on the rig as storage. In an amended and supplemental answer, defendant, in reconvention, asked for judgment against plaintiff in a large sum.

There was judgment in the district court rejecting plaintiff’s demands and in favor of defendant on his reconventional demand in the sum of $400; from this judgment, both plaintiff and defendant have appealed.

As the pleadings and issues in this case are somewhat involved, it is necessary . to give a brief history of this controversy:

On July 1, 1926, John L. Anderson, who owned the drilling rig over which this litigation arises, placed the same in the warehouse belonging to the plaintiff company for storage at an agreed monthly rental of $50. Anderson failed to pay the monthly rentals and on March 26, 1927, the plaintiff company obtained judgment against him by default for the sum of $450.

On April 16, thereafter, the plaintiff company had the drilling rig seized under a writ of fieri facias and advertised for sale. However, before the date of sale, the present defendant, J. R. Browder, having previously purchased the rig from Anderson, entered into an agreement with the plaintiff company, evidenced by a document •which reads as follows:

“May 16th, 1927.
“Mr. J. R. Browder,
“Shreveport, La.
“Dear Sir:
“Confirming agreement of this date, in connection with our judgment against Jno. L. Anderson, covering rental on a Rotary Drilling Rig now located in our yard on the Mansfield road, we agree to a compromise total, including attorney fees and court costs, of $600.00 up to June 1st, 1927. If the rig remains on this location after that date, you are to pay us at the rate of $25.00 per month, rental in advance.
“Payment is to be as follows:
“$300.00 cash as represented by American National Bank Cashier’s check #69325, of this date.
“$300.00 on June 15th, 1927, represented by promissory note of this date.
“It is further agreed that, at your request, we will assign to you our judgment against Anderson, on payment of the above described note.
“Yours very truly,
“THE CONTINENTAL SUPPLY CO.
“H. C. Elder
“District Manager.”

On making this agreement with Browder, the plaintiff company ordered the sale discontinued and had the property released from seizure. The defendant, Browder, failed to pay the note of $300 when due and the plaintiff company again had the drilling rig seized and advertised for sale under an alias fi. fa. But, before the date of the sale, it seems that Anderson, as the agent of Browder, paid to the plaintiff company the sum of $100 on the note and the plaintiff again discontinued the sale and ordered the property released.

After considerable delay and without having received further payment on the amount due, the plaintiff company again had the property seized and advertised for sale. The property, having been appraised at something over $3,000, and the sheriff, having failed to receive a bid equal to two-thirds of the appraisement, had the property re-advertised to be sold for what it would bring, on twelve months’ bond, and W. Y. Lunn became, the purchaser at $1,000. However, previous to the date on which the property was to be sold, J. L. Anderson made affidavit that the property under seizure belonged to the defendant, J. R. Browder, which affidavit was filed with the sheriff. Lunn, after having bid the property in, declined to accept title thereto on account of this affidavit, and the sheriff, according to his returns, returned the writ to the clerk’s office and released the property from seizure. But, between the date on which Lunn bid the property in and the date oh which the sheriff made his return, the plaintiff company ruled Anderson, Browder and Lunn to show cause why the sale should not be perfected and the amount of the bid paid into court. The rule against Anderson and Browder was dismissed by the court on some technical ground, but the rule as to Lunn has not been disposed of.

It will be noted that the plaintiff company by having the drilling rig seized under the various writs was proceeding all along upon the theory that it owned the judgment obtained against John L. Anderson in 1926, which judgment recognized plaintiff’s privilege as warehouseman on the property in its possession. It is contended by counsel for defendant, as we understand it, that the transaction which took place between Browder and the plaintiff company on May 16, 1927, as evidenced by the document copied above, was a novation of the debt evidenced by the judgment and that the judgment was in effect paid, and that plaintiff’s subsequent seizures of the property under said judgment were illegal. The judge of the district court found and held that the above q/uoted document did not evidence a sale of the judgment, but only a promise to sell. We do not find it necessary to pass upon the question as to whether the document evidences a sale of the judgment or whether it was merely an agreement to sell, because we find that the parties themselves seem to have understood that it was merely an agreement to sell and that plaintiff still had a right to execute the judgment. This is evidenced by the fact that subsequent to the date on which that agreement was entered into, the plaintiff again seized the drilling rig, and defendant, either personally or through- his agent, Anderson, came in and paid $100 on the note and secured the release of the property from seizure. So both plaintiff and defendant seem to have understood that plaintiff was still entitled to execute on that judgment. That being true, it cannot be said that the seizures which, plaintiff caused to be made of this machinery in an effort to collect its debt were unlawful.

The district judge gave as his reason for rejecting plaintiff’s demands that plaintiff had violated its agreement with defendant with reference to the transfer of the judgment by causing the property to be sold, thereby placing it in a situation where it could not deliver the judgment, having already executed it, and could not deliver the property, having already sold it. However, we can see no reason why the plaintiff could not at any time have complied with its agreement and made a sale of the judgment to the defendant, in accordance with its original agreement. The fact that plaintiff had caused execution to issue suggests no reason why it could not have released its seizure and completed the sale of the judgment to Browder, upon Browder’s paying the balance due, plus whatever storage charges that had accumulated.

On the point that the plaintiff had caused the property to be sold to Lunn, we find that the sale was never completed — Lunn having refused to accept the same and the sheriff having returned the writ and released the property. Our conclusion is that the attempted sale to Lunn amounts to nothing at all and that the property, under the circumstances, is in the same situation that it was previous to its having been seized under the last alias fi. fa. This is true, because, as stated, Lunn refused to accept the sale and the plaintiff has abandoned its efforts to force him to accept the sale by bringing the present suit to enforce its indebtedness against Browder, and, as already stated, the sheriff’s returns show that the writ was returned and the property released.

The situation which presents itself, therefore, is this: The plaintiff has, by the institution . of the present suit, abandoned all rights or claims it may have had to the ownership of the judgment against Anderson and has abandoned its right to proceed against Lunn to force his acceptance of the sale. The only claim which the plaintiff company now makes is that Browder owes to it the balance due on the promissory note, plus storage on the property at $25 per month, from June 1, 1927. Defendant admits that he owes these amounts. If Browder pays the amount of his indebtedness to the plaintiff company, he will own the judgment against Anderson. The testimony shows that the drilling rig is still in possession of the plaintiff company. If Browder pays the indebtedness which he admits that he owes, plaintiff must, of course, surrender the property to him, he having purchased it from Anderson.

Now, as to defendant’s reconventional demand, we hold, as did the district judge, that defendant did not make out its case. The reconventional demand in damages is based on the theory that defendant offered to pay the amount of indebtedness which he admittedly owed to plaintiff, and that plaintiff- refused to accept the amount and deliver the property. It is true that counsel for Browder wrote plaintiff that Browder was willing to pay the amount of the indebtedness, provided the machinery was released. But Browder made no tender of the amount. Counsel for plaintiff testified that immediately after receipt of the letter offering to pay the amount due, he not only wrote defendant’s counsel that plaintiff was ready and willing to accept the amount, but that he went to counsel personally and stated to him that upon payment of the amount due, the machinery would be released. J. L. Anderson, whose testimony was taken by commission, stated that he at one time went to the plaintiff company and offered to pay the amount due, but that, due to the fact that some controversy arose over the amount due for storage, nothing came of the interview. We find nothing in the record to indicate that the plaintiff company has ever acted arbitrarily in its dealings with the defendant, but, to the contrary, has extended courtesies from time to time and has made no move, except legitimate efforts, to collect the amount due it.

For the reasons assigned, it is now ordered, adjudged and decreed that the judgment appealed from be set aside; and it is further ordered and decreed that plaintiff have judgment against and recover from the defendant, J. R. Browder, the sum of $300, with interest thereon at eight per cent per annum, from June 15, 1927, until paid, less a credit of $100 paid December 8, 1927, and ten per cent attorney’s fees on the amount of principal and interest due; and judgment in the further sum of $25 per month from June 1, 1927, down to and including the date on which this judgment is paid and the property removed from plaintiff’s premises, as storage on the property, with recognition of plaintiff’s lien and privilege as warehouseman on the property; defendant to pay all costs.