text:
    No. 4114
    Second Circuit
    CANNON v. NOMEY
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    O. A. Easterling, of Monroe, attorney for plaintiff, appellee.
    H. W. Ayres, of Jonesboro, and J. Rush Wimberly, of Arcadia, attorneys for defendant, appellant.
   DREW, J.

Plaintiff instituted this, suit to recover $700, the balance alleged to be due on four pool tables sold to defendant. He alleged that the sale was made on September 14, 1930, and the purchase price was $900, on which defendant had paid the sum of $200; that the contract of sale was verbal; that he agreed to put .the tables in first-class condition, at which time the purchase price was to be due; that the tables were delivered on September 25, 1930, and the contract, in so far as he was concerned, was fulfilled on October 8, 1930, when the tables were put in first-class condition.

Defendant denied that the consideration was $900, and alleged it to be $450, on which amount he had paid $200, leaving a balance due of $250, which amount he deposited with the court, plus the cost at the time the answer was filed.- He admits the tables were placed in first-class condition and the delivery of same.

The lower court rendered judgment in favor of plaintiff, as prayed for, and defendant has appealed.

Appellant filed in this court a motion setting out that the plaintiff had parted with all interest in the judgment and that said suit could not he prosecuted in this court in his name, and without proper parties being made; that the judgment should he reversed and remanded to the lower court for proper proceeding. He attached to the motion two letters addressed to defendant, one by the plaintiff, and one by the attorney for plaintiff, in which defendant is advised that the judgment had been sold to one William Haddad, of Monroe, La. We do not think the motion is well founded. The act transferring or assigning the judgment is not before us; and we know not what it contains.

In the case of Ruddock Cypress Company v. Peyret, 111 La. 1019, 36 So. 105, 106, the court said:

“A plaintiff may assign his claim, and agree that the suit shall continue in his name for the benefit of his assignee (Towne v. Couch, 7 La. Ann. 94), or his assignee may make himself a party plaintiff, and continue it in his own name. In neither case has the defendant reason to complain, since the matter at issue will be concluded by the judgment to be rendered, and a satisfaction of the judgment by the parties to the record or the sheriff will amply protect him.”

In the case of Dugue v. Levy, 120 La. 369, 45 So. 280, 281, the court said:

“It is well settled in our jurisprudence that a plaintiff may assign his suit to a creditor, and that the creditor may then prosecute the suit either in his own name or in that of plaintiff. Towne v. Couch, supra; Ruddock Cypress Co. v. Peyret, supra.

The motion is therefore overruled.

The case evolves itself into one of fact only and only one question to decide: Was the purchase price $900 or $450?

The parties to the suit are all Syrians, and most of the 'witnesses are of that nationality. The lower court found the facts to be in favor of plaintiff and that the purchase price was $900. In refusing a new trial, the lower court said:

‘‘The decision in this case was reached after a careful consideration of the testimony of all the witnesses. I heard all of them testify and observed them while on the witness stand. The witnesses, without regard to the side upon which they testified, impressed me equally with respect to the weight and credibility of their testimony. But I find that there is a preponderance of testimony in favor of the contention of plaintiff that the consideration agreed upon for the four tables was $900.00. I reached this, decision, notwithstanding the fact that the testimony is most confusing, conflicting and contradictory.”

Nothing would be gained by a detailed review of all the testimony in this case. We fully agree with the judge of the lower court, in that the testimony is conflicting and contradictory, and we are not prepared to say that the judgment of the lower court is manifestly erroneous.

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


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3986
    Second Circuit
    PIPES v. GALLMAN
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (February 1, 1932. Opinion and Decree of Supreme Court on Writs of Certiorari and Review setting aside judgment of Court of Appeal and reinstating judgment of District Court.)
    Geo. Wesley Smith, of Rayville, attorney for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

Defendant, herein, a young man twenty-four years of age, invited Bessie Pipes, for whom this, suit is brought, and three other young ladies, namely Jessie Pipes, Hazel Sumlin, and Mary Frances Byrd, all high-school students who were sixteen years of age, to share his automobile, a Ford roadster with a rumble seat, for the purpose of transporting them to school, a distance of about two blocks. The four young ladies accepted the invitation, Bessie Pipes and Hazel Sumlin, occupying the rumble seat, and the other two, the front seat with defendant.

It was about 12:30 p. m., at the noon recess, when the young ladies got in the car. On arriving at the schoolhouse, defendant suggested that it was, somp time before school would begin, and proceeded down the Winnsboro Road, a graveled highway, for the purpose of giving the young ladies a ride. After going about one mile, the car struck some loose gravel and the accident happened. All four of the young ladies were injured, some very severely, and one only slightly.

They each, through their duly authorized representative, filed suit for damages, due to the injuries they had received, and for the expense of medical treatment, etc. The lower court awarded judgment for each of the plaintiffs. The cases were consolidated for the purpose of trial. Defendant has appealed from the judgments to this court.

There is very little dispute over the facts in the case. At the time of the accident and for more than a quarter of a mile before the accident, defendant was driving his car at a rate of speed of fifty-five miles per hour. The road was perfectly straight at the scene of the accident. The car suddenly swerved to the left of the road, struck some loose gravel, which caused it to turn over on its side. It slid on the running board for a distance of fifteen feet, then made four complete turnovers, stopping forty-five feet further down the road, with the four wheels in the air.

The testimony of the young ladies is that they were aware of the excessive speed and made no protest. One of them in the rumble seat says that she tapped on the back window with her fountain pen; her companion in the same seat says she neither saw nor heard any such protest, if such could be called a protest. None of the occupants of the front seat testified to any protest having been made, and one of the young ladies said no protest was made by her or any one else. The young ladies in the rumble seat were working a chemistry problem in preparation for a test.

It is conclusively shown that the young ladies knew the speed was excessive and that they failed to protest against it. It is likewise equally as well shown that the proximate cause of the accident was the excessive speed at which the car was traveling. Plaintiff’s allegation of negligence is the excessive speed of the car. The defense is that plaintiffs assumed the risk. There was no objection to the admissibility of testimony showing failure to protest, thereby showing contributory negligence on the part of plaintiff.

The case evolves itself into one purely and simply a question of law. Due to the seriousness of the case and our interpretation as a conflict between the decision of this court and that of the First Circuit Court of Appeal, we requested the Supreme Court to give us instructions and propounded to them the following questions:

X. Was plaintiffs’ failure to protest as to the speed of the car an acquiescence in defendant’s negligence such as to make them assume the risk?

2. Was plaintiffs’ failure to protest an acquiescence in defendant’s acts of negligence such as to make them guilty of contributory negligence and bar their right to recover?

The two questions have been answered by the Supreme Court (X35 So. —) in the affirmative, in the following language:

“The Court of Appeal states that defendant, 24 years old, invited four highschool girls, each about X6 years old, to ride in his automobile; two of them sat in the front seat with the driver and two on the rumble seat behind. He drove along a graveled road at 55 miles per hour; hit loose gravel and upset; injuring all four girls. The Court further says: ‘The plaintiffs were aware of the excessive speed, but made no protest. The excessive speed was the proximate cause of the accident.’
“The Court of Appeal then ask us two questions, which mean the same thing, to-wit: Whether the failure of the plaintiffs to protest against the excessive speed of the car was contributory negligence.
“The Court of Appeal has itself answered that question and answered it correctly in Hutchens v. Morgan, X2 La. App. 545, X25 So. 309, wherein it was held that a guest who was aware that the driver was proceeding at an excessive rate of speed was guilty of contributory negligence. And this Court therein denied a writ of error on March XOth, X930.
“That case must therefore prevail over Timberlake v. Cassidy, X La. App. 630, if there be any conflict between the two cases. But there is no conflict, because in the last case it was found that the guest who failed to give warning did not become aware of the danger until too late to avoid it. Hence that case is not applicable.
“Answer.
“Both questions are therefore answered in the affirmative.”

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of plaintiff rejected, at his cost in both courts.

McGREGOR, J., recused.


text:
    No. 3987
    Second Circuit
    SUMLIN ET AL. v. GALLMAN
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.) (February 1, 1932. Opinion and Decree of
    Supreme Court on Writs of Certiorari and Review setting aside judgment of Court of Appeal and reinstating judgment of District Court.)
    Geo. Wesley Smith, of Rayville, attorney for plaintiffs, appellees.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This case involves the same issues, facts, and law as in case No. 3986 on the docket of this court, styled Joe L. Pipes, Individually and as Tutor for the Minor, Bessie Pipes, v. Claud L. Gallman, 135 So. 690, 18 La. App. 434, decided this day by this court.

For the reasons assigned therein, it is ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of plaintiff be rejected, at his cost in both courts.

McGREGOR, J., recused.


text:
    No. 3988
    Second Circuit
    BYRD ET AL. v. GALLMAN
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (February 1, 1932. Opinion and Decree of Supreme Court on Writs of Certiorari and Review setting aside judgment of Court of Appeal and reinstating judgment of District Court.)
    Geo. Wesley Smith, of Rayville, attorney for plaintiffs,, appellees.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This case involves the same issues, facts, and law as in case No. 3896 on the docket of this court, styled Joe L. Pipes, Individually and as Tutor for the Minor, Bessie Pipes, v. Claud L. Gallman, 135 So. 690,' 18 La. App. 434, decided this day by this court.

For the reasons assigned therein, it is ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of plaintiff be rejected, at his cost in both courts.

McGREGOR, J., recused.


text:
    No. 3989
    Second Circuit
    JOE L. PIPES, Individually and as Tutor for the Minor, Jessie Pipes, v. GALLMAN
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (February 1, 1932. Opinion and Decree of Supreme Court on Writs of Certiorari and Review setting aside judgment of Court of Appeal and reinstating judgment of District Court.)
    Geo. Wesley Smith, of Rayville, attorney for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This case involves the same issues, facts, and law as in case No. 3986 on the docket of this court styled Joe L. Pipes, Individually and as Tutor for the Minor, Bessie Pipes, v. Claud L. Gallman, 135 So. 690, 18 La. App. 434, decided this day by this court.

For the reasons assigned therein, it is ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of plaintiff be rejected, at his cost in both courts.

McGREGOR, J., recused.


author: CULPEPPER, J.

text:
    No. 4131
    Second Circuit (Second Division)
    GASSIOTT v. SOUTHLAND PRODUCE CO., INC.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    Blanchard & Pyburn, of Shreveport, attorneys for plaintiff, appellee.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellant.

      Argued before DREW, TALIAFERRO, and CULPEPPER, JJ.
   CULPEPPER, J.

This is a suit for personal injuries and property damage arising out of a collision between plaintiff’s Buick automobile, wbicb he was driving at tbe time, and defendant’s half-ton Chevrolet truck, driven by a truck driver employee of defendant. Tbe collision occurred at tbe intersection of Market and Lake streets in the city of Shreveport, on January 13, 1931.

It is alleged by tbe plaintiff that tbe collision, and resultant injuries and damages, were due entirely to tbe fault and negligence of defendant’s said truck driver, Sam Henderson, and for wbicb plaintiff claims damages in tbe sum of $250 for pain and suffering sustained by him, $250 for mental anguish and nervousness, $50 for doctor’s bill incurred, and $413.75 as damages to bis automobile.

Defendant in answer denies negligence on tbe part of its truck driver, and, in the alternative, pleads concurrent contributory negligence on the part of plaintiff as a bar to recovery. Defendant in reconvention alleges and demands damages in tbe sum of $60.40 caused to its truck in tbe collision, alleging that tbe collision was caused solely by the negligence of the plaintiff in suit.

On trial of the case, there was judgment in favor of plaintiff in tbe suit in tbe amount and sums, respectively, of $413.75, as damages to plaintiff’s automobile, $50 for doctor’s bill incurred, $125 for pain and suffering, and $125 for mental anguish and suffering, sustained by plaintiff. Tbe demands in reconvention were rejected. Defendant, Southland Produce Company, Incorporated, alone has appealed.

Markel; street and Lake street intersect and cross each other at right angles. At said intersection, tbe city maintains and operates a traffic signal light device for the purpose of regulating traffic. This device is suspended over tbe center of tbe intersection and has three alternating colored signal lights for each approach to the intersection. The colors are green, wbicb permits traffic to enter and pass over tbe intersection; amber, wbicb indicates caution; and red, wbicb is a signal to stop and wait until the green light appears. Tbe city has an ordinance adopted and in force requiring tbe observance of these signals.

On the occasion of tbe collision, plaintiff was driving bis car along Market street going southward, and Sam Henderson was driving defendant’s truck along Lake street in a westerly direction, both approaching tbe intersection of tbe two streets. Plaintiff contends that when be entered tbe intersection, tbe green light was showing on Market street along wbicb be was traveling, which gave him the right of way over tbe intersection, and at wbicb time tbe red stop light was showing on tbe Lake street approach; that Henderson, disregarding said red light signal then showing on Lake street, and driving at a speed in excess of that permitted by city ordinance, and without warning to plaintiff, drove said truck into the street intersection immediately in front of plaintiff’s on-coming car; that on seeing tbe truck was passing tbe red light and being unable to stop bis car in time, be unavoidably ran into tbe truck. On tbe other band, it is tbe contention of defendant that its truck entered tbe intersection on the green light and not tbe red light, as contended by plaintiff; and that plaintiff entered on the red light and not tbe green. Defendant also contends that its truck entered the intersection before plaintiff did, and that, even if plaintiff entered on the green light (-which is denied), it was plaintiff’s duty to have, stopped at the intersection when he saw the truck had already entered, and, having the last clear chance to avoid an accident, it became plaintiff’s duty to stop.

The testimony in this case is conflicting, as is more or less the case involving all questions of fact. The trial judge resolved the testimony in plaintiff’s favor, which, of course, must have great weight with this court.

Plaintiff is positive and emphatic that he entered the intersection on the green light and that defendant’s truck entered it on Lake street while the red light was showing on that street. Four witnesses testifying for plaintiff were equally positive on this point. One of these witnesses, John Howatt, testified that he started walking across Lake street, while the red light was on, on his way to the Hunter Building then under construction on or near the corner of Lake and Market streets, and on the opposite side of Lake from plaintiff’s approaching car. He was. watching the light, knowing that he had started to cross on a red light, and when he had walked about ten feet, the light, which was on Market, changed to green, thus giving plaintiff a green light. Witness continued across. Lake, stepped up on the sidewalk or curb, and spoke to the superintendent of the construction work, at which time the collision occurred. Witness testified that he had walked leisurely across the street, and that the distance he walked from his position at the time the green light came on was, he judged to be, thirty or forty feet. This could have given plaintiff ample time to have entered the intersection on the same green light and to have proceeded until the collision occurred.

T. D. Grimes, a carpenter looking for work on the Hunter Building at the time, testified that he was standing on the south side of Lake street next to said building, and between thirty and thirty-five feet from point of collision, and was looking at the witness Howard as Howard came across the street, and was in plain view of the light. Grimes states that he noticed that Howard started across, on the red light, and when he had gone eight or ten feet, Grimes noticed that the light had changed to green and Howard proceeded on across and he was about four or five feet from the sidewalk on the opposite side when the crash came, and Howard jumped to get out of the way. Grimes testified that the red light was on on Lake street at that time. He was positive that it was on. He was equally positive that plaintiff entered the intersection on the green light.

E. M. Dinkens, another one of plaintiff's witnesses, testified that he was working as switchman for the I. C. Railroad at the time, at the point where the railroad crosses Market street, a short distance north of the intersection of Market and Lake streets; .that he saw plaintiff and whistled at him, wanting to talk to him as he crossed the railroad on his way toward the street intersection, but plaintiff, not hearing him, did not stop. Din-kens testifies that he continued to watch plaintiff as plaintiff proceeded on his way, being particularly attracted by the new car plaintiff was driving. Witness, is positive that plaintiff had the green light at the intersection, because he was (quoting), “I was looking right at it.” Asked which he was looking at, the car or the, light, witness answered: “Well, at the time, the time, the way it is up like that, I could see them both, all at the same time. The light is on a hill.” Asked which he was paying most attention to, witness answered: “When the accident happened the light was green, yes, sir.” He further states that just before the accident happened, “the lights turned caution.”

Rex Patterson, another one of plaintiff’s witnesses, testified that he was about two hundred yards from the point of the accident when it happened, and was traveling along Lake street approaching the intersection and saw the light on Lake street. He is positive that the light on that street was red at the time of the accident because (quoting):

“I saw a light. I know that the light was on red against me because I was. driving slow waiting for the light to change before I speeded up my car to go across.”

As against the testimony of plaintiff and his four witnesses, we have the testimony of Sam Henderson, who was. driving defendant’s truck, and three other witnesses. Henderson testified that he was on his way from defendant’s place of business on' Commerce street to Joseph Peducia’s, going by way of Crockett to Spring and over Lake street; that when he got to Lake, the red light was on and he stopped. He later apparently corrects himself and says he stopped at Spring street instead of Lake because the light is red at Spring and Lake at the same time. He says that when the light turned to green on Spring, where he was stopped, he turned to his right and went down to Lake and continued to its intersection with Market, at which place he looked up and saw that the light was green on Lake and he proceeded on across. Asked if he saw plaintiff’s car, he says (quoting):

“Yes, sir, when I seen it I saw a little something coming real close to me. I didn’t know what it was. I didn’t pay attention to the car. I knowed I had the green light.”

On cross-examination, Henderson again repeats that he was not paying any attention to plaintiff’s car because he did not see it, but insists, that he saw he had the green light.

Woodrow Tew, testifying for defendant, states that he was riding a bicycle along Market street going south toward the intersection when the collision occurred, and was just across the railroad crossing. He testified that he was looking right at them when the car and truck collided. He says plaintiff had just passed him and as plaintiff went on up the grade, the light was red in front of him and ran into the intersection on the red light. He was positive that the red light was on. He also says plaintiff was going at the rate of thirty-five or forty miles per hour, he guessed. He says the reason he watched plaintiff was because plaintiff was going so fast across the railroad track and wondered if he was going to “run the red light.” He did not know how long the light had been red, but says that from where the railroad crosses Market, where plaintiff passed him, to the intersection, was about a block, a long block.

Lewis Gilmer, another witness for plaintiff, testified that he was standing on the corner of Lake and Market streets, near the Hunter Building, talking to the superintendent of the work, when he heard the crash, and that he looked and saw the truck rolling towards him and the superintendent; that after the crash and after he had stepped back, he noticed the light and saw it as it changed from red to green on Market street. On cross-examination, this witness testified that it was when he started around the truck that he looked up at the light. Asked if he could state-how long it was after the impact. that he walked around the truck and then looked at the light, witness said he could not say how many seconds “because in the excitement that way” he. could not say.

Willie Daniels, defendant’s fourth and last witness, testified that he was working on the Hunter Building, standing up on top of a little shed at the corner of the sidewalk, at the time of the accident, and that he saw the truck as it came down the hill toward the intersection, and that the truck had the green light. Asked how long the green light had been on, he did not know, neither could he tell how far the truck was from the intersection when he noticed the light; but he states the green light continued on until the truck turned over, and the light changed right after that. This witness, so he says, was standing up on top of a shed right at the corner on the front, which must have been at or near the southwest corner of the intersection, and nothing but a light post to obstruct his view; yet he said he did not see plaintiff’s car come into the intersection or make a turn.

Counsel for defendant contends that while, numerically, plaintiff had the advantage in witnesses, yet in quality the evidence offered by defendant was superior to that of plaintiff. After a careful analysis of the testimony of all the witnesses, both for plaintiff and defendant, we cannot say we agree with the able counsel in this particular. It occurs to us that there are as many, if not more, inconsistencies in the testimony of defendant’s witnesses than in plaintiff’s, taking all of their testimony as a whole.

Counsel also point out that plaintiff entered the intersection after the truck had entered, that plaintiff’s car ran into the truck, and that the collision took place after the truck had passed the center oí Market street and was leaving the intersection, all of which, so counsel contend, go to prove that plaintiff was at fault even if he did not enter on the green light. Plaintiff’s explanation of just how this happened, we think, absolves him from blame. He testified that -when he saw the truck was going to cross, he started turning down Lake street with the truck in order to keep from hitting it; that the driver of the truck made no effort to slow down or turn; and that as he (plaintiff) tried to turn down the street in an effort to miss the truck, his left front wheel caught the wheel of -the truck. If this be true, and it was not disputed, plaintiff was evidently not at fault. He had the right of way as he entered the intersection, and as soon as he saw defendant’s truck coming on across, he began to maneuver to avoid a collision, but was unable to do so. Under such circumstances, the doctrine of the last clear chance, we think, does not apply.

We have discussed the testimony at length in order to satisfy ourselves as to whether the lower court erred in its conclusions as to the facts. We cannot say that it did, and we therefore concur with the court in its findings.

It appears clear that the amounts awarded as damages have been fully proven, and have not been seriously disputed.

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


text:
    No. 4175
    Second Circuit (Second Division)
    WALLACE v. PELICAN INDUSTRIAL LIFE INS. CO.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    Chandler & Chandler, of Shreveport, attorneys for plaintiff, appellee.
    Charles M. Roberson, of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff instituted this suit to recover the sum of $1,200, alleged to be due him by defendant for salary as medical examiner for the defendant company for the years 1923 to 1930, inclusive. He alleged that he was employed by defendant company through its board of directors on January 1, 1923, and each year thereafter, including the year 1930, at a salary of $150 per year, and that no part of said salary has been paid. He prayed for judgment accordingly, with legal interest on the sum of $150 from December 31, 1923, and on the sum of $150 a year thereafter until paid.

Defendant filed a prayer for oyer of the contract sued upon, which was answered by an amended petition setting out that the only written evidence of the contract was the minutes of the meeting of the board of directors of the defendant company for each of said years, 1923 to 1930, inclusive, and that said minutes were in the possession of the defendant company.

The petition was filed May 4, 1931; prayer for oyer filed May 15, 1931; and the answer to the iprayer for oyer by a supplemental petition filed May 29, 1931. On June 10, 1931, preliminary default was entered, and o.n June 13, 1931, the preliminary default was confirmed and judgment read and signed. There was no further appearance by defendant after filing the prayer for oyer until June 16, 1931, three days after the default was confirmed and judgment rendered, read and signed, at which time defendant filed an answer denying the demands of plaintiff. Four days later, on June 20, 1931, defendant prayed for and was granted orders of appeal to this court.

Counsel for appellant did not argue the case in this court and in his brief does not attempt to explain why the answer was not filed until three days after judgment was rendered by default. There is no testimony in the record, neither is there a statement of facts and it is not shown that any attempt was made to have a statement of facts placed in the record. The judgment of the lower court reads in part as follows:

“In this case by reason of a default having been entered and not set aside, but confirmed on due and legal proof in Open Court, and the law and the evidence being in favor thereof * *

We therefore presume that sufficient proof of plaintiff’s demand was made in the lower court, and, without any written testimony or statement of fact, there is nothing for this court to review.

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


text:
    No. 4160
    Second Circuit (Second Division)
    BAYER v. WHITLEY
    (January 14, 1932. Opinion and Decree.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    J. Fair Hardin and Ben E. Coleman, of Shreveport, attorneys for defendant, appellant.
   CULPEPPER, J.

Plaintiff brought this action to recover damages sustained to his automobile in the sum of $214, resulting from a collision with defendant’s automobile at the intersection of Rook street with Centenary boulevard, in the city of Shreveport, which collision and resultant damages plaintiff alleges was due solely to the negligence of defendant’s minor son who was driving her said car at the time, and for which plaintiff alleges defendant is liable.

Defendant answered admitting her son was driving her car at the time, but denied any negligence qn his part, and avers that plaintiff was wholly at fault, and she reconvenes for recovery of damages to her car caused by the accident, which she alleges amounted to $92.65. Defendant pleads in the alternative that should the court find that her son was negligent, plaintiff’s contributory negligence bars his recovery.

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

The collision in question involves the making of a left-hand turn by plaintiff across the line of traffic of one of the right of way thoroughfares of the city and in front of defendant’s automobile, which was approaching facing plaintiff.

On the occasion of the accident, plaintiff was traveling south on Centenary boulevard en route to his bakery establishment located about one block east of the boulevard on Rook street, which extended from the east and intersected said boulevard at right angles. Plaintiff testified that when he got “almost even with” the intersection “and started to put out” his left hand to make a left turn into Rook street, he heard the horn of another car approaching from the rear and he “pulled over to the right hand enough for him (the other car) to pass and went ahead,” then he kept going into Rook street. In explanation of how he made the turn, plaintiff testified (quoting):

“As I turned, I saw the other car I imagine about a hundred or hundred and twenty-five feet away and on turning, I put out my hand, made a slow turn on Rook Street, I was about to get in the street, the other car hit mine, about, I say eight feet from the front of my car.”

Later in his testimony he places defendant’s car at about 100 feet from him at the time he “proceeded to turn,” according to measurement. He also states that the car was coming at the rate of 45 or 50 miles per hour, and that he was going between 10 and 12 miles per hour when he turned into Rook. Says he made a short turn. Asked what prevented him from getting across into Rook street in time to avoid the accident if he was making 10 to 12 miles per hour, and the defendant’s car at the time was 125 feet away, plaintiff merely replied, “Car hit me is what kept me from going ahead.”

J. A. Crockett, sales manager for plaintiff, testified he was on Rook street about 50 feet distant from the scene at the time, coming toward the intersection, and saw the collision; that defendant’s car was coming at a speed of about 40 or 45 miles per hour when it hit plaintiff’s car; that defendant’s car was 125 feet or more away when plaintiff started turning into Rook street, as near as he could estimate the distance.

S. M. Edgar, an employee of plaintiff at the bakery, testified that he had just driven up in his car from the bakery and had stopped on Rook street about 20 feet from the intersection to wait for plaintiff to make the turn so he could pass out into the boulevard, and that he saw the accident. He states there was another car coming up pretty close behind plaintiff, “and when he (plaintiff) drove up and stopped, with his hand out to turn, then this other car blew its horn and Mr. Bayer pulled to the side until this car got by — and Mr. Bayer then, when the car passed, turned into Rook Street,” holding his hand out; that plaintiff then pulled his car into the curb on the boulevard to his right for the other car to pass, then made the turn into Rook, street. Witness states that plaintiff made “just an ordinary turn” and “was moving at a slow speed.” In another statement he places the speed at “possibly ten or fifteen miles an hour.” Asked where defendant’s car was when plaintiff “pulled into Rook or turned,” witness answered, “Some hundred feet I guess from Rook.” Asked how fast it was going, he replied, “I figure forty or forty-five miles,” and “when he got or was some ten feet of Mir. Bayer’s car then he tried to slow up.”

W. A. Whitley, defendant’s son, who was driving her car, testifying for defendant, states that when he first saw plaintiff’s car, plaintiff “was almost to his (plaintiff’s) right-hand curb letting this other car pass,” plaintiff’s car being at the time about “ten feet from Rook Street.” Asked to state just what happened, witness answered as follows:

“Well, I was about twenty-five feet when I — I think this car in front of me was about thirty or forty feet, Mr. Bayer cut to his left to go into Rook Street, after the car coming toward me had passed, and I just went around the end of this car, the car preceding me, and I thought he waited for that car to pass, thought would wait for me too, I went over toward the right as- far as I could when saw him drive up and block the street — I attempted to cut to my left and the right fender of my car * * * was at an angle when it hit Mr. Bayer’s car.”

This witness is positive that there was another car just ahead of him going in the same direction. He says he was 30 or 40 feet behind it when it reached the intersection and was permitted by plaintiff to pass before plaintiff turned in. Jack Watts, one of the young men in the car with Whitley, testified also at first that there was another car 30 or 40 feet ahead of the Whitley car leading it. On cross-examination, however, he admitted that there was a car following behind plaintiff’s car about which plaintiff’s witnesses had testified, and that it was the car he had in mind. Yet, when asked later by plaintiff’s counsel to state what Whitley did, this witness answered:

“He swerved to the side and went over about ten feet I should say looked like Mr. Bayer was going to wait for us to pass, the car in front he let it pass and Mr. Whitley went on, Mr. Bayer went in front of us, and Mr. Whitley tried to swerve and go round to the back but was not hardly room to pass there and Mr. Bayer’s car was moving two or three miles an hour, therefore he hit him.”

A. W. Roos, who was also riding in the Whitley car, on the front seat, testified that he did not remember seeing any other car leading the Whitley car. His testimony regarding the car which passed plaintiff going south was substantially as related by Whitley. He places the distance the Whitley car was from the intersection when plaintiff began slowing down to make the turn into Rook at 80 to 90 feet and was going at about 30 miles per hour. He also says plaintiff’s car was moving very slowly, just barely moving as he turned into Rook.

It is in evidence that young Whitley admitted to plaintiff right after the accident that he was going too fast and had misjudged the relative speed of the two cars.

It is admitted that Centenary boulevard is a right of way street, and that the speed limit thereon for motor vehicles is 23 miles per hour. The speed of defendant’s car was obviously in excess of the lawful rate. Whitley saw plaintiff holding out his hand and slowing down, knew it was at the intersection of Rook street, and knew, or should have known, that plaintiff was likely intending to turn into that street; yet he made no. effort to slacken his speed or bring his ear under control until within about 10 feet of plaintiff and was then too late to avoid a collision. The fact that he saw another car (passing plaintiff just ahead of him, or one coming close up • behind plaintiff and passing plaintiff, either or both, he certainly should have known that it only increased the danger of a collision if he continued advancing. If he thought plaintiff intended to stop long enough to let him pass before turning in, such a thought, under the circumstances, was fraught with too much uncertainty as to warrant him in proceeding at the rate he was going, especially so, if he was as close to plaintiff as he says he was. We think he was guilty of negligence.

We are unable, however, to agree with the learned trial judge in his conclusion that plaintiff was not at fault. Defendant had the right of way to begin with. Plaintiff was making a left turn across the line of traffic, on a much traveled right of way city thoroughfare, which called for unusual care and altertness on his part, greater than that called for by defendant. He should have been sure of his ability to clear the path of defendant’s rapidly approaching car instead of merely holding out his hand and moving leisurely across and taldng chances on negotiating the turn before defendant’s car reached him or slowing down so he could cross.

If defendant’s car was as far as 100 feet distant when plaintiff turned, and plaintiff was going 10 to 15 miles per hour and defendant at 45 to 50, it was indeed a hazardous move when he turned deliberately in front of it at such a slow speed. The bulk of plaintiff’s car was yet in the street at the time it was struck. A reasonable view is that the defendant’s car, as Whitley and his witness state, was much nearer than plaintiff claims it was. Whitley places it at 80 to 90 feet and his witness Jack Watts testified it was within 30 or 40 feet to Rook street, then plus the width of Rook, making it around 80 in all, at the time plaintiff started to make the turn. Plaintiff must have looked ahead when he first held out his hand to make the turn. If he did, he doubtless saw defendant’s car, as he states he saw no other car in front of it. Notwithstanding plaintiff says he saw defendant’s car 100 to 125 feet away as he turned, it would seem the more probable that he saw the car that distance when he first held out his hand. Then during the time that intervened while he was pulling in to the curb and letting the car at his rear pass him, defendant’s car covered part of the distance and was closer up at the moment he started to turn. Be that as it may, plaintiff evidently made a grave error in judging distances and/or the speed of defendant’s car as compared with that of his own. A man of his age and doubtless driving experience should heve known better than to deliberately drive in front of a car and let it strike him before he had gotten his car half clear of the street. It seems that the only precaution he took was to hold out his hand. He apparently did not continue to watch the car, nor did he endeavor to speed up to get out of the way. Yet the car ran right upon him while the bulk of his car was still in the street, 'notwithstanding the driver of defendant’s car threw on the brakes at 10 feet away, which, doubtless retarded the speed to some extent.

In the recent case of Payne v. Prestridge, reported in 16 La. App. 479, 133 So. 512, 513, this court held through Judge McGregor as the organ of the court, that—

“It must be admitted that the most dangerous movement on public streets or highways is the left hand turn. Particularly is this true when the street on which this turn is attempted is a right of way street.”

The court, speaking further regarding a driver of a motor vehicle holding out his hand as a signal, said:

“Pie must not be content with holding out his hand and suppose that all see it. He must look both ways and be sure he is safe before he undertakes to go ahead.”

In the case of Lewis v. Gulf Refining Co. of La., 7 La. App. 499, this court, through Judge Odom as its organ, uses the following language in discussing the left-hand turn by drivers of motor vehicles:

“Under all the rules and practices, aside from any statutory regulations, the driver of a motor vehicle on a much traveled street * * * who desires to make a left turn across the street, must be particularly careful and on the alert for cars meeting or overtaking his, and must not make such turn until he is sure the way is open. It is a particularly dangerous and hazardous move to make, and he must use the greatest precaution.”

We think it manifest from the evidence that plaintiff failed to use the particular care and extraordinary amount of precaution that was necessarily required of him to use under the circumstances as shown in this case, and as a result of which, his negligence in not doing so contributed in a large measure to the accident.

While he was slowed down or stopped and his car was pulled out near the curb to let the car behind him pass, he would have been delayed but a few moments longer in letting defendant’s car pass. The driver of defendant’s car testified he thought that was what plaintiff was going to do. It is what he should have done, and is what anyone using ordinary care and prudence would have done under the circumstances.

The trial judge did not hand down a written opinion and we do not know his reasons for exonerating plaintiff. Counsel for defendant stated in oral argument and in brief that while he did not hear the oral reasons given by the judge he had been informed that the judge gave as his reasons that the defendant’s car had the last clear chance to avoid the accident and for that reason defendant alone should be held liable. If such be true, we agree with the learned counsel in his able and exhaustive brief that the doctrine of the last clear chance does not apply to this case for the reason that plaintiff’s negligence was a continuing one, extending right up to the moment of the accident, and was concurrent with that of defendant. He made no apparent effort to speed up his car or to blow his horn or to do anything whatever when he saw or should have seen that danger was imminent. It is not shown that he kept his eye on the approaching car, but apparently proceeded across the street leisurely as though the driver had seen his outstretched hand and would stop or slow down.

For the reasons assigned the judgment appealed from is annulled and set aside, and there is now judgment rejecting the demands of plaintiff, also rejecting defendant’s reconventional demand, plaintiff to pay costs of both courts.


text:
    No. 4183
    Second Circuit
    PIERCE v. LEONARD TRUCK LINES
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellant.
    Ben E. Coleman, of Shreveport, attorney for defendant, appellee.
   DREW, J.

Plaintiff sued for $10,325, with legal interest from judicial demand until paid, alleging that on August 5, 1929, he was traveling on horseback in a westerly direction between the villages of Jamestown and Bienville, on a public highway. That he was on the extreme right-hand side of the road, That defendant, through its agents, officers, and employees, was operating a truck on said highway, going in an easterly direction. That the truck was traveling at an excessive rate of speed in a reckless manner, in that it was on the left-hand side of the road, and that while being operated in a manner violative of the law, it ran into petitioner’s horse, against said horse and petitioner, killing the horse, damaging the saddle, and injuring, petitioner permanently. He itemized the damage claimed as to doctor’s bills, sanitarium bills, value of the horse, damage to the saddle, pain and suffering, and permanent injuries, and prayed for judgment accordingly.

Defendant in answer admits its corporate capacity, the date and place of the accident, and denies, all other allegations of plaintiff’s petition. Further answering, defendant alleged: That the truck was driven at a lawful rate of speed on the proper side of the road in a careful and prudent manner; that the driver of .the truck saw plaintiff and his horse several hundred feet before the accident; that the horse was traveling on the extreme right-hand side of the road; and that when within fifteen or .twenty feet of the place of the accident the horse shied at some object and swerved and jumped out into the middle of the • road and upon the radiator, hood,. and front end of the truck. That the brakes, on the truck were immediately thrown on, and the truck veered to the left-hand side in an effort to avoid the accident, but that it was impossible to do so. It denied that the accident occurred through any fault of its employee, but it resulted solely .through the carelessness and negligence of plaintiff in permitting his horse to wheel around and run and jump in front of the truck, and by the failure of plaintiff to give any signal for your defendant and its employee to stop the truck or slow down its speed. In the alternative, defendant pleaded contributory negligence on the part- of plaintiff, as above set out.

The judgment of the lower court rejected the demands of- plaintiff, from which judgment he has appealed.

The case involves only questions of fact, and this court is reluctant to disturb the finding of the lower court in such cases, and will not do so unless the judgment is clearly erroneous. The physical facts, together with the testimony of plaintiff and .the truck driver, we think clearly show that the judgment of the lower court is erroneous. The following facts are clearly established by the evidence:

The accident occurred in the afternoon between the hours of one and three o’clock, on a public road in Bienville parish. Plaintiff was traveling west on horseback, and defendant’s .truck was going east. Plaintiff was on his extreme right side of the road, off the gravel. Defendant was up to within thirty or forty feet of plaintiff, traveling in the center of the road, which would place the left wheel of his truck on the left side of the road, and from this point the truck gradually veered to its left until it struck the horse and plaintiff. After the accident, the truck was in the ditch on its. left-hand side, and plaintiff and his horse were under the truck. Defendant’s truck was a new Chevrolet with a trailer, 1% ton capacity, loaded with 5,000 pounds, and was approaching a hill, and, as stated by the driver, going as fast as possible with the load it had, in order to make the hill. The road at the scene of the accident is narrow. The only testimony as. to the width of the road is given by the truck driver, who swore it was wide enough for two cars to pass, but not wide enough for three cars to pass abreast. The road at this point therefore could not have been more than fifteen or sixteen feet wide. Plaintiff testified that, when he saw the on-coming truck, he stopped his horse on the extreme right shoulder of the road, expecting the truck to pass. The truck driver and his fourteen year old companion testified: That they were driving on their right side of the road, and when within ten feet or less of the scene of the accident the horse shied and jumped in front of the truck; that the truck was turned sharply to the left in an attempt to avoid the accident; that the horse and plaintiff were hit about the center of the road.

The physical facts refute the testimony of the truck driver and his companion. The tracks of the truck clearly show that it was not traveling on its right-hand side but in the center of the road, with its left wheels to the left of the road, and that it was not cut sharply to the left, but gradually turned to the left, beginning thirty or forty feet before it struck the horse. The truck driver and his companion testified that they were traveling from twenty to thirty miles per hour. Plaintiff and one other witness, who had been passed by the truck about 150 yards back, testified that it was traveling very fast; one of them fixing the speed at fifty miles per hour. The truck driver admitted after the accident that he was getting up all the speed possible in order to make a hill he was approaching.

The lower court found that the truck was traveling twenty-five or thirty miles per hour. It was certainly not traveling any less than that, and we are convinced that it was making even greater speed.

Just at the moment of the accident, the horse attempted to jump a ditch on its right, but was reined in by plaintiff. The horse undoubtedly saw that it was going to be struck by the on-coming truck and attempted to jump out of the way. The plaintiff, in reining the horse in, no doubt turned him, but certainly he was never on the truck’s right-hand side of the road, for when he was struck by the truck, according to defendant’s evidence, it was about the middle of the road, and, had the truck been on its proper side of the road, the accident would never have happened. The truck driver testified that the horse was on the extreme right side of the road and the truck on its extreme right, and that within ten feet or less of passing the horse, it shied and jumped across the road in front of the truck and was struck by the right part of the front bumper of the truck. This feat on the part of the horse is not only improbable, but impossible. Assuming the road to have been only sixteen feet wide, it would have been necessary for the horse to travel at least ten feet, if not more, while the truck was traveling less than ten feet. This could not he, even though we accept the speed of the truck as fixed by the driver at twenty-five miles per hour.

The facts clearly show that the truck was in the center or to the left of the center of the road; therefore, due to the narrowness of the road, dangerously close to the horse, at least, close enough to cause the horse to become frightened and fear for its safety. The horse may have shied and turned around; if so, it was due to the negligence of the driver of the truck in traveling on the wrong side or center of the road, when he should have been on the right. It may not be negligence •to travel in the .center of the road when no one is passing, but when approaching one who has a right on the road, it is the duty of both to keep to the right side of the road. If the truck had been on its right side of the road, where it is, required by law to travel, the accident would never have happened, and the negligence of the truck driver in driving on the left side of the road, after seeing the plaintiff and the horse (which he testified he saw for more than 100 yards before the accident), was the proximate cause of the accident.

Furthermore, if the truck driver had turned to his right, instead of his left, just before the accident, it would never have happened. The rule as to the acts of one in an emergency does not apply when the emergency is, created by the negligence- of the one urging the rule. Plaintiff did all that was within his power to avoid the accident. He pulled his horse to the right of the road as far as was possible, due to a ditch on that side, and there was plenty of room for defendant’s truck to pass. Defendant has given no reasonable, or sound, legal excuse for the truck running into plaintiff.

The most reasonable conclusion at which to arrive, from all the physical facts in the case) is that the driver was not paying any attention to where he was going and was not keeping the proper lookout. When he discovered the horse in front of him, it was too late to avoid the accident. Defendant under the testimony, is clearly liable.

The horse was killed by the accident and his- value was shown to be $100; the saddle was damaged to the extent of $25; the medical and hospital bills of plaintiff are shown to have been $200; making a total of $325. For these items, plaintiff is entitled to judgment. Both bones of plaintiff’s right leg were broken near the ankle, and the hones badly shattered. He spent eighteen days in the sanitarium, and afterwards was under the care of a physician at Ringgold, La. He could not walk without a crutch for a year, and, at the time of trial, was still forced to use a stick. Dr. Fletcher, who has treated him since the accident, testified that he will never be able to do a day’s work on the farm, as he did before the injury, and that his. injury, due to the shattering of the bones, is permanent. It is shown that he suffered intense pain and was suffering all the time, even up to the day of the trial. He also received lacerations and bruises on his head, brush burns on his back, and lacerations of the forearm. Plaintiff is a well-to-do negro farmer; owns his place of 200 acres. It is not shown •that he did a great deal of work himself on the farm; only filled in when one of his boys was absent. He has made almost the same amount of crop since the accident that he did before, although he was not able to do any work at all and had to depend upon his boys. He is sixty years of age, and it is conclusively shown that he will never be able to do any work to amount to anything on the farm again.

In fixing the amount of an award in a case of this kind, it is more or less difficult, and every case is different from the others. There is no true precedent to follow. However, in this case for plaintiff’s pain, suffering and disability, we feel that an award of $3,000 will do full justice to all.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that there now be judgment in favor of the plaintiff and against the defendant in the full sum of $3,325 with legal interest from judicial demand until paid, and for all cost of court.


text:
    No. 4232
    Second Circuit (Second Division)
    T. DEFATTA & SONS v. SOUTHWESTERN GAS & ELECTRIC CO.
    (January 14, 1932. Opinion and Decree.)
    Irion & Switzer, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson and Edward S. Klein, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued to recover the amount of damages caused its truck by a collision between its truck and the truck of defendant at the intersection of Pierre avenue and Murphy street in the city of Shreveport. It alleged the defendant was negligent in the following respects: That its truck was being driven at a reckless, unlawful, and excessive rate of speed, and that the driver was not keeping a proper lookout, and did not have proper control over the truck; that the driver of defendant’s truck negligently swerved into Murphy street at a fast rate of speed on the wrong side of the street.

Defendant in answer denied the allegations of negligence, and alleged that its. truck was proceeding north on Pierre avenue, and plaintiff’s truck was coming south on the same street. That defendant’s truck had entered the intersection of Pierre avenue and Murphy, and had nearly crossed the intersection when plaintiff’s truck suddenly swerved to the left in the northern part of said intersection, without any warning having been given by plaintiff’s driver, in violation of sections 44 and 47 of the General Traffic Ordinance of the city of Shreveport, thereby causing the collision. In the alternative, it pleads contributory negligence on the part of plaintiff as a bar to recovery, and the doctrine of the last clear chance.

The lower court rendered judgment for plaintiff, and defendant prosecutes this .appeal.

The charge of reckless, unlawful, and excessive rate of speed by defendant’s truck fails for want of proof. The testimony is that defendant’s truck was traveling at a moderate rate of speed on its right side of the street, and that it slowed down slight-' ly before entering tbe intersection, and. then started up again. There is not any testimony to snow that defendant’s truck driver was not keeping a proper lookout, and, to the contrary, the testimony shows that he saw plaintiff’s truck for about half a block before he reached the intersection and continued to watch it until the accident occurred.

The remaining allegations of negligence are that defendant’s truck driver negligently swerved his truck into Murphy street on the wrong side ot the street and struck plaintiff’s truck, that was on its right side of Murphy street, and that its driver did not have proper control of the truck. Plaintiff alleged that its truck was struck on the left side, when in fact it was struck on the right side. There is a conflict in the testimony as to where the trucks were when the collision occurred. Plaintiff contends it was in Murphy street, and defendant contends that it was in the northeast corner of the intersection of Pierre avenue and Murphy street. The collision occurred either in the extreme northeast corner of the intersection or a few feet east of that point on Murphy street. Plaintiff’s truck was traveling south on Pierre avenue, and defendant’s truck was traveling north on the same street. Defendant’s truck was on the extreme right-hand side of the street, and plaintiff’s ■truck was. on its left-hand side of the street. Defendant’s truck had nearly crossed the intersection at the time of the accident, and plaintiff had barely entered the intersection. There can be no dispute over this fact, as plaintiff’s truck was on its left-hand side of the street, and, as soon as it entered the intersection, turned to the left, headed east on Murphy street, was still on its left-hand side. In making the left-hand turn on entering the intersection of Pierre avenue and Murphy, plaintiff’s truck did not proceed to the center of the street, as required by ordinance of the city of Shreveport, but deliberately cut the corner. All of defendant’s witnesses testified that plaintiff’s truck was still partly in the intersection when struck by defendant’s truck, and their testimony is corroborated by plaintiff’s truck driver, who said the back wheels of the truck were about even with the sidewalk, and it is a fact that the truck was struck on the rear wheel and rear fender.

After the accident, plaintiff’s truck was up on the curb on the north side of Murphy street, the front end within a few feet of a telephone pole which was on the north side of Murphy street, a distance of sixteen feet east of the intersection. The momentum of the truck would necessarily carry it a few feet after having been struck, and, as the length of plaintiff’s, truck is not shown, the fact that it was almost entirely in Murphy street after the accident does not overcome the testimony that the back part of the truck was in the intersection at the time of the accident. There is no testimony showing anything wrong with the steering gear of defendant’s. truck or that the driver did not have the truck under control. He was not driving over fifteen to twenty miles per hour, and had no intention of turning east on Murph’y street, and the only way to account for defendant’s truck dipping into Murphy street — if it did — would be due to the excitement caused by the sudden turning to the left of plaintiff’s truck, directly in the path of defendant’s truck, without any signal or warning of an intention to make a left turn. The evidence preponderates in favor of the fact that plaintiff’s driver did not signal his intention \o make a left turn. The testimony is clear that plaintiff’s truck driver was negligent in driving on his left side of the street and on cutting the corner in making a left turn and not giving a signal of his intention to make a left turn. The fact that the accident occurred in the northeast corner of the intersection is sufficient to show that, if plaintiff’s truck driver had proceeded to the center of the street before making a left turn, and then headed down his right side of Murphy street, as required by city ordinance, the accident would never have happened, and the least that can be said is that his negligence contributed to the accident sufficiently to bar recovery — if it was not the sole proximate cause of the accident.

The driver of defendant’s truck could not be expected to anticipate that the truck of plaintiff’s would be cut to the left and cut the corner, thereby crossing directly in his path, and, when it did happen, he was no longer held to the same degree of responsibility that he would have been, if he had had time to deliberate.

The judgment of the lower court is manifestly erroneous. A great part of the testimony was admitted over the objection of defendant that it was at variance with the allegations of the petition, but, since our findings on the merits are in favor, of defendant, it is, unnecessary to pass on the question of the admissibility of testimony.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of plaintiff be rejected, at its cost.


author: McGREGOR, J.

text:
    No. 4192
    Second Circuit
    F. STRAUSS & SONS, INC., v. ECONOMY CASH GROCERY ET AL.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for [plaintiff, appellee.
    H. W. Ayres, of Jonesboro, attorney for defendants, appellants.
   McGREGOR, J.

This is an ordinary suit on open account. Plaintiff is a wholesale dealer in fruit and produce, and defendant, as its name implies, is a retail dealer in groceries. To its petition the plaintiff attaches a statement of the account totaling the sum of $503.13, which tallies with the amount sued for in the body of the petition. The account was made out in due form on one of plaintiff’s regular bill-heads. It consists of a list of charges showing the dates and amounts of each separate day’s sales. The specific items making up the several separate amounts are not shown.

The petition is sworn to by plaintiff’s attorney and the statement of the account is sworn to by the secretary and treasurer of the plaintiff. No appearance was made in court by the defendant in any manner until after, judgment was signed. The minutes of the court show that default was entered against all defendants on June 9, 1931, and that default was duly confirmed in open court on June 12, 1931, and that judgment was rendered, read and signed in open court on the same date. The judgment itself states that it was rendered after the plaintiff had produced due proof and that the law and the evidence were in favor thereof.

On June 13, 1931, the defendant filed a motion for a new trial, which was taken up and tried and submitted on June 24th and overruled' on June 25, 1931. On the trial of this motion no evidence was offered except the record in the case as made up to that date. From the judgment as rendered and signed, the defendant has appealed.

Counsel for defendant argues that sufficient evidence has not been produced on which to base a judgment and that, therefore, it should he reversed and the- case either dismissed or remanded. Fault is found with the account attached to the petition on the ground that it is not sufficiently itemized. If defendant was not satisfied with the account as rendered it was in its power to ask for an itemized statement in accordance with .its wishes before default was entered and confirmed. Otherwise the account as rendered appears sufficient to us as it did to the judge of the lower court. In permitting judgment by default to be taken against it the defendant is presumed by its silence to have confessed the justice of the plaintiff’s demand. (C. P. 360.) The account as rendered and produced on the trial of the case, in the absence of any objection, fully apprised the defendant and the court of what plaintiff was demanding.

The judgment is correct and, therefore, affirmed, with all costs in both courts.


text:
    No. 4207
    Second Circuit
    AMERICAN EMPLOYERS’ INS. CO. v. HYMAN
    (January 14, 1932. Opinion and Decree.)

      McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellee.
   McGREGOR, J.

This is a suit for $1,-053.75 alleged to be due by the defendant as a balance on account for premiums on two contracts of insurance — one for employers’ liability and the other for public liability. The contracts were written on account o.f paving construction work carried on by the defendant in the city of Fort Smith, Arkansas, during the years 1928 and 1929. Defendant lives in the city of Monroe, Louisiana, and has his business office there. The contracts of insurance were written in that city by Joseph Y. Ferrari & Company, duly accredited and authorized agents of the plaintiff, whose office is in the same city. In its petition the plaintiff alleges that the total amount of the premiums charged on the two contracts is the sum of $3,702.85, and that at various and sundry dates the defendant had made payments totaling the sum of $2,649.10, leaving the balance of $1,053.75.

Defendant answered and admitted the correctness of the charge of $3,702.85, but alleged' that he had paid on account the sum o.f $3,519.59, and that therefore, the balance due by him • to the plaintiff was only $183.26. He made a legal tender and deposit of this amount, together with $15 interest and $4.40 cost, and prayed that the plaintiff’s suit be dismissed at its cost.

OPINION

Plaintiff alleges and admits in its petition that in all its dealings with the defendant it was represented by its agent, Joseph V. Ferrari. The proof is conclusive that the earned premiums on the two contracts of insurance during the time that they were in force was the sum of $3,702.85. It is also admitted and proved that during that time plaintiff paid to Ferrari the sum of $3,519.59. Plaintiff contends and Ferrari testifies that of that amount only $2,649.10 was paid on account of the account due to the plaintiff for its insurance premiums. If any of the money paid by the defendant to Ferrari, plaintiff’s agent, was wrongfully retained or applied by him, the defendant is not responsible for it, but if any loss results therefrom it is plaintiff’s and not defendant’s. The testimony of Ferrari was taken by commission. In a statement attached to his testimony he accounts for the receipt and distribution of the sum of $3,519.59, the exact sum which the defendant alleges in his answer that 'he paid him for the plaintiff. In this statement Ferrari showed that he retained the sum of $770.04 for “commission (not bond premium) on paving bond to City of Ft. Smith, Arkansas, incurred 4-24-28.” When the defendant secured the paving contract he was required to furnish a bond to guarantee the faithful performance of the contract. This bond was written by the Union Indemnity Company on April 25, 1928. The “commission (not bond premium) on paving bond to City of Ft. Smith, Arkansas, incurred 4-2'4-28,” amounting to $770.04 evidently refers to this bond. In his testimony on this point Ferrari says:

“I did not write this bond. Defendant agreed to give us this bond and later stated that he had to take it from another company, but in consideration for other matters, agreed to and did pay me the bond commission amounting to $770.04.”

On August 11, 1928, defendant paid Ferrari the sum of $1,000 on account. Some time subsequent thereto Ferrari submitted to the defendant a statement on which this $1,000 was credited. On this statement there were two charges, viz.: Commission on paving bond, $770.04, and pre.miums on the two contracts of insurance, $1,121.26. Defendant testifies that this was the first information that he had concerning the claim of Ferrari for the $770.04, and that they had “a pretty hot dispute” about it as soon as he knew of the claim. He testified further that he did not promise this bond to Ferrari and could not have done so for the reason that he never met him until about ten days after it had been written. Mr. E. J. Deas, a silent partner of the defendant, also testified that the paving bond was never promised to Ferrari, and that, therefore, no commission could be due him on that account. In his testimony Ferrari says that defendant promised to pay this commission “in consideration for other matters.” What these “other matters” were he does not disclose. Deas says that he told him it was for “what he done for you in getting this city job,” and that he replied, “he never bought any job and was paying him no premiums.”

From the evidence it is clear that Ferrari had no authority or right to retain out of the money paid tq him by the defendant this disputed sum of $770.04. The question of the proper Imputations of payments does not arise. The amount was never due by the defendant, and at the time the first $1,000 was paid defendant was not even aware of the pretended claim. It is evident that defendant thought the $1,000 was close to the amount due, for as a matter of fact the amount of the premiums due on insurance at that time was $1,121.26.

Defendant’s books were audited on May 23, 1929, to ascertain the total amount due to plaintiff on account of the two contracts of insurance. This audit, of course, was based on defendant’s payroll. The gross amount due was found to be the sum of $3,702.85. Much is attempted to be made of the fact that defendant’s bookkeeper was present when this audit was made and signed the two sheets covering the same. The only thing certified to by defendant’s bookkeeper was the correctness of the payroll on which was based the estimate that the gross amount of earned premiums on the two contracts of insurance was $3,702.85.

In adition to the $3,702.85 which defendant admits to be correct, he admits that Ferrari wrote for him a bond with the United States Fidelity & Guaranty Company of Baltimore, in favor of Sebastian county, Arkansas, on account of a paving contract, and that the premium on the same was $196.97. He testified that he paid Ferrari this amount and in response to a question propounded to him on cross-examination he states that $3,519.59 is all that he had paid to Ferrari on any account. That being true, Ferrari was justified in applying $196.97 of the money paid to him to the payment of this premium.

A correct statement of the account between Ferrari and defendant is as follows:

Premium on employers’ liability insurance ____________________________________________$2,934.60

Premium on public liability insurance ...................................................... 768.25

Premium on U. S. F. & G bond____ 196.97

Total ________________________________________________$3,899.82

Less total amount paid by defendant _______________________________________________________ 3,519.59

Balance due ________________________________$ 380.23

$196.97 of the amount paid to Ferrari was properly credited by him to the payment of the premium on the bond furnished by the United States Fidelity & Guaranty 'Company. The $770.04 retained by Ferrari on account of bond commission was improperly retained. All the $3,519.59 paid by defendant to plaintiff’s agent except the $196.97 named above should have been applied to the payment of the insurance premium due to the plaintiff, and defendant is not responsible for Ferrari’s failure to do so. Therefore, the sum of $3,-702.85 due by defendant to plaintiff should be credited with $3,322.62, which leaves a balance of $380.23, for which plaintiff is entitled to judgment. The sum which was legally tendered to plaintiff being less than the amount found to be due, the tender did not have the effect of relieving the defendant of the costs in the case.

For the reasons assigned, the judgment appealed from is amended by increasing it to $380.23 with 5 per cent interest from February 18, 1929, and as amended it is affirmed, with all costs in both courts.


author: ELLIOTT, J.

text:
    No. 886
    First Circuit
    HUBBS v. COMMUNITY STORES OF LA., INC.
    (December 8, 1931. Opinion and Decree.)
    R. F. Walker, of Baton Rouge, attorney for plaintiff, appellant.
    Jess Johnson, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

Denis A. Hubbs claims of Community Stores of Louisiana, Incorporated, $187.27 for labor performed in fitting for its occupancy the store building leased by it from Dr. W. C. Ratliff and Dr. W. H. Ratliff in lot 2 of square 2 facing west on Bayou Sarah road in Suburb Prosperity, city of Baton Rouge.

He alleges that his work was building a latticed partition separating the rear from the balance of the store, for use as a meat market.

The work done, material used, cost of same, and amount due is said to be shown by an itemized account annexed to and made part of the petition. The account annexed was, however, not itemized except as to the time which he and the other carpenters worked and the amount earned by each. At the request of defendant the plaintiff submitted a further account showing each item of work done, but other items which went into the service to make up the total sum claimed were not itemized. The lower court ruled, however, that with the amended and supplemental account, the detail of the claim was sufficiently shown. And there seems to be no further complaint on that subject.

Defendant alleges in its original answer that payment has been made to the plaintiff for all work which he was employed by defendant to do.

That Messrs. W. C. and W. H. Ratliff, owners, of the building, are responsible for the cost of the partition on account of which claim is made by him against it.

In an amended and supplemental answer, defendant alleges that it paid the plaintiff $168.85, covering all work and materials and labor performed by plaintiff for defendant and that the amount was a full, fair, and reasonable consideration for same.

There was judgment rejecting plaintiff’s demand, and he has appealed.

The suit is not to recover on account of work done by the job, under the provisions of the Civil Code, art. 2756 et seq., but is for work done by the hour and for material used; plaintiff furnishing labor and material to do the work. The evidence is voluminous and so conflicting, and the facts as to the work done and material not paid for so enmeshed with other testimony, that, although it seems that plaintiff has not been paid for the material used in building and painting the partition and for labor employed in constructing and painting same, we find it impossible to come to a satisfactory conclusion that defendant owes the plaintiff on account of the work and material for which he claims, nor can we determine with reasonable certainty the amount to which the plaintiff is. entitled on said account.

The evidence indicates that there is a dispute between Dr. W. C. Ratliff and Dr. W. H. Ratliff, owners of the building, and Community Stores of Louisiana,. Inc., lessee, as to which of them should pay for the partition.

Mr. Hubbs admits, and Mr. Ryan, manager of Community Stores of Louisiana, Inc., during a temporary absence of Mr. Hause, testifies, that after plaintiff had finished the work he called on Mr. Ryan to assist him in getting Messrs. Ratliff to pay him the amount which he claims in the present suit.

Dr. W. C. Ratliff, witness for the plaintiff, testifies that Mr. Hubbs called on him about the matter, and that he informed him that he did not know anything about the meat market and lattice work, did not owe him anything, and that Mr. Hubbs gave him a release from all his debts and indebtedness and that he paid him in. full. The record contains such a receipt. It bears date June 30, 1928, and concludes with a statement:

“This is a receipt for their entire indebtedness and I hereby relinquish them from all other debts.”

Mr. Hause, manager for defendant and in charge of the work done to equip the building for its occupation, testifies that Dr. Ratliff (likely Dr. W. C. Ratliff) agreed to put in the latticed partition across the rear end of the store to form a meat market, and the evidence shows that Dr. Ratliff paid for the lumber used in constructing it without questioning his. liability for same.

Mr. Hause further testifies that he, in company with Mr. Ryan and Mr. Johnson, attorney, went to see Dr. Ratliff about paying the amount claimed by Mr. Hubbs, and that Dr. Ratliff told him that, “if the price had been forty or fifty dollars he would have gladly paid that amount, but that Mr. Hubbs was charging him entirely too much for it.”

Mr. Hause testifies, and Mr. Hubbs, admits, that defendant has paid him $168.85. Mr. Hause declares that this payment was in full for all the work defendant contracted with plaintiff to do and all that it is responsible for.

The building had been erected for the Drs. Ratliff, who employed plaintiff to do certain work in equipping it for the' use of the defendant.

Plaintiff testifies, that Dr. Ratliff and the other co-owner of the building have paid him all that they owed him.

The question in dispute is as to whether the plaintiff was employed by defendant or by Dr. Ratliff to erect the latticed partition and paint it, and some other small items of work.

Mr. Hausei is supported very strongly by Mr. Ryan, whose testimony was, taken by commission and is supported by other witnesses and corroborating circumstances.

The plaintiff is supported by a number of witnesses, his employees, and by the testimony of Dr. W. C. Ratliff.

The evidence seems to be pretty well balanced, and we are unable to say that plaintiff has established his demand against the defendant by a preponderance of the proof. But even if defendant’s liability therefor appeared, the amount to which plaintiff is entitled on account of erecting and painting the partition in question cannot be determined with reasonable certainty under the evidence adduced on the present trial. It is unfortunate that the situation does not enable us to fix on the amount due the plaintiff and at the same time name the debtor, but we cannot say that the lower court erred in rejecting plaintiff’s demand.

For the reasons stated the judgment herein appealed from, as well as the judgment of this court rejecting plaintiff’s demand, is to have effect as, a judgment of non-suit, and as thus amended the judgment appealed from is affirmed.

Plaintiff and appellant to pay the cost in both courts.


author: HIGGINS, J.

text:
    No. 13,740
    Orteans
    MADISON LBR. CO. v. ROSSI ET AL.
    (October 19, 1931. Opinion and Decree.)
    (November 3, 1931. Rehearing Refused.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Daniel Wendling, of New Orleans, attorney for Dr. Maurice Campagna, Mary and Ursula Campagna, defendants, appellants.
   HIGGINS, J.

This is a suit by the'Madison Lumber Company against the owners, of the property, their authorized agent or representative, and the contractor, in solido, to recover the sum of $481.84 for building material furnished and for recognition of its materialman’s lien and privilege.

The answers filed by the defendants are in substance general denials.

There was judgment as. prayed for, and all the defendants, except the contractor, have appealed. The contractor having failed to appeal, the judgment is final as to him.

The record shows that Mr. Rossi, a contractor, entered into a written agreement with Dr. Campagna for the construction of certain improvements on the property owned by the doctor’s two sisters. While Dr. Campagna signed the contract as owner, without disclosing his principal, it is. conceded by all parties that he acted as the authorized agent or representative of his sisters. The contract was not recorded, and there was no bond furnished securing its faithful performance. Plaintiff furnished the material to the contractor, and, when he failed to pay the bill, filed and recorded its lien in the mortgage office, but did not serve an itemized statement upon either Dr. Campagna or his sisters.

The defendants first contend that plaintiff has failed to prove that the material went into the construction of the building. Rossi — cross-examined as a defendant under the act of 1908 (Act No. 65 of 1908)— stated that the material, as shown by the itemized statement, which was. annexed to the petition and the dray receipts offered in evidence, was used in the construction of the improvements on the property in question. The representative of plaintiff testified that the prices for the material were reasonable, and that the. records of the company showed that the material was delivered to the contractor at the job. The only evidence offered by defendants to contradict the proof of plaintiff consisted of the testimony of Dr. Campagna, who stated that certain items did not go into the construction of the improvements, although he admitted that he had the statement covering the material checked by his accountant, who found it to be correct. Under these circumstances, we believe that the preponderance of the evidence is clearly in favor of plaintiff on this issue. Hortman-Salmen Lumber Co. v. Raymond et al., 13 La. App. 490, 127 So. 452.

The second contention is that the lien was. not recorded within sixty days from the date of last delivery — the prescriptive period provided by section 12 of Act 298 of 1926 — and therefore was too late to be legally effective. The weight of the testimony with regard to this point is again with the plaintiff for the same reasons which we assigned with reference to the first issue.

The third defense is. that a copy of the itemized statement was not served on either Dr. Campagna or his sisters, the owners of the property, as required by Act 298 of 1926. Since the evidence shows that the contract was not recorded, the case falls under section 12 of Act 298 of 1926, which specifically dispenses with such service. Jahncke Service, Inc., v. McQuire et al., 9 La. App. 698, 119 So. 765; Madison Lumber Co. v. McQuire, 14 La. App. 336, 124 So. 700; Lawrence v. Wright, 11 La. App. 703, 124 So. 697.

The fourth contention of defendants is that either section 11 or section 12 of Act 298 of 1926 applies, but that both sections, are not applicable; that the two sections are independent of each other; that, if the case falls under section 11, then Dr. Campagna alone is personally liable, and any right that he might have in the property subject to the lien of plaintiff, but, if section 12 is applicable, then only the sisters are personally liable and their property subject to the materialman’s lien and privilege.

Plaintiff contends that both sections 11 and 12 apply so as to make the doctor and also his sisters personally liable and the property and improvements subject to its lien.

In deciding this issue, it is necessary to consider sections 1, 11, and 12 of the act. The relevant portion of section 1 reads as follows:

“That every * * * furnisher of material. * * * who * * * furnishes material for the * * * improvement cf immovable property, with the consent of or at the request of the owner thereof, or his authorized agent, or representative, or of any person with whom the owner has contracted for such work, shall have a lien for the payment in principal and interest of such work or labor performed, or materials * * * furnished, and the cost of recording such liens, upon the land and improvements on which the work or labor has been done, or materials, * * * furnished, which lien and privilege, if evidenced as, herein provided, shall be superior to all other claims against the said land and improvements except taxes and local assessments for public improvements. * * * n

Section 11 reads as follows:

“Where any work as hereinabove set forth, is done or buildings or other improvements made, where the person for whom the work is done or with whom the contract is made, or by whom the work is done, is not the owner of the land upon which the work is located, then he shall be subject to all the obligations that are made incumbent on the owner by this act, and the liens and privileges created and established by this act shall operate upon whatever right said person having the work done or doing the work may have to the use of the land as lessee; and said lien and privilege shall operate against the lease such person holds, if there is one, or if said work is caused to be erected by a mineral lessee, then the privilege shall exist against the mineral lease and whatever rights the lessee may have therein, •thereon or thereto; provided, however, that the privileges hereby created shall not interfere with the lessor’s lien and privilege or his right to demand and recover occupancy of the leased premises in default of the payment of rent, or his right to sell the lease or right of occupancy under any judgment he may obtain against his lessee growing out of the lease; and in the case of such sale, the privileges herein created shall be restricted to the proceeds of sale, and shall not follow the property, the lease or the right of occupancy.”

The pertinent part of section 12 reads as follows:

“When the owner, or his authorized agent, undertakes the work of * * * improvement, * * * for the account of the said owner, * * * when a contract has been entered into but has not been recorded, * * * then any person furnishing service or material or performing any labor on said building or other work may record in the office of the Clerk of Court or Recorder of Mortgages in the parish in which said work is being done or has been done a copy of his estimate or an affidavit of his claim or any other writing evidencing same, which recordation, if done within sixty days after the date of the last delivery of all material upon said property * * * by said furnisher of material * * * shall create a lieni and privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work of improvement, as his interest may appear. * * * Any person furnishing service or material or performing any labor on said building or other work to or for a contractor or sub-contractor, when a contract, oral or written has been entered into but no contract has been timely recorded, shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim, as provided in this Section. * * * ”

Section 1 creates a lien and privilege in favor of the materialman on the land and improvements when the owner consents to, or requests or authorizes, the improvements.

In section 11 the Legislature contemplated a situation where the improvements were created on the owner’s property without his consent or authorization by some one having a right of occupancy of the property. It is to be noted that the lien of the materialman in such cases is confined to such right as the unauthorized party had in the property, but does not affect the property itself. Jackson Homestead Ass’n v. Zimmer, 16 La. App. 647, 134 So. 126. Apparently the Legislature considered it would be unreasonable and unfair to give a lien and privilege in favor of the materialman on the property of the owner when a tenant, without the owner’s. consent, authorization, or knowledge, placed improvements on the leased or rented property. Since the record shows that Dr. Campagna was not a lessee or in possession of the property under any right of occupancy, section 11 is inapplicable.

The provisions of section 12 clearly cover cases where the owner or his authorized agent undertakes the improvements. Now in the present case, while it is true that Dr. Campagna did not disclose his principal, it is conceded that he was acting as the authorized agent or representative of •the owners of the property.

A careful reading of the provisions of section 12 discloses that a materialman has a personal right of action against the owner for his claim and also a materialman’s, lien and privilege on the land and improvements securing his claim, but nowhere in that section can there be found any language which gives the materialman a personal right of action against the authorized agent. Nor does section 1 of the act provide such a right in favor of the materialman against the authorized agent.

It is not contended that Dr. Campagna purchased the material, for it was sold and delivered to the contractor; hence Dr. Campagna would not be liable under the general law.

We are therefore of the opinion that the judgment of the lower court is erroneous as to Dr. Campagna, the authorized agent or representative of the owners, but that it is correct in holding the owners personally liable with recognition of the materialman’s lien and privilege on the land and improvements.

For the reasons assigned, the judgment appealed from is amended by dismissing the suit as against Dr. Maurice Campagna, one of the defendants, but in all other respects it is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,867
    Orleans
    UNION HOSIERY CORP. v. RABINOWITZ CO.
    (January 11, 1932. Opinion and Decree.)
    Ellis Henican, of New Orleans, attorney for plaintiff, appellee.
    Sol Weiss, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $330, the alleged purchase price of 200 dozen pairs of golf hose which plaintiff claims to have sold defendant through its agent, one L. M. Cressy. The purchase of the golf hose is admitted hy defendant, but it is claimed that the price charged is $80 too much. In other words, instead of having bought the hose for $1.65 per dozen, as plaintiff claims, defendant maintains that the price agreed upon was $1.25 per dozen.

The trial court gave judgment for plaintiff as prayed for and defendant has appealed.

Able counsel for defendant, conscious of the presumption which favors the correctness of the ruling of a trial judge upon a question of fact, points out that plaintiff, with the burden of proof resting upon it, •is supported only by its salesman, Cressy, whereas two witnesses, Mr. Rabinowitz, defendant’s president, and Miss Adams, defendant’s stenographer, maintain the position of defendant. But the learned judge a quo found the testimony of Mr. Rahinowitz and that of Miss Adams unsatisfactory and, in his reasons for judgment, pointed to certain features of their evidence affecting its credibility. On the other hand, Cressy, it appears, had been a salesman in similar lines for thirty-eight years. He noted the price agreed upon in his sales book at the time the sale was made. It is unlikely that he was in error or that he intentionally increased the price. The case is a close one. Happily, the amount involved is small. The determining factor with us is the conclusion of the 'trial judge upon the question of fact involved.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,810
    Orleans
    ITEM CO., LTD., v. CODIFER & BONNABEL, INC.
    (January 11, 1932. Opinion and Decree.)
    Deutsch & Kerrigan and Bert Flanders, Jr., of New, Orleans, attorneys for plaintiff, appellee.

      Fred C.. Querens, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an advertising contract for the sum qf $130. There was judgment below as prayed for and defendant has appealed.

The Item Company, Ltd., plaintiff herein, is the publisher of a morning and evening newspaper in the city of New Orleans. It entered into a contract with Codifer & Bonnabel, Inc., defendant herein, to run certain advertising matter to be supplied by defendant for a certain period of time.

' The advertisement as it appeared in plaintiff’s newspaper was as follows:

“Opportunity Awaits You in LINDBERGH GLEN ANNEX AT SLIDELL
Lots 70x630 — Titles Guaranteed, $250.00 Each — On E-Z Terms CODIFE'R DEVELOPMENT CO., 107 Balter Bldg. Ra. 3711.”

When demand was made for settlements the secretary of defendant company at first agreed to pay upon a definite date, handing plaintiff’s collector a written promise, reading as follows: •

“Mr. Credit Man:
“This account will be paid on October 20, 1929.
“Signed T. R. Codifer.”

The bill was not paid and this suit was subsequently filed. It is defended upon the ground that the advertising, though printed in accordance with the terms of the contract, did not bear the name of Codifer & Bonnabel, Inc., defendant herein, but the name of Codifer Development Company, which, it is pointed out, is a different corporation.

It appears that Codifer & Bonnabel, Inc., and the Codifer Development Co. are both engaged in the exploitation and sale of certain rural property in St. Tammany parish. The officers of the two corporations are practically the same. Their headquarters are in the same building, the same room in fact, and the telephone number is the same. The secretary of one corporation is the secretary of the other, a situation which is calculated to deceive anyone who may have any business transactions with either corporation. But, of course, a creditor of one corporation cannot demand payment of its debt from the other simply because of the difficulty in distinguishing one from the other.

Here, however, Codifer & Bonnabel, Inc., entered into the contract with plaintiff and supplied the advertising matter and the fact that the advertisement did not bear the name of that corporation is immaterial. We are convinced that the advertising supplied by defendant was for use in connection with its contract and was selected by officers of that corporation for that purpose. We are confirmed in this view by the fact that the subject of the advertising “Lindbergh Glen Annex” is admittedly owned by defendant corporation and not by the Codifer Development Company, whose name appears in the advertisement.

This evidently was the view of the trial court and we are of the opinion that its judgment was correct.

For the reasons assigned the judgment appealed from is affirmed.