text:
    No. 3246
    Second Circuit
    SADLER v. LOUISIANA CENTRAL LUMBER CO.
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 159.
    An employee sustained a fracture of both bones of his left arm between the wrist and the elbow. The bones were properly set and the fractures duly healed and the arm was as good as before. The employee returned to work with his arm in a sling on the Monday following the Saturday on which he was injured and worked every day until the following Thursday when he quit. While he was at work he was paid his regular wages. He did not work ’thereafter for two months and five days, during which he was paid 65% of his wages as for temporary total disability. Thereupon he again returned to" work and continued at it steadily for eleven months, during which he was paid full regular wages. He then voluntarily gave up his employment and went elsewhere and was there employed at the same kind of work at a higher wage than he had been receiving.
    Held: That the employee was not entitled to any further compensation under the Employers’ Liability Act.
    Appeal from the Eighth Judicial District Court, Parish of Caldwell. Hon. P. E. Jones, Judge.
    Action by Sherman Sadler against Louisiana Central Lumber Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, aippellee.
   REYNOLDS, J.

Plaintiff, Sherman Sadler, seeks judgment against defendant, Louisiana Central Lumber Company, under the Workmen’s Compensation Act, for $12.87 for 300 weeks, beginning April 10, 1926, with legal interest on each payment from its maturity until paid.

He alleges that in an accident growing out of and in the course of his employment—

“* * * he was severely and permanently injured in his body in many ways, particularly in his left arm, which was broken in both bones near his wrist; that * * * his spine and nerves have been seriously and permanently impaired, as well as his heart and lungs; that the nerves, muscles, ligaments, bones and tissues of his said arm were * * * seriously and permanently injured and impaired; and that on account of said injuries and impairments aforesaid he has not been able to do any work of any reasonable character since he was injured and will probably not hereafter be able to do such work.
“That soon after he was thus injured the said company became aware of the time, cause, nature and extent of his injuries, and within a week from then commenced to pay him weekly compensation at about the amount demanded herein per week, up until about June 10, 1926, to about the aggregate of ninety-two and 50-100 dollars, but has since that quit paying him and refuses to pay him any more, and now contends that it was never liable or responsible to him for any weekly compensation.”

He further alleges that he has contracted with his attorney to pay the latter one-third of whatever may be awarded him in the action, and that Act No. 85 of 1926 in that it limits his attorney to twenty per cent of whatever may be recovered in the action is unconstitutional and void.

He prays judgment against defendant for $12.87 per week for 300 weeks, beginning April 10, 1926, with legal interest on each weekly payment from its maturity until paid, that the fee of his attorney be fixed at one-third of the amount of the judgment and that Act No. 85 of 1926 be declared unconstitutional and void.

Defendant denied the allegations of plaintiffs’ petition and alleged:

That plaintiff, while employed in the capacity of section foreman by it, was thrown off a hand-car

“* * * as a result of which accident petitioner sustained a simple fracture of both bones of his left arm at about half way between the wrist and the elbow, together with such injury to the muscles and tissues of the said arm as usually occur in a simple fracture of the bones of an arm.
“That on account of said injuries it. paid petitioner compensation of $12.87 a week or a total compensation of $124.41, after which date it ceased to pay petitioner any further compensation for the reason that he had recovered from the incapacity which he suffered as a result of said injury and was able to and did resume the same nature of work which he was doing prior to the date of his injury and has worked continuously at the same job at which he was employed at the time of his injury, from June 17, 1926, up until a short time before this suit was filed, when petitioner quit work and resigned of his own accord.
“That the compensation which was paid petitioner was sixty-five per cent of his daily wages of $3.30 per day, the maximum compensation under law; that said compensation was paid to petitioner from the date of the injury up to the date he returned to the same job at which he was employed prior to the date of his injury, and that op and after June 16, 1926, petitioner was in no manner incapacitated
* * * on account of said accidental injury sustained on or about April 10, 1926.”

On these issues the case was tried and there w.as judgment rejecting plaintiff’s demand and dismissing his suit and he has appealed. .

Plaintiff testified:

“Q. You; have alleged that you received certain injuries on April 10, 1926, while working for the Louisiana Central Lumber Company at a certain amount per day. What was the amount of your wages?
“A. Three dollars and thirty cents a day.
“Q. What day were you hurt on?
“A. April 10, 1926.
"Q. How much compensation have you been paid by the Louisiana Central Lumber Company since your injury?
“A. Two months and five days. I don’t remember the amount.
"Q. How much was that per week, if you remember?
“A. $12.87 per week, I suppose.
“Q. How long after you received this fall, before you attempted to do any labor?
“A. You mean in my line of business?
“Q. Yes?
"A. I had my arm broken on Saturday and on Monday I went out with my arm in a sling and I stayed on the job until Thursday, the 15th, I came back out and stayed off for two months after that the doctor taken my arm out of the sling. I didn’t do any labor then but I went back on the job and stood around and told them what to do and was helped on and off the train.
“Q. You say you were off two months as a result of this accident?
“A. Yes, sir.
“Q. What did you do when you went back to work?
“A. I went out there and stood over the gang and instructed them what to do.
“Q. How much money did you get?
“A. $3.30 a day.
“Q. You continued in that employment at $3.30 a day for how long?
“A. Eleven months.
“Q. Then what did you do?
“A. I quit, to sue the company.
“Q. Why did you quit?
“A. I quit to sue the company, because I understood that after a year you couldn’t sue them, and I quit to sue them before I was put out.
“Q. You felt like you couldn’t work for the company and sue them too?
“A. I didn’t think I could.
“Q. What did you do after that?
“A. I sat down to see what would happen.
“Q. You quit your job with the company at $3.30 a day and sat down and did nothing, at nothing a day, to wait and see what would happen? Why did you do that?
“A. In order to get what was rightfully mine. I hadn’t got it and I wanted it because I thought it was rightfully mine.
“Q. You quit your job with the company at $3.30 a day and did nothing at nothing a day in order to get sixty-five per cent of $3.30 a day?
“A. Not that exactly, but I have been sawmilling a long time and I knew that after I had passed this time they could have fired me and then I couldn’t have sued them and couldn’t get anything.
“Q. Didn’t you go out to Texas and get a job?
“A. Yes, sir; I was out there twenty-one days. I stayed out there until I was called into Shreveport for an examination.
“Q. You quit working out there to go to Shreveport for an examination and come over here for the trial of this case?
“A. Yes, sir.
“Q. Nobody threatened to fire you, did they?
“A. No, sir; I haven’t anything against the company whatever. I just want what is rightfully belonging to me.
“Q. So far as you know, you can go hack to Texas and get the job you left out there?
“A. So far as I know.
“Q. Your work was giving satisfaction, wasn’t it?
“A. I do that wherever I go, hut you don’t know how long it is going to last. The fact is, when a man’s hair begins to get gray they push him out and put a young man in, if he is a little disabled, and you can’t get anything to do * * *
“Q. What doctor treated you the eleven months you worked down there after the accident?
“A. I had no doctor, except while I was injured.
“Q. All these pains you speak about having now, you never mentioned that to Doctor Hines, did you?
“A. No, sir; I did not mention it to anyone; a man’s troubles are his own, and people don’t care to hear about the other fellow’s troubles.
“Q. You have suffered in silence for the past two years, said nothing to anybody, took no medicine and saw no doctors?
“A. I didn’t complain at all.
“Q. You haven’t visited a doctor, except for going for an examination after you filed suit, since the accident?
“A. No, sir; I had no occasion to.
“Q. Now, when you went to Doctor Hines for him to dress your arm, you didn’t tell him about hurting your leg or hack, did you?
“A. No, sir; my arm was the worst thing I had, and I made no further complaints. My arm hurt me so bad that I didn’t know my leg was hurt for a month.
“Q. You say you didn’t know your leg was hurt for a month?
“A. No, sir; my back and arm hurt me so bad I couldn’t tell whether anything else hurt me or not, and after they ceased paining me I found that my leg was hurt too * * *
“Q. What were you doing in Texas?
“A. Same kind of work I was doing here.
“Q. What did they pay you out there?
“A. $4.00 a day.”

Plaintiff’s own testimony shows that he was entirely cured of his disability and that while it lasted he. was paid full compensation by defendant, and that since plaintiff ceased to pay him compensation, or almost a year, he has been at work doing the same kind of labor that he was performing at the time of and for years prior to his injury. Most of the time since defendant ceased to pay him compensation he has been doing the same kind of work for and receiving the same daily wage from defendant as before his injury and part of the time he has been doing the same kind of work for another at a higher wage than defendant was paying him.

The trial court, which heard the witnesses testify and observed their demeanor on the witness stand, was of the opinion that plaintiff’s disability ceased when defendant ceased to pay him compensation, that defendant had paid him full compensation during the period of his disability, and that he was not entitled to receive anything further from defendant, and rejected plaintiff’s demand and dismissed his suit. We concur in this conclusion.

This view of the case renders it unnecessary for us to consider plaintiff’s contention that Act No. 85 of 1926 is unconstitutional and void.

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


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No.-
    First Circuit
    HAZLEHURST OIL MILL & FERTILIZER CO. v. FORNEA
    (June 12, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Fraud—Par. 10.
    Under the averment of false representations during the making of a written contract by erasing printed words and adding written words, parol evidence, whether explanatory or contradictory thereto, is admissible.
    2. Louisiana Digest — Fraud—Par. 10.
    The allegation “to defraud respondent out of this loading charge” is sufficient to permit the introduction of parol evidence on the question. Civil Code, Art. 1857.
    3. Louisiana Digest — Obligations—Par. 90
    Where parol evidence as to what was meant by different terms in a written contract is uncontradicted it must he considered the truth.
    Appeal from the Parish of Washington. Hon. Prentiss Carter, Judge.
    Action by Hazlehurst Oil Mill & Fertilizer Co. against Robert D. Fornea.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ott & Johnson, of Franklinton, attorneys for plaintiff, appellant'.
    Bascom D. Talley, of Bogalusa, attorney for defendant, appellee.
   MOUTON, J.

Defendant Fornea entered into a written contract with V. H. Robinson, agent of plaintiff, August 23, 1926, by virtue of which he agreed to purchase cotton seed for plaintiff company between the date of the contract, and May 1, 1927. Under the terms of the agreement plaintiff was to furnish the money the defendant was to have in trust as agent of the {plaintiff, to effect these purchases, these advances being at all times subject to the order of plaintiff. As was agreed, defendant, it is shown, bought all the seed he could purchase and shipped them as agreed. The vital difference between the parties is as to the amount defendant was entitled to charge under the terms of the contract which is annexed to plaintiff’s petition.

The part of the contract which is pertinent to the issúes presented for solution, reads as follows:

“The said Oil Mill hereby agrees to pay the said R. D. Fornea for his services in purchasing seed as aforesaid $3.00 per ton for each and every ton purchased by him for it as aforesaid and shipped to it.”

The above appears in printed form, but after the words “shipped to it,” above reproduced follow these words written in pencil: “Loaded in cars at Varnado, La.” After stating in printed form that the contract shall remain in force from August 23rd, its date to May 1, 1927, as herein-above stated in line 7 of the printed agreement appear these words:

“All settlements shall be based on mill weights with an allowance for normal loss not to exceed 1% per cent.”

Pencil marks are drawn across the words: “With an allowance for normal loss of not to exceed 1% per cent,” which appear in said line 7 of the contract. Reference is made to the obliteration of the words mentioned because they play a part in the disputed questions which have arisen between the litigants herein. The first question presented for _ decision is as to whether defendant in his answer has made the required legal allegations to permit the introduction of parol evidence to contradict or explain the terms of the contract in question. Objection to the admissibility of parol evidence which was admitted under .the ruling of the Court, was in reference to the obliteration of the words above referred to, also as to the real agreement which had been entered into for the expenses that were expected to be incurred for “Loading the cars at Varnado, La.,” as per the words in pencil which had been inserted by Robinson, agent of plaintiff, in the contract, and as to the mill weights which plaintiff had really agreed to accept under the agreement. The question presented is therefore as to whether the parol proof which was introduced by defendant on the foregoing propositions, was legally admissible under the pleadings.

In referring to the words, “with allowance for normal loss not to exceed 1% per cent,” which were obliterated with a pencil mark drawn across, respondent in his answer avers that they were struck out under the false representation that the company only expected to get the actual seed bought, etc. In the article preceding the allegation made as aforesaid, that these words had been struck out under false representation, defendant alleges that when they were marked out, the representative of the plaintiff company explained that he only “expected an honest accounting of all seed purchased, that there was always more or less shrinkage and loss of seed.” These two articles of the answer must be construed together, and under the averment of the false representations thus charged to the agent of plaintiff com,pany, parol evidence, whether explanatory or contradictory thereto, was admissible.

The next proposition is as to whether under the averments of the answer, defendant could offer parol proof to show what plaintiff’s agent said when he added to the printed lines of the contract in pencil the words. “Loaded in cars at Varnado, La.” In the answer, respondent in referring to the words so added by the agent alleges that he asked the agent what was the meaning of the words; that the agent said they meant that respondent, as the agent of the plaintiff had to load the seed, but at the expense of plaintiff, and which is now attempting “to defraud respondent out of this loading charge.”

It is true that the allegation of fraud may have been made more explicitly, but we think that the allegation that plaintiff was now attempting to defraud him of this loading charge which bore on a material part of the. contract was sufficiently broad to permit the introduction of parol evidence on the question. C. C. 1857. Was there not also some ambiguity in the words: “Loaded in cars at Varnado, La.”? Even when considered with the preceding words of the contract where it is said that plaintiff “agrees to pay said Fornea for his services in purchasing seed as aforesaid $3.00 per ton for each and every ton purchased by him for it as aforesaid and shipped it.”

It will be noted from the language used in the contract that defendant was to receive $3.00 per ton for his services in purchasing the seed and in shipping it to plaintiff. These were the services which were expected of him under the terms of the agreement. As he had to ship the seeds it must naturally be implied that he had to see to the loading for shipment. The words inserted by the agent further stipulated that the seeds were to be loaded at Varnado, La. Must it be concluded because of this stipulation, that the obligation was imposed upon respondent not only to load the seeds at the point designated, but that he had also to incur personally, the expenses necessary for the loading? It is not surprising that defendant alleges that when these words were thus inserted in the agreement he asked what they meant, and that the agent gave the explanation hereinabove referred to.

The meaning of the words used, seem to us somewhat obscure, ambiguous, and by themselves, not susceptible of a satisfactory explanation. In the case of Adeline Sugar Factory vs. Evangeline Oil Company, 121 La. 961, 46 So. 935, while passing on the rules of evidence governing the explanation of obscurities which may lurk in the terms of a written contract, the Court quoted favorably from 185 Mo. 25, 84 S. W. 76, in which that Court said:

“The writing or contract should be read in the light of surrounding circumstances, in, order the more perfectly to understand and explain the intent' and meaning of the parties; that the object of interpretation always is or should be to reach the actual intention of the parties.”

This rule of evidence was enunciated in the foregoing quotation, the Court in Adeline Sugar Factory Co. vs. Evangeline Oil Co., 121 La. 961, 46 So. 933, said, was expressive of the view taken on that subject in several decisions of the Supreme Court of this State which are therein referred to. See also Mixon vs. St. Paul Fire & Marine Ins. Co., 147 La. 302, 84 So. 790. Parol proof was, we find, admissible to clear up the ambiguity in the contract to which we have hereinabove referred, but if not for that purpose, it was properly allowed under the averment of the answer charging plaintiff with attempting to defraud respondent on the loading charge.

In the petition plaintiff averred the settlement for the seed bought by respondent was to be made according to “mill weight of such seed when received at the mill of your petitioner.” In line 7 of the contract which was intended to cover this subject, what is said is this: “All settlements shall be based on mill weights.” It is not said here that the weights mentioned were to be those of plaintiff’s mill. The fact is, that acting under the direction of plaintiff’s agent, respondent made regular daily reports of the weights of the seeds that had been taken at respondent’s own mill where he had made the purchases for plaintiff. These reports were sent in to plaintiff company and were not objected to at the time they were returned. This clearly shows that respondent so construe*} the contract and did not understand it to mean that the only weights which would be acceptable were to be those of plaintiff’s mill.

This course. of dealing between the parties as is disclosed by the record, makes it quite evident that such had been the understanding of the agent and respondent when the contract was entered into. It shows at least that in this respect, the contract was ambiguous, and parol proof was admissible to establish the true intent of the parties. In the. 11th article of respondent’s answer, he avers that he had been instructed by plaintiff’s representative to send in his mill weights every day; that they were, accordingly sent in, and that' it was on this representation of the agent that the agency contract was signed.

The proof sustains this allegation, and also the explanation given by him of the other parts of the contract above discussed. These defenses were urged in the answer of defendant which was filed in July, 1927, and the casq was tried in October of the same year. Robinson, the agent who made the contract for the plaintiff, was, as appears from the record, still an employee of plaintiff, but he did not appear as a witness to meet or refute the charges made in the answer of respondent. The version of what occurred at the confection of the contract as was given by respondent, is not contradicted by any witness, nor do we find in the record any facts or circumstances which indicate that he has. deviated from the truth in any of his statements in reference thereto.

Respondent claims in reconvention the sum of $75.00 which he alleges he is entitled to recover against plaintiff being the difference between the amount of money advanced to him by plaintiff company, and the amount of money expended by him for its account. It is shown that respondent acting in obedience to instructions from plaintiff conveyed to him by telegram, that he discontinued to ship seeds to plaintiff from September 28th up to November 2nd, for a period of over thirty days. The seeds .were green at that time, and lost considerable weight by shrinkage, which no doubt, caused the difference in weight of which (plaintiff complains. This loss is certainly not imputable to defendant. These seeds had to be stored by him during the period above referred to, and which the evidence shows had to be stirred while .they were so kept.

The evidence shows that defendant expended $150.00 to stir these seeds, and which was done in the interest of the plaintiff; that it also cost him $10.00 per car to load eight cars making $80.00 for this item. The record shows that defendant shipped to plaintiff all the seed that he bought with the money that had been advanced to him. He actually paid out the sum of $4588.54 for the seeds, on which his commission according to the weights he sent in, and which we hold was the proper basis to adopt, amounted to $564.00, which with the -items of $150.00 and $80.00 mentioned above, amounted to a total of $5,306.50, which deducted from the above total; leaves a balance of $75.00 respondent claims in. reconvention.

This suit is in the nature of a demand for an accounting by defendant, and the counter. claims which he makes should be considered as in settlement of the advances made. The District Judge rendered judgment rejecting plaintiff’s suit, and the claim in reconvention. Whether the demand of defendant was legally one in re-convention or in settlement of account, is immaterial, and'of 'no ■ importance-to 'the decision of the rights involved, which, we find, were properly adjusted by the judgment appealed from, and which is therefore affirmed with costs.


author: ODOM, J.

text:
    No. 3273
    Second Circuit
    FINLEY v. SPINKS
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Acts—Pair. 31, 33.
    The description in a deed “44 feet off the west side of lot 10, or to the lattice barn” will mean 44 feet off the west side of lot 10 where the lattice barn had been destroyed and there is no method by which its former exact location can be determined. (See Civil Code, Articles 854, 2495.)
    Appeal from the Third Judicial District Court, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Mrs. Mattie A. Finley against Virgil H. Spinks.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiff, appellant.
    E. L. Walker, of Ruston, attorney for defendant, appellee.
   ODOM, J.

This is an action of boundary and involves a narrow strip of ground in lot 10, block “R”, in the town of Ruston.

On June 10, 1919, Mrs. Finley, the plaintiff, sold to Virgil H. Spinks the following described property.

“Lot number eleven (11) and forty-four (44) feet off the west side of lot number ten (10) Block “R” or to the lattice barn now situated on part of lot number ten 10, it being the purpose of the parties that only that portion of lot number 10 west of said lattice barn is transferred.”

This suit followed a controversy which arose between Mrs. Finley, the vendor, and Spinks, the vendee, as to the correct location of the east boundary line of the property conveyed.

It will be noted that the description calls for forty-four (44) feet off the west side of lot 10, “or to the lattice barn.” Several years ago the barn referred to was torn down and moved away, and there is nothing there now to indicate just where it was situated. The parties to the suit are agreed that the west edge of the barn was intended as the correct -location of the east. boundary line of the property conveyed, so that if the barn were still there, or if its exact location on the ground could he now determined by signs or markers, this controversy would not have arisen.

It is true, as contended by counsel for Mrs. Finley, that when real property is sold with reference to fixed boundaries or markers, the boundaries mentioned in the deed control, and are to be accepted rather than measurements. Civil Code, Articles 854, 2495.

But the trouble in this case is that the barn is not there and its location cannot now be determined by any signs or impressions on the ground. That being the case, the parties must accept the calls of the deed as to measurements or distances.

According to the deed, the plaintiff sold to defendant forty-four feet off the west side of lot 10. That is the only description the parties now have and they must abide by, it.

But going further, and considering the parol testimony, we think the location of the west edge of the barn was definitely located at the time the deed was signed. These parties went to the late Arnold Barksdale, an attorney, and asked him to prepare the deed for them. They told him that it was their purpose to make the west edge of the barn the east line of the property to be conveyed. He very wisely suggested that inasmuch as the barn might burn or be removed, a more definite description should be inserted.

At his suggestion, two disinterested persons were named to measure the distance from the barn to the west line of lot 10. They made the measurement and reported back to Barksdale. These parties are now living, and they recall having made the measurement, hut they do not recall the ) distance.

But it is conceded that when they reported their findings to Barksdale he prepared the deed which recites that the vendor sells to the vendee forty-four feet off the west side of lot .10, “or to the lattice barn.”

We therefore have not the slightest doubt that they found that the west edge of the barn was forty-four feet from the east edge of lot 10. Barksdale, who understood the necessity of a definite and accurate description, in the deed, was satisfied with the report and made the' description accord with the findings.

The defendant built a fence on the east side of the property which he purchased, which is now standing, and Mrs. Finley says he built it very close to the barn, which was then there, and she claims that this fence should be accepted as the line. But Spinks says he left a space between the barn and the fence, so that he could walk around his property and go between the fence and the barn. The workmen who tore the barn down say there was some space between the barn and the fence. They make it clear that while the fence was close to the barn, yet it was not built up against it.

Under the testimony, it cannot be said that defendant built his fence on the line.

We are indebted to our brother of the District Bench for his written opinion, which wq find in the record, in which he went into every detail of the evidence. He correctly found that a line running north and south through lot ten forty-four feet east of the west line of that lot is the east boundary line of the property in controversy, and we accordingly affirm his judgment, with costs.


author: WEBB, J.

text:
    No. 3271
    Second Circuit
    THORSELL, ET AL. v. GENERAL TIRE & RUBBER COMPANY
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Landlord and Tenant —Par. 64.
    In view of Civil Code, Articles 2716 et seq. the mere fact that the lessee, when delivering the premises, is unable to account for the broken lights, is not equivalent to proof that the breakage was in whole or in part due to inevitable accident.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by John E. Thorsell, et al., against General Tire and Rubber Company.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    Hawthorn & Stafford, J. L. Pitts, Jr., of Alexandria, attorneys for plaintiffs, appellees.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
   WEBB, J.

The plaintiffs, Thorsell and O’Pry, leased to John G. Hooe and Park M. Trigg, a building in which the latter conducted a commercial business under the name of “Swift Tire Service,” and becoming heavily involved they transferred all of the asset's of the business to the General Tire & Rubber Company, giving the latter the right of occupancy of the building for the remainder of the term of the lease, and the General Tire & Rubber Company released the partnership and the individual members from all indebtedness due and assumed all liabilities- and obligations of the transferrors and bound and obligated itself to hold the transferrors harmless for the price of the lease.

During the time the. building was occupied by the transferrors of the General Tire & Rubber Company certain plate glass windows had been broken; also glass in the sash and skylights, and at the expiration of the lease, the building being left in’ that condition, the lessors instituted this action against the General Tire & Rubber Company to recover damages, and the cause being submitted on the pleadings, including exhibit's (the original lease and contract of the General Tire & Rubber Company) attached to the petition and admissions, judgment was rendered against defendant for the amount claimed, and it appeals.

Appellant contends that the evidence did not establish that the lessees were liable for the damage resulting either from the breaking of the plate glass or the glass in the window sash and skylights, and that defendant’s liability being based upon an assumption of their liability, the judgment should be reversed.

The position of the. appellant is that as to the plate glass windows the liability could arise only on proof nf negligence, and that the record does not show any negligence, and as to the glass in the window sash and skylights, that the plaintiffs had admitted that the breakage resulted from an inevitable accident.

The parties do not disagree as to the -law, but only as to the proof; it being contended that as to the plate glass windows the admission ,that' one of the windows had been broken by an employee of the Swift Tire Service while engaged in demolishing the cab of a Ford truck, and that the other was broken by the heat from a stove, which had been located within a short distance of the glass, did not establish negligence, for the reason that the employee was not shown to have been acting within the scope of his employment, and that the stove was shown to have been in the same location for two years prior to the accident; and that the admission that the only cause which could be given for the glass being out of the window sash and skylights by the Swift Tire Service was the force or effect of the wind or other natural breakage and wear and tear, established that the breakage was due to inevitable accident.

The admission that the employee of the lessee broke one of the windows while engaged in work which appears to have been within the class of work done by the lessee, we think was at least prima facie proof of liability of the lessee, and the admission that the other window had beep broken by the heat from a stove which was in close proximity to the window, made a prima facie showing of negligence which was not affected by the proof showing that the stove had been in the same location long prior to the glass being broken, and we do not think that the inability of the lessee to account for the manner in which the lights were broken out of the windows and skylights would relieve it of liability.

The lessor is obligated to return the premises in the condition in which it was received, with allowance for wear and tear, and is bound to replace glass in windows accidentally broken, and is only relieved of the obligation, when the breakage is in whole or greatest part due to inevitable accident (Civil Code, Arts. 2716, et seq.) and the mere fact that the lessee, when delivering the premises, is unable to account for the broken lights, is not equivalent to proof that the breakage was in whole or in part due to inevitable accident, such as a hail storm or wind of unusual violence.

The judgment appealed from is affirmed.


text:
    No.-
    First Circuit
    DAVIS v. LORANGER INTERVENTION AND THIRD OPPOSITION CITIZENS NATIONAL BANK
    (June 12, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Subrogation—Par. 1, 2.
    In either the conventional or legal subrogation under Civil Code Arts. 2160 and 2161 there must be an assignable interest, claim or credit which is transferred.
    2. Louisiana Digest — Subrogation—Par. 1; Homestead — Par. 1.
    The homestead claim is personal, not assignable, and cannot be the subject of subrogation either under Arts. 2160 or 2161 of Civil Code.
    Appeal from the Parish of Tangipahoa. Hon. Prentiss Carter, Judge.
    Action by Lafayette Davis against H. R. Loranger, intervention and third opposition Citizens National Bank.
    There was judgment for defendant and intervenor appealed.
    Judgment affirmed.
    Purser and Magruder, of Amite, attorneys for defendant, appellee.
    Carrol Buck, of Amite, attorney for intervenor, appellant.
   MOUTON, J.

The Citizens National Bank of Hammond had a judicial mortgage against H. R. and Arthur Loranger resting on a parcel of ground situated in Tangipahoa parish. H. R. and Arthur Loranger had given to Lafayette Davis a conventional mortgage on that property. The bank brought suit against the Lorangers to have the Davis conventional mortgage of $5000.00 in amount declared second in rank to its judicial mortgage. The Court so decreed. Davis appealed but only devolutively from this judgment. The bank had the property mortgaged seized and advertised for sale under its judgment. Loranger and his wife intervened and claimed a homestead on the property which was sold for a sum exceeding $2000.00. The sheriff was ordered to hold $2000.00 pending the suit of Loranger and his wife for their homestead claim, which was finally maintained by the Court. An appeal was taken to the Supreme Court from the judgment recognizing the homestead. The bank in the meantime bought the property at the sale, and as ordered by the Court, out of its proceeds, paid the $200.0.00 to Loranger.

Subsequent to all of these proceedings and after the bank had purchased the property, the suit originally filed by the bank against Lafayette Davis to have its judicial mortgage declared superior in rank to that of Davis, reached the Supreme Court on appeal where the judgment of the District Court was reversed and where it was decided that the Davis mortgage primed the judicial mortgage of the bank.

In these proceedings Davis is now asking for the foreclosure of his $5000.00 mortgage wherein the bank intervenes by way of third opposition, claiming that having paid to Loranger his homestead claim of $2000.00 it has been subrogated to all of his rights thereunder, and therefore $2000.00 should be returned to the bank as subrogee from the proceeds to be realized from the sale under the foreclosure proceedings instituted by Davis.

This demand of the bank was dismissed under an exception of no cause or right of action. . '

The right of homestead is generally recognized as not an estate in the land, but is usually considered in substance as the right of occupancy, which shall not be disturbed while the homestead exists. Homestead laws are not founded upon equity but are enacted as a matter of public policy in the interest of humanity, the preservation of the homestead being considered of more importance than the payment of debts. C. J. 29,, p. 782. A homestead exemption is considered as a personal privilege, does not run with the land, and is not an assignable estate. Naples on Homesteads and Exemptions, p. 419. When the homestead is converted into money with or without the voluntary act of the homesteader, it is generally accepted that its proceeds are still regarded as being impressed and protected by the homestead exemption. It is strictly a personal right', is not transmissible by inheritance, and has so been recognized by our Courts. Briant vs. Lyons, et al., 29 La. Ann. 64.

Counsel for the bank say in their brief as follows:

“Loranger successfully established his homestead claim, and the Citizens National Bank paid the $2000.00, and was subrogated to all of his rights.”

In other words, the bank contends that as it has paid the $2000.00 to Loranger it has been subrogated to his homestead claim for that amount which it has the right to retain from the proceeds expected to be realized from the sale under the Davis mortgage. The trouble with the bank is that such a homestead right, being personal, is not assignable, and was not assigned to the bank by the payment of the $2000.00 to Loranger under the original sale of the property. In the conventional subrogation, the creditor makes an express subrogation of some assignable claim, right or credit to the third person who pays the debt. C. C. 2160. The law makes this assignment in the legal subrogation, where a creditor pays a preferred. claim, a purchaser pays off encumbrances on some immovable property or where a co-debtor discharges the debt, etc. C. C. 2161.

In either the conventional or legal subrogation there must be an assignable interest, claim or credit which is transferred. In the instant case the homestead claim of Loranger was personal, not assignable, and was not assigned to the bank as a result of its payment to him of the $2000.00. This homestead right of Loranger was a mere exemption around which the law had thrown its mantle of inviolability, but was.not an estate in the land or an equitable right therein which was transferred to the bank by virtue of its payment of the $2000.00, thus entitling it to the recovery of that amount in these proceedings from the proceeds expected to be realized from the anticipated sale.


text:
    No. 3295
    Second Circuit
    J. H. McMAHON & CO., INC., v. WINN MOTOR COMPANY, INC.
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Damages—Par. 96; Privilege — Par. 10.
    One who converts to his own use an automobile' on which another has a lien or privilege is liable in damages to the holder of the lien or’ privilege but the value qf the automobile at the time and place of conversion is the limit of recovery.
    2. Louisiana Digest — Damages—Par. 80, 81, 88.
    Where there is no allegation or proof as to the value of the property converted which proof is necessary to show the amount of damages, there can be no re.covery.
    Appeal from the Eighth Judicial District Court, Parish of Winn. Hon. P. E. Jones, Judge.
    Action by J. H. McMahon & Company, Inc., against Winn Motor Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment' reversed.
    Hawthorn & Stafford, of Alexandria, and J. D. Pitts, Jr., of Winnfield, attorneys for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, J. H. McMahon & Company, Inc., instituted this action against the defendant, Winn Motor Company, Inc., to recover judgment on an alleged indebtedness of one hundred and tqn dollars, with eight per cent per annum interest thereon from October 30, 1926, and twenty-five per cent on the principal sum and interest, as attorney’s fees, and defendant appeals from a judgment rendered against it for the full amount claimed with interest and attorney’s fees.

Plaintiff alleges that the Scott Cain Motor Company, Inc., of Allen parish, sold to Ben Conston, also of Allen parish, an automobile and for a portion of the purchase price Conston gave a note dated October 30, 1925, bearing eight per cent per annum interest and stipulating for twenty-five per cent attorney’s fees, secured by chattel mortgage on the automobile, which mortgage was duly recorded in Allen parish; that plaintiff acquired the note in due course for value and before maturity and that Conston, after making several payments on the note, had, with the consent of plaintiff, sold the automobile to George Sweetman, who assumed the payment of the note and who made payments on the note, reducing the amount to one hundred and ten dollars. That Sweetman, without the consent of plaintiff, moved the automobile from Allen parish and drove it to Winn parish, where he purchased tires from the Winn Motor Company, Inc., on credit and that on the failure of Sweet-man to pay for the tires the Winn Motor Company, Inc., took the automobile from Sweetman in order to collect the amount due on the tires, and that Sweetman at that time was not a resident of Winn parish and that the Winn Motor Company, Inc., had thereby become liable for the amount due on the note secured by mortgage on the car.

Plaintiff further alleges that Conston and Sweetman had left the state and could not be found, and that both of them were insolvent and the only recourse it had for the collection of the note was the automobile on which it had a vendor’s lien and chattel mortgage, and that the Winn Motor Company, Inc., after taking possession of the car, had sold it, and plaintiff had been unable to locate the automobile, and that plaintiff had been deprived of its security and the Winn Motor Company, Inc., had become responsible for the balance due on the purchase price of the car, etc.

Defendant excepted that the petition failed to state a cause of action, which being overruled, it answered denying plaintiff’s allegations, with the exception as to its having obtained possession of the car, alleging that it had sold tires to Sweet-man on credit, who was a resident of Grant parish, and had taken a note for the price, secured hy mortgage on the automobile, which mortgage had been duly recorded in Grant Parish, and that Sweetman had failed to pay the note and without its consent had removed the car to Rapides parish where defendant had obtained possession of the car and, after waiting some time for Sweet-man to appear, it had sold the car, and alleged that all of the transactions had between it and Sweetman with reference to the automobile were in good faith and without any knowledge of plaintiff’s claim.

The evidence established the facts to have been substantially as alleged by the parties, and appellant urges that the judgment should be reversed, first, for the reason that the exception of no cause of action filed by it in the trial court and also filed in this court should be sustained, and that its action in taking possession of the automobile and its subsequent sale did not render it liable under the chattel mortgage law for plaintiff’s debt, and it being shown that it was without knowledge of any privilege or claim of plaintiff against the car, its action did not render it liable to plaintiff under the general law for the amoupt of plaintiff’s claim against the car.

The theories on which plaintiff bases his right to recover judgment are:

First, that the action of defendant in taking possession of and selling the automobile was equivalent to a purchase of the car from Sweetman, who was a non-resident of the parish, and defendant rendered itself liable for the debt of plaintiff secured by chattel mortgage on the car, under the provisions of the chattel mortgage law (Act No. 198 of 1918), section five of which reads as follows:

“It shall be unlawful for a resident of any parish to purchase the movable property described in section 1 from any nonresident of such parish without first obtaining an affidavit from the 'non-resident that there is no mortgage on the property, nor any money due for the purchase price thereof, and the purchaser who shall buy the above referred to movable property without having obtained said affidavit shall be liable to the creditor for the debt secured by the property.”

Second, that defendant had, by taking possession of and disposing of property, without due process of law, on which plaintiff had a privilege, deprived plaintiff of its security for its debt and thus became liable for the amount of plaintiff’s claim.

The provision of the statute which renders the purchaser of movables from a non-resident of the parish without requiring an affidavit liable for debts bearing on the property, if subject to construction, may be said to place the purchaser under such circumstances in the position of a fraudulent grantee, or acquirer of the property, visiting upon 'him notice of the claim against the property, and holding him as if lie had conspired with the owner of the property to defeat the privilege or lien on the property, and in this way held applicable to any transaction by which the ownership of the property may be acquired, but in order to hold defendant liable under the statute the provision would have to be more liberally construed, so as to hold that one who may convert to his own use the movable property of a non-resident of the parish where the conversion takes place renders himself liable for any claim the payment of which is secured by privilege or lien on the property.

We are of the opinion that the provision of the statute must he strictly construed, and in order for the lien holder or person holding a privilege on the property to hold a third person liable for the debt, under the provisions of the statute, the facts must show that such third person had acquired the property from the debtor, and that the provisions of the statute cannot be extended to include a case where the property on which there is a lien or privilege has been converted by a third person to his own use without the consent of the debtor.

The second position is based upon the theory that defendant, hy its action in taking possession and disposing of property on which plaintiff had a lien or privilege had committed a, quasi offense, and that the plaintiff had thereby been deprived of its rights against the property, but conceding that one who converts to his own use property on which another has a lien or privilege renders himself liable to the holder of the lien or privilege, the action is one in damages, in which the value of the property at the time and place of conversion is the limit of recovery, unless under circumstances not presented here, and in such an action there should be an allegation of the value of' the property, as well as proof, and aside from the fact, as established by the evidence, that defendant, in taking possession of the property, was acting for the preservation of the property, which appears to have been abandoned by the owner,' and that in disposing of the property defendant was not acting in moral bad faith, plaintiff failing to allege the value of the property, and there not being any evidence offered to show the value, we are of the opinion that he could not recover on the mere proof of the amount of his claim against the property.

The judgment appealed from is therefore reversed and plaintiff’s demands rejected at its cost.


text:
    No. 3290
    Second Circuit
    MOSELEY v. SUCCESSION OF MOSELY
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Executors and Administrators — Par. 156, 162, 164.
    Where evidence of opponent fails to show that his claim is entitled to be paid by preference or that he has a privilege, his claim will be paid as an ordinary claim of the succession.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.

      Action by S. M. Mosely against Succession of Frank F. Mosely.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellant.
    Sol B. Pressburg, of Alexandria, attorney for defendant, appellee.
   WEBB, J.

In this matter, the administratrix filed a final account and tableau of debts, showing the fund to be distributed at eight hundred ninety-six and 75-100 dollars (which comprised all of the assets of the succession) and privilege claims of seven hundred forty-nine and 50-100 dollars, and ordinary claims of one hundred forty-seven and 50-100 dollars, and prayed the account be homologated and the fund distributed as shown thereon.

S. M. Mosely, who was recognized as one of the ordinary creditors for one hundred forty dollars, opposed the account and tableau of debts, alleging that decedent was indebted to him in the sum of five hundred twenty-two dollars, which was a privilege claim, and that it should be ranked as such, and the fund distributed pro rata among the privilege creditors, and he appeals from a judgment rejecting his demands and homologating the account and ordering the funds distributed as shown on the account.

The evidence shows that decedent had a small restaurant in the city of Alexandria, where he resided, and that he had been ill for about a year prior to his death, and at times more or less unable to take care of himself, and that during such periods his brother, opponent, would take him to his home and care for him, and of the indebtedness claimed against the succession four hundred fifty-four dollars was for lodging, board and attention given to decedent during such periods, and the balance was for expenses incurred in sending decedent to New Orleans, amounting to thirty dollars, and work done by opponent for decedent, amounting to thirty-eight dollars.

Opponent did not keep any memoranda of the exact period during which he cared for decedent nor of the exact expenses incurred or of the work done by him, and there was evidence offered showing that at times during the period that opponent claimed to have, been caring for decedent the latter was at his place of business, and it also appears that the charges made by opponent were in excess of the amount usually charged for such services.

While the account shows the succession to have been solvent, it was so by reason of the administratrix waiving her commission, and as against such a succession a claimant presenting an equitable claim, the amount of which is to be fixed on the basis of the value of the service, there not being any contractual relations, is bound to establish with certainty some minimum amount as against creditors whose debts arose from contracts with decedent, and where there is conflict in the evidence as to the period and value of the service, the minimum must be accepted, and we cannot say that the court erred in fixing the amount of opponent’s claim at the amount admitted by the administratrix.

Opponent did not show that his claim was entiled to be paid by preference or that he had a privilege, and practically all of the surplus, after payment of the privilege debts, being ordered paid to him, he could have little cause to complain, especially as the cost of his opposition would fall first upon the fund to be distributed to the ordinary creditors (Succession of Hilisberg, 1 Ann. 20; Cross, Successions, page 464, No. 286), and whatever may have been the amount of his claim, the amount to be paid to him could not have been materially increased.

The judgment is affirmed.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    SELLERS v. LOUISIANA SAWMILL CO., INC.
    (May 8, 1928. Opinion and Decree.)
    (June 12, 1928. Rehearing Refused.)
    (July 20, 1928. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 154, 158.
    An employee being carried home by his employer, after work hours, in a conveyance operated by his employer for that purpose, is entitled to protection in the matter of service just as if he was engaged in the' work for which he was employed.
    2. Louisiana Digest — Master and Servant —Par. 154, 156, 158.
    Where employee, while being carried home from work in a caboose by his employer, leaves it during a stoip, employer 'is at fault if train is started before employee is given an opportunity to get on, even though he had been admonished not to get off and employer is liable to emiployee for compensation under the Workmen’s Compensation Act No. 20 of 1914 as amended.
    3. Louisiana. Digest — Master and Servant —Par. 154, 159.
    The provisions of. Sec. 8 subsection (d), numbers 11 and 12 of Act 85 of 1926 do not apply to loss of half of a foot by employee.
    4. Louisiana Digest — Master and Servant' —Par. 159.
    Loss of half a foot by injured employee has the effect of total loss and compensation under the Workmen’s Compensation Act No. 20 of 1914 aa amended by Act 85 of 1926 will be' granted as for total loss of foot.
    Apipeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by J. C. Sellers against Louisiana Sawmill Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Ferguson & Newman, of Leesville, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   ELLIOTT, J.

J. C. Sellers, an employee of the Louisiana Sawmill Co., Inc., got his left foot and about half of his right foot cut off by being run over- By defendant’s train engaged in carrying him and it's other employees home from their place of work in the woods. He was earning a daily wage of two dollars and fifty cents and alleges that he was engaged at the time in performing services arising out of and incidental to his employment, and claims compensation in the amount' of 65% of his daily wages for four hundred weeks.

The alleged employment, wages and injury are admitted, hut liability for compensation is denied on the ground that the plaintiff, while the train in which he was being transferred home, was stopped in order that the track ahead of it could be repaired, got out of the caboose in violation of defendant’s orders, left and went up the track where the section crew was working. That when the train again started on its way, he attempted to catch on to the moving train and in some manner fell; the wheels of the caboose running over and cutting off his left foot, and cutting off his right foot’ about half way between the toes and the ankle. Defendant alleges that the accident did not arise out of nor in the course of plaintiff’s employment, but' while plaintiff was performing an act which was in no manner connected with and committing an act in disobedience of the rules and regulations of his employment.

Defendant alternatively urges that plaintiff deliberately failed to use the adequate guards provided by defendant for his protection against the accident complained of.

There was judgment in favor of the plaintiff as prayed for and defendant has appealed.

As for defendant’s rule or regulation against the employees getting off and on moving trains, some of the employees were informed of same, but not all of them, and it was not shown with certainty that plaintiff was aware of it. The rule was not enforced and was generally disregarded. The employees were in the habit of getting on and off moving trains and nobody was ever discharged on that account.

The train was not such as we usually have in mind when we speak of a train, but was composed of a locomotive and two cabooses. The two cabooses were full of men who. had been at work in the woods, and as an incident of their employment were being carried home by defendant after their work for the day was over. It has been decided a number of times that a party being carried home by his employer, after work hours, in a conveyance operated by his employer for that purpose, is entitled to protection in the matter of service just as if he was engaged in the work for which he was employed. Wilson vs. Banner Lbr. Co., 108 La. 590, 32 So. 460; Lawton vs. Pacific Coast Casualty Co., 144 La. 664, 81 So. 219; Farris vs. La. Long Leaf Lbr. Co., et al., 148 La. 106, 86 So. 670; Prevost vs. Gheens Realty Co., 151 La. 508, 92 So. 38.

On this occasion after the workmen had boarded the caboose and the locomotive had gotten some distance on its way, it was stopped by the track crew until the track could be repaired. The stop did not last longer than a few minutes, but when the train stopped a number of men started to get out. The skidder foreman was in one of the cabooses and he admonished the men not to get out, stating that the stop would be only for a few minutes and that it was against the rules of the defendant for the employees to be getting off and on moving trains. He may have addressed remarks to this effect to the plaintiff. He did not recall speaking specially to the plaintiff, but some of the witnesses say he did. The plaintiff testifies that he was not inside the caboose with the foreman and did not hear what he said. He was corroborated by one witness, who said he was not' inside the caboose in which the foreman was sitting at the time the train stopped, and others inside of it say that they did not hear him request the men not to get out, etc.

The plaintiff got out of the caboose in which he was riding and walked up to the locomotive. He says that he spoke to the engineer, hut the engineer did not recall that he came there. There is no evidence that he went anywhere else. As soon as the track was in condition for the train to (pass, the track crew signaled to the engineer to come on, upon which he immediately released his brakes, blew his whistle and started up without waiting for those to get aboard who had gotten out. The plaintiff says he was up near the engine at the time and immediately started back to the caboose in order to get aboard; that there were others catching hold and getting aboard as the train moved forward getting under way; that he caught hold and tried to get aboard, but in so doing his hand slipped and he fell, his feet going under the wheels of the caboose.

Defendant contends that in getting out of the caboose, against the order of its foreman, and in trying to get back while the train was moving, plaintiff disconnected himself from the service in which he was engaged while being carried home, and that it is therefore not liable for injuries.

It is not clear that plaintiff heard the admonition of his foreman, but suppose he did; that fact, after the train had stopped, would not have the effect contended for by the defendant. The admonition was against leaving the train while in motion. Plaintiff did not leave it while it was in motion, and he had a right to suppose that before the train was started he would be given an opportunity to get back. Getting out did not amount to leaving the train, even though he walked up to the locomotive, say fifty or seventy-five feet from the caboose. He did not leave nor engage in any private pursuit of his own not connected with the trip. The stopping, getting out and getting back into the caboose was all under the facts and circumstances, an incident and risk of the employment.

Unde.r the Employers’ Liability Act, the negligence of the plaintiff in the matter cannot be considered, and no rule or regulation of the defendant can relieve it from liability.

Defendant was at fault. Its employees who had for the moment gotten out of the caboose should have been given an opportunity to get back in it before it started. The train started before they were able to get back, thereby forcing them to either violate its own rule against getting on a moving train or else remaining out in the woods. Acting in such a situation even though admonished not to get off, the plaintiff is not barred from recovery. Farris vs. Louisiana Long Leaf Lumber Co., 148 La. 106, 86 So. 670; Baltimore Car Foundry Co. vs. Sophia Ruzicka, 4 A. L. R. 113.

Defendant urges the case of George Willie vs. Long Leaf Lumber Co., recently decided by the Court of Appeal, Second Circuit (see page 817). In that case the employee asked (permission to get off, and was told by the foreman to remain on the train. He left the train, and according to the report of the case, walked down the track in the direction in which the train was going about one hundred yards, on private business. The train then resuming its journey, he attempted to get back aboard while it was in motion and in so doing fell under the cars and was injured. The Court held that he could not recover. But in the present case the plaintiff did not leave. He got out of the caboose, but he did not go off on any private affair of his own.

Under the facts and circumstances we think defendant is liable for plaintiff’s injuries.

The defendant urges that plaintiff has not lost both feet. That he has lost one, and one-half of the other, and that his compensation for that reason should be the amount fixed for one foot, and for half of another, as is provided for the loss of one phalange of a finger or toe, etc. Act 85 of 1926, Sec. 8, subsection (d), numbers 11 and 12.

The provision in question does not extend to the feet.

According to the physician called in the case, the ball of plaintiff’s right foot is gone, leaving only the ball of the heel. The foot' is in effect and in the intendment of the law, a total loss.

The permanent total loss of the use of a member is equivalent to the amputation of the member.

The judgment appealed from is correct. Judgment affirmed, defendant and appellant to pay the cost of both courts.


text:
    No.-
    First Circuit
    McGREGOR v. DEALE
    (June 12, 1928. Opinion and Decree.)
    (June 20, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625, ■ 626.
    The finding of the trial court on matters of fact and the credibility of witnesses where clearly correct is affirmed.
    Appeal from the Parish of East Baton Rouge. Wm. Cari’uth Jones, Judge.
    Action by R. H. McGregor against Mrs. Grace E. Deale.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed
    Sanders & Gottlieb, of Baton Rouge, attorneys for plaintiff, appellee.
    C. A. Battle, of Baton Rouge, attorney for defendant, appellant.
   ELLIOTT, J.

R. H. McGregor claims damages of Mrs. Grace E. Deale in the amount of $385.00, on the ground that she agreed that he might have the lespedeza hay cut by him from her pecan orchard, and that after he had cut and piled the hay, she ordered him to remove it from her premises within such a short space of time that it was impossible for him to do it. That she nailed up the gates and thereby prevented him from removing the hay, and caused him to lose the same worth $385.00. That the hay was in payment of services rendered her by him.

Mrs. Deale denied plaintiff’s averments. The lower court decided in favor of the (plaintiff, and Mrs. Deale has appealed.

The testimony of the plaintiff is in line with his averments, and his contention that Mrs. Deale caused him to lose the hay in the way he alleges and testifies, is supported by another witness.

Mrs. Deale, in her testimony, denies the statements of the plaintiff and she is supported in her contentions by a witness.

The record shows that defendant wrote plaintiff several letters at a time when there was no misunderstanding between them. These letters show that plaintiff had charge of defendant’s pecan orchard and was looking after it for her. The letters do not speak of any definite contract of employment between them, but they show that plaintiff is a farmer and not a man of leisure, and they justify the inference that plaintiff was not rendering his services free, but that compensation of some kind might be looked for as a result of the same.

The District Judge had the parties before him, saw them, heard them and their witnesses. The decision of the case depends on the credibility of the parties and their witnesses, and we do not feel able to say that the lower court has erred in deciding the case.

Judgment affirmed, defendant and appellant to pay the cost in both courts.


text:
    No. 3282
    Second Circuit
    HUNTER v. PRICE
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Assault and Battery —Par. 1, 7, 8.
    Where evidence clearly shows that plaintiff made no attack upon or demonstration toward defendant but' was attacked by defendant who was the aggressor, defendant is liable for damages resulting.
    2. Louisiana Digest — Assault and Battery —Par. 9, 11.
    Three hundred dollars is sufficient quantum of damages for small gash under eye leaving slight scar.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. P. E. Jones, Judge.
    Action by C. B. Hunter against J. D. Price.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Gus A. Yoltz, of Alexandria, attorney for plaintiff, appellee.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

On March 18, 1927, the defendant, Price, assaulted the plaintiff, Hunter, and inflicted upon him a slight wound, at the upper edge of the cheek bone under the left eye.

Plaintiff brought this' suit for damages, and alleges that the assault was unprovoked and malicious.

Defendant resists the action on the ground that he acted in self defence.

The District Judge awarded the plaintiff the sum of $300.00. Both parties appealed, and plaintiff, in the court, asks that the award be increased to $750.00.

Plaintiff is general freight agent for the Missouri Pacific Railroad Company at the town of Tullqs in LaSalle parish. He had been employed by the railroad company for a number of years and is a man of good reputation.

Some time prior to the date on which the two engaged in the personal encounter out of which this suit grows, someone in the town sent a telegram to Mr. Baldwin, president of the railroad company, that a certain shipment of freight had not been properly handled or delivered by the agent, Hunter.

Hunter, the agent, It seems, thought Price, the defendant, had sent the telegram and made some remarks about it, but what he said is not disclosed by the record.

There is nothing to indicate that Hunter made insulting remarks, about Price.

Late in the afternoon Price met Hunter at a newstand and told him he wanted to discuss a matter with him and asked him to go to Cook’s store about one hundred feet away. The two walked to the store together, but neither said anything to the other on the way. They walked into the store and stood by a showcase. Price, the defendant, called Cook, the. proprietor, and asked him in Hunter’s presence if he.-, Cook had sent the telegram to Baldwin, and Cook answered that he had. Price then asked Hunter why he had accused him, Price, of sending the telegram, or something to that effect. Hunter replied that he did not know, but had reason. Price called upon Hunter for an apology. Hunter and some of his witnesses say he told Price he was sorry. Price and his witnesses say Hunter made no apoiogy. Price then assaulted and wounded Hunter.

There is some conflict in the testimony as to what was done and said by Hunter on the one side and Price on the other just previous to and at the moment Price assaulted Hunter.

Hunter says that Price asked him if he had accused him, Price, of sending the telegram, and that he admitted that he had. Price then asked why he had done so, and he replied that he had reasons for doing so. He says that Price became enraged and began to curse and abuse him, whereupon he asked Price to desist. He says he tried to reason with Price, to no avail; that he asked him the second time not to curse and abuse him, and that Price “got stronger” and said “I will do worse than abuse you” and. ipicked up a can of something and hit him. Then he “got groggy,” and has but little knowledge of what else happened.

Hunter says he made no assault upon or hostile demonstration toward Price.

To corroborate his own testimony, Hunter called Morris Miles, O. B. Nugent, O. L. Avery, G-. C. Deville, and Joe Nugent, all of whom were present and saw the difficulty.

Each of these witnesses testified that the assault which Price made on Hunter was unprovoked and vicious. They say that Price cursed and .abused Hunter, and that Hunter asked him not to do that, and some of them say that Price remarked that he would do worse than abuse him and immediately threw a can of pork and beans at him. Some say he hit Hunter with the can; some say he missed him; but all say that Price hit him with his fist. They all say that Hunter made no move or demonstration toward Price.

Price alleged and swore that Hunter advanced upon him with an open knife in his hand. Price’s two witnesses, his brother, Marion Price, and the storekeeper, Cook, corroborated his testimony on that point.

Hunter and his five witnesses say he had no knife in his hand.

The fact that Price became enraged, cursed and abused Hunter, is borne out not only by Hunter and his five witnesses, but is conceded by Price and his witnesses.

Mr. Cook, who testified for defendant, in his account of what was said, stated that Price remarked:

“Mr. Plunter, you will have to apologize to me. Mr. Hunter says,' Mr. Price I don’t have to apologize to. you, you are just a man like anybody else. Mr. Price 1 said, you are damn sure going to apologize to me or I am going to work you over.”

Mr. Cook was asked:

“Did you hear Mr. Price curse Mr. Hunter?”

And he answered:

“Yes, sir. He told him he was going to work him over if he didn’t quit lambasting him.”

Defendant says he told Hunter:

“* * * was damn tired of having that ■ kind of gossip circulated.”

Every witness called, including those for defendant, testified that before Price struck Hunter, Hunter asked Price not to curse and abuse him.

Our reading of the record has convinced us that Hunter made no attack upon or any demonstration whatever toward Price; but, on the contrary, that Price was Wholly at fault and was the aggressor from start to finish.

We are not informed as to what Hunter said about the telegram, except that he had stated he thought Price had sent it. The testimony preponderates to the effect that Hunter apologized to Price when Cook admitted that he and not Price had sent it. This should have ended the matter. But Price was mad and, according to Cook, defendant’s witness, Price threatened “to work him over” about it, and, according to a number of witnesses, proceeded to curse and abuse him.

Defendant admits that he assaulted plaintiff. Evidently the District Judge did not believe Hunter had a knife in his hand. We do not think so either.

We shall not disturb the judgment on the quantum of damages.

Plaintiff received a small gash wound just under the eye. The physician says there was no infection, and it soon healed, and he thinks there was no suffering. Plaintiff says there was infection, and that he suffered considerably. There remains a slight scar, but it is not prominent and does not disfigure the face.

Judgment affirmed with costs.


text:
    No.-
    First Circuit
    U. A. ROUSSEAU & CO., INC., v. DOLESE
    (May 8, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)
    (July 20, 1928. Application for Writs of Certiorari and Review Refused by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 86.
    Where automobile was purchased and paid for but later the sale was rescinded by judgment of court, the seller cannot recover the rental value of the automobile while the purchaser had use of it.
    Appeal from the Parish of Assumption. Hon. Sam A. LeBlanc, Judge.
    Action by U. A. Rousseau & Co., Inc., against Eugene D. Dolese.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.

      Charles T. Wortham, of Donaldsonville, attorney for plaintiff, appellant. , .
    ■ George S. Guión, of New Orleans, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that on March 4, 1924, it sold to defendant a new up-to-date Chevrolet sedan automobile for $946.00, which amount was paid to petitioner by defendant; that defendant kept the auto and used it from the date of sale to the 5th of January, 1925, on which date defendant filed a suit in the District Court, Parish of Assumption, for the rescission of the sale, and for the recovery of the price he had paid for the auto; that on December 10, 1925, the District Court decreed the rescission of the sale,' and rendered judgment in favor of defendant for the purchase price of the automobile, and that this judgment was affirmed by this Court; that thereupon plaintiff in compliance with the judgment took the auto back, and returned to defendant the purchase price of the auto which at that time had no defect, and was in thorough running condition.

Basing its claim on the foregoing allegations, ¡plaintiff avers that defendant is liable for the rental value‘of the auto during a period of ten months, being the time defendant is alleged to have kept and used it. Plaintiff fixes the rental value at $60.00 per month, and accordingly prays for recovery against defendant in the sum of $600.00 with interest from judicial demand.

The suit was dismissed on an exception of no cause of action filed by defendant. Plaintiff appeals.

In the contract of sale the seller must deliver the thing sold, and the buyer must pay the price. C. C. 2475, 2549. If the buyer fails to pay the price he must restore the property purchased to the vendor. This condition underlies all contracts of sale, and is a tacit alternative agreement, which by legal implication, is as binding on the purchaser as if it had been expressly stipulated. If the- property is restored by suit or amicably, there is no avoidance of the contract. On the contrary, it is carried into effect in conformity to the implied obligation of the buyer to pay the price or to restore the thing purchased. In the case of George vs. Lewis, 11 La. Ann. 654, the Court took that view of the question in drawing the distinction which exists between a suit for the rescission of a contract and one for its dissolution under the resolutory condition, citing several French authorities in support of its conclusions. Among the views given by these various commentators it may not be inap.propriate to cite Marcade, who, in his usual clear-cut, vigorous style, says: “La demande en résolution n’est pas precisement une action en rescission du contract. Dan cette demande, en effet, on n’attaque pas la convention, on 1’invoque au con-, traire, et on demande l’execution de la clause expresse ou sous-entendue qui y est insérrée ou reputée inserée.” It is clear from the reasoning of this noted author that the contract is not attacked but is invoked for its enforcement or execution. When a contract is dissolved under the resolutory condition a restitutio integrum must be made. In such a casé the vendor returns the price paid, and the vendee returns the thing with its revenues.

Counsel for ¡plaintiff wishes to assimilate a contract voided for redhibitory defects in the thing sold, to one which has been dissolved under the resolutory condition. In the contract of sale which has been dissolved because of the failure of the vendee to pay the price, he is as before stated, accountable for the revenue of the thing while in his possession. Counsel for plaintiff contends that the vendee, when the contract has been voided for redhibitory defects, is responsible for the rental value of the thing while in his possession. It is on this ground that plaintiff bases its claim for the rental of the auto it is alleged plaintiff company had to receive from defendant under the judgment of this Court. In his brief, counsel for plaintiff, says:

“If a redhibitory action could be maintained only where the article sold was entirely incapable of use, the exception of no cause of action would have to be maintained, but contend it is otherwise, because Article 2520 C. C. allows this form of action also when the use of the article sold is so inconvenient and imperfect that it must be. supposed the buyer would not have purchased it had he known of the vice.”

This being the case here, the contention is, that defendant is liable for $600.00, the alleged rental value of the automobile while in his possession. The very article of the Code on which plaintiff relies, says:

“Redhibition is the avoidance of a sale on account of some, vice or defect, etc.”

. In seeking the avoidance of such a contract it cannot possibly be said that its execution or enforcement is sought or asked. It is the very opposite of a demand for the dissolution of a commutative contract under the resolutory condition, as in such a suit, as hereinabove explained, the contract is not attacked, but its execution is demanded to carry out the obligations of the parties thereunder. In support of their contention that plaintiff is entitled to the rental value claimed, counsel in his brief says:

“One man cannot enrich himself at the expense of another, and that when one man uses another man’s property under circumstances which negative the idea that such use was to be free of charge, the one party can recover such rental value in a suit on a quantum meruit.”

This being a contract of sale, it is obvious that under its terms, defendant was to be the owner of the. thing sold and plaintiff of the money which defendant had paid him for it. The possession of defendant was as owner, and the use of the auto was as such. His possession as owner makes it evident that his use was to be free of charge to the plaintiff. It is inconceivable that defendant could have thought for a moment that he would be charged rent for the use of an auto he' had paid for in good faith and that he was using as proprietor. As to the principle of equity quoted by plaintiff, to the effect that no one should be permitted to enrich himself at the expense of another, it has no application here as defendant had possession of the auto, and plaintiff had the use of the money which defendant had handed over to him as the price therefor. This brings us to the consideration of the case of Farmer vs. Fisk, 11 Rob. 351, where the question involved here was directly passed upon. In that case thq Court said:

“When the sale of a slave, made for cash, is rescinded, the .defendant cannot claim to deduct the value of his services from the price. The interest of the purchase money may be considered equivalent to the services of the slave.”

In this case it must be observed plaintiff alleges that he was paid the price for the. auto, which was therefore a cash sale.

If in the case cited it was found that the interest of the money which the vendor had, was considered an equivalent to the services of the slave the vendee had enjoyed, it must likewise by the same process of reasoning he held in this case, that the interest of the purchase money paid plaintiff, was an equivalent to the use defendant had of the auto. In the above cited case the Court refers to 2 Troplong, Yente, Nos. 571, 572. In the same volume No. 575, this commentator says:

“Quand il n’y a pas mauvaise foi, le vendeur reprend la chose en Petat ou elle se trouve, et l’acheteur recouvre son argent san dommage et interests.”

Where there is no bad faith in the transaction, this author says, the vendor takes the thing back in the condition in which it is, and the buyer recovers his money without damages and interest. There is no bad faith alleged or charged here, and we are of the opinion that plaintiff was entitled to the return of the auto, but has no cause of action for the amount claimed by him as rental for its use by defendant.

It is possible and we believe there is a divergence of views among French Commentators on this subject, but we shall abide with the conclusions of Troplong, as they have been adopted by our Court in Thompson vs. Myene, 11 Rob. 351.

The judgment maintaining the exception of no cause of action is therefore affirmed with costs.


text:
    No.-
    First Circuit
    DUCRE v. BAGUR
    (June 12, 1928. Opinion and Decree.)
    (June 20, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Trespass—Par. 2, 9.
    Where an adjoining land-owner, believing a cabin to be on his land, allows a family to live in it and repairs it, he is not liable for damages for trespass because he believed the cabin belonged to him and improved its condition.
    Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter, Judge.
    Action by Simon Ducre against Jules Bagur.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    Miller and Heintz, of Covington, attorneys for defendant, appellee.
   ELLIOTT, J.

Simon Ducre claims of Jules Bagur 8500.00 damages. He alleges that during his absence defendant entered on his land and committed trespass by illegally and wrongfully taking possession of the same; but the petition does not allege any injury done.

The defendant', Bagur, for answer, alleges that he bought a tract of land adjoining plaintiff. That a colored family asked his permission to occupy a small dilapidated house, which had not been occupied for more than a year, and which he believed at the time was situated on his land. That believing the house was on his land, he consented for them to occupy it. That it was in such bad condition at the time that it was necessary to repair it before it could be occupied. That he furnished the colored family some lumbefor the purpose, and they repaired it, and moved into it. That after they had stayed there about three weeks he received notice from plaintiff that the house belonged to him, upon which he caused the family to move out. That the house was not damaged, but was improved by the family that had occupied it. He prayed for the rejection of plaintiff’s demand and the lower court after hearing the evidence did so.

We are satisfied from the evidence that the defendant, in giving the colored family permission to occupy the house, believed that it was on his land and acted. The house is in fact on plaintiff’s land, hut near the line between his land and that of defendant. It had not been occupied for a year or more and had become almost unfit for human habitation, a rendezvous for goats. The defendant furnished materials and the colored family made it habitable.

A trespass is when a party enters, knowing that he has no right. Defendant’s act, was, therefore, no trespass, because he believed at' the time the house belonged to him. He learned otherwise when he received plaintiff’s notice. The surveyor who had surveyed defendant’s land informed him upon inquiry, that the house was just over the line on the land of the plaintiff, upon which he caused the family that had moved into it, to move out.

The house was not damaged, but was left in better condition than it was when the family went into it.

Since the act of the defendant has not damaged the plaintiff, there is no ground upon which to condemn him to pay damages on account of the occupation of the house.

The judgment appealed from is correct.

Judgment affirmed, plaintiff and appellant to pay the costs in both courts.


author: LECHE, J.

text:
    No.-
    First Circuit
    HUBERT v. ROBICHAUX
    (June 30, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles — Par. 4 (b).
    Where the driver of an automobile is negligent in not stopping and ascertaining if he can cross an important and well-traveled highway before attempting to cross it, his negligence contributed to the accident and bars his recovery of damages.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by Burley Hubert against A. P. Robichaux.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jno. Fred. Odom and Charles A. Battle, of Baton Rouge, attorneys for plaintiff, appellant.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant appellee.
   LECHE, J.

Burley Hubert was driving his automobile south, on Annie Street in Delphine Place, a suburb of Baton Rouge, and when he reached the Jefferson Highway which runs east and west and where Annie Street ends, he kept on across the Jefferson Highway, where his automobile collided with that of defendant. He presently sues defendant for nine hundred twenty-five and 80-100 dollars damages to his automobile and injury to himself. The defense is. substantially that the collision was due entirely to plaintiff’s own negligence and carelessness. The District Judge refused plaintiff’s demand and he has appealed.

Defendant’s automobile, a heavy Studebaker sedan, was being driven by his son. Defendant and. his son occupied the front seat and two ladies ..occupied the rear seat. The whole party was on its way back from New Orleans. The speed at which defendant’s automobile was running when nearing Raton Rouge is entirely a matter of guess work. Defendant says they were traveling at 30 miles; his son says 20 or 25 miles; Pizillo, a witness for plaintiff whose testimony is hardly deserving of credit for the reason that in other essential particulars it is contradicted by all the other witnesses, says 50 or 55 miles; 'another witness says about thirty-five miles. Mr. Coniff, a gentleman of unimpeachable veracity could not give an accurate estimate, but he says that defendant’s automobile was running at an excessive speed. The opinion of this last witness who is disinterested, may be accepted as truthful and it can safely be relied upon for the purpose of determining .the issue in this case.

The accident happened just' outside the limits of the City of Baton Rouge between five and six o’clock on a Sunday afternoon in the latter part of May, 1925. The Jefferson Highway is probably the main road running out of the City of Baton Rouge. It is thickly settled on both sides for a distance of two or three miles outside the city limits. The traffic is unusually heavy and at that particular time between five and six o’clock on- Sunday afternoon, it is generally lined with automobiles going in both directions.

It may therefore be conceded as a fact, considering the time, the place and surrounding circumstances, that defendant’s automobile was, just previous to the collision, being driven so imprudently, negligently and carelessly as to amount almost to recklessness on the part of the chauffeur.

The Jefferson Highway runs east and west. Annie Street runs north and south and at right angle to the Jefferson Highway. ■ It-furnishes a route to enter and to leave Delphine Place, a suburb north of the Jefferson Highway just outside the city limits of Baton Rouge. It opens on the Jefferson Highway, but does not cross it, so that a vehicle coming south upon it must in order to continue moving, be turned either east or west on. reaching the Jefferson Highway.

Plaintiff was alone in an old Studebaker touring car, going as previously stated, south on Annie Street, and when he reached the Jefferson Highway, 'he was traveling very slow. So slow was he moving that the chauffeur of defendant’s car and defendant himself believed he was about' to stop before coming out into the Jefferson Highway. But defendant did not stop. Whether his failure to stop was due to loose brakes, it is impossible to say. Plaintiff’s friend, George Duncan, who used plaintiff’s automobile whenever he wanted, says the brakes were in first class condition. A traffic officer who later examined the brakes, thought they were in proper shape but he admits that his examination was very superficial.

E. Roger Jones, a witness for defendant, says the brake linings were worn out. Be that as it may, the failure of plaintiff to stop and come to a stand-still, before emerging from Annie Street, a side street with very little traffic upon it, into the Jefferson Highway, was an imprudence, ■which under the prevailing conditions along that thoroughfare, amounted to gross negligence and carelessness. Either the plaintiff did not look, and therefore did not see defendant’s automobile which was then about one hundred and fifty feet east of Annie Street, or his brakes did not perform the function for which they were intended. In either event plaintiff was guilty of negligence.

At the time he came out of Annie Street plaintiff intended to go east, he wanted to make a left hand turn, to reach Pizillio’s store and filling station, which is situated about three hundred feet east of Annie Street on the Jefferson Highway. At one time he says he wanted to get water presumably to put in the radiator of his automobile; at another time he says he was going to get some fruit for his children. At any rate he came out slowly on the Jefferson Highway, and acted as though he did not see defendant’s automobile until he was crossing the path of westbound traffic, and then realizing his perilous position, kept straight across with a view of giving defendant a chance to pass behind him.

Defendant’s chauffeur taken by surprise by the action of plaintiff, veered to the left thinking he might get by on the left in time to miss the front of defendant’s automobile, but it was too late. The two automobiles collided nearly at right angle on the south side of the Jefferson Highway, opposite the entrance to Annie Street; the right front of defendant’s automobile struck the left front of that of plaintiff and both automobiles were precipitated by their momentum towards the curbing, that of defendant being stopped by concrete steps in front of the residence of John M. Wilson. Both automobiles were damaged, the plaintiff was painfully but not seriously hurt and one of the ladies in defendant’s automobile was also injured.

Defendant’s chauffeur thought that plaintiff had stopped, .and when he saw that plaintiff was moving into the Jefferson Highway, it was too late for him to stop and he-tried the only logical way to avoid the collision, by steering to the left. All this happened so quickly that there is no ground to apply the last clear chance doctrine advanced by plaintiff in argument.

There is no doubt in our opinion that both plaintiff and defendant were at fault. It matters not how reckless defendant’s chauffeur may have been; this is not a criminal prosecution for violating the traffic laws of the State or of .the Parish of East-Baton Rouge, and this Court is powerless to condemn defendant upon that ground, to pay indemnity to plaintiff unless the plaintiff himsélf were not at fault.

But the plaintiff himself is not free from fault. It is axiomatic that one who is also at. fault may not recover damages for the negligence and carelessness of another. It was the bounden duty of plaintiff when he reached the Jefferson Highway, to stop, look and listen. Ordinary prudence dictates that one who is about to emerge from private premises, from an alleyway or from a little used street into a highway that is literally covered with fast-moving traffic, should be exceedingly cautious. The rule applies most forcibly where the driver of a vehicle wishes to make a left hand turn, for he must first cross that side of the highway upon which the traffic moves towards his right before he can reach the opposite side where the traffic is moving to his left, the direction in which he intends to travel. If plaintiff had actually made a right hand turn, towards the City of Baton Rouge, as Pizillio says the plaintiff did, there is every reason to believe that there would not have been any collision.

Our opinion is that both parties were at fault, and we see no occasion for the application of the last clear chance doctrine.

The District Judge refused to grant plaintiff’s demand and we believe both the facts and the law applicable to the case, warrant his judgment.