author: GLEASON, J. JANVIER, J.

text:
    No. 10,962
    Orleans
    MATHES v. SCHWING ET AL.
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Granted.)
    (April 29, 1929. Opinion and Decree on Rehearing.)

      Eugene Saunders and Irving R.' Saal, of New Orleans, attorneys for plaintiff, appellee.
    J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for defendants, appellants.
   STATEMENT OF THE CASE

GLEASON, J.

ad hoc. The plaintiff herein, father of the minor child, aged about 16 years, sues defendants to recover $25,-000 for the benefit of the said minor, and the sum of $10,451 for the benefit of himself, as a result o.f injuries received by the said minor while alighting from the rear end of a Prytania street car and attempting to cross around the rear thereof to the opposite side of the street. The car was at the time stopped at the near comer of Prytania street and Napoleon avenue and was proceeding in' a downtown direction. It is charged that the defendants, one the owner and the other the operator and agent of the owner, were operating the car at an illegal and excessive rate of speed, and that they violated the traffic ordinances of the city of New Orleans by passing a car when stopped for the purpose of taking on and letting off passengers, and that the said acts were the proximate cause of the injury.

The defense is that the defendants were not guilty of negligence, were not proceeding at an excessive speed; that if the ordinance was violated in so far as passing the street car when stopped is concerned, that the said violation was not the proximate cause of the accident; and, in the alternative, that the plaintiff had himself violated the traffic ordinance of the city of New Orleans, was guilty of contributory negligence, and could not recover.

The case was tried by a jury and there was judgment for plaintiff, for the use of his minor child, in the sum of $5,000 and in the sum of $3,500 for himself, with legal interest from judicial demand. From this judgment defendants appeal.

OPINION

In so far as the plaintiff seeks to recover on the basis of negligence growing out of the rate of speed at which the automobile was traveling, it is qur conclusion that the plaintiff has failed utterly in his proof. The car seems to have been going at a speed of approximately 15 miles an hour, and the distance within which the car was stopped satisfies us that the speed was not at all excessive.

The right of the plaintiff to recover, therefore, resolves itself into a question,as to whether or not there was a violation of the city ordinance by the defendants in passing a car while stopped, and, if so, whether this violation was a proximate cause of the injury, and, if the foregoing be true, whether the plaintiff himself was • not guilty of contributory negligence such as to preclude recovery.

The evidence shows that the minor injured was a passenger on the Prytania street car; that he had procured a transfer to the Napoleon avenue car, and that he alighted from the Prytania car from the rear end thereof at a time when the Prytania car had stopped on its downtown passage to permit the alighting of passengers as it reached Napoleon avenue.

The evidence is not precise as to whether the front of the car stopped exactly at the spot at which it is usual to stop, that is, as the front of the car reaches the property line of the intersecting street, leaving the sidewalk continuation clear for traffic, but we do not deem it of any great importance whether the car stopped exactly at that spot or a few feet beyond or a few feet short. The important fact is that the rear of the car was at least the distance of the car from the front, and, as the cars are over 40 feet in length, this would, under any circumstances, place the plaintiff, when he alighted from the car, considerably on the uptown side of the intersection of Prytania and Napoleon avenue, or way beyond the place where it is usual for pedestrians to cross.

The automobile of defendants was bound uptown. There was some confusion in the testimony as to whether the street car was actually stopped or had begun to move at the time that the defendant’s car passed the intersection of Prytania and Napoleon avenue at the place where pedestrians ordinarily cross. We do not think it makes any difference whether the street car was at a complete stop or had begun to move, because, under the plain terms of subsection “E,” paragraph 10, article 1, section 1, of the traffic ordinance, it is provided:

“No vehicle shall pass a street car while same is stopped or about to stop to take on or let off passengers, except on the following streets,” etc.

This can mean only one thing, in our view, and that is that the purpose of requiring the vehicle to stop is,' as stated in the ordinance, to permit the taking on and letting off of passengers, and this section must be construed with section 4, article 7, which provides: “Pedestrians shall cross streets only at right angles and at street intersections. They shall not cross intersections diagonally”; which to us clearly indicates that it was intended by the restriction in the ordinance prohibiting vehicles from passing the stopped street car to cover the area of the street intersection, because that is the only place that a pedestrian was authorized to pass, and, as the accident occurred at a place comparatively remote from this intersection, the violation of the ordinance as a cause of the accident had ceased entirely to operate.

The violation of a traffic ordinance does not continue as a negligent act ad infinitum. It does not continue to the next block, nor does it continue to the center of the block, nor can it continue to any distance beyond that covered by the mischief sought to be avoided; and clearly, under the terms of the ordinance, the mischief sought to be avoided was the injury to passengers crossing at the street intersection.

Street cars stop either on the near side or far side of streets, depending upon their locality. When they stop on the far side, passengers get off on the rear end, and it is not until the automobile passing it in the opposite direction reaches the rear end that the traffic coming from the car can be seen. As this is the place which the ordinance says the pedestrian should pass, should an oncoming automobile strike a passenger in this location, and, if the passenger were not guilty himself of contributory negligence, the violation of the city ordinance would be one of the proximate causes of the accident. But an entirely different situation prevails where the car stops on the near side of the street, because then the front of the car is the place where the passengers cross the street. In that case, as before stated, the violation ceased to operate when that danger zone had been passed.

The plaintiff and appellee complains that there is no proof as to just where the car stopped. That is true, but the inference from the testimony is very clear that the car stopped about where it usually stopped, and, under any circumstances, the burden of proof was on him to show that he was injured at a place where he had a right to cross the street, and the proof in the record negatives this.

After the injury the minor son of plaintiff admitted to one of the defendants and to Captain Jackson that the injury was not the fault of defendants but his own fault, and plaintiff and appellee urges that this admission should not be construed against him. We grant that the admission, in so far as it admitted legal consequences, can have no effect, and we are not inclined to take literally statements made by a person immediately following an accident and still under the stress of emotions caused by the injury. However, the statements made by the boy at least indicated one thing, and that was that he was conscious of having been precipitate in his action, and this precipitation is the very thing that caused the accident.

The surrounding circumstances would indicate that the boy, who had a transfer, was in a hurry to catch the Napoleon avenue car, and that he rushed hastily from the rear of the car without stopping to look or listen before he crossed the street to the opposite side. He, however, denies this and holds that he stepped out only one step and was then struck by the automobile. Under any view of the case, it is evident that he was precipitate, and, whether he ran or walked fast, he certainly suddenly emerged from behind the car and stepped into the side of the automobile, and it was as a result of this that he was injured.

The appellant construes the ordinance regulating the passing of cars to relate only to automobiles passing the street car from the rear. We are unable to agree with this view, but we do hold that the violation of the ordinance in passing the street car while stopped to take on or leave off passengers is only operative as negligence per se up to and until the operator of the automobile passes the street intersection, and not beyond, and that a person injured in another section of the street must recover not because of that violation of the traffic ordinance, but because of some other and independent act of negligence.

Plaintiff and appellee contends most strenuously that young Mathes had a right, after alighting from the car, to go to either side of the street. This is true only in the respect that he had to first go to the sidewalk to the right of the street car and then walk to the intersection and cross at the intersection, and not behind the car at a point remote from the corner or intersection. Even if at the intersection, he was obligated, if the car was still there, to see that the way was clear before venturing to cross the street.

Paragraph C of section 7, which reads as follows, “When alighting from street cars, pedestrians should be sure the way is clear before crossing behind the car,” relates to cars stopped on the far side of the street, where the alighting would be on the line where the ordinance provides that the pedestrian should cross the street, that is, at the street intersection, and even then he is obligated to look before crossing, because this subdivision must be read in conjunction with section 4, which fixes precisely where he should cross.

Counsel for plaintiff and appellee quote the case of Jones v. New Orleans Ry. & Light Co., 123 La. 1060, 49 So. 70.6, as being decisive of this case. We are unable to see wherein it helps the plaintiff’s cause at all. This decision was rendered in 1909, and a decision rendered that long ago stating the proper course of conduct as between pedestrians and vehicles on the streets of a large city may be apposite and correct for the conditions prevailing at that time, but traffic conditions of today are entirely dissimilar to those then prevailing. What would have been a reasonable and measurably safe line of conduct at that time would be indirect suicide today.

In that case, the car had stopped on the far side of the street and the passenger was in the process of crossing to the opposite side of the street. The fact that he was crossing to the opposite side of the street is. the only fact in the Jones case that is in consonance with the facts in this case, but in the Jones case, the plaintiff appeared to be at the street intersection, whereas in this case he was removed therefrom.

Additionally, in the Jones case, the defendant was held liable for the violation of a city ordinance which specifically provided that the electric car coming in the opposite direction should stop for the stated purpose in the ordinance of permitting a passenger to get qn or off the car, and it was a habit and custom, the court held, of people at that time to thereupon proceed at the street intersection to the opposite side of the street. Such a course of conduct today would be mad on the part of an individual who tried it, and would so interfere with traffic as to be impracticable. The tendency today is to speed up traffic, not to impede it.

Additionally, while the Jones ease provided, by the ordinance, for the stoppage of the counter-running car for the purpose of permitting the pedestrian to pass across the street, the present traffic ordinance prohibits the passenger from crossing the street unless he first ascertains whether the road is clear from other traffic, so that the Jones case has no application whatever, as we view it.

The point is also made that the automobile of defendant was too near the car, in violation of that portion of the traffic ordinance which requires the operator of a car to keep as near the right-hand curb as possible, except when passing a car going in the same direction. The defendants say the automobile was in the adjoining street car tracks, as against which the plaintiff contends that, inasmuch as he was struck after making one step, the car must have been closer. We are inclined to accept the statement of the defendants, as they are more likely to be in a position to know where the car was, and, at best, the plaintiff’s position in this respect is based upon assumption. Moreover, the provision of the ordinance in this respect is intended for the facility of vehicular traffic passing in both directions, in order to leave as clear a space to the left as possible. To hold otherwise would be to compel the operator of a vehicle to keep his eye on imaginary lines paralleling the street and to tax him with negligence for mere errors in judgment as to distances from curb. This was never intended by the provision of the ordinance.

Inasmuch as we hold that the defendant has not been guilty of primary negligence, the question of contributory negligence becomes of no moment. However, we might say that the action of the minor son of plaintiff exhibits the clearest and most unmistakable violation of the plainest provisions of the city ordinance regulating his duties, and that his failure to observe the ordinance was the proximate cause of the injury.

The judgment of the district court is, therefore, annulled, avoided, and reversed, and it is now ordered that plaintiff’s suit be dismissed at his cost in both courts.

ON REHEARING

JANVIER, J.

The facts of this case are fully stated in the original opinion and it is unnecessary to repeat them here.

The rehearing was granted because we desired a fuller discussion of the question of the protection afforded by the traffic ordinance (to-wit, No. 7490 Commission Council series) to a person not on the usual crossing, but emerging from behind a street car, and at a point 40 or 50 feet nearer the center of the square than the usual pedestrian walk-way across the street.

In the original opinion it was held that portion of the ordinance (subsection (e) of article 1 of section 1) which prohibits vehicles from passing street cars, when stopped or about tq stop to take on or let off passengers, has no application and affords no protection to a pedestrian elsewhere than at the usual alighting place, or on the usual pedestrian walk-way.

Plaintiff now urges us to hold that the subsection to which we have just referred, instead of affording protection only to such pedestrians as are at the points mentioned by us, creates a danger zone which extends a reasonable distance beyond both ends of the car, and that all persons within this zone may assume that no car will enter and that such persons may rely on this assumption and need take no precautions whatever for their own safety.

Such a construction would be reasonable if the ordinance contained only those provisions relating to the other vehicles which are prohibited from entering such a danger zone, but it will not do to consider only those portions of the ordinance which are favorable to plaintiff, nor can we look at the ordinance section by section, or piecemeal. It must be interpreted as a whole and we cannot give to one section a meaning which would nullify another. To interpret that section as is contended for by plaintiff would render meaningless paragraph (e) of Section 7, which provides:

“When alighting from street cars, pedestrians should be sure the way is clear before crossing behind the car.”

Plaintiff contends that the use of the word “should” in paragraph (e) of section 7 deprives this paragraph of any mandatory effect and makes out o,f it a mere declaration of a rule of safe conduct. Conceding that there is a distinction between, the use of the word “shall” and the use of the word “should”' — and it seems to us that some distinction was intended — the fact that such a provision is included in the ordinance evidences an intention of the framers thereof that, even with the inclusion in the ordinance of the prohibition against vehicles entering the danger zone, pedestrians should not be relieved from all duty to exercise care.

It is quite evident that whether paragraph (c) of section 7 is mandatory, or is merely declaratory of a rule of safe conduct, it was grossly violated by young Mathes who, without an instant’s hesitation, or even a glance into the direction from which danger was approaching, as was said in the original opinion, “suddenly emerged from behind the car and stepped into the side of the automobile.” This court might have said “jumped” into the side of the automobile, because that is what young Mathes testifies he did.

Plaintiff argues that Jones v. N. O. Ry. & Light Co., 123 La. 1060, 49 So. 706, is directly in point here and that under the principles announced therein we would be justified in awarding a judgment to plaintiff.

We do not think so, as we do not think that the Jones case is controlling here, because the ordinance which was invoked in that case did not contain a provision similar to that in the ordinance in question here and which provision requires persons passing around the back of street cars to look out for their own safety. In other words, if the ordinance in question here had merely contained the provision first referred to, to the effect that vehicles should not pass standing street cars, on this feature the Jones case might have been in point, but in the case now before us the ordinance contains not only that provision, but also the further provision that persons passing behind street cars should exercise care.

We think that the case of Shelly v. Waguespack, 156 La. 258, 100 So. 417, is much more nearly in point. In. the Shelly case no ordinance was referred to as governing the actions either of the driver of the automobile or of the person crossing the street, and the court held that Mrs. Shelly was negligent in emerging from behind the street car without looking out for her own safety and in going into the path of the approaching automobile. As the court in that case, said:

“While a person driving an automobile is required to exercise the greatest caution and prudence when passing street crossings used by pedestrians, a like duty devolves upon a pedestrian.”

It seems to us that, although the purpose of the framers of the present traffic ordinance was to require that the automobile driver should not pass a standing street car, yet they did not intend to entirely relieve the pedestrian of f the duty of exercising care. It seems, then, that although the defendants were negligent in entering the danger zone — and in passing let us say that we adhere to our former opinion and do not believe that they were operating the car at an excessive rate of speed — such negligence would not authorize us to award damages if young Mathes himself violated either the mandatory or directory provisions of the ordinance, and if this violation contributed proximately to the unfortunate result. It is quite evident that had young Mathes followed the provisions of the ordinance to which we have referred he would have seen the automobile approaching and would not have stepped out from his position of safety.

A most interesting case, involving facts identical with those presented here is found in Day v. Cunningham, 133 Atl. 855.

The only difference as to facts between that case and the case before us is that there there was no statute or ordinance applicable, whereas here the duties of each of the parties were specifically prescribed by ordinance. In that case the court held defendant liable, but said:

“Nor is the defense of contributory negligence established.' A pedestrian about to cross a road, or, as in the present case, to walk from a street car to the sidewalk, is not as a matter of law bound to look and listen. Shaw vs. Bolton, 122 Me. 234, 119 A. 801.”

With us the contrary is true, for even without the ordinance it is held to be negligence to go into a place of known or obvious danger without looking, although the danger results only from the fact that the other party has violated its obligation to the public. Gibbons v. N. O. Terminal Co., 1 La. App. 371.

It is contended that young Mathes should not be held to the same high degree of care which should be required of a fullgrown person, and as authority for this contention plaintiff’s attorney cites Shally v. N. O. Public Service, Inc., et al., 1 La. App. 770. The evidence convinces us that young Mathes was a bright, energetic young fellow in the full possession of his faculties, and that it was negligence for him to do what he did do in this case, and that his age and experience were such that his actions can be held to constitute contributory negligence.

Counsel for plaintiff argues most ingeniously that section 4 of the ordinance referred to has no application here because that section prohibits pedestrians from crossing streets except at street intersections, or diagonally, whereas, argues counsel, young Mathes was not crossing the street but was merely going from a point in the street to the sidewalk.

Whether, strictly speaking, Mathes was crossing the street or not is of little importance, because it was plainly the intention of the framers of the ordinance to prohibit pedestrians from being in the street elsewhere than at street intersections, and it seems to us to be splitting hairs to say that a person is not.engaged in crossing a street merely because be has not traversed the entire street from curb to curb. Suppose he had alighted from an automobile instead of from a street car. Could it be argued that he was not in the street in violation of section 4 of the ordinance? We think not.

Furthermore, sub-paragraph (c) of section 7 of the ordinance applies the word “cross” to the very thing young Mathes was doing. This sub-paragraph provides:

“When alighting from street cars, pedestrians should be sure the way is clear before crossing behind the car.”

We are therefore of the opinion that, although pedestrians who cross behind street cars at points other than the usual pedestrian walk-way are within the zone protected by the ordinance, they are not, under such circumstances, relieved from the duty of taking ordinary precautions for their own safety.

We realize that the question presented is by no means free from doubt, but we believe that the decisions in Gibbons v. N. O. Terminal Co., supra, and in Shelly v. Waguespack, supra, are authority for the view that, even under the circumstances presented here, persons must exercise some small degree of care.

Were we authorized, under the jurisprudence of Louisiana, to weigh the negligence of the defendants against that of young Mathes, and to award a judgment in accordance with the result shown by the scales, we would have no hesitation in saying that the defendants would suffer as a result of that test, because, in our opinion, their negligence would greatly outweigh that of the young man. However, in this state, in spite of the provision of paragraph 13 of article 3556, Civil Code, the doctrine of comparative negligence is not recognized. Rice v. Crescent City R. Co., 51 La. Ann. 108, 24 So. 791; Belle Alliance Co. v. Texas, etc., R. Co., 125 La. 777, 51 So. 846.

In several cases, notably Legendre v. Consumers Seltzer and Mineral Water Mfg. Co., 147 La. 122, 84 So. 517, the Supreme Court, in discussing situations very similar to that presented here, has held that the negligence of the injured party in stepping into the street in the path of approaching danger, was of sufficient gravity to prevent recovery. Such negligence, then, must have fallen either within the first or the second class set forth in the codal paragraph above referred to. If it fell in the first class and was gross, it would, of course, prevent recovery. Even if it fell in the second class and could be graded as “slight” it would still prevent recovery, and it is only if it could be placed in the third class and graded as very slight that it would, in the language of the code, be excusable and would incur no responsibility.

Being of the view that the negligence of young Mathes, although not so great as that of the defendants, cannot be placed in the third class and graded as very slight, we are forced to the conclusion that it was of sufficient gravity to constitute contributory negligence and thus to prevent recovery.

It is therefore ordered, adjudged, and decreed that the decree originally rendered by this court be and it is reinstated, and accordingly it is now ordered that the judgment of the district .court be annulled, avoided, and reversed, and that plaintiff’s suit be dismissed at his cost in both courts.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 4256
    Second Circuit
    LESLY v. WYATT LUMBER CO.
    (April 5, 1932. Opinion and Decree.)
    Argued before DREW, McGREGOR and PALMER, JJ.
    Boone & Boone, of Many, attorneys for plaintiff, appellant.
    Ponder & Ponder, of Many, attorneys for defendant, appellee.
   McGREGOR, J.

This is a suit in which the plaintiff is seeking compensation for the alleged breaking of a bone in his left ankle on May 28, 1931, while in the employ of the defendant. In his petition he alleges permanent, total disability and prays for compensation for a period not exceeding 400 weeks.

In its answer the defendant admits that plaintiff suffered a slight injury to his leg and that it paid him compensation therefor during a period of four weeks. It alleges, however, that he fully recovered from this injury during the four weeks while compensation was being paid to him and that he was discharged as cured by his physician. Defendant specially alleges that the plaintiff is malingering for the purpose of receiving compensation instead of earning wages on the same job that he held before his accident in which he received a slight injury. The lower court rejected the demand of the plaintiff and dismissed his suit, and he has appealed.

Plaintiff’s demand is based solely on his allegation that a bone in his left ankle was broken. All the testimony introduced on both sides, including an x-ray picture, is conclusive of the fact that there was never any semblance of a broken bone in or about plaintiff’s ankle. Dr. Allen, a witness for the plaintiff and one of the physicians who treated him when he was first injured, testified that when he was treating him there was no injury whatever affecting the ankle; that the injury he treated was above the ankle. He based this opinion upon a careful x-ray examination in which he found no suggestion of any injury to the ankle. And yet, on the trial plaintiff appeared to be suffering from a swollen ankle, about three inches lower than the spot that received the injury in the first instance. Dr. Allen is of the opinion that there is no connection between the original injury and the swollen condition that was manifest on the day of the trial. This kind of testimony from plaintiff’s own medical expert is very persuasive.

Dr. Perkins, a witness for the defendant, treated the plaintiff in cooperation with Dr. Allen. It is his testimony that there were no broken bones and no injury to the ankle; that the injury he treated was a lick or bruise on the side of his leg about three inches above the ankle. He is positive that there were no broken bones in the ankle and is equally positive that there was no injury whatever to the ankle.

In view of the fact that both these physicians who treated the plaintiff at the time of the injury considered him well at the time of his discharge, and both testify that the condition of the ankle exhibited at the trial was in a different place from and had no connection with the original injury, and in view of the further fact that plaintiff is flatly contradicted in his allegation that there was a broken bone either in his leg or ankle, the trial judge evidently concluded that the swollen condition qf the ankle was not caused by the accident in which plaintiff received the injury for which he was treated by the two physicians who testified on the trial of the case.

This case falls in the category of cases which hold that when the testimony is close or uncertain and there is no manifest error in the judgment of the lower court, the findings of fact by the trial judge will not be disturbed on appeal. For these reasons the judgment appealed from is affirmed, with all costs to be paid by the plaintiff, appellant.


author: WESTERFIELD, J. PER CURIAM.

text:
    No. 13,953
    Orleans
    WIRTH v. POKERT ET AL.
    (March 21, 1932. Opinion and Decree.)
    (April 18, 1932. Rehearing Refused.)

      M. C. Scharff, of New Orleans, attorney for plaintiff, appellee.
    Eraste Vidrine, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff, Mrs. Louise Wirth, was injured as a result of a collision between a Buick touring car, in which she was a passenger, and a Studebaker automobile. She brings this suit against the driver of both vehicles and the owner of the Buick car, claiming $10,000 as damages for physical injuries. The suit as against Langlois, the driver of the Buick car, was abandoned, no service ever having been made upon him.

The lower court awarded plaintiff judgment against Emile Pokert, the driver of the Studebaker automobile, in the sum of $1,000 and dismissed her suit 'as against the other defendant. Plaintiff and Pokert have appealed.

The accident occurred at the intersection of Bourbon and Governor Nicholls streets. The Buick, in which plaintiff was riding, was proceeding down Bourbon street towards Esplanade avenue and the Studebaker along Governor Nicholls street in the direction of the Mississippi river. There is the usual conflicting testimony concerning the speed of the two vehicles. The defendant Pokert, the driver of the Studebaker, was the only occupant of his car and his evidence is to the effect that he entered the intersection very slowly and was unaware of the presence of the Buick until just before the collision, his view being obstructed by the buildings forming the corner of the intersection; that, when the accident was unavoidable, he turned sharply to the left, but was unable to escape contact with the Buick car because of its excessive speed and because its driver made no effort to avoid the accident.

On the other hand, the occupants of the Buick car, which, it is claimed, was being operated as a jitney, all testify that its speed was very moderate and that the accident was caused by the failure of the Studebaker to stop at the intersection as required by the municipal ordinance, Bourbon street being a right of way street and, by the excessive speed of the Studebaker.

The evidence clearly preponderates in favor of the driver of the Buick and we, like the trial court, are of opinion that the fault must be attributed to the driver of the Studebaker. It is said, however, that Mrs. Wirth, who was thrown or fell from the car in which she was a passenger to the pavement, was contributorily negligent in that she was seated on a soap box in the rear tonneau of the open Buick car, from which the side door had been removed. There is considerable doubt as to where Mrs. Wirth was, she, herself, stating that she was seated on the rear seat and not on the soap box and, at least, one witness corroborated this statement, but, be that as it may, and assuming that she was on the soap box and, therefore, in view of the fact that the door was not on the car was more easily precipitated to the pavement, she cannot be held contributorily negligent on that account, for in sitting on the soap box she only assumed such risk as was incident to the ordinary operation of the car which the insecurity of her position imposed and not such as was occasioned by the negligence of the defendant Pokert. Stout v. Lewis et al., 11 La. App. 503, 123 So. 346; Gauvereau v. Checker Cab Co., 14 La. App. 448, 131 So. 590.

Cur conclusion is that the trial court correctly found, the defendant Pokert responsible for the accident.

As to the quantum Dr. Gessner, plaintiff’s physician, testified that Mrs. Wirth suffered contusions of the right shoulder and chest and rather extensive brush burns of the left elbow and right knee and that “the most serious thing she had was a brush burn, because that may permit infection. That brushing away of the top of the slrin or epidermis may allow bacteria to enter and cause severe infection. It did not take place in her case.” Dr. Gessner treated her from August 26, 1930, to September 13, 1930, and examined her again on October 21st, when he testified he found she had completely recovered from the injury and that she was in no' further necessity of medical attention. Mrs. Wirth was 53 years of age and it is said that the shock of the accident was particularly severe on account of her advanced age, but we find no evidence of extraordinary injury resulting from shock. It seems to us that the amount allowed is excessive and it will be reduced to $500.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be and it is amended by reducing the amount awarded plaintiff from the sum of $1,000. to the sum of $500, and as thus amended it is affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our original decree is amended so as to require appellee to pay all costs in this court.

The rehearing is refused.


author: JANVIER, J. PER CURIAM. JANVIER, J.

text:
    No. 11,631
    Orleans
    MATHES v. GAINES
    (April 7, 1930. Opinion and Decree.)
    (May 19, 1930. Rehearing Refused.)
    (June 16, 1930. Opinion and Decree on Petition to Have Judgment Declared Void.)
    (October 20, 1930. Opinion and Decree on Rehearing.)

      Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellee.
    Thomas Gilmore, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a real estate agent, sues for a commission alleged to have been earned when he secured a person ready, able, and willing to purchase, at a satisfactory price, certain property owned by defendant and listed with plaintiff for sale.

Defendant refuses to pay the commission and seeks to justify her refusal on the ground that, when she agreed to sell her property for a price of $10,400, she was induced by plaintiff to believe that the property was undesirable by reason of the fact that it was subject to certain zoning restrictions and that there was no hope of having the restrictions, removed, whereas, at the time, plaintiff knew or ought to have known that the restrictions which interfered with the ready sale of the property were about to be removed and that an immediate material enhancement in value would result.

The prospective purchaser obtained by Mathes, plaintiff here, was one A. T. Terry, Jr. Terry being unable to persuade Fannie Gaines to transfer to him the property in accordance with the agreement to sell, brought suit for specific performance.

As. a defense to that suit, Miss Gaines, defendant there and defendant here, made the same contention which we find presented here and to which we have above referred, namely, that she had been induced by fraud to sign the contract under which she agreed to sell the realty to Terry, and that, since Terry and Mathes were both implicated in the fraudulent misrepresentation which had been made to her and in the fraudulent omission to properly advise her, the contract should be annulled and specific performance should not be ordered.

In that suit (Terry v. Gaines, 168,539 of the docket of the civil district court for the parish of Orleans), judgment was rendered in favor of the defendant, the district judge assigning the following reasons for his judgment:

“Suit for specific performance.
“The defendant answers that the contract to sell was signed in error caused by the failure of her agent to protect her interest, in that he concealed from her, or did not know that the City had unzoned the locality in question, when he knew or should have known that fact. That such concealment or lack of knowledge amounting to fraud enabled another party (the plaintiff) to make an unreasonable profit (on paper) whereby she was ^damaged.
“I am satisfied from the evidence that the defendant would not have signed the agreement to sell if her agent had known or told her what he knew or should have known about the unzoning of the property in the locality described.
“This appears to me to vitiate the transaction and plaintiff’s suit will be dismissed.
“Suit dismissed.’’

No appeal was taken from that judgment, which has now become final.

When the case, now before us, which, as we have stated, involves the question of whether or not the real estate agent is entitled to his commission, came on for trial below, plaintiff, Mathes, the real estate agent, offered evidence to show that .the property had been listed with him; that he had secured a person ready, able, and willing to buy; that the defendant had accepted the offer but had refused to pay the commission. To overcome the effect of this proof on behalf of plaintiff, counsel for defendant offered in evidence the entire record on the matter of Terry v. Gaines, to which we have referred.' To this offer counsel for plaintiff objected on the ground that the evidence sought to be introduced, to-wit, the record in the other case, was “res inter alias acta.” On this objection to the introduction of the other record, the district judge ruled as follows:

“The present suit of Mathes versus Gaines is a suit for a brokerage fee based on a written instrument. The record offered is that of a suit between Terry and Fannie Gaines. Terry, the prospective purchaser-sued for specific performance. Mathes was not a party to that suit and the fact that he was subpoenaed and testified does not make him a party to that suit. It may be in the course of deciding the controversy between Terry and Gaines, Judge Skinner, found facts, which if proven in this case would destroy his alleged right of action, but he is entitled to his day in court and whatever Judge Skinner decided in the suit of Terry versus Gaines is extraneous to this, case, is Res Inter Alias Acta and is totally inadmissible. The objection is sustained.”

Counsel for defendant, upon the refusal of the district judge to permit the introduction of evidence in the other record, rested his case without offering any other evidence.

If the ruling of the trial court was correct, the record in this case, as we now find it, contains, no evidence except that offered in support of plaintiff’s contention. The question therefore presented is: Does the fact that Mathes, plaintiff here, was a witness in the other case, and the fact that the contract which was involved in •the other case was declared a nullity, render the record in the other case admissible here?

We agree with counsel for plaintiff in the statement contained in their brief that “evidence taken in a former case can be offered as evidence only in a suit between the same parties and even then only when the witnesses are not available themselves. In other words, the evidence produced at one trial is secondary evidence if the witnesses themselves are available to testify at the second trial.”

We find this rule approved in Corpus Juris, vol. 22, pp. 427-433, inclusive, and also in the cases cited by counsel for plaintiff, to-wit: Stockmeyer & Co. v. Weidner, 32 La. Ann. 106; New Orleans Railway & Light Co. v. United States Fidelity & Guaranty Co., 145 La. 364, 82 So. 372; Succession of Derigny, 128 La. 859, 55 So. 552; Brown v. Palmer Co., 3 Orl. App. 356; In re Moran, 1 Orl. App. 17.

The district judge was therefore correct in refusing to permit the introduction of the record made up in .the former suit between different parties.

It is very evident, however, that a judgment in favor of plaintiff in this case will have the effect of requiring the defendant, or rather her legal representatives, for she is now dead, to pay Mathes. for services for which no benefit was received and which services, according to the judgment in the other case, if rendered at all, were rendered in a fraudulent or improper manner. And this result will be accomplished, apparently not because the evidence in support of defendant’s contention cannot be produced, but solely because counsel has- chosen to allow his client’s case to stand or fall on his opinion that the former record should have been admitted.

We deem it proper in the interest of justice to send the matter back to the district court to the end that an opportunity may be afforded the legal representatives of the defendant to produce such evidence as may be available in support of the contention made, rather than to affirm a judgment which, though probably technically correct, as the record now stands, will manifestly produce an unjust, inequitable result.

That we have this right, we entertain no doubt. Layman, Receiver, v. Sternberg & Stern, 2 Orl. App. 224.

We have been advised orally that the party defendant has died since the transcript was lodged in this court, and we have been told that a motion to make proper parties would be filed.

Inasmuch as we have decided to remand the case for further proceedings below, we see no reason to wait any longer for the making of the necessary parties. We will therefore render this decree and reserve to the parties their rights to file appropriate motions and obtain necessary orders in the district court.

It is therefore ordered, adjudged, and decreed that the judgment herein rendered be annulled, avoided, and reversed, and that this matter be remanded to the district court for further proceedings not inconsistent with the views herein expressed.

ON PETITION TO HAVE JUDGMENT DECLARED VOID

PER CURIAM.

John W. Mathes, plaintiff and appellee, by petition, calls our attention to the alleged nullity of the final decree rendered by us herein resulting from the fact that one of the parties, to-wit, the defendant and appellant, had died prior to the rendering of the decree, with which fact we were already familiar, however, and that therefore a judgment in her favor is a nullity, and that this nullity should be recognized by us and the case should be replaced on our docket for hearing in due course.

We think that the case of Miles v. Reclamation Oil Producing Association, 3 La. App. 746, and the cases therein cited, are authority for this action on our part.

It is therefore ordered that the, decree rendered by us, remanding this matter to the district court, be recalled, and that this ease be set for hearing in this court in due course, as though no action had been taken heretofore by us.

ON REHEARING

JANVIER, J.

A careful reconsideration of this matter convinces us of the correctness of our original opinion, 127 So. 408, 129 So. 200, which was to the effect that there was no evidence before the district court, or before us, to sustain the contention of the defendant that the contract for the sale of the real estate in question was obtained through fraudulent representations, or through fraudulent failure to disclose facts known to the agent. In our original decree we came to this conclusion, but felt that the ends of justice required that the matter be remanded to the district court to the end that evidence in support of the suggested defense might be introduced, if available. On reconsideration we are convinced that it would be unfair to remand the matter inasmuch as defendant had every opportunity on the original trial to introduce any evidence available and none was forthcoming. The result of the remanding of the case would be that the appeal bond would be canceled, and, since the defendant has since died, it is possible that a judgment, if rendered against her, or her heirs, later, could not be collected.

By motion of Albert W. Newlin, public administrator for the parish of Orleans, we are advised that the defendant has died since the rendering of the judgment appealed from, and, by appropriate order, the said Newlin, as administrator of the succession of the said Fannie Gaines, has been made party defendant.

It is therefore ordered, adjudged, and decreed that the original decree rendered by us be and it is recalled and annulled, and it is now ordered that the judgment appealed from be amended so as to read against Albert W. Newlin, administrator of the succession of Fannie Gaines and, as thus amended, it is affirmed at the cost of appellant.


author: HIGGINS, J.

text:
    No. 13,495
    Orleans
    GUIDRY ET AL. v. BOARD OF COMRS., LAFOURCHE BASIN LEVEE DIST. ET AL.
    (May 26, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    (August 7, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    J. E. Fleury, of New Orleans, attorney for plaintiffs, appellees.
    Paul Maloney, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

This is a proceeding by mandamus seeking to compel the Honorable L. Robert Rivarde, Judge of the Twenty-fourth judicial district court for .the parish of St. Charles, to grant relator first, the right to bond a preliminary writ of injunction, on the ground that no irreparable injury could result to the plaintiffs but irreparable injury would result to the defendants if the injunction was permitted to remain in effect; and second, to grant relator a suspensive appeal from an interlocutory judgment issuing a preliminary writ of injunction on a rule nisi on May 1, 1930.

The respondent judge justifies his refusal to sign an order giving the defendants the right to bond the preliminary writ of injunction issued on the rule nisi, because irreparable injury will result to the plaintiffs by doing so, whereas the defendants will suffer no irreparable injury by the matter remaining in status quo. He justifies his refusal to sign an order of suspensive appeal on the ground that the judgment complained of was not a final judgment but an interlocutory one, issuing a preliminary writ of injunction on a rule nisi and that under Section 5 of Act 29 of 1924, the trial judge has discretion in allowing or refusing any party enjoined a suspensive appeal from an order or decree granting a preliminary writ of injunction.

The record shows that the plaintiffs as owners in possession of certain real estate and improvements thereon sought and obtained on April 21, 1930, a restraining order and a rule nisi to show cause why a preliminary writ of injunction should not issue, enjoining and restraining the defendants, Dr. Youngs, who claims ownership of the improvements on the real estate, Mr. Cafiero, a contractor engaged by Dr. Youngs to remove the improvements from the plaintiffs’ land to a piece of property that he had rented for that purpose, and the Board of Commissioners of the Lafourche Basin Levee District from removing the improvements from the plaintiffs’ land and placing it on any other land except their own. The rule nisi was issued on April 21, 1930, and returnable on April 30, 1930, at 11 o’clock a. m. Defendants, Dr. Youngs and Mr. Cafiero, filed a rule to show cause why the restraining order should not be dissolved and the plaintiffs condemned to pay the defendants actual damages and attorney’s fees as a result of the illegal issuance of the restraining order. This rule -together with the rule nisi were both tried on April 30, 1930, and resulted in a judgment on May 1, 1930, in favor of the plaintiff making the rule nisi absolute and issuing a preliminary writ of injunction enjoining the defendants from removing the improvements from the plaintiffs’ land to any other land except the plaintiffs’ land and permitting the levee board to remove the building from its present location to the rear part of the plaintiffs’ property in order to construct a new levee.

The defendants, Dr. Youngs and Cafiero, who were the relators in this proceeding, on May 5, 1930, filed a rule returnable on May 8th, for the' plaintiffs to show cause why the preliminary writ of injunction should not he bonded, as irreparable injury would result to the defendants but not to the plaintiffs. The court refused to permit the defendants to bond the injunction.

Defendants on May 13, 1930, then filed a rule to show cause why a suspensive appeal should not be granted. The court refused to grant defendants a suspensive appeal.

We -shall first take up the question of the lower court’s refusal to permit the defendants to bond the preliminary writ of injunction. The evidence shows, and it is not disputed by defendants, that the plaintiffs are the owners of the real estate upon which the building in question is situated. It also appears that the plaintiffs have a certain interest in the building as the result of the defendant, Dr. Youngs, using material belonging to them in the construction of the building on their land; that Dr. Youngs has a certain equity in the building as a result of furnishing additional material and the labor for the construction of the building; that the land on which Dr. Youngs proposes to move the building is not owned by him but rented from a third person and -that the building has been on the property of plaintiffs from the year 1923. R. C. C., arts. 506-7-8.

Under these circumstances it would seem to us that the defendant, Dr. Youngs, would suffer no irreparable injury as a result of the preliminary injunction because if the building is moved on the rear of plaintiffs’ property the defendant, Dr. Youngs, can assert any right that he might have against the plaintiffs with reference to .the building and he will be in the same position as he presently would be in asserting such rights. In other words, the status quo is preserved by the preliminary injunction and does not in any way affect the defendant, Dr. Youngs’ rights, as existing at the present time or as will exist when the building is moved to another portion of plaintiffs’ property.

On the contrary plaintiffs who are in possession of the building would be deprived of possession if the injunction was permitted to be bonded and the building is placed upon the lands of a third person. If defendant, Dr. Youngs, failed to pay the rent, plaintiffs’ rights in the building may be seriously impaired as a result of the lessor’s lien and privilege on the building for the security of the rent of the land.

In any event the judge of the lower court has discretion in granting or refusing an order to dissolve the injunction and permitting it to be bonded and the record does not show that this discretion was abused or arbitrarily exercised. Article 307 of the Code of Practice provides:

“Dissolution of Injunction by Bonding. Whenever the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff, the court may in their discretion dissolve the same, provided the defendant execute his obligation in favor of the plaintiff, with the surety of one good and solvent person residing within the jurisdiction of the court, for such sum as the court may determine, according to the nature of the case, as secui’ity that he will deliver the property in dispute in the same state in which it was at the moment of issuing the injunction, and that he will pay besides to the plaintiff all damages, he may have sustained by this act, if a definite judgment be rendered against him in the suit pending.’’

We, therefore, feel that the first point of relators is not well taken.

We next pass to a consideration of the judge’s refusal to grant a suspensive appeal to the defendants. While relators.’ petition for writ of mandamus alleges that there was a full trial on the merits the record contradicts this allegation. The only judgment rendered by the lower court was on the rule nisi issuing a preliminary writ of injunction. The merits of the controversy as to who was the owner of the building or fixing the respective interest of the parties in the building, if they are joint owners, was not passed upon by the court. We do not find that there was a full hearing on the merits and under the circumstances, defendants were not entitled to a suspensive appeal as a matter of right and, therefore, Act 29 of 1924 is applicable. City of New Orleans v. Canal Bakery & Delicatessen, Inc., 3 La. App. 18 and 789.

Section 5 of Act 29 of 1924 specifically provides that where a preliminary writ of injunction shall have been granted, a devolutive appeal but not a suspensive appeal may be taken as a matter of right from such interlocutory decree provided that the court may, in its discretion, allow to any party enjoined, a suspensive appeal from an order granting a preliminary injunction.

The return of our brother below and the record show that the discretion vested in the trial court was properly exercised under the circumstances. The rights of the defendant, Dr. Youngs, are fully preserved and he may exercise them in proper proceedings whenever he so desires.

For these reasons we are of the opinion that the relators are not entitled to. the relief prayed for.

It is therefore ordered that the writ issued be and it is hereby recalled. All costs to be paid by relators.


text:
    No. 13,990
    Orleans
    JONES v. NEW ORLEANS PUB. SERVICE, INC.
    (April 4, 1932. Opinion and Decree.)
    (April 18, 1932. Rehearing Refused.)
    Jewell A. Sperling, of New Orleans, attorney for plaintiff, appellant.
    Ivy Kittredge, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is an action ex delicto to recover damages for personal injuries claimed to have been sustained on September 24, 1930, at 10:30 o’clock a. m. The petition alleges that plaintiff was. a passenger on the Laurel street car and received a transfer for the Jackson avenue car; that while attempting to board the Jackson avenue car, with one foot on the step and one hand extended for the purpose of catching the handrail, the motorman, without any warning or signal, suddenly started the car causing her to be thrown to the pavement in the street, where she sustained a fracture of the left hip.

Defendant denied that plaintiff was in any way injured through the fault or negligence of its employees and averred that the plaintiff fell from the concrete landing provided for passengers, either by losing her balance or slipping after the car had started.

There was judgment in favor of defendant dismissing plaintiff’s suit and she has appealed.

The record is rather voluminous, there being six witnesses for the plaintiff including herself and eleven witnesses for defendant including the motorman and conductor. The version of the plaintiff and her witnesses as to how the accident occurred is that she had been a passenger on the Laurel street car and had requested and received a transfer to the Jackson avenue car; that she was a woman about 53 years of age and due to illness had to use a crutch and, at the time of the accident, she also had in her arm a bundle; that she stood upon the concrete landing where passengers, are received and discharged at the intersection of Jackson avenue and Annunciation street and when the car approached she walked towards the rear in order to board it; that two white ladies ascended the steps before she did and that after she had placed one foot on the lower step and was reaching for the handle for the purpose of drawing herself up, the motorman, without any signal, started the car causing her to be thrown into the street causing a fracture of her left hip.

The witnesses for defendant testified that they saw plaintiff standing on .the concrete landing which is 10% inches above the street, 54 inches wide and 59% inches, long; that there were two white ladies standing on the platform at the time; that as the car stopped the white ladies were close to the rear door and boarded the car; that the plaintiff was about midway between the front and the rear of the car and started to walk towards the rear door when the conductor closed the door, gave the signal and the car started across the intersection of Annunciation street towards the lake; that the plaintiff in attempting to hurry, either slipped or lost her balance and fell off the concrete platform into the street; that the street car after crossing the intersection stopped upon the motorman and conductor hearing a bystander cry out that some one had been hurt; that plaintiff was taken by tw,o colored men, who were working in the vicinity, and placed on a bench at an oil station on the corner and that from there she was taken to the Charity Hospital in the ambulance. Defendant’s witnesses, five of whom were disinterested parties, all testify that the street car in no way touched the plaintiff or caused her to fall and denied that she was anywhere near the rear door or step at the time she fell.

We have carefully read the record and it is. utterly impossible to reconcile the testimony of plaintiff’s and defendant’s witnesses. If the accident occurred in the manner related by plaintiff and her witnesses she would clearly be entitled to recover. On the other hand, if the version of defendant’s witnesses be accepted as true, then defendant is without fault. It is neither contended nor claimed that there was anything on the concrete platform which would have made plaintiff fall or lose her balance. Plaintiff predicated her whole case on the premature starting of the car while she was in the act of boarding it.

There is the usual conflict in the testimony of the witnesses as to how the accident occurred and who was present at the time, but a thorough reading of the record leaves us convinced that .the preponderance of the evidence is with the defendant showing that it was free from fault. This was the view of the learned trial judge and our conclusions are in accord with his findings.

Por the reasons assigned the judgment appealed from is affirmed.


text:
    No. 14,059
    Orleans
    MONROE v. FIRST NATL. LIFE INS. CO.
    (May 2, 1932. Opinion and Decree.)

      A. H. Reed and Henry J. Wyman, of New Orleans, attorneys for plaintiff, appellee.
    Normann, McMahon & Breekwoldt, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Clem Monroe claims the sum of $84 for twelve weeks’ disability under an insurance policy issued in his favor by the defendant and, also, a penalty for a like amount and $50 additional for attorney’s fees under Act No. 310 of 1910, alleging that the disability was the result of an accident on April 14, 1931.

The defense is that the disability resulted from the intentional act of one James Edwards in wounding plaintiff with a pistol by shooting him in the thigh, which risk is specially excepted from coverage by clause 9 of the conditions of the policy sued upon reading, in part, as follows:

“Disability or death benefits will not be paid * * at any time for disability or death resulting from * * * an intentional act of any person other than the insured. * * *”

There was judgment in favor of plaintiff for the sum of $84 and rejecting his demand for the penalty and attorney’s fees. Defendant has appealed.

It is admitted that plaintiff received his injuries as a result of being shot by James Edwards, who was caught by the plaintiff in the act of stealing phonograph records belonging either to the plaintiff or his employer. It is also conceded that the period of disability for which claim of indemnity is made was twelve weeks.

The plaintiff contends, first, that Edwards shot him unintentionally while trying to shoot one Arthur Baptiste, and, secondly, that at the time of the trouble Edwards was so drunk as to be incapable of forming any rational intent.

It appears to be well settled that the intentional injury clauses usually inserted in health and accident policies are reasonable and, hence, ■ are binding upon the parties to the contract. Couch on Insurance, sec. 1240; Vance on Insurance (2d Ed.) 896; Cooley’s Briefs on Insurance (2d Ed.) vol. 6, 5364.

The law is clear that, when a person is injured by another, who has the intention to injure a third party and not the person injured, the intentional injury clause cannot be successfully interposed as a defense against the injured party claiming the insurance benefit. Couch on Insurance, sec. 1240; Vance on Insurance (2d. Ed.) 897; Cooley’s Briefs on Insurance (2d Ed.) vol. 6, 5370; Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 213 P. 42, 26 A. L. R. 123; General Accident, Fire & Life Assur. Corp. v. Hymes, 77 Okl. 20, 185 P. 1085, 8 A. L. R. 318; National Life Ins. Co. v. Coughlin, 72 Colo. 440, 212 P. 486; Cooper v. National Life Ins. Co., 212 Mo. App. 266, 253 S. W. 465; Newsome v. Travelers Ins. Co., 143 Ga. 785, 85 S. E. 1035.

Defendant concedes that the overwhelming weight of authority is that the intentional injury clause of an accident policy cannot be invoked where the person causing the injury is so insane or drunk as to be incapable of forming any rational intent. Couch on Insurance, sec. 1240; Cooley’s Briefs on Insurance (2d Ed.) vol. 6, 5372; Berger v. Pacific Mut. Life Ins. Co. (C. C.) 88 P. 241; Corley v. Travelers’ Protection Ass’n, 46 C. C. A. 278, 105 E. 854; Marceau v. Travelers’ Ins. Co., 101 Cal. 33S, 35 P. 856, 36 P. 813; Markland v. Clover Leaf Casualty Co. (Mo. App.) 209 S. W. 602; Zimmerman v. Southern Surety Co. (Mo. App.) 241 S. W. 95; Northwestern Society v. Dudley, 27 Ind. App. 327, 61 N. E. 207; Travellers’ Ins. Co. v. Houston, 3 Wilson, Civ. Cas. Ct. App. (Tex.) sec. 429, page 508.

The first question is: Did Edwards intentionally shoot the plaintiff, or unintentionally or accidentally shoot him?

The plaintiff testified that he was employed in a soft drink establishment, and that James Edwards, came into the place about 2 o’clock in the morning, accompanied by some women, and that all the parties were very drunk; that they danced for awhile and then one of the women told him that Edwards was stealing the phonograph records; that he asked Edwards to surrender the records and threatened to call the police if he did not do so; that Edwards drew a knife but plaintiff took it away from him; that Edwards then went into the front room, where Arthur Baptiste was, and said to him: “I am going to kill all three of you --”; that Edwards shot at Baptiste and the bullet came through a curtain into the next room, where plaintiff was, and entered his .thigh, breaking the bone, and that they then took the gun away from Edwards and caused him to be arrested. On cross-examination counsel for the defendant interrogated plaintiff as to his .testimony given in the criminal district court, where Edwards was charged with the crime of shooting plaintiff with intent to murder. He was asked if it was not a fact that he had testified in the criminal district court that, after being informed that Edwards stole the records, he went up to him and took .the records out of his bosom, and that, when Edwards attempted to cut him with a knife, he took it away from him and thereupon Edwards drew his revolver and shot him in the leg. He at first denied that he had made such a statement, but later admitted he had done so, and then counsel for defendant produced a certified copy of the testimony given by the plaintiff in the criminal district court, which flatly contradicts him and impeaches his testimony, and -shows conclusively that Edwards deliberately and intentionally shot plaintiff.

Arthur Baptiste, as a witness for the plaintiff, testified that Edwards shot at him while he was in the front room and the plaintiff was in the adjoining or middle room, and, as the bullet missed him, it went through the curtain and struck plaintiff accidentally. This is in direct contradiction of the testimony given by the plaintiff in the criminal court. Baptiste did not testify in the criminal court because it appears that he moved to another address and .the district attorney’s, office was unable to have him subpoenaed.

Stanley Auston, plaintiff’s witness, testified that he and not the plaintiff owned the soft drink establishment where the shooting occurred, and that plaintiff was merely working for him, which corroborated the plaintiff’s statement made on the trial of this case, but which is in contradiction of plaintiff’s testimony given as a witness in the criminal court, where he stated he owned the place.

John H. Dew, an officer of the defendant company, testified that the plaintiff told him the same story that he told in the criminal district court, when Edwards was tried for shooting the plaintiff. The narration of the occurrence given by plaintiff in the criminal court was clear and to the point and in keeping with usual happenings in such affairs, whereas his testimony on the trial of this case was very indefinite and unimpressive.

We have carefully studied the record and given full consideration to the fact that plaintiff is an illiterate negro, but his testimony in the criminal district court impeaches and contradicts the testimony that he gave in this case, in so many material respects that we feel it cannot be the result of lack of memory, ignorance, or oversight. It is, therefore, our opinion that the plaintiff’s testimony given on the trial in the criminal court, not only effectively impeaches his own testimony and contradicts that of Baptiste, but also affirmatively proves that he was intentionally shot by Edwards. Thompson v. Haubtman, 18 La. App. 119, 137 So. 362; Jones’ Commentaries on Evidence (2d Ed.) vol. 2, 1646, 1647, 1648.

The plaintiff’s contention that Edwards was so drunk as to be incapable of forming any rational intent is without merit, because, while the evidence tends to show that Edwards had been drinking, we are convinced that at the time he shot the plaintiff he fully appreciated what he was doing and was in full possession of his faculties.

Eor the reasons assigned the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of the defendant, dismissing the suit at plaintiff’s cost.


author: WESTERFIELD, J.

text:
    No. 14,071
    Orleans
    MOISE v. NEW ORLEANS PUB. SERVICE, INC., ET AL.
    (March 21, 1932. Opinion and Decree.)
    (April 18, 1932. Rehearing Refused.)

      J. J. Conners and M. C. Scharff, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for New Orleans Public Service, Inc., defendant, appellant.
    Michel Provosty and Charles A. O’Niell, Jr., of New Orleans, attorneys for City of New Orleans, defendant, appellant.
   WESTERFIELD, J.

Mrs. Isabella Bisson brings this suit against the City of- New Orleans and the New Orleans Public Service, Inc., in solido, claiming $15,000 for physical injuries alleged to have been sustained on May 7, 1929, as a result of an accident caused by tripping on a metal gas box, which had been installed by the defendant New Orleans Public Service in the brick sidewalk in St. Andrew street, between Constance and Laurel streets. The liability of the City of New Orleans was predicated upon the fact that the sidewalk adjacent to the metal gas box was in a very bad condition, the bricks for a considerable space adjacent thereto having been removed or destroyed.

The City of New Orleans answered denying that the locality was dangerous and denying that it had either actual or constructive knowledge thereof and, in the alternative, pleaded contributory negligence.

The New Orleans Public Service, Inc., denied that it was in any way negligent and, also pleaded contributory negligence in the alternative.

The gas box, which was about five inches in circumference and fitted with a metal cover, was imbedded in the sidewalk, having been installed about sixty years ago. About thirty years ago the device was found to be qbsolete and was sealed over with concrete and allowed to remain in the sidewalk, the top of the box being on an exact level with the surrounding bricks. Thereafter, in some way the bricks were removed or destroyed with the result that the top of the gas box protruded two and one-quarter inches, the height of the missing bricks, above the level of the depression, the area surrounding the gas box from which the bricks had been removed being about one yard square. There was also another hole or depression in another part of the pavement near the gas box, but not involved in the accident, and only mentioned here to indicate the dilapidated condition. The negligence of the Public Service is alleged to consist in permitting the gas box to remain in the sidewalk after having abandoned the use thereof, and the negligence of the City of New Orleans in that it failed to keep its sidewalk in a safe condition for public use.

The accident occurred at 9:30 at night when the plaintiff, who is a trained nurse, was returning to her home, No. 911 St. Andrew street, the gas box being located in front of the premises 909 St. Andrew or about 21 feet from her front gate. She had been living at that address for about six months prior to the accident and knew of the defective pavement. The light from the street lamps was sufficient to reveal the insecure footing, if it may be so considered. She admits that the light was not bad or, as she puts it, “It wasn’t so bright and it wasn’t so dark. Good enough for you to see.” She explains her fall by saying that she was looking ahead “where I was walking.” Under the circumstances we believe she was guilty of contributory negligence. She had lived within a few feet of the hole in the pavement and the protruding gas box for six months and the pavement had been in that condition all of that time. In addition to the defects in the sidewalk surrounding the gas box there was another hole in the pavement, so that it seems to us impossible for plaintiff to have escaped realization of the character of footing in that vicinity.

She was under no obligation to keep her eyes fastened upon the ground searching for defects, but she was charged with the duty of exercising ordinary care in traversing a locality, the dangers of which were quite obvious and with which she must have been very familiar.

“Generally speaking, unless the attention of the traveler is abstracted by some sufficient cause, his failure to look ahead of him, and discover obvious dangers and defects, will be imputed to him as negligence.” Thompson on Negligence, vol. 5, par. 6241.

“A traveler need not keep his eyes fastened on the ground * * * nor make an active search for defects. * * * At the same time defects may be so obvious that a traveler must see them if he is paying any attention to where he is going, and in such a case, the failure to observe the defect, is generally held to be contributory negligence, on the theory that it is not the act of an ordinarily prudent person.” McQuillan, Municipal Corps., 2nd ed., vol. 7, pp. 268-269.

It is said, however, that she was accustomed to use the opposite side of the street in going to her home and, therefore, was not as familiar as she might have been with the locality adjacent to the gas box. It, however, appears that she had often used the dangerous route and had frequently visited a friend of hers, a Mrs. Fisher, who lived next door to the premises in front of which the gas box was situated, but in any event, if the other route which she was accustomed to use was safe and the one which she used on the night of the accident dangerous, she should have taken the safe route, for where two routes are open to a pedestrian, one with and one without danger, it is negligence to take the dangerous route, particularly at night. Barnes v. City of New Orleans, 4 La. App. 503.

Our conclusion is that plaintiff was guilty of negligence which contributed to her injury, consequently, assuming the defendants to be guilty of the negligence charged in plaintiff’s petition, she could not recover because of familiar principles of law.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the defendants, dismissing plaintiff’s suit.


author: WEBB, J.

text:
    No. 3323
    Second Circuit
    SUCCESSION OF BELL (Opposition of CLARK-MORSE LUMBER CO., INC.)
    (March 12, 1929. Opinion and Decree.)

      James W. Jones, of Natchitoches, attorney for plaintiff, appellant.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellee.
   WEBB, J.

In this matter, Clark-Morse Lumber Company, Inc., appeals from a judgment dismissing an opposition filed by it to the account of the administrator of ■the succession of William Bell. .

Opponents alleged that the deceased was indebted unto it in the sum of $613.61, balance due on an open account, and the evidence offered on the trial established that deceased had an account with the opponent, and extracts from the books, of the company were also offered showing the account, as to which the president of the Clark-Morse Lumber Company stated that the account was correct and the balance shown thereon was due and unpaid, and there was further offered in evidence an answer, which had been filed by the deceased a short time prior to his death in an action brought by the heirs of his. deceased wife for a settlement of the community, in which the deceased alleged that the community was indebted to the Clark-Morse Lumber Company, Incorporated (opponent here), in the sum of $571.50, balance for lumber used in a dwelling house, and the evidence established that the deceased had just before filing the answer, called upon the bookkeeper of the Clark-Morse Lumber Company and obtained from him a statement of his. account with the Clark-Morse Lumber Company stating that he desired to use it in the suit by the heirs of his wife against him.

The account shows that the principal items were for lumber, but the evidence does not show that the lumber charged was used by deceased in constructing a dwelling house, and the evidence of the president of the Clark-Morse Lumber Company shows that he did not keep the books or make the sales of the items shown on the account, and therefore .that he did not have personal knowledge of the sales made to deceased or of the balance due, and in the last analysis the question is whether or not the evidence showing that the deceased had an account with plaintiff on which the principal items were for lumber, considered with the answer filed by the deceased in the suit referred to, and the evidence showing that the deceased had obtained from the Clark-Morse Lumber Company (opponent) a statement of his account, just prior to filing the answer, was sufficient to warrant any judgment against the succession for any amount.

It is, of course, conceded that the answer filed by the deceased in .the suit referred to, in so far as it contained an admission of indebtedness of the deceased to the opponent, was admissible (Well v. Compton, 3 Rob. 171; Vredenburg v. Baton Rouge Sugar Co., 52 La. Ann. 1666, 28 So. 122; Brown Chipley & Co. v. Haigh, 113 La. 563, 37 So. 478; Farley v. Frost-Johnson Lbr. Co., 133 La. 497, 63 So. 122, L. R. A. 1915A, 200, Ann. Cas. 1915C, 717); and the only question is whether the allegation made hy the deceased which was sworn to by him, should be considered as an admission of indebtedness, and, if so, the effect which should be given to it, when considered with the other evidence tending to establish the opponent’s claim.

We are of the opinion that the allegation should be considered as agains.t the succession of the deceased as an admission, and while it is conceded that it would not be conclusive, yet there is not any such indebtedness due by the deceased, or the community of which he was the head and master, and it being shown, as stated, that the deceased did have an account with opponent, and that he had obtained from the bookkeeper a statement of his account just prior to filing the answer for the express purpose of using it to show an indebtedness due by him to the opponent, we are of the opinion that the claim to the amount of $571.50 was established, and the opposition should have been sustained for that amount.

It is therefore ordered that the judgment appealed from be avoided and set aside, and it is now ordered, adjudged, and decreed that the Clark-Morse Lumber Company, Incorporated, have and recover judgment against the succession of William Bell in the sum of $571.50, with legal interest from judicial demand, and all cost of suit, and that the administrator, Clifford Bell, be and is hereby ordered to place opponent, Clark-Morse Lumber Company, on thé final account as a creditor o'f the succession for the amount herein-above stated.


author: REYNOLDS, J.

text:
    No. 3543
    Second Circuit
    JOHN BONURA & CO., INC., v. RAYVILLE FRUIT CO. ET AL.
    (May 8, 1929. Opinion and Decree.)

      Hodge & Barnett, of Rayville, attorneys for plaintiff, appellee.
    Warren Hunt, of .Rayville, attorney for defendants, appellants.
   REYNOLDS, J.

Plaintiff, John Bonura & Co., Inc., sues to recover judgment against defendants, Rayville Fruit Company, a partnership composed of Nick Volchoff, Steve Volchoff and Z. Stainoff, and the partners individually, for $151.54, with legal interest thereon from judicial demand, a balance alleged to be owing and due on open account for merchandise, consisting of fruits and vegetables, sold and delivered by plaintiff to defendants and shipped from New Orleans, La., to Rayville, La.

The defense is that defendants had paid plaintiff for all merchandise purchased, less the following deductions made by them from plaintiff’s bill for the following reasons, namely, $110, as the price of 50 crates of grapes, spoiled when received; $25.14, price of 525 pounds of onions, rotten when received; $6, price of 2 crates of tomatoes, decayed when received; $17.90, price of 895 pounds of rutabagas, rotten when received; $5, overcharge on price of grapes; and $55, overcharge on price of oranges.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendants for the full amount sued for, and the defendants appealed.

OPINION

The deductions of $159.04 made by defendants from plaintiff’s bill for decayed fruits and vegetables cannot be allowed, for the reason that the merchandise was sold f. o. b. New Orleans, and defendants offered no evidence tending to show that the goods were not in good condition when delivered .there.

The evidence shows that the merchandise was delivered in New Orleans to an agent of defendants there and it does not show that it was not in sound condition then. On the contrary, plaintiff’s evidence shows that the fruits, and vegetables were in sound condition when delivered there, and this evidence finds corroboration in the fact that defendants’ agent there received them without protest or complaint as to their condition.

Defendants contend that the fact that the fruits and vegetables were rotten when received at Rayville is. evidence that they were not in good condition when delivered in New Orleans; but there is no evidence as to how long the car in which they were transported stood on the track in New Orleans after they were placed therein before the car began its. journey to Ray-ville nor as to the condition of the car as to being properly iced during the journey. There is some evidence as to the general custom in respect to loading and icing cars in which fruits or vegetables are loaded, but in our opinion it is insufficient to prove that the cars in which the fruits and vegetables in question were transported were properly loaded or iced.

The defense set up was a special one, and the burden was on defendants to prove that the fruits and vegetables were not in good condition when delivered to them or their agent in New Orleans (Lyons Milling Co. v. Cusimano, 4 La. App. 131), and this, they failed to do.

The evidence shows that, as claimed by defendants, plaintiff overcharged them $60 on 55 boxes of oranges and 10 boxes of grapes; $1 per box on the oranges, and 50 cents a box on the grapes; but the evidence also shows the plaintiff allowed defendants credit on the account for $55 overcharge on the oranges, but it does, not show that plaintiff allowed them credit for the overcharge on the grapes, and therefore defendants are entitled to credit on the account sued on for an additional sum of $5.

It is contended by defendants in answer that, because plaintiff received from them and. retained hnd collected checks sent plaintiff by defendants in payment of its bill, on which checks were noted by defendants ' the credits, claimed and deducted by them from plaintiff’s bill, plaintiff estopped itself to deny that defendants were entitled to such credits and to sue for the amounts so deducted.

However, neither in brief nor argument before this court was this contention pressed, and we therefore assume it was abandoned.

However, we do not think the plea was well founded. Coco v. Moss Co., 4 La. App. 645.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to reduce its amount from $151.54 to $146.54, with legal interest thereon from judicial demand, and that, as amended, the judgment appealed from be affirmed. Plaintiff-appellee to pay the cost of appeal. Defendants-appellants to pay all other costs.


author: DREW, J.

text:
    No. 3911
    Second Circuit
    STATE EX REL. GRIFFIN v. MORGAN
    (November 7, 1930. Opinion and Decree.)

      Dhu Thompson, of Monroe, attorney for plaintiff, appellant.
    Barksdale, Warren & McBride, of Ruston, attorneys for defendant, appellee.
   DREW, J.

Prank E. Morgan, Jr., the holder and owner of a chattel mortgage note in the amount of $553, on which principal amount had been paid $391, leaving a balance due of $162, applied to and obtained from the district judge on order of executory process. The note was. signed by the intervener herein. The order for executory process was signed on April 22, 1930, and on the 5th day of May, 1930, intervener, the maker of the note, obtained from the court a rule directing the said Prank E. Morgan, Jr., to show cause why an injunction should not issue as prayed for.

The petition for the rule nisi alleged that she purchased from Morgan the property he was attempting to execute against, among which was a kelvinator cabinet, coil, and compressor valued at $150, and that she, with two others, signed the chattel mortgage note under which che executory process issued. She alleges false representation by the said Morgan in regard to 'what the kelvinator would do; alleges leakage of the acid used in operating the kelvinator and the destruction of much produce and food by the acid; that said leakage was due' to defects in the machinery of the kelvinator, and in general that the kelvinator did not do what Morgan had represented it would do; and she further alleges that she has fully paid for all other items covered by the chattel mortgage and should be relieved from paying for the kelvinator.

She further alleges numerous items of damage and reconvenes for said damage caused her by said defective kelvinator. She prays for a rule nisi and finally for an injunction enjoining and restraining the sale of the property designated in the chattel mortgage.

Prank E. Morgan, Jr., through counsel, filed an exception of no cause of action and answered the petition of intervener, said answer being practically a general denial of the allegations of the petition.

The rule nisi was tried, after which a plea of prescription was filed. The lower court, in a lengthy written opinion, rejected the demand of intervener for a temporary injunction and dismissed her shit.

On August 14, 1930, intervener applied to this court for a writ of prohibition, mandamus, and certiorari to compel the district judge to grant the preliminary injunction and to order same granted, and in the alternative that a writ of prohibition issue staying and prohibiting the sale of her property by the sheriff of Lincoln parish and prohibiting the said Prank E. Morgan, Jr., from causing to be sold petitioner’s property, as above alleged.

In answer to the rule, the respondent judge reviews .the case by reference to his written opinion and .justifies his action in refusing the injunction on the ground that the exception of no cause of action was good, in that the necessary allegations to support .the suit are not contained in the petition, and on the further ground that the intervener failed to produce the necessary proof to make out her case.

The question that presents itself first is: What supervisory jurisdiction has this court over the district court?

Section 29 of Article 7 of the Constitution of 1921, reads as follows:

“The Court of Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil and prohate, of which the Civil District 'Court for the Parish of Orleans, or the District Courts throughout the State, have exclusive original jurisdiction, regardless of the amount involved, or concurrent jurisdiction exceeding one hundred dollars, exclusive of interest, and of which the Supreme Court is not given jurisdiction, except as otherwise provided in this Constitution, and all appeals shall he both upon the law and the facts.”

Section 2 of Article 7 of the Constitution of 1921 reads as follows:

“The Supreme Court, the Courts of Appeal, and each of the judges thereof, suoject to review by the court of which he is a member, and each district judge throughout the state including judges of the Civil and Criminal District Courts in the Parish of Orleans, may issue writs of habeas cor-' pus, in behalf of any person in actual custody in cases within their respective jurisdictions; and may also, in aid of their respective jurisdictions, original, appellate, or supervisory, issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs, orders and process, and where any of said writs are refused, the appellate courts shall indicate the reasons therefor.”

The Supreme Court of this state, in the case of Riccobono v. Kearney, reported in the 164 La. 844, 114 So. 707, 708, in interpreting these articles of the Constitution, said:

“From the foregoing provisions of the Constitution it appears that the Court of Appeal for the Parish of Orleans has appellate jurisdiction only, with the exception of the right to issue the writ of habeas, corpus, and the right to issue in aid of its jurisdiction, which is appellate only, save as here stated, writs of mandamus, certiorari, prohibition, and other needful orders and process.”

This decision clearly holds that the supervisory jurisdiction of this court is only in aid of its appellate jurisdiction.

In the case of Wall et al. v. Tangipahoa School Board, reported in 9 La. App. 178, 119 So. 371, the Court of Appeal for the First Circuit of Louisiana held:

“It is only in aid of the appellate jurisdiction of the Court of Appeal that it can issue writs of prohibition, certiorari or mandamus. Where petition shows that no appeal is or will be asked for, the Court of Appeal will not issue a writ.”

In the case before us the law forbids a suspensive appeal, and it is admitted that a devolutive appeal would be useless, as it would no.t prevent the sale of the property. Therefore, if any relief is to be given, it must be given under our supervisory jurisdiction, and we have no supervisory jurisdiction other than in aid of our appellate jurisdiction.

The Court of Appeal for the First Circuit again held in the case of State ex rel. Truxillo v. Gilbert, District Judge, et al., 128 So. 204, as follows:

“Court of Appeal has power to issue writs of prohibition, certiorari, and mandamus, only in aid of appellate jurisdiction.
“Court of Appeal cannot, by mandamus, compel district judge to grant injunction pendente lite .to prevent sale under executory process, there being no appeal (Injunction Law, Act No. 29 of 1924).’’

In the case of Paul v. Tabony, 157 La. 400, 102 So. 503, the Supreme Court of this state said:

“This is a mandamus, proceeding to compel the judge of the civil district court .to grant an appeal from an order dissolving a temporary restraining order and refusing to issue a writ of injunction.
“The purpose for which the injunction was sought was to restrain the execution of a judgment for a sum less, than $2,000. The case is therefore within the appellate jurisdiction of the Court of Appeal, not of this court. Relator, therefore, asks that we order the judge to grant the appeal to the Court of Appeal. Our answer is that the petition for mandainus should be addressed to the Court of Appeal. That court has authority ,to issue writs of certiorari and mandamus in aid of its appellate jurisdiction. See section 2 of article 7 of the Constitution. Under section 10 of the same article of the Constitution, .the Supreme Court has control and general supervision over all inferior courts, even in cases of which another court has. appellate jurisdiction. But we do not exercise such jurisdiction when the relief sought is directly in aid of .the appellate jurisdiction of another court, as, for example, when the complainant undertakes to compel the court of original jurisdiction to grant an appeal or to fix an appeal bond.”

Under the Constitution of the state and .the interpretation of same by the above decisions, we are clearly without authority to grant the relief prayed for by relator.

It is therefore ordered, adjudged, and decreed that the writs of prohibition, mandamus, and certiorari ordered issued by this court on August 14, 1930, are recalled; costs to be paid by relator.


text:
    No. 4112
    Second Circuit (Second Division)
    REX ELECTRIC CO., INC., v. GLORIOSO
    (March 16, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)

      Wilson & Abramson, of Shreveport, attorneys. for plaintiff, appellee.
    John B. Hussey, Jr., of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff alleged that defendant was indebted unto it in the sum of $145, together with 5 per cent per annum interest from June 18, 1930, until paid, for this, to-wit:

That in April, 1930, the defendant contracted with L. L. Davidson to make. certain repairs, and improvements on property owned by defendant in Bossier parish, La.; that L. L. Davidson subcontracted the electrical work to petitioner, in connection with which petitioner furnished materials and performed work between the dates of April 17 and June 18, 1930, and that the contract price for said work was $145.

It further alleged that it had recorded in the mortgage records of Bossier parish, on July 24, 1930, an affidavit of its claim, and sent a copy of same to defendant by registered mail, and by virtue of its said act it claims a lien and privilege on the property of defendant, in addition to a personal judgment. It attached to the petition a certified copy of deed to defendant of the property on which the repairs- and improvements were made, together with a statement of the claim alleged to be due.

Defendant filed an exception of lis pen-dens, alleging that a suit against L. L. Davidson for the identical bill sued on herein was pending in the courts of Caddo parish. This exception was overruled, and is not now urged in this, court.

Defendant answered, admitting that hentered into a contract with L. L. Davidson to make certain improvements on his property in Bossier parish, and that Davidson subcontracted the electrical work to plaintiff. He denies that plaintiff performed any work or furnisTied any material under said subcontract after May 3, 1930. He admits the filing of an affidavit of its claim by plaintiff in the mortgage records, of Bossier parish, La.

In reconvention, he alleged that plaintiff did not serve upon defendant, by registered mail or personal service, a sworn detailed itemized statement of his claim, that the affidavit filed in the mortgage records of Bossier parish was not filed within the delay provided by law and is therefore null and void, in so far as affecting a lien and privilege on defendant’s property, and should be canceled. He prays for $50 attorney’s fees for having said lien canceled.

On these issues the case was tried below resulting in judgment for plaintiff against defendant for $145, with interest as prayed for, and rejecting the demands, of plaintiff for recognition of a lien and privilege on the property, and ordering the inscription of the account and affidavit erased from the mortgage records of Bossier parish'. Prom this judgment, plaintiff prosecutes this appeal, praying that ,the judgment be amended by recognizing its lien and privilege.

In this court the defendant has filed an exception of no cause of action, based on the ground that plaintiff has neither alleged nor proved that the amount sued for was the reasonable value of the labor and materials alleged to have been done and furnished. Plaintiff recorded in the mortgage records of Bossier parish a sworn itemized statement of materials furnished and labor performed on a combination store and dwelling house of defendant, on July 24, 1930, and sent by registered mail to defendant a sworn itemized statement as recorded, and defendant received same.

There is no dispute over the amount of the contract price between L. L. Davidson and plaintiff, and it is admitted that plaintiff furnished the necessary materials and performed the work as claimed. There was no written contract between defendant and Davidson and no contract was recorded.

The record discloses that on and prior to May 3, 1930, plaintiff wired the building and did nothing else until June 17th and 18th, on which days it tested the job and found the wiring defective. One of its employees worked there on June 17th and another on June 18th, at which time all errors and mistakes were straightened out. It was impossible to test the work at a sooner date, due to the fact that the electric company did not connect up with the house and place a meter therein until the 16th or 17th of June, 1930. The testimony shows that the job was not complete until the test was made and that no job of this kind is complete until a .test is made and the lights burn. The reason for that is 'amply shown by the facts in this ease.

When the electric current was connected and the test made, it was found .that some of the lights would burn and others would not, and plaintiff was required to tear out part of its work and replace it. This inspection or test made on June 17th and 18th was pursuant to the original plans and agreement, and there was no last performance of all service or labor on the job, as respecting time, for recording a sworn itemized statement, under Act No. 298 of 1926, sec. 12, until after the test was made and the lights made to burn. The contract plaintiff made with Davidson was not completely fulfilled until such time, and a suit by plaintiff on said contract before the test was made could have been successfully defended on that ground. Shreveport Long Leaf Lbr. Co., Inc., v. Spurlock, 9 La. App. 224, 120 So. 128; Cox et al. v. Rockhold (Gable, Intervener), 14 La. App. 170, 128 So. 702.

The sworn itemized statement recorded on July 24, 1930, in the mortgage records of Bossier parish, was within the time provided by law, and plaintiff is entitled to recognition of its lien and privilege on the property of defendant, as prayed for.

Defendant relies on the cases of Hortman-Salmen Co., Inc., v. White, 168 La. 1067, 123 So. 715, and Northrop v. Guy, 172 La. 543, 134 So. 738, to sustain his defense. However, we do not think the cases applicable .to the facts in this case. Defendant further questioned the constitutionality of Act 298 of 1926. His attack, however, is leveled at the finding of the district court that plaintiff did not have a lien and privilege, and then rendering a personal judgment against defendant. Under our holding that the sworn itemized statement was recorded within sixty days from the time of the last performance of labor or service, it becomes unnecessary to discuss the question of unconstitutionality raised. Likewise it is unnecessary to discuss the exception of no cause of action filed in this court, which is overruled.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court, in so far as it refused to recognize the lien and privilege of plaintiff against the property of . defendant, is reversed; and the judgment of the lower court is now recast to read as follows;

It is ordered, adjudged, and decreed that plaintiff have and recover judgment against the defendant, Joe Glorioso, in the full sum of $145, with legal interest thereon from June 18, 1930, until paid, recognizing plaintiff’s lien and privilege on the following described property of defendant, situated in Bossier parish, La., to-wit;

“A certain one-acre tract of land, in Sections 22 and 27, Township 18 N., Range 13 West, Bossier Parish, Louisiana, more particularly described as follows;
“Beginning 496.76 feet west and 40 feet south of the common corner of Sections 22, 23, 26 and 27, Township 18 N., Range 13 West; run thence north 17 degrees 30 minutes, west 208.71 feet, north 72 degrees 30 minutes, east 208.71 feet; south 17 degrees 30 minutes, east 208.71 feet; south 72 degrees 30 minutes west, 208.71 feet to place of beginning and being part of Sections 22 and 27, Township 18 N., Range 13 West, Bossier Parish, La.
“Also one acre of land, more particularly described as:
“Beginning 822.8 feet west and 419.95 feet south of Common corner to Sections 22, 23, 26 and 27, Township 18 N., Range 13 west, Bossier Parish, La., run thence North 67 degrees 42 minutes, west 83.16 feet;, thence North 12 degrees 21 minutes, east 264.00 feet; thence South 83 degrees 39 minutes east, 260.04 feet; thence South 52 degrees 29 minutes west, 92.40 feet; .thence South 44 degrees 23 minutes west, 132.00 feet; thence South 33 degrees 32 minutes West, 132.00 feet; to „ place of beginning and being part of Section 27, Township 18 N., Range 13 West, Bossier Parish, La„ and lying and being situated in .the forks of the Dixie Highway, and another road leading into said Dixie Highway, from the Benton. Highway” — and for all costs.