text:
    No. 792
    First Circuit
    NONA MILLS CO., LTD., v. JACKSON ET AL.
    (June 16, 1931. Opinion and Decree.)
    Thompson & Ferguson, of Leesville,- attorneys for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendants, appellants.
   LeBLANC, J.

Plaintiff instituted this suit against Floyd W. Jackson for having trespassed upon some of its lands in Vernon parish and having tortiously and without its consent cut and removed therefrom, either by himself or through his agents or employees for whose acts he is responsible, 136,153 feet of timber and 11,244 feet of piling. They charge him with being in bad faith, and their demand is for the value of the timber and piling, which they fix at $10 per thousand feet for the timber and 1% cents per foot for the piling. Together the two items would make a total amount of $1,530.19, but as plaintiff admits having received the sum of $168.58 on account, judgment is prayed for in the sum-of $1,361.61.

The testimony shows that the amount for which credit is given represents the value of the piling alleged to have been removed, and it appears to have been paid by the parties to whom it was sold. That item is therefore no longer involved in the suit.

In a supplemental petition filed shortly after the suit was instituted, plaintiff alleges that the 136,153 feet of timber had been sold to one Isaac F. Temple and to H. B. Curry & Co., Inc., and that, as their purchase of same constituted them joint trespassers with the defendant Jackson, judgment is asked for against them as well as against Jackson, in solido, for the full amount prayed for in the original petition.

The defendant Jackson in his answer justifies his action in going upon plaintiff’s land by alleging that he had purchased of the- White-Grandin Lumber Company all of the timber owned in fee-simple title north of the Calcasieu river in Vernon parish on the lands formerly owned by the W. R. Pickering Lumber Company; that before going upon the lands described in plaintiff’s petition he knew that they had been cat over by the Pickering Lumber Company, and in good faith believed that they were some of those involved in his purchase of timber from the White-Grandin Lumber Company. He alleges, further, that he did not go upon these lands before consulting the president of the plaintiff company to make sure that there would be no mistake about the matter, and, upon being advised they did not claim the timber, he cut and removed therefrom 2,783 feet which he sold to H. B. Curry & Co., netting him $4.50 per thousand. feet, and 62.000 feet to Isaac F. Temple, which brought him the same amount. He avers further that the timber was of an inferior grade, and admits a liability of $275 as the value he received for it. This amount, plus the sum of $31.15 for costs incurred up to date, he tenders to the plaintiff in full .settlement of the demand made against him.

Defendant Temple admits having purchased, in good faith, of Floyd W. Jackson, 60.000 feet of timber, for which he paid him the price of $13 per thousand, which included the cutting, skidding, loading, and hauling besides the stumpage .value.

Defendant H.. B. Curry & Co. admits its purchase, in good faith, of 2,783 feet of timber from Jackson, for which it paid him the sum of $4 per thousand feet for the timber and the additional sum of $3 per thousand feet for skidding and loading same on its trucks.

All three defendants filed pleas of twelve months’ prescription, which upon trial of the ease were referred to the merits. As the court rendered judgment in favor of the plaintiff, the pleas were automatically overruled. The judgment condemned the defendant Jackson to pay the sum..of $1,-099.22 and it also condemned the defendants Temple and Curry & Co., Inc., in solido, with Jackson, to the extent of the amount of the timber they respectively admit having purchased from him. We are informed by brief of counsel that the court placed a value of $8 per thousand feet on the timber. Figured at that value per thousand feet, it would seem that Jackson was condemned in judgment for the full amount of timber alleged to have been cut and removed, although there is evidently an error of $10 made in the computation, as 136,153 feet at $8 per thousand is $1,089.22 insteád of $1,099.22. Temple was condemned to pay the sum of $496 in solido with Jackson, that amount representing 62,000 feet of timber at $8 per thousand, and Curry & Co., Inc., the sum of $22 in solido with Jackson, for 2,783 feet at $8 per thousand. The judgment against Jackson is to be subject to credits for whatever amounts may be paid by Temple and Curry & Co. on the judgment rendered against them in solido with him. Defendants Jackson and Temple have both appealed, and plaintiff has answered, asking that the judgment be amended by increasing the value of the timber to $10 per thousand feet, and that Temple be condemned in solido with Jackson for the full amount of .timber alleged to have been taken.

Counsel for defendants makes no mention of the pleas of prescription filed in their behalf before this court. We take it that he has abandoned them, as it is shown that the suit was instituted within twelve months from the day on which the plaintiff first acquired knowledge of the trespass. They will therefore stand overruled.

As the- ownership of the land is not questioned and the trespass admittéd; tender of the' stumpage value having been made to the plaintiff, the only matter that comes before us for review is 'one of amount and value.

The amount of timber taken was arrived at by a scaling made by Curry Ford, civil engineer and surveyor, with fifteen years’ experience in scaling and estimating timber. With two other men to assist him, he scaled each tree, and his report shows an aggregate of 136,153 feet of timber to have been cut and removed from the plaintiff’s land as described in the petition. Counsel for the appellants attempted in his brief to show that the report is not accurate, because in it is included the piling removed from the land by other parties, and he contends it is impossible for the scaler to have differentiated between the trees that were cut by Jackson and used for logs- and those that were cut by the other parties for piling. He has figured that there were eleven more trees cut for piling than there were for logs, and he argues that the defendants should not be made to pay $1,361.61 for the timber produced from the smaller number of logs, when it is shown that the plaintiff accepted $168.66 for the piling. But it' is shown that there was a difference between the timber that was used for piling and the other. The piling timber is referred to in the testimony as “old field piling,” and the price at which it was settled for would indicate that it was not the same character of timber as the other. Two witnesses Pete Brewer and Yance Hall, who live in the vicinity, both .swear of their own knowledge that, at the time the piling timber was being cut by a man named Cunningham, Floyd Jackson was cutting log timber. We would judge from the testimony of Mr. Ford that he experienced no difficulty in telling the one from the other. In the absence of any other estimate, and in face of Jackson’s refusal to go over the property with .Ford after he had told the latter that he had not taken all the timber he was charged with having cut, we will accept Ford’s scale as showing the correct amount of áaw log timber that was cut and removed from the property.

Defendant Jackson would have it appear that he only cut and' removed 64,783 feet of timber, as that is all that has been accounted for as having been sold by him to Temple and H." B. Curry & Co. But it does not follow that, because that is all he' admits having sold, that is all the timber that was cut and removed from the property. We have accepted Ford’s estimate that there were 136,153 feet cut and removed, and it is shown by the testimony of the two witnesses, Brewer and Hall, that Jackson was the only one who cut the log timber on the property. He virtually admitted to Mr. Ferguson, president of the plaintiff company, that he alone had cut the saw logs and agreed at first to pay for the full amount he was charged with having taken off. We therefore think there is sufficient proof on which to hold him liable for the number of feet as shown in Ford’s scale which we have already accepted as being correct.

Coming now to a consideration of the value of the timber, we find the plaintiff asking' for $10 per thousand feet, the defendant Jackson tendering a stumpage value of $4.50, and the lower court awarding $8 per thousand. The defendant Jackson is charged with being in bad faith. If he was, under the decisions of our Supreme Court, the latest being the case of Leopold v. Bradford-Hutchinson Lumber Co., 172 La. 110, 133 So. 379, he would be liable for the value of the timber manufactured " into lumber, less the costs of manufacture. No such value is asked, nor is any shown in this case. Under the prayer of the petition, the plaintiff is limited to a recovery of. $10 per thousand feet. We do not believe that the defendant Jackson made any strong effort to ascertain whose timber this was. before he went on the property to clt and remove it. Under the evidence as we view it, we are of the opinion that there was bad faith, and the defendants are therefore accountable for a greater value than that tendered by the defendant Floyd W. Jackson.

The surveyor, Ford, who estimated the timber, placed a value of $10 on it, as did Ferguson, the president of the plaintiff company. The latter, however, at one time was willing to accept a proposition in settlement which would have yielded a sum less than $10. C. A. King, of the Weber-King Manufacturing Company, gives a wide range on which to base a value, as he says that “it might be worth anywhere from five to fifteen dollars per thousand.” From the testimony of the defendants’ witnesses, we strike an average of approximately $5.75 per thousand. With all of those figures and estimates before us, we do not think that the trial judge was in error when he placed a valuation of $8 per thousand feet, and we will accept it as our own.

We note that the judgment against Isaac F. Temple is for an amount based on 62,000 feet of timber. His own tabulation, as shown by the adding machine slips offered in evidence, show the exact number of feet admitted by him to have been purchased from Jackson to be 62,726 feet. The difference of 726 feet necessarily makes a difference in the amount he is liable for. Instead of being for the sum of $496, the judgment against him should be $501.80. Because of this difference and also of the error in calculating the amount of the judgment against the defendant Jackson, it will be necessary for us to amend the whole judgment; and it is accordingly now ordered that the judgment appealed from be amended by decreasing the amount which the defendant Floyd W. Jackson is condemned to pay from, the sum of $1,099.66 to the sum of $1,089.66, and by increasing the amount which the defendant Isaac F. Temple is condemned to pay in solido with Floyd W. Jackson, from the sum of $496 to the sum of $501.80, and, as thus amended, the judgment is affirmed.


source: Caselaw Access Project

author: LeBLANC, J. ELLIOTT, J.

license: Public Domain

text:
    No. 745
    First Circuit
    HANNO v. MOTOR FREIGHT LINES, INC.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      M. C. Rownd, of Springville, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   LeBLANC, J.

Plaintiff sues the defendant for damages in the sum of $1,574.50, of which amount $550 is for injuries to his; hand, arm, and leg, and for pain and suffering, and the balance for damages to his automobile, loss of its use, and loss of time in his business.

In his. petition, he recites an accident which occurred through the fault and negligence of the defendant in having left in the roadway one of its large motor-trucks, at night, without any lights either in front or in the rear.

He alleges that he was driving east on the Baton Rouge-Hammond highway bn the night of September 10, 1929, and was about 200 yards east of the town of Holden in the parish of Livingston; that there was another automobile approaching him from the opposite direction, whose driver failed to dim his lights; that he pulled over to the right to give the on-coming car the proper amount of road for them to meet, and, in doing so, he ran into this parked truck of the defendant which had no signal light or warning whatsoever or its presence on the road.

The defendant filed an exception of no right or cause of action, based, as we understand it, on the failure of the plaintiff to have alleged that he was. blinded by the glare of the headlights of the approaching car. Counsel for defendant argues that, if the on-coming car did not have blinding headlights, it was not necessary for the driver to dim them, and if, on the other hand, the allegation made is meant to convey the idea that the headlights were blinding, then it was the duty of plaintiff, under the law, to have his car under such control as to bring it to a complete stop within the distance his headlights illuminated the road in front of him.

We are of the opinion that the question raised under the exception is properly a matter of defense, and, as . the petition shows a cause of action, the ruling of the lower court on the exception was correct.

In its answer, the defendant denies practically all the allegations, of plaintiff’s petition, and charges him with contributory negligence in nine specific instances, all of which summed up, however, amount to the very one presented under the exception of no right or cause of action.

The district judge, without assigning any written reasons, rendered judgment in favor of the plaintiff in the sum of $619.-50, from which the defendant has appealed.

The evidence, we think, shows a clear case of negligence on the part of the driver in charge in having left this large truck, with a trailer behind it, loaded with nearly five tons of freight, on the public highway, at night, without any lights, unguarded, and with no sign whatever of it being there except its own form. The question of negligence in such cases was presented before this court- in two recent cases, and .the act in each instance was severely condemned.’ 'In Futch v. Addison, 12 La. App. 535, 126 So. 590, 591, it was said:

“Leaving on the highway, unguarded and without lights, such a .dangerous menace to everybody using the road after dark, was in violation of Act No. 296 of 1928, sec. 39. It was' also such an act of inexcusable negligence .that defendant’s, liability on account of having left it there is too plain .for argument.”

In Stafford v. Nelson Bros., 15 La. App. 51, 130 So. 234, the defendants were held “inexcusably negligent’’ for having allowed a large excavating machine to stand on, and cover almost one-half of, the highway, at night, without. lights.

From the record in the case before us, we learn that, the defendant’s truck was on its way from Baton Rouge to New Orleans. When it reached this point, about 200 yards east of the town of Holden, something happened to the left rear double wheel, and it fell off. As it was getting late, the driver and the only other occupant of the truck with him decided to jack it up and lay over for the night. It was then getting dark. The driver says that he pulled the truck as far over to the right as he could; that he and his fellow-passenger then turned on the lights, lit a lantern, which was hung on to the rear end of the trailer, and they then went to Holden to telephone to one of the officials of his company to tell him what had happened. When they returned to the truck, it was raining, so they both got under a tarpaulin in the trailer and went to sleep. The testimony shows that it was about 9:30 or 9:45 when the plaintiff’s car ran into them.

There is conflict in the testimony as to the exact location of the truck in relation to the . center, of the road, which it is shown is 27 feet wide at this point. The driver of the truck says that it was 18 or 20 inches from the edge of the road, and plaintiff insists that the right wheels were 9 feet from the edge. If the plaintiff is right, .then the truck had to be almost in the middle of the road. We do not attach as much importance, however, to the precise location of the truck as we do to the question as to whether or not it had lights on it to give warning of its presence.

On this point, wé find the driver, a young man named Bourgeois, and his companion, named Wicker, both swearing that the lights were on. Bourgeois says quite a lot about a lantern light at the tail end of the trailer. It is rather singular that Wicker, whose testimony was. taken by deposition, does not say a word about any lantern. Strange also that the lantern, which was supposed to be attached to the left end of the trailer, 18 inches, from the point of contact in the collision, should, according to Bourgeois, have disappeared completely that night. He speaks of seeing broken glass, but could not find the lantern. To substantiate his story about it, a witness by the name of Beary, an official of the defendant company, .testifies that on the morning following the accident, when he appeared at the scene, he looked for the lantern, and, found it across a ditch about 40 or 50 feet from the place where the truck was hit by plaintiff’s car. The inference, we presume, is that someone threw it there, hoping that it would not be discovered. There is absolutely nothing to support Beary’s testimony. Four witnesses, all disinterested, passed by that truck that night, after dark, and not one of them saw any lights on it. Some of them took the trouble to look back to see particularly if there were any tail-lights burning, and saw none. On this point, we have come to the conclusion that the preponderance of the evidence is strongly in favor of the plaintiff, who has. shown that there were no lights nor warning or signal of any kind, of the truck’s presence on this public highway. Aside from this being a violation of one of the provisions of the state, highway law, Act No. 296 of 1928, it has been consistently held to constitute gross negligence on the part of the owner of such vehicle.

The negligence of defendant having been shown, it remains now: for us to decide whether there was any contributory negligence on the part of plaintiff which would bar his recovery.

Counsel for defendant relies principally on .that rule which he takes from certain cases, a good many of them being from other states, to. the effect that it is the duty of the driver of an automobile at night to keep his. car under such control so that, in case he meets another car and is blinded by its lights, he can bring his car to a complete stop within the distance on the road illuminated by his own lights. We find that to be a correct statement of what the rule is in the cases, cited, but we are of the opinion that its application, depends entirely on the facts and circumstances arising in each case. In the latest case, referred to by counsel, Woodley & Collins v. Schusters.’ Wholesale Produce Co., Inc., 170 La. 527, 128 So. 469, 470, the Supreme Court of this state holds that it is not an inflexible rule. We quote the following:

“Whether it should be deemed negligence for the driver of an automobile to fail to slow down, in, a case like this, depends so much upon the circumstances, of the particular case that it is not easy nor safe to lay down a hard and fast rule on the subject.”

It is rather difficult to say, we believe, at what precise moment the driver of an automobile becomes blinded by the glaring lights of an approaching car. Some’ people with good eyesight are never confused, and others less fortunate seldom or never drive at night because of their nervousness and anxiety in this respect. The plaintiff in this case says that the other car was on him before he knew that its lights were extremely bright. Up to this time, he seemed to have 'apprehended no trouble or difficulty in meeting it. He was not going more than 35 miles an hour, on a straight, level road 27 feet wide. His lights were in good working order, and he says he was looking ahead. Whilst a reasonable precaution might prompt a driver to travel slower at night than during the daytime, the law makes no difference as regards the regulation of speed. The only extra requirement of the law is that a person driving an automobile after dark must have his car equipped with front lights of some standard projection. That requirement is meant to insure, as far as possible, safe driving under the ordinary, normal conditions brought about by reason of darkness. It is not shown here that the plaintiff’s car was not so equipped. There is nothing then to indicate any negligence on his part, unless it be his alleged failure to have brought his. ear to an instant stop when he became confused and blinded by the glaring headlights of the on-coming-car.

It was at the moment immediately after the car had passed him, he says, that he found himself confronted with this situation of danger produced by the presence of this unguarded truck on the road. It was too late then to stop before running into it, and too late also to attempt to pass around it. Under the circumstances, was he negligent?

We are of the opinion that a person who is blinded by the lights of a car coming from an opposite direction is called on to exercise great caution and have his car under such control as to safely meet any ordinary emergency which may present itself on the road, because of the darkness, but we are not prepared to hold that he is expected to be able to stop his car, almost on the spur of the moment, when, 'as in this case, he finds himself confronted suddenly with a situation of extreme peril on the highway such as had been created by this defendant. The situation of emergency was not an ordinary one, as- persons are not permitted to leave unguarded, and without lights, trucks or vehicles parked on the public highway after dark. There is another rule of .law, equally as well recognized as the one contended for by counsel for defendant in this case, to the effect that the driver of an automobile, confronted with imminent danger to his life or bodily harm, will not be held liable for the results of a collision, even though he did not exercise the best judgment, considering the situation in which he had been placed by the inexcusable negligence of the defendant. This last rule was applied in Stafford v. Nelson Bros., 15 La. App. 51, 130 So. 234, a case where the facts were very much similar to those presented here.

Looking for what was the proximate cause of the accident, as we must in order to fix liability, we certainly believe that it was the absence of lights or of any warning whatever of the presence of this large truck at night on the public highway. The state statute, No. 296 of 1928, sec. 57, required that the one in charge of that truck display on it “one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front,” and also a red light “visible under like conditions from a distance of five hundred feet to the rear.” This is not a rigid regulation, and it is a very precautionary one. Had it been complied with in this case, there is little reason to believe that this accident would have occurred.

As we find the negligence of the driver of defendant’s truck to be the real and proximate cause of the collision, we are bound to hold his employer responsible in damages.

The amount awarded by the lower court is not questioned by either side. IVe have carefully examined the items of damage, and we believe that the amount allowed under the judgment is fair and does substantial justice.

ELLIOTT, J.

(dissenting). I agree with the majority of the court that Motor Freight Lines, Inc., was negligent and at fault.

I dissent from the holding that the plaintiff, Hanno, was not also negligent, and that his negligence, acting with that of the defendant, did not bring about the collision. The road was. 27 feet wide, straight and level, and Hanno could not have helped seeing defendant’s truck, under the headlights of his own automobile, in time to have stopped before striking it if he had been driving at a moderate speed and looking ahead in the direction he was going.

Act No. 296 of 1928, sec. 5, provides that:

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.”

Section 50 requires .that every vehicle, after sunset and before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway a distance of 200 feet ahead, shall be equipped with lighted front and rear lamps or reflectors.

Section 52:

“The head lamps of motor vehiclesi shall be so constructed, arranged and adjusted’ that * * *, they will at all times mentioned in Section 50 and under normal atmospheric conditions and on a level road produce a driving light sufficient to render clearly discernible a person two hundred feet ahead, but shall not project a glaring or dazzling light to persons in front of such head lamp.”

Plaintiff was driving alone, going east in the same direction in which the truck was headed. He testified that his automobile had good headlights. It must be assumed from what he says that his headlights had the lighting power required by law. He saw the truck in the road ahead of him, and says:

“If I had had time to have done it, I could have gone around on the right-hand side of the road and passed the truck and trailer; they were almost in the center of the road, I call it, the truck was.”

He says more than once that there was room for him to have passed on the left-hand side of the truck; if he had had time, he would have tried it, etc. He was asked:

“Q. Tell us what happened?
“A. I was driving along, drivjng east. As I was going along I saw a car coming that had very bright lights and I moved over to the left hand side of the road and as this car got just on me, I couldn’t see very well past it and there was right on this side, a large truck with no lights at all visible on it. I couldn’t see it and there was nothing to do, but crash into it. I was on the truck oefore I realized it was there. I had but a short time to think also the truck was up rather high and the reason it tore up my car so bad is I just ran up underneath it.”

He later says:

“Q. Do you know with reference to the highway, how this truck and trailer were parked there?
“A. Well they were parked. If I had 'time to have done it, I could have gone around on the right-hand side of the road and passed the truck and trailer. They were almost in the center of the road 5 call it, the truck was.”

Further on:

“Q.- You know about how fast you were operating your car?
:. ‘‘A. No sir. I wasn’t watching the speedometer. I slowed up for the crossing at Holden, — I must have been going around 35 miles an hour when I ran into it.”

The plaintiff was meeting a car showing bright lights going west. He saw it a half a mile ahead. It came on and was passing the truck just about the time he struck the trailer. He says on this. subject:

“Q. This accident happened before this car ever passed you?
“A. No sir. It just passed me as I hit. As it got along by the side of me, that is' when I noticed the truck. I was right on the truck as the car passed me.
‘‘Q.' In other words the car was right along side of you at the moment of the impapt? ...
“A. No sir. As I noticed the truck the car was along side of me.”

Plaintiff testifies that the on-coming car passed on the right side of the truck, and, as the on-coming car vas going west, it passed on the north side. Asked if this parked truck was in between him and the approaching car, why he could not see the truck, he said:

“I must have been driving about the center of the road. I know I. turned to the left as the glare got in my eyes. As the glare got in my eyes I turned to the left.”

He was then asked, even if he was in the center of the road and looking ahead, why he could not see the parked truck, which was a very large one, and his answer was:

“All I know is, that the glare of the headlights of that car was in my eyes.”

Pressed further, he said:

‘T did see it, but too late.”
“Q. Were you looking ahead?
“A. Yes sir.
”Q. Don’t you know that, if you look and do not see, that it is the same as not looking?
“A. I couldn’t see anything; but the other car coming.
‘‘Q. And the first time you saw this parked truck was just about the moment you hit?
“A. I was pretty close to it when I saw it.”

Supposing plaintiff’s headlights, sufficient to have shown him a person in the road a distance of 200 feet ahead, this bulky stationary object, situated near the center of a level road, 27 feet wide, in between plaintiff’s lights and the lights of the on-coming car, should have been seen by him, if he was driving at a lawful speed and looking ahead, in time to have stopped before getting to it and to have done whatever was necessary upon reaching it in order to have avoided striking it. The highway in question is one upon which automobiles are passing back and forth almost constantly.

Ordinary care requires, a man driving on it at night to expect and be on the lookout ahead for automobiles, motortrucks, and other things which may have stopped in the way- as the result of accident, or otherwise.

The law, Act No. 296 of 1928, secs. 5 and 52 et seq., has for its object to prevent just such accidents, as the one which has given rise to this suit, and to bring about greater safety in the matter of driving on the highways.

To that end the requirement that a party drive at a prudent speed, not greater than is reasonable and proper, having due regard to the traffic, surface, and width of ■the highway and of any other conditions then existing, is mad© a legal duty. It is a legal duty to have his automobile equipped with headlights of lighting power to enable him to see a person 200 feet ahead. And his speed must be such, section 5, that he can within this distance turn to one side, slow down, stop, or do whatever the exigency of the situation may require.

Since this enactment, it is useless for a party to say that he was blinded by glaring lights of an on-coming car when he saw the truck in the road, in between him and the on-coming car, in time to have stopped. The law regards a party as having .seen what he could not help seeing. Kelly v. Schmidt & Zeigler, 142 La. 91, 76 So. 250.

The rule is that a motorist on a highway at night must keep his car under such control that he can stop and avoid an obstruction within the distance that bis headlights illuminate the way. Parlongue v. Leon, 6 La. App. 18; Pollet v. Robinson Lumber Co., 10 La. App. 760, 123 So. 155; Newsom v. I. C. R. R., 11 La. App. 50, 122 So. 874; Lipscomb v. Standard Highway Co., 11 La. App. 509, 124 So. 156; Sexton v. Stiles, 15 La. App. 148, 130 So. 821; Jacobs v. Jacobs, 141 La. 273, 74 So. 992, L. R. A. 1917F, 253; Blackburn v. R. R. Co., 144 La. 520, 80 So. 708; Woodley & Collins v. Schusters’ Wholesale Produce Co., 170 La. 527, 128 So. 469.

Some of the above decisions were rendered before, others since, the enactment mentioned. In Jacobs v. Jacobs, the court held that there are exceptional situations in which the rule does not apply.

In Futch v. Addison, 12 La. App. 535, 126 So. 590, cited in the present opinion, a truck drawing a trailer stopped on the highway late in the evening, the result of' an accident. The trailer was loaded with two saw logs, one of them about 14, the other about 18, feet long. The rear end of one of them projected about 4, the other about 8, feet out beyond the rear of the trailer. The truck was a little to the south side of the middle of the highway, and 25 or 30 feet south of a small bridge which spanned the highway. The ground was built up about 1% to 2 feet on each side of the approach to the bridge, elevating the bridge to that extent above the level of the highway. There were hand rails at each end of the bridge. The elevation of the bridge hand rails- at the end of it, combined with the fact that the bridge was not as wide as the road, served to prevent a party driving south from seeing the ends of the logs behind the bridge projecting towards him.

The negligence of the truck driver consisted in going off an,d leaving it there after dark, without a watchman or lights on the truck or logs of any kind.

As Futch came up close to the bridge, going south, with his lights on, another automobile with bright lights came up, going north. The bridge being so narrow, the other fellow waited for Futch to pass first. The waiting car made it necessary for Futch to swerve to the right immediately upon passing the bridge. After crossing the bridge, the ends of the projecting logs were not discernible to him under the lights of the cars until after he was so close that he could not stop before striking them. The danger was one that defendant should have foreseen. The Act No. 296 of 1928 does not protect people who leave dangers in the road, so situated as to be concealed from view under the headlights of cars approaching them from ,one of the directions of the road.

Stafford v. Nelson Bros., 15 La. App. 51, 130 So. pages 234, 236, is also cited in the present opinion. Nelson Bros, had left a large bulky machine to remain during the night on that part of a highway recently paved and re-opened to public traffic without lights on it. The machine was. being used for the purpose of constructing shoulders along side of the recently laid pavement. The machine occupied nearly half of the west side, of the pavement.

The Revised Statutes, sec. 3379 (amendment Act 240 of 1914), prohibits the obstruction of public roads. The alleged negligence of the plaintiff, Stafford, in not seeing the machine and stopping before he struck it was a close question in the. case. The machine was on the side of the road on which Stafford belonged to be driving. As Stafford proceeded south under the headlights of his car, another automobile was. coming north, meeting him, both drawing near the machine which was in between them. Stafford saw the on-coming car when it was 60 or 70 yards distant from him, but whether he had seen the machine in the road ahead of him before then or not the opinion does not say. At any rate, he kept going, without stopping, expecting to pass the on-coming car, which was also about to pass the machine, but the headlights of the car blinded him. He then started to slow down when only about 40 feet from the machine in the road. Not knowing on which side of the road it was, he swung to the right and then to the left, but struck the machine before he could stop.

After considering the facts and circumstances concerning Stafford’s approach, the court concluded that:

“Even if he did not exercise the best judgment considering the situation in which he had been placed by the inexcusable negligence of the defendants, he cannot be held liable for the results of the collision.”

The opinion cites authorities holding that, where an emergency existed in which a plaintiff is not guilty of contributory negligence, he may recover, although he selected a course resulting in injury, when he might have escaped had he acted otherwise.

The opinion in the Stafford case refers to Act No. 232 of 1926, sec. 5. That act contained no provision like that contained in Act No. 296 of 1928, sec. 52.

In the present case, I think the judgment appealed from should be reversed, and the demand of the plaintiff rejected.

I therefore respectfully dissent.


author: LeBLANC, J.

text:
      No. 766
    First Circuit
    GENERAL LUMBER & SUPPLY CO., INC., v. HUNTER ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    L. Y. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    Deutseh & Kerrigan, of New Orleans, attorneys for defendants, appellants.
   LeBLANC, J.

R. M. Hunter, one of the defendants, herein, entered into a contract with the Louisiana Highway Commission for the construction of a certain project referred to in the written agreement between them, as “F. A. Project 201-F-4, Timber Projection Bulkhead, located at the north end of the Rigolets Bridge, on the Chef Menteur Highway, Length Route No. 2 540 feet, in the Parish of St. Tammany.” The Continental Casualty Company became surety on his bond, under the provisions of Act No. 271 of 1926, Which amends parts of Act No. 224 of 1918. This, suit is brought by the General Lumber & Supply Company, Inc., for lumber, material, and supplies alleged to have been sold by it to Hunter and used by him in the erection of a pile driver used by him in the construction of the project under contract. The Continental Casualty Company is made party defendant under the conditions mentioned in the surety bond. Judgment against both defendants, in solido, is prayed for in the sum of $174.04, the total amount of the lumber, material, and supplies alleged to have been furnished.

The contractor, Hunter, allowed judgment to go against him by default in the lower court, and he makes no appearance in this appeal which is being prosecuted by the Continental Casualty Company from a judgment against it, in the sum of $136.43.

An exception of no cause of action presented by this appellant, in the district court, appears to. have been correctly overruled as it seems to have raised an issue, the only one in the case, which is properly, a matter of defense.

The issue involves, an interpretation of that part of Act No. 271 of 1926, which pre-! scribes the liability of the surety for ma-: terials and supplies furnished for. use in any machine “used in the construction, erection, alteration or repair of” the pub-' lie work the contractor is engaged in.

As we understand the facts in this case, the contractor, in order to eq,uip himself to do the work contemplated under his contract, had to have a specially designed and constructed pile driver. He drew plans for just the type he needed and engaged certain parties to build it for him. 'Most of the material and supplies sold and delivered by the plaintiff was used in the erection and construction of the pile driver itself, and what little was not so used went into the construction of a platform on which the pile driver was placed.

Prior to the act of 1926, Act No. 224 of 1918, which it amended, restricted the liability of the surety to such materials only as went into the structure of the public work itself. The amending act had for its effect the enlarging of the scope of the former'provision of the law by extending the liability and making lienable those claims for materials and supplies furnished for use in any machine used in the construction, etc., of the public work or road. There is no contention made that the pile driver used in this case was not a “machine” within the meaning of the statute. Therefore the only question that is before the court for decision is whether or not the lumber, nails, etc., furnished by the plain- . tiff to this contractor and used by him in rigging up the pile driver for his work, is such material as- comes within the provisions of the amending act.

The contention is made by defendant that in using the word material, in connection with the words “for use in any machine,” the legislative intention was to include such material only as became consumed by use, as for instance, gasoline, lubricating oils, and grease, and that the lumber and nails furnished and used in the case before us is not material of that class or character.

In the case of Rester v. Moody & Stewart, recently decided by us, reported in 130 So. 254, the plaintiff had sold to the contractors automobile parts, tires, grease, etc., all of which had been used in the repair and operation of motortrucks used by them in the construction of a public road, and, upon suit being brought to recover against the surety, the same contention as is here made was advanced. We were of the opinion that the amendment to the law by the act of 1926 was passed to make lienable, claims for material and supplies of that very character.

Our conclusion was, in a large measure, influenced by our consideration of the following cases: Red River Construction Co. v. Pierce Petroleum Corporation, 165 La. 565, 115 So. 752; State v. Smith, 167 La. 302, 119 So. 56, 63; and Pipes v. Irvine et al., 7 La. App. 215. In the first of these cases, the claim was for oil and gasoline furnished for use in trucks which were used in' hauling material on a roadway under construction; in the second, some of the claimants, had furnished material to supply or repair equipment, and others, oil, but all for machines and equipment used in the work under the project; in the third, the items furnished were tires, tubes, parts, oil, gas, and batteries that were used in repairing the contractor’s trucks that were being used on the job. It was observed that' in two of the cases, some of the material at least was other than gasoline, oil, or lubricants, which are used in and consumed by the machine they are furnished for. It happened that, in all three cases, the claims had arisén before the 1926 amendment to the act of ' 1918, and they were consequently denied. In the opinions in the first and last of < these cases, the courts state that the cor- " rectness of their interpretation of the law 1 as it existed in 1918 is emphasized by sub- ; sequent legislation, and reference is particularly made to the amendment of the law , by Act No. 271 of 1926. In the second '< case, State v. Smith, the opinion states 1 the following: ;

“The material and supplies, here under consideration, were furnished under ■ Act , 224 of 1918, under which the work per- ; formed by Smith was done, prior to the passage of Act 271 of 1926. The ruling ' made by the lower court is in accordance with the later ruling of. this court in the case of Red River Construction Co. v. Pierce Petroleum Corporation, 165 La. 565, 115 So. 752, and should not be disturbed.”

The case of Rester v. Moody & Stewart, 130 So. 254, went from this court to the Supreme Court on a writ of review, and that court has very recently rendered a decision in which the one we had rendered was reversed, and in which it was held that the amendment to the act of 1918 by Act No. 271 of 1926 was meant to include those materials and supplies only which are used in or inside (not on) machines, and which, like fuel and lubricants, are used but once and consumed in the prosecution of the work under the contract and does not survive its completion. We quote the following from the opinion:

“As fuel of some kind' is necessary in the operation of all kind of. machines, and whether the fuel be coal, oil or gasoline, it is literally used in or on the inside of the machine, and as certain oils are also necessary as lubricants, and as .these are also used in or- inside machines, it is clear that only such material and supplies were intended to be covered by the amendment. * * *
“The purpose of the amendment under consideration was to protect those who furnish material' and supplies for machines which can be used but once and are consumed in the prosecution and furtherance of the particular work undertaken, and which do not survive the completion of the project.”

Accepting that interpretation of the amendment, as of course we must, it follows that we have to deny -the plaintiff in this case recovery against the surety for the lumber and other supplies furnished to the contractor and used by the latter in equipping the pile driver used in the prosecution of his work under -the contract. In the first place, it was not material that was used in a machine, but on it; secondly, . none of it was used for fuel, and certainly it was not a lubricant; and, thirdly, although it appears from the testimony that the pile driver as equipped can hardly serve on another job, yet the lumber and nails have survived the completion of the project.

For the foregoing reasons, it is therefore ordered, adjudged, and decreed that the judgment of the lower court, in so far as it condemned the Continental Casualty Company, surety on the contractor’s bond, to pay the plaintiff the sum óf ¡¡>136.43, be, and the- same is hereby, reversed, annulled, and set aside, and it is now ordered that -there be judgment in favor of the defendant Continental Casualty Company, surety, and against the plaintiff herein, General Lumber & Supply Company, Inc., rejecting its demand against the said defendant surety company, at its cost in both the lower court and on this appeal.


author: STEPHENS, J.

text:
      No. 3478
    Second Circuit (Second Division)
    McLEMORE v. LOUISIANA RY. & N. CO.
    (June 11, 1931. Opinion and Decree.)
    W. H. Walmsley and L. P. Stephens, of Coushatta, attorneys for plaintiff, appellant.
    Nettles & Berthard, of Coushatta, attorneys for defendant, appellee.
   STEPHENS, J.

The plaintiff sues to recover damages in the sum of $125, with interest, for the death of a mule alleged to have been killed by a train operated by defendant, at a point between the stations of Coushatta and Carroll in the parish of Red River, La., on December 1, 1926. The petition alleges that the mule was killed through the gross carelessness and negligence of the agents, employees, and servants of the defendant company in the operation of its train.

The defendant answered, and admitted that one of its trains struck and killed a mule at the place designated in plaintiff’s petition, on or about the date therein set forth, hut denied that the mule belonged to the plaintiff, or that it was. worth the sum of $125. Defendant further answered that the mule was struck and killed by its train at a time when a dense and heavy fog, which could not be penetrated by human vision, overhung and enveloped its right of way, and that therefore the killing was unavoidable.

The case was tried in the lower court before the Honorable S. M. Cagle, Special Judge, and resulted in a judgment in favor of the defendant, rejecting the plaintiff’s, demands. The plaintiff prosecutes this appeal.

The trial judge concluded that the railroad company has established by a preponderance of the evidence that the' fog was of such density at the time of the accident, that the engineer was unable to discover the position and peril of plaintiff’s mule until it was too late to avoid striking him.

Both the engineer and the fireman testified that the train was moving at about thirty miles per hour; that the mule was standing still on the track, and that they were unable to discover him because of the density of the fog until- he was within about fifteen feet of the engine; that the engineer immediately applied the emergency brakes and sounded the stock alarm, but that it was then too late to avoid the accident. The engineer fixed the time of the accident as- about 6:50 a. m., and the fireman was of the opinion that it was 7 o’clock. The engineer testified that -the headlight on the engine was burning.

The plaintiff, in rebuttal, adduced the testimony of three witnesses in order to break down the defense of the railroad company, namely, T. O. Sherwin, foreman, or caretaker of plaintiff’s plantation, George Speed, and A. W. Webb, the latter two being negro tenants.

Sherman testified that the accident occurred between daylight and sunup; that it was not foggy but hazy; and that he could see one or two hundred yards.

Speed testified that there was not a great deal of fog at the time of the accident, but that it was a little hazy; that he was standing about fifty yards from the scene of the accident; and that the mule was plainly visible to him before it was struck by the engine.

Webb -testified that at the time of the accident he was “a half of a quarter’’ of a mile away, but that after the accident he saw the mule’s legs hanging across the cowcatcher of the engine. On cross-examination he stated that he was sixty-seven or sixty-eight years old and “could never see very much,” but “could see pretty well that morning.”

We are convinced that the testimony of Webb should be eliminated from consideration. As to the remaining evidence referred to, it is difficult to determine from -the face of the record, in favor of which litigant it preponderates. As usual, under such circumstances, we must be guided by -the opinion of the trial judge, because of his greater opportunities for determining the credibility of the witnesses, and the relative weight their testimony should be given. We find no manifest error in his conclusion.

The judgment of the lower court is therefore affirmed.


text:
    No. 828
    First Circuit
    DAIGLE v. PRICE
    (June 16, 1931. Opinion and Decree.)

      Francis L. Knobloch, of Thibodaux, attorney for plaintiff, appellee.
    Harvey Peltier, of Thibodaux, attorney for defendant/ appellant.
   LeBLANC, J.

The plaintiff, Albert Daigle, seeks to recover of the defendant, Mrs. Andrew Price, the sum of $437.50, as a balance he claims to be due for his 1929 crop of sugar cane delivered to her under a contract entered into between them on February 23, 1925, and covering a period of five years.

The contract is signed in duplicate, Mrs. Price being represented therein by her agent, W. H. Price, and one of the copies is annexed to plaintiff’s pleadings. Under its provisions, Albert Daigle agreed to sell, for a period of five years, beginning January 1, 1925, “such cane as may be grown on my (his) property,” situated in Terrebonne parish. He agrees .further to deliver such cane -Tin the cars of the Acadia Plantation Railroad, at the hoisting station on my (his) property, well cleaned of trash and dirt, properly cut at top, in good condition, sound and unfrozen.” Delivery of the cane was to begin as soon as the grinding season commenced at Acadia Factory, and was to continue thereafter at the rate of about one-fiftieth of each year’s estimated tonnage of the crop, and Mrs. Price bound herself to place a sufficient number of cars at the hoisting, station to take care of the shipments. The •price agreed upon was $1 per cwt. based on the price of .96 degree test sugar on the New Orleans market, and an additional ten cents per ton was allowed for loading expenses. On ■ the same day that the contract was signed, Mrs. Price,' through her agent, addressed a letter to the plaintiff, in which she states that she will pay a bonus of fifty cents per ton more “as a further encouragement for you (him) to grow more cane and thus enlárge your (his) tonnage for delivery to the Acadia Factory during the life of the contract. * * 1

During the existence of the contract, the defendant discontinued operating the Acadia Factory, after which time, all cane that was to be milled there was ground at the Laurel Grove factory of the Laurel Grove Company, no doubt under some agreement between that company and Mrs. Price, but to which the plaintiff was not a party and was not concerned with. The evidence shows that there had been differences in settling for the crop of 1928, and the testimony of the plaintiff,’ as well as the correspondence submitted in .connection with that matter, shows- conclusively that he never intended to, nor did he ever release Mrs. Price from her obligations with him under their contract.

For the crop-of 1929, there was a settlement for all cane delivered by the plaintiff at the hoisting station on Acadia plantation, up to December 31, 1929, that settlement having been made without preju- . dice to the rights of either party.

The contention made by Mrs. Price now is, that the contract having been entered ’ into for a period of five years beginning January 1, 1925, it was terminated on December 31, 1929, and she is not liable for deliveries of cane made after 'that date.

Aside from what is the commonly understood custom in the sugar business that cane contracts cover what is known as ■ the grinding period, which almost always extends beyond the first of January qf the year following that in which harvesting begins, the contention made in this case seems to be against the very wording of the contract itself. Under its terms, plaintiff was to deliver, beginning January 1, 1925, such cane as may be grown on his property, and that could only mean such cane as was grown during each of the years of the life of the contract. The cane he delivered after January 1, 1930, was cane grown on his property during the year 1929, and certainly was cane meant to be delivered under the contract, and within the contemplation of the parties at the time ito was entered into. Had the agreement provided that all the cane produced had to be delivered before January 1, 1930, there might be some merit in the defendant’s contention, but, as we read the contract, it is not susceptible of any such interpretation.

As another defense to the action, Mrs. Price pleads the failure of plaintiff to deliver good and merchantable cane as provided for in the contract, urging specifically that it was unsound and frozen. Her counsel also endeavored during the trial to show that it was not free from trash and dirt, but even her own witness admitted that the cane delivered to her was clean.

Considerable testimony was taken regarding the soundness of the cane and whether it was frozen or not, which, far from showing that it was unsound, tends rather to show its good and merchantable quality. What part of the crop was delivered following the freeze referred to as having occurred on December 3, 1929, had been' properly windrowed and protected from the cold. The bud may have been killed, but that did not affect the soundness of the cane itself. The mere statement. of the witness Eddie Breaux, who was the manager of the Acadia Planting Company, and who accepted the cane of plaintiff for the Laurel Grove Company, that the cane was frozen, is not supported by any other proof whatever. The fact is that all the cane delivered at the hoisting station on the Acadia plantation was accepted and shipped to the Laurel Grove factory, with the exception of one car which is referred to in the testimony as car No. 15, the value of which amounting to $108.35, the Laurel Grove Company deducted in the statement furnished as of December 21, 1929, and against which plaintiff promptly protested. This' amount of course, is included in the demand herein made. With reference to that car, the proof is that the cane when loaded and shipped was in as good condition as all the other, but that the car remained on a side switch several days exposed to the weather to which may reasonably be ascribed the bad condition which caused its rejection. For this the plaintiff cannot be held accountable, as he had completed delivery when the cane was loaded at the hoisting station.

In brief before this court, counsel for the defendant further contends that the purchase of the cane was conditioned upon the operation of the Acadia factory. We do not construe the contract as containing any such contingency. Besides, it appears to us to be a bit late to raise such an issue when this defendant had settled for the crop of the previous year which had been ground at the Laurel Grove factory, and had even paid the plaintiff for all the crop involved in this controversy up to December 31, 1929.

The district judge rejected all qf the defenses and contentions presented by the defendant, and awarded judgment in favor of the plaintiff for the full amount claimed by him. His judgment is correct, and it is accordingly affirmed.


author: MOUTON, J.

text:
    No. 821
    First Circuit
    FIELDS v. UNION AUTOMOBILE INSURANCE CO. OF LOS ANGELES, CAL.
    (June 16, 1931. Opinion and Decree.)
    F. X. Mouton, of Lafayette, attorney for plaintiff, appellee.
    Yoorhies & Labbe, of Lafayette, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff, in April, 1929, took out a combined fire and theft insurance policy with defendant company on a Chevrolet automobile which was stolen on or about January 14, 1930, from a garage near a boarding house in the city of Lafayette, where plaintiff was living.

Plaintiff alleges that his auto, when stolen, was worth $600, hut, due to the limitation of the 75 per cent clause of the value on the auto in the policy, he reduces his claim to the sum of $450; he also claims 25 per cent penalty for the failure of defendant to adjust the claim within the time fixed by law and $100 as attorney’s fees for collection of the loss.

The district judge rendered judgment for plaintiff for $412.50, but rejected the claim for the penalty and attorney’s feep.

Defendant company appeals, and plaintiff is asking for an amendment of the judgment so as to include the rejected part of his demand.

The proof shows that immediately after the theft of the auto plaintiff reported it to the chief of police of Lafayette and to the agent of defendant company.

About three months after the car was stolen, it was located in Port Arthur with a load of liquor in it, of which plaintiff was notified by Mr. Chargois, chief of police. The auto was seized by the prohibition agent of that district for violation of the Internal Revenue Act.

Plaintiff intervened in those proceedings at the request of defendant company, claiming that he was the owner of the auto and that it had been stolen.

Defendant company offered plaintiff all his expenses to attend the trial of his intervention in Beaumont, which he refused; and, not being present when it was called for trial, the intervention was dismissed, the auto was declared forfeited, and was sold under judgment rendered in the case.

In the policy we find the following clause:

“The assured shall render all possible co-operation and execute all papers requested by the company to enable the company to secure all rights to which it may be entitled under the policy.”

Defendant company contends that the foregoing clause contains a statement for the future, stipulates for an act to be performed, and constitutes a continuing or promissory warranty, the breach of which forfeits the policy, citing Cooley on Insurance, vol. 2, pp. 1486, 1489.

The forfeiture proceedings, the record shows, had been instituted against the auto under the provisions of section 3450 'of the Revised Statutes qf the United States (26 USCA, sec. 1181). Such seizures, decision on the subject hold, are in rem against the thing seized. In proceedings under that section, the district judge said that the owners of the property seized, innocent third persons or lienors, are not protected. Accepting that view of the legal situation, the court said that the car could not have been recovered by plaintiff under the intervention he had filed in the proceedings, had he appeared for the trial of the intervention. The court, basing its conclusions on the foregoing reasons, found that the alleged lack of co-operation on the part of plaintiff to recover the auto could not be classed as a breach of a promissory warranty, as his appearance in the federal district court at Beaumont would have been unavailing and barren of results. The federal courts have held that it is the illegal use of the vehicle in carrying the goods or commodities that is of material consideration in seizures under section 3450, United States Statutes (26 USCA, sec. 1181) and which works the forfeiture; the innocence of the owner or lienor being merely accidental. U. S. v. One Ford Coupe Automobile, 272 U. S. 321, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025, and other decisions are also cited by counsel for plaintiff in which that doctrine is recognized. Under that rule plaintiff’s appearance at the trial of the intervention could not have resulted in a recovery of the auto, and would have been of no benefit to defendant company, and could not have effected a breach of the promissory warranty, as was held by the district judge.

Counsel for defendant company says that this question has been decided one way and then another by the various federal district and circuit courts of appeal. This doubtful issue, counsel contend, was finally put at rest by the United States Supreme Court in the case of Richbourg Motor Co. v. U. S., 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, where in the syllabus it is said that a vehicle seized for the unlawful transportation of intoxicating liquor, proceedings for its forfeiture may be had only under the National Prohibition Act (27 USCA), by which the interests of innocent lienors are protected, and not under U. S. Revised Statutes 3450, authorizing the forfeiture of vehicles used in the removal or concealment of any commodity with intent to deprive the United States of any tax upon it, even when the charge against the driver under the National Prohibition Act has been dropped, and he has been prosecuted and convicted under Revised Statutes 3450 for removing and concealing spirits with intent to defraud the government of the tax.

Under that decision the ruling is quite at variance with the doctrine announced in the cases relied upon by counsel for plaintiff.

In 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, above referred to, plaintiff, as an .innocent owner, would have been protected in his ownership, even if the. driver of the stolen auto had been convicted under the provisions of section 3450, U. S. Revised Statutes.

In this case, the auto was not found transporting liquor, but was found parked on the roadside, laden with intoxicating liquor. Counsel for plaintiff seeks to draw a distinction where the vehicle - is discovered in the' act of transportation, and where it is found with the liquor in a state of immobility. There is no such distinction made in section 26 of title 2 of the National Prohibition Act (27 USCA, see. 40), -which refers indiscriminately to liquors transported or possessed illegally.

The purpose of Congress, as it is indicated by the decision of the United States Supreme Court hereinabove cited, was, it seems, to guarantee protection to innocent owners of automobiles or vehicles implicated in the illicit transportation or possession of liquor. The fact that the auto, in the instant case, was found with liquor along the roádway, and was not discovered in the act of transportation, created no difference in reference to the rights plaintiff had in’ asserting his ownership thereto.

The clause in the policy to which we have referred constituted a promissory warranty, and was so considered below, if we understand correctly the judgment of the district judge.

Considering the clause in that light, the question arises as to whether, under the facts of the case, plaintiff, by his failure to appear in court to assert his ownership of the auto, should be held to have breached his promissory warranty.

That clause, after saying that “the assured shall render all possible co-operation,” continues, and states in connection therewith, “And execute all papers requested by the company to enable the company to secure all rights to which it may be entitled under the policy.” it is certain that plaintiff manifested, at first, his entire willingness to comply with the last part of the clause, above reproduced, as it is shown that he voluntarily acceded to the request of defendant company by filing the intervention for the purpose of recovering the auto. After thus proffering his assistance, he thereafter refused to appear at court in Beaumont to establish his ' ownership under the intervention which was dismissed on that account, although the defendant company had offered to pay all his expenses to attend the trial.

Plaintiff testifies that he was requested by the company to go to Beaumont and give his evidence in the case. He says that he consulted his attorney, who objected to the trip, stating that, if he went to Beaumont, he might be arrested for the transfer of the liquor. He admits in his testimony that he was not involved in the transfer of the liquor, but that, acting on the advice of h!s counsel, he refused to appear at the trial, and that the sole cause for his failure to be present was his fear of the probability of a charge being lodged against him!

Plaintiff, no doubt, had absolute confidence in the ability and integrity of his attorney. The fact is that, after he had given his assistance to defendant by executing the “papers,” as requested by defendant company, his, declination to appear in the intervention was the direct result of the advice he had received from his attorney. It is true that he says he had not been involved in the transportation of the liquor, but, however true that might have been, it was no guarantee that he would not have been subjected to detention, to give bond, etc., in case of an arrest for the violation of the National Prohibition Act. No one could guarantee him against such results, however innocent he might have been of any charge that might have been made against him. He kept away under advice of his counsel,, and for no other reason, and the question arises, Was that a violation of his promissory warranty under the clause of the policy, where it says that “the assured shall render all possible co-operation” to defendant company? We do not think that the words “all possible co-operation” are intended to cover a case of this character, where the party, though willing to act, is placed under moral constraint and fear, resulting from the advice of his counsel. Placed in such a situation, and acting in obedience to such advice, we are of the opinion that there has been no violation of the warranty within the intendment of the clause upon which defendant company relies in its plea for the forfeiture of the policy.

The fact is that the general agent of the company residing in- New Orleans wrote a letter April 24, 1930, to the Dan Chevrolet Sales Company of Lafayette, in which he says that the federal authorities did not want plaintiff to identify the stolen car, but desired to question him with regard to its confiscation, thinking he might have been implicated in the carrying of the liquor. It is not unreasonable to surmise, if such were the purpose of the federal authorities at the time, that plaintiff had just grounds to fear a possible arrest if he appeared in Beaumont for the trial of the case. This letter fortifies plaintiff’s position in reference to his refusal to appear in the proceedings instituted for the confiscation of his auto under the National Prohibition Statute.

As heretofore stated, there was no violation of the promissory warranty of the policy by plaintiff.

The record shows that the papers to show the proof of loss were submitted to plaintiff by Mr. Lacoste, local agent of defendant company, and were not signed by plaintiff. This fact is established by the testimony of the plaintiff. The demand for the 25 per cent damages and attorney’s fees under the provisions of Act No. 59 of 1921, Ex. Sess„ was therefore properly disallowed below.

The lower court allowed $412.50 for the value of the auto at the time it was stolen. This was a fair allowance under the 75 per cent value limitation of the policy.

Finding no error in the judgment appealed from, it is hereby affirmed, with costs.


author: ELLIOTT, J.

text:
    No. 790
    First Circuit
    EICHER-WOODLAND LUMBER CO., INC., v. BAILEY ET AL. (OPELOUSAS ST. LANDRY BANK & TRUST CO., Garnishee)
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    L. L. Perrault, of Opelousas, and W. C. . Perrault, of Opelousas, attorneys for plaintiff, appellee.
    Dubuisson & Burleigh, of Opelousas, attorneys for defendant, appellant.
   ELLIOTT, J.

Eicher-Woodland Lumber Co., Inc., a judgment creditor of T. J. Bailey and R. L. Bailey, in solido, in the sum of $1,652.90, with interest and attorney’s fees -thereon, issued a writ of fieri facias, and, by means of garnishment, seized, in the hands of Opelousas St. Landry Bank & Trust Co., Inc., the sum of $615.31, the property of R. L. Bailey. After some further proceedings not mentioned because without bearing on the present issue, it ruled the garnishee into court to show cause why the $615.31 should not be ordered paid to the sheriff for application on its said writ against R. L. Bailey.

The bank, responding, showed that it was the owner and the holder of a past-due note executed and signed by R. L. Bailey, R. L. Bailey, Jr., and H. .A. Bailey, in solido, for $1,000, with interest and attorney’s fees thereon, subject to a credit of $100 paid September 2, 1930; $55 paid October 1, 1930, and $75 paid December 1, 1930, leaving the balance unpaid.

That the $615.31 was on deposit in the bank to the checking account of R. L. Bailey, and, at the time the interrogatories were served, the obligation of the bank to pay same had been extinguished, compensation having taken place, paying the note to the extent of the amount on deposit.

The facts are not in dispute. The question is, Was the obligation of Opelousas St. Landry Bank & Trust Co., to pay said $615.31 to the depositor R. L. Bailey, extinguished by compensation in favor of the bank as holder of said past-due note at the time of the service of the interrogatories on the bank herein? The bank contends that it was. Eicher-Woodland Lumber Co., Inc., contends that it was not.

The lower .court held in favor of the seizing creditor, citing Raymond v. Palmer, 41 La. Ann. 432, 6 So. 692, 17 Am. St. Rep. 398; Gordon & Gomila v. Muchler, 34 La. Ann. 604; Hancock v. Citizens’ Bank of Louisiana, 32 La. Ann. 590; Case v. Cannon, 23 La. Ann. 113; Morgan v. Lathrop, 12 La. Ann. 257; Breed v. Purvis, Wood & Co., 7 La; Ann. 53; Bloodworth v. Jacobs, 2 La. Ann. 24; and Derbes v. Blache, 10 La. App. 424, 121 So. 366.

The bank appealed, and contends' that the ruling was erroneous.

The bank puts the question thus: “May a bank plead, in compensation of a customer’s general deposit, such customer’s past-due note?”

The appellant, after citing us authorities from 7 C. J. 653; Baundry Lacantinerie et Barde, Des Obligations t 3 I re Partie No. 1856; Durnford v. Seghers’ Syndics, 9 Mart. (O. S.) 470; People’s Bank v. Mississippi & Lafourche Drainage District, 141 La. 1009, 76 So. 179, and some other authorities, takes the position that, as a general depositor in a bank is only a creditor of the bank, who may check at will, no reason exists why a bank should not be able to avail itself of the compensation provided for in the Civil Code, art. 2208.

The interesting and well-reasoned argument of the able counsel for the bank has caused us to see, as we have not heretofore done, the doubt which exists as to the status of a depositor and depositary under the Civil Code of 1870, title 13, chap. 2, sec. 4 (article 2960 et seq.), applied to the checking account of a customer in a bank. The bank would liken their relations to that which exists between lender and borrower in a loan for use under Civil Code, art. 2911 and article 2941. There seems ground for the bank’s contention, but as against the position, we find what we take to be a well-beaten path, which we feel we should follow.

The cases support the holding put forward in Breed v. Purvis, Wood •& Co., 7 La. Ann. 53, to the effect that a bank, in a situation like the present, cannot set up the compensation provided for by Civil Code, arts. 2207 and 2208. The court said, speaking of the claim that compensation had taken place: “This view is inconsistent with the theory of compensation under the civil law; compensation was there, considered as an equitable remedy, and never took place where it would have been against good conscience” — citing authorities.

In the case Bogert, Williams & Co. v. John Egerton, 11 La. Ann. 73, the court said, in holding against the claim: “The allowance of the plea, under all the facts of the case, would be subversive of that good faith upon which the doctrine of compensation reposes.’.’ Similar reasons were given in Gordon & Gomila v. Muchler; Hancock v. Citizens’ Bank; Murdock v. Citizens’ Bank, 23 La. Ann. 116; Morgan v. Lathrop, cited in the opinion of the lower court.

In the case Thomas, etc., v. Marine Bank & Trust Co., 156 La. 941, 101 So. 315, it Was held that a checking account could not he taken by the bank in which it had been made, and set off as extinguished, without the consent of the depositor. We quote from the syllabus:

. “Bank cannot apply funds on deposit to payment of debts of depositor without agreement to that effect, nor can they be set off against depositor, especially where depositor is another bank which has become insolvent, requiring collection in due course of liquidation by bank examiner, and then only to extent of distributive share of assets.”

In Thomas v. Marine Bank & Trust Co., reference is made to the decision in People’s Bank in Liquidation v. Mississippi & Lafourche Drainage Dist., 141 La. 1009, 76 So. 179, and the reason for the holding in that case.

In the present case, R. L. Bailey never consented for the garnishee, Opelousas St. Landry Bank & Trust Co., to have his deposit. It was seized while held by the bank for him, subject to his checks. Under the law, Civil Code, art. 2215, the situation could not be changed after service of the interrogatories on the bank.

The judgment appealed from is correct. Judgment affirmed.

Opelousas St. Landry Bank & Trust Co. to pay the cost occasioned by its claim of compensation in the lower court and the cost of appeal.


text:
    No. 774
    First Circuit
    HOLDEN v. FRED BRENNER LUMBER CO., INC., ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    Bouanchaud, Kearney & Bouanchaud, of Baton Rouge, attorneys for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendants, appellees.
   ELLIOTT, J.

A motortruck belonging to and while being driven by A. M.' Holden was badly damaged in a collision with an automobile belonging to Fred Brenner Lumber Company, Inc., while being driven by J. T. Summers, its general manager, on the business of the party by whom he was employed.

Holden alleges damages to his truck to the extent of $817.13, and that his brother, Carl Roy Holden, riding with him as helper, was injured, necessitating an expenditure of $11 on that account.

He alleges that the collision was due entirely to the negligence and fault of the driver of the automobile belonging to Fred Brenner Lumber Company, Inc. He claims damages from Fred Brenner Lumber Company, Inc., and J. T. Summers in solido in the sum of $828.13.

The defendants for answer deny the fault and negligence alleged against them. They allege that they were in no way at fault nor negligent in the matter, but that, if the court finds that they were, the plaintiff was also negligent and at fault, that his negligence directly contributed to and brought about the collision, and that he cannot recover from them on that account. They claim of him in reconvention the sum of $63 on account of damages sustained in the collision by the car driven by Summers.

The lower court, giving as reasons that neither plaintiff nor defendant had made out a reasonably clear case, rejected the demand of each and condemned the plaintiff to pay the cost. The plaintiff has appealed.

The defendants, in answering the appeal, pray that the judgment rejecting plaintiff’s demand be affirmed and that their, demand in reconvention be allowed.

The plaintiff .testifies and is supported in his testimony by his brother, Carl Roy Holden, that he was driving on the Jefferson highway about 6 o’clock a. m., or about a quarter of 6, at about 12 miles an hour; that it was dark, with a mist and fog hanging over the road; that he was on his right side of the road going west, and had just passed out of a curve, when he was struck by defendant’s automobile going east, being driven by defendant Summers on the wrong side of the road; that he examined the tracks made by his truck and those made by defendant’s automobile 10 or 15 minutes after-wards, and that the tracks showed that his truck was at the time on the right side of the road going west, and that defendant’s automobile was on the wrong side going east. He further testifies that the lights on his truck were at the time showing bright; that he saw defendant’s automobile about 50 or 75 feet ahead coming, before they struck; that when he saw it he pulled to the right and did all in his power to avoid a collision, but that defendant’s automobile came on and hit him, damaging his truck to the extent stated.

The only witnesses to the accident were the plaintiff, his brother, and Summers, the driver of defendant’s automobile.

Plaintiff’s truck was about 25 feet long, had on it a large body which stood up high about it and was carrying a load of about 1% tons- The testimony of the plaintiff as to the position of his truck on the road is supported by his brother, Carl Roy Holden, also by the testimony of Graves, a witness Deloach, and by a highway of- • fieer named David. According to the witness Graves, the. tracks of the truck showed that it skidded anglingly about 20 feet after the collision, crossing to the opposite side of the road, going on still further until it turned over in the ditch; that the • tracks of the automobile showed that it had also skidded a short distance. On account of the distance the truck went after the collision, it must have been going faster than the plaintiff claims, but just how fast, we are unable to form any definite idea. After the collision the truck and the automobile were about 100 feet .apart, and apparently each went about the same distance after the collision before stopping.’

Mr. Summers, defendant’s driver, testifies that he was driying at the time on the right side of the road going east, making about 20 miles an hour, but in another place he says possibly 30; that it was dark, the weather foggy, and he did not see the truck, although it had- a very bulky body, until he was within about 15 feet of it; that his inability to see the truck sooner was aue to atmospheric conditions and to the fact that the truck came suddenly out of a sharp curve in the road; that it was being driven by the plaintiff on the inside of the curve, which was the wrong side for the truck; that, after seeing it, he was so close' to it that’ he was unable to stop; that the collision was hn: avoidable on his part. '

A witness named Gauthier, who' came to the place soon after the accident, testifies-that the tracks’ showed .that the ' defendant ' Summers was at the time of the collision on the right side, in the direction he was going, and that the truck was ■ at the ’same time on -the -wrong side in the direction.; it 'was .-going;" thatr-therg was a sharp curve in the road, and that the tracks of the truck showed that it was being driven on the inside of the curve, which was the wrong side for it to be on; that, as it came out of the curve, and headed anglingly across the road, which would have put it on the side of the road on which it belonged to be, the collision took place; that the tracks of the automobile showed that it was on the right side of the road, in the direction it was going, at the moment of the impact.

Another witness named Shows testifies substantially as did Gauthier.

Two other witnesses testified in the case. Their testimony is to some extent favorable to the .idea that the tracks of the truck indicated that at the time of the collision it was going out of the inside of the curve and was on the wrong side of the road; but their testimony is indefinite, -and, standing alone, would not justify any^ positive conclusion on the subject.

Taking the testimony as a whole, we agree with the lower court that the evidence does not show-with reasonable certainty which party, the plaintiff Holden or the defendant Summers, was at fault for the collision. The evidence is conflicting, and the issue ..is left uncertain.

The judgment of the lower court rejecting the. demand of the plaintiff against the defendant, and that of the defendant against, the plaintiff, is, in our opinion, eorrect. ' .

Judgment .affirmed; the plaintiff to pay the costs in both courts.


text:
    No. 785
    First Circuit
    HAAS ET AL. v. WHATLEY ET AL.
    (June 16, 1931. Opinion and Decree.)
    O. E. Guillory and E. H. Guillory, of Ville Platte, attorneys for plaintiffs, appellants.
    J. H. Dore, of Ville Platte, attorney for defendants, appellees.
   LeBLANC, J.

This is a suit for trespass in which the plaintiffs seek to recover damages for the value of certain hardwood timber which they allege was cut and removed by Willis Whatley and his son, Wallace, from an 80-acre tract of land, described as being situated in section 39, township 2 S., range 1 east, Louisiana meridian, in the parish of Evangeline. They set out a title to the property described, through the estate of the late Samuel Haas and wife, and aver that Samuel Haas had acquired- the same from Willis Whatley and others, on December 5, 1900, by notarial act of sale duly recorded in the conveyance records of St. Landry parish. Alleging that the defendants were'in knowing bad faith, in going upon their land and cutting and removing the timber therefrom, their demand is for the net value of the timber manufactured into lumber, which they aver is $733.63.

The defense to the action is that the plaintiffs have mistaken the property which they allege to have been acquired by the late Samuel Haas from Willis Whatley and others, and it is especially set out in answer that the property re-, ferred to in. article 2 of plaintiffs’ petition as being located in section 39 is really situated in section 26 of township 2 S., R. 1 east, and is the NW% of said section, township, and range. The trespass is, of course, denied.

In article 7 of the answer, it is alleged that respondent Willis Whatley has been in possession, as owner, of the tract of land described in article 1- of plaintiffs’ petition, wherein it is alleged that the land is situated in section 39 of the township and range referred to. This declaration on the part of Willis Whatley forms the basis of a plea of estoppel filed by the plaintiffs, who now contend that he, at least, cannot be heard to say that the property is in section 26 and not in section 39. The allegations of the answer, in this connection, do appear a bit contradictory, and tend to cause a bit of confusion. The substance of the answer, when considered as a whole, however, is to show that the plaintiffs have mistaken the property they claim title to. Article 1 contains a flat denial of article 1 of the petition, which includes, among others, the averment that the land is in section 39; and in article 2 of the answer the allegation is specifically made that the land is situated in section 26. If it is in section 26, it cannot possibly be in section 39, and no averment or declaration made by dither of the defend-'" ants can make it so, and testimony was1" properly admitted by the court in an endeavor to properly locate it. We hold, therefore, that there is no estoppel against the defendant Willis Whatley.

The lower court was of the opinion that the plaintiffs had failed to identify the property included in the title they rested on as being the same on which the alleged trespass had been committed, and rendered judgment dismissing their suit. This appeal comes before us from that judgment.

There are two abstracts of title filed in the record; one covering a tract of land purported to be in section 39 and the other a tract supposedly in section 26. The descriptions in the numerous acts of conveyance included in both these abstracts are very indefinite, and from these alone it would hardly be possible, we believe, to arrive at the exact location of the properties sought to be conveyed. All references made to sections are found under the heading: “Abstractor’s Remarks,” wherein it is stated that the property is identified as being in a certain section. Of course, the abstract submitted by plaintiffs contains the remarks that ‘ the property is identified as being in section 39, and that furnished by defendants has the abstractor’s remarks identifying the properties described as being in section 26. That being so, it is necessary to resort to other testimony to try and ascertain whether the plaintiffs, who are held to the burden of proof, have shown that the property alleged to have been depredated is really in section 39, and is the one covered by their title. This we do not think they have done. The evidence shows that the property acquired by Samuel Haas from Willis Whatley and others came to the latter by inheritance from their mother, Sarah Jane Whatley. The public conveyance records show that she never owned any but this one tract of land, and that it was improved property, with buildings, etc., on it, and about two-thirds under cultivation. The testimony of several witnesses who lived in the neighborhood and were familiar with the properties and that township sections place it in section 26. The land on which. the timber was cut and removed, on the other hand, is referred to as timber land. Willis Whatley has been in possession, without disturbance, for fifteen years or more. He built a barn and buildings on it; has about twenty acres in one field and fifteen under fence. Several years before he had cut and removed timber from it, and his rights had never been questioned until about a year before, when he was told that the plaintiffs were claiming the property. It is true, he was unable to produce a recorded title, but we believe that his acts of ownership and possession, unmolested by these plaintiffs during all these years, tends to weaken their pretensions that that is the property conveyed under the title on which they rely.

The district judge seems not to have hesitated in reaching the conclusion he did, as he rendered judgment on the same day on which the case was submitted. We think that he was justified, under the showing made, in holding that the plaintiffs had failed to identify the property claimed under the title they produced, and his judgment dismissing their suit is affirmed.


author: HIGGINS, J.

text:
    No. 13,528
    Orleans
    BEARMAN v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
    (May 11, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Richard A. Dowling and Gerald Netter, of New Orleans, attorneys for plaintiff, appellant.

      J. C. Henriques, Jr., and J. C. Henriques, 'Sr., of New Orleans, atorneys- for defendant, appellee.
   HIGGINS, J.

This is a suit by a father in behalf of his minor son, claiming damages alleged to have been sustained by the' child and medical expenses resulting from a whipping administered by an employee of the defendant, while acting in the scope and course of his employment:

' The petition charges that .• on Sunday, May 12, 1929, at 3 o’clock p. mv plaintiff’s minor child was playing ball on the sidewalk in front of the Galvez telephone exchange, when a private watchman of the defendant company assaulted and beat the boy and drove him from the sidewalk in front of the building, causing tire injuries complained of.

The defendant filed an exception of no right or cause of action and then, in the alternative, in the event the exception was overruled, answered the petition denying liability, The exception of no cause or right of action was referred to the merits and the whole matter tried at one time, resulting in a judgment in favor of the defendant dismissing the suit. Plaintiff has appealed.

The exception of no right or cause of action is leveled at an insufficiency of allegations in the petition, and, as the plaintiff would have been entitled to amend, it is therefore overruled, particularly since all of the facts of the case are now before us and defendant has not been prejudiced. Francis v. Barbazon, 10 La. App. 55, 120 So. 427; Blake v. Jefferson-St. Charles Transfer Co., 8 La. App. 310.

The only eyewitnesses to the alleged beating are the boy in whose behalf the suit is brought and the employee of the defendant company who is said to have whipped him.

The 'facts of the case, as we gather them from the record, are that plaintiff’s nine-year-old son was playing with eight or ten boys in front of the defendant’s garage or station where it repaired and supplied automobiles used in its business. Schackai was the sole and only employee on duty at the station on the Sunday afternoon in question and was engaged in the repair of a tire on one of the company’s trucks. The boys came into' the garage and interfered with and annoyed him while he was at work. He ordered them out and a little later they- came back. He then testifies as follows:

“Q. What happened out there that ‘day?
“A. I was working in the back of the garage and I was going in the oil room to get something and when I came out these boys were there and I drove them out and they came in again. There were eight or ten of them and I told them to get out and they got out and came back. They were spilling gas on the floor and they all got out except this one and he called me an S. B., and I picked him up and spanked him.”

The plaintiff contends that a principal is liable for damages where a watchman, or some one employed to protect his property, injures any one in the course and scope of his duties, while protecting the property^ On the other hand, the defendant contends that a principal can only be held responsible for acts of an agent when acting within .the scope of his authority and in the course of his employment, but if he steps aside from his employment and engages in a personal controversy, the master cannot be held liable.

In the case of Godchaux v. Texas & Pacific Ry. Co., 144 La. 1041, 81 So. 706, 707, the Supreme Court laid down -the test to he applied to each particular case in the following language:

“The responsibility of the master for a tort committed by his servant does not depend upon whether the tort was committed in the course of the employment; the test is whether the tort was committed within the scope of the employment. The doctrine of the common law is the same as the rule expressed in the Civil Code, viz.: Masters are answerable for the damages occasioned by the fault of their servants, ‘in the exercise of. the functions in which they are employed.’ R. C. C. arts. 2315, 2317, 2320. The principle is defined clearly enough. The only trouble is in applying, the rule to the facts in each ease; for it is only a question of fact whether, in a given case, a tort that has been committed in the course of a servant’s employment was within the scope of his employment or authority, either ex-: press or implied.
“In this case, for example', if it had been within the scope of the agent’s authority or employment to eject a disturber from the employer’s premises, the employer would be responsible for the agent’s wrongful or excessive manner of exercising the authority.”

Referring again to the record, we observe that the defendant’s evidence shows that, during the weekdays, there were three or four mechanics and a watchman on duty at the service station, but on Sunday there was only one mechanic, who ■ was solely in charge of the place. There was no other representative of the company on duty at the place at the time of the alleged beating. It would appear to us that it was the duty of the mechanic or man in charge — call him what you may — ' to protect the company’s property -and to keep out trespassers, and we feel that if he had- stood by and permitted the boys to waste the gasoline and had not attempted to stop them and put ’ them out, his employer would have discharged him. This is to be implied from the position he occupied. Prom the record it appears that the boy had never had any previous personal encounters with the defendant’s employee and that there was no ill feeling between them.

We have come to the conclusion that the employee was acting within the scope of his employment, or “in the exercise of the functions in which he was employed” (article 2320, R. C. C.), in stopping the boys from wasting the gasoline and ejecting them from the premises. The fact that he acted unwisely qr went too far in so doing does not take the act out of the scope of the employment. Even illegal methods adopted by an employee will not excuse his employer when the acts are done in the scope of his employment.

. In the case of Godchaux v. Texas & Pac. Ry. Co., supra, the Supreme Court said:

“The decision was only an affirmance of the doctrine, now well settled, that the master is answerable in damages for an injury resulting from his servant’^ willful and deliberate selection of an illegal method of performing a duty that would be, if properly performed, within the scope of his employment.”

In the case of Williams v. Pullman Palace Car Co., 40 La. Ann. 91, 3 So. 631, 634, 8 Am. St. Rep. 512, the court said:

“The earlier doctrine of the common law affirmed the rule that, ‘in general, the master is liable for the fault or negligence of the servant, but not for his willful wrong or trespass.’ 2 Hil. Torts, p. 524; McManus v. Crickett, 1 East, 106; Sharrod v. Railway, 4 Exch. 580; Roe v. Birkenhead, 7 Exch. 36; Wright v. Wilcox, 19 Wend. (N. Y.) 345 [32 Am. Dec. 507].
“But the tendency of later jurisprudence is to discard this distinction, and to recognize the liability of the master not only for the negligence of his servants, but also for their torts, when done within the scope of their employment, or, in the language of the Code, ‘in the exercise of the functions in which they are employed.’ It matters not that the acts are willful and tortious, nor that they have been committed in disobedience of the express orders of the master; if they have been done in the exercise of the functions of the employment, the master is responsible. ‘The test of the master’s responsibility,’ says Judge Cooley, ‘is not the motive of the servant, but whether that which he did was something which his employment contemplated, and something which, if he should do it lawfully, he might do in the employer’s name.’ Cooley, Torts, p. 536.”

The following language from Valley v. Clay, 151 La. 710, 92 So. 308, 309, is likewise of interest:

“If the service be performed in an .unlawful, or even a criminal manner, the master iS liable so long as the thing done forms a part of the servant’s duties. Nash v. Longville Lumber Co., 148 La. 943, 88 So. 226.”

See, also,- the following cases and .authorities: Hay v. Yellow Cab Co., 164 La. 920, 114 So. 836; Moore v. Day, 3 La. App. 575; Hale v. Gilliland, 151 La. 500, 91 So. 853; Nash v. Longville Lumber Co., 148 La. 943, 88 So. 226; Matthews v. Otis Mfg. Co., 142 La. 88, 76 So. 249; Wallace v. Jno. A. Casey Co., 132 App. Div. 35, 116 N. Y. S. 394; Ware v. Barataria & Lafourche Canal Co., 15 La. 171, 35 Am. Dec. 189; Lafitte v. N. O. City & Lake R. R. Co., 43 La. Ann. 36, 8 So. 701, 12 L. R. A. 337; Bright v. Bell et al., 113 La. 811, 37 So. 764; Gaillardet v. Demaries, 18 La. 492; Graham v. Street Railroad Co., 47 La. Ann. 1657, 18 So. 707, 49 Am. St. Rep., 436; Mendel v. W. G. Coyle Co., 153 La. 1056, 97 So. 38; McDermott v. Brewing Co., 105 La. 124, 29 So. 498, 52 L. R. A. 684, 83 Am. St. Rep. 225; Rousseau v. Tex. & Pac. R. R. et al., 4 La. App. 691; Vincent v. M. L. & T. R. R. & S. S. Co., 140 La. 1027, 74 So. 541; Gann v. Great Sou. Lumber Co., 131 La. 400, 59 So. 830; Vallon v. I. C. R. R. Co., No. 9005 of Court of Appeal, Par. of Orleans, decided May 28, 1923. See Louisiana and Southern Digest. Corpus Juris, vol. 2, verbum “Agency,” p. 854; Ballentine’s Law Dictionary: “Scope of Employment” and “Course of Employment.”

As to the quantum of damages the doctor’d testimony shows that the boy had some bruises on his foot and his thigh; that he had to bandage the foot and give some wef applications, a sedative, and some salve; that he made three visits to the boy at home and that the boy called twice at his office, for which he rendered a bill of $13; .that the boy was confined to his bed for several days. We have" concluded to allow the sum of $100 for the personal injuries.

Since the father did not sue individually for the medical expenses, but only in behalf of the minor child, the bill of $13 therefor cannot be allowed.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of Edward Bearman, in behalf of and for the use and benefit of his minor son, Albert Bearman, plaintiff herein, and against the defendant, Southern Bell Telephone & Telegraph Company, in the sum of $100, with legal interest from judicial demand until paid. Defendant to pay the costs of court.