author: REYNOLDS, J.

text:
    No. 3441
    Second Circuit
    THOMAS ET AL. v. NATURAL GAS PRODUCING CO. OF LA.
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    (February 25, 1929. Wirit of Certiorari and Review dénied by Supreme Court.)

      Smith and McGregor, of Rayville, attorneys for plaintiffs, appellants.
    Madison and Madison, of Bastrop, and Theus, Grisham and Davis, of Monroe, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiffs, Mrs. Edith Thomas and her husband, Robert L. Thomas, seek by this action to recover judgment against defendant, Natural Gas Produce Company of Louisiana, • she in the sum of $30,000.00 for the benefit of her separate property, and he in the sum of $10,000.00 for the use of the community existing between him and her.

She alleges that while she was carefully in the act of crossing a public street of the City of Bastrop, Louisiana, a motor truck belonging to defendant and operated by one of its servants struck and knocked her down and thereby permanently seriously injured her and caused her much pain and suffering. He alleges that he has expended $1500.00 and will be compelled to expend $8500.00 more for medical and surgical attention to his wife in the effort to cure her injuries and alleviate her suffering.

They allege that the accident was the result solely of the negligent and careless manner in which the motor truck was being operated and that she was free from negligence or carelessness.

Defendant denied that its servant was careless or negligent or that the motor truck was being operated carelessly or negligently and alleged that the accident was caused solely by plaintiff Mrs. Thomas’ own carelessness, negligence and want of care.

On these issues the case was tried and there was judgment rejecting plaintiffs’ demands and dismissing their suit and they have appealed.

OPINION

The only question presented for our determination is one of fact, namely: was plaintiff Mrs. Thomas negligent, and if so did her negligence cause or contribute to cause the accident.

It is plaintiffs’ contention that at the time Mrs. Thomas was struck by the motor truck she had gotten across the street she had undertaken to cross and had arrived on the neutral ground or space between the pavement on the sidewalk and the curb separating the sidewalk from the street when she was struck and before she discovered that she was in danger of being struck. Her counsel, in brief, say: 4

“Mrs. Thomas was not guilty of any contributory negligence. She had a right to cross the street there and she actually got clear across and upon the curb before any danger appeared.”

Defendant contends that Mrs. Thomas was in the street when struck.

Whether she was on the neutral ground or space between the paved part of the sidewalk and the curb separating the street from the sidewalk or was in the street is an important fact in the case.

J. S. Nimo, a witness for plaintiff, testified:

“Q. Now, when you saw the truck com-I ing, about how far was that truck from Mrs. Thomas? Where was Mrs. Thomas?
“A. The last time I saw Mrs. Thomas she had one foot upon the curb.
* #
“Q. Did you help pick her up?
“A. Yes, sir.
“Q. Where was she, with reference to the place where you saw her stepping her foot upon the curb?
“A. She was seven or eight feet out in the street.
Hi :]: ‡ $ $ $
“Q. About how far from the place where you picked Mrs. Thomas up was the truck stopped?
“A. Well, I suppose 45 or 50 feet; in ■ there, somewhere.
“Q. Was the truck at that time entirely in the street, or was it partly in the street and partly on the curb?
“A. It was in the street.
“Q. Could you see where she was at the moment she was hit?
"A. Well, I can’t tell just how far she was from the corner.
“Q. How far was she from the curbing of the street?
“A. She had one foot up on the curb.
❖ s¡; * * * *
“Q. Could you say which wheel it was that made that mark in the parkway, whether the right wheel or the left wheel?
“A. It was the right wheel.
“Q. The right wheel of the truck?
“A. Yes, sir.
❖ * * * * *
“Q. About how far were those steps, where Mrs. Thomas went down in the street from Mrs. Davis’ home, to the corner?
“A. Where she came out on the sidewalk?
“Q. Yes, sir.
“A. Well, I can’t tell you.
“Q. Well, estimate it as nearly as you can.
“A. Well, maybe twenty or twenty-five feet.
‡ ‡ ‡
“Q. She was not crossing the street at the regular crossing of the block?
“A. No, sir.
“Q. Mrs. Thomas, as I understand it, came out of Mrs. Davis’ gate to go across the street to her own home?
“A. Yes.
“Q. What did she have in her hand?
“A. A broom.
“Q. Was she looking directly across the street, or was she talking to Mrs. Davis ?
“A. She was talking back to Mrs. Davis before she w.ent around my car.
“Q. Your car was parked next to the curb, next to Mrs. Davis’ home, as I understand it?
“A. Yes, sir.
“Q. Had Mrs. Thomas gotten across the street before she was struck?
“A. Yes, sir; she had one foot on the curb.
“Q. Did she go straight across the street, or diagonally?
“A. She went sort of angling across the street.
“Q. Angling across the street?
“A. Yes, sir.
* * ;Ji * * #
“Q. I understand you to say she was coming out of Mrs. Davis’ gate on that sidewalk when you first heard this rattling of the truck?
“A. She came on in front of my car, and started across the street. I never seen the truck hit her, but I heard it, and I turned around and looked back. I had one leg hanging out of my right hand door.
“Q. You do not seem to get me. I want to know where Mrs. Thomas was actually standing or being at the time you first heard this truck rattling.
“A. Oh! When I first heard the truck, she had done passed in front of my car and 'Started across the street.
!¡S * & * * *
“Q. Your car was parked on the opposite side of the street from where Mrs. Thomas was hit?
“A. Yes, sir.
“Q. She had gone around your car when you first heard this rattling noise?
“A. Yes, sir; she came around in front of my car.
“Q. And that truck, I understand you to say, was 55 or 60 feet away from the place where Mrs. Thomas was hit?
“A. Yes, sir.
“Q. After hearing that truck, as I understand it, Mrs. Thomas continued on across the street, with a broom in her hand?
“A. Yes, sir.
“Q. And that was in the block — it was not at a crossing?
“A. She had gotten on the sidewalk the last time I saw her before the car hit her, she had one foot on the curb.
“Q. But she crossed the street between the two streets — or in the middle of the block, and not at the regular crossing?
“A. Yes, sir.
“Q. What was there to prevent Mrs. Thomas seeing that truck?
“A. Well, I didn’t see nothing.
"Q. You saw nothing?
“A. No, sir.
“Q. It was making a great deal of "Oise, rattling those pipes or other things it was loaded with?
“A. Yes, sir. I couldn’t tell whether it was pipes or what it was.”

J. D. Higginbotham, a witness for plaintiffs, testified:

“Q. Just state what you saw?
“A. I saw the truck sitting between the curb and the sidewalk.
‡ V •l' Í* ‡
“Q. Did you notice any tracks on the parkway; that is, the earthen space between the sidewalk and the curb? Did you notice any truck traeks?
“A. In the space between the sidewalk and the curb?
“Q. Yes.
“A. Yes, sir; there were tracks there.
“Q. Were those tracks north or south, or both, of this little sidewalk leading from the curb to the steps?
“A. Why the tracks were there after the truck was moved south of that.
“Q. Did you notice any tracks north of that little sidewalk?
“A. No, sir; I didn’t look; I don’t remember seeing any.
“Q. You say the. truck, when you got there was standing between the curb and the sidewalk?
“A. Yes, sir.
“Q. Can you say whether or not all four wheels were on the parkway?
“A. No, sir; I cannot positively say that all four wheels were, but I do remember the two front wheels being between the curb and the sidewalk. I taken particular pains to go around in front of it and look at it.
“Q. What is your best recollection with reference to the right rear wheel?
“A. Well, my recollection is that the right rear wheel was — I am not positive all four wheels were, but I am positive the two front wheels were,' and the right rear wheel was.”

Wilson Bradford, a witness for plaintiff, 'testified:

“Q. What did the truck do. You say you turned sideways to watch it when you was about the middle or a little north of the middle of Cypress street when you turned, to watch the truck; what did the truck do?
“A. Well, it seemed that it left the street and went upon the edge of — I don’t know what you call it.
“Q. The parkway?
“A. Yes, sir.
“Q. What did it do?
“A. It kept on until it struck Mrs. Thomas.
“Q. Where was Mrs. Thomas just at the time you saw the truck leave the street and go over on the parkway; where was Mrs. Thomas at that moment?
“A. She was leaving the .street and stepped up on — ■
“Q. Leaving the street?
“A. Yes, sir; she had stepped uip on her side there.
“Q. Did you see the truck hit her?
“A. Well, I couldn’t just exactly see it because the cab at that time was between me and her, but I saw her under the truck someway or another, and I saw her when the truck came over her, and I ran to her, and I said, ‘Lordy, the Missus is dead.’
“Q. Where was she lying when you ran to her?
“A. She was lying there on' the sidewalk on the grass with her head turned toward the pavement.
“Q. Did anybody else go ,up there?
“A. There were two white gentlemen, I didn’t know who they were, but they were two white gentlemen.
* # :K # * *
“Q. Are you positive she was not in the street?
“A. No, sir; she was not in the street at all.
“Q. What was she doing when you got to her?
“A. Lying there.
******
“Q. Wilson, when you use the word ‘cab,’ you mean the cab on this automobile you have been talking about?
“A. Yes, sir.
“Q. That was between you and Mrs. Thomas at the moment it struck her, and you could not see where she was hit?
“A. No, sir.
“Q. Or what part of the car hit her?
“A. No, sir; I couldn’t tell that at all.
“Q. Did you see the wheels of that truck run over Mrs. Thomas?
“A. No, sir; I don’t know what ran over her.

W. O. Willis, a witness for plaintiff, testified:

“Q. Did you see them pick Mrs. Thomas up ?
“A. Yes.
“Q. Where from?
“A. Right on the edge of the curb.
‘‘Q. State whether she was in front of the truck you saw standing there or behind it or where?
“A. She was behind it.
“Q. Was Mrs. Thomas in the street or on that neutral ground or grass plot next to the sidewalk?
“A. She was in the street; lying right next to the curb.
“Q. And was behind this truck?
“A. Yes.”

These four witnesses for the plaintiffs are at variance with each other as to the place where and manner in which the accident happened.

G. C. Henry, a witness for defendant, testified:

“Q. Where was Mrs. Thomas at the time she was struck?
“A. About six feet from the curb.
“Q. Do you know what part of the car struck her?
“A. The fender.
“Q. Which fender?
“A. The left front fender.
******
“Q. I believe you stated, but I want to get it clear, that you saw Mrs. Thomas start walking and then start to run?
“A. Yes, sir; she was walking until she saw the car coming, and then she started to run.
“Q. I asked you which way she went across the street, with reference to the path of the truck coming from the north?
“A. She went kind of down this way (indicating) when the truck was coming.
“Q. Kind of down toward Bastrop?
“A. Yes, sir; at an angle across the street, trying to get away.
* * * * * *
“Q. What, if anything, attracted your attention to the car?
“A. Well, I just saw there was going to be an accident; I had been watching the bull team; and I saw there was going to b,e an accident, and I jumped up. ******
“Q. You say Mrs. Thomas was about six feet in the street when she was hit?
“A. Yes, sir.
“Q. Did that truck leave the street and go upon the curb?
“A. Yes, sir; two wheels of it did; half the car was up on top.
“Q. The two front wheels left the street?
“A. No, sir; a front wheel and a back wheel.
“Q. A front wheel and a back wheel?
“A. Absolutely right.
“Q. Left the street, went over the curb and on to that parkway?
“A. Yes, sir.
“Q. You saw that, did you?
“A. Yes, sir.
“Q. How far did that truck run down that parkway before the driver got it stopped?
“A. I imagine about fifteen feet.
“Q. You first saw him when he was crossing Cypress street?
“A. Yes, sir; he passed me at Cypress street.
* * * * * *
“Q. The next thing you saw him do was to run upon that parkway?
“A. No; I saw Mrs. Thomas and him when they met. I saw him hit her.
“Q. Was there anything to prevent him turning to the left out in Washington street? ,
“A. If he had turned to the left he would have run over her.
* * * * * *
“Q. She came out from behind that wagon ? .
“A. Yes, sir.
“Q. At the moment this man was across Cypress street?
“A. Yes, sir.'
“Q. And when she was hit she was approximately six feet from the curb?
“A. Yes, sir.
“Q. And it was the left fender that hit her?
“A. Absolutely right.
:f: * * s¡s *
“Q. Did you see Mrs. Thomas start across the street from the east side?
“A. I never saw her until they were just meeting like, and I knew there was going to be an accident. I imagine she was about six feet from this side when I saw her.
“Q. Prom the west side?
“A. Yes, sir.
s*: ‡ sfc sfc ❖
“Q. How many feet did you say Mrs. Thomas was from the curb at the time she was struck?
“A. Six feet.
“Q. At the time she was struck?
“A. Yes, sir.
“Q. Do you mean that Mrs. Thomas was six feet from the curb at the time the automobile was opposite you on the north line of Cypress street?
“A. I imagine about that.
“Q. Now, when Mrs. Thomas was struck, do you know where she fell?
“A. She fell when this truck hit her; she fell back on her hip, kind of like.
“Q. On the street or on the neutral ground?
“A. She fell in the street- — -on the concrete.
“Q. On the street?
“A. Yes, sir.”

Albert Anderson, a witness for defendant, testified:

“Q. Who were you employed by in August, 1926?
“A. Natural Gas Producing Company.
“Q. Do you remember the occasion of an accident down on north Washington street on August 16, 1926?
“A. Yes, sir.
“Q. Were you driving the truck that was in that accident?
“A. Yes, sir.
“Q. Tell the court exactly what happened.
“A. I was driving the truck. I was driving the truck coming to town, coming south, and a car was parked on the right hand side, and Mrs. Thomas ran out from behind it and in. front of mine before I could see her, and I didn’t have time- to stop.
“Q. You say a car was parked on the right hand side?
“A. On the left hand side; on the left of the way I was going.
“Q. Parked on the left, going south?
“A. Yes, sir.
s>« ‡ sjs sj« sfc s}s
“Q. How fast were you going?
"A. About twenty miles an hour.
“Q. When did you first see Mrs. Thomas?
“A. I didn’t see her until .she was out in the street.
“Q. What did you do when you saw her?
“A. I put on the brakes.
“Q. Do you know whether your brakes worked?
“A. Yes, sir.
“Q. Your brakes worked?
“A. Yes, sir; they worked.
‘‘Q. What else did you do?
“A. I turned to avoid the accident and to run around her.
“Q. Which way did you turn?
“A. Tb the right.
“Q. You turned to the right?
“A. Yes, sir. She kept right on in front of my car.
“Q. What?
“A. She ran right in front.
“Q. In front of your car?
“A. Yes, sir.
“Q. Did your ear go upon the curb?
“A. Yes, sir; the right wheels.
“Q. The right wheels went upon the neutral ground?
“A. Yes, sir.
“Q. Where was Mrs. Thomas, with reference to the west curb of north Washington street, at the time she was struck by your truck?
“A. She was about four feet from the curb.
“Q. Which way from the curb — towards the street or towards her house?
“A. Towards her house.
“Q. Was she up on the neutral ground?
“A. No, sir.
“Q. She was not on the neutral ground?
“A. No, sir.
“Q. You mean by that, that she was in the street?
“A. Yes, sir.
‡ ‡ ‡ ‡
‘-‘Q. How far did your car go after striking Mrs. Thomas, and before it stopped?
“A. I guess fifty feet.
“Q. When Mrs. Thomas was crossing Washington street going towards her residence, was she running or walking?
“A. She was running.
“Q. Fast or slow.
“A. Fast.
“Q. How close were you to the west edge of Washington street when you first saw Mrs. Thomas? How close were you to the curb?
“A. I guess I was six feet from the curb.
“Q. Six feet from the curb when you first saw her? Is that right?
“A. Yes.
“Q. What did you do when you first saw her?
“A. Skidded my brakes.
“Q. Did you skid your brakes in the street or on the neutral ground?
“A. I skidded my brakes in the street.
“Q. And then ran upon the neutral ground ?
“A. Yes, sir.
s¡: * * * * *
“Q. And two right hand wheels got up on the neutral ground?
“A. Yes, sir.
“Q. And the two left wheels did not?
“A. No, sir.
* $ # * #
“Q. Where was Mrs. Thomas when you hit her with this truck, in the street or on the parkway?
“A. She was in the street.
“Q. How far was she from the curb?
“A. She was five or six feet from the curb.
“Q. Now, when you saw Mrs. Thomas coming from behind that car, you tried to dodge her, didn’t you?
“A. Yes, sir.
“Q. You turned to the right, to try to dodge her?
“A. Yes.
“Q. If you had cut your car sharply to the east and kept on, would you have hit anything?
“A. I would have hit her.
“Q. You cut your car sharply to the right and hit her?
“A. I just couldn’t avoid it.”

George Gilmore, a witness for defendant, testified:

“Q. Just tell what you know about the accident.
“A. Wbll, it is very little I know. I was there at the present time. There was an ox team going north, and at the time I was looking at the team, and when the car came by I noticed that; it attracted my attention; it looked like it was running at a rate of about twenty or twenty-five miles; and when the car hit Mrs. Thomas, I wasn’t looking at it. I was looking at the team, and Henry said ‘look yonder.’ I looked around in time to see her just before she made the last turn, but I didn’t see the car hit her.
“Q. Where was she when you saw her, was she in the street or on that neutral ground?
“A. Well, she was in about two feet of the curb.
“Q. You mean — in which direction was she from the curb?
“A. Well, she was east of the curb about two feet.
“Q. You' mean by that, she was in the street altogether at the time you saw her?
“A. Yes, sir; she was in the street; east.
* * * * * *
“Q. Did you see her being rolled down that embankment, rolling over and over?
“A. I saw her; it looked to me like make about one turn after this fellow called my attention.
“Q. Making about one roll?
“A. She made about one roll and he ran over to her and so did I, but another fellow beat me there, to help pick her up.
* * * * * *
“Q. You say Mrs. Thomas was lying in the street?
“A. Yes, sir; about two feet from the curb.
“Q. Were her feet to the curb or her head to the curb?
“A. Well, the best I can remember she was lengthwise to the curb, with her head south.
“Q. Her body about two feet from the curb?
“A. Yes, sir.”

Robert Carter, a witness for defendant, testified:

“Q. Suppose you tell the court what you know about what occurred at that time?
“A. I was in it when it hit Mrs. Thomas.
“Q. Where was Mrs. Thomas at the time she was struck?
“A. She was just a short distance from the curbing.
“Q. A short distance from the curbing, east or west?
“A. The side she lives on; a short distance from it.
‘‘Q. What was she doing just before she was struck?
“A. Going across the street.
“Q. Was she running or walking?
“A. I don’t know that you would exactly say she was running, she was trotting; it seemed like she was hurrying to get across the street.
‡ ‡ ‡ $
“Q. Just before Mrs. Thomas was struck, what did the driver of that truck do?
“A. The boy who was driving?
“Q. Yes.
“A. He tried to stop.
“Q. Which direction did he turn his car?
“A. He didn’t turn it around.
“Q. Which way did he turn it, right or left?
“A. He turned to the right.
# sH ❖
“Q. Was she in the street at the time she was hit?
“A. Well, the bottom of the curb, would you call that in the street? It was so close I could not say. You could call it in the street or at the bottom of the curb.
“Q. Where was her body?
“A. Lying in the curb.
“Q. In the curb?
“A. Her shoulders and head were in the curb, her feet might have been outside the curb.
“Q. You mean her head and shoulders were across the curb, on the parkway?
“A. No; at the bottom of the curb.”

The preponderance of the testimony supports, we think, defendant’s contention that Mrs. Thomas was struck while she was in the street, and this contention finds confirmation in the physical fact that she was not run over by the truck. Had she been struck by any part of the truck other than the left front fender she would necessarily have been knocked down in front of the truck, for the reason that the truck was being turned sharply to the right or west and Mrs. Thomas would have fallen to in front or to the west of the truck ff she had not been hit by the left front fender, and being hit by the left front fender caused her to fall to the left of the truck or east, in the street.

The testimony of the medical experts who examined Mrs. Thomas’ injuries is to the effect that the right side of her right limb was much bruised, and we think that explains how she was knocked into the street east of the truck going south.

Nor do we think the doctrine of the last clear chance has any application in the case. The driver of the truck saw Mrs. Thomas as soon as it was possible for him to have seen her and after sdfeing her did everything in his power to avoid striking her.

In view of the conflicting testimony we do not think it can be said that the plaintiffs have discharged the burden resting ' upon them to make out their case with reasonable certainty.

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

ODOM, J., recused.


source: Caselaw Access Project

author: JANVIER, J. WESTERFIELD J.

license: Public Domain

text:
    No. 11,115
    Orleans
    ABATE ET AL. v. HIRDES ET AL.
    (November 26, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    (February 13, 1929. Writs of Certiorari Refused by Supreme Court.)
    Woodville and Woodville, of New Orleans, attorneys for plaintiffs and appellants.
    Deutsch and Kerrigan, of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiffs’ son, a child four years old, was killed by an automobile truck at the corner of Perdido and Clara Streets in New Orleans.' The child had been allowed by its parents to wander into the street and, in rolling his hoop across the street, ran into the path of the approaching truck and was killed. There are two defendants, the owner and driver of the truck, and the Item Company, Limited. Plaintiffs contend that The Item Company, Limited, is responsible for the negligence of the driver of the truck, if there was negligence, by reason of the fact that the truck was engaged in the delivering of newspapers published by that company, and because the driver, Christopher Hirdes, was paid a weekly salary or allowance by the defendant company. Both defendants contend that the operator of the truck was not negligent; that the speed was not excessive, and that the approximate cause of the accident was the negligence of the parents of the child in allowing it to wander into a place of danger. It is argued that the speed of the truck at no time exceeded fifteen miles an hour, and that such a speed is reasonable and cannot constitute negligence.

The speed of automobile trucks and other vehicles should be regulated in accordance with the surrounding circumstances. What might be excessive in one case might be entirely reasonable in another, and a speed of fifteen miles, while entirely reasonable under some circumstances, would be grossly excessive under others. It appears to us here that either the speed of the truck was excessive, or the driver was not exereising proper care and caution in driving it, or that he did not take the necessary steps to discover the presence of the child, and to stop the truck after discovering it.

1't is argued that the negligence of the parents of the child, in allowing it to wander into so dangerous a place as a public street, precludes recovery on their part, for the reason that this negligence continued to the very moment of the accident and prevents the application of the doctrine of the last clear chance.

It appears to us that the parents were negligent in allowing the child to wander into the street, but we believe that this negligence, after the child left the presence of the parents, and after they no longer could instantly control its actions, became passive negligence and no longer actively continued. If this negligence became passive, then the child, as long as he remained in a position of danger, was in the same situation as is an inanimate object, such as a truck abandoned by its driver. It was held by this court in Canal Steel Works, Inc., vs. City of New Orleans (Public Belt Railroad), No. 10,415, decided on November 13, 1928, that, if a truck is left on train tracks, while the placing of it there may be negligence, yet, after the driver has left it and gone away, his negligence becomes passive; and that if the engineer of the approaching train, by the exercise of ordinary care, could discover its presence in time to avoid striking it, his failure to do so is the proximate cause of the accident. In other words, the doctrine of the last clear chance applies.

To the same effect is the decision of this court in Alexandria Refining Co. vs. Missouri Pacific, 1 La. App. 470, in which the court said:

“We think this case governed by the doctrine of those decisions and not by that applied in the cases cited by defendant; believing as we do that the truck was and for some time had been halted on the track when backed into by defendant’s train whose crew was negligent in not discovering it and actively so in backing against it, when such negligence, therefore, being the proximate cause of the accident, while the negligence of the truck driver, though continuing down to the moment of the accident, was at that time merely passive and hence not the proximate cause but only a condition of the accident.”

The same reasoning applies here. The “owner” of the child, to-wit, the parents, (the child being itself incapable of being contributorily negligent), were unquestionably negligent in allowing him to wander into the street, and had they remained in his immediate presence, certainly every instant it remained in the street would have constituted a fresh act of negligence on their part and this negligence would have been held to preclude the application of the doctrine of the last clear chance. However, when the parents left the child, so that they could no longer instantly control his movements, their negligence then became passive and, as we have already said, the child occupied the same legal status as did any inanimate object. It appears to us that the driver of the truck should have discovered the presence of the child and should have been able to control his truck so as to avoid the unfortunate accident. Having failed to do so, he was guilty of negligence, which negligence was the proximate cause of the death of the child. The driver of the truck, then, is liable to the plaintiffs.

Is the other defendant, The Item Company, Limited, also liable?

If Hirdes was the agent of the Item Company, that company is responsible for his negligent acts. If he was an independent contractor, The Item Company is not liable for his acts. Whether he was an independent contractor or an agent depends on whether or not The” Item Company had the right of supervision and control. The actual exercise of that right is not essential. The question depends solely upon the existence of the right. It is said that because The Item Company paid Hirdes a weekly salary, or stipend, of $20.00, he became the agent of the company, and it 'became liable and responsible for all acts done by him within the scope of his employment. We do not believe that the payment of a regular wage, or stipend, or salary, whatever it may be called, renders the payer liable for all of the acts of the receiver. It appears from the evidence that The Item Company had nothing whatever to do with the operations of the truck. It was owned by Hirdes. He paid for the gasoline and oil and repairs. He used it in other hauling, or in his private affairs. The only requirements that The Item Company made were two: First, that he deliver no other afternoon paper, and, Second, that he produce satisfactory resulLs in the territory allotted to him. As long a,s he did this the company had no right to complain as to his method of driving the truck, as to the route taken by him in delivering his papers, as to who should help him in his work, as to whether he should drive the truck himself or employ someone else, or as to any other matters relating to the conduct of his particular end of the business.

A case very similar to the one before us was presented to the Supreme Court of Louisiana in Shea vs. Reems, 36 La. Ann. p. 966. At first reading the facts of that case seem almost identical with those here and the decision of that case, unless closely scrutinized and analyzed, would seem to be decisive he’re. In that case, the court said: ■

“The evidence leaves no doubt that Rickert was employed by defendant, Reems, to peddle goods for the latter at a fixed wage of six dollars per week, with an additional compensation of two per cent on the price of all goods sold, and with the privilege of keeping any excess of price for which he sold the goods, over and above the prices limited by 'Reems.”

It was held that Rickert was the agent of Reems. The reason for the decision, however, was that the owner and driver of the wagon were exclusively in the service of, and under the control of Reems. That does not seem to have been the case here. It is true that the court stated that the contract to pay regular weekly wages was persuasive at any rate of the fact that one person was under the control and supervision of the other, and as the court said:

“It would be difficult to imagine one person binding himself to pay a fixed compensation weekly for «the service of another, if the latter were to be emancipated from the former’s direction and control and left free to perform the service or not at his whim, or to perform it in a manner opposed to the employer’s will, and, perhaps, yielding him no benefit.”

If, therefore, there were no evidence” to the contrary, it might be assumed that the payment of wages by The Item Company to Hirdes gave The Item Company the right to supervise' and control him in the conduct of his business. There is, however, no room here for conjecture, as the testimony shows that The Item Company did not have this right. In fact, it does not seem that the contract really provided for what may strictly be called salary, or wages. Mr. Thomson of The Item Company states that the only reason for the payment of a weekly amount to Hirdes was that the company knew what his living requirements were, and that the territory allotted to him would probably not produce sufficient commissions to afford him a proper living; that it was to the interest of The Item Company to have someone solicit subscriptions and deliver papers in that territory, and that in order to obtain a man of Hirdes’ ability, the company had supplemented his commissions by what really was no more than a gratuitous addition to his earnings. Mr. Thomson further testifies that The Item Company has similar contracts with others, and even with newsboys, and that newsboys in some locations find it impossible to make a satisfactory living and that, in those cases, the boys are allowed a regular fixed amount periodically. Surely, it could not be said that because the company allows a newsboy a small sum each day he becomes the employee of the company in the sense that it becomes responsible for his negligent acts. Hirdes was notihng more than a distributor; acting independently; purchasing his wares from the manufacturer and selling them to his customers. If The Item Company is liable here, it appears to us that every distributor, every retailer,may by his negligent acts make the wholesaler or manufacturer liable under circumstances over which the 'manufacturer has no possibility of exercising control or supervision.

Of course, the fact that the name “Item Tribune,” was painted on Hirdes’ truck is of no importance whatever, and cannot be said to in any way affect the issues involved.

The amount allowed the plaintiffs by the trial court was $2,000.00. It is impossible, to estimate and fix accurately in dollars and cents the value of human life. No parent, no matter what his circumstances, would be willing to fix a price at which he would sell the life of his child and therefore, the courts must, to the best of their ability, looking at the accident retrospectively, determine what is a just compensation for the losses sustained.

In view of the jurisprudence of this and of the Supreme Court, we are of the opinion that the amount awarded is correct.

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

WESTERFIELD J.

Being, of the opinion that the evidence fails to establish that Hirdes was an independent contractor, I respectfully dissent.


author: LECHE, J.

text:
    No. 407
    First Circuit
    EDUCATIONAL FINANCE CORP. v. PENINGTON ET AL.
    (February 13, 1929. Opinion and Decree.)

      A. J. Finney, of Covington, attorney for plaintiff, appellant.
    Burns and Burns, of Covington, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff obtained a personal judgment against both of the defendants in the sum of one hundred and forty-one 54/100 (dollars on June 15, 1926. After the legal delays had expired, it then secured a writ of fi. fa. upon its judgment. Believing that defendants had funds on deposit in a bank, situated in Madisonville, it obtained garnishment process which was served upon T. B. Farrar, an employee of said bank, May 30, 1928. Farrar answered the interrogatories June 4, 1928, and though the answer was neither signed nor sworn to, it admitted that the bank in Madison-ville held for account of one of the defendants, the amount of four cents, and for account of the other, fifteen 54/100 dollars.

The domicile of the garnishee is at Covington, the parish seat of the Parish of St. Tammany, and the service was made some ten miles from Covington, at Madisonville, also situated in the Parish of St. Tammany, where the garnishee conducts a branch bank. The service of the interrogatories was made upon T. B. Farrar, indifferently called a clerk or manager of the Madisonville branch of the Covington Bank & Trust Company, garnishee. On July 10, 1928, plaintiff ruled garnishee into Court to show cause why judgment should not be rendered against it for the full amount of the writ, for having failed to answer the process within the legal delays. That service was made upon Ethel Oulibert also in the branch bank at Mandisonville. The rule was heard, and garnishee was discharged from any liability on October 24, 1928. From this judgment plaintiff prosecutes the present appeal.

On being served with the rule by plaintiff, to show cause why the interrogatori.es should not be taken pro confessis, the Covington Bank & Trust Company appeared through counsel and excepted to the service of the notice of seizure, citation, motion and interrogatories as illegal, for the reason that the domicile of said bank is in the town of Covington, St. Tammany Parish, and not in the town of Madison-ville; that the executive officers of said bank are in the bank at Covington where it can legally be served at any time.

The Sheriff’s returns show that services were made ' at Madisonville, where the branch bank is located. The service of interrogatories was made upon T. B. Farrar and the rule was served upon Ethel Oulibert, said to be assistant cashier of the branch bank at Madisonville, in the Parish of St. Tammany.

According to the provisions of Act 179, page 335 of 1918, the last statute on the subject of service of legal process upon corporations, service may be made upon the officer designated in the charter of such corporation. In the record of this case, the charter is noted as having been offered in evidence, but we fail to find it. It is not pretended however, except inferentially in argument, that either Farrar or Ethel Oulibert were officers designated in the charter, for the purpose of receiving legal process. Farrar was in charge of the Madisonville Branch of the Covington Bank & Trust Company. It is not shown how far his authority extended, although the inference is irresistible that he had the authority to receive deposits and to pay the checks of depositors, but that does not mean that he had the right to receive process or to answer the same, in litigation directed against the corporation. Such a power must be expressly conferred either by the charter or by statute. According to paragraph (b) of subsection (5) of Section 1 of the Act of 1918, service may he made upon any other regularly employed officer, agent or employee of the corporation found in the domiciliary office of the corporation * * *, when the officer, director or agent designated in the charter cannot be found. Of course such a condition does not exist in this case. It is not questioned that an officer clothed with authority to receive process might have been found in the domiciliary office of the garnishee bank at Covington.

Our opinion then is that neither of the services made upon the employees of the Covington Bank & Trust Company, garnishee, at the branch bank of said garnishee at Madisonville were sufficient to justify a judgment against said garnishee and, it is therefore ordered that the judgment appealed from be affirmed.


text:
    No. 418
    First Circuit
    T. E. NEWSON & CO. v. SMITH
    (February 13, 1929. Opinion and Decree.)
    Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.

      Purser and Magruder, of Amite, attorneys for defendant, appellee.
   LECHE, J.

In this suit upon an open account, the plaintiff prayed for and obtained the issuance of a writ of attachment on the ground “that he verily believes that said Richard T. Smith is on the eve of leaving the State permanently.” Some movable property of defendant was seized and attached under the writ, and on the trial of a motion to show cause why said attachment should not be dissolved for the reason that the allegations for said attachment are false and untrue, the attachment was dissolved and defendant was accorded fifty dollars as damages for attorney’s fees. Prom that judgment plaintiff has taken the present appeal.

The ground alleged for the attachment is that specified in paragraph 1 of Art. 240, and in Art. 243 C. P. The facts pertinent to the issue submitted in plaintiff’s petition are substantially, that defendant came to the Parish of Tangipahoa from Poplarville, in the State of Mississippi, to engage in hauling pine knots and wood, and to ship same by rail. He was married and had six children. He lived for a while in Kentwood in the northern part of the parish, but at the time this case was tried, he had moved to Amite. In order to operate the business in which he had engaged, he made arrangements with plaintiff for advances in money and supplies.

Defendant acting under the arrangement made with plaintiff, pursued the business in which he had engaged for some time, when it turned out that the business was unprofitable. His family was dissatisfied with their living conditions in Kentwood, and he was unable to meet his indebtedness to plaintiff. Then rumors reached plaintiff that defendant was about to return to Mississippi. Coupled with these rumors, was the fact that plaintiff was unable to collect his claim and became suspicious as to defendant’s intentions. Plaintiff then sued out the present attachment which was, after hearing, dissolved by the District Court.

The important question then, is whether defendant had the intention to move back to Mississippi and whether his conduct and his actions justified the belief that he had such intention. We do not think that the evidence is sufficient to establish either of these facts. There is no proof that defendant ever expressed an intention to return to Mississippi, as was done by the defendant in the case of Grigsby Construction Co. vs. Colly, reported in 124 L. at page 1072, 50 So. 855, nor is there proof to show that defendant’s conduct was such as to justify the inference that he had such intention. The rumors which reached plaintiff most likely arose from the fact that defendant’s wife and children, dissatisfied with their surroundings at Kentwood, may have expressed such a wish. Defendant had a large family to support, had failed in his undertaking and was in the vernacular, down and out, and he had to do something to earn a living. He moved to Amite with that object in view.

Our appreciation of the situation of these parties at the time the attachment was sued out, is that plaintiff acted in good faith and without malice, but there is nothing to show that. defendant had any fraudulent intent. Under these conditions defendant is entitled only to actual damages, the fees of his attorney to set aside the attachment.

Our learned brother of the District Court so found and his judgment is therefore affirmed.


author: ELLIOTT, J.

text:
    No. 419
    First Circuit
    JOINER v. STEVENS
    (February 13, 1929. Opinion and Decree.)
    Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellee.
    Robert M. McGehee, of Hammond, attorney for defendant, appellant.
   ELLIOTT, J.

A. O. Joiner,. travelling northward in his automobile with his wife and nephew, and Claude Stevens travelling southward in his automobile, with his wife and a friend, collided with each other on the highway between the towns of Tickfaw and Natalbany. Their automobiles were both injured as a result of the impact; that of the plaintiff to the extent of $153.55. He alleges that the negligence, carelessness, wrong and recklessly fast driving of Stevens was the sole cause of the collision, and claims of him the damages he sustained.

The defendant Stevens denies the negligence and carelessness alleged against him, and charges that the collision was due to the negligent, careless, wrongful and reckless driving of the plaintiff. He alleges that his automobile was damaged to the extent of $80.50, and that his character, credit, name and standing with his company have been damaged by plaintiff’s charges against him to the extent of $5000.00. He prays that plaintiff’s demand against him be rejected, and that he have judgment on his demand in reconvention against the plaintiff for $5080.50.

The petition of the plaintiff and the answer of the defendant contain other al-, legations against each other, but for the purpose of a review of the case a further recapitulation is not necessary.

There was judgment in favor of the plaintiff for $153.55, with interest.

The defendant has appealed.

The case is one of fact as to whether plaintiff or defendant was at fault. According to the plaintiff and his witnesses the collision was due entirely to the fault, negligence, recklessly fast and wrong driving of the defendant.

The defendant and his witnesses say that the collision was entirely due to the neglect, fault and recklessly fast and wrong driving of the plaintiff.

We have considered the evidence adduced on the subject. It would serve no useful purpose to comment on the testimony at length. It is our conclusion from a review of the evidence that the plaintiff is entitled to recover the amount for which he received judgment in the lower court, and that the demand of the defendant was properly rejected.

Defendant and appellee to pay the cost in both courts.


author: JANVIER, J.

text:
    No. 11,511
    Orleans
    DOYLE v. GERSON
    (January 21, 1929. Opinion and Decree.)
    J. C. Henriques, of New Orleans, attorney for plaintiff, appellee.
    Harry G. McMahon, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This matter is submitted under an agreed statement of facts, reading as follows:

“It is hereby expressly stipulated and agreed by and between Frank T. Doyle, Subrogee of Robert E. Rougelot, through his attorney, J. C. Henriques, and Abraham Gerson, defendant herein, through his attorney, James J. Tracy, Jr., that for the purpose of the trial of this cause only the following facts shall be admitted by both plaintiff and defendant, and that this cause is submitted on these facts only:
“(a) That Abraham Gerson, the defendant herein, purchased the property described in plaintiff’s petition from Mrs. Feliz Quinn/ by act before Felix Dreyfous, on February 25, 1921, and that in said act of sale he assumed the City taxes on said property for the year 1921, and bound and obligated himself to pay the same;
“(b) That the said Abraham Gerson sold this property to Robert E. Rougelot on June 25, 1923, and warranted the title to same, as per act passed before Frank T. Doyle, on said date;
“(c) That at the time of the passage of said act of sale by Abraham Gerson to Robert E. Rougelot, the City taxes for the year 1921 on said property had not been paid and said property had been sold by the City of New Orleans for the delinquent taxes of the year 1921 to the LaSalle Realty Company of La., Ltd., which sale took (place in June, 1922;
“(d) That the LaSalle Realty Company of La., Ltd., advised the said Rougelot of its intention to bring procedings to quiet the title to said property, and that the said Rougelot referred the matter to plaintiff herein, his attorney;
“(e) That plaintiff herein, for and on account of the said Rougelot, paid on December 28, 1927, the sum of One Hundred and Seventy-Two and 63/100 ($172.63) in order to redeem said property and to quiet the title hereto, in consideration of which payment the said Rougelot on February 15, 1928, subrogated plaintiff to all of his rights and actions against the said Ger-son.”

Defendant contends that, as the document transferring to Doyle the right that Rougelot had against Gerson was not executed at the time of payment by Doyle, it can have no effect.- He contends that this results from the operation of paragraph 1 of article 2160 of the Civil Code, which reads as follows:

“When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges and, mortgages against the debtor; this subrogation must be expressed and made at the same time as the payment.”

If the payment by Doyle to 'Rougelot constituted payment of the obligation due by Gerson and therefore terminated that obligation, no subsequent act of Rougelot could bring that obligation back into existence.

Defendant’s error in this regard, however, arises from his misconception of the effect of Doyle’s payment on his obligation. If that payment had the effect contended for, then, of course, the obligation of Gerson was terminated instanter and could not later be revived. But it appears to us that what Doyle paid was not Gerson’s obligation, but his own. He was liable to Rougelot for his error, and, recognizing this obligation, made Rouge-lot whole by paying the sum required to perfect the title. The reason for the requirement that the subrogation must be executed contemporaneously with payment does not exist except where the effect of the payment is to extinguish the obligation. As our Supreme Court said in Succession of Wilson, 11 La. Ann. 294:

“Nor ean it be made after payment, which extinguishes the obligation * * *.”

Gerson’s obligation was not extinguished by Doyle’s payment. It remained just as binding on him as ■ it always had been. Had Rougelot elected to proceed against him, surely he could not have set up as a defense the payment by Doyle. How, then, can he do the same thing now? Since Gerson’s obligation was in no way affected by the transaction between Doyle and Rougelot, we see no reason why Rougelot could not, subsequent to Doyle’s payment, transfer to Doyle the right to proceed against Gerson.

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


text:
    No. 11,725
    Orleans
    ASSET REALIZATION CO., INC., v. FREY
    (January 21, 1929. Opinion and Decree.)
    Williams, Lancaster and Williams, of New Orleans, attorneys for plaintiff, appellee.
    Sidney G. Roos, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a' suit on three promissory notes, each for $68.00, all dated July 11, 1928, bearing eight per cent interest from maturity, and stipulating for ten per cent attorney’s fees in the event of suit. The notes all became due on August 11, 1928, and were not paid. Defendant filed no answer in the lower court and, although the matter was submitted to us “on brief,” he has filed no brief here.

The judgment is manifestly correct. Unfortunately, as there appears in the record no answer to the appeal, and no prayer for damages for frivolous appeal, we are unable to award any.


text:
    No. 11,699
    Orleans
    JAHNCKE SERVICE, INC., v. McGUIRE ET AL.
    (January 21, 1929. Opinion and Decree.)
    Deutsch and Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

James H. McGuire and his wife were the owners of a piece of real estate in this city. They decided to make certain improvements, and for this purpose employed a contractor named Young. Apparently, a written contract was entered into, but this contract was not recorded as required by Section 12 of Act 298 of 1926. Materials totaling $117.49 were delivered by the plaintiff company to the premises 2029 Peniston Street, and on the bill which was sent with the material appears the written approval of the defendant, James H. McGuire. The evidence shows that the materials were used on that property and we are unable to see any serious defense to plaintiff’s claim. Under Section 12 of Act 298 of 1926, a materialman is entitled to a lien on the property of the owner unless the owner enters into a written contract for the repair work or construction work, and records the contract in the mortgage office. This the owner did not do in this case. There is no question, then, that the materialman is entitled to his lien and is entitled to his judgment against the owners of the property.

As we have stated, the amount of the material bill was $117.49. The evidence shows that the plaintiff was required to pay $1.50 to record his lien, which makes a total of $118.99.

It is therefore ordered that the judgment appealed from be affirmed.


text:
    No. 10,537
    Orleans
    WAGNER v. N. O. PUB. SERVICE, INC.
    (January 21, 1929. Opinion and Decree.)
    Emile Pomes, Chas. J. McCabe, and G. Montgomery, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittridge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff, a woman, five feet and seven inches in height, and weighing about 250 pounds, was a passenger on one of defendant’s cars.

In alighting from the car or just after alighting she fell and sustained rather serious injuries to her leg and body.

She claims that there was a hole or depression at the point at which she alighted and that she stepped into this hole and this caused her to fall. According to her testimony the hole was partially concealed from her view by the step of the car.

There is some conflict in the evidence as to whether the car had stopped at the usual point or had gone a short distance beyond it. We cannot see that it is necessary for us to settle this conflict because in either case if there was in fact a dangerous hole at the point at which the car stopped, whether in its usual place or elsewhere, defendant would be liable for any injuries sustained by the. alighting passenger. A railroad or street car company is responsible to a passenger for its failure to furnish a safe place to disembark or' for stopping its car and allowing or inviting a passenger to disembark at an unsafe place.

We are entirely unable, however, to agree with plaintiff that the point at which she was invited to disembark was unsafe. The evidence, and particularly the pictures of the street, convince us that the place at which the car stopped was reasonably safe and that any ordinarily prudent person could have alighted there with absolute safety. Plaintiff is an unusually stout person and was wearing shoes with very high heels, and it seems not at all improbable that there was some causal connection between her fall and these high-heeled shoes.

In • any event the street on which plaintiff alighted is as good as is ordinarily found and was certainly sufficiently safe to relieve defendant of responsibility. A railroad company is not liable to furnish a concrete pavement, or a wooden platform, but only such an alighting point as is safe for the ordinarily prudent person. Freeman vs. N. O. Public Service Inc., 1 La. App. 600.

In Clogher vs. N. O. Railway & Light Co., 143 La. 85, 78 So. 247, the Supreme Court dealt with a situation strikingly similar to that set forth here and in that case held the defendant not liable.

For these reasons, the judgment appealed from is affirmed.


text:
    No. 10,595
    Orleans
    MARYLAND CASUALTY CO. v. MULLER
    (January 21, 1929. Opinion and Decree.)
    Harry L. Hammett, of New Orleans, attorney for plaintiff, appellant.
    Emile Pomes, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit by Maryland Casualty Company as subrogee of Vincent R. Perrin against August R. Muller.

Plaintiff had issued to Perrin a policy of collision insurance which stipulated that in the event of damage by collision to Perpin’s Dodge sedan, the Company would pay to him the amount of his loss, less a deduction of $100.00, and would by such payment become subrogated up to the amount of the payment to such rights as Perrin had against such third party or parties as might be legally liable for the loss.

On March 14, 1925, the Dodge sedan of Perrin was almost demolished as a result of a collision with a Ford sedan belonging to defendant and driven by. his minor son, Alvin Muller.

The accident took place at the corner of North Lopez and DeSoto Streets, New Orleans.

The Dodge car was proceeding up North Lopez Street and the Ford car was going in DeSoto Street. After the accident both cars were stopped in North Lopez Street, a few feet above the property line of DeSoto Street and on the river side of that street. The Dodge was a few feet further uptown than the Ford. Defendant strongly urges that his exception of no cause of action should be sustained and this suit dismissed. This exception is directed at the failure of plaintiff to obtain a written subrogation from Perrin at the time payment was made to him under the policy. Exceptor cites Civil Code, Article 2160, which reads, in part, as follows:

“When the creditor receiving his payment from a third person, subrogates him in his rights, actions, privileges and mortgages against the debtor, this subrogation must be expressed, and made at the same time as the payment.”

It is not disputed that no subrogation was taken at the time of payment. Plaintiff explains this omission by producing and filing in evidence the policy which contains the following specific stipulation:

“In case of payment of loss and/or expense under this Policy the Company shall be subrogated to all rights of the- Assured to the extent of such payment, and the Assured shall execute all papers required and shall co-operate with the Company to secure to the Company its rights.”

Plaintiff contends that Civil Code, Article 2160, does not prevent the stipulation in advance of payment that payment shall ipso facto operate as a subrogation, and that the article was intended to prevent not an antecedent subrogation or agreement to subrogate, but only a subsequent one. The jurisprudence of this State in this regard seems to be with plaintiff. Our Supreme Court in Cooper et al. vs. Jennings Refining Co., 118 La. 181, 42 So. 766, said, in a syllabus by the court:

“When Article 2160, Civ. Code, says of conventional subrogation that ‘it must be made at the same time as the payment,’ it simply means that the agreement of subrogation cannot be entered into after the payment. It does not mean that it cannot be entered into before the payment, as where the agreement is that, in case the party .pays the debt at any time in the future, he shall be subrogated to all the rights of the creditor. Where the distinct understanding is that the payment will be made only on the condition of subrogation, the mere sending of a check in payment of the debt, without anything further being said about subrogation, will operate the subrogation.”

This seems to dispose of the exception which, under the authority cited, is now overruled.

On the merits, however, we are inclined to the view that the drivers of both cars were at fault, and that the fault of each contributed proximately to the accident. Plaintiff argues that the City Traffic Ordinance should not have been admitted in evidence for two reasons: First, because the case had been closed before it was offered in evidence; and, second, because it was not properly attested or proved. We do not find it necessary to pass on the rulings of the trial judge on the admission of this evidence, for, even without taking into consideration the question of who had the right of way, we feel that the negligence of the driver of the Perrin car was to some extent responsible for the accident, and conceding that the driver of defendant’s car was guilty of negligence, this, of course, would not entitle plaintiff to recover unless the driver of Perrin’s car was without fault.

It seems impossible that the Perrin car could have been where Carl, its driver, claims it was just before the accident, because if it had been, as he claims, nearly three-fourths of the way across DeSoto Street, with its front wheels practically at the curb and with its right side on a line only two feet from the line of the curb of North Lopez Street, he would not have swerved to his left, as he did in an effort to let defendant’s car pass to his right, as he would have instinctively realized that there was no possibility of thus avoiding the impending crash.

The record leaves us convinced that the drivers approached the intersection each unmindful of the proximity of the other, and that at the last moment each became aware of the danger and swerved — one to the left, the other to the right: Both seem to have been at fault.

It is therefore ordered that the judgment of the lower court be and it is affirmed.


text:
    No. 10,568
    Orleans
    MEDLEY v. AMERICAN RAILWAY EXPRESS CO., INC.
    (January 21, 1929. Opinion and Decree.)
    Daly and Hamlin, of New Orleans, attorneys for plaintiff, appellant.
    R. E. Bell and S. S. Goldman, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

The automobile of plaintiff and the truck of defendant met in collision at the corner of St. Peter and Dauphine Streets on the afternoon of November 17, 1925.

Plaintiff claims that he had the right of way for two reasons: ’First, because he was on a car track street and, Second, because the other vehicle approached from his left. It is true that had these vehicles reached the intersection at the same time, he should have been accorded the right of way, but the evidence leaves us with the conviction that defendant’s 'truck was already in the intersection when plaintiff reached it.

True, the evidence is to some extent conflicting, but the trial judge felt that the preponderance was with defendant, and we are not prepared to say that he erred, especially as the physical facts indi’cate very strongly that it was plaintiff’s car which was the aggressor. Such damage as defendant’s truck sustained was limited to the part of it near the right Irear wheel, whereas the damage to plaintiff’s car was all in front — both front fenders were badly damaged. Whatever fault there may have been in the driver of defendant’s truck, plaintiff cannot recover if he himself was guilty of any fault which contributed proximately to the accident. We think he was guilty of such fault.

It is therefore ordered that the judgment of the trial court he and it is affirmed.


author: JONES, J.

text:
    No. 10,523
    Orleans
    VALLEE v. IMEX WAREHOUSE CO., INC., ET AL.
    (December 10, 1926. Opinion and Decree.)
    (February 13, 1929. Writ of Certiorari and Review Refused.)
    Henry & Cooper of New Orleans, attorneys for plaintiff, appellee.
    Spearing, Miller & Mabry, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff, as the holder and owner of a negotiable warehouse receipt for 350 bags of sugar, sues the maker of the receipt, the Imex Warehouse 'Co., Inc., and the surety on its bond, the U. S. Fidelity and Guaranty Co., for the value of the sugar, $1,820.00, alleging failure to deliver after legal demand.

The relevant parts of the receipt, attached to the petition, which has the word “negotiable” stamped across its face, reads as follows:

“READ THIS RECEIPT AND CONDITIONS
“No. 599 New Orleans, La., 10/20, 1925.
“Received from R. E. Vallee & Company by the Imex Warehouse Company, Inc., the articles herein below described, which articles are deliverable upon the return of this receipt properly endorsed by the party to whom issued, and the custody of which articles is undertaken upon the conditions and tariff rates below set forth, of which conditions and rates said storer admits notice and knowledge.
* * * (
“7. This receipt is issued under the terms of Act No. 221 of Legislative Session of Louisiana 1908.
Lot Quan- Pack- Con-No. Marks tity ages tents Weight
599 America 350 Bags Stand. F. 1001b
Gr. Sugar each
“IMEX WAREHOUSE COMPANY, Inc.,
“By Fred Baum (Signed)
“Corner Clay & Bienville Sts.,
“New Orleans, La.”

Both defendants answered admitting the issuance of the receipt but alleging:

“Plaintiff had no goods in the possession of the Imex Warehouse Company, Inc., for which the said receipt toas executed nor was such property in the possession of the said Imex Warehouse Company, Inc., when said receipt was issued."

There was judgment below for plaintiff against both defendants for the amount claimed and the surety company alone has appealed. _

On the trial of the case, after offering in evidence the receipt and the bond of the surety company and proving the value of the sugar, plaintiff proved, by Rabanack, Chief Clerk of the plaintiff, that the receipt had been delivered to plaintiff, at its office in this city, by Baum, the president of the warehouse company on the very day it was made out, October 20. While Rabanack was under cross-examination by defendant’s attorney, the following questions, objections and rulings were made:

“Q. On that date, did you hand a check to Mr. Baum—
MR. HENRY: “May it please the Court, I don’t want to be insisting on these objections, but I don’t see what relevancy the question of handing a check has to do with this transaction. We are suing solely on a negotiable warehouse receipt, and he is limited to the objections which are raised in that act itself, and, if he goes beyond that scope, it seems to me it is irrelevant to the issue.
“ARGUMENT BY COUNSEL
THE COtJRT: “I sustain the objection. Unless you alleged fraud, the presumption is that Vallee is the holder in good faith.
MR. MABRY: “The defendant intends to prove, by cross examination, that when Val-lee obtained this negotiable instrument, through his employee, Mr. Rabanack, the witness, that Vallee & Company did not have goods nor deliver goods to the Imex Warehouse Company for which this receipt was issued, and, in fact, turned over to Imex Warehouse Company an ‘NSF’ check which Imex Warehouse Company or which Baum individually had, on a prior occasion, given to Vallee & Company; and that, in liquidation or in settlement of this ‘NSF’ check, the Imex Warehouse Company, Inc., issued the negotiable receipt herein sued upon and took up the ‘NSF’ check, and that, at the time, there were no goods in the warehouse of Imex Warehouse Company, Inc., nor . delivered to it for which this receipt was issued.
THE COURT: “This is a negotiable instrument issued by the President of the Warehouse Company and in the hands of Vallee & Company. There is no allegation of fraud in the petition, nor is there any allegation that Vallee & Company were aware of the fact that there was no sugar in the warehouse' covered by the receipt in question, nor is there any allegation in the answer in regard to the ‘NSF’ check referred to in the bill of exceptions.
MR. MABRY: “While counsel concedes that the defendant must allege only facts from which the conclusion of fraud may be drawn by the court, and that it is not necessary to make an allegation of a conclusion, yet, at this time, in view of the ruling of the Court, the defendant requests leave to amend its answer by naming such an allegation, even though counsel does not deem it necessary.
MR. HENRY: “Counsel for Plaintiff objects to such a request on the ground that it comes too late, the case having come to trial, and, under the jurisprudence of this state, an amendment can never be allowed after a case has once been heard, and particularly an amendment charging fraud and knowledge where a negotiable instrument is involved.
THE COURT: “I think the objection is good; it is sustained.”

This witness then testified that he had made futile demands, once at 2:00 p. m., and once at 4:00 p. m., in the afternoon of that same day, for the sugar.

The only witness for defendant testified that he had no carbon copy of the receipt but that it might have been issued by his company, as the stub was blank.

The sole point before this Court is the correctness of the trial judge’s decision in excluding the testimony as to the check marked “NSF”, because fraud was not alleged in the answer and there was no basis for so extending the hearing.

Defendant’s able attorney contends that he alleged sufficient facts to show fraud and that he was not required to’ allege conclusions of law. In support of this argument he cites State vs. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772, and other decisions which so hold.

All the appellate courts of this State have long recognized the truth of this principle, but it has no application here.

The allegation of the answer relied upon to sustain the argument is the averment that the'goods were not in the possession of the warehouse when receipt was issued. There is no allegation that plaintiff knew this fact, and without this allegation fraud is not necessarily deducible. Section 47 of Act 221 of 1908, known as the Uniform Warehouse Receipts Act, provides that sale of a negotiable receipt by a fraudulent holder shall not impair its validity, if purchaser bought without knowledge for value.

The allegation that the goods were not in the warehouse when receipt was issued does not necessarily import bad faith on the part of plaintiff, nor is the conclusion of fraud a logical inference therefrom. The averment of knowledge of the invalidity of the receipt was essential, if the inference from that fact was intended to make proof of fraud permissible. There is no allegation in the answer to warn plaintiff that his good faith was suspected and the fact that he made demand for delivery twice that afternoon tends to show that he considered the receipt genuine.

The burden was on the Surety Company, which had guaranteed the faithful performance by the warehouse company of the contract, to prove lawful excuse (see Section 8, paragraph c) for failure to deliver, and before it could make such proof it was necessary to allege it. As issuance of receipt by a warehouseman knowing that the goods have not been received by him is made a crime by Section 50 of the Act, the failure to deliver for that reason is not a lawful excuse, unless allegation is made and proved that the holder was a party to the fraud.

“Proof must correspond with the allegation” is a maxim too deeply imbedded in our law to be lightly departed from:

Cambas vs. Burney & Arsola, 8 La. App. 206.

Victorie vs. Moulon, Mart. (O. S.) 400.

Rodreguez vs. Moise, 2 Mart. (W. S.) 358.

Colsson vs. Consolidated Assn. Bank, 12 La. Ann. 105.

May vs. Ransom, 5 La. Ann. 424.

Dubuys vs. Farmer, 22 La. Ann. 478.

Levyson vs. Ward, 24 La. Ann. 158.

Jordon vs. Anderson, 29 La. Ann. 749.

Sauer vs. Union Oil Co., 43 La. Ann. 699, 9 So. 994.

Bell vs. Globe Lumber Co., 107 La. 725, 31 So. 994.

Woolin vs. United Irrigation Co., 128 La. 294, 54 So. 824.

"Fraud must be specially pleaded. Evidence of it is inadmissible under the general issue.” Meister vs. Merchants Mut. Ins. Co., Mannings Unreported Cases, 169.

To permit the Surety Company to attack the validity of the principal’s contract of bailment without any allegation of guilty knowledge necessarily implying bad faith on the part of plaintiff, would largely destroy the usefulness of the Negotiable Warehouse Receipt, and would necessarily clog the wheels of commerce, to which this symbol of credit daily becomes more and more essential.

For above reasons the judgment appealed from is affirmed.


text:
    No. 11,552
    Orleans
    BLANCHARD v. PATTERSON ET AL.
    (January 21, 1929. Opinion and Decree.)
    C. E. Loeb Savoy, of New Orleans, attorney for plaintiff, appellee.
    James G. Schillin, of New Orleans, attorney for defendant, appellant.
   JONES, J.

The suit in this case was originally filed against Alonzo C. Patterson, Gus Coin and Max Pink, a partnership operating a cafe business in New Orleans under the name of “La Vida Restaurant,” for $157.50.

Petitioner, a cabaret entertainer, alleges as follows:

She made a written contract on the 15th day of November, 1927, with La Yida Cafe, for a period of four weeks, at a salary of $150.00 per week, with an option of an additional four weeks, the said contract being signed by herself and Max Pink, one of the defendants; she rendered services for four weeks and at the termination of that period defendants exercised their option by employing her for an additional four weeks; at the end of the second week of the renewed contract, defendants withheld from her $50.00 of the amount due, but promised to pay it later, and she, relying on their promises, continued to render services for an additional five days, when she was taken ill, and upon her recovery was dismissed by Alonzo Patterson, one of the- defendants; she offered her services repeatedly, but was constantly refused by defendants; there is a balance due her of $157.50, composed of two items — one of $50.00, balance due on the first week of the new contract, and $107.50 for five days which she worked on the second week of the renewed contract.

Petitioner prays that each of the defendants be duly served with petition and after trial there be judgment in her favor and against the said defendants, condemning them to pay her $157.50, with legal interest and all costs. Petitioner further prays for all general and equitable relief.

Attached to the petition is the original contract sued on, which reads in part as follows:'

“ARTIST CONTRACT
“AGREEMENT, made this 15th day of November, 1927, between LA VIDA CAFE of New Orleans, La., * * * Manager and * * * JERRY BLANCHARD of Chicago, Ill. * * * Artists.
“The Manager hereby engages the artists as BLUES SINGER for a period of FOUR weeks or more, transportation ONE WAY, commencing on or about Nov. 19th, 1927.
“In consideration of which the manager agrees to pay to said artist the sum of ONE HUNDRED & FIFTY Dollars ($150) per week, less 10% to be deducted by said manager and payable to Parent Entertainment Service. * * *
“Manager — Max Fink (Signed)
“Artists — Jerry Blanchard (Signed)”

The three defendants were duly served with a copy of the petition. Max Fink answered, admitting the contract, but denying the indebtedness and further alleging that he was employed as a musical director with power to engage entertainers, but that he had never been a partner in the business, and that he was in no way liable for any of the cafe’s indebtedness. Shortly after the filing of this answer, on motion of plaintiff, the suit against Max Fink was dismissed.

As Gus Coin never filed any answer, judgment by default was rendered against him in the full amount claimed, and no appeal has been taken from that judgment. Alonzo Patterson filed an exception of no cause of action, along with an answer which amounted to a general denial, coupled with a special denial of Max Fink’s agency.

At the trial on the merits, Patterson failed to appear, though duly notified, and after full hearing there was judgment against him in the full sum' of $157.50, with interest and costs. From this judgment he has appealed to this court.

Here he urges two defenses: First, his exception of no cause of action, and, second, that plaintiff was not entitled to a judgment for the full amount claimed against him, as she did not aver that the partnership was commercial and she did not pray for a judgment in solido.

The exception of no cause of action is grounded on the fact that petitioner alleges a contract for four weeks’ service at $150.00 per week and that she admits payment of this amount, thereby leaving nothing due.

This argument is unsound, because the petition avers — and for the purpose of this exception that allegation must be taken as true — that the contract contained an option for an additional four weeks’ employment, and that the defendants exercised this option and continued her employment. This allegation is sustained by the second paragraph of the above quoted contract, which reads: “for a period of four weeks or more.” Moreover, the uncontradicted evidence shows that Patterson himself employed the young lady for an additional period, after the end of the first four weeks, and that he paid her himself. $100.00 on the second week. There is nothing unusual in such a contract, and such provisions have been recognized by this court and the Supreme Court.

“A contract for the hiring of services may also be continued by reconduction.”

General Automatic Fire Alarm Co. vs. N. O. & N. E. R. R., 115 La. 633, 39 So. 738; Newman vs. Longshoremen’s Ben. Ass’n., 11 Orl. App. 38; T. J. Sullivan vs. N. O. Stone & Heading Co., Ltd., 44 La. Ann. 787, 11 So. 89.

Appellant also contends that Max Fink was never' authorized by him to employ the young lady, but this contention, even if true, has no merit here, because the evidence shows beyond all doubt that Patterson himself ratified the contract by paying the young lady by re-employing her and by paying her for additional time.

“The acts of an agent, even if unauthorized by his mandate, or any violation thereof, are considered as ratified by the principal by acquiescence, if, after knowledge of the same, he does not repudiate it.”

Succession of Gilmore, 154 La. 105, 97 So. 330; R. C. C. 3010; R. C. C. 3016.

A partnership formed for the operation of a cafe or restaurant is a commercial partnership.

' “A commercial partnership is such as is formed for the purchase of any personal property, and the selling thereof, either in the same state or changed by manufacture.”

R. C. C. Art. 2825; Shreveport Ice & Brewing Co. vs. Mandel Bros., 128 La. 314, 54 So. 831.

As the suit was filed against the firm, which the law declares to be a commercial partnership, and as the Civil Code declares that commercial (partnerships are bound in solido for the debts of the partnership, a prayer for judgment in solido was not sacramental, but the lower court was justified in rendering judgment against Patterson for the entire amount on the allegation in the petition that each of the parties was individually indebted for the entire amount, and on the prayer for general and equitable relief. On this point see the following authorities:

“As ’ the suit is against persons bound in solido, according to the provisions of law which define the obligations arising on the contracts of commercial partners, the judgment carries • with it solidarity even though it be not expressed.”

Prall vs. Peet’s Curator, 3 La. 283; Taylor, Knapp & Co. vs. W. J. Hancock & Co., 14 La. Ann. 693; Chapman vs. Early, et al., 12 La. 230; Wm. R. Bell vs. Massey & Poultney, 14 La. Ann. 831; R. C. C. Art. 2093.

For the reasons assigned the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 10,630
    Orleans
    TERRIBERRY, RICE & YOUNG v. STEWART
    (January 21, 1929. Opinion and Decree.)

      H. F. Styles, Jr.; Terriberry, Young, Rault and Carroll, of New Orleans, attorneys for plaintiff, appellee.
    L. E. Jung, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a law partnership for a balance of $600.00 alleged to be due on account of a fee, and for $24.95 as costs expended for account of defendant. Defendant admits the employment of plaintiff, but denies any indebtedness, contending that there was an agreement with plaintiffs to conduct the litigation, upon which plaintiff’s charge is based, for a fee of $100.00, and for an allowance for costs of $25.00, which’ sums were admittedly paid to plaintiff.

The services of the plaintiff related to the prosecution of a suit on behalf of the defendant, Stewart, and several of his relatives, against the Metairie Cemetery Association for damages and for recognition of their rights in a certain tomb in Metairie Cemetery in the City of New Orleans. It appears that an exception of non-joinder was filed to the petition prepared by plaintiff and maintained, and thereafter a second suit was filed, which resulted adversely to the defendant. Plaintiff prosecuted an appeal and retired from the case while pending in the Supreme Court.

In defendant’s answer it is alleged that the reason for the dismissal of the first suit was a professional error committed by the plaintiff firm in not pursuing the course insisted upon by defendant in the preparation of the first suit. In the testimony of defendant the statement is made that the error was admitted by the member of the plaintiff firm who handled the case at the trial of the exception which resulted in its dismissal, and a voluntary offer made to remit the fee and assume the cost of the first suit, which, as heretofore pointed out, it is claimed, was originally undertaken upon a stated fee of $100.00.

The alleged agreement concerning the fee is denied by three members of the defendant firm, and particularly and most emphatically by Mr. Young, who originally had charge of the matter for the plaintiff firm. In addition, there is in the record a bill rendered by plaintiff, in great detail, in which there appears a credit item of $100.00, described as a “retainer fee.” It might be argued on behalf of a litigant less familiar with legal procedure and professional terms that the word “retainer” would import no significance to the lay mind, but in this instance defendant professes unusual familiarity with the law and criticizes the work of his counsel in the preparation of his petition. Consequently, he must have known what was meant by the use of the word “retainer.” On this point our conclusion is that the evidence fails to show the contract relied upon by defendant.

On the question of the quantum, we were much impressed with the statement ■e trial judge, to the effect that the services, for which compensation is claimed in this suit, were performed before him, as trial judge, in the second suit, and, that in awarding the full amount claimed, he was satisfied that it was a reasonable fee. Counsel for defendant, however, points out that the subject-matter of the litigation involved only a small fractional interest in a tomb worth $3,000.00, and, that the interest of defendant was not intrinsically worth the sum claimed by his attorneys.

A lawyer’s fee, of course, should always bear an appropriate relation to the advantage to be obtained by his client in the litigation for which the fee is charged, but, other things besides material gain influence clients in the employment of professional services. Motives of anger, an outraged sense of justice, or sentimental considerations, influence human conduct in this regard as in all other forms of activity. It is probable that plaintiff appraised the sentimental value of the object of the lawsuit far beyond any material consideration. His right of burial in his family tomb was involved and it is most likely that he would be willing to pay a proper fee to counsel to obtain this result ■through the litigation which they instituted.

There is absolutely nothing to indicate the alleged lack of professional qualifications on the part of any member of the plaintiff firm, except defendant’s statement, and our knowledge of the gentlemen composing that firm and our observation of their professional activities, abundantly refute the imputation.

The trial judge, who had unusual opportunity to value the plaintiff’s services, allowed the full amount claimed, and we see no reason to disturb his judgment.

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


text:
    No. 11,340
    Orleans
    SOUTHERN DEVELOPMENT CO., INC., v. GRECO
    (July 2, 1928. Opinion and Decree.)
    (August 13, 1928. Rehearing Refused.)
    (October 20, 1928. Decree Supreme Court Writ Denied.)
    Bernard Titche, Jr., of New Orleans, attorney for plaintiff, appellee.
    Eugene Hayford, of New Orleans, attorney for defendant, appellant.
   JONES, J.

The defendant, Constant Greco, on February 21, 1927, purchased from plaintiff, Southern Development Co., Inc., certain property in the State of Mississippi for nine thousand, five hundred ninety-five dollars, payable nineteen hundred nineteen dollars cash and nineteen hundred nineteen dollars represented by four promissory notes of like amount, .payable six, twelve, eighteen and twenty-four months from the said date in accordance with the deed of trust made part of the petition. Plaintiff herein sues on the first note via ordinaria, reserving its right under the attached deed of trust. The note, dated February 21, 1927, for one thousand nine hundred nineteen dollars, which is also attached to the petition, and is signed by defendant, is an unconditional promise to pay the sum claimed 'to order of plaintiff in New Orleans six months after date with interest at the rate of six per cent per annum until paid. Across the face of the note just above signature are the words, “Secured by deed of trust on Floral Estate Lots.” In the trust deed defendant conveys to a third party, the lots purchased in trust to secure the above described four purchase notes which are copied in extenso in the deed.

Defendant, in his answer, pleads failure of consideration for the notes, alleging that under the date of August 30, 1926, he agreed to purchase the said property which was consummated by the transaction of February 21, 1927, above stated, and that in the said agreement of August 30, 1926, the vendor guaranteed to resell the property for defendant at a profit, so that the purchaser and maker of the notes sued on herein would realize sufficient funds from the resale to pay the notes as they matured. There is no charge of fraud.

Plaintiff then filed a rule for judgment on the pleadings which was dismissed after long consideration. Plaintiff urges the rule again, but we prefer to settle the matter on the entire record.

The record contains three documents designated, Judge One, Judge Two and Judge Three.

“Judge One” is an offer to and agreement by defendant with Rhodes & Symmes, real estate agents, dated August 30, 1926, for the purchase of certain properties described therein, signed by Constant .Greco, defendant, and by Rhodes & Symmes, Agents. The contract is typed on two pages and contains usual stipulation in such contract. The last paragraph of the said document was an authorization to Rhodes & Symmes to re-sell the property on certain terms, but said authorization has been scratched out.

On the second page of this document after the signature is a receipt, dated same day, for one thousand, nine hundred eighteen dollars, signed' by T. J. Kercheval for Rhodes & Symmes.

“Judge Three” is a one page document, legal size paper (the same size sheet as Judge One) and has at the very top of the sheet an authorization by Constant Greco to Rhodes & Symmes to sell the property at the prices listed "below.” Right below this is a list of the property with the prices at which it is estimated land could be s°old. There is computed on the document the purchase price of the property which is deducted from the sale price as shown thereon and the estimated profit is shown. This document is dated September 28, 1926.

“Judge .Two” is a combination of documents “Judge One” and “Judge Three.” It contains the contract to purchase but in between pages one and two is inserted a third page which is almost the same as “Judge Three” but differs in several small particulars.

The plaintiff offered no testimony save the note, but Mr. Joseph Les Rhodes, its president, was called to the stand on cross-examination under the Act. Counsel for defendant attempted to show that Mr. Rhodes had signed the contract known as Judge Two under the theory, apparently, that the middle sheet thereof contained a guarantee of the Southern Der velopment Co., Inc., to re-sell the lots at prices shown thereon.

Mr. Rhodes denied signing the contract Judge Two, with the memorandum of resale values, but stated that he signed the document referred to as Judge One, which is just the ordinary contract for the purchase and sale of real estate. Mr. Rhodes then testified that at some subsequent date, to-wit: September 28, 1926, an agreement was entered into for the re-sale of the property.

Defendant says that he bought the land expecting to make a profit on the transaction and that up to the time of this suit he had not been able to sell any of it, that the re-sale was an essential part of the contract and all parts were signed at once.

Kircheval, the real estate agent, who signed receipt testified that the document Judge Two had the middle sheet in it at the time when it was signed, but upon cross-examination he stated that it was his opinion that the autthorization for the re-sale of the property was signed at the same time that the original contract to purchase was, whereas the document itself shows it was signed some months later. He does not explain the differences in the second page of Judge Two from those in Judge One.

Bell, another employee for Rhodes & Symmes, testified that document Judge Two was the real contract of sale and he thought Kercheval drew it up and submitted it t.o Rhodes & Symmes before it was signed.

We agree with the trial judge that defendants have failed to sustain his alleged defense for following reasons:

(1)The note sued is dated’ February 21, 1927, and the alleged contract of sale in the document Judge Two is dated August 30, 1926, nearly six months before.

(2) The alleged contract of August' 26th is signed by Rhodes & Symmes, agents, whereas the note is made payable to the Southern Development Co., Inc., and there is no proof of identity of these legal entities.

(3) Even if the middle page of Judge Two be considered as part of the sale contract, a conclusion by no means proved, it is merely an authorization to sell the lots at certain increased profits. It is not a guarantee of any kind, nor does it make the re-sale of the lots a condition precedent to payment of notes.

For above reasons the judgment is affirmed.


text:
    No. 11,739
    Orleans
    WASZKOWSKI v. BEATROUS
    (January 21, 1929. Opinion and Decree.)

      Elias Bowsky, of New Orleans, attorney for plaintiff, appellee.
    A. Miles Coe, of New Orleans, attorney for defendant, appellant. •
   WESTERFIELD, J.

Defendant appeals from a judgment rendered against him on the face of the pleadings.

The petition alleges that plaintiff is the holder in due course, of a certain promissory note, signed by defendant, in the sum of $1,500.00, being the last holder of the note and haying acquired it for value, before maturity.

The defendant answered that:

“Defendant has good reason to disbelieve and therefore specially denies that petitioner is the last holder and owner for a valuable consideration, before maturity, of the note mentioned in said paragraph, and he specifically denies that said note was purchased by petitioner, before maturity, for a valuable consideration, or that he purchased same in good faith.”

The signature of the note is not denied nor is there any plea of want of consideration, the sole defense being, as set forth in the paragraph of defendant’s answer, which we have quoted. In denying that plaintiff was a holder in due course, defendant opened the door for defenses appropriate in a suit between the original payee and the maker, the payer. Having taken this preliminary step and failed to make any other defense whatever we are of the opinion that he has raised no issue and that consequently the trial court was correct in its conclusion.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 416
    First Circuit
    ROUSSEAUX v. ROBINSON
    (February 13, 1929. Opinion and Decree.)
    Amos L. Ponder, of Amite, attorney for plaintiff, appellee.
    Rownd & Warner, of Hammond, attorneys for defendant, appellant.
   ELLIOTT, J.

Miss Mattie Rousseaux alleges injury and damages sustained by her, and responsibility on the part of John M. Robinson, because of the action of his dogs in killing her chickens and turkeys. She alleges damages on said account to the extent of $151.40. Some other items of loss are claimed in her petition, but the only contest that seems well established is her demand based on the Civil Code Article 2321.

Defendant denies liability, but immunity on the ground that his dogs had been lost or had strayed more than a day is not claimed.

The lower court awarded plaintiff the sum of $146.40 with interest, on account of her poultry, and defendant has appealed.

Defendant contends that the evidence does not show that his dogs did the killing, and alternatively, and in case it appears that they did, that the amount allowed on that account is excessive.'

We are satisfied from the record that defendant’s dogs killed plaintiff’s poultry as alleged, and on the subject of the amount of damage sustained, the evidence does not warrant a reduction of the amount allowed by-the lower court.

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