text:
    No. 9093
    Orleans
    ROZELL McWILLIAMS, Appellant, v. JOHN W. MATHES
    (November 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 215.
    Verbal testimony is inadmissible to vary the plain unambiguous terms of a written contract in the execution of which there has arisen no error or fraud.
    2. Louisiana Digest—Mandate—Par. 74.
    Apparent authority in a solicitor to secure a contract of agency for his principal does not carry implication of like authority to entirely abrogate the contract, without consent of the principal.
    3. Louisiana Digest—Evidence—Par. 40.
    Evidence peculiarly available to a litigant and tending to establish a preponderance of evidence in his favor will be presumed unfavorable when not offered.
    Appeal from Civil District Court. Parish of Orleans, Div. “F”, Hon. Percy Saint, Judge.
    This is a suit for commission alleged due under a written contract for the sale of real estate.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    F. Rivers Richardson, of New Orleans, attorney for plaintiff, appellant.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellee.
   OPINION

BELL, J.

Plaintiff, a real estate agent doing business in the City of New Orleans, sues defendant for $288.00, which he claims is due him for commissions under a written contract dated April 12, 1918, the material provisions of which read as follows:

“April 12, 1918.
“I hereby appoint R. McWilliams * * * my agent * * * to sell my property * * * more fully described on the reverse side of this card * * * I give my agent sole control of same from date until revoked by thirty days’ written notice of withdrawal and I also oblige myself not to allow other agents to offer this property for sale or to post signs thereon, and further agree not to interfere in the sale of the property during the term of the contract. I also bind myself to refer all applicants for the purchase of said property to my agent * * *. When this property is sold I agree and bind myself to pay my agent a commission of 3 per cent no matter by whom the property has been sold. * * * In case of suit to recover my part of the commission due, 25 per cent will be added for attorney’s fees.
“(Signed) Jno. W. Mathes.
“Accepted (Signed) R. McWilliams.”

Plaintiff annexes the original contract, makes it part of his petition, and alleges that no written withdrawal of the property from plaintiff’s hands was ever made by defendant, but that while the contract was in full force, and after plaintiff had accepted and acted upon same- defendant sold the property for $9600.00,- and hence became indebted to plaintiff for commission to the amount claimed. It was further alleged that while plaintiff’s employment was in full effect, defendant illegally obtained possession of the written contract, and endeavoring to defeat plaintiff’s rights to commissions, changed and altered the contract, without plaintiff’s consent, so as to make it appear that the employment was only for a period of . sixty days. Amicable demand without avail is averred, and prayer for recovery of attorney's fees, as well as commissions, is made.

Defendant answers by averring that if the document sued upon was signed by him, it was signed under a misapprehension of its conditions, and absolutely contrary to the specific agreement had with plaintiff, which was that the property was to be in the hands of plaintiff only for thirty days. Defendant admits that no written withdrawal of the contract was made, and avers that none was necessary; he admits the sale for the price mentioned, but denies that it occurred while the agreement with plaintiff was in force, and that in fact, it was made after plaintiff’s contract had terminated. As a special defense, defendant finally avers that all of his negotiations concerning the contract were with a young lady, representing the plaintiff, and that he never had any agreement with plaintiff personally; that long after he had agreed with this agent or employee of the plaintiff, another real estate agent negotiated with defendant for the sale of the same property, and that this fact, in some way, became known to plaintiff, who phoned defendant that this other agent should be referred to plaintiff’s office; that this demand was a surprise to defendant, for the reason that the time limit for which the property had been placed in plaintiff’s hands had elapsed; that thereupon he phoned the young lady with whom the negotiations had been had, and told her there must have been some mistake; that she then brought to defendant’s office the original contract which he had signed, admitted to the defendant that the document did not correctly set forth the terms of the agreement, and that she then and there voluntarily interlined and changed the document, so as to make it accord with the original agreement.

In his written reasons for judgment rendered in favor of defendant, our learned brother of the District Court predicated his decision upon the following findings of fact:

“Plaintiff’s agent admitted that there was a mistake, ■ and immediately changed the contract in accordance with the understanding of both herself and the other party to the contract.”

Our careful consideration of the record leads us to the belief that the judge a quo was manifestly in error as to the above finding. In no part of the evidence have we been able to find that the plaintiff’s employee admitted that a mistake had been made by her or the defendant in drawing the original agreement. Nor does the defendant so testify. In response to instructions given him by the trial judge to state what was the intention of himself and of the employee which led up to the execution of the original contract, he testifies:

“Mrs. Woodward came to me and asked for an option of thirty days, and I told her the property was in the hands of the other real estate agent, and I did not feel that I wanted to tie it up for any more than thirty days, and this contract was then signed—the first option. Later I found out that this contract was not according to her agreement with me, and she came to me, at my office, and suggested this change; she told me ‘scratch this line and put sixty days and that will straighten the matter up’.”

Counsel for defendant, while cross-examining the solicitor, propounded to her not once, but on four different occasions, the following questions:

“Well, did the contract as it was signed originally, or as it was changed, correctly set forth your agreement with Mr. Mathes?”

This witness finally answers the question hy saying “That is for Mr. Williams”, and, further answering the same question, she says:

“Of course, I was new at the business and did not know that I had the authority to change that contract, which, of course, I should not have done * * *. O yes, I think he thoroughly understood the agreement. I thought he did, I am sure.
“Q. Why did you let him change it?
“A. Well, because I did not know.
“Q. Well, you said you did not have the authority to let him change it, but did you not let him change it because your original understanding had been that the contract was to be for sixty days?
"A. No, I only let him change it because I was anxious to get the contract, and I thought I was doing right in letting him change it.
“Q. You let him change it because you wanted to get the contract? ,
“A. After' he suggested the change. I did not suggest the change.”

There is no dispute that when the lady, at defendant’s request, called upon him at his office on June 20, 1918, and brought with her the original contract, defendant, with his own pen, changed one of the clauses in the'contract originally reading:

. “I give my agent sole control of same from date until revoked by thirty days’ written notice of withdrawal.”

so as to make it read, after certain interlineations and erasures, as follows:.

“I give my agent sole control of same from date for 60' days’ written notice of withdrawal.”

A reading of the clause as altered conveys to the mind no intelligent meaning, but if defendant intended by such alterations made on June 20, 1918, to have it appear that the contract had expired under a siXty-day limitation, he deceived no one but himself, for the reason that more than sixty days had already run from the unaltered, original date of the contract, to-wit, April 12, 1918. As already noted, defendant states in his testimony that he did not wish to tie up his property for -more than thirty days; that he so notified the solicitor, and that in this respect, the contract, before its alteration, did not express the true agreement between himself and the plaintiff’s solicitor. Taking him at his word, we‘ are still at a loss to conceive how the alterations made hy him remedied the situation. The only logical conclusion which must be drawn from all the facts and surrounding circumstances of this case is that defendant’s sole motive in requesting the solicitor to return to his office with the card was to secure, if possible, an alteration of the contract so as to either entirely nullify the original document or so qualify it as to relieve him- of any obligation to pay plaintiff any commissions. It should be noted that this change was effected on the very same day upon which an agreement to sell the property was made to parties which defendant failed to refer to plaintiff’s office. There is uncontradicted evidence in the record to the effect that upon the same day as that upon which defendant made the useless alterations, the solicitor, after calling on defendant, wrote on the marginal face of the contract the following:

“June 20 exclusive contract expired other agents have it—but will pay us commission if sold.”

The above notation is, in fact, the material manner in which the contract was really altered, and its effect was,to change the original document so as to entirely deprive plaintiff of the exclusive agency given him, as against the world, for the sale of defendant’s property.

The conversation between plaintiff’s solicitor and defendant concerning just why he desired the contract to be altered or qualified, and in which respect he considered the contract at variance with the original agreement, appears to have occurred in the presence of a third party, defendant’s stenographer. Considering the contradictory testimony of the solicitor as against that of defendant, concerning what was said and done at this conference, we are led to believe that this third party should have been called as a witness for the defense in corroboration of his testimony. No - explanation appears in the record as to why such evidence was not offered. The presumption arising under these conditions is unfavorable to defendant. Succession of Mrs. Emile Kantz, 7210 Orl. App.

The only real surprise which defendant could possibly have had, occurred immediately before the alterations of the contract, when he found out that plaintiff had learned of, and therefore had promptly put him in default, for violating a vital clause of the contract, which reads as follows:

“I also bind myself to refer all applicants for the purchase of said property to my agent.”

It is contended by counsel for defendant that by the same token which led defendant to believe that plaintiff’s solicitor had full authority to make the contract, there was like justification on defendant’s part in concluding that the same -solicitor had full authority to alter or qualify the contract, when it did not express the real intent of the parties thereto. The trial judge seems to have approved of this contention, but such a principle of law, in our opinion, has no application to the instant case. It is impossible to conclude from the plain language of the marginal alterations above referred to, that same were intended to correct the mistake contended by defendant. There is no ambiguity in the words used. They clearly indicate that the solicitor, as well as the defendant, understood the original agreement to have been “an exclusive contract”, and that by the additional use of the word “expired”, both the solicitor and defendant, without consulting plaintiff, intended to entirely abrogate the exclusive contract. Surely no such authority could be imputed to the plaintiff’s solicitor.

We find no ambiguities whatever in the original contract sued upon. In its language, it is as plain as a pikestaff; in its effect, it is as binding as a straight-jacket. There was error in admitting verbal testimony to change or alter the document.

The defendant, by his special defense to this suit, assumed, but failed to carry, the burden of proof toward accounting satisfactorily for the interlineations found in the document, and which cause substantial changes affecting the instrument. Pipes vs. Hardesty, 9 La. Ann. 152; Wheadon vs. Turregano, 112 La. 931, 36 South. 808; Messi vs. Frechede, 113 La. 679, 37 South. 909.

We are of the opinion that the judgment is erroneous and that plaintiff should recover.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered, adjudged and decreed that there be judgment for plaintiff, Rozell McWilliams, and against defendant John W. Mathes, in the sum of Two Hundred and Eighty-eight Dollars ($288.00), with legal interest from judicial demand until paid; and for an additional sum of Seventy-two Dollars ($72.00) as attorney’s fees.


source: Caselaw Access Project

author: BELL, J. CLAIBORNE, J.

license: Public Domain

text:
    No. 9053
    Orleans
    ELECTRICAL SUPPLY CO. v. HARRY L. MOSES, Appellant
    (January 18, 1926, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Judgment—Par. 34, 38.
    While the general rule of procedure is that a judgment by default cannot be taken while exceptions are pending and undisposed of, nevertheless, where a supplemental petition is voluntarily filed and duly served upon the defendant, in response to an exception of vagueness; and where no subsequent exception is filed within legal delays to the supplemental petition, defendant will be presumed to have waived his original exception, and judgment based upon a default taken and confirmed in due course is valid.
    2. Louisiana Digest—Judgment—Par. 42.
    A judgment by default is a sufficient corroborative circumstance, with the testimony of one witness, to establish a claim amounting to more than $500.00.
    3. Louisiana Digest—Judgment—Par. 42.
    There is no law requiring that in confirming a default the citation and return of the sheriff thereon should be formally offered in evidence.
    Appeal from the Civil District Court, Division “C”, Hon. E. K. Skinner, Judge.
    This is a suit upon an open account for merchandise sold and delivered. Defendant •filed an exception of vagueness. The plaintiff in response filed a supplemental petition giving facts and details. No answer was filed. A judgment in default was taken by plaintiff after due delays.
    Defendant appealed.
    Judgment affirmed.
    CLAIBORNE, J. Dissents.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for plaintiff, appellee.
    B. I. Cahn, of New Orleans, attorney for defendant, appellant.
   BELL, J.

On September 25, 1922, plaintiff sued defendant upon open accounts in the sum of $507.57. The original petition sets forth that the merchandise was sold and delivered to the defendant “during the period from September 12, 1921, to December 20, 1921, in the amount of $836.47”.

In careful detail, the exact quantity, description and value of each item sold was enumerated, but the date of each sale was not stated. The remaining allegations of the petition were to the effect that a cash payment of $300.00 had been made in the latter part of April, 1921, and that the total bill should be further reduced by two credit memoranda in the sum of $28.90. With these deductions, amounting to $328.90, the petition concludes with' the averment of amicable demand without avail, and with a prayer for judgment in the net amount above stated.

On October 17, 1922, exceptions of vagueness were filed to the original petition in the following language, to-wit:

“Now into Court, etc., comes defendant herein and excepts to the petition herein filed, and for cause of exception, says:
“That it is too vague and indefinite in that it fails to show the exact date of each alleged purchase and delivery.
“That it is too vague and indefinite in that it fails to state whether the alleged purchases were made l>y written or oral contract, and if by written contract or orders, defendant calls for the production of the same.
“Wherefore, the defendant prays that these exceptions be maintained; that plaintiff be ordered to amend his petition, as above set forth, within five days, and that in default of his so doing, there be judgment dismissing this suit; and for all needed orders and for general relief.”

In response to the foregoing exceptions, plaintiff voluntarily filed, with leave of the court, a supplemental petition, reading as follows:

“Article I. Paragraph 2, page 1 of original petition, should be amended to read as follows: That Harry L. Moses is justly and truly indebted unto your petitioner in the full and true sum of Five Hundred and Seven and 57-100 ($507.57) Dollars for merchandise sold and delivered to the said Harry L. Moses as follows:
“Article II. That there was sold and delivered to the said Harry L. Moses, in the ordinary course of business, the following goods and merchandise, on the dates and for the price herein appearing, to-wit:
(Here follows an itemized detail, dates, descriptions and prices of goods sold.)
“Article III. That on September 19, 1921, in response to a written order reading as follows:
“Electrical Supply Co.
“Please deliver 13 shades No. 27
“(Signed) Harry L. Moses.
“General Hotel Job.”

* * * your petitioner sold and delivered to the said Harry L. Moses the following article :

9-19-21 13 2(4 Cameo Bear Par Shades
.25 ea__________________________________________________$3.25

“That on October 19, 1921, in response to a written order reading as follows:

“Oct. 17, 21.
“Electrical Supply Co.
“Please deliver at once 1 2/2 Condulet charge.
“(Signed) Harry L. Moses.
Job—Barker Bakery No. 3.’

* * * your petitioner sold and delivered to the said Harry L. Moses the following article :

“ ‘10-19-21 1 9025 1 Unilet Blank Cover
.56 ea. 5__________________________________________________________53

“That on November 12, 1921, in response to a written order reading as follows:

“‘N. O. La., 11-12-21.
“ ‘Electrical Supply Co.
“ ‘Please delivery to bearer 1 doz. fuses 30 amphere 250 volt.
“'“(Signed) Harry L. Moses.
“ ‘Per Jos. J. D.’

your petitioner sold and delivered to the said Harry L. Moses the following article: 11-12-21 12 30 Amp. 250 v. Enc. Puses

.20 ea. 70___________________________________________________72
“That on September 28, 1921, in response to an order of the said Harry L. Moses, your petitioner delivered to the said Harry L. Moses goods as follows:
“ ‘11-28-21 1 10" S. & T. Westinghouse
Fan, 22.50 20-10 ____________________________________16.20
* * * which goods were, through error, first charged to Sullivan-Kronheim Co., but which were later charged to the said Harry L. Moses as per charge dated November 30, 1921.
“Article IY. That the total purchase price of the goods sold and delivered to the said Harry L. Moses amounted to $836.47, which amount has been reduced by credit memorandum and cash payment as follows: 10-7-21 5 per cent commission on four
sold to Myron, Inc., City______________________ 25.00
10-14-21 5 3^x8 C. R. I. Balls____________ 3.50
Cash payment on or about April, 1922..300.00
Total amount of credits and payment ...............................................$328.90
“Article V. That after deducting the credits and cash payment, the amount now owing and still unpaid is Five Hundred Seven and 57-100 ($507.57) Dollars.”

After personal service and citation in respect to the foregoing supplemental petition, defendant failed to answer the same within the delays prescribed by law, and default was entered thereon and duly confirmed. From the judgment by confirmation, defendant has appealed, and now presents, by brief and argument, the following contentions:

“First. That a default cannot be confirmed where exceptions are' pending and have not been disposed of.
“Second. That a judgment cannot be rendered on a claim in excess of $500.00 on the testimony of one witness, general in its nature, with no corroborating evidence.
“Third. That a judgment cannot be rendered in confirmation of default taken by a supplemental petition where plaintiff fails to offer in evidence the citation and sheriff’s return thereon in respect to the original petition.”

' Considering the first of the foregoing contentions, there can be no question as to the general and well-established rule of procedure, that exceptions which have been duly pleaded should be fully disposed of before default is taken and judgment in confirmation is rendered. Sate of Louisiana vs. Vallette, 26 La. Ann. 730; Hart, vs. Nixon, 25 La. Ann. 136; Rawle vs. Skipwith, 8 Martin (N. S.) 118; Francis vs. “Black Hawk” et al., 18 La. Ann. 629.

The wisdom and justice of the rule as established by the jurisprudence found in the foregoing citations has no application, however, to the instant case, where by the supplemental petition, voluntarily filed, plaintiff has secured to the defendant every advantage which could possibly be accorded him by judicial observance of the said rule. In the cited cases, default was taken upon the original petition in disregard of certain exceptions undisposed of and which were other than those of yagueness, and without relation to supplemental pleadings, none except in the last cited case having been filed.

In Francis vs. “Black Hawk”, the court noted that as to the judgment in confirmation of default, the only valid judgment which could be taken was concerning the supplemental petition recognizing the ruling stated in Ballard et al., vs. Lee’s Administrator, 14 La. 213. In the Ballard case, it was held: “The second default confined expressly to the amended petition, is the only one which could be legally made final.”

The above quoted supplemental petition in the present case has been incorporated in this opinion as the basis of our conclusions of fact, that every complaint as to vagueness has been fully met and every demand or request as to information desired has been fully complied with by plaintiff. No formal order or ruling possible of rendition by the trial court in maintenance of the exception, could have resulted in greater relief or fuller satisfaction to the defendant herein than as that resulting from the voluntary filing of the supplemental petition.

“The law favors the amendment of pleadings to avoid injustice when the amendment does not make the situation better for the party amending, or worse for the other party, than it would have been if the new allegations had been made in the original petition.” Southern Iron & Equipment Co. vs. Cardwell Stave Co., 154 La. 109, 97 South. 332.

If the supplemental pleading in any manner failed to meet the evident purposes of the exception, defendant should have promptly excepted to the supplemental petition within legal delays. Article 421 of the Revised Code of Practice, provides:

“When one of the parties has amended either his petition or his answer, the other party has the right of answering the amendment, but it must be done immediately, unless the amendment be of such nature as to induce the court to grant further time for answering same.”

The rule of law applicable to this case is, in our opinion, clearly stated in Aston vs. Morgan, 1 Martin, 206 (approved in Freeland vs. Lanfear, 2 Martin (N. S.) 257), where it was said:

“When the plaintiff withdraws his petition for amendment, the pleadings, on the return of it, must be anew, and if the defendant attempts to delay the plaintiff improperly, he is to be quickened by the same means as in the beginning of the suit.”

Defendant having failed to make or file timely exceptions or to otherwise plead to the supplemental petition, with which he was duly and personally served, it must be presumed that he waived his exception of vagueness to the original petition. To hold otherwise would result in judicial assistance to a pleader having, as his purpose (contrary to his counsel’s honest and sincere certification) but one objective, that of retarding the machinery of justice. We are unable to gather from the record or from argument of counsel for appellant, any reasons for complaint in the court’s apparent disregard of the exception, except that the relief sought by his pleadings has been fully accorded him without formal and judicial mandate. Courts will not do nor will they assist in doing that which can only redound to the detriment of one litigant while satisfying the idle whims of his opponent.

As to the second contention that the judgment was taken on insufficient proof involving a claim of over $500.00, the answer is found in the ruling made in Webster & Co. vs. Burke, 24 La. Ann. 137, as follows:

“It has been long settled that a judgment by default is a sufficient corroborative circumstance, with the testimony of one witness, to establish a claim amounting to more than $500.00.”

See also Leeds vs. DeBuys, 4 Rob. 257;

Lopez vs. Bergel, 7 La. 178.

We dispose of the third and final contention above noted by reference to the former ruling of this court in the case of Dupuy vs. Knickerbocker Leather & Novelty Co., 11 Orl. App., 272. It was there held by this court:

“There is no law requiring that in confirming a default the citation and the return of the sheriff thereon should be formally offered in evidence.”

For the foregoing reasons we find the judgment appealed from to be correct, and the procedure under which it was obtained is in every respect valid and proper.

It is therefore ordered that the judgment appealed from be affirmed, at defendant’s cost in both courts.

Judgment affirmed.

Dissenting opinion of

CLAIBORNE, J.

“I do not think a default could be confirmed and judgment obtained upon a supplemental petition while exceptions to the original petition were pending and undecided. Phillips vs. Paxton, 3 Mar. (N. S.) 39; Ballard vs. Lee’s Administrator, 14 La. 211; Knight vs. Knight, 12 La. Ann. 59; Heirs of King vs. Wartelle, 14 La. Ann. 742; State of Louisiana vs. Vallette, 26 La. Ann. 730; Kentgen vs. Jordan, 15 La. Ann. 219.”


author: BELL, J.

text:
    No. 10,030
    Orleans
    S. PFEIFFER & COMPANY v. R. F. MAYER & COMPANY, Appellant
    (November 30, 1925, Opinion and Decree.)
    (December 14, 1925, Rehearing Refused.)
    (February 1, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Gourt.)

    1. Louisiana Digest—Brokers—Par. 27, 28.
    A broker, though an agent of him who employs him originally? becomes also the broker of the other party when the bargain between the principals is definitely settled.
    2. Louisiana Digest—Brokers—Par. 8, 12, 13.
    “The obligations of a broker are similar to those of an ordinary mandatary, with this difference, that his engagement is double and requires that he should observe the same fidelity towards all parties and not favor one more than another.” R. C. C. Art. 3017.
    Appeal from the First City Court of New Orleans, Section “B”, Hon. Val J. Stentz, Judge.
    This is a suit for damages. Defendant pleaded exception of vagueness, and no cause of action. The exceptions were referred to the merits and after trial judgment was rendered for' plaintiff.
    Defendant appealed.
    Judgment - affirmed.
    WESTERFIELD, J. Dissents.
    Louis L. Rosen, of New Orleans, attorney for plaintiff, appellee.
    Bernard Titche, Jr., of New Orleans, attorney for defendant, appellant.
   BELL, J.

This is a suit for damages in the sum of $135.00. The plaintiff company, wholesale grocers and exporters at New Orleans, sues the defendant company, produce sale agents and brokers, also of New Orleans. On December 19, 1923, plaintiff, S. Pfeiffer & Company, bought a carload of potatoes of defendant, R. F. Mayer & Company, who' was acting as agent and broker for the Boyle Company, a produce corporation doing business at Wichita, Kansas. Defendant, on the same day, notified The Boyle Company of the sale, and also gave to plaintiff written confirmation thereof. On December 22, 1923, The Boyle Company telegraphed defendant not to sell the carload of potatoes “until arrival”. It is claimed that defendant failed to notify plaintiff of the receipt and contents of the telegram until January 7, 1924, and that only upon that day did defendant inform plaintiff that the carload of potatoes had been diverted and sold to a party at Mobile, Alabama. It is further claimed that the rise in the market occurred between December 24, 1923, and January 7, 1924, and that if defendant had notified the plaihtiff of the cancellation of the contract on December 24, when the telegram from The Boyle Company was received, plaintiff could have replaced the potatoes at contract price. The action, which is one ex delicto, is based on the alleged negligence of defendant in the' manner above noted.

Defendant answers by pleading vagueness in plaintiff’s petition, and that it discloses no cause of action, alleging that plaintiff’s demands are inconsistent, and averring that plaintiff be compelled to elect .whether the action is upon contract or tort; defendant answers by admitting the sale. It avers plaintiff well knew that the contract referred to was made by defendant on behalf of The Boyle Company as the latter’s agent; that on December 24, when finally advised by The Boyle Company that it would not deliver the specific carload of potatoes sold, defendant immediately notified plaintiff to that effect, and that the market price of potatoes was practically unchanged between the original date of sale, to-wit, December 19, and the date of notice that no delivery would be made, to-wit, December 24. Defendant specially avers that at no time did it exceed its authority, but that, on the contrary, all of its actions were specifically authorized by The Boyle Company.

The trial judge, refusing to direct an election by plaintiff as to the nature of the action (Slawson vs. McCaffery, Manning’s Unreported Cases, 313), properly referred all exceptions to the merits, and after due trial rendered judgment for plaintiff in the amount claimed. Defendant has appealed.

The important question here involved is whether. defendant owed a duty imposed by law to immediately notify plaintiff that the shipment would not be made as agreed upon in the contract. Under the plain provisions of the Civil Code, as well as from the facts of this case, which disclose the nature of defendant’s business, there is no room for doubt that defendant, while perhaps acting originally for The Boyle Company, became the broker of both the seller and the buyer in the transaction of sale from the moment of the confirmation, J. & G. Lippman vs. Rice Millers’ Distributing Co., 156 La. 471, 100 South. 685; Maloney vs. Asehaffenburg, 143 La. 527, 78 South. 444; Southern Cotton Oil Co. vs. Shreveport Cotton Oil Co., 111 La. 387, 35 South. 610; Hugh Allison & Co. vs. L. M. Watson, 36 La. 616; Woods, Slayback & Co. vs. Rochi, 32 La. 210; McLean vs. Elliott, 27 La. 385; Rice and Son vs. Payne, 151 La. 949, 92 South. 395.

On December 19, 1923, as shown by the written confirmation of sale sent to plaintiff, the relation of broker was assumed by defendant toward plaintiff in respect to all dealings arising under the contract, as well as all duties imposed by such relation.

Civil Code, Article 3016:

“The broker or intermediary is he who is employed to negotiate a matter between two parties and who, for that reason, is considered as the mandatary of both.”

Civil Code, Article 3017:

“The obligations of a broker are similar to those of an ordinary mandatary, with this difference, that his engagement is double, and requires'that he should observe the same fidelity towards all parties, and not favor one more than another.”

Aside from the commentaries of text writers and Corpus Juris to which we are referred regarding the law of agency and sales, the principle .of the. Civil Law—quite in accord with that of the Common Law as applied to all mandataries, whether brokers or agents—is well expressed in Todd vs. Bourke, 27 La. Ann. 385, 389. In that case, brokers of negotiable papers, as original representatives of the holder of a forged mortgage note, induced the plaintiff, a woman, to purchase the note upon false representations, which could not have possibly been made if the brokers had ascertained by actual investigation, the real facts regarding the property, the note and the act of mortgage involved in the transaction. The court, observing the provisions of the Civil Code, as noted by us in the instant case, held that the brokers, as well as the vendor of the note, were liable in solido to the purchaser. It was there said:

“We must, from the evidence, regard the relations of these two defendants towards the plaintiff as being something more than those of brokers. Their functions and obligations did not cease upon merely bringing together the parties that were to contract and leaving them to arrange their business as they saw best. We must regard them in the light of mandataries, and having assumed the character themselves, they were bound to use the same diligence and precaution to prevent fraud being practiced upon the plaintiff that a prudent person would use in regard to his own affairs.”

This principle of law has been frequently enunciated by the Supreme Court of the State in its later decisions already noted by us. We have given careful attention to the authorities cited by counsel for appellant, especially those of Delaney vs. Rochereau, 34 La. Ann. 1123, and Humber vs. Reid, 49 Ga. 207. These cases involve the non-liability of an agent to a stranger or third party. Neither the facts nor the law involved in these decisions are applicable to the instant case.

We are of the opinion that defendant was the broker and mandatary of plaintiff and, as such, was obligated to observe and perform toward plaintiff every duty involving necessary notice, such as would obviate any possible loss arising from failure of the seller to consúmate the contract existing between the principals thereto. The exception of no cause of action here pleaded is without merit.

There remains for determination the question of fact whether defendant withheld from plaintiff the important information contained in the two telegrams sent by The Boyle Company on December 22, 1923, one of which was not delivered to defendant until December 24, 1923. The evidence in resepect to the delivery of these wires is conflicting; the plaintiff’s witnesses testify that the information contained in these telegrams was not notified to the plaintiff at any time. The defendant’s witnesses on the other hand, strenuously deny this fact, and testifies that on the morning of December 24, the information was ■ conveyed to the plaintiff. In connection with this contradictory evidence, there are other facts in the case which must be considered and which lead us to conclude that the existence of the telegrams showing the diversion of the shipment was never communicated to the plaintiff until March 31, 1924, and then only by letter sent to plaintiff’s counsel by The Boyle Company. There is also a telegram dated January 3, 1924, sent by plaintiff to The Boyle Company, in which inquiry was made of the shipper as to the delayed shipment. It is reasonable and proper to conclude that such a telegram would not have been sent by the plaintiff if, prior to January 3, information about the aforesaid telegrams, sent by The Boyle Company to defendant, had been conveyed by defendant to plaintiff. There is positive proof also that when plaintiff requested of defendant copies of all correspondence had between defendant and The Boyle Company regarding this shipment, the only papers missing in this correspondence were the two telegrams referred to. We are satisfied, in any event, that plaintiff never had the slightest intimation of the diversion of the shipment or its final cancellation by The Boyle Company until January 7, the date upon which purchase of the replacement shipment was made by plaintiff.

We have attentively reviewed all the documents and testimony found in the record, and are of the opinion that a preponderance of evidence sustains the judgment appealed from.

There is no serious contestation as to the quantum of damages claimed by the plaintiff. The amount allowed is approved.

It is therefore ordered that the judgment appealed from be and the same is hereby affirmed, at defendant’s cost in both courts.


author: WESTERFIELD, J.

text:
    No. 10,267
    Orleans
    IGNATIUS E. UZZO v. VINCENT TORRES, Appellant
    (December 14, 1925, Opinion and Decree.)
    (January 4, 1926, Rehearing Refused.)

      {Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 4, 4 (b).
    The fact that defendant’s automobile was struck in the rear by plaintiff’s car in an intersectional collision is a circumstance favorable to defendant. But where the evidence indicates that the propinquity of plaintiff’s automobile which was proceeding along a boulevard given a right of way over the street from which defendant sought to cross plaintiff’s path was such as to render defendant’s attempt to cross imprudent the fault will be imputed to defendant.
    Appeal from First City Court. Hon. Wm. V. Seeber, Judge.
    This is a suit arising out of a collision between two automobiles. Each impute negligence to the other and each claims a like amount as damages.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. P. Beard, of New Orleans, attorney for plaintiff, appellee.
    E. M. Stafford, Daniel Wendling, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit is the result of an intersectional collision between the automobiles of plaintiff and defendant. Each impute negligence to the other and each claims $300.00 as damages which they allege to be due to the collision.

The trial court thought the accident to have been caused by defendant’s fault alone and rendered judgment accordingly but reduced the amount to $250.00. Defendant has appealed.

The accident occurred at the intersection of Carrollton Avenue and Pritchard Place. Uzzo, the plaintiff, was driving along the upper side of Carrollton Avenue in the direction of the river and Torres, the defendant, entered Carrollton Avenue from Pritchard Place intending to cross the avenue. The collision occurred near the neutral ground, Uzzo’s car striking the rear of Torre’s car.

Plaintiff had the right of way. Ord. 7490, C. C. S. Art. 1, Par. 7. It was defendant’s duty to come to a full stop.

“No motor vehicle shall turn into or cross any right of way street without first coming to a full stop, nor shall any motor vehicle turn into any other street from an intersecting street at a greater speed than five miles per hour.”

Torres, corroborated by his brother who was in the car with him at the time, testified that he stopped and looked in the direction of traffic before entering the street. He says he saw nothing but a truck which was one block away when he entered the intersection. The fact that defendant’s car was struck in the rear when nearly across the intersection is a circumstance favorable to his contention that plaintiff was at fault. But it is not conclusive because it is quite possible that defendant entered the intersection at a time when the propinquity of plaintiff was such as to make his action in this regard negligent. The fact that he was struck in the rear in that event would simply mean that he had almost escaped the natural consequences of his rashness. But it does not signify that plaintiff was at fault for it might well be that plaintiff could not because of his nearness to Pritchard Place when defendant entered Carroll-ton Avenue have avoided striking defendant’s car however narrow the margin of time and space between that which the circumstances afforded and that required to avoid the impact. We acknowledge the force of defendant’s contention that the place where the collision occurred and the point of impact of the cars is usually of great importance in determining the question of negligence in intersectional collisions of automobiles as we have heretofore point out, but we think this case is the exception for it seems to us that defendant is mistaken when he says that he stopped and looked before entering the intersection and he did not therefore preempt the crossing so as to deprive plaintiff of his right to proceed. Defendant testifies as follows:

“Q. When you reached the corner of Carrollton Avenue and Pritchard Place, you say you looked towards the New Basin?
“A. Yes, sir.
“Q. At that time you did not see any cars coming?
“A. None except the truck that I saw crossing Pig Street.
“Q. Crossing what street?
“A. Pig street, that is one block from Pritchard Place.
“Q. One block below?
“A. Yes, sir.
“Q. At that time there was an automobile in front of it?
“A. No, sir. I shifted my car, and started to cross, going in second, and which does not run more than three or four miles in second.
“Q. And" then you were heading in the direction you just mentioned?
“A. Yes, sir.
At another point in defendant’s evidence we find the following:
“Q. (By Mr. Wendling) And what happened?
“A. When I got across, I saw him coming down the street pretty fast, I don’t know how fast he was coming.”

And at another point:

“Q. Do you know how far Mr. Uzzo’s car was when you got say in the middle of the street?
“A. When I got in the middle of the street, No, Sir, I don’t know how far.
“Q. You don’t know how far his car was?
“A. No, Sir, I didn’t see him at all; after looking out the street I didn’t see Mr. Uzzo’s ear myself; I saw a truck on Pig Street, but no other cars, at all.”

We cannot understand how the street could have been clear for a city block when defendant entered it and yet before he could cross a street which the evidence shows to be 28 feet wide his' car is struck by plaintiff’s car which if defendant is correct must have been more than a block away when he entered the intersection. Plaintiff and a member of the bar (Mr. Mitchel) who testified in plaintiff’s behalf declare that defendant did not stop but drove into Carrollton Avenue at an excessive speed. The trial judge evidently believed them and so do we. Tbeir testimony is at least consistent with the subsequent collision while the statement of defendant cannot be reconciled.

The judgment appealed from is for the reasons assigned affirmed.

Judgment affirmed.


author: CLAIBORNE, J.

text:
    No. 10,282
    Orleans
    H. H. MARSH, Appellant, v. A. G. AVEGNO
    (February 1, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    I. Louisiana Digest—Appeal—Par. 608.
    The record showing that the appeal was granted “on motion”, the presumption follows that the motion was made “in open court”.
    2. Louisiana Digest—Appeal—Par. 356.
    The appeal having been granted “on motion in open court” no citation was necessary.
    3. Louisiana Digest—Pleading—Par. 29.
    Under a prayer for general relief the court may render such a judgment as would he given in a new suit to avoid circuity of action.
    Appeal from First City Court, Division “A”. Hon. W. Alex. Bahns, Judge.
    This is a suit for broker’s commission for the sale of immovables. The defendant pleaded an exception no cause of action, which was maintained.
    Plaintiff appealed.
    Judgment reversed and case remanded to be tried upon the merits.
    George Piazzo, of New Orleans, attorney for plaintiff, appellant.
    John R. Upton, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for broker’s commission for the sale of immovables.

The plaintiff alleged that he was a real estate broker for the parish of St. Tammany; that about July 1, 1924, defendant placed in his hands for sale a piece of real estate situated in the parish of St. Tammany with the understanding that should the plaintiff find a purchaser for said property that the defendant would pay him the customary commission of real estate brokers in St. Tammany of ten per cent on the. price of sale; that in May, 1925, the plaintiff introduced to the deféñdant Mrs. Fontana as a prospective purchaser, and in company with defendant showed her the property; that shortly after this visit defendant told the plaintiff that he might sell the property to Mrs. Fontana more readily if he were permitted to deal directly with her; the defendant then agreed to pay plaintiff one hundred and fifty dollars in ease of sale of said property to Mrs. Fontana, to which plaintiff agreed; that on June 28, 1923, the defendant sold said property to Mrs. Fontana for three thousand dollars but has refused to pay plaintiff any part of the commission due him. Plaintiff claims $300.00.

The defendant pleaded that the petition “discloses no right or cause of action.”

The following judgment was rendered:

“It is ordered by the court that said exceptions be maintained and, accordingly, that the plaintiff’s demand he rejected.”

On motion of the plaintiff he was allowed an appeal from said judgment.

In this court the defendant and appellee has moved to dismiss the appeal on the following grounds:

First: That the record in this case does not show that an appeal was granted to plaintiff and appellant' “in open court”.

Second: The motion for and the order granting the appeal do not direct that the defendant and appellee be cited to appear and answer the appeal, nor was he so cited.

The order of appeal reads as follows:

“On motion of Howard H. Marsh, through his attorney, George Piazza, and on suggesting to the court that mover is aggrieved by the judgment, etc., and that mover desires to appeal, etc., it is ordered, etc.”

The record showing that the appeal was granted “on motion”, the presumption follows that the motion was made in open court. Swain vs. Globe Lumber Co., 144 La. 207, 80 South. 256; Washburn vs. Frank, 31 La. Ann. 427; Gaidry vs. Lyons, 29 La. Ann. 4.' “Omnia presumuntur rite acta.”

In the case of Scrants vs. Sonnier, 2 La. App. 182, quoted by appellee, the court said:

“The minutes in the case bear out and substantiate the allegations in the motion (to dismiss) to the effect that the appeal was not granted in open court.”

The appeal having been granted by motion in open court no citation was necessary. C. P. 574; Swain vs. Globe Lumber Co., 144 La. 207, 80 South. 256; Frederick vs. Marx Picture Frame Co., 127 La. 149, 53 South. 474; Guy vs. McDuffie, 123 La. 641, 49 South. 222; Glain vs. Sparandeo, 119 La. 339, 44 South. 120; Randolph vs. Sentilles, 110 La. 419, 34 South. 587.

ON THE EXCEPTIONS

The exception is based upon the theory that plaintiff claims $300.00 upon the first contract, while his petition alleges that this contract was abrogated and a new one substituted for $150.00.

The plaintiff’s contention is that, inasmuch as the defendant has refused to carry out his second contract, it falls and the first takes its place. It cannot be contended that if the allegations of the petition are true that the plaintiff is entitled neither to $300.00 nor to $150.00. It is for the court to determine to what amount he is entitled.

There can be no doubt that if the plaintiff had prayed for $150.00 he would have disclosed a cause of action. His prayer claiming $300.00 may be an erroneous conclusion of law which cannot prejudice him. If we find that plaintiff is not entitled to $300.00 we may give him judgment for $150.00 if the testimony shows that he is entitled to that sum.

Under the prayer for general relief the court may render such judgment as would be given in a new suit to avoid circuity of action. 1 H. D., p. ,734, No. 5; Smith vs. Corcoran, 7 La. Ann. 46; Ice and Distilled Water Mfg. Co. vs. Anderson, 106 La. 55, 30 South. 270; Douglas vs. Gyulai, 144 La. 216, 80 South. 258; 16 U. S. 432; 180 U. S. 279.

It is therefore ordered that the judgment appealed from be reversed; that the exception of no right or cause of .action be overruled, and that this case be remanded to be tried upon the merits, plaintiff and appellee to pay costs of appeal, costs of the District Court to await the final judgment herein.


text:
    No. 10,299
    Orleans
    N. P. ECONOMON & THEODES v. RIZZO TROMATORE & CO., Appellants
    (February 1, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 351.
    When the testimony of the plaintiff is contradicted by that of the defendant the preponderance of evidence will prevail.
    2. Louisiana Digest—Tender—Par. 7; Costs and Fees—Par. 8.
    In the absence of a legal tender of • the sum admitted to be due as required by Articles C. P. 407-415, the defendant will be condemned tó pay all costs.

      Appeal from First City Court, Division “B”. Hon. Yal. J. Stentz, Judge.
    This is a suit for the price of sardines sold and delivered.
    There was judgment for plaintiffs and defendants appealed.
    Judgment amended and reduced.
    R. R. Ramos, of New Orleans, attorney for plaintiffs, appellees.
    S. A. Mitchell, Geo. J. Gullota, of New Orleans, attorneys for defendants, appellants.
   CLAIBORNE, J.

This is a suit for $118.80, the price of sardines sold by plaintiffs of New York to the defendants, who received them.

The defense is that the sardines were “of such a decayed and putrid nature as to render them unfit for sale or human consumption”; that the defendants set forth the defective condition of the merchandise to the plaintiffs, who authorized the de fendants to sell them for the best price possible, which they were unable to do for the reasons above set forth.

There was judgment -for the plaintiffs and the defendants have appealed.

Frank Santopitro, shipping clerk for the plaintiffs in New York, swears that the fish were inspected by him under the supervision of Mr. Speciale, and that they were in perfect condition at the time of shipment; these fish would remain good for human consumption two or three years.

A. J. Speciale, member of the plaintiff firm, corroborates Santipitro and says that they shipped the identical goods to other merchants in New Orleans who paid them without complaint; that his firm never authorized the defendants to sell the fish; that these fish are imported and must pass the requirements of the Department of Agriculture before being admitted and sold; the fish had been in his possession less than two months.

We entertain no doubt of the good faith of the plaintiff’s witnesses. But they saw only the outside of the sardine boxes. H. A. Mevers was sent by the N. O. 'Credit Men’s Association to interview the defendants. Rizzo told him that the sardines were in an unsalable condition, that they had been sold in the country, and that they collected only $35.00 for them, which they were willing to pay to plaintiffs. Rizzo showed him boxes of sardines; they were in had condition.

Wallace Agnew was employed by the defendants as bookkeeper; he also attended to the shipping of goods; most of the sardines were sold in the country; he received so many complaints he kept them on file; the different purchasers were credited with the price of the goods; Mr. Rizzo opened a can and it was almost all water; the sardines were putrid; the defendants collected $30.00 or $35.00 on account of the sardines; he left defendants’ employ since April; the sardines were sold by the defendants about two weeks after their receipt; A. Bologno, an agent of plaintiffs, came to defendants’ store and examined the sardines; he agreed that they were in an unsalable condition and said he would write to plaintiffs.

Anthony Rizzo, one of the defendants, testifies that he bought the sardines from Bologno; he sold them in the country; when he called to collect all his customers said the sardines were not good; he deducted the price from their account; he called upon Bologno; he got fourteen cans and opened one; all rotten; Bologno said he would write to his house at once and make it good; he collected $35.00 and offered it to plaintiffs who refused it.

Bologno was not examined as a witness to contradict the above testimony.

We are of the opinion that the testimony of the defendants preponderates over that of the plaintiffs.

The plaintiffs’ witnesses saw only the outside of the boxes; the defendant’s witnesses opened the boxes and saw the contents; they were either rotten or putrid. Their testimony is more apt to be correct.

But the plaintiffs are entitled to a judgment for $35.00 which defendants admit owing and which they offered to plaintiffs.

The defendants, however, must pay the costs as they did not make a legal tender of the amount as required by C. P. 407-415. Irby, McDaniel & Co. vs. J. E. Fore & Co., 23 La. Ann. 183; Mechanics and Traders Bank vs. Barnett, 27 La. Ann. 177; Frey vs. Fitzpatrick-Cromwell Co., 108 La. 125, 32 South. 437.

It is therefore ordered that the judgment appealed from be amended by reducing the same from one hundred and eighteen and 80-100 dollars to thirty-five dollars, and as thus amended that the judgment- be affirmed, the defendants to pay costs of appeal.


text:
    No. 10,302
    Orleans
    OCTAVE J. TOURMILLION v. NEW ORLEANS PUBLIC SERVICE INC., Appellant
    January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 625, 630.
    The reluctance of an appellate court to disturb the finding of fact by a trial court must yield to the necessity of reversing such findings when they appear to be clearly erroneous.
    2. Louisiana Digest—Automobiles—Par. 4 (a), 4 (b).
    One who attempts to drive an automobile across a street railway track in front of an approaching street car, when the latter could have been easily seen and heard, is guilty of negligence and is not entitled to damages to the car arising from the collision.
    3.Louisiana Digest—Evidence—Par. 42.
    In a damage suit, failure on part of plaintiff to produce or to account for the absence of a witness who, from circumstances made plain by other evidence, must have known better than all other witnesses the facts and circumstances of the accident, raises strong presumption that the testimony of the absent witness could have been unfavorable.
    (Civil Code, Art. 2315 Editor’s note.)
    Appeal from First City Court for the City of New Orleans, No. 128,975, Section “A”. Hon. W. Alexander Balms, Judge.
    This is a damage suit arising out of a collision between an automobile and a street car.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. B. Jouandot, of New Orleans, attorney for plaintiff, appellee.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiff brings this suit for $231.10 damages to his automobile sustained in a collision with the defendant’s street car. The accident occurred at one o’clock in the morning at the corner of Canal And Lopez streets, in the city of New Orleans, on October 23, 1924. The negligence with which the defendant is charged is that the street car was being operated at an excessive rate of speed. Plaintiff alleges that his car was being driven in a careful and lawful manner, and while the driver thereof, to whom the car had been loaned, was attempting to cross from the downtown side of Canal street to the uptowh side thereof, and that when the automobile had almost cleared the tracks of the defendant company, on the uptown side of the neutral ground, its right rear wheel was struck by the defendant’s car.

Defendant answers, denying the allegations of damage and of negligence, and avers that the driver of the automobile was negligent in crossing the track at a time ■fthen defendant’s car was approaching so cíese to the crossing that anyone exercising ordinary care could have seen and avoided the accident.

There was judgment in favor of plaintiff and defendant has appealed.

The evidence shows that the automobile was driving out Canal street, toward the lake, on the lower driveway of said street. There Were six persons in the car, including the driver thereof. All of plaintiff’s witnesses testify that the automobile was moving at a slow rate of speed, betwteen five and ten miles an hour, and that at the moment when the driver attempted to cross the neutral ground at Lopez street,. the oncoming car was at least a whole block, or 300 feet away, and that the street car was traveling at a very rapid rate of speed. All of the witnesses testify that the automobile did not stop before crossing the track.

Defendant produces two witnesses other than the conductor and motorman who were operating the car. These two witnesses are shown to have been at least three blocks away, and their testimony is of no value in this case, except to establish the fact that the crash of the collision was heard by at least one of them. The conductor’s testimony is also of little value for the reason that he was engaged in calculating his fares, the car at the moment being on its final trip to the barn. Both the conductor and the motorman admit that the car was going at a rapid rate of speed, which the evidence establishes Was not more than twenty-five miles per hour.

■The driver of the automobile was not a witness in this case, nor does plaintiff account in any manner for his failure to place this witness on the stand. It must be presumed from all the circumstances of this case .that had the driver testified his evidence would have been unfavorable to the plaintiff. It is plain, from all of the testimony before us, that the driver and all of the occupants of the automobile could have plainly seen the approaching street car, which was moving in Canal street toward the river, in the opposite direction from that which the automobile was traveling; before it was turned or driven across the neutral ground.

The simplest arithmetical calculation completely destroys the testimony of plaintiff’s witnesses to the effect that the street car was some 300 feet away from the automobile when plaintiffs attempted to go across the neutral ground. Assuming, under most liberal estimates, that the neutral ground is 45 feet wide, and that the Nash automobile in this case was some 15 feet long, it follows that the rear end of the automobile had to travel 60 feet to reach the upper driveway of Canal street. 'The evidence is that the automobile was not moving faster than 10 miles an hour. At this speed, the rear end of the vehicle should have traveled 60 feet in not more than four seconds. In this same space of time the front end of the car, which plaintiff claims was 300 feet away at the time his automobile began to cross, would have traveled at a maximum speed of 25 miles an hour only 146 feet. The street car would then have been 154 feet away from the automobile at the time the latter vehicle had entirely crossed the neutral ground.

We therefore conclude that at the moment which the driver of .the automobile turned out the lower driveway of Canal street and into the neutral ground thereof, the street car was not more than half a block away.

Under these circumstances it was gross negligence on the part of plaintiff’s driver to have attempted the crossing. Innumerable decisions of the Supreme Court in similar cases justify this conclusion.

In McShane vs. N. O. Ry. & Lt. Co., 137 La. 830, 69 South. 268, a milk wagon attempted, in a- similar manner as in the instant case, to cross the street railway-tracks on Canal street. There was conflicting testimony as to the distance of the street car from the wagon, and the court found that the street car was going, as in this case, at a rapid speed. The car struck the wagon’s hind wheel in a manner similar to the facts in the present case. There was also evidence as in this case that the motorman promptly applied his brakes and made every effort to avoid the collision, and that his car, as in this case, traveled but a short distance after striking the wagon. The court said:

“Our conclusion is that the defendant company and its employees were free from fault or negligence in this case. * * * We affirm the doctrine heretofore announced in two similar cases, Cowden vs. Shreveport Belt Railway Co., 106 La. 236, 30 South. 747, and Heebe vs. N. O. Carrollton Railroad, Light and Power Company, 110 La. 970, 35 South. 251, that to attempt to drive a vehicle across street railway tracks in front of an approaching car, which could and should have been seen with ordinary care and prudence, is such negligence as must prevent the recovery of damages from injuries resulting from a collision with the car.”

Further authority supporting the above doctrine is found in Marston et al. vs. Shreveport Traction Company, 140 La. 18, 72 South. 794. In this case the court, affirming the McShane decision above noted, stated, under its own syllabus, the following:

“The driver of an automobile who, on pulling out of a garage, glanced down the street and saw' a car approaching some 300 feet away, and who, without looking again, drove heedlessly on the track and came in collision with the electric car, was guilty of such negligence as to bar his recovery of damages. In the absence of evidence showing with legal certainty that the motorman was operating his car at a dangerous rate of speed, or by the exercise of ordinary care after the discovery of the danger could have avoided the collision.”

See also Leopold vs. T. & P. R. R. Co., 144 La. 1000, 81 South. 602; Tucker vs. I. C. R. R., 141 La. 1101, 76 South. 212; Fallo vs. N. O. Ry. & Lt. Co., No. 8945 Orl. App.

We reluctantly and resepectfully differ with the conclusions of the trial judge in this case. While he saw and heard the witnesses, we find, from the evidence, that a reversal of the judgment is imperative.

Mill vs. Lewis, 2 La. App. 864; Ruekel White Lead Co. vs. Kirn, 1 La. App. 395.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and set aside, and that there now be judgment in favor of the New Orleans Public Service Company Inc., dismissing plaintiff’s suit at his cost in both courts.


text:
    No. 9558
    Orleans
    MAMIE COLLINS, Appellant, v. CITY OF NEW ORLEANS
    (October 19, 1925, Opinion and Decree)
    (November 30, 1925, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Municipalities—Par. 256, 261.
    Where a bridge over city streets has been condemned as defective and unfit for public use, the public should be warned by barricades securely erected, or by some other method calculated to arrest the attention of the public to the danger involved in the use of the bridge. Where barricades are used they should be so erected as not to be easily removed. A barricade which can be removed by “persons in a hurry to catch a street car” is insufficient and the city will be held liable for personal injuries sustained by a pedestrian using the defective, bridge by reason of a loose plank thereon, which tilted and caused the pedestrian to fall, where it appears that the barricade was not in place at the time of the accident and the pedestrian had no prior knowledge of the defective condition of the bridge.
    Appeal from the Civil District Court, Division “F”. Hon. Percy Saint, Judge.
    This is a suit for damages for personal injuries arising out of defective flooring on a bridge.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    F. S. Normann, of New Orleans-, attorney for plaintiff, appellant.
    Roland B. Howland, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff was injured in crossing a bridge over the Claiborne canal at Second street. She alleges that as she stepped on one of the planks of the bridge it tilted up and struck her, causing her to fall with considerable violence. She sues the city of New Orleans for S500.00 as damages for personal injuries.

The defective character of the bridge is admitted. In fact, it had been condemned by the city authorities and bai'ricades placed at the entrance of the bridge to prevent the use by pedestrians or other traffic.

The question presented to us is the sufficiency of the barricade. In the first place there is some doubt as to whether the barricades were in place on June 14, 1921, the day of the accident. Chas. Jourger, the foreman of the Department of Public Works of .the City of New Orleans, when asked on the witness stand whether the bridge whs barricaded before June 14, answered: “Yes, I am pretty sure it was.” Be that as it may, there is no doubt in our mind that if the barricades were in place before June 14 they had been removed and were not there on, the day, for the evidence is clear to that effect. The evidence also shows that- the barricades whenever put in place had been frequently removed, and as one of the witnesses for the city (Mr. Durr) puts it, were often taken down by persons in a hurry to catch a street car. The barricade consisted of planks nailed across the entrance of the bridge. There could not have been many nails for if persons in a hurry to catch street cars could pull the planks down they must have been insecurely fastened or nailed to the uprights or portion of the bridge to which the planks were attached.

Under the circumstances we think the city was negligent in that it failed to place a proper barricade before the entrance to the bridge in order to warn the public of the danger. The plaintiff in common with the general public had a right to presume the bridge was safe for her use and to act upon that presumption.

“The rule is well established in the jurisprudence of this state that a person using a public highway, especially in an ■ incorporated city, has a right to presume and act upon that presumption, that the way is safe for ordinary travel, even at night, and he is not required to be óh the lookout for extraordinary dangers or obstructions to which his attention has not been called.”

Jacobs vs. Jacobs, 141 La. 285, 74 South. 992.

The barricades should have been more securely erected and such as the circumstances required.

In the case of Holden vs. Toye Bros., et al., 1 La. App. 521, we said:

“The placing of several red lanterns intended as a warning upon a plank loosely supported by wooden horses, situated before a large street excavation, is not sufficient precaution or such reasonable care in the interest of public safety due by one charged with such responsibility in order to warn vehicular traffic of impending danger when it appears that at the time the lanterns were put in place a high wind was blowing well calculated to destroy the insecure support of the lanterns or danger signals.”

See also 29 Corpus Juris, p. 688, 14 La. Ann. 806; Jackson vs. F. & J. B. Schmidt, 14 La. Ann. 806.

We conclude that plaintiff is entitled to recover. As to the quantum, without going into details, we think $350.00 a proper award.

For the reasons assigned, it is ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that there be judgment for plaintiff, Mamie Collins, and against the city of New Orleans in the sum of $350.00 with costs of these proceedings.


text:
    No. 9785
    Orleans
    TAZEWELL R. LATHAM, Appellant, v. WILLIAM H. UMBACH
    (November 2, 1925, Opinion and Decree)
    (December 14, 1925, Rehearing Refused)
    (February 2, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 4, 4 (c).
    When a railroad train is traversing a public roadway or thoroughfare of a populous city, and a motor vehicle on said roadway has stopped close to the railway track, facing the train and awaiting its passage, it is actionable negligence for the driver of the vehicle to cross the track immediately after the train has passed without looking carefully for objects and persons which may be directly in front of him and on the other side of the track.
    2. Louisiana Digest — Automobiles — Par. 4 (o).
    A conductor, while standing in a public roadway performing the duty of flagging his car across an intersecting railroad track, is entitled to the same consideration from drivers of motor vehicles as should be accorded to traffic officers performing similar duties.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Parish of Orleans, Division “D”. Hon. Porter Parker, Judge.
    This is a suit arising out of an automobile accident in which the plaintiff was run over by defendant’s motor truck.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Theo. H. McGiehan, of New Orleans, attorney for plaintiff, appellant.
    J. Zach Spearing, of New Orleans, attorney for defendant, appellee.
    B. W. Kernan, of New Orleans, attorney for New Orleans Public Service Co.
   BELL, J.

Plaintiff sues defendant in the sum of five thousand dollars for physical injuries Which he claims to have suffered in being run over by defendant’s motor truck in the city of New Orleans, at a place generally known or described as “the levee front, head of Canal street”.

The case was tried without jury, and there was judgment for defendant, from which plaintiff has appealed.

The petition shows that about 8:30 o’clock p. m., on May 4, 1923, plaintiff, as the conductor on a Louisiana avenue cat, was in the act of flagging or directing his car across the tracks of the Public Belt Railroad, just after a freight train of the Belt Road had crossed the street car track upon which his car was moving in the direction out Canal street from the -levee front toward the lake side of the city; that while standing on the roadway in front of his car, at the intersection of the two tracks, and while performing his duty, as above described, he was run down by defendant’s motor truck, which suddenly crossed the Public Belt track immediately after the freight train had passed. Charging defendant with gross negligence for reckless driving, and for violation of traffic ordinances, plaintiff seeks recovery in damages enumerated as follows:

Broken leg ______________________________________________$3000.00
Pain, suffering, agony, etc.............— 1000.00
Loss of time........................................... 1000.00

Defendant • answers by denying tbe charges of negligence as enumerated in plaintiff’s petition, and by further denying that he was in any manner at fault. He admits the fact that plaintiff was injured by his truck, but denies that it suddenly approached or knocked plaintiff to the ground. Further answering, defendant avers that when he first saw plaintiff he had either fallen to the ground or was in the act of falling, and that he, defendant, did everything in his power to avoid a collision with plaintiff; that his truck was going slowly, was always under control, and was stopped almost immediately.

The New Orleans Public Service Inc., plaintiff’s employer at the time of the accident, has intervened in this suit; it reiterates and adopts all allegations of negligence made against defendant in plaintiff’s petition, and prays that it be reimbursed to the extent of $293.26 out of any judgment which may be rendered in favor of plaintiff against defendant, having compensated plaintiff to said amount, under Act 20 of 1914, and amendments thereto. Admissions in the record show that such compensation has been paid.

There is little difficulty in arriving at the facts of this case. The accident is admitted. The place where plaintiff was injured and the extent of his injuries are agreed upon by all litigants in this matter. But two questions present themselves for adjudication. The first Question is one of fact, and involves the determination of whether the defendant, in striking the plaintiff, was guilty of negligence in the operation of his truck. We think that he was. In his pleadings, he admits that when he first saw the plaintiff he had either fallen to the ground or was in the act of falling. The evidence shows, particularly the plan which has been admitted as correct, and is on file before us, that the distance of the truck from plaintiff, immedately before the accident, was scarcely more than from seven to eight feet, that is to say, less than the length of any motor truck. This short distance being established as a fact, it follows that defendant, seated at an elevation upon and in front of his truck, should have easily seen any object directly in front of him at the moment the last car of the freight train had passed on and ceased to block his vision of things ahead of him. It is agreed that the truck was at rest while the train was passing, and hence it is evident that in going the distance of about seven feet defendant was bound to have gone heedlessly across the Belt track, in negligent disregard of any thing or person which might have been in front of him.

Plaintiff here has not been charged in defendant’s answer with any contributory negligence. We find nothing in the case of Elmendorf vs. Clark, 143 La. 971, 79 South. 557, cited in defendant’s brief, that could make that authority applicable to the instant case. There was a distinct charge of negligence pleaded by defendant Clark, and such charge was supported by proof that the injured plaintiff, a -young boy, while playing on the sidewalk had run suddenly into the street in front of an automobile.

The record does not show plaintiff to have been standing in any improper place or doing anything that was not incident to the particular duties, in the performance of which he was at that moment engaged. It is contended by appellee’s counsel that the place where plaintiff was standing, that is to say, about four feet from the right side of his car and about one foot on the levee side rail of the' Public Belt road and between tbe two rails thereof, was not a proper place for a pedestrian, and therefore it is argued that the place was in no sense a pathway for such persons. We cannot take this view of the case. Plaintiff cannot be classified, under the circumstances of this case, as an ordinary pedestrian. He was performing a particular duty for his employer, the New Orleans Public Service Inc. It was enfranchised and 'empowered to operate its cars with due care and caution through the public streets and thoroughfares of a populous city. The duty to which plaintiff, as its employee, was assigned required his presence at certain times upon the public roadways and involved service quite similar to that of a municipal traffic officer. He was therefore entitled to as much consideration, if not, perhaps, as much respect, as is usually accorded those directing traffic under police authority. But even if plaintiff be considered as only a pedestrian, indeed a “jaywalker”, the fact that he was not at the moment of the accident traveling in pathways usually assigned to such humble or careless members of society, did not make defendant less obligated to consider plaintiff’s presence or to see him while he was in a place where defendant was bound to have seen him by the exercise of ordinary care. There is no evidence as to whether defendant’s headlights were burning. If they were burning, a fact which we will assume, it follows that with plaintiff just a few feet ahead of him, defendant should have had an exceptional view of him before starting his truck across the track. No horn was blown nor other signal of approach given.

We are satisfied plaintiff could not have run around the end of the freight train before it had passed the intersection of the trolley and Belt tracks, as contended by defendant. If this .were a fact, he would have been much further to the left of defendant’s truck, as it faced the river, and he would, in all likelihood, have been struck by the left front wheel instead of the right front wheel of the truck. Defendant testifies, in part, as follows:

“As soon as the train passed I came across the track * * * going very slow, in fact, I had not the gears shifted from first yet—I mean third.”

It seems plain from the above testimony that the truck was put in motion immediately after the last freight car—an obstruction to his vision'—had cleard the intersection, and that though the truck was going slowly, it had been put into gear at the very moment when defendant should have seen plaintiff and should have kept his truck at rest.

Considering the view of this case, such as we have discussed above, we find it unnecessary to pass upon the second question, which is one of law, raised by the plaintiff in this case: Did the defendant violate the traffic laws by driving, as shown by the evidence, from the upper side of Canal Street to the lower side thereof while traveling on his journey to the ferry, upon which he intended to cross the river? It is contended that in so doing, he disregarded the provisions of Section 1 of the traffic ordinance C. C. S. 7490 of the City of New Orleans, and that this added negligence was another cause of the accident. We have' concluded, from all facts in this case, that it was the manner in which the truck was operated after coming to a stop, rather than the place at which it was standing just before the accident, which constituted the dominent and proximate cause of the accident.

We therefore give no further consideration to this point of. the case.

The numerous and well-selected authorities found in appellant’s brief have been duly considered, and we note, particularly, that authority of Kelly vs. Schmidt and Ziegler, 142 La. 91, 76 South. 250, as most applicable to the facts and the law which are presented in this case. It was there said:

“The chauffeur of an auto truck, driving over that portion of a public highway which is ordinarily used by vehicles going in the opposite direction, must keep a very vigilant watch ahead for vehicles and pedestrians. He should signal his approach as a warning; and when it is dark, or nearly so, the lights on his vehicle should be burning. He should proceed slowly and cautiously; and at the first appearance of danger, he should take proper steps to avoid it, and, if necessary, stop his machine, and even the motor, when it is necessary and practicable. He will be presumed, in case of accident, to have seen what he should have seen in the performance of his duties.”

(See also Gannon vs. N. O. Ry. & Light Co., 154 La. 435, 97 South. 601.)

In Huddy on' Automobiles, page 507, Section 422, the duty which is imposed upon drivers of motor vehicles to entertain due consideration and care for those who are compelled to wait in the performance of their duty upon a public thoroughfare, is stated as follows:

“The rights of a workman, whose duties require his continual presence in the street are somewhat different from those of a pedestrian, who uses the streets merely as a means of travel from one place to another. The operator of a motor vehicle should appreciate the fact that the employment of a workman in a- street requires that his attention be directed to his work rather than to the approach of vehicles. Under such circumstances, reasonable prudence on the part of the driver of the machine would seem to require that he have the car under control so that he can avoid the workman if the latter does not notice his approach, and, in cases, he may be charged with negligence, and the driver may be deemed guilty of negligence if he fails to give any warning of his approach. If the workman in the street, while engaged in his work, without any movement on his part, is struck from behind by a motor' vehicle, in broad daylight, a prima facie case of negligence is established. The question of negligence and contributory negligence is generally for the jury. Thus, the driver of an automobile has been held liable for injuries received by a workman on a street railway track, and liability may be against a driver where the car has struck a policeman or traffic office engaged in the performance of his duties in the street; similarly, an employee of a city sewer gang has been allowed to recover for injuries sustained by a collision with a taxicab. So, too,' a highway or bridge employee, can recover for injuries sustained from a motor vehicle. The1 workmen at a railway crossing may maintain an action for injuries from a collision with an automobile.”

We are of the opinion that plaintiff should recover in this case, and that the judgment appealed from should not have gone for the defendant. The record shows that the injuries sustained by the plaintiff, while painful and of a nature serious enough to incapacitate him for a period of about ten weeks, the fracture of the leg which plaintiff sustained was not of a permanent nature, and as the physician testifying in the case says, “ought to have one hundred per cent restoration of function”. Other evidence convinces us that there was no permanent disability. We think that the sum of One Thousand Dollars would be a fair and proper compensation for the injuries sustained.

Considering the petition of intervention herein filed on behalf of the New Orleans Public Service, Inc., and the relief prayed for by said intervenor, it follows that there should be judgment for intervenor and against defendant herein for $293.26, said amount to be paid out of the total damages of One Thousand Dollars, for which defendant should be liable. After satisfying the claim of intervenor, the balance of the total judgment, to-wit: $706.74, should be paid, with legal interest thereon from judicial demand, to plaintiff.

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

It is further ordered, adjudged and decreed that there now be judgment in favor of intervenor, the New Orleans Public Service, Inc., and against defendant, William H.Umbach, in the sum of Two Hundred Ninety-three Dollars and Twenty-six cents ($293.26), with legal interest thereon from date of this judgment until paid, and that there be further judgmént in favor of plaintiff, Tazewell R. Latham, and against defendant, William H. Umbach, in the sum of Seven Hundred Six Dollars and Seventy-four cents ($706.74), with legal interest thereon from August 27, 1923, until paid, and for all costs in both courts.