text:
    No. 3924
    Second Circuit
    BLOXOM ET UX. v. TEX. & PAC. RY. CO.
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Herndon & Herndon and D. B. Samuels, of Shreveport, attorneys for plaintiffs, appellees.
    Wise, Randolph, Rendall & Preyer, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, W. E. Bloxom, and wife, Mrs. Daisy E. Bloxom, joined in this action against the Texas & Pacific Railway Company to recover damages sustained by them individually which resulted from the death of their son, Arthur Bloxom, who died following and as the result of injuries received when an' automobile, driven by him was struck at a grade crossing at Lucas, Louisiana, where defendant has a flag station, by a passenger train operated by defendant.

The accident occurred in the afternoon of March 23, 1928, and plaintiff alleged in substance that their son approached Lucas from the south over a paved highway, which lies to the east of and practically parallels defendant’s tracks; that he turned from the highway into a side road, referred to as the south road, which bears west from the highway leading over a spur track, referred to as the east spur track, thence over the main and passing tracks, referred to as the south crossing, and thence over a spur track, referred to as the west spur track; that the main and passing tracks curve from a point south of the south crossing to the northwest. Plaintiff further alleged that their. son stopped at or near the railroad “stop sign” (which is east of the crossing at the east spur track, or about 59 feet from the east side of the main track at the south crossing), “where his view' would be unobstructed, looked and listened for approaching trains, at which time there was a long freight train on the passing track, and his view of the main track north was obstructed by said freight train, except for a distance of about 180 yards from the crossing,” and their son neither seeing nor hearing any train, started his car and drove over the first track (east spur track) and thence onto the main track (south crossing) and that he could not clear the track before the passenger train came along said track from the north, driven at a high and negligent rate of speed, without giving any warning of its approach and ran down and struck the automobile driven by their son; that from the direction (east) their son approached the crossing, he stopped his car at the proper place to have a clear and unobstructed view of the tracks north as far as he could see, which was approximately 540 feet, and that he could not see the main track farther on account of the freight train parked on the passing track and the curved tracks. Plaintiff further alleged that their son was without fault, and that the accident was due solely to the fault of defendant.

In answer defendant admitted plaintiffs’ son had been killed, as alleged, and otherwise denied plaintiffs’ allegations, especially denying that it was guilty of any fault, and that deceased was without fault, and alleged in event it should be held to have been guilty of any negligence, that plaintiffs’ son was guilty of contributory negligence.

There was judgment rendered in favor of W. E. Bloxom in the sum of $5,273, and in favor of Mrs. Daisy E. Bloxom in the sum of $5,000, with legal interest from judicial demand. Defendant appealed from the judgment and plaintiffs have answered the appeal, praying that the judgment be amended and judgment rendered in favor of W. E. Bloxom in the sum of $20,275, and in favor of Mrs. Bloxom in the sum of $23,317.

On trial, there was introduced in evidence a map or plan and photographs which show that the maim and passing tracks are curved, and the location of the tracks with reference to the paved highway, south road, and the crossing at the east spur track, and main and passing tracks, or south crossing, to have been as alleged in plaintiffs' petition; which also show that at a distance of about 120 feet above the south road another side road, referred to as the north road, leads off from the highway, bearing towards the northwest, leading over the east spur track and thence over the main and passing tracks, referred to as the north crossing; that the main and passing tracks parallel each other for a distance of about a mile from the station building, which is located 21.5 feet east of the main track between the south and north crossings, which are 294 feet apart; that on the east side of the main track there is located a small building referred to as the “tool house,” at a distance of 247 feet north of the north crossing; that the east spur track leads out from the main track south of the south crossing, bearing northeast, and passing to the rear of the station building; that the west spur track leads out from the passing track at a point opposite the station- building, about 106 feet from the south crossing, and bears towards the southwest.

It is conceded that a freight train was 'parked on the passing track, which parallels the main track, on a rather sharp curve which continued some distance above the tool house, and that the view of the main track of one approaching the south crossing and when within an approximate distance of 21 feet of the south crossing would be restricted by the freight train and the curving track to a distance of about 540 feet, or to a point about the tool house, and that the distance one could see from the south crossing would be, as stated, and as shown by the map, or about to the tool house.

The theory on which plaintiffs apparently base their case is that when their son stopped before going upon the crossing, the train had not reached the tool house, and therefore that he did not see same, but that just as he started again, the train reached the tool house and that the speed of the train was such that the car of deceased was struck before it could clear the south crossing; while the theory of the defendant appears to be that the train was in view of the deceased when he is alleged to have stopped, and if not, that the train came within view before he reached the crossing, and that had deceased looked he would have seen the train and been able to stop before driving on to the crossing.

There were ten witnesses called on behalf of plaintiff, and six on behalf of defendant. Those called by plaintiff were Dudley, Mitchell, Schopini, Brown, J. C. and F. F. Webb, Jr., Roberts, Riggens, Marlin and Graham; and those called by defendant were Smith, New, McCormick, Hall, Deeper and Fried.

Dudley, Mitchell and Schopini claim to have seen the car which was driven by deceased just prior to or at the time of the collision, and they gave their version of the accident and also stated that they had not heard any signals given of the approach of the train, and Dudley estimated the speed of the train at 40 to 50 miles per hour, and Schopini at 45 to 50 miles an hour, and Brown, J. C. and F. F. Webb, Jr., stated that they had not heard any signals of the approach of the train and estimated the speed of the train at 35 to 40 miles per hour; while Roberts, Riggens, Marlin and Graham, who were from one-half to a mile above the station building, said they did not hear any signals given for the crossings and they also estimated the speed of the train.

The witnesses for defendant, Smith, the engineer, and New, the fireman, on the passenger train stated that the signals had been given of the approach of the passen ger train and their statements were confirmed by the statement of McCormick, the conductor; and Hall, the flagman, on said train, and also by Leeper, the conductor on the freight train which was standing on the passing track, and their estimates of the speed of the train at the time it reached the tool house were from 25 to 30 miles per hour. H. Fried, the engineer, who made the map or plan filed in evidence, gave the distance as stated above between the south crossing, the north crossing and the tool house and the location of the station building, and he also stated that the distance from the “stop sign” on the south road east of the east spur track was approximately 59 feet from the east rail of the main track at the south crossing and that the distance between the west rail of the east spur track to the east rail of the passing track at the south crossing was 21.4 feet, and the distance from the south crossing to the point where the west spur track leads out from the passing track and the distances between the south road and the north road were estimated by Schopini and Dudley respectively.

Considering the testimony of the witnesses relative to whether or not the signals were given o.f the approach of the train to the crossings and their estimates of the speed of the train: Roberts was working on the track about a mile from Lucas and he said that a crossing signal consisting of two short and two long blasts from the whistle was given as the train approached the place where he was working and that he did not hear any other signal given after that time; Rig-gens said that he was working in a field about three-fourths of a mile above the station, that he saw the train and it was coming pretty fast, but he did not know whether it blew the whistle or not; and Marlin and Graham, who were working about one-half mile above the station, stated that they had heard a signal from the train before it reached the point where they were working, but they did not hear any other signals thereafter, and they estimated the speed of the train as being very fast and at the rate of 45 or 50 miles per hour.

While it appears that Graham and Marlin should have heard the signals given for the crossing, if such were in fact given, as they would have been within 2,000 feet of where the first signals are stated to have been given, it is not unusual that they should not have heard the signals, and the same is especially true as to Riggens and Roberts, and we regard their testimony as of the weakest of negative evidence.

Brown, J. C. and F. F. Webb, Jr., were a short distance from the accident and at a comparatively short distance from the place where the signals are stated to have been given, and if they had been paying any attention to the trair.3, it would appear certain that they would have heard the signals, if they had been given. J. C. and F. F. Webb, Jr., however, said that they did not pay any attention to [passing trains and that fact that they did not know whether the signals were given was of little significance, and while they estimated the speed of the train at 35 to 40 miles an hour, the evidence shows that they saw the train for a very short distance, and F. F. Webb, Jr., said that he did distinctly remember that the bell was ringing when the collision occurred. Brown was working at a cane mill which was operated by a tractor, which concededly made a great deal of noise and the evidence does not show that he was paying any attention to the train or that he saw the train until it came from behind the freight train, the rear end of which was said to have been within 106 feet of the south crossing, and he stated that he had not heard any signals, and estimated the speed o.f the train at 40 miles per hour.

The evidence of those witnesses shows that they were not especially qualified to estimate the speed of trains, that they saw the train for only a short time, and their evidence also shows that they were not paying any attention to the train. .

Dudley, Mitchell and Schopini, who claim to have seen the accident, were also near the place where the signals from the locomotive were claimed to have been given, or approximately 1,000 feet from the place where the last signal is stated to have been given, and as stated, they all said they did not hear any signals given and, with the exception of Mitchell, they estimated the speed of the train.

Dudley said that he was driving in an automobile behind Arthur Bloxom as they approached' Lucas; that when young Bloxom turned into the south road he continued on the highway and turned into the north road, passed over the east spur track and stopped at a short distance from the north crossing, which was blocked by the freight train; that he looked back towards the south road where he saw the car driven by Arthur Bloxom stopped and just starting off from a point on the south road near the “stop sign,” and with relation to the position and speed of the train at that time his testimony was in part as follows:

“Q. When you stopped there where was the train ?
“A. The train was just along about between the tool house and the depot, coming in the curve.
* * * * * * %
“Q. Just about that time the train was coming around the corner?
“A. The train was already opposite to me, just all at once. The train was between the tool house and the depot, wasn’t but just one hundred yards. The train was just between the tool house and the road. That is, my crossin’.
“Q. Was that train going fast or slow?
“A. Oh, it was running fast. I imagine it was running about 40 or 50 miles an hour.
* * # * * ‡ $
“Q. After Mr. Bloxom started up you could not see him on account of the depot?
“A. I could not see him, no sir. * * heard it when it hit him and I backed up.’’

Mitchell, who said he was driving an automobile behind Dudley and that he turned into the south road and followed Arthur Bloxom, was unable to say whether young Bloxom stopped, but he stated that he was driving very slowly (which was also said to have been the case by Dudley and Schopini) and that he did not hear or see the train until the moment of the collision.

Schopini said that he was walking along the north road at a distance estimated by him as between 250 and 300 yards west of the north crossing, stated that he had seen the automobile driven by Arthur Bloxom as it approached Lucas, when it turned into the south road and until the collision; that deceased stopped about 15 or 20 feet from the south crossing for a few seconds before driving onto the crossing, which place he stated appeared from the angle he viewed the scene, as east of the “stop sign” (the place, however, being subsequently located by the witness with relation to one of the photographs as between the south crossing and the east spur track which, as stated, the evidence shows was 21.4 feet), from which point the witness stated that one had a view of the main track north as far as the tool house or, as stated, a distance of approximately 540 feet.

The evidence of Mr. Schopini relative to the position of the train when he saw Arthur Bloxom stop, as well as to other matters, is very conflicting with itself. At' one time when asked as to the position of the train when young Bloxom stopped, he answered, “He (Arthur Bloxom) was ■ possibly 15 or 20 feet when he stopped and then the train was right at him and he started again just in time for them to come together”; but thereafter he stated that the position of the train when Arthur Bloxom stopped was within the curve, about the tool house, above the tool house, ’j and a little bit above the tool house; but it clearly appears from the testimony of Mr. Schopini that the last positions werej merely estimates, as he stated that the freight train obstructed his view of everything above the north crossing.

Smith and New, the fireman on the passenger train, stated that the signals were given for the crossings, and they estimated that the speed of the train after the first crossing signal was given was about 25 miles per hour, and their testimony was supported by the statements of McCormick and Hall, and also by the statement of Leeper who, it is conceded, had been ordered to place his train on the passing track and await the passing of the passenger train. The estimates of the latter wit-messes, being as to the speed of the train, ■from 25 to 30 miles per hour.

Considering the testimony of the witnesses, it is certain that the witnesses 'called by defendant were more competent ■to estimate the speed of the train than those called by plaintiff, and that their ’testimony relative to whether or not the signals were given was positive; while that of the witnesses called by plaintiff was negative. The plaintiff bore the burden of proof and we are of the opinion that the evidence failed to establish that the signals were not given or that the speed of the train was above 30 miles per hour. However, it does not, we think, follow that the operators of the train were not guilty of negligence merely because the signals were given of the approach of the train and continued to be given or that the train was operated at a speed of 30 miles per hour.

Considering the allegations of the petition, it is clear, we think, that the charge of negligence against defendant related to the operation of the train under the conditions created by defendant in parking the freight train on one of the curved parallel tracks, restricting the view of the operators of the train as well as persons who should desire to cross the track; but passing any question as to whether or not defendant was negligent in operating the train at a speed of 30 miles per hour under the conditions presented, which is not argued by counsel, evidence was introduced, or rather the engineer, Smith, said that he had not seen the deceased if he stopped and that he had not seen the automobile driven by deceased until after the collision; while the fireman, New, said that he was maintaining a lookout, and stated that he had not seen the car until the moment of the collision.

, Considering the situation presented, we are of the opinion that the statement of the engineer and fireman shows that they were at least not maintaining such a strict lookout as the situation required and we are of the opinion that defendant was negligent in that respect, and if the evidence shows that such negligence was the cause of the accident, defendant would be liable unless the deceased was himself guilty of negligence. As stated, there appears some conflict in the testimony of the witnesses Dudley, Mitchell and Schopini relative to the place where deceased stopped, as well as to the position of the train at the time, and while counsel for both parties appear to recognize that there is such conflict, there is not any attempt made to reconcile the testimony. Counsel for appellant, taking the position that, considering the case with relation to the testimony of either Dudley, Mitchell or Schopini, says it shows that deceased was negligent; while counsel for appellees say that neither of the witnesses testified positively as to the exact place where deceased stopped, but that the legal presumption is that he stopped for only one reason and that was to look and listen for approaching trains, and in order to do that he certainly stopped at a point where his view would be effective, and neither seeing or hearing an approaching train, he had a legal right to proceed to cross the track, assuming that no train would be near enough to render the crossing dangerous.

There is not any necessity to reconcile the testimony of the witnesses relative to the rate of speed at which the car driven by deceased approached and drove upon the crossing, as all of the witnesses stated that deceased drove very slowy, and there is not any necessity of reconciling the testimony of Mitchell with either that of Schopini or Dudley as Mitchell did not testify to any other fact than that the deceased was driving slowly. But there is an apparent conflict between the testimony of Dudley and Schopini relative to the place where deceased stopped before driving on the track and also as to the position of the train at that time. It is clear, however, that the testimony of Schopini relative to the position of the train at the time he claims to have seen deceased stop is conflicting, and if we accept the statement of Schopini that the train was right at the deceased when he stopped and that deceased started just in time to collide with the train, with the evidence showing that the deceased could have had a view of the track for 541 feet, it would appear that deceased was at fault, but there being so many conflicts in the testimony of Schopini, we are of the opinion that the testimony of Schopini is of little weight. However, accepting the statement of Dudley, it appears that when the train, which was 350 feet long, was between the tool house and the north crossing or station building, young Bloxom was at the “stop sign,” east of the east spur track on the south road, or at a distance of 59 feet from the main track at the south crossing. And whatever may have been the speed at which young Bloxom was driving his car, the evidence shows that there was ample space between the south crossing and the east spur track for him to have stopped his car or to have observed the main track for a distance of 540 leet, and unless it may be that after young Bloxom stopped, at the “stop sign” (where we assume he looked and listened for trains and neither saw nor heard any approaching) he was warranted in continuing without paying further attention to whether or not any trains were approaching, he must, we think, be held to have been guilty of negligence.

Plaintiff contends, however, that he was warranted in so proceeding, citing in support of the contention Cherry v. L. & A. Railway Co., 121 La. 471, 46 So. 596, 17 L.R.A. (N.S.) 505, 126 Am. St. Rep. 323, and Eichorn v. N. O. & C. R., etc. Co., 112 La. 237, 36 So. 335, 104 Am. St. Rep. 437.

In the cases cited, the crossings were situated in towns or cities and the obstruction was on one of the tracks, which apparently paralleled each other and at a short distance from the crossing; while in the present case, the crossing was in the country near a plantation store and deceased was thoroughly familiar with the crossing, knowing that there was ample room for him to stop between the south crossing and the east spur track, at which place the evidence shows the deceased had the best view of the main track, and we do not - think that the situation presented in the cases cited was similar to that presented in the instant case. We are therefore of the opinion that under the evidence, young Bloxom was himself guilty of negligence, which at least contributed to the accident, and that plaintiffs cannot recover.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and plaintiffs’ demands rejected at their cost.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3868
    Second Circuit
    OUSLEY v. FERNANDEZ
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellee.
    Munholland & Munholland, of Monroe, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued for $97.72, with 8 per cent per annum interest thereon from August 27, 1926, until paid, and 10 per cent upon both principal and interest as attorney’s fees, alleging that he is the holder and owner of a certain promissory note, before maturity, in which the defendant promised to pay the above amounts; and that the note is made payable to plaintiff and signed by defendant.

Defendant admits that plaintiff is the owner of the note and that same was executed by him, but denies liability thereon for the want of consideration, alleging that on the 11th day of March, 1926, he entered into a contract with the plaintiff in which plaintiff agreed to furnish plans and specifications, to supervise and erect all work, order all material, keep an accurate account of all expenses, check all bills for material and labor, to pay subcontractors for bills due them and to inspect the work and warrant that it was properly done before bills should be paid, and to furnish itemized (payrolls at the end of each week for the building of a residence in the city of Monroe, Louisiana. That defendant agreed to pay all labor, drayage, compensation, insurance on labor and other expenses, and to pay subcontractors, none of which payments, however, were to be made until and unless first approved by plaintiff as to quality of work and correctness of bill, and that plaintiff was to be responsible to defendant for ail work or bills approved by him and subsequently found to be incorrect.

That the compensation of plaintiff was to be 8 ¡per cent of the cost of said residence, provided the cost did not exceed $10,500; and that the contract called for two-thirds of said 8 per cent to be paid with each payroll and the remaining one-third to be in three notes, due in four, eight and twelve months respectively. He alleges that all of the amount due plaintiff has been paid with the exception of the one note herein sued on.

Defendant further alleges that he complied in every respect with his part of the contract and that plaintiff has failed to complete the building in a workmanlike manner, alleging that the doors and windows do not fit and allow air and other elements to enter; that the concrete porch was not (properly made; that it has cracked and sagged in the middle, so as to hold quantities of water when it rains; that the windows, doors, louvres and painting are all of poor and inferior quality and done in unworkmanlike manner; that the windows are decaying and dilapidating; and that the stucco on the building is of improper mixture and is falling’ away. He alleges that it will cost him $810 to repair the said residence and to finish it as it should have been finished under the contract with plaintiff, and in reconvention prays for damages in the sum of $810.

On trial of the case, the lower court rendered judgment for plaintiff for the amount sued for, and rejected the reconventional demand as of nonsuit.

A careful study of the testimony in this case has convinced us that the house was not in all respects completed in the workmanlike manner called for by the contract. There is no denial that soon after the house was accepted by defendant that the roof leaked and ruined the wall paper in the house; that the rain would come in around the windows and thereby damage the draperies; that long before the trial of this suit, which was about three and one-half years after the completion of the house, many of the windows had to be replaced on account of decay, and that many others had completely rotted; and there was filed in evidence an exhibit of part of one window, showing that it had completely rotted and fallen to pieces. The concrete porch was shown to sag in the middle, possibly an inch, and holds water after each rain and that the children used it as a wading pool — possibly an attraction for the children, but not for the lady of the house. The contract called for the windows to be of white pine, and the piece of window filed in evidence is shown to be of yellow pine. The hardware fell off the windows soon after completion of the house and the screens would not lock so as to keep out insects.

Plaintiff was under contract to see that good lumber and material went into the house, as well as to see that the work was completed in a workmanlike manner. In the instances above set forth, he has failed, and want of consideration pleaded to the note sued on here is well founded, and the demand of plaintiff should have been rejected.

The defendant in reconvention has not proved to that certainty required by law the amount necessary to make the repairs to the house, and the judgment of the lower court rejecting his reconventional demand as of nonsuit is correct.

It is therefore ordered, adjudged and decreed that the judgment' of the lower court be amended, by rejecting the demand of plaintiff, at his cost, and as amended, that the judgment of the lower court be affirmed.


text:
    No. 3858
    Second Circuit
    RADFORD v. LOUISIANA CEN. LBR. CO.
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      S. R. Holstein, of Jena, and R. R. Reeves, of Harrisonburg, attorneys for plaintiff, appellee.
    Stubbs & Thompson, of Monroe, attorneys for defendant, appellant.
   DREW, J.

Plaintiff alleges that he is the holder and owner, for a valuable consideration, of eighty-five trade checks or representatives thereof, issued by the defendant, Louisiana Central Lumber Company, at Webb, Catahoula parish, Louisiana; that all of the trade checks or representatives thereof were issued between the dates of May 1, 1929, and June 26, 1929, and all countersigned by one of the duly authorized and acting agents of said defendant; that the said trade checks were issued to employees of the defendant company in payment of wages due them at that time and that said employees transferred the trade checks to plaintiff for merchandise and cash at his place of business about one-fourth of a mile from the commissary of defendant.

He alleges that the said trade cheeks were redeemable in merchandise at the defendant’s place of business, and are therefore payable to bearer, on demand, in current money of the United States, under and by authority of Act No. 228 of 1908, and particularly sections 1 and 2 thereof. He alleges demand on defendant at the next pay day after, receiving the said trade checks. He prays for judgment for the amount of the alleged trade checks, to-wit, $690, and for the further sum of $250 as damages and attorney’s fees.

Defendant filed an exception of no cause and right of action, plea of res adjudicata, and in answer attacked the constitutionality of the acts under which said suit is brought.

All of the above exceptions and pleas were overruled by the lower court.

Defendant in answer denies the essential allegations of plaintiff’s petition, and alleges that the memoranda credit slips upon which plaintiff founds his action are not checks, punchouts, tickets, tokens, or other devices issued hy it, redeemable either wholly or partially in goods or merchandise; that the slips are written requests by its various employees and customers, to charge to their accounts for merchandise up to but not in excess of the amount stated in figures on the said slips or written requests for extension of credit.

It denies that the slips or written requests for credit constituted an obligation at the time of the signing of the slips or at any time since have they ever constituted an obligation of the defendant, redeemable in either merchandise or money,, that the slips enumerated in plaintiff’s petition and upon which he is suing have never been charged to the persons signing the same, and that defendant has paid in cash to said employees all wages due and earned hy them.

The lower court rendered judgment in favor of plaintiff for the aggregate amount of the alleged trade checks, less three, on which there had been no demand for payment made, and rejected the demand for damages and attorney’s fees. Prom this judgment, the defendant has appealed.

The defendant and appellant has urged with much force in this court the plea to the constitutionality of the act (Act No. 228 of 1908, as amended by Act No. 210, of 1924), as well as the exception of no cause or right of action. However, the conclusion at which we have arrived on the merits of the case makes it unnecessary to pass on. the exception and plea of unconstitutionality.

The following is a copy of the document alleged to be a trade check:

“No. 1321. Webb, La., 6-3, 1929.
“Louisiana Central Lumber’ Company.
“Please charge my account for merchandise amounting to $.........., not to exceed $3.00.
“(Signature) B. P. Mitchell
“Witness:
“J. I. Blake.
“(Not good-after date issued.)”

J. I. Blake was the bookkeeper, credit man, and manager of the commissary of the Louisiana Central Lumber Company, at Webb, La., where the company maintained a logging camp. The defendant company bad two regular pay days per month, two weeks apart, as nearly as practicable in accordance with Act No. 25 of 1914, and on every regular pay day the defendant paid every employee the full amount of wages due him. Between the regular pay days, the employees, as well as other persons who were not employees, were allowed to buy goods and merchandise at the commissary on credit. Any customer applying for credit was required under the system inaugurated by the defendant to apply to the credit man, J. I. Blake, who, if he saw fit to extend him credit, would require the customer to sign the credit slip, as shown above, opposite ¿he word “signature.” Blake would date the slip and fill in the amount of credit he desired to extend to the customer opposite the words “not to exceed,” and would either sign his name or initials opposite the word “witness.” The customer would take this slip, and, upon presenting it to one of the clerks in the commissary, would be allowed to purchase goods and merchandise up to the amount of credit extended and shown by the credit slip. The customer was not allowed to buy more than the amount of credit extended him, but could buy less. If the amount he purchased was less than the amount of credit shown on the slip, the purchaser or clerk would fill in the amount in the space opposite the words “amounting to,” and would attach to the credit slip an itemized account of the goods purchased showing the amount of each item. The credit slip and the itemized account would go back to the bookkeeper’s office ai the end of the day’s business, and the customer would be charged with the amount of goods purchased. There was no charge made when the slip was given the customer, and, if he did not use the slip to make purchases at the commissary, he was never charged with any.

Mr. Sheppard, the general manager of the defendant company, testified as to why this system was inaugurated. We quote from his testimony:

“We had several purposes in mind. The first purpose that we had in mind was to make the extension of credit to our employees a safe one, or a practice that would be on a safe basis so that there could not be any contention and dissatisfaction among our employees. Some of them felt that possibly some merchandise had been charged against their account which they did not get, and after the credit was authorized and the sale slip was filled out and the employee’s account charged with the amount of merchandise which he actually obtained, that constituted a very clear and safe record so that if on pay day or at any later dat'e, Mr. Franklin or any of the employees felt that some error had been made in their account, that the bookkeeper had .charged them with merchandise or some other charge that they had not obtained, it was a very simple matter to get this record which was filed, and show it to Mr. Franklin and say: ‘Mr. Franklin, there is a detailed record of the merchandise you got — look that over ’and see if any error has been made.’ And by that practice, we avoid a great deal of dissatisfaction and complaint and conflict and suspicion among our employees that their accounts may be charged with something that the> did not get.”

Mr. Blake testified, and he is not contradicted, that, if an employee wanted cash instead of merchandise, he would sign a slip showing tte amount he desired, and the cash money was then and there given to him, and that he never refused to give the cash when it was requested.

The employees knew that their accounts were not charged with the amount of the credit slip, unless goods were purchased on the strength of the said slip. Those who acquired the credit slips and transferred them to the plaintiff in this case ' were never charged with the amounts shown on the slips, and on the next regular pay day each of them received all wages due them by the defendant company.

The defendant company’s employees were not required to accept their wages in merchandise, and it was only for their convenience that they were allowed to trade there on a credit between pay days. The record clearly shows that the eighty-five slips that plaintiff possesses were issued to men a great number of whom did not have any wages due them and to a number who were at the time indebted to the defendant company. We cannot say these credit slips were given in payment of wages due them by the defendant when the record clearly shows that some were indebted to defendant at the time while there were others to whom the defendant did not owe anything. There is no evidence to show that any of the men who acquired the slips and transferred them to plaintiff had as much due them by the defendant as the slips called for.

For instance, suppose that Mr. Blake, when credit was applied for by an employ- ’ ee, had merely walked down to one of the clerks and said to him, “Let this man have credit up to $10.” Could anyone complain of that manner of doing business? We think not. There is no law prohibiting an employer from giving credit to his employee. If that be true, then there is no difference in what was done by giving the credit slips, other than one was in writing, to prevent mistakes and misunderstandings, and tke other was done without any written evidence.

The ¡purpose of Act No. 228 of 1908, as amended by Act No. 210 of 1924, was not to covér such transactions as are before us in this case. The purpose of an act and the reason for such act, together with the wrong it was intended to cure or prevent, must be looked into in interpreting it. The reason and spirit of an act should be considered, as well as the cause which superinduced its enactment, in order to ascertain the true meaning thereof; regard should also be had as to the mischief it was intended to remedy. Act No. 228 of 1908, as amended and re-enacted by Act No. 210 of 1924, which amended and reenacted the title of the act and section 3, reads as follows:

“Making any person, firm or corporation, liable on demand in current money of the United States on their regular pay day to any legal holder thereof, for the full face value of any checks,- punchouts, tickets, tokens or other device, issued by them and redeemable either wholly or partially in merchandise at their or any other place of business, and providing penalties for the violation of this Act.”
“Section 1. Be it enacted by the General Assembly of the State of Louisiana,
“That any ¡person, firm or corporation issuing checks, punchouts, tickets, tokens, or other device, redeemable either wholly or partially in goods or merchandise at their, or any other place of business, shall, on demand of any legal holder thereof, on the next pay day of such person, firm or corporation 'issuing same succeeding the date of issuance of same be liable for the full face value thereof, in current money of the United States.
“Section 2. Be it further enacted, etc.,
“That any such checks, punchouts, tickets, tokens, or other device, issued by any person, firm or corporation, shall be considered and treated as payable to bearer, on demand, in current money of the United States, notwithstanding any contrary stipulation or provision which may be therein contained.
“Section 3. Be it further enacted, etc.,
“That in case of any person, firm, or corporation failing or refusing to pay any legal holder of any such checks, punch-outs, tickets, tokens, or other device, issued by them in payment of labor, the full face value thereof in current money of the United States, on their regular pay day when demanded by such legal holder, such person, firm or corporation shall be guilty of a misdemeanor and upon conviction shall be fined not less than Fifty ($50.00) Dollars, nor more than Five Hundred ($500.00) Dollars, and may be imprisoned not more than ninety (90) days at the discretion of the court.”

The purpose of the above act, as of all other legislation of this kind in this country, as well as in Canada and England, is to protect the laborer against the coercion and demand of his employer that he accept in payment of his wages less than the purchasing power of the dollar. Were it not for the power of the state to regulate payment of wages in aid of the protection of the laborer, then no one of the acts of a like character as Act No. 228 of 1908 could stand the test and be declared constitutional. It "is solely because of the protection afforded the laborer that such modification and abridgement of a common and natural right, the liberty and freedom of contract, is authorized and permitted. When once this support is removed, then the very foundation in law for such legislation passes away, and, with it, the statute itself.

Act No. 228 of 1908, before being amended by Act No. 210 of 1924, did not include the phrase “in payment of labor”; however, when section 3 of said act was amended by the act of 1924, the phrase, “in payment of labor” is included. In sustaining the constitutionality of Act No. 228 of 1908, prior to the amendment of 1924, in the case of Regan v. Tremont Lumber Co., 134 La. 199, 63 So. 874, the Supreme Court of this state treated the act as though it included the words “in payment of labor,” and base'd its decision upon tbe case of Harbison v. Knoxville Iron Co., a Tennessee case reported in 103 Tenn. 421, 53 S. W. 955, 56 L.R.A. 316, 76 Am. St. Rep. 682, and affirmed by tbe Supreme Court of the United States in 183 U. S. 13, 22 S. Ct. 1, 46 L. Ed. 55. In the Knoxville Iron Company ease, the decision rests upon the inherent power of the state to regulate the payment of laborer’s wages. In the case of State v. Blake, 170 La. 185, 127 So. 592, 595, the Supreme Court of this state again quotes freely from the Knoxville Iron Company case, and said:

“The statement of the Tennessee case shows that the law was enacted to abolish a hardship which was being imposed upon laborers by their employers.”

That was truly the purpose of Act No. 228 of 1908: Both subsequent acts, Act No. 210 of 1924, amending the 1908 act, used the words “in payment of Labor,” and the act of 1926, which has been declared unconstitutional in the case of State v. Blake, supra, used the words “in payment of wages.” Therefore Act No. 228 of 1908, as amended, must be construed as one dealing with the issuance of trade checks or other ^tokens in payment of wages.

What was the mischief that this statute was intended to remedy? It was not the giving of credit to the laborers between pay days. It was the giving him, in lieu of his wages, trade checks, tokens, etc. only redeemable in merchandise, at the place of business of his employer. Prior to the passage of this act, there were concerns that paid off entirely with punch-outs, coupon books, metal money, etc., only redeemable in merchandise at the commissary of the employer, and the laborer, in order to receive any cash, was forced to discount these different representations of money to someone who desired to purchase goods from the said commissary. That was the mischief that this act intended to remedy. It was not the intention to force the employer to, pay his employees wages between pay days. It was not the intention of forbidding equality between the employer and employees in the matter of wages, and arbitrarily forbidding them to enter into a contract which might be desirable to both of them and not be harmful to anyone. Such an interpretation of the act would, no doubt, be to hold that it is unconstitutional. To hold that the credit slips sued on in this case were tokens, trade checks, or other devices within the purview of the act, when same are not shown to have been issued in payment of wages and are shown not to have been charged to the laborer’s account, but only authorization for credit applied for by the laborer and when the same credit system was used in nealing with the public in general, would be to so interpret the act.

Trade checks, tokens, punchouts, etc., as used in the act, mean the issuing of some evidence of an obligation, admitting that the employer owes to the employee the amount set out on said check, or punch-out, etc., together with a promise to pay upon presentation by the holder thereof. They are issued for definite amounts. The documents sued on in this case are not for definite amounts. The amount is not fixed, and there is nothing about the credit slips that indicate that the defendant herein is obligated to pay on presentation.

To redeem an obligation, there must be an outstanding obligation subject to redemption.

The instruments sued on not expressing or carrying an obligation of the defendant to pay, there is of necessity no obligation for it to redeem.

The issuance of a trade check, etc., presupposes the existence of a debt; it is issued by the obligor and received by the obligee in discharge of that debt. Just as a debtor issues his bond or note in payment of a debt, so an employer issues a trade check in payment of a debt. There is a motive, cause, or consideration therefor.

It cannot be said that the instruments sued on are trade checks, etc., within the meaning of the act when there is no proof that the defendant owed anything to the employees who obtained them, and when it is shown, in fact admitted, that these slips were not charged to such employees. There was no motive, cause, or consideration for an obligation evidenced by a trade check, etc.

When pay day came around, the employees who had obtained these credit slips received in cash from the defendant all of the wages due them, without any deduction having been made for the said slips. Certainly no one would contend that the employee who had received all of his wages in cash could force the defendant to pay to him the amount of the credit slips he had obtained and still had in his possession, and certainly the transferree of said employee can have no greater right than the employee would have had, had he retained in his possession the said slips.

Appellee relies almost entirely on the decision in the case of State v. Blake, 170 La. 175, 127 So. 592, 596, in asking that the decision of the lower court be affirmed, and the judge of the lower court relied to a great extent on that decision in rendering judgment for the appellee, and we cannot say his construction of that decision is without foundation. However, the court in passing on that case had this to say:

“We do not express an opinion as to the right of a bona fide holder of such a merchandise order to collect the amount of the order in cash, because the record discloses that a civil suit is pending in the district court, in which E. W. Radford is suing the Louisiana Central Lumber Company for payment in cash of the amount of the merchandise orders held by him.”

While the court apparently passed upon the question involved in this case in its discussion of Act No. 318 of 1926, under which Blake had been indicted, the question before the court was the unconstitutionality of the act, and it did not in any manner deal with the civil rights as between the parties in this case. We take it that the entire discussion in the State v. Blake case was to show that the act in question was repugnant to the Fourteenth Amendment to the Constitution of the United States. For the court, after holding that the issuing of such an order as is in this case was a violation of the act of 1926, also said that the law would likewise have been violated if the laborer in that case, without an order, had bought goods at the commissary of his employer and the price of same had been charged against his wages. The 1926 act was purely a prohibitory act with a penalty, and did not in any way involve the question in this case, which is purely a civil action for the collection of money. t

We therefore find that the instruments sued on in this case were not issued in payment of wages of laborers, and are not checks, punchouts, tickets, tokens, or other device redeemable wholly or partly in merchandise within the purview of Act No. 228 of 1908, as amended by Act No. 210 of 1924; that they were credit slips authorizing that credit be given at the store of defendant, issued without any consideration and bearing no obligation on the (part of the defendant to redeem.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed and the demands of plaintiff rejected at his cost in both courts.


author: HIGGINS, J.

text:
    No. 13,279
    Orleans
    ALMERICO v. LOUIS A. BILLA & CO. ET AL.
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Upton & Barringer, of New Orleans, attorneys for plaintiff, appellant.
    Theo. Cotonio, of New Orleans, attorney for defendants, appellees.
    See also 131 So. 620.
   HIGGINS, J.

This is a suit by a landlord for the sum of $270, representing three rent notes, each for the sum of $90, for the months of July, August, and September, 1929, against the commercial co-partnership of Louis A. Billa & Co., composed of Joseph D. Pascal and- Louis A. Billa, and agalhst the individual members in solido. The partnership and Louis A. Billa did not contest the case, and, as far as they are concerned, judgment went by default. The other defendant, Joseph D. Pascal, denied that he was a member of the partnership, and therefore contends that he is not liable. On the trial of the case there was judgment as prayed for against the partnership and Louis A. Billa, but dismissing the suit against defendant Pascal. Plaintiff has appealed.

The transcript was lodged in this court on April 17, 1930. On the day on which the matter was called for argument here, counsel for appellee filed motions to dismiss the appeal on various grounds, i. e., that the order of appeal was granted too late, that no citation of appeal was served on appellee, and that the transcript was not timely lodged in this court. After consideration of this motion to dismiss the appeal, we overruled it in an opinion and decree rendered on December 11, 1930, 131 So. 620. The matter had been previously set down for argument on the merits on that day, contingent upon our action on the motion to dismiss the appeal, and, immediately upon the issuance of the decree overruling the motion to dismiss, counsel for appellee filed a motion to remand, basing this motion on the charge that the testimony as contained in the transcript was different from that adduced on the trial below. This contention results from the charge that the stenographer who reported and transcribed the testimony had made many errors, and had failed to faithfully report the evidence as given by the witnesses.

We are of the opinion that, if the transcript, as lodged with us, was in fact defective and incorrect in so many particulars as counsel in his oral argument has suggested, he would have, at a date much sooner than that fixed for the argument of the case, made an effort either to have the case remanded for the retaking of the testimony, or to have the transcript corrected by the issuance of a writ of certiorari. His failure to do so at least raises the presumption that the errors, if any, are not so numerous and not so important as counsel seems to believe. Furthermore, counsel for appellant vehemently disputes the charge of counsel for appellee that the record is erroneous in important details. In view of this dispute between counsel as to whether the transcript, as it is now before us, is correct or incorrect, we were most careful in reading the testimony of the various witnesses, and have come to the conclusion that, although it is possible that there may be slight inconsistencies, which may be chargeable to the incompetence of the stenographer, who reported and transcribed the testimony, in the main the evidence is fairly well connected and does not on its face show that it is incorrect, or that there are errors in transcription.

This is particularly true with reference to the issue of whether or not Pascal was a member of the partnership, because, in the course of the testimony of Louis Billa, Alcide Campo, and Joseph D. Pascal, it is time and again stated that Joseph Pascal was a member of the partnership. We do not believe, therefore, that the motion to remand the case for the retaking of the testimony should be sustained.

On consideration of the merits we have come- to the conclusion that the evidence abundantly supports the charge of plaintiff that Joseph Pascal was a member of the partnership and held himself out as such. In fact, counsel for Joseph Pascal, in support of his contention that the case should be remanded for the correction of the transcript, stated that the record, as made up and as now before us, left us no alternative other than to render judgment against his client. In view of the fact that we are of the opinion that the record as made up is correct, the judgment in favor of Pascal should be reversed and judgment rendered against him.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended in so far as it runs in favor of Joseph IX Pascal and against plaintiff, and ■ that there now be judgment in favor of plaintiff, Pascal Almerico, and against defendants, Joseph D. Pascal, Louis A. Billa, and Louis A. Billa & Co., jointly, severally, and in solido, in the full sum of $270, with legal interest from judicial demand, and for attorney’s fees at 10 per cent on the total amount, and for all costs, less a credit of $90, the said credit to be deducted after computation of the attorney’s fees and interest.


author: JANVIER, J.

text:
    No. 13,512
    Orleans
    STECKLER v. SPICUZZA
    (February 2, 1931. Opinion and Decree.)
    Frymire & Ramos and R. R. Hagen and C. L. Stiffell, of New Orleans, attorneys for plaintiff, appellee.
    M. W. Heard and Wm. W. Ogden, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

During the early part of the year 1927, plaintiff, Joseph Steckler, desiring to dispose of certain household articles including pictures, furniture, etc., arranged with defendant, Paul T. Spicuzza, a licensed and bonded auctioneer, for the sale of the said articles.

This suit is for the alleged value of three items, which according to plaintiff, have never been accounted for by the auctioneer.

Union Indemnity Company was surety on the bond of the auctioneer, executed in compliance with the provisions of section 140 of the Revised Statutes of Louisiana as amended by Act 45 of 1908, and that company is therefore made party defendant and a solidary judgment is sought by plaintiff against the two defendants.

In the petition the articles for the value of which the suit is brought are listed and valued as follows:

One antique Japanese dresser, $200.
One oil painting, “Old Salt,” $100.
One shadow picture, $50.

In addition to the principal amount of $350 claimed from both defendants, plaintiff also seeks to recover from the bonding company, as attorney fees, an additional 10 per cent on the principal claim, in accordance with the provisions of Act 225 of 1918.

The defense as to the two pictures is that they were sold for the sum of $20, and to this extent Spicuzza concedes he is liable, since he admits that he has overlooked accounting to Steckler for this sum. As to the third article, the antique Japanese dresser, Spicuzza claims that he was unable to effect a sale because of the limit placed thereon by Steckler, and that he therefore stored it in a public warehouse, where it still- remains.

'The trial court was of the opinion that Spicuzza should be held liable for the value of all three articles and, having fixed this value at $300, rendered judgment against both defendants for this sum.

The matter is now before us on suspensive appeal perfected by Union Indemnity Company, and appellee has moved to dismiss this appeal because of the fact that no appeal has been taken by Spicuzza, the other defendant.

ON MOTION TO DISMISS

The motion to dismiss will be overruled because Spicuzza’s failure to appeal cannot be permitted to deprive the other defendant, sought to be solidarily held, of its right to have this case reviewed by this court.

If it can be said that Spicuzza is a necessary party on appeal, then, since he has not appealed, he should be considered as an appellee, because “in an appeal taken by motion in open court at the same term, all parties to the suit who are not appellants are appellees, and all are concluded by the judgment rendered on appeal.” Guy et al. v. McDuffie et al., 123 La. 641, 49 So. 222.

To the same effect, in Richardson v. Zuntz, 26 La. Ann. 313, in which it was sought to dismiss the appeal on the ground that all parties interested in the judgment had not been made parties, tie Supreme Court said:

“The last objection is untenable. We find in the record an order for an appeal granted on motion in open court, and the bond is executed in favor of the clerk. We think that all the parties who have not appealed are appellees.”

Mover relies largely on Duggan v. Francisco De Paulo De Lizardi, 5 Rob. 224, in which the Supreme Court said:

“One who appeals must bring before the Supreme Court all the parties, contradictorily with whom the judgment complained of was rendered, and who are interested in its remaining undisturbed.”

But it cannot be said that Spicuzza was interested in the judgment remaining undisturbed, and thus the reasoning of that case and also of McCutchen v. Hudson, 132 La. 177, 61 So. 157, in which similar language is used, has no application here.

On a first reading of the opinion of the Supreme Court in Drew v. Atchison, 3 Rob. 140, the impression might be gained that that case is authority supporting the contention made in the motion to dismiss, but a more careful study of that opinion shows that there was not a solidary judgment but a joint one which was sought to be obtained, and it was held that under article 2085 (old 2080) of the Civil Code, where a joint judgment is. sought against two or more defendants all must join in the appeal.

However, where a solidary judgment is sought, that fs, where it is attempted to hold each defendant liable for the whole amount claimed, it appears to us that each should have a separate and distinct right of appeal, regardless of whether or not any of the others, have availed themselves of that right.

ON THE MERITS

It is evident that two of the items, the shadow picture and the picture known as “Old Salt” have not been accounted for, and therefore, at least to the extent of their value, the judgment should be affirmed. What that value is we find ‘it difficult to determine. It is claimed by plaintiff that it was agreed between him and Spicuzza that the shadow picture was valued at $105 and the painting “Old Salt” at $50, and he contends that this agreement is evidenced by the fact that in a memorandum given to Mr. Steckler by Spicuzza and showing certain articles which had not been sold, these figures appear after the items referred to. Spicuzza contends that the figures, as shown in the memorandum were not placed there by him and it is rather odd that values appear in that memorandum after the three articles in question but do not appear after any of the others.

It is also strange that in contending that the true values of the articles are the figures said to have been placed on the memorandum by the auctioneer, Steckler has not noticed that the figures are not the same as those claimed by him in his petition. For instance, his petition gives the values as follows:

One oil painting, “Old Salt,” $100.
One shadow picture, $50.

The memorandum gives the values as follows:

One shadow box picture, $100.
One painting, “Old Salt,” $50.

Nevertheless on this question of fact the trial court seems to have come to the conclusion that the two pictures were worth $100, and the evidence is not sufficient to warrant our changing that figure.

The other item, however, the antique Japanese dresser, we believe from the evidence, is still in storage in a public warehouse and is accessible to plaintiff. It is true that the evidence shows conclusively that for a long time plaintiff endeavored to obtain from Spicuzza either the return of the dresser or information as to where it could be located, and that he was. unsuccessful in these attempts. Nevertheless tne information seems to be now available, and plaintiff is not justified in assuming the attitude that he is no longer interested in the dresser and that he may claim from Spicuzza and Spicuzza’s surety the value thereof. We cannot say that the evidence did not justify a. finding below that the dresser was worth $200.

As to the claim for 10 per cent attorney’s fees as provided for in Act 225 of 1918, we are of the opinion that no such allowance should be made, since the full amount prayed for has not been awarded plaintiff and that act provides that attorney’s fees “shall only be recoverable where the full amount claimed by the suitor is recovered.” Madison Lumber Co. v. Federal Surety Company et al., 13 La. App. 577, 128 So. 50, 52.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by granting judgment in favor of the plaintiff, Joseph Steckler, and against the defendants, Paul T. Spicuzza and the Union Indemnity Company, jointly, severally, and in solido, in the full sum of $100, with legal interest thereon from judicial demand until paid; and it is further ordered that there be judgment in favor of plaintiff, Joseph Steckler, and against the defendants, Paul T. Spicuzza and the Union Indemnity Company ordering, directing and condemning defendants to return unto the plaintiff at his home the antique Japanese dresser, as described in the petition, free of any and all storage charges, or other cost and expenses whatsoever, within five days from the time this judgment becomes final, reserving to the plaintiff his right to sue defendants for any damages which said dresser may have sustained through the fault of defendants; and in the alternative, in the event said defendants shall not comply with this judgment by delivering the said dresser at the time and place herein provided, that there be judgment in favor of the plaintiff, Joseph Steckler, and against the defendants, Paul T. Spicuzza and Union Indemnity Company, jointly, severally, and in solido, for the value of the said dresser, namely, the sum of $200, with legal interest from judicial demand until paid; and, as thus amended, the judgment is affirmed, defendants, to pay the costs of both courts.

Judgment amended and, as amended, affirmed.


text:
    No. 13,460
    Orleans
    VANOSBY v. CREIDMAN
    (January 5, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)

      Johnston Armstrong, of New Orleans, attorney for plaintiff, appellee.
    Sidney G. Roos, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit for damages for personal injuries alleged to have been sustained on December 8, 1928, by the plaintiff as a tenant occupying a room on the second floor of a frame dwelling owned by the defendant, as a result of the balustrade and posts, supporting it giving away as plaintiff attempted to descend the steps from the second floor to the ground floor.

The defendant answered denying generally the allegations of the petition and particularly that the plaintiff occupied the premises as a tenant.

There was judgment in favor of the plaintiff in the sum of $250 and $18 for doctor’s bills, and the defendant has appealed. Plaintiff has answered the appeal and asked that the award be increased.

The facts as we gather them from the record are as follows: The plaintiff is a colored man and occupied a room on the second floor of the building owned by defendant. He had been living in the room with his “common law wife” for a period of about two months prior to the time of the accident. In order to go to and from the room it was necessary that he use a small gallery from which extended a flight of stairs which led from the porch to the ground. The distance between the second floor and the ground' is about fifteen. feet. On December 3, 1928, at about noon, while the plaintiff attempted to descend the steps, the left-hand balustrade, and the posts that supported it both on the gallery and on the ground, gave way, causing him to fall into the yard, and rendered him unconscious and caused the injuries complained of.

We are of the opinion that the plaintiff has proved by a preponderance of the evidence that the balustrade and posts gave way due to the fact that the lower portion of the posts were in a decayed condition and insecurely fastened.

We further find that the evidence preponderates in favor of plaintiff that he was the one who was renting the room from the defendant, and not his “common law wife,” as contended by defendant. This, however, is of no importance. Klein v. Young, 163 La. 59, 111 So. 495.

Under the jurisprudence to the effect that a landlord is bound to know if his building is safe for the purpose for which he rents it and if a tenant, or person lawfully therein, is injured as. the result of vices and defects, whether of original construction or because of failure to make proper repairs, under articles 670 and 2322 of the Civil Code, he is answerable in damages. Breen v. Walters, 150 La. 578, 91 So. 50; Klein v. Young, supra.

As to the quantum, it appears that the plaintiff was engaged by the Federal Barge Lines at a daily wage of $3.60; that he worked on an average of from three to six days a week and often made overtime; that he was unable to work for a period of about two months. He claims $100 for loss of wages, and this item will be allowed. The evidence establishes that the plaintiff was rendered unconscious by the fall and suffered from bruises and sprains to the right shoulder, hip, and back, and a bruised condition of his face and right arm, and that these injuries were painful, but not permanent. The judge of the lower court allowed therefor the sum of $150, and we believe this amount to be reasonable. The sum of $18 for doctor’s bill will also be allowed.

For the reasons assigned, the judgment appealed from is affirmed, at appellant’s cost.


text:
    No. 13,421
    Orleans
    N. CHISESI & CO., INC., v. RISPOLI
    (January 5, 1931. Opinion and Decree.)
    (January 19, 1931. Rehearing Refused.)
    Frymire & Ramos, of New Orleans, attorneys for plaintiff, appellee.
    Sidney G. Roos, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant as the holder and owner for value of a certain promissory note dated January 25, 1928, alleging that there is a balance due of $170.53, with legal interest from January 5, 1929, until paid, and 20 per cent of the total amount for attorneys’ fees for collection.

Defendant answered, setting up three defenses: (1) Denying that plaintiff was the holder and owner of the said note; (2) specially pleading payment; (3) specially pleading imputation of payments aggregating $1,400 against an open account and the said note, and that, as the note was the more burdensome and the debtor was most interested in discharging it, the payments should have been first imputed to the payment of the note instead of the open account.

There was judgment in favor of the plaintiff as prayed for, and the defendant has appealed. We shall dispose of the above defenses seriatim.

While the defendant, in his answer, denied that the plaintiff was the holder and owner of the note for value, in his testimony he admitted that plaintiff was the owner of the note, so this issue is out of the ease.

When specially pleading payment, the burden of proving that the debt has been paid is upon the defendant. See Times-Picayune Publishing Co. v. Jacobs, 13 La. App. 1, 126 So. 741, article 2232, Rev. Civ. Code. The defendant, in his testimony, was unable to point out any one of the nineteen checks that he produced which could be identified as a payment on account of the note. He admits that he had an open account with the plaintiff, and it appears that the $1,400 checks were in liquidation and settlement of the open account. The plaintiff’s witnesses contradicted the defendant in testifying that eighteen of the checks were in payment of the open account, and that one of the checks was credited on the note and duly entered on the reverse side thereof. We conclude that the defendant has failed to establish by a preponderance of the evidence the special plea of payment.

We next pass to the third defense. On this issue we find that the defendant was purchasing merchandise from the plaintiff on an open account which was settled weekly. The note, dated January 25, 1928, was payable in installments of $5 per week, and being originally for the sum of $260, could not become entirely due until January, 1929. The checks given by the defendant to the plaintiff, the amounts of which he seeks to have imputed to the extinguishment of the note sued upon, covered a period from January 10, 1928, to December 4, 1928. The note would not completely mature until January, 1929. It was therefore apparent that the debts were not due at the same time, hence article 2166 of the Revised Civil Code would not be applicable, as the debts were not equally due.

Another insuperable barrier to defendant’s contention of imputation of payment is that it appears that each week he was required to settle the open account for merchandise purchased, and given a receipt showing that the payment by the check in question was imputed to the open account, and that he never once objected to this being done.

It further appears from the record, in the testimony of two witnesses, for the plaintiff, that the defendant admitted the existence of the note, and agreed to pay the balance in weekly installments of $5 and $10, and that, although the plaintiff signified his willingness to have the note thus liquidated, the defendant failed ' to carry out his agreement. We are of the opinion that the special plea of imputation of payments is not well founded.

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


text:
    No. 13,362
    Orleans
    TOLMAS v. NORWOOD
    (January 9, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    Sidney G. Roos, of New Orleans, attorney for plaintiff, appellant.
    Edwin J. Prinz and Sol S. Goldman, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff sued defendant for the sum of $130, alleging that he was the holder and owner for value before maturity of a certain promissory note dated October 30, 1929, executed by the defendant .and payable to the order of Osyka Realty Company, which had endorsed the note without recourse to the Klema Realty Company, Inc., which, in turn, negotiated the note to the plaintiff.

Defendant denied liability, averring that the note originally had been identified by contract of lease for the premises No. 1136 Second street, this city; that the property leased by her was subject to a mortgage, which was assumed by the Osyka Realty Company; that the Klema Realty Co., Inc., in purchasing the property from the Osyka Realty Company, by private act dated September 5, 1929, had taken cognizance of the lease; that the homestead holding the mortgage had foreclosed and caused the premises to be seized and that defendant was compelled to pay the rent to the civil sheriff and therefore the consideration for the note had failed, as the lessor failed to maintain respondent in peaceful possession of the premises; that plaintiff had taken the note hy assignment and therefore subject to the equities that might exist between the original parties; and that, in the alternative, should the court hold the note to be a negotiable promissory note received before maturity, the plaintiff did not acquire the note for a valuable consideration and that he was not a bona fide holder in due course, because he knew that the Osyka Realty Company and the Klema Realty Co., Inc., had failed to pay the homestead installments and that the foreclosure proceedings were imminent.

After a lengthy trial, the judge, a quo, reached the conclusion that the plaintiff was not an innocent holder for value in due course before maturity, and accordingly dismissed his suit. Plaintiff has appealed.

Pretermitting any discussion of the question of whether the note was merely assigned and, hence, subject to the equities existing between the original parties, and assuming that it was negotiated, by endorsement, the most favorable view that we can place upon the case as far as plaintiff is concerned, we pass to a consideration of the question of whether or not the plaintiff was a bona fide holder for value in due course before maturity.

There is no dispute that the lease under which the note was given was breached as a result of the foreclosure proceedings and that, 'if defendant is forced to pay the plaintiff, she will not receive any consideration therefor.

In the case of Steeg v. Codifer, 157 La. 298, 102 So. 407, 409, the Supreme .Court said:

“As between the maker and payee of said note, it is clear therefore that the defense of fraudulent misrepresentation ■has been established. This being true the burden rested upon plaintiff to prove good faith and want of knowledge of such equities. Neg. Ins. Law, Sec. 59.’’ (Act 64 of 1904.)

. In the case of Stevens v. Sonnier, 11 La. App. 398, 122 So. 894, 897, the proof showed that the consideration for the note had failed, but the holder of the note sought to avoid the effect of failure of such consideration by showing that he was an innocent holder of the notes before maturity, etc. The court said:

“Therefore the burden of proof is upon Stevens (the holder of the notes) to show that he acquired them in due course, in good faith, and before maturity, and without notice of any infirmity or defect in title as he claims to have done. Sec. 59 of Act 64 of 1904.”

Prom the foregoing it will be seen that once the maker of a negotiable note proves failure of consideration, the burden then shifts to the holder of the note to sustain his alleged position as a bona fide holder for value in due course before maturity.

Let us now examine the evidence in the case to determine if the plaintiff has borne the burden of proof required by law. The record shows that Colonel and Mrs. Collins owned the property in question and that the defendant leased the premises from them. The .plaintiff, acting as real estate agent, sold the property for the account of Colonel and Mrs. Collins to the Osyka Realty Company on June 13, 1929. A homestead mortgage was placed upon the property and the Osyka Realty Company failed to pay it, which resulted in foreclosure proceedings. The Osyka Realty Company, on September 5, 1929, by act under private signature, in which the mortgage and conveyance certificates were waived and in which, apparently; the examination of'title was also dispensed with, sold the property to the Klema Realty Co., Inc. The notarial and recordation fees on this sale were paid by plaintiff. This sale was not recorded until September 9, 1929. Plaintiff as real estate agent also negotiated this sale.

It appears that plaintiff and L. L. Morris jointly acquired 360 acres of land in the state of Mississippi from the Osyka Realty Company, which was a partnership consisting of C. J. Thomas and his wife, Mrs. B. A. Thomas. Plaintiff testifies that he owned some land in St. Bernard parish, Louisiana, and also a note for the sum of $1,000 signed by Colonel and Mrs. Collins, which he claims represented his commission for the sale of the Collins property. When the O'syka Realty Company sold to the Klema Realty Co., Inc., the latter did not give up anything of value and the sale price was more than $10,000 less than the Osyka Realty Company, just about two months before, had paid for the property. The Osyka Realty Company endorsed the defendant’s rent notes to the Klema Realty Company without recourse and, in turn, the Klema Realty Co., Inc., endorsed and delivered the notes to the plaintiff, who gave, as a consideration therefor, the $1,000 Collins note, and also conveyed the 360 acres of land in Mississippi to Mrs. B. A. Thomas, the wife of C. J. Thomas, from whom, acting under the firm name of Osyka Realty Company, plaintiff and Mr. Morris, just a short, time before, had purchased the property. Morris accepted from plaintiff for his share in the rent notes, certain lots in St. Bernard parish.

The plaintiff admitted, in response to questions by the judge below, that his equity in the 360 acres of land was $1,800 and that he was the owner of Colonel and Mrs. Collins’ note for $1,000 and that these two items were the consideration which' he gave for the series of rent notes of the defendant, aggregating $1,300. Thus, it will be seen that he gave a consideration of $2,800 for $1,300. This fact, together with the most irregular and unusual manner in which the above recited transactions were handled, would lead us to believe that these transactions were simulated for the purpose of giving the plaintiff the status of a bona fide holdefr for value in due course.

But again giving the plaintiff the benefit of the doubt, and assuming that the transactions were bona fide, the defendant proved by a preponderance of the evidence that, after the alleged negotiation of the notes on September 5, 1929, by the Klema Realty Co., Inc., to the plaintiff, he, together with C. J. Thomas, visited the home of the defendant for the purpose of having her husband endorse the rent notes. The plaintiff admitted under cross-examination that the notes at that time were in the possession of Mr. Thomas. Subsequent to this visit, and particularly on Monday, September 9, 1929, the plaintiff stated to the defendant’s attorney that the defendant need not worry about the rent notes being negotiated, because Mr. Thomas, representing the Osyka Realty Company, and Mr. Steve Horvarth, representing the Klema Realty Co., Inc., were going to place the notes in the hands of the homestead, which held the. mortgage. Plaintiff was the real estate agent who negotiated these various sales and admits that he was thoroughly conversant with the affairs of C. J. Thomas. We are convinced • that he knew that the foreclosure proceedings were about to be instituted and that there would he a failure of consideration as far as the lessor was concerned. The record shows that the plaintiff failed to convince our learned brother below that he was a bona fide holder, for value in good faith, before maturity, and, from a careful reading of the record, we have come to the conclusion that his finding was correct.

For the reasons assigned the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,435
    Orleans
    MATASSA v. CORTESE ET AL.
    (January 19, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Guión & Upton, of New Orleans, attorneys for plaintiff, appellant.
    Ernest J. Robin, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

Plaintiff appealed from a judgment maintaining an exception of no cause of action. The petition alleges that on the 8th day of March, 1923, by act before John R. Upton, notary public, plaintiff, Vincent Matassa, purchased from Mrs. Maria Córtese, wife of Joseph Tusa, and Joseph Tusa, a certain piece of property described in the petition, for $3,-100 cash; that there was annexed to the act of sale the usual mortgage, conveyance and tax receipts in the name of the vendors and that said certificates were clear and indicated that the property conveyed had not been alienated and was unencumbered; that the act of sale contained the clause “the purchaser herein binds and obligates himself to pay for the presently existing paving and the cancellation of the lien and privilege resulting therefrom”; that during the year 1928, plaintiff received a notice from the city of New Orleans informing him that there was due the city of New Orleans the 1921 installment for paving for which the property was liable and subject to lien; that in order to protect himself as owner of the property) petitioner was compelled to and did pay the City of New Orleans the sum of $128.30 covering the installment due for the year 1921, or two years prior to his acquisition of the prooerty; that plaintiff did not intend to obligate himself for any of the installments due by said "property prior to the year 1923, the year in which he acquired the property; that if the clause in the act of sale is susceptible of a construction which would obligate plaintiff to pay for the 1921 installment, it is the result of mutual mistake by the parties to the said contract and the clause should be reformed so as to read “all installments for the year 1923 and subsequent years”; that if the mistake was not mutual and the vendors of the property had knowledge that the 1921 installment had not been paid, the fact should have been revealed to plaintiff. The petition concludes with a prayer for the reformation of the act of sale so as to limit his obligation for paving to the installment due for the year 1923 and subsequent years and that upon said reformed agreement, petitioner have judgment against the vendors, defendants herein, in the sum of $128.30 with legal interest, etc.

To this petition the defendants filed exceptions of jurisdiction of the court ratione materiae and of no cause of action. The exception to the jurisdiction was overruled and the exception of no cause of action maintained and plaintiff has appealed.

Defendants have not answered the appeal but in this court contend in argument and in brief that we should ex proprio motu decline jurisdiction upon the ground that the amount involved is beyond the maximum limit of our jurisdiction. In other words, the purchase price of the property mentioned in the act of sale being $3,100, and this being a suit to reform that contract, the amount involved is the consideration of the property. The objection to our jurisdiction is argued without any special pleadings and may be said to be informal but were it otherwise it is clearly without merit for the amount involved in this litigation is $128.30 and not $3,100. The fact that an amendment of a contract of sale of property for $3,100 is attempted so as' to permit recovery by plaintiff of the smaller sum is unimportant, the amount involved is only $128.30.

As to the exception of no cause of action it is based upon the theory that the petition is an attempt to contradict or vary a written contract by parole evidence. Higgins Manufac. Co. v. A. S. Spiess Sales Co., 9 La. App. 403, 120 So. 496; McWilliams v. Ritchie, 8 La. App. 205; Art. 2276, R. C. C.

But the parole evidence rule is not applicable here. No attempt is made to vary or contradict the terms of the act of sale but to reform a certain clause in order that it may properly represent the agreement of the parties. The .plaintiff acquired the property mentioned in the petition in 1923 and it is alleged that he intended to assume the existing and subsequent paving obligations and no others, and that by a mutual mistake or by deception of the vendors the a,ct as written, obligates him to pay for previous installments. It seems to us that a proper showing is made for. the exercise of the equity powers of the court. King v. Hobbs, 139 N. C. 170, 51 S. E. 911; Ker v. Evershed, 41 La. Ann. 15, 6 So. 566; Coleman v. Thibodaux, 119 La. 474, 44 So. 269; State v. Standard Oil Co. of Louisiana, 164 La. 334, 113 So. 867.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that this case be remanded to the First City Court for further proceedings according to law and not inconsistent with the views herein expressed.

HIGGINS, J., takes no part.


author: HIGGINS, J. JANVIER, J.

text:
    No. 13,558
    Orleans
    DILLON v. LIFE AND CASUALTY INS. COMPANY
    (January 5, 1931. Opinion and Decree.)
    (January 19, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellee.
    Harry R. Cabral, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sued the defendant, an insurance company, for the sum of $1,000 on an accident policy carried by her son, John Stewart, in which she was named as beneficiary. The defendant, admitted the issuance of the policy and that the premiums had been paid promptly, but denied liability, and specially pleaded the following clause contained in the policy:

“The Life and Casualty Insurance Company of Tennessee hereby insures the person named in said schedule against the result of bodily injuries received during the time this policy is in force, and effected solely by external violent and accidental means strictly in the manner hereafter stated, subject to all the provisions and limitations hereinafter contained, as. follows:
“If the insured be struck or knocked down or run over while walking or standing on a public highway by a vehicle propelled by steam, cable, electricity, naphtha, gasoline, horse, compressed air, or liquid power, excluding injuries sustained while on a, railroad right of way in violation of any statute or of any regulation of the railroad company.”

There was judgment in favor of the defendant dismissing the suit. A new trial was applied for and granted, and on the second trial there was judgment in favor of the plaintiff as prayed for, and the defendant has appealed.

The facts in the case may be stated as follows:

John Stewart, the insured, was killed on February 3, 1929, a't a point where the Yazoo & Mississippi Valley Railroad right of way is crossed by a road known, as Cornland Crossing, about one mile from Reserve, La. He was struck by a passenger train about 10 o’clock at night and instantly killed. The only eyewitness to the accident was the railroad engineer, who testified that the train was traveling about 50 miles per hour when the deceased was struck; and that it was only a few seconds after the time he first saw the man ahead of the train when he was struck by the engine and killed.

The road that crosses the right of way at the place where the accident occurred served as a thoroughfare for people who occupied twenty-three residences and a store on one side of the track and fifteen houses and a' store on the other side. It was a dirt road and used by vehicular and pedestrian traffic and, at the time of the accident, was maintained neither by the parish of St. John the Baptist nor the state highway department as a public highway.

The evidence is conflicting as to whether or not at. the time of the accident there were traffic stop signs provided by the state highway department of Louisiana at this crossing.

There are two issues involved: First, the primary question of interpretation of the above provision of the policy; and, second, a question of fact. We shall discuss these matters in the above order.

The plaintiff contends that the clause of the policy above quoted covers the insured in case he is injured by any of the designated kinds, of vehicles while on a public highway or upon the right of way of a railroad if the insured was lawfully there, and that as the deceased was accidentally killed on the crossing of the public highway and right of way of the railroad that the beneficiary is entitled to recover.

Defendant contends that the case falls within that portion of the clause limiting its liability where the injury is sustained on the right of way of a railroad company by an insured unlawfully there; and that if the deceased was there in violation of a statute or the company’s regulations there is no liability; and further that if the case is not covered by the above exclusion of liability, plaintiff cannot recover because the deceased was not killed on a public highway but on a private road, having been killed on the crossing.

It is clear and conceded by both sides, that where an insured under the provisions of the policy is killed or injured by a vehicle on a public highway, the company would be liable. The difficulty presented is in interpreting the words “excluding injuries sustained while on a railroad right of way in violation of any statute or any regulation of the railroad company.”

In the defendant’s answer it is averred “that under the terms of the policy, the coverage of the policy was limited as indicated therein and excluded any accident or death while on any railroad’s right of way in violation of any statute or any regulation of the railroad company.”

We note in this connection that the judge of the lower court first dismissed the plaintiff’s suit, but on a second trial rendered judgment in his- favor. In his reasons for judgment in interpreting this language, he said:

“That language excludes, not every injury sustained on a railroad right of way, but only such as are so received while the insured is violating a statute or railroad rule. And this exclusion implies, the .inclusion of injuries received on a railroad right of way without violation of statute or rule.”

In short, our learned brother below in analysing the language of the provision in question came to the conclusion that it was a negative pregnant with an affirmative.

Can it he said that the language in question is to be so construed in connection with the language that precedes it that only accidental injury or death occurring on a crossing between a public highway and a right of way of a railroad company is contemplated? We think not. This would be indeed placing a very narrow and technical construction upon the language of the clause in question against the insured and beneficiary in favor of the insurer. From what has been said it appears that the meaning of this clause is doubtful and ambiguous, and under the well-established rules of interpretation of contracts the doubt and ambiguity must be resolved against the defendant, which was the one that wrote and furnished the contract.

We therefore conclude that the policy covers the case of accidental injury or death occurring on the right of way of a railroad company except where the insured was there in violation of a statute or regulation of the railroad company.

We shall next inquire as to whether the deceased was or was not on the crossing or the right of way of the railroad company in violation of a statute or regulation of the company. The burden of establishing this, special defense was upon the defendant. It has not introduced in evidence any regulation of the company showing that the insured was prohibited from using the crossing and the right of way of the railroad company at or near the place where he was killed. Our attention has not been called by the defendant to any statute forbidding the deceased from being at or near the crossing or upon the railroad company’s right of way at the place where he was killed. Under such circumstances the defendant is liable.

For the reasons assigned the judgment appealed from is affirmed, at appellant’s cost.

JANVIER, J.

(dissenting). I cannot see that the provisions of the policy are ambiguous in the slightest degree. The insured is within the coverage thereof if, and only if, he be struck or knocked down or run over “while walking or standing on a public highway.”

Such words need no interpretation.

Let me repeat that, in the words of the policy itself, the defendant becomes liable if and only “if the insured be struck or knocked down or run over while walking or standing on a public highway.”

• The policy also provides that there shall be excluded, even hom this limited coverage, “injuries sustained while on a railroad right of way in violation of any statute or of any regulation of the railroad company.”

Since, then, there can be no recovery under the policy unless the insured was struck or knocked down or run over while walking or standing on a public highway, the burden rests on plaintiff to show that, at the time of the accident, the insured was on a public highway. In other words, the burden is on .plaintiff, who seeks to recover under an accident policy, to show that the injuries were sustained under circumstances within the coverage of the pol: icy. See Faulk v. Mutual Life Ins. Co., 160 La. 529, 107 So. 395; Webster v. N. Y. Life Ins. Co., 160 La. 854, 107 So. 599; Corpus Juris, vol. 1, Accident Insurance, sec. 284.

Plaintiff has failed to sustain this burden.

The trial court found that the insured “was walking on the track ahead of the train and in the same direction when the engine struck him.’ In other words, he had left the highway crossing and was walking on the railroad track. The evidence justifies this finding. The only eyewitness, the engineer of the train, says that, at the time the insured was struck, “he was a few feet beyond the crossing.” He was, thus, not within the protection of the principal portion of the policy because he was not on a public highway. I am at a loss to understand how it can be contended that the word “excluding” adds to the coverage and protection afforded by the policy. The policy very plainly was designed solely for the purpose of affording accident insurance to pedestrians while on public highways and not otherwise, and it was also intended to except from that coverage accidents, which, though occurring on public highways, also occurred on railroad tracks; in other words, at crossings between public highways and railroad tracks if, in going on the railroad track, the insured had violated any rule of thé company or any statute. For instance, an assured, while walking along a public highway, is within the protection of the policy. If he attempts to cross a railroad track and, in doing so, violates. a statute or a company rule — for example, a statute prohibiting crossing under crossing gates — he then takes himself out of the protection of the policy.

It is said that to so limit the policy makes it almost valueless. My answer is that I am not limiting the policy. That was done by the parties when they made their agreement. Courts are not permitted to make contracts, but only to interpret them after they have been entered into by others. The language of this contract admits of but one interpretation and that one should be accepted.

I therefore respectfully dissent.