text:
    No. 9904.
    Orleans Appeal.
    M. D. KOSTMAYER, Appellant, v. POLICE JURY OF THE PARISH OF JEFFERSON.
    (February 16, 1925, Opinion and Decree.)
    (March 16, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Mandamus—Par. 20
    Mandamus will not lie to compel an officer to perform in a particular manner certain duties calling for the exercise of judgment and discretion on his part.
    2. Louisiana Digest — Injunction—Par. 32.
    A court will not assume that an officer will disregard the law, or do an • illegal act and enjoin him from doing it.
    Appeal from Twenty-eighth Judicial District Court for the Parish of Jefferson, Hon. Prentice E. Edrington, Judge.
    Relator seeks by mandamus t.o command the defendants to appoint him as Drainage Commissioner and by injunction to enjoin them from appointing anyone else. Judgment dismissing relator’s suit. Relator appealed.
    Judgment affirmed.
    John E. Pleury, J. K. Gaudet, attorneys for plaintiff and appellant.
    C. A. Buchler, attorney for defendant and appellee.
   CLAIBORNE, J.

Relator seeks by mandamus to command the defendants to appoint him as Drainage Commissioner and by injunction to enjoin them from appointing anyone e)se.

He alleges that he was appointed drainage commissioner by the Police Jury on February 8, 1*922, for the term of two years; that his term expired on February 8, 1924; that by Section 7 of Act 85 of 1921 it is made the duty of the- Police Jury annually at their regular meeting in the month nearest the date of the creation of the drainage district to appoint one commissioner for said drainage. district in the same manner as the original commissioners were appointed; that the appointments of Commissioners by the Police Jury shall be made upon the recommendation of a majority in number of acres of land-owners of said proposed Drainage District, or a majority in numbers of the land owners of such districts where the district contains forty or less land owners; where the proposed district has more than forty land owners embraced therein, then the said appointments shall be made upon the recommendation of twenty-five of the land owners of said district. When there is a contest over the appointment of commissioners the Police Jury shall give the Appointment to those commissioners who are recommended by land owners owning the majority in number of acres of land in said district, or who are recommended by a majority in number of the land owners in said district, in the discretion of the Police Jury; that it became the duty of the Police Jury to appoint a successor to relator at their regular meeting held on February 6, 1921, which was the date of their regular annual meeting nearest to the date of the creation of the Drainage District; that at said meeting a petition containing a majority in number of acres of the land owners and more than twenty-five of the land owners of said district embracing more than forty land owners recommended relator for appointment by the Police Jury as commissioner for said Drainage District; that on presentation of said petition it was the duty of said Police Jury to appoint petitioner, provided there was no contest for said office or no other applicant for the position, and that there was no contest for said appointment; that the Police Jury refused to make said appointment or to tabulate or investigate said petition, and postponed the appointment until the next meeting in the month of March, the President . stating that there would be applicant for said position at said meeting; that r.elator is informed that the Police Jury will disregard the petition in his favor and will appoint some other person in his stead; that the action of the Police Jury is illegal and will work relator irreparable injury; that there is no compensation attached to the office.

Relator prayed for an injunction prohibiting the Police Jury from entertaining any petition for the pdsition of commissioner which may be filed other than his own, or which may be filed after February 6th, and from appointing any other person than himself as commissioner; and petitioner prayed for a mandamus also commanding the Police Jury to act upon the petition presented by him and to appoint him as a Commissioner of Drainage.

An injunction was issued as prayed for and an alternative writ' of mandamus.

For return to the writs the defendant pleaded an exception of no cause of action. For answer stated that since the term of office of relator did not expire until February 8th, and the meeting of the Police Jury was held on February 6th, there was no vacancy to be filled at that meeting, and the matter of filling the vacancy was deferred until the next March meeting; they deny that they refused to appoint relator commissioner, but inasmuch as there was a contest for the office, under the law they had a discretion in making the appointment.

J. G. Bruning intervened in said suit and alleged that he was recommended for appointment as a Commissioner of Drainage by a majority in number of land owners and that said petition was filed with the Police Jury at their meeting held on February 6th, at which he contested the appointment with relator Kostmayer. He prayed for judgment rejecting relator’s demand. Annexed to this intervention is a petition recommending John C. Bruning with the names of nearly 300 persons.

On the trial of the case there was evidence to show that Bruning’s petition had been placed in the hands of the President of the Police Jury prior to February 6th, but not presented to the Police Jury itself on the statement of the President that no petition would be acted upon at that meeting because there was yet no vacancy in the term of office.

There was judgment dismissing relator’s suit for the following reasons:

“However, the court is of opinion from the evidence in this case that there was a contest in the said office and that there was presented to the Police Jury of the Parish at the meeting held on February' 6th, 1924, two petitions, one recommending the plaintiff, M. D. Kostmayer, and another recommending the intervenor, J. G. Bruning.
“The Police Jury took no action in the matter at the meeting held in the month of February, but deferred the whole matter to its following meeting of March, 1924.
“The court being of the opinion that there was a contest in the said office and under the law the Police Jury being given the discretion to appoint either of the parties recommended by the majority of the number of acres, this court has no right to issue a writ of mandamus or a writ of injunction until the Police Jury is first given an opportunity to pass upon the sufficiency of the petitions filed.”

Relator has appealed.

We are of opinion that the judgment is correct.

A mandamus does not lie where the office is vested with discretion. Nixon vs. Houillon, 20 La. 518; State of Louisiana, Edward Pinac vs. W. S. Mount and J. O. Landry, 21 La. Ann. 352; Howell vs. St. Charles St. R. R. Co., 22 La. Ann. 603; Schully vs. Canal and Claiborne Streets Railroad Company, 23 La. Ann. 333; State vs. Board of Liquidators, 29 La. Ann. 690; State vs. Mayor and Council of New Orleans, 32 La. Ann. 268; State vs. Nicholson and Wife, 37 La. Ann. 842; State vs. Police Jury, 39 La. Ann. 759, 2 South. 305.

In the case of State ex rel. Daboval vs. Police Jury, 39 La. Ann. 759, 2 South. 305 the court quoted with, approval the following language of High on Remedies, Sec. 24: “The principle is that mandamus will lie to 'compel the performance of duties purely ministerial in their nature and so clear and specific that no element of discretion be left in their performance; but that, as to all acts or duties necessarily calling for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required mandamus will not lie.”

Affirming State vs. Young, 38 La. Ann. 923, and quoting State vs. Board of Liquidators, 29 La. Ann. 264; State vs. Police Jury, 29 La. Ann. 146; State vs. Johnson, 28 La. Ann. 932; State vs. Judge of Sixth District Court, 28 La. Ann. 905; State vs. Judge of Sixth District Court, 32 La. Ann. 549; State vs. Judges of Civil District Court, 34 La. Ann. 1114. To which we may add Sanderson vs. Ralston, 20 La. Ann. 318; State vs. Mount & Landry, 21 La. Ann. 352; Howell vs. St. Charles St. R. R. Co., 22 La. Ann. 603; State vs. Canal and Claiborne Streets Railroad Company, 23 La. Ann. 333; State vs. Board of Liquidators, 29 La. Ann. 690; State vs. Mayor and Council of New Orleans, 32 La. Ann. 268; State vs. Strong, 32 La. Ann. 173; Millsaps vs. Mayor and Council of Monroe, 37 La. Ann. 642; State vs. Houston, 40 La. Ann. 393, 4 South. 50; State vs. Police Jury, 43 La. Ann. 1009, 10 South. 359; State vs. Lanier, 47 La. Ann. 568, 17 South. 130; Kansas City S. Ry. Co. vs. Railroad Commission, 106 La. 583, 31 South. 131; Roelh Dig., p. 869.

In the present case before coming to a conclusion the members of the Police Jury would be called upon to verify the signatures to the petition, to determine their residence, their number and the quantity of acres represented by each, and to satisfy the other requirements of the law; and in case of contest, as shown here, to exercise the judgment and discretion vested in them by the law, in the selection of the commissioner. The court has no right to substitute its judgment to that of the officers designated by the law, nor to assume the right of appointment of officers. All the court can do is to order the Police Jury to act, but not to act in any particular manner. State vs. Judges of Civil District Court, 34 La. Ann. 1114.

A mandamus will not issue to compel an officer to appoint a particular person though it is his duty to appoint some person. 26 Cyc. 251.

Nor can the court assume that the Police Jury will disregard the law or do an illegal act and enjoin it from doing it.

There 'is no evidence before us that the respondents will not consider the petition in favor of relator, nor that they will not appoint him, if he has a right to the appointment, nor that they will appoint his opponent.

An injunction will not issue to prohibit the officers of a corporation from holding an election to levy a tax. Their action is premature as their rights are not yet invaded and the contingency is too remote. Roudanez vs. Mayor, etc., of New Orleans, 29 La. Ann. 271.

A petition to enjoin the City Council from passing an ordinance discloses no cause of action. Non constat that the Council will pass the ordinance. Harrison vs. City of New Orleans, 33 La. Ann. 222.

Injunction will not lie against a prospective nuisance. Bell vs. A. Riggs & Bro., 38 La. Ann. 555; Darcantel vs. People’s Slaughter H. & Refrig. Co., 44 La. Ann. 645, 11 South. 239; Otis vs. Sweeney, 48 La. Ann. 940, 20 South. 229.

An injunction is not the proper remedy - to prevent a Police Jury from employing an attorney in its suits, even when the law provides that the District Attorney shall represent it in such suits. Leche vs. Police Jury, 37 La. Ann. 195.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 9910.
    Orleans Appeal.
    EDWARD C. HOOPER v. DRY HAND MOP CO., INC.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 218, 229, 230.
    Where a purchaser of mechanical tools, dies and other materials verbally contracted for, uses them in his business for nearly a year, making part payments on the purchase price thereof, he cannot, when sued for the balance due, repudiate the contract by pleading-defects or improper construction.
    2. Louisiana Digest — Sales—Par. 229, 230.
    Failing to reject or return the materials within reasonable time, he must be held to have accepted them.
    Appeal from the First City Court for the City of New Orleans, Section “C”, Hon. Henry Renshaw, Judge.
    This is a suit to recover the balance of the purchase price of dies and other mechanical parts.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. Walter Coekfield, attorney for plaintiff and appellee.
    Hiddleston Kenner, attorney for. defendant and appellant.
   BELL, J.

Plaintiff, a tool and die maker, sues defendant, a manufacturer of hand mops, for a balance due on the price of material and labor in furnishing and manufacturing, under verbal contract, certain dies and other mechanical parts used by defendant in its business. The total itemized bill, made part of the petition, is for $527.21, against which four partial payments, aggregating $269.50, have been made, thus leaving a balance of $257.71, which is the amount now sued upon. The defenses, as set forth in answer and supplemental answer, are lengthy, contradictory and inconsistent. Admitting that part of the items listed in plaintiff’s bill were ordered and delivered, but denying liability for other items, it is averred that the prices for those ordered were excessive; that materials were not up to contract and did not serve the purpose for which they were intended; that other items, if ordered, were not made in accordance with samples furnished; that other items furnished were part of the main order and should be included therein, and that partial payments made were not for account of the purchase price but only advances made to plaintiff to assist him in meeting his payrolls. It is finally pleaded that all payments due have been made except a small balance of $6.50, which balance, it is alleged, has been tendered and refused.

There was judgment for plaintiff and defendant has appealed.

We find that in the fall of 1923, defendant’s manager, who was also secretary-treasurer of the corporation, employed plaintiff to manufacture a set of dies for making tin tubes, sixteen inches long, to be clamped on wooden mop handles, all in accordance with a sample furnished by defendant company. The total estimated price submitted by plaintiff for the dies was at first $267.00. The ultimate charge for this item, as appears on the account, was $349.21, or $82.21 more than the original price agreed upon. The difference is reasonably accounted for. The manager of the defendant corporation admits, as does its president, that they found, after first agreeing upon the original price, it would be necessary to use a longer tin tube, measuring in length eighteen inches .instead of sixteen inches, as first ordered, and that they, therefore, directed plaintiff to change the die accordingly. There is nothing in the record to show that the additional charge was excessive or unreasonable. No agreement seems to have been made as to just what should be the additional charge for the change in the die. No expert evidence has been offered to refute plaintiff’s testimony that the price was reasonable or that it was not at “actual cost”, as stated in plaintiff’s letter of January 19, 1924. The other substantial item on the account, amounts to $140.00, for “making bolster and drawing punch for drawing die with stripper and attachments for turning edge of shells”. This work was done at special request for the purpose of making particular ferrules, sample of which was furnished by the defendant. The price for this die was not specially agreed upon and the charge therefor is not shown to have been even disputed. The complaint in this instance is that the ferrules made from this die were defective and that the bolster or drawing punch failed to do the work after repeated trials. We find that plaintiff never guaranteed at any time that the ferrules produced from this die would serve the purpose for which the ferrules were to be used. The die furnished seemed to have produced just such a ferrule as the sample called for. The efficacy of the ferrule or its adaptability to that use for which it was intended, does not seem to have been any part of plaintiff’s guarantee. But be that as it may, the fact is definitely established by the admission of both witnesses for defendant, that is,- the president and the manager, that the die was never rejected nor any offer made to return it to plaintiff. The die is shown to have remained in defendant’s possession and use for over ten months before the date of the institution of this suit. It is too late to plead defects. The law presumes the acceptance of even that which is defective if use and retention for more than a reasonable time is shown, especially where there has been no tender or putting in default. (See Champion Shoe Machine Co. vs. Antonio Calmone, 8795 Orl. App.; Thompson Machinery Co. vs. William Haley, 8833 Orl. App.; Robinson & Co. vs. Louisiana Box Company, 8748 Orl. App.)

The case at bar is particularly against defendant for the reason, as already noted, that at least four payments on account were made, the last one as late as January 11, 1924, after all materials furnished had been delivered and used, and before plaintiff had furnished, at defendant’s request, an itemized account of the labor and materials used in manufacturing the die. The charge of $19.00, for “one pair of steel heels for solido press”, we find to be also reasonable. The necessity for these heels is shown by the evidence to have arisen, not through any defect in the original die used in making the tubes, but because the defendant’s own press on which the die was used, was not wide enough to cover the die, thus causing the outside ends to spring out. Plaintiff’s evidence that these heels were found necessary by defendant, whose president ordered them to be made, is not denied.

The two remaining items on the account, amounting to $19.00, appear to have been erroneously charged on the present account, and relate to work and material furnished on a previous account. Credit for the payment of these items has been given on the present account and obviates further discussion of this item.

We find, no error in the judgment appealed from. It should be affirmed.

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


author: WESTERFIELD, J.

text:
    No. 9928.
    Orleans Appeal.
    B. P. BRAUD, INC. v. GEORGE C. BEARDSLEE, Appellant.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus, by the Court.)

    1. Louisiana Digest — Guaranty—Par. 3.
    Parol evidence cannot be admitted and if admitted, cannot be considered to prove the obligation to pay the debt of a third person, but the fact that A and B agreed to pay for merchandise delivered to B can be proven by parol evidence and when established, both A and B will be liable as principals for two persons may obligate themselves to pay the same debt.
    (Civil Code, Act 2278, Par. 3, for reference. Editor’s note.)
    Appeal from First City Court for the City of New Orleans, Hon. Henry Renshaw, Judgé.
    This is a suit on an open account.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Henry B. Curtis, attorney for plaintiff and appellee.
    Thos. J. Dobins, attorney for defendant and appellant.
   WESTERFIELD, J.

Plaintiff is sued on an open account amounting to $125.00, all but one dollar of which represents the purchase price of four automobile tires delivered to and placed upon an automobile belonging to another.

The defendant claims that the automobile tires were not sold to him or upon his credit, but to the other party, one Barnes, who should pay for them.

There whs judgment below in plaintiff’s favor and defendant has appealed.

The record shows that defendant and Barnes were employed at the same establishment and on very friendly terms, though Barnes was a stranger in the City and their acquaintance not of long standing. Defendant sold his automobile to Barnes who wished to equip it with new tires. Defendant accompanied Barnes to plaintiff’s place of business and arranged for him to get the tires. He says he simply introduced Barnes and did not pledge his credit for the tires in any way, but the evidence is to the contrary and we must conclude that plaintiff sold the tires on the credit of defendant. Plaintiff did not know Barnes, who was a stranger in the City, and his statement that he would not have extended a credit of $124.00 to a stranger seems to us reasonable. But the transaction was not in writing and defendant by his exception of no cause of action, raises the issue as to parol proof' of the obligation, to pay the debt of a third person under Art. 2278, R. C. C.

The petition alleges that the tires were sold to Barnes and that the defendant agreed to pay for them. Did the defendant bind himself as the primary obligor is the final question presented? The fact that the tires were delivered to Barnes or as the petition somewhat inartistically recites, "sold” them to Barnes is not conclusive, for one may assume the primary obligation to pay for goods sent or delivered to others, and the expression of such transaction as a' sale to another is not fatal to plaintiff’s contention for the inquiry is addressed to the intention of the parties as shown by the circumstances of the case.

In the case of Watson Bros. vs. Jones, 125 La. 249, 51 South. 187, the Supreme Court in discussing a similar case, said:

“In this case, however, the petition alleges that defendant’s obligation to pay for the goods was absolute, and we do not think that the effect of the allegation on that subject is, necessarily, destroyed by the further allegation that the goods were sold and delivered to Pierson, for, it will be observed, it is also alleged that they were so delivered ‘under said contract with Fred R. Jones’; that is to say, under a contract whereby Jones had bound himself, unconditionally, to pay for them. Of course, if the goods were ‘sold’ to Pierson, he became a debtor for the price; but two per-, sons may make themselves liable, primarily (and not, necessarily, in the relation of principal and surety) for the same debt, and that is what the petition seems to allege was done by defendant and Pierson. Whether the allegations in question will be sustained by the evidence can only be ascertained when the evidence shall have been admitted. If it shows that defendant was to pay only in the event that Pierson should not, it would have to be disregarded, notwithstanding its having been' received, since it would, in that case, go to prove a promise to pay the debt of another. Merz vs. Labuzan & Carter, 23 La. Ann. 747; Levy & Dieter vs. Dubois, Lowe & Foley, 24 La. Ann. 401; Baker & Thompson vs. Pagaud, 26 La. Ann. 221.

In the case at bar three witnesses have testified that defendant ordered the tires charged to him at the time they were bought and it appears' that three monthly statements were sent to defendant without any protest on his part, though he later did say the account was Barnes’ and not his. It is true that Barnes also agreed to pay for the. tires, but two persons may bind themselves as principals to . pay the same debt. Defendant had an account with plaintiff previous to the tire transaction and Barnes was unknown to plaintiff and a stranger in the city. The trial court which, heard the witnesses testify was of opinion that defendant had primarily obligated himself.

Under the circumstances, we conclude that defendant assumed the direct obligation to pay for the tires.

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


text:
    No. 9868.
    Orleans Appeal.
    WILLIAM H. HENDREN v. CRESCENT CITY SELTZER AND MINERAL WATER COMPANY, INC.
    (February 16, 1925, Opinion and Decree.)

      (SyllaMis by the Court.)

    1. Louisiana Digest — Insurance—Par. ' 16
    It is immaterial that plaintiff, as owner of an insured automobile, has been paid by the insurer for damages to the car alleged to have been caused by defendant’s fault. Such a fact furnishes no legal defense. Plaintiff’s objections to proof of such indemnification is properly maintained by the trial court, the insurer not being a necessary party to the suit brought in the name of the insured.
    2. Louisiana Digest — Appeal—Par. 625, 635
    Where plaintiff testifies to the actual itemized repairs made necessary because of the damages to his automobile, and where the nature of the damage is made certain by a preponderance of evidence, the court will allow the costs of the repairs when convinced that they are reasonable and when no evidence to the contrary has been offered.
    3. Louisiana Digest — Municipalities—Par 221, 225; Automobiles — Par. 4.
    On a two-way, double-tracked street, vehicles should keep to the right and off of the car tracks, unless forced to pass another vehicle or obstacle. To drive on the left track and left portion of the street and against the direction in which vehicles on such side have a right to move or park, is a violation of traffic ordinances, and is negligence which, when causing an accident, renders the violator liable.
    (Civil Code, Art. 2315. Editor's note.)
    Appeal from the First City Court for the City of New Orleans, Section “A”, Hon. L. L. Labatt, Judge.
    This is a damage suit for repairs to automobiles arising out of a collision.
    There was judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Gordon Boswell, C. Milo Williams, attorneys for plaintiff and appellee.
    C. S. Hebert, attorney for defendant and appellant.
   BELL, J.

This is a suit for damages arising from a collision of defendant’s truck with plaintiff’s automobile. The amount sued for represents costs of material and labor, paid by plaintiff for repairs made necessary by the accident. There was judgment for this amount and defendant has appealed.

The petition, to which is annexed the itemized and receipted bill for repairs, charges negligence against defendant in that defendant’s truck was being driven recklessly and at a high rate of speed, in a southernly direction, on the wrong side of North Peters Street, between St. Ann and Dumaine Streets, all in violation of traffic ordinances of the City of New Orleans. It is further alleged that while the truck was being thus driven, it collided with plaintiff’s car, which was parked in a northernly direction against the river side curbing of North Peters Street, between the cross streets aforementioned. The defense is a general denial, but in supplemental and amended answer, defendant specially avers:

“That at the time of the collision in question the automobile of the plaintiff was not parked, but that a lady operating said machine was in the act of backing same into the street, from the position where it had been parked; that said backing of the machine into the open street was done without warning or signal and in defiance of the rights of persons and vehicles that were moving on the street proper; that the automobile of the plaintiff was backed onto the roadway, directly in front of the machine of defendant, and the collision was caused entirely by the fault and carelessness of the operator of plaintiff’s car.”

This special defense is not supported by the evidence. There were three witnesses to the accident, to-wit: the plaintiff’s wife, as driver of his car, the defendant’s chauffeur, operating the truck, and the driver of another car parked directly behind plaintiff’s car. There is no dispute as to the fact that defendant’s truck was being driven at the time of the collision on the river side of North Peters Street, while going in a southernly or uptown direction, and while on the left or river side car track. This was in direct violation of the traffic ordinances requiring vehicles to keep well to the right of the road. The truck does not appear to have been driven at an excessive rate of speed, but there are no circumstances to be gathered from the record which justify or explain the violation of the traffic laws in the respect just noted. The truck driver testifies that the collision was caused by plaintiff’s car being suddenly backed without warning from the curb into the roadway across the down-going car track, on which defendant’s truck was then being driven. This theory of the accident is entirely refuted by the testimony of the other two eye witnesses to the collision. Plaintiff’s wife testifies that she had just moved her car from its parked position alongside of the curbing, where we find she had a right to be. It appears that while she was slowly passing another car parked directly in front of her, that defendant’s truck advanced in an opposite direction from which she was attempting to go, and also from the opposite side of North Peters Street. This witness swears that her automobile was on neither of the two car tracks running along North Peters Street, but was on the roadway between the river side curbing and the track nearest thereto, and was in this position when the truck suddenly swerved across both tracks in a rectangular direction from that in which it was first proceeding, and that it bore down upon her, colliding into the left side of her car. The nature and extent of the physical damages to the car satisfy us that this witness’ description of the manner in which the accident occurred is substantially correct, though the oncoming truck must have been going in a diagonal rather than a rectangular direction across North Peters Street. This witness, on cross-examination, admits that for a few moments just before the collision, her car was in slow motion several feet from the curb and not parked there. The inconsistencies of this evidence with the allegations of the petition as to the exact lo-. cation of the automobile is of no consequence, for the reason that it has been shown by a preponderance of evidence that plaintiff’s car was at all times where it had a right to be and was at the very moment of the collision at a standstill, though it was several feet from the curb. Witness swears that on seeing the truck bearing down upon her, she brought her car to a full stop before being struck. Her testimony in every respect is substantially corroborated by the driver of the car, which was parked immediately behind plaintiff’s car at the moment before it was moved from the curb. The testimony of the truck driver is sufficient to establish without further evidence his reckless disregard of the traffic ordinances. In an effort to free himself from the responsibility for the accident, he swears that plaintiff’s car backed out suddenly across his right of way; that he struck the car with the “nose” of the truck, that is, headon, and that he immediately got down from his truck after, the collision for the purpose of carefully examining the extent of the damage to plaintiff’s car. Despite this careful examination which he swears he made to the whole car, he testifies that the only damage he found was to the left rear fender of plaintiff’s car. Under the theory of the accident advanced by him, only the left rear fender would have been injured, but testimony of plaintiff’s wife and of their witness, whose car was immediately behind plaintiff’s car, is all to the effect that the entire left side of the car, that is, the left front door, the running board and both left fenders, were so demolished as to require complete replacement. Thesé damages convince us that the truck crossing over from the right or lake side of North Peters Street, and while traversing the river side car track of said street, where it should never have been, ran diagonally into and across the entire left side of plaintiff’s car. There can be no doubt that the accident was wholly caused by the negligence of defendant’s driver and that anything done or left undone by the plaintiff’s wife could have, in no manner, contributed to the accident. Judgment fixing the liability upon defendant is correct.

It is contended by counsel for defendant that no recovery can be had by plaintiff for the reason that he has been fully indemnified by the insurer of his car, and that for the further reason, plaintiff has failed to offer or to prove by competent evidence the itemized bill annexed to his petition. We find no merit in either of these contentions. It is immaterial that plaintiff’s car was insured or that he has been paid the damages sustained, the amount of which is now claimed, against defendant. Defendant’s liability cannot be affected by such facts, and he can neither plead nor attempt by evidence to prove such defense. The ruling of the trial judge, excluding such proof, was correct. This court has previously so held in the cases of Colovich vs. National Fish and Oyster Company, 8 Ct. Appeal, p. 47 (writ denied hy Supreme Court); Henican vs. Baldwin, 9762 Orl. App.; Hanton vs. N. O. Light & Power Company, 124 La. 562, 50 South. 544. See also Briffith vs. Keller, 147 La. 546, 85 South. 233; State vs. Bell, 153 La. 823, 96 South. 669.

As to the itemized receipted bill — it cannot be considered because never offered, but abundance of proof, uncontradicted, has been produced to satisfy this court as to the exact items of damages, and the corresponding items of repairs made necessary in order to restore the plaintiff’s car to the condition in which it was before the accident. Competency of such evidence has been frequently upheld. (178 N. W. 238; 198 Pac. 586; 237 S. W. 848; 211 Pac. 760.)

'Plaintiff’s wife and their ¿other witness to the accident, as well as plaintiff himself, who saw the car shortly after the collision and before the repairs were made, have all testified as to the exact extent of the damage, and the plaintiff, when under cross-examination, stated in detail and with certainty as to the items of repair, as well as to the amounts paid for said items. The largest item of repair is for labor and paint used in repainting the entire car. Considering the extensive damages to the entire left side of the car, we are of the opinion that a repainting of the entire car was necessary, and we find that the price was reasonable. Although defendant was given full notice from the • itemized statement annexed to the petition as to the exact extent of the repairs, and although plaintiff has testified without objection concerning the exact expenditures made and the reasonableness thereof, nothing in contradiction of tbis evidence, has been offered. In the absence of contradictory proof, the items claimed should be approved. We have so held in similar cases —Cundiff vs. Imbrigulia, 8297 Orl. App.; iienican vs. Baldwin, 9762 Orl. App.

We find no error in the judgment of the trial court or in the quantum of damages allowed.

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


text:
    No. 9933.
    Orleans Appeal.
    JOSEPH COLTRARO v. C. J. CHOTIN, Appellant.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Judgment—Par. 39 98. * '
    A petition alleging the nullity of a judgment upon the ground that no notice of trial was served upon the defendant and judgment taken against defendant in the absence of himself and counsel discloses a cause of action.
    (Code of Practice, Art. 606, 607. Ed ¡tor’s note.)
    Appeal from First City Court of the City of New Orleans, Hon. Henry Renshaw, Judge.
    This is a suit to annul a judgment.
    An exception of no cause of action was sustained.
    Judgment reversed and remanded.
    K. V. Richard, attorney for plaintiff and appellee.
    W. O. Hart, attorney for defendant and appellant.
   WESTERFIELD, J.

The plaintiff, Coltraro, obtained a judgment against the defendant Chotin, who had filed an answer to his petition, in the absence of Chotin and his counsel. Chotin sued to annul the judgment on the ground that “no notice of trial was ever served”. An exception of no cause of action was filed to the petition to annul the judgment which was maintained and Chotin has appealed. The Sheriff’s return is in the record and it recites that notice was properly served, nevertheless, the petition contains the sworn allegation that no service was made and the responsibility of proving same was undertaken by plaintiff in injunction. For the purpose of our present consideration, we must assume that no notice of trial was served. The question is whether a judgment can be annulled upon that ground.

We are referred by counsel for defendant. in injunction to Art. 606 C. P„ and our attention is directed to the fact that the ground alleged in this case is not found among the enumerated vices of form for which a judgment can be annulled. The argument is made that the causes mentioned in Art. 606, C. P., are exclusive. Counsel is in error. In Tarver vs. Quinn, 149 La. 371, 89 South. 216, the Court said:

“This rule of not allowing judgments to be annulled for vices of form, except for those specified in Article 606, supra, and, on the merits, for any other cause than such as furnish clear equitable grounds, has been strictly adhered to by this court. When the demand in nullity has been based on equity, this court has always strictly enforced the requirement that the plaintiff in nullity allege and prove: First, that he has been guilty of no laches; second, that it would be against good conscience to enforce judgment. Chinn vs. First Municipality, 1 Rob. 523; Norris vs. Fristoe, 3 La. Ann. 646; Swain vs. Sampson, 6 La. Ann. 799; Lanfear vs. Mestier, 18 La. Ann. 497, 87 Am. Dec. 658; Brand vs. Stafford, 28 La. Ann. 51; Perry vs. Rue, 31 La. Ann. 287; Lazarus vs. McQuirk, 42 La. Ann. 194, 8 South. 253; Warren vs. Copp, 48 La. Ann. 810, 19 South. 746; Moss vs. Drost, 130 La. 285, 57 South. 929.
“ ‘The action of nullity is not limited to the cases specified by Article 607, C. P.; but plaintiff must show that it would be against good conscience to execute the judgment, and that he could not have availed himself of the matter in former suit, or was prevented by fraud or accident. If by reasonable diligence he could have known such matter, or if he had been guilty of laches, he cannot be relieved.’ Hennen, Dig., p. 744, No. 17, citing decisions.
“To annul a judgment, a case must be exhibited which would make it against good conscience to execute the judgment, matter of which the injured party would not have availed himself, or was so prevented by fraud or accident. If there he laches or negligence, that destroys the right to relief.’ McMicken vs. Millaudon, 2 La. 180; Garlick vs. Reece, 8 La. 101; Winn vs. Dickson, 15 La. Ann. 273; Lanfear vs. Mestier, 18 La. Ann. 497, 89 Am. Dec. 658.”

In the case before us we think it manifestly inequitable that the judgment obtained against defendant in his absence and in the absence of his counsel without notice of trial should be executed. The law contemplates that itu judgments shall be reached after hearing of interested parties and reluctantly decrees otherwise in rare instances, depending upon the laches or fault of litigants.

For the reasons assigned the judgment appealed from is reversed, the exception of no cause of action is overruled and the cause remanded for further proceedings according to law.


author: ELLIOTT, J.

text:
    No. 3359
    First Circuit Appeal
    C. G. LARRABEE, ET AL., v. SIDNEY A. LANDRY
    (February 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Laws—Par. 26, 27, 28.
    Act No. 192 of 1920 is constitutional because it has one object, to suppress gambling, which is expressed in the title and all of its provisions. The act does not enact a judgment, nor are the district courts given jurisdiction to punish offenses committed outside their respective districts nor deprive a person of his property without due process of law, nor levy excessive fines and punishments.
    Appeal from the Twenty-sixth Judicial District, Parish of. St. Tammany. Hon. Prentiss B. Carter, Judge.
    This is an injunction under Act 192 of 1920 to suppress a gambling house, and public nuisance.
    There was judgment for plaintiff and • defendant appealed.
    Judgment affirmed.
    L. Y. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    S. W. Provensal, of New Orleans, attorney for defendant, appellant.
   ELLIOTT, J.

This case involves the right of plaintiffs, residents and taxpayers of Slidell, Louisiana, to enjoin defendant from- operating a business which plaintiffs claim is a gambling house and public nuisance, contrary to the law — Act 192 of 1920 of the Legislature of the state. They pray that the business be enjoined and the nuisance abated.

The defendant excepted that the act was unconstitutional, which being overruled, he answered, denying the pertinent allegations of the plaintiffs. He admits that he rented tables and chairs in his place of business for 15 cents per hour, and sells cards, etc.

The district judge, for written reasons, sustained the constitutionality of the law and rendered judgment in favor of the plaintiffs as prayed for.

. Defendant appealed to the Supreme Court and the Supreme Court transferred the appeal to this court.

Defendant urges that the act embraces more than one object; that it enacts a judgment; that the district courts are given jurisdiction to punish offenses committed outside of their respective districts, deprives a person of his property without due process of law, divests vested rights and levies excessive fines and punishments.

The act has but one object, that expressed in its title; its object is to suppress gambling. All of its provisions have that end in view.

The authorities cited in the brief of the plaintiffs sustain the constitutionality of the act: Lebeau vs. Police Jury of Pointe Coupee Parish, 140 La. 172, 72 South. 914; State vs. Guidry, 142 La. 422, 76 South. 843; Boyer vs. Crescent Paper Box Factory, 143 La. 368, 78 South. 596; Parish of Orleans vs. Brown, 147 La. 828, 86 South. 270, and others not necessary to cite.

The cases, Parish of Orleans vs. Brown, 147 La. 828, 86 South. 270, and State vs. Jackson, 152 La. 656, 94 South. 150, apply to several of the objections urged against the act and we do not find that any of the objections can be sustained.

The defendant’s objections to the act were properly overruled.

On the merits of the case the violations of the law alleged are so well established that we do not think it can be said in behalf of the defendant that they do not exist as alleged.

It appears to be a plain case and the judgment appealed from in favor of the plaintiffs is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, defendant and appellant to pay the cost of both courts.


text:
    No. 4052
    First Circuit Appeal
    STELLA MALLET TIMBERLAKE v. E. R. CASSIDY
    (February 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 277.
    In view of Articles 2402 and 121 of the Civil Code, Article 106 of the Code of Practice and Section 3990 of the Revised Statutes, the husband’s joinder to assist his wife in a suit for personal injuries to his wife is not necessary, but it does no harm where the prayer is for judgment in favor of wife only.
    2. Louisiana Digest — Pleading—Par. 62.
    Where an exception of no cause of action is based on an assumption of fact and a conclusion of law, in the petition, if the petition otherwise states a cause of action, the exception will be overruled.
    ON THE MERITS
    3. Louisiana Digest — Automobiles—Par. 4.
    It is the duty of an automobile owner and driver who invites others into his car to exercise reasonable care and precautions for the safety of his guests, without requests from them to that effect. '
    4. Louisiana Digest — Automobiles—Par. 4.
    One who invites others to ride in his automobile does not necessarily have to be guilty of gross negligence and 'willful recklessness in order to be held responsible for the damage caused by the accident. If he was not reasonably careful and prudent he is responsible where his negligence caused the accident.
    5. Louisiana Digest — Automobiles—Par. 4b, 4d; Municipalities — Par. 225.
    Where in an automobile collision, the cause of which was the recklessly fast driving, greatly exceeding the speed limit, of an automobile owner at a blind street intersection, thie owner driver is responsible for the damages resulting.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal -from the Twenty-sixth Judicial District, Parish of Washington. Hon. Prentiss B. Carter, Judge.
    This is a suit for personal injuries caused by an automobile collision.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed'.
    (First Circuit Appeal No. 4094, G. C. Timberlake vs. Ed. R. Cassidy, is the same. Editor’s note.)
    Baskom D. Talley, of Bogalusa, attorney for plaintiff, appellee. ,
    Miller & Miller, of Covington, attorney for defendant, appellant.
   ELLIOTT, J.

Mrs. Stella Mallet Timber-lake, wife of Garnet C. Timberlake, and G. C. Timberlake to authorize and assist his wife, brought suit against E. R. Cassidy for ' damages on account of personal injuries received by' her in an automobile collision. She was riding at the time in an automobile belonging to and driven by said Cassidy. It was overturned in the collision and Mrs. Timberlake and her daughter, Lois Timberlake, were both badly injured. Garnet C. Timberlake, father and as such the legal administrator of 'the estate of Lois Timberlake, also brought suit against E,. R. Cassidy for damages in behalf of his' daughter on account of her injuries received when the automobile overturned.

The petitions in each of the cases are alike, save as to the plaintiff, the cause of action and the defenses the same. The two suits were consolidated and tried together in the lower court. To save writing two opinions, which would be but repetition, we will state both cases together, our opinion to apply to each case.

The plaintiffs substantially allege that the defendant, E. R. Cassidy, invited Mrs. Timberlake and her daughter, Lois, about TVz years of age, to go riding with him and his family in his automobile. She accepted the invitation for herself and daughter and went riding in his automobile with him and his family, his wife and-their son, about 4 years of age.

They allege that Mr. Cassidy drove his car fast and recklessly throughout the trip, disregarding requests not to drive, so fast.

That on his return from the country he continued to drive -recklessly and dangerously fast through the city of Bogalusa, greatly in excess of the speed laws of the city, taking no precautions, refusing to heed cautions and requests not to drive so fast, until he collided with another automobile. That his automobile was thereby overturned and Mrs. Timberlake and her' daughter badly injured by the overturning of his car.

Lois Timberlake’s right leg was broken quarterly above the knee and she en-' dured on said account great pain and suffering for more than a month. Four thousand and five hundred dollars are claimed on account of her injuries and suffering..

Mrs. Timberlake sustained injuries which were- likely greater than those of her daughter, more enduring. She received a greater shock and her sufferings were eqüally severe. Five thousand dollars are claimed in her petition on account of her injuries, sufferings and expenses at the hospital. Plaintiffs allege that the collision and their injuries and- sufferings are due to defendant’s recklessly fast and dangerous driving.

That Avenue F at the intersection of Fourth street, where the collision occurred, was a dangerous place and defendant was familiar with the place and the danger. That it was defendant’s duty in driving to use reasonable care for their safety as his guests; that the collision and their injuries and sufferings were entirely due to his fault and want of care for their safety. Mr. Timberlake .in his petition appears in several capacities. Defendant called on him to elect, which he did, and elected to proceed as father and legal administrator of his daughter’s estate.

To the suit of Mrs. Timberlake defendant filed an exception of misjoinder of parties plaintiff, which was overruled. He then filed in each case an exception of no cause or right of action, which was overruled.

He ¿hen answered in each case and plaintiff’s allegations of fast, reckless, dangerous driving, that he was warned and cautioned not to drive so fast; negligence and violation of the speed ordinances of the city of Bogalusa; and all their other allegations to the effect that he was responsible for the collision and at fault in the matter are denied, etc.

The cases were tried before the judge, who rendered judgment in the suit of Mrs. Timberlake for $4000.00 in her favor with interest and cost. In her case we do not find an assignment of reasons for judgment.

In the suit of Mr. Timberlake for his daughter, Lois Timberlake, judgment was rendered in his favor for $3000.00 with interest and cost. In this case written reasons for judgment were given and are equally applicable to the suit of Mrs. Timberlake.

Defendant appealed both 'cases to this court.

We will consider both cases together. The motion requiring Mr. Timberlake to elect was complied with; no further objection appearing on that account. The exception in the suit of Mrs. Timberlake that her husband’s joinder as a plaintiff to authorize and assist her is improper is not well founded. The prayer of the petition is for judgment in her favor only. The husband’s joinder to authorize and assist his wife may not be necessary in a suit of this kind now, C. C. Art. 2402 (and 1912 No. 70), but see other provisions of the law, C. G. Art. 121, C. P. Art. 106, R. S. Sec. 3990; also Lewis vs. Holmes, 109 La. 1030, 34 South. 66; St. Geme vs. Boimare, 117 La. 233, 41 South. 557. We hold that the joinder, even if not necessary, did no harm. The exception was properly overruled.

The exceptions of no right or cause of action in the two cases are based on an assumption of fact and conclusion of law, found here and' there in the petitions. These assumptions and conclusions left out of view, enough and sufficient allegations of fact remain in each petition to support the cause of _ action.

The exceptions were properly overruled.

E. R. Cassidy, the defendant, testifies that he was running at the time of the collision thirty or thirty-five miles an hour.

His testimony on the subject of his speed at the time is in part as follows:

“Q. How fast were you going when you struck the Ford car?
“A. As soon as my wife called my attention to the fact that was a dangerous corner I put on the brakes; just at that time I saw the Ford car coming; then I got out to the intersection of the streets; it looked as though we would meet in the middle of the street; I swerved to the right and put on the gas and thought I would pass before he got there.
“Q. You maintained your speed until she called your attention about the dangerous corner; then you slackened your speed, then again, in order to avoid the accident you put the speed on again?
“A. That’s correct.”

Mrs. Cassidy occupied the back seat in the automobile with Mrs. Timberlake and her daughter, and as Mr. Cassidy approached this corner she felt uneasy and asked him to be cautious. Mrs. Timber-lake, speaking of that matter, says:

“* * * and just before we got there, she asked him to be cautious, that there was a high hedge there and it would be impossible to see a car until we were right on it. We were still driving fast and this Ford car was coming down Fourth street and we were right together before we knew it. It was done so quickly; we run against the Ford on the side next to us somewhere near the front.”

Further, says:

“Q. How far was the Buick car from the intersection of Fourth street when Mrs. Cassidy spoke to Mr. Cassidy the last time?
“A. No so far; not quite a half block. We were almost to the corner.
“Q. She cautioned him not to drive so last at the comer? ■
“A. Yes, sir; and she was partially standing in the car trying to see around the corner over this high hedge; she was trying to see if there was a car approaching.” Note Testy., p. 2.

Mrs. Timberlake says several times in her testimony that Mrs. Cassidy cautioned Mr. Cassidy to slow up as he reached-this corner. Note testimony, pp. 6 and 7.

Her testimony in this regard is admitted by both Mr. and Mrs. Cassidy.

Mrs. Cassidy, speaking of the matter, says:

“I remember one time just before the accident, on approaching the corner; I had driven there myself and I remembered how difficult it is to see around the corner on account of a high hedge, and that came to my mind; in fact, the hedge was so high you couldn’t see the top of a car there, and I remember speaking to Mr. Cassidy to please slow up, and I remember distinctly his putting on his brakes. I heard the brakes squeak when he put them on.” Note testimony, p. 22.
“I must say that I was alarmed as we approached the corner and I spoke to him and he put the brakes on immediately.
“I remember seeing the Ford coming toward us and Mr. Cassidy turned out; then there was a loud noise and that’s all I remember until I was picked up.” Note testimony, p. 23.

Mr. and Mrs. Cassidy gave their testimony and answers in a straightforward manner. Mr. Cassidy admitted in his testimony that the ordinances of the town limited the speed of cars to fifteen miles an, hour. Note testimony, p. 37.

He was a member of the city council, assisted in passing them, and knew all about them. He admitted that his wife coutioned him as he approached this corner; says, however, that it was not unusual for her to request him to drive slow, that she is nervous in a car. Note testimony, p. 28. Note testimony, pp. 33 and 34.

He says in another place:

“Q. You say your wife asked you to slow down and you did?
“A. Yes, sir.
“Q. State what occurred after that.
“A. As I stated, I slackened the speed of the car considerably. I saw this man coming down the hill; at the rate I was going I saw that if we both continued we would collide right at the intersection. I slid out to the right as far as I could and picked up speed in order to get by.
“Q. Did you have time to put on your brakes ?
“A. The brakes had been put on before. I then applied the gas in an effort to get out of the way.
“Q. What happened then?
“A. I thought I was by; he struck my car at the back end and turned us over.” Note Testy., pp. 33 and 34.

The evidence shows that both cars were overturned; that of Mr. Jones, a Ford, was lying in the middle of the road; that of the defendant, a Buick, after rolling over three times, rested on the side of the road.

The evidence shows that Avenue F, at the intersection of Fourth street, is within the incorporated limits of the city of Bogalusa and a dangerous place. The danger could be sen by and was made known to Mr. Cassidy; therefore, on coming near, he should have brought his car under control. He attempted to pass it without having his car under control and at a speed which, according to this testimony, was twice, but according to others about three times as fast as the city ordinance permitted, and the result was the collision, overturning, injuries to and suffering of the petitioners. It was imprudent in the extreme to do as he did.

The evidence shows that Mr. Jones came into Avenue F from Fourth street very slow with his car under control. The distance per hour Mr. Jones was driving is not definitely stated in the evidence, but it justifies us in holding that in the matter of speed and caution he proceeded the adverse of that of Mr. Cassidy. That Mr. Cassidy darted up on him as he entered Avenue F at a speed beyond proper control seeing him hardly more than an instant before he reached him, he could not stop or give him roadway, he could only swerve his car to the right as he rushed forward in an effort to pass around ahead of and get by him, but it could not be done, because of his reckless speed.

It does not appear from the evidence whether Mr. Jones saw or could have seen Mr. Cassidy before Mr. Cassidy arrived at ■the intersection.

Mrs. Timberlake and a number of witnesses claim that Mr. Cassidy struck Mr. Jones as he passed him; while Mr. and Mrs. Cassidy and others claim that Mr. Jones struck Mr. Cassidy as Mr. Cassidy passed him, causing the oevrturning. The evidence shows that the primary cause of the collision, consequent overturning, injuries and suffering of the petitioners was Mr. Cassidy’s want of care and failure, in duty to himself and family and to Mrs. Timberlake and her daughter, his guests, riding in his car on his invitation, manifested by his heedless and recklessly fast driving at the intersection in question.

The petitioner’s right of action against Mr. Cassidy and right to hold him responsible for their injuries and suffering is therefore not dependent on whether or not Mr. Jones struck Mr. Cassidy’s wheel as Mr. Cassidy ran by him, consequently that matter is not important in this case and will not receive further consideration.

We have noticed defendant’s contention in his brief that Mrs. Timberlake was guilty of contributory fault because she did not protest his speed.

This defense is not pleaded in the answers.

It is a confession of fault on the part of defendant in the matter urged, and the evidence does not show that Mrs. Timber-lake contributed thereto. It does not appear from the evidence that Mrs. Timber-lake said anything on the subject of speed and the danger thereof; but Mr. Cassidy was asked on the trial:

“Q. Did Mrs. Timberlake or Lois at any time during the trip hinder you in any way in the operation of the car?
“A. They did not.
“Q. Did they in any way contribute to this accident?
“A. They did not.” Note testimony, p. 31.

The burden of proof was on the defendant. The contributing fault is not established by the evidence.

Defendant contends in his written argument, citing authorities from other states, that as Mrs. .Timberlake and her daughter were his guests, riding in his car gratuitously and for pleasure by his invitation, it was her duty to protest his speed if excessive, and then, if not reduced to safety, to demand that he stop and permit her and her daughter to leave it, and that not having done so she cannot recover.

We agree with the plaintiffs that such a contention is not in harmony with the Civil Code of Louisiana, according to which “an obligation is * * * synonymous with duty” and “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it” and “every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence or want of skill.”

Therefore, it was not incumbent on Mrs. Timberlake as defendant approached the intersection in question to see that he brought his car under proper control, and if he did not to demand that he stop and permit her and her daughter to leave it. Such an exaction applied to her in this case, would be unreasonable. She did not know that the place was dangerous until she heard Mrs. Cassidy informing him of it. He was driving and occupying the front seat and could see ahead and the precaution which the place required to be safe better than plaintiff could. It is inferable from the evidence that the intersection was reached, danger seen and automobiles overturned almost simultaneously, that is, so quick that nothing she could have said or done could have averted the collision. It was the duty of defendant to exercise reasonable care and precaution for the safety of his guests, without requests from them to that effect, and reasonable care required him not to run by such a place at a speed which forced on them the involuntary jeopardy of a chance escape.. Gross negligence and willful recklessness is not necessary under the law to his responsibility; neither must that active care appear which the law requires when passengers are carried for hire; but he was under the obligation and duty to his guests to exercise reasonable care and prudence for their safety and to drive accordingly.

Thompson vs. R. R., 47 La. Ann. 1107, 1108, 17 South. 503.

Jacobs vs. Jacobs, 141 La. 272, 273, 74 South. 992.

R. R. Co. vs. Derby, 14 H. 467, 484.

Steamboat New World vs. King, 16 H. 469, 474.

Thompson on Negligence, Vol. 111, Secs. 2617, 2646, 3328.

And the facts developed in this case warrant us in finding that defendant did not perform his duty to his guests on the occasion in question and he is therefore responsible to them in damages for their injuries and suffering. Mrs. Timberlake was in the hospital at Bogalusa for a month. She received her 'injuries about a year previous to the trial and at the time of the trial she testified that she had never ceased to suffer. • She further says in her testimony: “I can’t get about my duties nothing to compare with what I did before I was hurt; in fact, I am not a normal woman and don’t expect to be any more.” Note testimony, p. 4, and the evidence shows considerable expense at the hospital on account of herself and daughter.

The evidence shows that Lois Timberlake was confined in the hospital about a month. About a 'year had passed at the time-of the trial since she received her injuries, and the testimony was in effect that she had not fully recovered. Mrs. Timber-lake and her daughter both endured severe and prolonged pain and suffering.

The amount of damages allowed in the low;er court does not appear to be contested in this court. The sums allowed in the lower court are intended to cover all expenses as well as compensation for the injuries received and suffering endured.

The judgment appealed from is correct and must be. affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from in favor of Mrs. Stella Mallet Timberlake and against E. R. Cassidy herein be and the same is hereby affirmed, the defendant and appellant to pay the cost of both courts.


text:
    No. 4094
    First Circuit Appeal
    G. C. TIMBERLAKE v. EDWARD R. CASSIDY
    (February 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused)
    (See page 630 herein)
    Appeal from the Twenty-sixth Judicial District, Parish of Washington, Hon. Prentiss B. Carter, Judge.
   ELLIOTT, J.

This suit is in all respects like that entitled: Mrs. Stella Mallet Timberlake and Husband vs. E. R. Cassidy, No. 4052, appealed from the same court and based on the same law and facts.

For the reasons assigned in the case mentioned and this day decided it is ordered, adjudged and decreed, that the judgment appealed from herein be and the same is hereby affirmed, the defendant and appellant to pay the cost in both courts.


author: LECHE, J.

text:
    No. -
    First Circuit Appeal
    ISAAC CRAWFORD v. F. A. CRAWFORD LUMBER CO., ET AL.
    (Feb. 18, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. ■ Louisiana-Digest — Master and Servant— Par. 154.
    A settlement made and duly approved by the court under Employer’s Liability Act of Louisiana, No. 20 of 1914, Section 8, Sub-section 8, as re-enacted by Act No. 43 of 1922, is binding on all parties where no fraud or misrepresentation is alleged or proven.
    (Note: The recent re-enactement is Act 216 of 1924.)
    Appeal from the parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit for compensation under Employer’s Liability Act No. 20 of 1914. The defense was a prior settlement of claim.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    L. L. Morgan, of New Orleans, attorney for plaintiff, appellant.
    Ellis & Cappell, of- Covington, and J. Henriques, of New Orleans, attorneys for defendant, appellee.
   LECHE, J.

On the third day of April, 1922, or thereabout, plaintiff was painfully injured while employed as a laborer in defendant’s sawmill. His left arm was badly cut and the tendons and muscles were lacerated to such ail extent that he has almost lost the use of his arm and hand. Immediately after the accident he was attended to by a physician, taken to a hospital where he remained for some time, receiving surgical treatment, and compensation under the Employer’s Liability Act.

The disability proved to be partial but permanent. During the month of September, 1922, plaintiff entered into an agreement with the defendants whereby they settled his compensation by paying him a lump sum of money in cash.

The settlement thus agreed to, was entered into in good faith by all parties and was duly approved by the court in conformity with the provisions of paragraph 8, of Section 8, of Act 20 of 1914, as re-enacted by Act 43 of 1922, page 79.

The present suit was filed February 21, 1923, and is for the recovery of compensation at the rate of five dollars and four cents per week for a period of four hundred weeks beginning from the date of the accident less the amount acknowledged to have been received.

The gist of plaintiff’s complaint is that he was induced into error hy accepting a lump sum in full settlement, but while testifying as a witness he admits that the defendants acted in good faith and he says that they, as well as himself, erred in their construction of the law regarding the amount of compensation to which he was entitled. The settlement approved hy the court and entered into in September, 1922, is not specifically alleged in plaintiff’s petition. The only allegation which appears as indirectly attacking such settlement, is, that “defendants insisted” that their offer of settlement was exceptionally liberal and that they “urged” him to accept it and that because defendants are his blood relations, he “reluctantly” acted upon their advice. The prayer of plaintiff’s petition does not ask that the settlement made in September, 1922, be set aside or avoided as fraudulent, and in fact no allusion is made thereto.

The evidence fails to show any fraud, or misrepresentation on the part of the defendants and so far as we can see, the amicable adjustment was fair and in conformity with the law. We were not favored with argument either oral or written on the part of plaintiff, and we can discover no good reason to avoid or ignore the settlement of September, 1922. No change has arisen in the condition of plaintiff to authorize or justify a re-opening ,of the issues. closed by that settlement.

Our learned brother of the district court whose benevolence is familiar to all who know him, in his written reasons for judgment expressed his sympathy for the unfortunate condition of plaintiff, hut reached the same conclusion as we do, that plaintiff has received all the compensation to which he is entitled under the law.

The judgment appealed from, is therefore affirmed.


text:
    No. -
    First Circuit Appeal
    HERBERT POWE v. KRUEBBE & LYONS
    (Feb. 18, 1925, Opinion and Decree.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the district judge as to a matter of fact being clearly correct is affirmed.
    Appeal from the Parish of Washington, Hon. Prentiss B. Garter, Judge.
    M. I. Varnado, of Franklinton, attorney for plaintiff, appellee.
    O. H. Carter, of Franklinton, attorney for defendant, appellant.
   LECHE, J.

Plaintiff’s suit is based on a claim for labor of himself and his minor son and for fuel wood, amounting to $102.93.

The defense is payment.

It seems that plaintiff was engaged by Lyons under whose personal supervision, his services were rendered in and about a gravel pit operated by defendant firm. That at the time suit was institued, Lyons had left or withdrawn from the. work, so that Kruebbe the senior member of the firm knew little or nothing of plaintiff’s right to the claim in suit. Kruebbe found among the papers of the firm three can-celled checks collected by plaintiff and upon this evidence he filed the plea of payment.

The district judge found as a matter of fact that the checks had been given in satisfaction of other claims due to plaintiff, and he therefore rendered judgment as prayed for.

The evidence is by no means clear or convincing. There is no doubt that plaintiff was employed by the defendant firm and it appears that he was discharged about December 26, 1922, that he received the amounts' included in these checks aggregating $114.24, the last check being dated the day he was discharged. Plaintiff swears however, that he never was paid the labor and fuel for which he presently sues, and his testimony is not positively contradicted. The district judge believed him and we see no reason to reverse that finding.

Judgment appealed from is affirmed.


text:
    No. -.
    First Circuit Appeal
    CROWN CORK AND SEAL CO. v. GRAPICO BOTTLING WORKS, ET AL.
    (February 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 239, 242.
    Defendant upon being' sued can use the redhibitory vice of the thing sold as a shield against plaintiff’s attack for recovery of the purchase price, although more than a year has elapsed since the discovery of the vice.
    2. Louisiana Digest — Sales—Par. 239.
    The defendant in a suit to recover part of the purchase price unpaid for an article which has redhibitory vices cannot recover in reconvention from the plaintiff what defendant has already paid if more than one year has elapsed since the discovery of those vices by the defendant.
    (Civil Code, Art. 2534. Editor’s note.)
    Appeal from the Parish of Washington. Hon. Leche, Judge.
    This is a suit to recover the balance of the purchase price of a machine to cork and seal soda water bottles. The defense is that the machine did . not work properly. There was a reconventional demand.
    There was judgment for defendant and also for defendant on his reconventional demand.
    Plaintiff appealed.
    Judgment for defendant affirmed but judgment on reconventional demand reversed.
    B. D. Talley, of Bogalusa, attorney for plaintiff and appellant.
    Ott & Reed, of Bogalusa, attorneys for defendant and appellee.
   LECHE, J.

This suit is for the recovery of a balance due on the purchase price of a Baltimore Semi-Automatic Machine, Model B-1485, designed to cork and seal soda water bottles. The machine was sold by plaintiff to defendant in consideration of $648.00, of which amount defendant paid $290.00, and the balance sued for is $358.00, together with interest and attorney’s fees. Plaintiff also prayed for and obtained a writ of sequestration, under which the machine was seized by the sheriff, who holds it subject to the decision of the case. The defense, in substance, is that the machine was defective and could not be made to produce the results which it had been represented and guaranteed as able to accomplish. Wherefore defendants prayed .for rescission of the sale and the return of that part of the purchase price which they had already paid to plaintiff.

The judgment of the District Court was in favor of defendant as prayed for and plaintiff has appealed.

There is no doubt that the machine failed to do, both in manner and extent, the work it was designed to accomplish. The clogging of the neck of the bottles in the' machine, the loss of gas with which the contents of the bottles were charged, the breakage of bottles and consequent loss of syrup used for sweetening, and the drenching of the workmen who operated the machine, became of such frequent and continued occurrence that the machine could not be operated with any degree of efficiency. The crucial point in the case is whether this failure of the machine to properly accomplish the work intended was due to defective construction or to defective operation.

The defendant, who is illiterate but appears from his testimony to be of average intelligence, and George Haik, a young man appearing also to be of good average intelligence, both testify that the instructions given by plaintiff were carefully followed in operating the machine, but that they wtere unable to avoid the aforementioned faulty and damaging results.

Of course, it would be unreasonable to expect a machine or device of this character to be constructed in such manner as to be what is colloquially called foolproof, but, on the other hand, it would be equally unreasonable to hold that such machine was designed to be operated solely by expert mechanics when no notice or warning to that effect was given by the seller to the vendee. The circumstances under which the sale, was made to defendant point undoubtedly to the condition that a person of ordinary skill and intelligence would be able to operate the machine efficiently. That condition was accepted by defendant and seems to have been complied with, and the result, nevertheless, was as stated.

We have no means of ascertaining the cause of the trouble. The district judge evidently believed it was due to defective construction and we discover no error in that finding.

The demand by defendant for the return of that part of the purchase price, viz.: two hundred and ninety dollars, already paid to plaintiff, was met by a plea of prescription of one year. Defendant bought the machine November 30, 1921. He knew and complained of its defects on January 18, 1922. His demand for the return of the purchase price was filed December 6, 1923, or one year and eleven months after he had discovered the redhibitory defects in the machine. The redhibitory action is prescribed by one year. C. C. 2534. It is therefore obvious that he could not have instituted an action in redhibition at the time that he filed his demand in reconvention in this suit, on December 6, 1923, for such demand had then already prescribed. But under the doctrine of “quae temporalia sunt ad agendum, etc.”, defendant had the right to use as a defense, when sued for the price, that which he could not have used as a weapon of attack. C. P. Article 20. Lafiton vs. Doiron, 12 La. Ann. 164.

By reason of the same rule, while it is true that ‘defendant may. use, even after prescription has accrued, the redhibitory vice of the thing as a shield against plaintiff’s attack for recovery of its purcliase price, he cannot use such vice as a weapon against plaintiff to recover after accrual of prescription money already paid as part of such purchase price. To this effect are the decisions in Dickason vs. Bill, 13 La. Ann. 250, and Riddle vs. Kreinbiehl, 12 La. Ann. 297.

It might be contended that this case comes within the exceptions contained in Article 2534, C. C., but these exceptions arise only where the seller had knowledge of the vice or where, not being domiciliated in the state, the seller shall have absented himself before the expiration of the year following the sale. Neither of these conditions are shown to exist in this case. The plaintiff is a foreign corporation represented by an agency in the city of New Orleans, which, so far as the record shows, is still located in that city.

We believe that the trial judge was in error in granting defendant’s demand for the return of that part of the purchase price already paid and that the judgment appealed from should be accordingly amended.

It is therefore ordered that the judgment appealed from be amended by dismissing and refusing defendant’s reconventional demand and that otherwise said judgment be affirmed, costs of appeal to be paid by defendant and appellee.


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    No. 1557
    First Circuit Appeal
    A. E. NEAL v. GEORGE W. CUNNINGHAM
    (February 18, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana ■ Digest — Error and Mistake— Par. 15.
    One who has purchased property from another under a deed which misdescribed the land sold can have the error corrected where he proves that the land intended to be sold had a different description.
    2. Louisiana Digest — :Sales—Par. .70.
    “Lesion beyond moiety” cannot be invoked as a defense to set aside a sale of a mere hope or pretense nor to prevent the correction of an error of description in a deed. ’
    (Civil- Code, Art. 1860. Editor’s note.)

    •Appeal from the Twenty-eighth Judicial District, Pax-ish of Livingston, Hon. Columbus Reid, Judge.
    This is a suit to correct an error of description of land sold. There was plea of “Lesion beyond Moiety” by defendant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. M. McGehee, of Plammond, attorney for plaintiff, appellee.
    Rownd & Hungate, of Plammond, attorneys for defendant, appellant.
   ELLIOTT, J.

The plaintiff, A. E. Neal, alleges that he purchased from defendant, George W. Cunningham, by act of sale in the form of a quit claim under private signature, a certain tract of land, which in the exception of the act was unintentionally erroneously described.

The act of sale and the tax title in favor of defendant, which covers the property alleged to have been the object of the sale,, is annexed to and made part of the petition, to the end that the error of description in the act from defendant to plaintiff might appear; and plaintiff prays for judgment correcting the description in the act from defendant to himself so as to cover the object of the sale and comply with the intention of the parties.

The defendant in his answer admits signing the act in favor of the plaintiff and the receipts of the price, $50, but alleges that it was not the intention of the parties' to convey any real interest in any property; alleges that he informed the plaintiff at the time that he had no interest in the land described in the act which he signed; that plaintiff nevertheless insisted, etb.

He denies in his answer that it was his intention to sell and the plaintiff’s to buy the land which defendant had acquired at the tax sale alleged by plaintiff, and denied that plaintiff was entitled to the correction prayed for.

He further alleged in his answer that the property he had bought at tax sale, and which the plaintiff claimed had been sold to plaintiff by defendant, was worth $100, and pleaded “lesion beyond moiety” against plaintiff’s action, in the event it was held that this property which he had acquired at tax sale was held to be the property intendedoby the parties in the act of sale set up by the plaintiff, and that plaintiff was not entitled to the correction on that account.

The district judge, after hearing the evidence, decided in favor of the plaintiff as regards the correction prayed for, and rejected the defense of “lesion beyond moiety”. Defendant appealed.

The case was submitted to this court without argument or- brief by either party.

The examination of the record shows that under the evidence developed on the trial the judgment appealed from is correct.

The plaintiff and defendant, parties to the act of sale for which defendant received, $50, had in mind and intended the property which defendant had acquired at a tax sale made of property belonging to the succession of Ben Wall.

Defendant testifies that he did not really intend to sell plaintiff anything except just such right as he might have, and the sale in question was made without warranty. That he did not claim any right to the property described in .the title which he signed and for which he received $50; but the evidence shows that the act which he signed in favor of the plaintiff merely misdescribed the property which the parties had. in mind and intended to buy and to sell.

As for “lesion beyond moiety” invoked by defendant, this defense cannot be urged to set aside a sale of mere hope or pretense nor prevent the correction prayed for.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed and appellant pay the cost of both courts.


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    No. -
    First Circuit, Appeal
    J. R. WATKINS COMPANY v. S. A. BANKSTON, ET AL.
    (Feb. 18, 1925, Opinion and Decree.)

      (Syllabus o/ the Editor.)

    1. Louisiana Digest — Appeal—Par. 598; ' Evidence — Par. 46.
    A judgment confirmed by default is presumed to have been rendered on proper evidence.
    2. Louisiana Digest — Appeal—Par. 568, 571, 607.
    Issues not raised in the trial court cannot be passed upon on appeal. Where there was judgment confirmed on default there are no issues to pass upon.-
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    This is an appeal from a judgment confirmed on default.
    There was no note of evidence in the record.
    Judgment affirmed.

      Lindsey McDougal, of Ponchatoula, attorney for plaintiff, appellee.
    S. S. Reid, of Amite, attorney for defendant, appellant.
   LECHE, J.

This case was remanded for the purpose of taking evidence on the question of acquiescence in the judgment, which acquiescence was pleaded as a ground for dismissal of defendants’ appeal.

Instead of taking evidence, the parties have agreed in writing, “that the motion to dismiss and plea of acquiescence be withdrawn and that the case be submitted on the question of validity of the contract sued in this case”.

The judgment appealed from was obtained on a confirmation of default. The record contains no note of evidence, but we must assume that the trial judge did not permit the default to be confirmed and did not give plaintiff a judgment without having heard evidence and the law is that such judgment is presumed to have been rendered on proper evidence. Shreveport vs. Maroun, 134 La. 148, 63 South. 857; Boyd vs. Bradley, 134 La. 233, 63 South. 883; Wilson vs. Ivy Lodge, 116 La. 537, 40 South. 864.

It was the evident purpose of counsel, in withdrawing the motion to dismiss the appeal, which motion was based upon acquiescence, to obtain a ruling as to the validity of the contract of sale, a copy whereof is annexed -to plaintiff’s petition. Counsel in argument say that this court, in a case decided June 9, 1924, Watkins vs. Russel, held a similar contract unenforcable in this State, in view of Sec. 12 of Act 56, p. 143, of 1914.

The cited Act of 1914 regulates the practice of medicine, surgery and midwifery, creates State Boards of Medical Examiners prevents the practice of mpdicjne, surgery and midwifery by unauthorized persons, etc., and Section 12 thereof, imposes a penalty by fine .or by imprisonment upon any itinerant vendor of any druS nostrum, ointment of any kind, intended for jthe treatment of disease or injury, who may profess to cure or treat disease or deformity, etc.

We have not before us, the record of the case said to have been decided by this court on June 9, 1924, nor have we any copy of the opinion and decree said to have • been rendered in that ease. The opinion in the Russel case was no doubt based upon facts which do not appear In the record of the present case.

In the present case there was no question raised in the trial court, as to the legality and validity of the contract, for there was no joinder of issue by exception or by answer. We therefore could not pass upon that issue on this appeal, unless the contract should for some reasqn apparent on its face, appear to be an absolute nullity. We can discover no reason for so holding. The plaintiff is a resident of the State of Minnesota. The contract is in regard to goods and articles, the nature of which is not disclosed. It may be questioned- whether the contract is one of sale or one' of agency, but that issue is not raised by the pleadings.

The defendants are residents of Ethel, and Hammond, Louisiana, and we must assume under the law, that evidence was adduced showing the indebtedness of the defendants as awarded to plaintiff in the judgment from whieji this appeal was taken.

Judgment affirmed.


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    No. 3681
    First Circuit Appeal
    CHARLES SWINSON v. AARON ROSENTHAL
    (Feb. 18, 1925, Opinion and Decree.)

      (Syllabus of the Mclitor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The findings of the trial judge on matters of fact being clearly correct are affirmed.
    Appeal from the Twenty-sixth Judicial District, Parish of St. Tammany, Hon. Prentiss B.' Carter, Judge.
    This is a damage suit arising out of an automobile accident.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. Y. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    L. L. Morgan, of New Orleans, attorney for defendant, appellant.
   ELLIOTT, J.

Plaintiff, Charles Swinson, alleges that he was driving in his automobile on the Slidell-Covington highway and when opposite Mandeville the automobile of the defendant, Aaron Rosenthal, driven by Rosenthal’s driver and employee ran into him; striking, breaking and damaging his automobile to the extent of $118.68.

That the sole cause of the collision and of the injury sustained by the plaintiff is due to the gross fault, careless or negligent manner in which the defendant’s automobile was operated.

Defendant denies the .negligence, fault and responsibility for the injury to him by the plaintiff.

The district judge rendered judgment in favor- of the plaintiff for the amount claimed. Defendant appealed.

Questions of fact only are involved in the case.

The evidence shows that a filling station is situated at the place where Monroe street, going out of the town of Mandeville, leading North, intersects and crosses the highway in question; the filling station is situated in the corner, on the north side of the highway and on the west side of the street and faces east on Monroe street.

According to the plaintiff and the witnesses who testified in his behalf, who partly corroborated him, plaintiff was driving West on the highway toward Covington at a speed of about twenty miles an hour. Just as he reached the place where the highway is intersected by the street and nearly opposite the filling station, defendant's automobile ran out of the filling station at- a rapid rate of speed, making a , curving turn out of street into the highway, darting toward the plaintiff both going in the same direction.

The driver of defendant’s automobile did not look to see if anybody else was on the crossing; because he says he did not see plaintiff until he struck him. He would have been bound to see plaintiff if he had been looking or using any care or precaution as he turned to the right out up the street curving to the west in the highway, running against the plaintiff, who was riding on the highway in the crossing, both going the same direction.

According to the plaintiff and his testimony he did all he could to avoid the collision: tried to get out of the way but was unable to do so because the defendant’s automobile came on him so quickly and so fast that it was impossible for him to escape — and charges that the collision was entirely due to the fault, fast and heedless driving of the defendant; and he is supported in this contention.

The witnesses, in speaking of the matter, say the defendant’s automobile ran into the plaintiff.

, The district judge saw the witnesses, perhaps knows them and believes the testimony of the plaintiff.

The actual damage which plaintiff sustained amounts to $118.68.

We think the judgment appealed from is correct and should be affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed: the defendant and appellant to pay the cost of both courts.


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    No. 6742
    First Circuit Appeal
    HOWELL J. THOMPSON v. WADE J. GARNIER
    (Feb. 18, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The findings of the trial judge on matters of fact being dlearly correct are affirmed.
    Appeal from the Twenty-fifth Judicial District, Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is a suit to collect money for meals furnished gusts of defendant.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    H. Mixon, of Amite, attorney for plaintiff, appellee.
    Purser & Magruder, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

Plaintiff, Howell J. Thompson, proprietor of a restaurant alleges that at the request of the defendant, Wade J. Garnier, he furnished meals to guests of said Garnier, for which he claims payment.

Defendant’s is a denial of liability.

The district judge, after hearing the facts decided in favor of the plaintiff. Defendant appealed.

The evidence shows that the claim is for meals furnished to- baseball players. The plaintiff testifies that the meals were not to be paid for by the ball players themselves, but that Mr. Garnier arranged with him to furnish the meals and that he would pay for same.

Two witnesses, Houeye and May corroborate Mr. Thompson in some respects, also Doctor McClendon, who says speaking .of the baseball game business “Wade "ran it and paid the bills”.

Mr, Garnier admits that he ordered the meals, but contends that in doing so he was acting for the baseball club. We quote the following from his evidence:

• “Q. Did you order Mr. Yardman’s meals or instruct them that you would pay for them and have -them charged to your account?
“A. No, sir, not to my account.
“Q. Did you ever tell Mr. Thompson that you, personally, would pay for any of these baseball players’ accounts?
“A. No, sir.
“Q. Did you give Mr. Thompson instructions to feed these men, Mr. Vardaman and all?
“A. I did, we had to leave a list there and tell them who to feed that day. If we didn’t the whole doggone town would be living off the club.”

The checks and tickets offered in evidence do not negative personal responsibility on the part of the defendant for these meals.

According to the plaintiff his claim is not a debt due him by the ball players, but by the defendant.

We do not think the finding of the facts by the district judge should be inter.ferred with in this case.

The judgment appealed from appears to be correct. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, the defendant and appellant to pay costs of both courts.


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    No. 4004.
    First Circuit Appeal
    OGLETHORPE UNIVERSITY v. J. A. SALMON
    (Feb. 18, 1925, Opinion and Decree.)
    (May 5, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62, 114.
    Under the allegations of the petition with documents annexed to and made part of it, plaintiff is seeking to compel payment of an amount promised as a gift, without alleging that it is in furtherance of the purpose of the gift and the intent of the donor in giving, therefore the donor is under no obligation to pay. An exception no cause of action was sustained.
    2. Louisiana Digest — Laws—Par. 72.
    Acts No. 124 of 1882 and No. 251 of 1914, apply to Educational Institutions in this State only.
    3. Louisiana Digest — Pleading—Par. 50.
    Under the law C. C. Arts. 1827, 1897, 1882 and C. P. Art. 20, defendant can invoke the failure to allege compliance with the purpose for which he promised to give, as a defense against the action to compel him to pay.
    Appeal from the Twenty-fifth Judicial District, Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit to compel payment of a subscription to a university in Georgia. The defendant interposed an exception no cause of action which was sustained and suit dismissed.
    Plaintiff appealed.
    Judgment affirmed.
    A. J. Finney, of Covington, attorney for plaintiff, appellant.
    ■ Miller & Miller, of Covington, attorneys for defendant, appellee.
   ELLIOTT, J.

The plaintiff, Oglethorpe University, brought -suit against defendant, J. A. Salmen, to compel payment of $550.00 which he had subscribed “for the purpose of founding a Sounthern Presbyterian University in the City of Atlanta, Georgia, to be forever held in trust and controlled by a self-perpetuating Board of Directors, each of whom shall be a member, in good and regular standing, of a Presbyterian Church, and each of whom shall represent on said board — a gift of not less than $1000.00 to said university.

“I hereby subscribe $110 per year, for five years, totaling $550.00, payments to begin July 1, 1916.”

The defendant interposed an exception of no cause or right of action; which was sustained in the lower court and the suit dismissed.

The document signed by the defendant is a promise to give for a certain purpose, which petition does not allege to have been performed, and the exception is based on the failure of the petition in this respect.

The promise to give is an imperfect obligation under our law, Civil Code Art. 1757 No. 1.

The Oglethorpe University of Atlanta, Georgia, is the plaintiff, consequently for the purposes of the exception we can assume that it has been founded at Atlanta, Georgia; but it cannot be assumed, as the petition does not allege that it is a South-er Presbyterian University, nor that it is held in trust and controlled by a self-perpetuating Board of Directors, each of whom is a member in good and regular standing of a Presbyterian Church and representing on said board a gift to the university of not less than ¡¡>1000.00;

The failure to allege these purposes and that they have been complied with is a failure to allege the consideration on which the promise was made, which cannot be assumed from the allegations in the petition. If defendant is compelled to pay the amount which he subscribed there is nothing to show that it will be devoted to the purpose for which it was given and to the purpose for which it was subscribed.

According to plaintiff’s petition defendant’s promise has not been accepted for the purpose for which it was made and the obligation to pay is therefore imperfect under our law, Civil Code, etc.

“Unequivocal words expressive of mere intent do not make an obligation, C. C. Art. 1814.”

Under the allegations of the petition with documents annexed to and made part of it, plaintiff is seeking to compel payment of an amount promised as a gift, without alleging that it is in furtherance of the purpose of the gift and the intent of the donor in giving; therefore the donor is under no obligation to pay.

It is not claimed in the petition that Oglethorpe University accepted' the gift and proposes to use it for the purpose for which it was promised to be given.

The plaintiff should have alleged compliance with the purpose for which the promise to give was made.

We notice that it is contended in plaintiff’s brief that “by virtue of their subscription and other subscriptions Southern University incurred considerable debts, etc.”, but we do not find in the petition an averment of this kind. (The Acts Nop. 124 of 1882, and 251 of 1914, apply to Educational Institutions in this State only.)

Under the law C. C. Arts. 1827, 1897, 1882 and C. P- Art. 20, defendant can invoke the failure to allege compliance with the purposes for which he promised to give, as a defense against the action to compel him to pay.

The judgment of the lower court appears to be correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed; defendant and appellant to pay cost of both courts.


text:
    No. 8630
    First Circuit Appeal
    CHARLES HOTARD v. PAUL J. DUPONT, ET AL.
    (February 18, 1925, Opinion and Decree)

      (Syllabus T)y the Editor.)

    1. Louisiana Digest — Appeal—Par. 143.
    No appeal lies from a final' judgment until it has been signed by the judge.
    2. Louisiana Digest — Pleading—Par. 62; Judgment — Par. 12.
    A judgment sustaining an exception of no cause of action is a final judgment which must be signed to become effective.
    3. Louisiana Digest — Appeal—Par. 143.
    A judgment maintaining an exception of no cause of action cannot be appealed from until the judgment has been signed.
    Appeal from the Twentieth Judicial District, Parish of Terrebonne, Hon. Robert B. Butler, Judge.
    This is a suit in which an appeal was taken by the plaintiff, from a judgment which sustained an exception of no cause of action.
    The judgment was not signed.
    The appeal was dismissed for prematurity.

      Harris Gagne, of Thibodaux, attorney for plaintiff, appellant.
    Butler & Wurzlow, of Thibodaux, attorneys for defendant, appellee.'
   ELLIOTT, J.

In this case there is no judgment in the record. The plaintiff and appellant, by his counsel, moved the Court of Appeal to • return the record to the lower court in order that the judgment might be supplied which he avers was rendered, but not reduced to writing and signed until after the appeal had been, taken and lodged in this court.

The minutes of the District Court of date December 15, 1923, read:

“The exception of no cause of action filed herein by the defendants was this day taken up for argument, and after which the same whs sustained by the court and the plaintiff’s suit ordered dismissed. Counsel for plaintiff thereupon moved for a suspensive and, in the alternative, a devolutive appeal, which was granted by the court, returnable on January 7, 1924, etc.”

The minutes show what was done and it does not appear therefrom that a formal judgment was rendered and signed by the court.

The affidavit in support of the motion to return in order to supplement the record says: “That in open court, after the appeal hereof had been lodged in this court, counsel discovered the absence of said written judgment; that-he then moved in open court to have the judgment signed nunc pro tunc and the minutes corrected to show the signing, etc.” This affidavit bears date March 25, 1924. After' the return day, of course, written at the bottom of the motion appears the following statement of the district judge:

“The facts as stated in the above and foregoing affidavit are in accord with my recollection.
(Signed) “H. M. WALLIS,
“Presiding Judge.”

Diminution of the record exists when something was left out of it that existed at the time it was made and which should have been incorporated in it. When this record was made' up and lodged in this court there Was no judgment extant that should have been incorporated in it. If we grant' the motion the judgment signed since the appeal was lodged could not be properly incorporated in it because it- was not extant at that time.

There is no final judgment until judgment is signed. C. P., Arts. 546, 575, 624. There are cases holding that in the country appeals may be taken before the judgment is signed; but we assume that in all such cases judgment was signed and placed in the transcript before it was lodged in the Supreme Court. State vs. Balize, 38 La. Ann. 542, and many others.

A judgment sustaining an exception of no cause of action is a final judgment which must be signed. Nicholls vs. Maddox, 52 La. Ann. 496, 26 South. 994. In Louisiana Digest, Vol. I, p. 337, Sec. 143, we notice a multitude of cases to the effect that no appeal lies from a final judgment until it has been signed by the judge.

“A judgment maintaining an exception no cause of action cannot be appealed from until the judgment has been signed.”

Nicholls vs. Maddox, 52 La. Ann. 496, 26 South. 994; Hauch vs. E. C. Drew Ins. Co., 116 La. 488, 40 South. 847; Mitchell vs. Shreveport Creosoting Co., 123 La. 957, 49 South. 655; Hanchey vs. St. Louis, I. M. & S. Ry. Co., 135 La. 352, 65 South. 487; State vs. Oliver, 143 La. 180, 78 South. 439. The case of Hanchey vs. St. Louis, I. M. & S. Ry. Co., 135 La. 352, 65 South. 487.

The appeal in this case was premature and muát be dismissed for prematurity. It is therefore ordered, adjudged and decreed that this appeal be dismissed as having-been taken prematurely.